EXHIBIT 99
SECOND MODIFICATION AND JOINDER AGREEMENT
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THIS SECOND MODIFICATION AND JOINDER AGREEMENT ("Agreement"), dated as
of the 25th day of August, 1999, is made by, between and among METRO
INFORMATION SERVICES, INC., a Virginia corporation ("Borrower"), METRO
INFORMATION SERVICES OF NORTHERN CALIFORNIA, INC., a Virginia
corporation ("Metro NC"), METRO INFORMATION SERVICES OF LOS ANGELES,
INC., a Virginia corporation ("Metro LA"), METRO INFORMATION SERVICES OF
ORANGE COUNTY, INC., a Virginia corporation ("Metro OC"), METRO
INFORMATION SERVICES OF PENNSYLVANIA, INC. a Virginia corporation
("Metro PA"), METRO INFORMATION SERVICES-ATS, INC., a Virginia
corporation ("Metro ATS"), ACUITY TECHNOLOGY SERVICES, LLC, a Virginia
limited liability company ("Acuity LLC") (Metro NC, Metro LA, Metro OC,
Metro PA, Metro ATS and Acuity LLC are sometimes hereinafter
individually referred to as "Guarantor" and collectively referred to as
"Guarantors"), BANK OF AMERICA, N.A. d/b/a NationsBank, N.A., successor
to NationsBank, N.A. ("Bank of America"), CRESTAR BANK ("Crestar"),
FIRST UNION NATIONAL BANK ("First Union") and Wachovia Bank, N.A.
("Wachovia") (Bank of America, Crestar, First Union and Wachovia are
sometimes hereinafter individually referred to as a "Lender" and
collectively referred to as "Lenders").
R E C I T A L S:
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A. Borrower, Bank of America, Crestar and First Union are parties
to a Credit Agreement, dated June 20, 1997, as modified by a First
Modification Agreement, dated as of January 15, 1999 (collectively, the
"Credit Agreement"), pursuant to which each bank has provided Borrower
with a line of credit facility in the amount of $30,000,000.
B. Borrower has requested, and each Lender has agreed, that (i)
Bank of America, Crestar and First Union each increase the amount of
their respective line of credit facility to $35,000,000, and (ii)
Wachovia become a Lender under the Credit Agreement and all related
documents and provide a line of credit facility to Borrower in the
amount of $20,000,000, so that the four lines of credit total
$125,000,000, on the terms and subject to the conditions set forth in
this Agreement and the Credit Agreement.
C. Each Guarantor is a wholly owned subsidiary of Borrower, or a
remote subsidiary of Borrower, and has unconditionally guaranteed
payment of the Obligations of Borrower under the Credit Agreement.
Guarantors join in this Agreement to evidence their consent to the
modification to the Loan Documents set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement and the Credit Agreement, and for other good and valuable
consideration, the parties stipulate and agree as follows:
1. DEFINITIONS. Unless the context otherwise requires, terms used in
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this Agreement will have the same meanings and definitions as set forth in the
Credit Agreement.
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2. JOINDER OF WACHOVIA. Wachovia joins in and becomes a party to the
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Credit Agreement and the Loan Documents, and in all respects shall be considered
a Lender under the Credit Agreement and the other Loan Documents. Wachovia will
have all of the rights and obligations of a Lender under the Loan Documents.
3. MODIFICATIONS TO LOAN DOCUMENTS. The Loan Documents are modified
-------------------------------
and amended as follows:
3.1. The definition of the terms "Commitment" and "Process
Agent" contained in Section 1.1 of the Credit Agreement are deleted and the
following definitions are substituted in lieu thereof:
"Commitment" means, with respect to each of Bank of America,
Crestar and First Union, $35,000,000, and with respect to Wachovia,
$20,000,000.
"Commitment Termination Date" means, as to each Lender, June 20,
2004, as extended, pursuant to Section 2.1, or such earlier date as Borrower
may designate by not less than 30 days' advance written notice to a Lender.
"Process Agent" means X. Xxxxxxx Xxxxxxx, Esquire, whose
address is Williams, Mullen, Xxxxx & Xxxxxxx, P.C., 000 Xxx
Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxx 00000.
3.2. The maximum aggregate principal amount of Advances on the
Loans by all of the Lenders, as referenced in Section 2.1(a) of the Credit
Agreement, is increased from $90,000,000 to $125,000,000. Each reference in
the Loan Documents, and in any exhibits thereto, to the sum $90,000,000 is
modified to refer to the sum $125,000,000. Each reference in the Loan
Documents, and in any exhibits thereto, to the sum $30,000,000 is modified to
refer to the sum $35,000,000 as to Bank of America, Crestar and First Union,
and the sum $20,000,000 as to Wachovia.
3.3. All references in the Loan Documents to NationsBank,
N.A., are changed to mean and refer to Bank of America.
3.4. Schedule 2.2 attached to the Credit Agreement is
deleted and replacement Schedule 2.2 attached to this Agreement as EXHIBIT A
is substituted in lieu thereof. The average unused commitment fee for
Wachovia for its Commitment Period, as set forth in Schedule 2.2, shall be
payable to Wachovia quarterly in arrears beginning on November 30, 1999, and
continuing quarterly thereafter during Wachovia's Commitment Periods, with
the final installment of such commitment fee being paid to Wachovia on its
Commitment Termination Date, which shall be prorated on a daily basis if
less than a full calendar quarter, or calendar month, as the case may be,
has elapsed once the final installment is paid.
3.5. In Section 10.6 of the Credit Agreement, the
NationsBank address and other contact information is deleted and the
following address and other contact information for Bank of America is
substituted in lieu thereof:
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Bank of America, N.A.
Commercial Banking
Xxx Xxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
ATTN: Xxxxx X. Old
Facsimile No. 000-000-0000
3.6. In Section 10.6 of the Credit Agreement, the address
and other contact information for Xxxxxx X. Xxxxx, Esquire is deleted and
the following address and other contact information for copies of all notices
to Borrower is substituted in lieu thereof:
X. Xxxxxxx Xxxxxxx, Esquire
Williams, Mullen, Xxxxx & Xxxxxxx, P.C.
000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Facsimile No. 000-000-0000
3.7. In Section 10.6 of the Credit Agreement, the
following address and other contact information for Wachovia is inserted for
purposes of notices to Wachovia:
Wachovia Bank, N.A.
Corporate Banking
400 World Trade Center
Xxxx Xxxxxx Xxx 00000
Xxxxxxx, Xxxxxxxx 00000-0000
ATTN: Xxxxxxxxx Xxxxxxx
Facsimile No. 000-000-0000
3.8. The term "Loan Documents" defined in Section 1.1 of
the Credit Agreement also includes, without limitation, this Agreement, the
Replacement Notes and the Wachovia Note delivered to the Lenders pursuant to
Section 4 below, and the security agreements and guaranties delivered to the
Lenders pursuant to Section 5 below.
4. WACHOVIA NOTE AND REPLACEMENT NOTES. Borrower will deliver to each
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of Bank of America, Crestar and First Union a replacement commercial note (each
hereinafter referred to as a "Replacement Note") which shall (i) be executed by
Borrower and dated the date of this Agreement, (ii) be payable to the order of
each such Lender at its respective office in the amount of $35,000,000, (iii)
bear interest in accordance with Section 3.6 of the Credit Agreement and (iv) be
in the form of EXHIBIT B attached to and incorporated in this Agreement with
blanks appropriately completed in conformity with the Credit Agreement and this
Agreement. Borrower will deliver to Wachovia a commercial note (the "Wachovia
Note") which shall (i) be executed by Borrower and dated the date of this
Agreement, (ii) be payable to the order of Wachovia at its office in the amount
of $20,000,000, (iii) bear interest in accordance with Section 3.6 of the Credit
Agreement and (iv) be in the form of EXHIBIT C attached to and incorporated in
this Agreement with blanks appropriately completed in conformity with the Credit
Agreement and this Agreement. All references in the Loan Documents to the Notes
will be deemed to refer to the Replacement Notes and Wachovia Note delivered in
accordance with
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this Agreement. On delivery to a Lender of its Replacement Note,
such Lender will return its original Note to Borrower.
5. WACHOVIA SECURITY AGREEMENTS AND GUARANTIES. Borrower will deliver
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to Wachovia a security agreement ("Wachovia Security Agreement") in the form of
EXHIBIT B to the Credit Agreement and will file UCC-1 financing statements to
perfect Wachovia's security interest in the Collateral. Each Guarantor will
deliver to the Lenders (i) a replacement guaranty ("Replacement Guaranty") in
the form of EXHIBIT D to the Credit Agreement and (ii) a replacement security
agreement ("Replacement Security Agreement") in the form of EXHIBIT E to the
Credit Agreement. Each Guarantor, other than Metro ATS, will file UCC-1
financing statements to perfect Wachovia's security interest in the Collateral
owned by each Guarantor. On delivery to each Lender, other than Wachovia, of the
Replacement Guaranties and Replacement Security Agreements from the Guarantors,
the Lenders will return the original Guaranties and Subsidiary Security
Agreements to the Guarantors.
6. CONDITIONS TO EFFECTIVENESS. This Agreement is limited as specified
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and shall not constitute a modification, acceptance or waiver of any other
provision of the Credit Agreement, or any other Loan Documents. This Agreement
shall become effective on the date (the "Modification Agreement Effective Date")
when each of the following conditions have been satisfied by Borrower and
Guarantors or waived by the Lenders:
6.1. Borrower, Guarantors and each Lender shall have
signed a counterpart of this Agreement (whether the same or different
counterparts);
6.2. The Lenders shall have received from Williams,
Mullen, Xxxxx, and Xxxxxxx, P.C., counsel to the Borrower and Guarantors, an
opinion addressed to the Lenders and dated the Modification Agreement
Effective Date, in form and substance reasonably satisfactory to the Lenders
and covering such matters incident to the Loan Documents, this First
Modification Agreement and the transactions contemplated herein as the
Lenders may reasonably request;
6.3. The Lenders shall have received Resolutions of the
Board of Directors of the Borrower and Guarantors, which Resolutions shall be
certified by the Secretary or any Assistant Secretary of such entity and
shall authorize the execution, delivery and performance by each such party of
this Agreement and any documents contemplated hereby, and the consummation of
the transactions contemplated hereby;
6.4. The Lenders shall have received from the Borrower and
Guarantors all of the documents required by Sections 4 and 5 above, duly
executed, and all UCC-1 financing statements in favor of Wachovia as secured
party shall have been filed;
6.5. The Lenders shall have received a Certificate from
the Borrower in the form prescribed pursuant to Section 4.1(c) of the Credit
Agreement; and
6.6. The Lenders shall have received a Certificate of Good
Standing for the Borrower and for each Guarantor issued by the State
Corporation Commission of Virginia dated within 60 days prior to the date of
this Agreement, together with Certificates issued by other states confirming
the Borrower and each Guarantor is qualified to do business in each
jurisdiction in which it does business.
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7. FURTHER ASSURANCES. Borrower and Guarantors will execute and
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deliver, or cause to be executed and delivered, and do or make, or cause to be
done or made, on the reasonable request of any Lender, any and all instruments,
documents, acts or things, supplemental, confirmatory or otherwise, for the
purpose of effecting the modifications to the Loan Documents described in this
Agreement.
8. CONFLICT BETWEEN DOCUMENTS; RATIFICATION. If there is any conflict
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between the terms and conditions of this Agreement or any note, guaranty or
security agreement delivered in accordance with this Agreement and any one or
more of the terms and conditions of any other Loan Document, the terms and
conditions of this Agreement or the documents delivered pursuant to this
Agreement, as applicable, will supercede and control. Except as modified by the
provisions of this Agreement, the Borrower and each Lender hereby ratifies and
reaffirms all of the provisions of the Loan Documents.
9. MULTIPLE COUNTERPARTS. This Agreement may be executed in any number
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of counterparts, all of which taken together will constitute one and the same
agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
10. GOVERNING LAW. This Agreement has been prepared, is being executed
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and delivered, and is intended to be performed in the Commonwealth of Virginia.
The substantive laws of such state and the applicable federal laws of the United
States of America will govern the validity, construction, enforcement and
interpretation of this Agreement and all of the other Loan Documents.
11. GUARANTORS' CONSENT. Each Guarantor consents to the modifications
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to Loan Documents set forth in this Agreement and to the increase in the
Obligations which they have guaranteed. The Guarantors ratify and affirm all
their obligations under their respective guarantees as modified by this
Agreement. By executing and delivering this Agreement, each Guarantor agrees
that all Obligations (including, without limitation, the additional Loans which
may be incurred pursuant to the maximum Commitments after giving effect to this
Agreement) shall be fully guaranteed pursuant to the Guaranty to which each is a
party in accordance with the terms and provisions thereof, and shall be fully
secured pursuant to each Guarantor's respective Security Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the day and year first above written.
METRO INFORMATION SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Vice President and Chief Financial Officer
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METRO INFORMATION SERVICES OF LOS
ANGELES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Secretary and Treasurer
METRO INFORMATION SERVICES OF NORTHERN
CALIFORNIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Secretary and Treasurer
METRO INFORMATION SERVICES OF ORANGE
COUNTY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Secretary and Treasurer
METRO INFORMATION SERVICES OF PENNSYLVANIA,
INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Secretary and Treasurer
METRO INFORMATION SERVICES-ATS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Secretary and Treasurer
ACUITY TECHNOLOGY SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx,
Secretary and Treasurer
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BANK OF AMERICA, N.A.
d/b/a NationsBank, N.A.,
successor to NationsBank, N.A.
By: /s/ Xxxxx X. Old
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Xxxxx X. Old,
Vice President
CRESTAR BANK
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx,
Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx,
Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Xx. Vice President
65029035/Second Modification/SECOND MODIFICATION & JOINDER AGREEMENT
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EXHIBIT A
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SCHEDULE 2.2
UNUSED COMMITMENT FEES
----------------------------- ---------------------- ------------------ ----------------------- ---------------------
FUNDED DEBT
TO EBITDA FIRST UNION CRESTAR BANK OF AMERICA WACHOVIA
RATIO
----------------------------- ---------------------- ------------------ ----------------------- ---------------------
> 2.5 .3125 .3125 .25 .25
----------------------------- ---------------------- ------------------ ----------------------- ---------------------
1.5 - 2.5 .2500 .2500 .18725 .18725
----------------------------- ---------------------- ------------------ ----------------------- ---------------------
.5 - 1.5 .1875 .1875 .125 .125
----------------------------- ---------------------- ------------------ ----------------------- ---------------------
LESS THAN .5 .1875 .1250 .125 .125
----------------------------- ---------------------- ------------------ ----------------------- ---------------------
The "Unused Commitment" amount for purposes of determining the Unused Commitment
fee for any Fiscal Quarter shall be equal to the amount of each Lender's total
Commitment, minus the average daily amounts of the Loan actually outstanding
during such Fiscal Quarter just ended or calendar month, as the case may be.
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EXHIBIT B
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REPLACEMENT COMMERCIAL NOTE
____________, 1999 $35,000,000.00
Commitment
FOR VALUE RECEIVED, the undersigned (the "Maker"),
unconditionally promises to pay to the order of ___________________ (the
"Bank"), without offset, at the Bank's office in Norfolk, Virginia, or at such
other place as the Bank may designate, all sums advanced hereunder pursuant to
the Credit Agreement (as hereinafter defined), with interest payable on the
first day of each month beginning February 1, 1999, and at maturity, on the
unpaid principal balance of such sums from the date of each advance until repaid
in full. If not earlier paid, the aggregate amount of all sums outstanding, set
forth below in the last entry on the Schedule of Advances and Payments set forth
below as "Principal Amount Outstanding," together with interest shall be paid in
full on such date as is provided for in the Credit Agreement, dated June 20,
1997, as amended, by and among the Maker and Wachovia Bank, N.A., Bank of
America, N.A. d/b/a NationsBank, N.A., successor to NationsBank, N.A., Crestar
Bank and First Union National Bank (successor in interest to Signet Bank), as
Lenders (the "Credit Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to them in the Credit
Agreement.
All payments made on this Note may be applied, at the Bank's
option first to unpaid commitment fees and costs of collection, if any, then to
accrued interest, then to principal and then to other fees.
The Bank may, but shall not be required to, enter all advances
and payments on this Note in the Schedule of Advances and Payments set forth
below. In no event shall the principal sum set forth below in the last entry on
the Schedule as "Principal Amount Outstanding" exceed the Bank's Commitment. The
aggregate Principal Amount Outstanding shown on the Schedule shall be prima
facie evidence of the principal amount owing and unpaid on this Note. The
failure to record the date and amount of any advance on the Schedule shall not,
however, limit or otherwise affect the obligations of the Maker under this Note
to repay the principal amount of the advance together with all interest accruing
thereon.
Interest on this Note shall accrue at the rate per annum set
forth in the Credit Agreement.
It is understood and agreed that any officer or authorized
employee of the Bank may make entries on the Schedule and on any additional
schedules attached hereto upon receipt of written or telephonic instructions of
anyone reasonably believed by the Bank to be an authorized officer or agent of
the Maker; provided that, in the case of initial borrowings hereunder and
increases in the principal amount of borrowings, the amount of such borrowings
shall have been credited to the account of the Maker or otherwise delivered to
the Maker. Upon written or telephonic instructions of anyone reasonably believed
by the Bank to be an authorized officer or agent of the Maker, the Bank may
charge Maker's account with the Bank and apply funds therefrom to the payment of
interest, principal, or late charges due under this Note. The Maker shall
indemnify and hold the Bank harmless from and against any and all claims,
60
damages, losses, costs and expenses (including attorney's fees) which may arise
or be created by the acceptance of instructions for making or paying advances by
telephone. This Note is issued pursuant to the Credit Agreement. The Maker and
Bank shall have the rights and obligations set forth in this Note and the Credit
Agreement, including any amendments thereto and any renewals or substitutions
thereof.
This Note is secured by the Collateral.
The happening of any of Event of Default shall constitute an
event of default hereunder.
Upon the happening of any event of default under this Note,
the Bank may exercise its remedies available to it under the Credit
Agreement and any other rights available to it at law or in equity.
If Maker fails to pay any installment of principal and/or
interest within seven (7) days of its due date as set forth in the Credit
Agreement, or otherwise fails to repay this Note within seven (7) days of its
due date, the Maker agrees to pay the Bank on demand a late charge of five
percent (5%) of the overdue payment. The Bank may, at its option, apply any late
payments (either full or partial) in the following manner: first to interest,
then to principal and finally to any late charges.
Maker hereby expressly waives presentment, demand, protest and
notice of dishonor, and agrees that this Note may be renewed one or more times
and any extension or extensions of the time of payment of this Note may be made
before, at, or after maturity for periods in excess of the original term of this
Note; waives any right which it may have to require the Bank to proceed against
any other Person or any property securing this Note; agrees that its liability
hereunder shall not be affected or impaired by any failure, neglect or omission
of Bank to exercise any remedies of set-off or otherwise that it may have or by
any determination that any security interest or lien taken by the Bank to secure
this Note is invalid or unperfected.
The Bank shall have, but shall not be limited to, the
following rights, each of which may be exercised at any time: to pledge or
transfer this Note and the Collateral, and any pledgee or transferee shall have
all of the rights of the Bank and the Bank shall thereafter be relieved from any
liability with respect to any Collateral so pledged or transferred; and after an
Event of Default, to transfer the whole or any part of the Collateral into the
name of itself or its nominee.
Maker agrees to remain liable to the Bank for any deficiency.
Any Collateral, and any surplus after sale, may be returned to Maker, but if
after sale of the Collateral any obligation or liability of Maker or any
guarantor to the Bank is contingent or not due, the Bank may retain such
proceeds as additional security for such obligation or liability. The Bank may
continue to hold any Collateral after payment of this Note if at any time of
payment or any discharge hereof Maker shall be then directly or contingently
liable to the Bank pursuant to the Credit Agreement or any of the Loan Documents
whether or not such obligation is due, and the Bank may thereafter exercise all
rights with respect to such Collateral granted therein even though this Note
shall have been surrendered to Maker. Any proceeds of any of the Collateral
received by the Bank may be applied by the Bank to the payment of expenses
incurred in connection with the
61
Collateral, including attorneys' fees and legal expenses, and any balance of
such proceeds may be applied by the Bank toward the payment of this Note and all
other liabilities, and in such order of application as the Bank may from time to
time elect.
The term "Bank" used herein shall include any future holder of
this Note or any agent acting on behalf of the Bank. This Note shall be governed
and construed in accordance with the laws of the Commonwealth of Virginia.
Whenever possible each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note. This Note shall apply to and bind Maker's successors and assigns and shall
inure to the benefit of the Bank and its successors and assigns.
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EXHIBIT C
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COMMERCIAL NOTE
____________, 1999 $20,000,000.00
Commitment
FOR VALUE RECEIVED, the undersigned (the "Maker"),
unconditionally promises to pay to the order of WACHOVIA BANK, N.A. (the
"Bank"), without offset, at the Bank's office in Norfolk, Virginia, or at such
other place as the Bank may designate, all sums advanced hereunder pursuant to
the Credit Agreement (as hereinafter defined), with interest payable on the
first day of each month beginning February 1, 1999, and at maturity, on the
unpaid principal balance of such sums from the date of each advance until repaid
in full. If not earlier paid, the aggregate amount of all sums outstanding, set
forth below in the last entry on the Schedule of Advances and Payments set forth
below as "Principal Amount Outstanding," together with interest shall be paid in
full on such date as is provided for in the Credit Agreement, dated June 20,
1997, as amended, by and among the Maker and Wachovia Bank, N.A., Bank of
America, N.A. d/b/a NationsBank, N.A., successor to NationsBank, N.A., Crestar
Bank and First Union National Bank (successor in interest to Signet Bank), as
Lenders (the "Credit Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to them in the Credit
Agreement.
All payments made on this Note may be applied, at the Bank's
option first to unpaid commitment fees and costs of collection, if any, then to
accrued interest, then to principal and then to other fees.
The Bank may, but shall not be required to, enter all advances
and payments on this Note in the Schedule of Advances and Payments set forth
below. In no event shall the principal sum set forth below in the last entry on
the Schedule as "Principal Amount Outstanding" exceed the Bank's Commitment. The
aggregate Principal Amount Outstanding shown on the Schedule shall be prima
facie evidence of the principal amount owing and unpaid on this Note. The
failure to record the date and amount of any advance on the Schedule shall not,
however, limit or otherwise affect the obligations of the Maker under this Note
to repay the principal amount of the advance together with all interest accruing
thereon.
Interest on this Note shall accrue at the rate per annum set
forth in the Credit Agreement.
It is understood and agreed that any officer or authorized
employee of the Bank may make entries on the Schedule and on any additional
schedules attached hereto upon receipt of written or telephonic instructions of
anyone reasonably believed by the Bank to be an authorized officer or agent of
the Maker; provided that, in the case of initial borrowings hereunder and
increases in the principal amount of borrowings, the amount of such borrowings
shall have been credited to the account of the Maker or otherwise delivered to
the Maker. Upon written or telephonic instructions of anyone reasonably believed
by the Bank to be an authorized officer or agent of the Maker, the Bank may
charge Maker's account with the Bank and apply funds therefrom to the payment of
interest, principal, or late charges due under this Note. The Maker shall
indemnify and hold the Bank harmless from and against any and all claims,
63
damages, losses, costs and expenses (including attorney's fees) which may arise
or be created by the acceptance of instructions for making or paying advances by
telephone. This Note is issued pursuant to the Credit Agreement. The Maker and
Bank shall have the rights and obligations set forth in this Note and the Credit
Agreement, including any amendments thereto and any renewals or substitutions
thereof.
This Note is secured by the Collateral.
The happening of any of Event of Default shall constitute an
event of default hereunder.
Upon the happening of any event of default under this Note,
the Bank may exercise its remedies available to it under the Credit
Agreement and any other rights available to it at law or in equity.
If Maker fails to pay any installment of principal and/or
interest within seven (7) days of its due date as set forth in the Credit
Agreement, or otherwise fails to repay this Note within seven (7) days of its
due date, the Maker agrees to pay the Bank on demand a late charge of five
percent (5%) of the overdue payment. The Bank may, at its option, apply any late
payments (either full or partial) in the following manner: first to interest,
then to principal and finally to any late charges.
Maker hereby expressly waives presentment, demand, protest and
notice of dishonor, and agrees that this Note may be renewed one or more times
and any extension or extensions of the time of payment of this Note may be made
before, at, or after maturity for periods in excess of the original term of this
Note; waives any right which it may have to require the Bank to proceed against
any other Person or any property securing this Note; agrees that its liability
hereunder shall not be affected or impaired by any failure, neglect or omission
of Bank to exercise any remedies of set-off or otherwise that it may have or by
any determination that any security interest or lien taken by the Bank to secure
this Note is invalid or unperfected.
The Bank shall have, but shall not be limited to, the
following rights, each of which may be exercised at any time: to pledge or
transfer this Note and the Collateral, and any pledgee or transferee shall have
all of the rights of the Bank and the Bank shall thereafter be relieved from any
liability with respect to any Collateral so pledged or transferred; and after an
Event of Default, to transfer the whole or any part of the Collateral into the
name of itself or its nominee.
Maker agrees to remain liable to the Bank for any deficiency.
Any Collateral, and any surplus after sale, may be returned to Maker, but if
after sale of the Collateral any obligation or liability of Maker or any
guarantor to the Bank is contingent or not due, the Bank may retain such
proceeds as additional security for such obligation or liability. The Bank may
continue to hold any Collateral after payment of this Note if at any time of
payment or any discharge hereof Maker shall be then directly or contingently
liable to the Bank pursuant to the Credit Agreement or any of the Loan Documents
whether or not such obligation is due, and the Bank may thereafter exercise all
rights with respect to such Collateral granted therein even though this Note
shall have been surrendered to Maker. Any proceeds of any of the Collateral
received by the Bank may be applied by the Bank to the payment of expenses
incurred in connection with the
64
Collateral, including attorneys' fees and legal expenses, and any balance of
such proceeds may be applied by the Bank toward the payment of this Note and
all other liabilities, and in such order of application as the Bank may from
time to time elect.
The term "Bank" used herein shall include any future holder of
this Note or any agent acting on behalf of the Bank. This Note shall be governed
and construed in accordance with the laws of the Commonwealth of Virginia.
Whenever possible each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Note. This Note shall apply to and bind Maker's successors and assigns and shall
inure to the benefit of the Bank and its successors and assigns.
65
SCHEDULE OF ADVANCES AND PAYMENTS OF PRINCIPAL
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PRINCIPAL APPROVING
MATURITY; RATE OPTIONS; METHOD OF AMOUNT PERSON'S
DATE ADVANCES DISBURSEMENT; OTHER PAYMENTS OUTSTANDING INITIALS
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66
To the extent any of the provisions contained herein are
inconsistent with or conflict with the terms of the Credit Agreement, the Credit
Agreement shall govern.
Witness the following signature of a duly authorized officer
of Maker who has executed this Note on behalf of Maker and who has executed this
Note under seal as of the day and year first written above.
MAKER:
METRO INFORMATION SERVICES, INC.
a Virginia corporation
By:_______________________________(SEAL)
Xxxxxx X. Xxxxxxxx, Vice President
and Chief Financial Officer
67
