Exhibit 10.3
TWELFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
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This Twelfth Amendment to Revolving Credit Agreement (this "Amendment")
is made as of March 13, 2002 by and among PROVANT, Inc. (the "Borrower"), a
Delaware business corporation having its principal place of business at 00
Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000, Fleet National Bank, a
national banking association ("Fleet"), Xxxxx Fargo Bank Iowa, N.A., a national
banking association ("Xxxxx Fargo"), Citizens Bank of Massachusetts, a
Massachusetts banking corporation ("Citizens"), and KeyBank National
Association, a national banking association ("KeyBank", together with Fleet,
Xxxxx Fargo and Citizens, the "Banks"), and Fleet National Bank, as agent for
itself and the other Banks (the "Agent")
RECITAL
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WHEREAS, the Borrower, the Banks and the Agent previously entered into
that certain Revolving Credit Agreement, dated as of April 8, 1998, as
thereafter modified and amended by the First, Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Amendments thereto and a
letter amendment dated as of November 6, 2001 (said Revolving Credit Agreement,
as so amended prior to the date hereof, the "Credit Agreement"), pursuant to
which the Banks have made available to the Borrower a revolving credit loan
facility for its corporate purposes; and
WHEREAS, the parties hereto now desire to further amend or modify the
Credit Agreement in certain respects, all as more particularly set forth
hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
Section 1. Definitions. All capitalized terms used herein without
definition shall have the respective meanings provided therefor in the Credit
Agreement.
Section 2. Amendments to Credit Agreement.
(i) Effective March 1, 2002, the definition of "Applicable Margin" in
Section 1.1 is hereby amended in its entirety to provide as follows:
"Applicable Margin. The Applicable Margin shall be 4.50% for all Prime
Rate Loans.
(ii) The definitions of "Borrowing Base" and "Eligible Assignee" in
Section 1.1 are hereby amended in their entirety to provide as follows:
"Borrowing Base. At the relevant time of reference thereto, an amount,
determined by Agent by reference to the most recent Borrowing Base
Report delivered to Banks and Agent pursuant to Section 7.4(h), equal
to 100% of the
total amount of Eligible Accounts Receivable as determined by Agent by
reference to the most recent Borrowing Base Report delivered to Agent,
plus:
(a) during the month of March, 2002, $9,000,000;
(b) during the month of April, 2002, $9,000,000;
(c) during the month of May, 2002, $10,000,000; and
(d) during month of June, 2002, $9,000,000."
"Eligible Assignee. Any of (a) a commercial bank organized under the
laws of the United States, or any State thereof or the District of
Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws
of the United States, or any State thereof or the District of Columbia,
and having a net worth of at least $100,000,000, calculated in
accordance with generally accepted accounting principles; (c) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and
having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of the
OECD; and (d) the central bank of any country which is a member of the
OECD."
(iii) In the definition of "Total Commitment", the stated dollar amount
shall be $50,000,000.
(iv) The following definitions are added to Section 1.1 in their
appropriate alphabetical order:
"April Payoff shall have the meaning set forth on Exhibit I to the
Twelfth Amendment."
"Dominion Account. The special account established by Borrower pursuant
to Section 7.l5 of the Credit Agreement at a bank selected by Borrower,
but acceptable to Agent in its reasonable discretion, and over which
Agent shall have sole and exclusive access and control for withdrawal
purposes."
"Twelfth Amendment" shall mean the Twelfth Amendment to Revolving
Credit Agreement dated as of March 13, 2002 among Borrower, Banks and
Agent.
(v) A new Section 7.15 is added to the Credit Agreement which provides as
follows:
"7.15. Maintenance of Dominion Account. Borrower shall maintain a
Dominion Account pursuant to a lockbox arrangement acceptable to Agent
with such banks as may be selected by Borrower and be acceptable to
Agent. Borrower shall enter into an agreement with such banks, whereby,
among other things, Borrower shall irrevocably direct such banks to
deposit all payments or other remittances
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received in the lockbox to the Dominion Account for application on
account of the Obligations (the "Lockbox Agreement"); provided,
however, that Borrower shall be permitted to keep up to $1,000,000 in
cash in the aggregate at any one time. The Lockbox Agreement shall also
provide that (i) all funds deposited in the Dominion Account shall
immediately become the property of Agent and (ii) that such banks waive
any recoupment, setoff rights, and any security interest in, or against
the funds so deposited. Agent and Banks assume no responsibility for
such lockbox arrangement, including, without limitation, any claim of
accord and satisfaction or release with respect to deposits accepted by
any bank thereunder."
(vi) Section 9 of the Credit Agreement is amended in its entirety to provide
as follows:
"9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan or any Revolving Credit Note is outstanding or any Bank has any
obligation to make any Revolving Credit Loans:
9.1 Consolidated Total Net Worth. The Borrower will maintain,
at all times, a Consolidated Net Worth in an amount equal to at least
$8,000,000. For purposes of this Section 9.1, Consolidated Net Worth
may be calculated without reference to the amount of a one time write
down of good will of up to $185,000,000 associated with acquisitions
prior to the effective date of the Twelfth Amendment.
9.2 Profitable Operations. For the fiscal quarter of the
Borrower and its Subsidiaries ending on March 31, 2002 the Consolidated
Net Income of the Borrower and its Subsidiaries shall not be less than
($1,800,000), and for each fiscal quarter thereafter, the Consolidated
Net Income of the Borrower and its Subsidiaries shall not be less than
$1.00.
9.3 Leverage Ratio. For the fiscal quarters ending March 31,
2002 and June 30, 2002, the Borrower will not permit the Leverage
Ratio, as of the last day of such fiscal quarter, to exceed 60.00:1.00
and 5.00:1.00, respectively. For each such quarter, the Leverage Ratio
will be calculated after adding back one-time charges.
9.4 Minimum Consolidated EBITDA. The Borrower will maintain,
as of the last day of each fiscal quarter listed below of its fiscal
year 2002, Consolidated EBITDA as determined on a quarterly and fiscal
year cumulative basis in amounts at least equal to the following:
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Fiscal Quarter Fiscal Quarter
Ending 3/31/02 Ending 6/30/02
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For the relevant fiscal
quarter: $235,000 $3,547,000
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Cumulative for the 2002
fiscal year $6,837,000 $10,384,000
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9.5 Interest Coverage Ratio. The Borrower will not permit, as
of the last day of the fiscal quarters ending March 31, 2002 and June
30, 2002, the ratio of Consolidated EBITDA to Consolidated Total
Interest Expense for such fiscal quarter, to be less than 0.19:1.00 and
2.95:1.00, respectively.
9.6 Capital Expenditures. The Borrower and its Subsidiaries
will not make in the aggregate Capital Expenditures in excess of the
amount set forth below for the period corresponding thereto:
Period Amount
7/1/01 to 12/31/01 $2,700,000
7/1/01 to 3/31/02 $3,500,000
7/1/01 to 6/30/02 $4,200,000
Except as otherwise specified, the calculation of all financial
covenants set forth in this ss.9 shall be in accordance with generally
accepted accounting principles."
(vii) Section 18.1 is amended in its entirety to provide as follows:
"18.1. Conditions to Assignment by Banks. Except as provided herein,
each Bank may assign to one or more Eligible Assignees all or a portion
of its interests, rights and obligations under this Credit Agreement
(including all or a portion of its Commitment Percentage and Commitment
and the same portion of the Revolving Credit Loans at the time owing to
it and the Revolving Credit Notes held by it and its participating
interest in the risk relating to any Letters of Credit); provided that
(a) each of the Agent and, unless a Default or Event of Default shall
have occurred and be continuing, the Borrower shall have given its
prior written consent to such assignment, which consent, in the case of
the Borrower, will not be unreasonably withheld, (b) each such
assignment shall be of a constant, and not a varying, percentage of all
the assigning Bank's rights and obligations under this Credit
Agreement, (c) each assignment shall be in an amount that is a whole
multiple of $5,000,000 or the entire amount of a Bank's Commitment
Percentage and Commitment, and (d) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as
hereinafter defined), an Assignment and Acceptance, substantially in
the form of Exhibit D hereto (an "Assignment and Acceptance"), together
with any Revolving Credit Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the
execution thereof, (x) the assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Bank hereunder, and (y) the assigning Bank
shall, to the extent provided in such
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assignment and upon payment to the Agent of the registration fee
referred to in ss.18.3, be released from its obligations under this
Credit Agreement.
Notwithstanding the foregoing, during the period of May 1, 2002 through
May 31, 2002, in addition to any Eligible Assignee, each Bank may
assign to any one or more Persons all or a portion of its interests,
rights and obligations under this Credit Agreement (including all or a
portion of its Commitment Percentage and Commitment and the same
portion of the Revolving Credit Loans at the time owing to it and the
Revolving Credit Notes held by it and its participating interest in the
risk relating to any Letters of Credit); provided that (a) the assignee
agrees that until June 1, 2002, it will forbear from exercising any
rights or remedies under the Credit Agreement or any Security Documents
with respect to any Event of Default thereunder other than an Event of
Default arising (i) from the failure to pay interest when due, (ii)
from breach of the first sentence of Section 2.1 of the Credit
Agreement or (iii) under Section 12.1(g) or 12.1(h) of this Credit
Agreement, (b) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Bank's rights and obligations
under this Credit Agreement, (c) each assignment shall be in an amount
that is a whole multiple of $5,000,000 or the entire amount of a Bank's
Commitment Percentage and Commitment, and (d) the parties to such
assignment shall execute and deliver to the Agent, for recording in the
Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of Exhibit D hereto (an "Assignment and
Acceptance"), together with any Revolving Credit Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business
Days after the execution thereof, (x) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder, and
(y) the assigning Bank shall, to the extent provided in such assignment
and upon payment to the Agent of the registration fee referred to in
ss.18.3, be released from its obligations under this Credit Agreement.
Notwithstanding the foregoing, commencing with June 1, 2002 and at all
times thereafter, in addition to any Eligible Assignee, each Bank may
assign to any one or more Persons all or a portion of its interests,
rights and obligations under this Credit Agreement (including all or a
portion of its Commitment Percentage and Commitment and the same
portion of the Revolving Credit Loans at the time owing to it and the
Revolving Credit Notes held by it and its participating interest in the
risk relating to any Letters of Credit); provided that (a) each such
assignment shall be of a constant, and not a varying, percentage of all
the assigning Bank's rights and obligations under this Credit
Agreement, (b) each assignment shall be in an amount that is a whole
multiple of $5,000,000 or the entire amount of a Bank's Commitment
Percentage and Commitment, and (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as
hereinafter defined), an Assignment and Acceptance, substantially in
the form of Exhibit D hereto (an "Assignment and Acceptance"),
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together with any Revolving Credit Notes subject to such assignment.
Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the
execution thereof, (x) the assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Bank hereunder, and (y) the assigning Bank
shall, to the extent provided in such assignment and upon payment to
the Agent of the registration fee referred to in ss.18.3, be released
from its obligations under this Credit Agreement."
Section 3. Additional Agreements.
(a) Borrower has notified Agent and Banks that it intends to payoff the
Credit Agreement pursuant to a refinancing from new lenders. In connection with
such payoff, Borrower shall fully and completely achieve each benchmark listed
on Exhibit I attached hereto by the date corresponding to such benchmark on
Exhibit I. Failure to achieve the March 31, 2002 benchmark shall result in the
automatic imposition of the Default Rate (but shall not constitute an Event of
Default) and failure to achieve any other benchmark set forth on Exhibit I shall
constitute an Event of Default under the Credit Agreement (without any notice or
grace whatsoever). Agent and Banks shall have full and unlimited access to all
of Borrower's information regarding such refinancing. Borrower shall endeavor to
keep Agent and Banks apprised of all developments in connection with the April
Payoff.
(b) Borrower agrees and reaffirms that the proceeds of the Revolving
Credit Loans and the obtaining of Letters of Credit shall not be used for any
earn-out payments, contingent consideration payments or similar payments based
on operating results in respect of further consideration owed by Borrower in
connection with any prior stock or asset acquisition, including, without
limitation, all amounts due under the Agreement and Plan of Merger dated October
26, 1998, as amended, among Borrower, Strategic Interactive, Inc., Xxxx
Xxxxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxxxx, Maxco, Inc., Xxxxx Xxxxxxx and Xxxxx
Xxxxx (the "SII Payments").
(c) Borrower shall enter into a Dominion Account arrangement on the
terms and conditions set forth in new Section 7.15 of the Credit Agreement to be
added pursuant to Section 2(v) of this Amendment on or prior to March 15, 2002,
which terms and conditions shall be satisfactory to Agent in all respects.
(d) The failure by Borrower to comply with any agreement, covenant or
provision of this Amendment shall constitute an Event of Default.
Section 4. Waiver. Solely for purposes of this Amendment, Borrower
acknowledges that an Event of Default may have occurred under the Eleventh
Amendment to the Credit Agreement with respect to Borrower's failure to comply
with the provisions of benchmark number 4 on Exhibit I thereto. Subject to the
satisfaction of the conditions precedent set forth in Section 5 below, Agent and
Banks hereby waive such Event of Default.
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Section 5. Outstanding Obligations. Borrower hereby affirms and
acknowledges that (i) as of March 12, 2002, there is presently outstanding loans
and advances in the aggregate principal amount of $49,738,292.85, together with
accrued interest thereon and costs and expenses (collectively, the "Amount") and
(ii) the Amount is a valid obligation of Borrower and is due and owing without
defense, claim, setoff or counterclaim of any kind or nature whatsoever.
Section 6. Conditions of Effectiveness. This Amendment shall become
effective upon satisfactory of the following conditions precedent: (i) Agent
shall have received a copy of this Amendment executed by Borrower and Majority
Banks and consented and agreed to by Guarantors pursuant to the form of
amendment set forth as Annex A attached hereto (Agent shall provide Borrower and
each Bank with a copy of the executed Amendment), (ii) Agent shall have received
payment by Borrower of all outstanding invoices for professional fees, costs and
expenses and all fees, costs and expenses in accordance with Section 13 hereof
and (iii) Agent shall have received such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Agent or its
counsel, each of which shall be in form and substance satisfactory to Agent and
its counsel.
Section 7. Loan Documents Ratified and Confirmed. The Credit Agreement
and each of the other Loan Documents, as they may be specifically supplemented
or amended by this Amendment, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed. Without limiting
the generality of the foregoing, the Security Documents and all of the
collateral described therein, do, and shall continue to, secure the payment of
all obligations under the Loan Documents, in each case as amended or
supplemented pursuant to this Amendment. All references to the "Credit
Agreement" contained in the Loan Documents shall mean or refer to the Credit
Agreement as amended and supplemented by this Amendment and as it may be further
amended, supplemented, modified and restated and in effect from time to time,
including without limitation any such amendment, supplement, modification or
restatement which increases the amount of Indebtedness owing by the Borrower
thereunder.
Section 8. Release. Borrower hereby releases, remises, acquits and
forever discharges each Bank, Agent and each Bank's and Agent's employees,
agents, representatives, consultants, attorneys, fiduciaries, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions (all of the
foregoing hereinafter called the "Released Parties"), from any and all actions
and causes of action, judgments, executions, suits, debts, claims, demands,
liabilities, obligations, damages and expenses of any and every character, known
or unknown, direct and/or indirect, at law or in equity, of whatsoever kind or
nature, for or because of any matter or things done, omitted or suffered to be
done by any of the Released Parties prior to and including the date of execution
hereof, and in any way directly or indirectly arising out of or in any way
connected to this Agreement or the Documents (all of the foregoing hereinafter
called the "Released Matters"). Borrower acknowledges that the agreements in
this Section are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released Matters.
Section 9. Conflicts. In the event of any express conflict between the
terms of this Amendment and the Credit Agreement, this Amendment shall govern.
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Section 10. Representations and Warranties. Borrower hereby represents
and warrants as follows:
(a) This Amendment and the Credit Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby reaffirms
all covenants, representations and warranties made in the Credit Agreement to
the extent the same are not amended hereby and agree that all such covenants,
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with respect to the
Credit Agreement.
Section 11. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended herein, the Credit Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided in Section 4, operate as a waiver of any
right, power or remedy of Agent or Banks, nor constitute a waiver of any
provision of the Credit Agreement, or any other documents, instruments or
agreements executed and/or delivered under or in connection therewith.
Section 12. Bringdown. The Borrower hereby confirms that all
representations and warranties with respect to the Borrower and any Subsidiaries
contained in the Credit Agreement and each of the other Loan Documents and in
any other certificate or document delivered in connection therewith are true and
correct as of the date hereof, and that no Default or Event of Default is
outstanding or would be created by the consummation of the transactions
described herein.
Section 13. Fees, Costs and Expenses. In addition to the foregoing
transaction fee, Borrower agrees to pay on demand all the costs and expenses of
the Agent and the Banks, including all consultant and legal fees and expenses,
including without limitation all reasonable fees and expenses of counsel in
connection with the preparation, execution and delivery of this
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Amendment and the other documents and instruments to be delivered herewith and
all UCC search and filing fees.
Section 14. Miscellaneous. This Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Amendment, it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought. This Amendment is intended to take effect as
a sealed instrument and shall for all purposes be construed in accordance with
and governed by the laws of The Commonwealth of Massachusetts (excluding the
laws applicable to conflicts or choice of law).
Section 15. Facsimile. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
Section 16. Conflicts. In the event of any express conflict between the
terms of this Amendment and the Credit Agreement, this Amendment shall govern.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as an instrument under seal as of the date first above written.
PROVANT, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: Chief Executive Officer & President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx. X. Xxxxxx
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Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
XXXXX FARGO BANK IOWA, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President
FLEET NATIONAL BANK, as AGENT
By: /s/ Xxxxx. X. Xxxxxx
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Title: Vice President
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EXHIBIT I
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Benchmark Date
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1. Delivery by Borrower to Agent and Banks of a strategic plan satisfactory to March 22, 2002
Agent and Banks in their sole discretion (the "Plan") to repay all Obligations
in full in cash on or prior to April 30, 2002 and a chronological list of each
step to be taken to implement such Plan.
2. Delivery by Borrower to Agent and Banks of status updates on the Friday of every week
implementation of the Plan.
3. Delivery by Borrower to Agent and Banks of a firm commitment by new lenders March 31, 2002
to provide a credit facility to Borrower on or prior to April 30, 2002 that
shall provide financing to Borrower in order to permit Borrower either (i) to
repay all Obligations in full in cash and terminate the Credit Agreement on or
prior to April 30, 2002 on terms and conditions satisfactory to Agent and Banks
in their sole and absolute discretion or (ii) to substantially refinance the
Credit Agreement and substantially repay all Obligations on or prior to April
30, 2002 in amounts and on terms and conditions satisfactory to Agent and Banks
in their sole and absolute discretion ((i) and (ii), the "April Payoff").
4. Closing of the April Payoff and, in connection with (a) 3(i) above, repaying April 30, 2002
all Obligations in full in cash and terminating the Credit Agreement or (b)
3(ii) above, substantially refinancing the Credit Agreement and substantially
repaying all Obligations, in amounts and on terms and conditions satisfactory to
Agent and Banks in their sole and absolute discretion.
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