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CREDIT AGREEMENT
dated as of December 22, 1995
among
IMI SYSTEMS INC.,
OLSTEN CORPORATION and such of the Subsidiaries
of IMI and/or Olsten as are signatory hereto,
and
FLEET BANK
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS . . . . . . . . . . .1
Section 1.01. Definitions . . . . . . . . . . . . . . . 1
Section 1.02. Accounting Terms . . . . . . . . . . . . . 14
ARTICLE 2. REVOLVING CREDIT COMMITMENT . . . . . . . . . . . 14
Section 2.01. Revolving Credit Loans . . . . . . . . . . 14
Section 2.02. The Revolving Credit Note . . . . . . . . 14
Section 2.03. Use of Proceeds . . . . . . . . . . . . . 14
Section 2.04. Borrowing Procedures for Revolving
Credit Loans. . . . . . . . . . . . . . . 15
Section 2.05. Interest Periods, Continuations and
Conversions . . . . . . . . . . . . . . . 15
Section 2.06. Changes of Commitments . . . . . . . . . . 16
Section 2.07. Minimum Amounts . . . . . . . . . . . . . 17
ARTICLE 3. TERM LOAN. . . . . . . . . . . . . . . . . . . . . 17
Section 3.01. Term Loan. . . . . . . . . . . . . . . . . 17
Section 3.02. The Term Note. . . . . . . . . . . . . . 17
Section 3.03. Amortization of Term Loan. . . . . . . . 18
Section 3.04. Interest Periods; Continuations and
Conversions.. . . . . . . . . . . . . . . 18
ARTICLE 4. GENERAL CREDIT PROVISIONS; FEES AND PAYMENTS . . . 19
Section 4.01. Certain Notices . . . . . . . . . . . . . 19
Section 4.02. Prepayments . . . . . . . . . . . . . . . 20
Section 4.03. Interest . . . . . . . . . . . . . . . . . 21
Section 4.04. Commitment Fee . . . . . . . . . . . . . . 22
Section 4.05. Payments Generally . . . . . . . . . . . . 22
Section 4.06. Term Loan Facility Fee. . . . . . . . . . 23
ARTICLE 5. YIELD PROTECTION; ETC. . . . . . . . . . . . . . . 24
Section 5.01. Additional Costs . . . . . . . . . . . . . 24
Section 5.02. Limitation on Types of Loans . . . . . . . 25
Section 5.03. Illegality . . . . . . . . . . . . . . . . 26
Section 5.04. Certain Variable Rate Loans Pursuant
To Sections 5.01, 5.02 and 5.03 . . . . . 26
Section 5.05. Certain Compensation . . . . . . . . . . . 26
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ARTICLE 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . 27
Section 6.01. Documentary Conditions Precedent . . . . . 27
Section 6.02. Additional Conditions Precedent . . . . . 29
Section 6.03. No Default Certificate and Deemed
Representations . . . . . . . . . . . . . 30
ARTICLE 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 30
Section 7.01. Incorporation, Good Standing and Due
Qualification; Compliance with Law. . . . 30
Section 7.02. Corporate Power and Authority;
No Conflicts. . . . . . . . . . . . . . . 30
Section 7.03. Legally Enforceable Agreements . . . . . . 31
Section 7.04. Litigation . . . . . . . . . . . . . . . . 31
Section 7.05. Financial Statements . . . . . . . . . . . 31
Section 7.06. Ownership and Liens . . . . . . . . . . . 32
Section 7.07. Taxes . . . . . . . . . . . . . . . . . . 32
Section 7.08. ERISA . . . . . . . . . . . . . . . . . . 33
Section 7.09. Subsidiaries and Ownership of Stock . . . 33
Section 7.10. Credit Arrangements . . . . . . . . . . . 33
Section 7.11. Operation of Business . . . . . . . . . . 33
Section 7.12. Hazardous Substances . . . . . . . . . . . 34
Section 7.13. No Default on Outstanding Judgments
or Orders . . . . . . . . . . . . . . . . 34
Section 7.14. No Defaults on Other Agreements . . . . . 35
Section 7.15. Labor Disputes and Acts of God . . . . . . 35
Section 7.16. Governmental Regulation . . . . . . . . . 35
Section 7.17. Partnerships . . . . . . . . . . . . . . . 35
Section 7.18. No Forfeiture . . . . . . . . . . . . . . 35
Section 7.19. No Default or Event of Default . . . . . . 36
Section 7.20. Accounts Receivable . . . . . . . . . . . 36
Section 7.21. Solvency . . . . . . . . . . . . . . . . . 36
Section 7.22. Material Adverse Change . . . . . . . . . 36
Section 7.23. Consolidated Total Assets . . . . . . . . 36
ARTICLE 8. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . 36
Section 8.01. Maintenance of Existence . . . . . . . . . 36
Section 8.02. Conduct of Business . . . . . . . . . . . 37
Section 8.03. Maintenance of Properties . . . . . . . . 37
Section 8.04. Maintenance of Records . . . . . . . . . . 37
Section 8.05. Maintenance of Insurance . . . . . . . . . 37
Section 8.06. Compliance with Laws . . . . . . . . . . . 37
Section 8.07. Right of Inspection . . . . . . . . . . . 37
Section 8.08. Reporting Requirements . . . . . . . . . . 38
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Section 8.09. Payment of Obligations . . . . . . . . . . 41
Section 8.10. Consolidated Total Assets . . . . . . . . 41
ARTICLE 9. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . 42
Section 9.01. Debt . . . . . . . . . . . . . . . . . . . 42
Section 9.02. Liens . . . . . . . . . . . . . . . . . . 43
Section 9.03. Investments . . . . . . . . . . . . . . . 44
Section 9.04. Sale of Assets . . . . . . . . . . . . . . 46
Section 9.05. Transactions with Affiliates . . . . . . . 47
Section 9.06. Mergers, Etc. . . . . . . . . . . . . . . 47
Section 9.07. Acquisitions . . . . . . . . . . . . . . . 48
Section 9.08. No Activities Leading to Forfeiture . . . 48
Section 9.09. Amendments to Indenture; Certain
Voluntary Prepayments; etc. . . . . . . . 48
Section 9.10. Corporate Documents; Fiscal Year . . . . . 48
ARTICLE 10. FINANCIAL COVENANTS . . . . . . . . . . . . . . . 48
Section 10.01. Minimum Consolidated Working Capital . . 48
Section 10.02. Minimum Consolidated Tangible Net
Worth. . . . . . . . . . . . . . . . . . 49
Section 10.03. Current Ratio . . . . . . . . . . . . . . 49
Section 10.04. Consolidated Total Liabilities To
Consolidated Tangible Net Worth Ratio. . 50
Section 10.05. Fixed Coverage Ratio . . . . . . . . . . 50
Section 10.06. Funded Debt to Consolidated Net
Operating Cash Flow. . . . . . . . . . . 50
ARTICLE 11. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . 50
Section 11.01. Events of Default . . . . . . . . . . . . 51
Section 11.02. Remedies . . . . . . . . . . . . . . . . 53
ARTICLE 12. THIS ARTICLE IS INTENTIONALLY LEFT BLANK 53
ARTICLE 13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . 53
Section 13.01. Amendments and Waivers . . . . . . . . . 53
Section 13.02. Usury . . . . . . . . . . . . . . . . . . 54
Section 13.03. Expenses . . . . . . . . . . . . . . . . 54
Section 13.04. Survival . . . . . . . . . . . . . . . . 54
Section 13.05. Assignment; Participation . . . . . . . . 54
Section 13.06. Special Provision With Respect To New
Subsidiaries . . . . . . . . . . . . . . 55
Section 13.07. Notices . . . . . . . . . . . . . . . . . 55
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Section 13.08. Setoff . . . . . . . . . . . . . . . . . 56
Section 13.09. Jurisdiction; Immunities . . . . . . . . 56
Section 13.10. Table of Contents; Headings . . . . . . . 57
Section 13.11. Severability. . . . . . . . . . . . . . . 57
Section 13.12. Counterparts. . . . . . . . . . . . . . . 57
Section 13.13. Integration . . . . . . . . . . . . . . . 57
Section 13.14. Governing Law . . . . . . . . . . . . . . 57
Section 13.15. Treatment of Certain Information . . . . 57
Section 13.16. Co-Borrowers' Attorney-in-Fact . . . . . 57
Section 13.17. Joint and Several Obligations. . . . . 58
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit A-1 Form of Term Note
Exhibit B Opinion of Counsel for Co-Borrowers
Exhibit C Form of Borrowing Base Certificate
SCHEDULES
Schedule I Subsidiaries of Olsten
Schedule II Indebtedness/Liens
Schedule III Partnerships
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CREDIT AGREEMENT dated as of December 22, 1995 among
IMI SYSTEMS INC., a corporation organized under the laws of the
State of New York ("IMI" or a "Co-Borrower"), OLSTEN CORPORATION,
a corporation organized under the laws of the State of Delaware
("Olsten" or a "Co-Borrower"), such of the Subsidiaries of IMI
and/or Olsten as are signatory hereto (each such Subsidiary, a
"Co-Borrower"; and such Subsidiaries, collectively with IMI and
Olsten, the "Co-Borrowers"), and FLEET BANK (the "Bank").
W I T N E S S E T H:
--------------------
WHEREAS, the Co-Borrowers have requested that the Bank,
upon the terms and subject to the conditions set forth in this
Agreement, extend credit to the Co-Borrowers in the aggregate
principal amount of $10,783,333, and
WHEREAS, the Bank is willing to extend such credit to
the Co-Borrowers upon the terms and subject to the conditions set
forth herein,
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS.
Section 1.01. Definitions. As used in this Agreement
the following terms have the following meanings (terms defined in
the singular to have a correlative meaning when used in the
plural and vice versa):
"Acceptable Acquisition" means any Acquisition of a
corporation, partnership or other entity engaged in the business
of providing information technology and related services, which
in the case of a corporation, has been either (a) approved by the
board of directors of such corporation which is the subject of
such Acquisition or (b) recommended for approval by such board to
the shareholders of such corporation and subsequently approved by
such shareholders as required under applicable law or by the
by-laws or the certificate of incorporation of such corporation;
provided, however, that no Acquisition shall be an Acceptable
Acquisition if, after giving effect thereto, a Default or Event
of Default shall have occurred and be continuing.
"Acquisition" means any transaction pursuant to which
the Co-Borrowers, or any of them, or any of their respective
Subsidiaries (a) acquires equity securities (or warrants, options
or other rights to acquire such securities) of any corporation or
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other business entity other than a Co-Borrower or any entity
which is a Subsidiary of a Co-Borrower, pursuant to a
solicitation of tenders therefor, or in one or more negotiated
block, market or other transactions not involving a tender offer,
or a combination of any of the foregoing, or (b) makes any entity
a subsidiary of a Co-Borrower, or causes any such entity to be
merged into a Co-Borrower or any of their respective
Subsidiaries, in any case pursuant to a merger, purchase of
assets or any reorganization providing for the delivery or
issuance to the holders of such entity's then outstanding
securities, in exchange for such securities, of cash or
securities of such Co-Borrower or any of its Subsidiaries, or a
combination thereof, or (c) purchases all or substantially all of
the business or assets of any entity.
"Additional Costs" shall have the meaning given to that
term in Section 5.01 hereof.
"Affiliate" means any Person: (a) which directly or
indirectly controls, or is controlled by, or is under common
control with, the Co-Borrowers or any of them or any of their
respective Subsidiaries; (b) which directly or indirectly
beneficially owns or holds 5% or more of any class of voting
stock of the Co-Borrowers or any of them or any of their
respective Subsidiaries; (c) 5% or more of the voting stock of
which is directly or indirectly beneficially owned or held by the
Co-Borrowers or any of them or any of their respective
Subsidiaries; or (d) which is a partnership in which the
Co-Borrowers or any of them or any of their respective
Subsidiaries is a general partner. The term "control" means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract,
or otherwise.
"Aggregate Outstandings" means, at any particular time,
the aggregate outstanding principal amount of the Revolving
Credit Loans or the Term Loan, as the case may be, at such time.
"Agreement" means this agreement, as amended or
supplemented from time to time (as distinguished from the "Credit
Agreement", as hereinafter defined). References to Articles,
Sections, Exhibits, Schedules and the like refer to the Articles,
Sections, Exhibits, Schedules and the like of this Agreement
unless otherwise indicated.
"Amortization" means amortization as determined in
accordance with GAAP.
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"Amortization Date" means the last day of each calendar
month, commencing on the first such day occurring after the
Conversion Date, up to (and including) the Termination Date;
provided that if any such day is not a Banking Day, such day
shall be the next succeeding Banking Day (or, if such next
succeeding Banking Day falls in the next calendar month, the next
preceding Banking Day).
"Banking Day" means any day on which commercial banks
are not authorized or required to close in New York City, and
whenever such day relates to a Eurodollar Loan or notice with
respect to any Eurodollar Loan, such term shall exclude any day
on which banks are not open for dealings in Dollar deposits in
the London interbank market.
"Bank" means Fleet Bank and any of its permitted
assigns pursuant to Section 13.05 hereof.
"Borrowing Base" means at any time an amount equal to
the sum of (i) eighty-five percent (85%) of the Co-Borrowers'
Eligible Receivables (other than Eligible Receivables from
Medicare or Medicaid) which have remained unpaid for no more than
63 days past their invoice date, (ii) seventy percent (70%) of
the Co-Borrowers' Eligible Receivables (other than Eligible
Receivables from Medicare or Medicaid) which have remained unpaid
for at least 64 days but no more than 91 days past their invoice
date and (iii) fifty percent (50%) of all Eligible Receivables
from Medicare or Medicaid which have remained unpaid for no more
than 91 days past their invoice date.
"Borrowing Base Certificate" means a certificate signed
by the Chief Financial Officer of Olsten in the form of Exhibit C
annexed hereto, with such changes as the Bank may require from
time to time.
"Capital Lease" means any lease which has been
capitalized on the balance sheet of the lessee in accordance with
GAAP.
"Closing Date" means December 22, 1995.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" means, subject to the other provisions of
this Agreement, the obligation of the Bank to extend credit to
the Co-Borrowers hereunder in the aggregate principal amount of
$10,783,333, as such amount may be reduced or otherwise modified
from time to time.
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"Commitment Fee" means the commitment fee payable by
the Co-Borrowers to the Bank pursuant to Section 4.04 hereof.
"Consolidated Current Assets" means, at a particular
date, all amounts which would, in conformity with GAAP, be
included under current assets on a consolidated balance sheet of
Olsten and its Consolidated Subsidiaries as at such date.
"Consolidated Current Liabilities" means, at a
particular date, all amounts which would, in conformity with
GAAP, be included under current liabilities on a consolidated
balance sheet of Olsten and its Consolidated Subsidiaries as at
such date including, without limitation, (a) all obligations
payable on demand or within one year after the date in which the
determination is made, and (b) installment and sinking fund
payments required to be made within one year after the date on
which determination is made, but excluding all such liabilities
or obligations which are renewable or extendable at the option of
the Co-Borrowers, or any of them, to a date more than one year
from the date of determination.
"Consolidated Interest Expense" means, for any fiscal
period, the gross interest expense for such period determined on
a consolidated basis in accordance with GAAP for Olsten and its
Consolidated Subsidiaries.
"Consolidated Net Loss" means, for any fiscal period,
the amount of consolidated net loss of the Co-Borrowers,
excluding (profits or) losses attributable to extraordinary
items, for such period, determined in accordance with GAAP.
"Consolidated Net Operating Cash Flow" means Net Profit
Before Taxes plus Depreciation plus Amortization plus
Consolidated Interest Expense, determined on a consolidated basis
in accordance with GAAP.
"Consolidated Subordinated Debt" means, at any
particular date, the Subordinated Debt of Olsten and its
Consolidated Subsidiaries outstanding on such date determined on
a consolidated basis in accordance with GAAP.
"Consolidated Subsidiary" means any direct or indirect
subsidiary of Olsten whose results are, in accordance with GAAP,
required to be recorded or reflected in or on the consolidated
financial statements of Olsten.
"Consolidated Tangible Net Worth" means, at any
particular date, the amount of excess of Consolidated Total
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Assets over Consolidated Total Liabilities which would, in
conformity with GAAP, be included under shareholders' equity on a
consolidated balance sheet of Olsten and its Consolidated
Subsidiaries as at such date, excluding, however, from the
determination of total assets all deferred charges included in
the line item "Goodwill and other Intangible Assets" on the
consolidated balance sheet of Olsten in conformity with GAAP and
all other intangible assets, including, without limitation,
customer lists, organizational expenses, patents, trademarks,
copyrights, goodwill, covenants not to compete, research and
developmental costs and training costs.
"Consolidated Total Assets" means, at a particular
date, all amounts which would, in conformity with GAAP, be
included under assets on a consolidated balance sheet of Olsten
and its Consolidated Subsidiaries as at such date.
"Consolidated Total Liabilities" means, at a particular
date, all amounts which would, in conformity with GAAP, be
included under liabilities on a consolidated balance sheet of
Olsten and its Consolidated Subsidiaries, as at such date.
"Consolidated Working Capital" means, at the date of
determination, the excess of Consolidated Current Assets over
Consolidated Current Liabilities as at such date.
"Conversion Date" means December 15, 1996.
"Credit Agreement" means that certain Amended and
Restated Credit Agreement dated as of September 9, 1994, as
amended, among Olsten, certain of its subsidiaries, The Chase
Manhattan Bank, N.A., as agent, and the banks signatory thereto.
"Debentures" means the 4 7/8% Convertible Subordinated
Debentures due 2003 and issued by Olsten pursuant to the
Indenture, a copy of which is included in Olsten's Registration
Statement on Form S-3 (Registration No. 33-58762) filed with the
Securities and Exchange Commission on February 25, 1993.
"Debt" means, with respect to any Person: (a)
indebtedness of such Person for borrowed money; (b) indebtedness
for the deferred purchase price of property or services (except
trade payables and accruals incurred in the ordinary course of
business, including insurance costs of the Co-Borrowers incurred
in connection with their workers compensation programs incurred
in the ordinary course of business); (c) Unfunded Vested
Liabilities of such Person (if such Person is not a Co-Borrower,
determined in a manner analogous to that of determining Unfunded
Vested Liabilities of the Co-Borrowers); (d) the face amount of
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any outstanding letters of credit issued for the account of such
Person including, without limitation, the maximum face amount of
all letters of credit issued hereunder or otherwise to support
workers' compensation programs; (e) obligations arising under
acceptance facilities; (f) guaranties, endorsements (other than
for collection in the ordinary course of business) and other
contingent obligations to purchase, to provide funds for payment,
to supply funds to invest in any Person, or otherwise to assure a
creditor against loss; (g) obligations secured by any Lien on
property of such Person; (h) obligations of such Person as lessee
under Capital Leases; and (i) indebtedness of such Person
evidenced by a note (other than notes payable to insurance
companies issued in connection with the Co-Borrowers' workers
compensation programs, if any), bond, indenture or similar
instrument; and (j) all obligations of such Person in respect of
interest rate swap agreements, currency swap agreements and other
similar agreements designed to hedge against fluctuations in
interest rates or foreign exchange.
"Default" means any event which with the giving of
notice or lapse of time, or both, would become an Event of
Default.
"Default Rate" means, with respect to the principal of
any Loan and, to the extent permitted by law, any other amount
payable by the Co-Borrowers, or any of them, under this Agreement
or the Note (a) a rate per annum equal to 3% above the rate of
interest otherwise applicable to such Loan, in the case of a past
due payment of principal, and (b) a rate per annum equal to 3%
above the rate that would be applicable to Variable Rate Loans
from time to time, in the case of a past due payment of any other
amount.
"Depreciation" means depreciation as determined in
accordance with GAAP.
"Dividends" means, for any period, dividends paid by
the Co-Borrowers, or any of them, during such period but shall
not include dividends paid by one Co-Borrower to another.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"Eligible Receivables" means and includes only the
gross amount of the Co-Borrowers' accounts receivable less any
discounts or allowances relating to accounts receivable recorded
on the books and records of the Co-Borrowers and reported on a
consolidated basis in accordance with GAAP, arising out of sales
in the ordinary course of business made by the Co-Borrowers which
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are not in dispute and for which records are maintained at a
location of the Co-Borrowers, or any of them, in the United
States; provided, however that intercompany receivables owing
from one Co-Borrower or Subsidiary thereof to another Co-Borrower
and receivables encumbered by any Lien (whether or not permitted
to exist hereunder) shall be ineligible. Any receivable shall be
ineligible if the account debtor for such receivable or any
entity that controls or is controlled by that account debtor has
filed and there is pending a case for bankruptcy or
reorganization under the Bankruptcy Code, or if any such case
under the Bankruptcy Code has been filed and is pending against
the account debtor, or any entity that controls or is controlled
by that account debtor, or if the account debtor or any entity
that controls or is controlled by that account debtor has made
and there is pending a general assignment for the benefit of
creditors, or if the account debtor or any entity that controls
or is controlled by that account debtor has failed, suspended
business operations, become insolvent, or has suffered or is
suffering a receiver or a trustee to be appointed for all or a
significant portion of its assets or affairs, or if any other
receivable owed from the account debtor on such receivable or
from any entity that controls or is controlled by the account
debtor to the Co-Borrowers is more than 91 days past its invoice
date. Notwithstanding the foregoing, at the request of the
Co-Borrowers, the Bank in its sole discretion and on a case by
case basis may elect to include as Eligible Receivables certain
receivables due from debtors in possession which would otherwise
be deemed ineligible under this definition. Any receivable shall
also be ineligible upon forty-five (45) days prior written notice
to the Co-Borrowers, if the Bank has reasonable grounds for
insecurity with respect to the collectability of such receivable
in relation to the amount of credit extended.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes.
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"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, including any rules
and regulations promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or
business which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code)
as the Co-Borrowers or is under common control (within the
meaning of Section 414(c) of the Code) with the Co-Borrowers.
"Eurocurrency Reserve Requirements" means, with respect
to each Interest Period for each Eurodollar Loan, the aggregate
(without duplication) of the maximum rates (expressed as a
percentage and rounded upward if necessary to the nearest 1/100th
of 1%) of reserve requirements current on the date two Banking
Days prior to the beginning of such Interest Period (including,
without limitation, basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the
Federal Reserve System or other governmental authority having
jurisdiction with respect thereto), as now and/or from time to
time hereafter in effect, dealing with reserve requirements
prescribed for eurocurrency funding maintained by a member bank
of such System. Such reserve percentages shall include, without
limitation, those imposed under Regulation D. Eurodollar Loans
shall be deemed to constitute Eurocurrency Liabilities (as
defined in Regulation D) and as such shall be deemed to be
subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets which may be available from
time to time to the Bank under Regulation D. Eurocurrency
Reserve Requirements shall be adjusted automatically on and as of
the effective date of any change in any such reserve percentage.
"Eurodollar Base Rate" means, for any Eurodollar Loan,
the rate per annum (rounded upward if necessary to the nearest
1/16 of 1%) at which Dollar deposits in immediately available
funds, for a period and in an amount comparable to the Interest
Period and principal amount of such Eurodollar Loan, are offered,
at approximately 11:00 a.m. London time, to the principal London
branch of the Bank two Banking Days prior to the first day of the
Interest Period for such Loan.
"Eurodollar Loan" means any Revolving Credit Loan, or
any portion thereof, or the Term Loan, or any portion thereof,
when and to the extent the interest rate therefor is determined
on the basis of the Reserve Adjusted Eurodollar Rate.
"Event of Default" has the meaning given such term in
Section 11.01.
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"Facility Documents" means this Agreement, the Note,
and all other documents or instruments executed in connection
herewith or therewith.
"Forfeiture Proceeding" means the commencement of any
action or proceeding affecting any Co-Borrower or any of their
Subsidiaries before any court, governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, which may result in the seizure or forfeiture of any of
their property which would cause a material adverse effect upon
the operations, business, properties or financial condition of
the Co-Borrowers taken as a whole.
"Funded Debt" means with respect to the Co-Borrowers,
at any particular time, the aggregate then outstanding principal
amount of indebtedness of the Co-Borrowers for borrowed money
excluding Subordinated Debt, plus (without duplication) the
aggregate amount then available to be drawn under any outstanding
letters of credit issued for the account of the Co-Borrowers,
plus (without duplication) the aggregate amount of any
reimbursement obligations of any Co-Borrower under any letters of
credit plus the excess of (i) the Commitment over (ii) Aggregate
Outstandings, plus the excess of (x) the "Total Commitments" (as
such term is defined in the Credit Agreement) over (y) "Aggregate
Outstandings" (as such term is defined in the Credit Agreement).
"GAAP" means generally accepted accounting principles
in the United States of America as in effect from time to time,
applied on a basis consistent with those used in the preparation
of the financial statements referred to in Section 7.05.
"Hazardous Substance" means any material, whether
animate or inanimate, raw, processed or waste by-product, which
in itself or as found or used, is potentially toxic, noxious or
harmful to the health or safety of human or animal life or
vegetation, regardless of whether such material be found on or
below the surface of the ground, in any surface or underground
water, or airborne in ambient air or in the air inside of any
structure built or located upon or below the surface of the
ground, or in any machinery, equipment or inventory located or
used in any such structure, including, but in no event limited to
all hazardous materials, hazardous wastes, toxic substances,
infectious wastes, pollutants and contaminants from time to time
defined or classified as such under any Environmental Law
regardless of the quantity found, used, manufactured or removed
from a given location.
"Indenture" means that certain Indenture dated as of
March 15, 1993, by and between Olsten and Bankers Trust Company,
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as Trustee, a copy of which is included in Olsten's Registration
Statement on Form S-3 (Registration No. 33-58762) filed with the
Securities and Exchange Commission on February 25, 1993, as such
Indenture may be amended, supplemented or modified from time to
time.
"Interest Period" means the period commencing on the
date a Eurodollar Loan is made (i.e., an additional borrowing, a
conversion or a continuation), and ending, as the Co-Borrowers
may select pursuant to Section 2.05 or Section 3.04, as the case
may be, on the numerically corresponding day in the first,
second, third, or (as available) sixth or twelfth calendar month
thereafter; provided, however, that if any Interest Period would
otherwise expire on a day which is not a Banking Day, such
Interest Period shall expire on the next succeeding Banking Day
unless such next succeeding Banking Day would fall on the next
calendar month, in which case such Interest Period shall end on
the next preceding Banking Day, and any Interest Period which
commences on the last Banking Day of a calendar month (or on any
day for which there is no numerically corresponding day of the
last calendar month of such Interest Period) shall end on the
last Banking Day of the last month of such Interest Period.
"Lending Office" means, for each type of Loan, the
lending office of the Bank (or of an affiliate of the Bank)
designated as such for such type of Loan on its signature page
hereof or such other office of the Bank (or of an affiliate of
the Bank) as the Bank may from time to time specify to the
Co-Borrowers as the office by which its Loans of such type are to
be made and maintained.
"Lien" means any lien (statutory or otherwise),
security interest, mortgage, deed of trust, priority, pledge,
charge, conditional sale, title retention agreement, Capital
Lease or other encumbrance or similar right of others, or any
agreement to give any of the foregoing.
"Loan" means a Eurodollar Loan and/or a Variable Rate
Loan.
"Margin" means, for (a) a Variable Rate Loan
(i) comprising all or a portion of a Revolving Credit Loan, 0%
per annum or (ii) comprising all or a portion of the Term Loan,
1/4 of 1% per annum, and (b) for a Eurodollar Loan (i) comprising
all or a portion of a Revolving Credit Loan, 5/8 of 1% per annum
or (ii) comprising all or a portion of the Term Loan, 7/8 of 1%
per annum.
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"Medicaid and Medicare Receivables" means all accounts
receivable of the Co-Borrowers or any of them which are payable
pursuant to Titles XVIII or XIX of the United States Social
Security Act and the regulations promulgated thereunder.
"Multiemployer Plan" means a Plan defined as such in
Section 4001(a)(3) of ERISA to which contributions have been made
by any Co-Borrower or any ERISA Affiliate and which is covered by
Title IV of ERISA.
"Net Profit Before Taxes" means, for any fiscal
quarterly period, the amount of consolidated net income (or loss)
of the Olsten and its Consolidated Subsidiaries for such period
excluding therefrom profits or losses attributable to
extraordinary or unusual items plus, to the extent reflected as a
charge in the statement of such consolidated net income for such
period, the sum of taxes measured by income.
"Note" means each and both of the Revolving Credit Note
and the Term Note.
"Obligations" means all of the obligations of the
Co-Borrowers to the Bank under or in relation to this Agreement,
the Note or any of the other Facility Documents, as such
agreements, documents and instruments are originally executed or
as modified, amended, restated, supplemented or extended from
time to time, and all obligations of the Co-Borrowers to the Bank
arising out of any extension, refinancing or refunding of any of
the foregoing obligations, whether such obligations are now
existing or hereafter acquired or arising, direct or indirect,
joint or several, absolute or contingent, due or to become due,
matured or unmatured, liquidated or unliquidated, arising by
contract, operation of law or otherwise.
"PBGC" means the Pension Benefit Guaranty Corporation
and any entity succeeding to any or all of its functions under
ERISA.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other
entity of whatever nature.
"Plan" means any employee benefit or other plan
established or maintained, or to which contributions have been
made, by any Co-Borrower or any ERISA Affiliate and which is
covered by Title IV of ERISA or to which Section 412 of the Code
applies provided that such term shall not include plans
terminated prior to the date hereof.
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"Prime Rate" means that rate of interest from time to
time announced by the Bank at its Principal Office as the Fleet
Peg Rate or "FPR."
"Principal Office" means the principal office, from
time to time, of the Bank, presently located at 000 Xxxxx Xxxxxx
Xxxx, Xxxxxxxx, XX 00000-0000.
"Principal Payments" means, for any period, principal
payments of indebtedness for borrowed money, including any
principal payment under any note, bond, indenture or similar
instrument, made by Olsten and its Consolidated Subsidiaries on a
consolidated basis.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System as the same may be
amended or supplemented from time to time.
"Regulatory Change" means any change after December 22,
1995 in United States federal, state, municipal or foreign laws
or regulations (including Regulation D) or the adoption or making
after such date of any interpretations, directives or requests
applying to a class of banks including the Bank of or under any
United States, federal, state, municipal or foreign laws or
regulations (whether or not having the force of law) by any court
or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA as to which events the PBGC by
regulation has not waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of
such event, provided that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA shall
be a Reportable Event regardless of any waivers given under
Section 412(d) of the Code.
"Reserve Adjusted Eurodollar Rate" means, with respect
to the Interest Period for each Eurodollar Loan, the rate per
annum (rounded upwards to the nearest whole multiple of 1/100th
of one percent) equal to the following:
Eurodollar Base Rate
-----------------------------------------
1.00 - Eurocurrency Reserve Requirements.
"Revolving Credit Commitment" means the Commitment.
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"Revolving Credit Loan" means any Loan made by the Bank
pursuant to Section 2.01 hereof.
"Revolving Credit Note" means a promissory note of the
Co-Borrowers in the form of Exhibit A evidencing the Revolving
Credit Loans made by the Bank from time to time hereunder, as
such note may be amended from time to time.
"Solvent" means when used with respect to any Person on
a particular date, that on such date: (a) the fair saleable
value of its assets is in excess of the total amount of its
liabilities, including, without limitation, the reasonably
expected amount of such Person's obligations with respect to
contingent liabilities, (b) the present fair saleable value of
the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its
Debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur Debts or
liabilities beyond such Person's ability to pay as such Debts and
liabilities mature and (d) such Person is not engaged in business
or a transaction, for which such Person's property would
constitute an unreasonably small capital.
"Subordinated Debt" means any unsecured Debt of the
Co-Borrowers, or any one of them (including, without limitation,
the Debentures), that is subordinated on terms satisfactory to
the Bank to the Co-Borrowers' obligations to the Bank under this
Agreement.
"Subsidiary" means, as to any Person, any corporation
or other entity of which at least a majority of the securities or
other ownership interests having ordinary voting power
(absolutely or contingently) for the election of directors or
other persons performing similar functions are at the time owned
directly or indirectly by such Person.
"Termination Date" means, (a) if the Co-Borrowers do
not elect to convert all outstanding Revolving Credit Loans to a
Term Loan on the Conversion Date pursuant to the provisions
hereof, the earliest of (i) the date on which all Loans are paid
in full, the Commitment terminates hereunder and the obligations
of the Co-Borrowers in connection therewith have been satisfied,
(ii) December 15, 1996, and (iii) such earlier date on which all
Loans are due and payable, or (b) if the Co-Borrowers have
converted all outstanding Revolving Credit Loans to a Term Loan
on the Conversion Date pursuant to the provisions hereof, the
earliest of (i) the date on which all Loans are paid in full and
the obligations of the Co-Borrowers in connection therewith have
been satisfied, (ii) December 15, 2000, and (iii) such earlier
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date on which all Loans are due and payable; provided that if the
Termination Date (as referenced in subparagraph (a) or
subparagraph (b) above, as the case may be) is not a Banking Day,
the Termination Date shall be the next succeeding Banking Day
(or, if such next succeeding Banking Day falls in the next
calendar month, the next preceding Banking Day).
"Term Loan" means the credit facility extended by the
Bank pursuant to Section 3.01 hereof.
"Term Loan Facility Fee" means the Term Loan facility
fee payable by the Co-Borrowers to the Bank pursuant to Section
4.06 hereof.
"Term Loan Note" or "Term Note" means the promissory
note of the Co-Borrowers in the form of Exhibit A-1, evidencing
the Term Loan to be made by the Bank hereunder on the Conversion
Date (assuming conversion), as such note may be amended from time
to time.
"The date hereof" or "the date hereof" means the
Closing Date.
"Unfunded Vested Liabilities" means, with respect to
any Plan, the amount (if any) by which the present value of all
vested benefits under the Plan exceeds the fair market value of
all Plan assets allocable to such benefits, as determined on the
most recent valuation date of the Plan and in accordance with the
provisions of ERISA for calculating the potential liability of
any Co-Borrower or any ERISA Affiliate to the PBGC or the Plan
under Title IV of ERISA.
"Variable Rate" means, for any day, the Prime Rate for
such day.
"Variable Rate Loan" means any Revolving Credit Loan,
or any portion thereof, or the Term Loan, or any portion thereof,
when and to the extent the interest rate therefor is determined
on the basis of the Variable Rate.
Section 1.02. Accounting Terms. All accounting terms
not specifically defined in this Agreement shall be construed in
accordance with GAAP, and all financial data required to be
delivered hereunder shall be prepared in accordance with GAAP.
ARTICLE 2. REVOLVING CREDIT COMMITMENT.
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Section 2.01. Revolving Credit Loans. Subject to the
terms and conditions of this Agreement, the Bank agrees to make
revolving credit loans in Dollars (the "Revolving Credit Loans")
to the Co-Borrowers from time to time from and including the
Closing Date to but excluding the Termination Date up to but not
exceeding at any one time outstanding the amount of the
Commitment. The Revolving Credit Loans may be outstanding as
Variable Rate Loans or Eurodollar Loans. The Revolving Credit
Loans of each type shall be made and maintained at the Bank's
Lending Office for such type of Loans. Subject to the foregoing
limits, the Co-Borrowers may borrow, repay and reborrow, on or
after the Closing Date and prior to the Termination Date, all or
a portion of the Commitment.
Section 2.02. The Revolving Credit Note. The
Revolving Credit Loans of the Bank shall be evidenced by a single
promissory note in favor of the Bank substantially in the form of
Exhibit A, with appropriate insertions, duly executed and
completed by the Co-Borrowers. The Bank is hereby authorized to
record the date, type and amount of each Revolving Credit Loan,
the date and amount of each payment or prepayment of principal
thereof, the date of each interest rate conversion or
continuation pursuant to Section 2.05 and the principal amount
subject thereto and the Interest Period and interest rate with
respect thereto in the Bank's records and/or on the schedule
annexed to and constituting a part of the Revolving Credit Note,
and, absent manifest error, any such recordation shall constitute
conclusive evidence of the information so recorded; provided that
the failure to make any such recordation shall not in any way
affect the Co-Borrowers' obligation to repay the Revolving Credit
Loans. The Revolving Credit Note (a) shall be dated the Closing
Date, (b) be stated to mature on the Termination Date and (c)
shall bear interest from and including the Closing Date on the
unpaid principal amount thereof from time to time outstanding as
provided herein.
Section 2.03. Use of Proceeds.
(a) The Co-Borrowers shall, on the Closing Date, use
the proceeds of the Revolving Credit Loans to prepay in full the
Debt described in paragraph 1(b) of Schedule II hereto, and
thereafter, for general working capital purposes, to finance
Acceptable Acquisitions, and for general corporate purposes. No
part of the proceeds of any of the Loans will be used for any
purpose which violates the provisions of Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System as in
effect on the date of making such Loans.
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(b) The Co-Borrowers, jointly and severally, agree to
indemnify the Bank and its Affiliates, agents, officers,
directors and employees (individually and collectively, an
"Indemnified Party") and hold each Indemnified Party harmless
from and against any and all liabilities, losses, damages, costs
and expenses of any kind (including, without limitation, the
reasonable fees and disbursements of counsel for any Indemnified
Party in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnified Party shall
be designated a party thereto) which may be incurred by any
Indemnified Party, relating to or arising out of this Agreement
or any actual or proposed use of proceeds of Loans hereunder;
provided, that no Indemnified Party shall have the right to be
indemnified hereunder for its own gross negligence, willful
misconduct or bad faith as determined by a court of competent
jurisdiction.
Section 2.04. Borrowing Procedures for Revolving
Credit Loans. The Co-Borrowers may request a Revolving Credit
Loan hereunder as provided in Section 4.01. Not later than
1:00 p.m. New York City time on the date of such borrowing, the
Bank shall, through its Lending Office and subject to the
conditions of this Agreement, make the amount of the Revolving
Credit Loan to be made by it on such day available to the
Co-Borrowers, in immediately available funds, by crediting an
account of the Co-Borrowers designated by the Co-Borrowers and
maintained with the Bank at the Principal Office.
Section 2.05. Interest Periods, Continuations and
Conversions.
(a) In the case of each Eurodollar Loan, the
Co-Borrowers shall select an Interest Period of any of the
durations set forth in the definition of Interest Period in
Section 1.01 and shall notify the Bank of such selection as
provided in Section 4.01 hereof.
(b) Upon the expiration of an Interest Period for any
Revolving Credit Loan which is a Eurodollar Loan, or any portion
thereof, such Revolving Credit Loan or portion thereof shall be
automatically converted to a Revolving Credit Loan which is a
Variable Rate Loan, except to the extent that such Loan shall be
repaid hereunder or shall be required to be repaid hereunder or
unless the Co-Borrowers shall have notified the Bank, as provided
in Section 4.01 hereof, of their intention to continue such
Revolving Credit Loan as a Eurodollar Loan and select an Interest
Period with respect thereto. Subject to the following conditions
and to the terms and conditions of this Agreement, the
Co-Borrowers shall have the right to convert or continue (as the
case may be) any Revolving Credit Loan or portion thereof as
aforesaid, provided that:
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(i) if less than all Revolving Credit Loans at the
time outstanding shall be converted or continued,
the notice given by the Co-Borrowers to the Bank
shall specify the aggregate amount of Revolving
Credit Loans in each case to be converted or
continued;
(ii) in the case of a conversion or continuation of
less than all outstanding Revolving Credit Loans,
the aggregate principal amount of Revolving Credit
Loans to be converted or continued shall not be
less than (1) $500,000 (and if greater in integral
multiples of $100,000 in excess thereof) in the
case of conversions to or continuations of
Eurodollar Loans or (2) $100,000 (or if greater in
integral multiples of $100,000 in excess thereof)
in the case of conversions to Variable Rate Loans;
(iii) no Revolving Credit Loan may be converted to or
continued as a Eurodollar Loan less than one month
before the Termination Date;
(iv) a Eurodollar Loan may be converted to a Variable
Rate Loan only on the last day of an Interest
Period;
(v) no Revolving Credit Loan or portion thereof may be
converted to or continued as a Eurodollar Loan
after the occurrence and during the continuance of
a Default or an Event of Default;
(vi) the initial Interest Period for any Eurodollar
Loan shall commence on the date of the making of
such Loan (including the date of any conversion
from a Variable Rate Loan) and each Interest
Period occurring thereafter in respect of such
Loan shall commence on the date on which the next
preceding Interest Period expires; and
(vii) no Interest Period in respect of any Eurodollar
Loan shall extend beyond the Termination Date.
Section 2.06. Changes of Commitments.
(a) The Co-Borrowers shall have the right to reduce or
terminate the amount of the unused Commitment at any time or from
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time to time prior to the Termination Date, provided that:
(i) the Co-Borrowers shall give notice of each such reduction or
termination to the Bank as provided in Section 4.01; and
(ii) each partial reduction shall be in an aggregate amount at
least equal to $500,000 or, if greater, in integral multiples of
$100,000 in excess thereof.
(b) Notwithstanding anything contained herein to the
contrary, the Co-Borrowers shall jointly and severally reduce or
terminate the amount of the Commitment at such time as the "Total
Commitments" (as such term is defined in the Credit Agreement)
shall be terminated in accordance with the provisions of the
Credit Agreement.
(c) The Commitment, once reduced or terminated, may
not be reinstated.
Section 2.07. Minimum Amounts. Except for borrowings
which exhaust the full remaining amount of the Revolving Credit
Commitment and prepayments (in the case of Variable Rate Loans
only) which result in the prepayment of all Revolving Credit
Loans, each borrowing and prepayment of principal of Variable
Rate Loans shall be in an amount at least equal to $100,000, and,
if greater, integral multiples of $100,000 in excess thereof, and
each borrowing of Eurodollar Loans of each type having concurrent
Interest Periods shall be in an amount at least equal to
$500,000, and, if greater, integral multiples of $100,000 in
excess thereof.
ARTICLE 3. TERM LOAN.
Section 3.01. Term Loan.
Subject to the terms and conditions hereof, if the
Co-Borrowers give the Bank irrevocable notice of their election
to convert all outstanding Revolving Credit Loans to a Term Loan
at least 30 Banking Days prior to the Conversion Date, and
provided that no Default or Event of Default shall have occurred
and be continuing at any time from and after the date of any such
notification to and including the Conversion Date, the Bank
agrees to permit the Co-Borrowers to convert the aggregate
outstanding principal amount of the Revolving Credit Loans at the
Conversion Date (but not less than such amount, and, in any
event, in an amount not to exceed $10,783,333) to a Term Loan in
Dollars; provided that the Term Loan shall not be made if
Aggregate Outstandings exceed the Borrowing Base in effect on the
Conversion Date.
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Section 3.02. The Term Note. The Term Loan shall be
evidenced by a single promissory note of the Co-Borrowers
substantially in the form of Exhibit A-1 hereto, with appropriate
insertions, payable to the order of the Bank and representing the
obligation of the Co-Borrowers to pay the unpaid principal amount
of the Term Loan, with interest thereon as described herein. The
Bank is hereby authorized to record the type of each Loan
comprising the Term Loan (i.e., a Eurodollar Loan or a Variable
Rate Loan), the date and amount of each payment or prepayment of
principal thereof, the date of each interest rate conversion or
continuation pursuant to Section 3.04 hereof and the principal
amount subject thereto and the Interest Period and interest rate
applicable thereto, in the Bank's records and/or on the schedule
annexed to and constituting a part of the Term Note, and, absent
manifest error, any such recordation shall constitute conclusive
evidence of the accuracy of the information so recorded; provided
that the failure to make any such recordation shall not affect
the obligation of the Co-Borrowers to repay the Term Loan. The
Term Note shall (a) be dated, and delivered to the Bank on, the
Conversion Date, (b) be stated to amortize and mature in 48 equal
consecutive monthly installments and (c) bear interest from the
date thereof on the unpaid principal amount thereof from time to
time outstanding as provided herein.
Section 3.03. Amortization of Term Loan. The
Co-Borrowers shall repay the Term Loan in 48 equal consecutive
monthly installments, such payments to be made in accordance with
Section 4.05 on each Amortization Date commencing on the first
Amortization Date to occur after the Conversion Date.
Section 3.04. Interest Periods; Continuations and
Conversions.
(a) Subject to the terms and conditions hereof, the
Term Loan may from time to time be comprised of either Variable
Rate Loans or Eurodollar Loans or any combination thereof.
(b) In the case of each Eurodollar Loan, the
Co-Borrowers shall select an Interest Period of any of the
durations set forth in the definition of the term "Interest
Period" in Section 1.01 hereof and shall notify the Bank of such
selection as provided in Section 4.01 hereof.
(c) Upon the expiration of an Interest Period for any
portion of the Term Loan which is a Eurodollar Loan, such portion
shall be automatically converted to a Variable Rate Loan, except
to the extent that such Loan shall be repaid hereunder or shall
be required to be repaid hereunder or unless the Co-Borrowers
shall have notified the Bank, as provided in Section 4.01 hereof,
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of their intention to continue the same as a Eurodollar Loan and
of their selection of the Interest Period with respect thereto.
Subject to the following conditions and to the terms and
conditions of this Agreement, the Co-Borrowers shall have the
right to convert or continue (as the case may be) any portion of
the Term Loan as aforesaid, provided that:
(i) if less than the full outstanding amount of the
Term Loan shall be converted or continued, the
notice given by the Co-Borrowers to the Bank shall
specify the principal amount to be converted or
continued;
(ii) in the case of a conversion or continuation of
less than the full outstanding amount of the Term
Loan, the principal amount to be converted or
continued shall not be less than (1) $500,000 (and
if greater in integral multiples of $100,000 in
excess thereof) in the case of conversions to or
continuations of Eurodollar Loans or (2) $100,000
(or if greater in integral multiples of $100,000
in excess thereof) in the case of conversions to
Variable Rate Loans;
(iii) no Loan may be converted to or continued as a
Eurodollar Loan less than one month before the
Termination Date;
(iv) a Eurodollar Loan may be converted to a Variable
Rate Loan only on the last day of an Interest
Period;
(v) no Loan or portion thereof may be converted to or
continued as a Eurodollar Loan after the
occurrence and during the continuance of a Default
or an Event of Default;
(vi) the initial Interest Period for any Eurodollar
Loan shall commence on the date of the making of
such Loan (including the date of any conversion
from a Variable Rate Loan) and each Interest
Period occurring thereafter in respect of such
Loan shall commence on the date on which the next
preceding Interest Period expires; and
(vii) no Interest Period in respect of any Eurodollar
Loan shall extend beyond the Termination Date.
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ARTICLE 4. GENERAL CREDIT PROVISIONS;
FEES AND PAYMENTS.
Section 4.01. Certain Notices. Notices by the
Co-Borrowers to the Bank of each prepayment pursuant to Section
4.02 and each reduction or termination of the Commitment pursuant
to Section 2.06 and of a conversion pursuant to Section 3.01
shall be irrevocable and shall be effective on the date of
receipt only if received by the Bank not later than 11:00 a.m.,
New York City time, on or prior to the date notice with respect
thereto is required to be given hereunder; and (a) the
Co-Borrowers shall give the Bank (i) at least three Banking Days'
irrevocable telephonic notice (confirmed in writing) of each
Eurodollar Loan (whether representing an additional borrowing
hereunder, a conversion of a borrowing hereunder from a Variable
Rate Loan to a Eurodollar Loan or a continuation of a Eurodollar
Loan for an additional Interest Period) prior to 10:30 a.m., New
York, New York time on the day such notice is given and (ii)
irrevocable telephonic notice (confirmed in writing) of each
Variable Rate Loan (whether representing an additional borrowing
hereunder or the conversion of an existing Eurodollar Loan to a
Variable Rate Loan at the end of the Interest Period with respect
to any such Eurodollar Loan) prior to 10:30 a.m., New York, New
York time on the day of the proposed Variable Rate Loan; and (b)
in the case of reductions or termination of the Commitment, given
thirty (30) days prior thereto. Each such notice relating to the
borrowing, continuation, conversion or prepayment of a Revolving
Credit Loan shall specify the Loans to be borrowed, converted,
continued or prepaid, and the amount (subject to Section 2.07 or
Section 3.04, as the case may be) and type of the Loans to be
borrowed or prepaid, the Interest Period with respect to any
Eurodollar Loan and the date of borrowing, conversion,
continuation or prepayment (which shall be a Banking Day). Each
such notice of reduction or termination of Commitment shall
specify the amount of the Commitment to be reduced or terminated.
Section 4.02. Prepayments.
(a) (i) The Co-Borrowers shall have the right at any
time and from time to time to prepay any Variable Rate Loan, in
whole or in part, upon at least one Banking Day's prior written
notice to the Bank in the case of prepayment of a Variable Rate
Loan; provided, however, that each such partial prepayment of
Variable Rate Loans shall be in a minimum aggregate principal
amount of $100,000 or, if greater, in amounts which are integral
multiples of $100,000 in excess thereof. Except as required by
paragraph (b) below or on the last day of an Interest Period with
respect thereto, the Co-Borrowers shall not be permitted to
prepay Eurodollar Loans. Each prepayment of the Term Loan under
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this subsection shall be applied to the installments thereof in
the inverse order of maturity. Amounts paid or prepaid in
respect of the Term Loan may not be reborrowed.
(ii) In the event that Aggregate Outstandings
exceed the Borrowing Base at any time prior to the Termination
Date, the Co-Borrowers jointly and severally shall promptly pay
or prepay so much of the Loans outstanding as shall be necessary
in order that Aggregate Outstandings, after giving effect to such
payment or prepayment, will not exceed the Borrowing Base then in
effect.
(b) On the date of any reduction or termination of the
Commitment as provided in Section 2.06, the Co-Borrowers jointly
and severally shall pay or prepay so much of the Revolving Credit
Loans as shall be necessary in order that (i) Aggregate
Outstandings will not exceed the lesser of the Commitment or the
Borrowing Base after giving effect to any such reduction or (ii)
Aggregate Outstandings will be paid in full after giving effect
to any such termination, as the case may be. All payments and
prepayments under this paragraph shall be subject to Section
5.05.
(c) All payments and prepayments required by paragraph
(b) above shall be applied first to Variable Rate Loans
outstanding and then to Eurodollar Loans outstanding.
(d) All payments and prepayments made pursuant to this
Section 4.02 shall be accompanied by the payment of all accrued
interest on the amount so prepaid and by all amounts required to
be paid pursuant to Section 5.05 in connection therewith.
Section 4.03. Interest.
(a) Interest shall accrue on the outstanding and unpaid
principal amount of each Loan for the period from and including
the date of such Loan to but excluding the date such Loan is due,
at the following rates per annum: (i) for a Variable Rate Loan,
at a variable rate per annum equal to the Variable Rate plus the
applicable Margin; and (ii) for a Eurodollar Loan, at a fixed
rate equal to the Reserve Adjusted Eurodollar Rate plus the
applicable Margin. Any principal amount not paid when due (at
maturity, by acceleration or otherwise) and, to the extent
permitted by law, any other amount payable hereunder which is not
paid when due, shall bear interest thereafter until paid in full,
at the Default Rate which shall be payable on demand.
(b) The interest rate on each Variable Rate Loan shall
change when the Variable Rate changes and interest on each such
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Loan shall be calculated on the basis of a year of 360 days for
the actual number of days elapsed. Interest on each Eurodollar
Loan shall be calculated on the basis of a year of 360 days for
the actual number of days elapsed. Promptly after the
determination of any interest rate provided for herein or any
change therein, the Bank shall notify the Co-Borrowers thereof.
(c) Accrued interest on Variable Rate Loans shall be
due and payable (i) for the period from the Closing Date to but
excluding the Conversion Date, quarterly in arrears on the last
day of each calendar quarter commencing on March 31, 1996 and
(ii) for the period commencing on the Conversion Date and
thereafter, on each Amortization Date, and (iii) on the
Termination Date. Accrued interest on Eurodollar Loans shall be
due and payable in arrears upon any payment of principal and on
the last day of the Interest Period with respect thereto and, in
the case of an Interest Period greater than three months, at
three-month intervals after the first day of such Interest
Period, and, in any event, on the Termination Date.
Notwithstanding the foregoing, interest accruing at the Default
Rate shall be due and payable from time to time on demand of the
Bank.
(d) Notwithstanding any other provision of this
Agreement, upon the occurrence and during the continuance of a
Default or an Event of Default, each Revolving Credit Loan or the
Term Loan, as the case may be, shall bear interest at a rate per
annum equal to the Default Rate.
Section 4.04. Commitment Fee.
The Co-Borrowers shall pay to the Bank a commitment fee
for the period from and including the date hereof to and
excluding the Conversion Date equal to one quarter of one percent
(.25%) per annum of the average daily unused portion of the
Commitment during the applicable period. The commitment fee
shall be due and payable in arrears on the last day of each
calendar quarter (i.e., the last day of each March, June,
September and December) and on the Conversion Date.
Section 4.05. Payments Generally.
(a) All payments under this Agreement, the Note or any
of the other Facility Documents shall be made in Dollars in
immediately available funds not later than 1:00 p.m. New York
City time on the relevant dates specified above or on the date
any such payment shall be due and payable (each such payment made
after such time on such due date to be deemed to have been made
on the next succeeding Banking Day) at the Principal Office for
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the account of the applicable Lending Office of the Bank;
provided that, when a new Loan is to be made by the Bank on a
date the Co-Borrowers are to repay any principal of an
outstanding Loan, the Bank shall apply the proceeds thereof to
the payment of the principal to be repaid and only an amount
equal to the difference between the principal to be borrowed and
the principal to be repaid shall be made available by the Bank to
the Co-Borrowers as provided in Section 2.04 or paid by the
Co-Borrowers to the Bank pursuant to this Section 4.05, as the
case may be. The Bank may (but shall not be obligated to) debit
the amount of any such payment which is not made by such time to
any ordinary deposit account of the Co-Borrowers, or any of them,
with the Bank. The Co-Borrowers shall, at the time of making
each payment under this Agreement or the Note, specify to the
Bank the principal or other amount payable by the Co-Borrowers
under this Agreement or the Note to which such payment is to be
applied (and in the event that it fails to so specify, or if a
Default or Event of Default has occurred and is continuing, the
Bank may apply such payment as it may elect in its sole
discretion. Unless otherwise specified herein, if the due date
of any payment under this Agreement, the Note or any of the other
Facility Documents would otherwise fall on a day which is not a
Banking Day, such date shall be extended to the next succeeding
Banking Day and interest shall be payable for any principal so
extended for the period of such extension.
(b) All payments made by the Co-Borrowers under this
Agreement, the Note or the other Facility Documents shall be made
free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any governmental or taxing authority of
any jurisdiction located outside of the United States, excluding,
in the case of the Bank, income taxes and franchise taxes
(imposed in lieu of income taxes) imposed on the Bank as a result
of a present or former connection between the jurisdiction of the
government or the taxing authority imposing such tax and the Bank
(excluding a connection arising solely from the Bank having
executed, delivered, or performed its obligations or received a
payment under, or enforced, this Agreement, the Note or the other
Facility Documents) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable to the Bank
hereunder or under the Facility Documents, the amounts so payable
to the Bank shall be increased to the extent necessary to yield
to the Bank (after payment of all Taxes) interest or any such
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other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, the Note and the other Facility
Documents. Whenever any Taxes are payable by the Co-Borrowers,
or any of them, as promptly as possible thereafter the
Co-Borrowers shall send to the Bank a certified copy of an
original official receipt received by the Co-Borrowers (or any of
them) showing payment thereof. If the Co-Borrowers, or any of
them, fail to pay any Taxes when due to the appropriate taxing
authority or fail to remit to the Bank the required receipts or
other required documentary evidence, the Co-Borrowers shall
indemnify the Bank for any incremental taxes, interest or
penalties that may become payable by the Bank as a result of any
such failure. The agreements in this subsection shall survive
the termination of this Agreement and the Facility Documents and
the payment of the Note and all other amounts payable hereunder
or thereunder.
Section 4.06. Term Loan Facility Fee.
If all outstanding Revolving Credit Loans are converted to a
Term Loan on the Conversion Date pursuant to the provisions of
this Agreement, the Co-Borrowers jointly and severally shall, on
the Conversion Date, pay to the Bank a Term Loan Facility Fee in
an amount equal to 1/8 of 1% of the outstanding principal amount
of the Term Loan on such date.
ARTICLE 5. YIELD PROTECTION; ETC.
Section 5.01. Additional Costs.
(a) The Co-Borrowers shall pay directly to the Bank
from time to time on demand such amounts as the Bank may
determine to be necessary to compensate it for any costs which
the Bank determines are attributable to its making or maintaining
any Eurodollar Loans under this Agreement or the Note or its
obligation to make any such Loans, or any reduction in any amount
receivable by the Bank hereunder in respect of any such Loans or
such obligation (such increases in costs and reductions in
amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change which: (i) changes the basis
of taxation of any amounts payable to the Bank under this
Agreement or the Note in respect of any of such Loans (other than
taxes imposed on the overall net income of the Bank or of its
Lending Office for any of such Loans by the jurisdiction in which
the Bank has its Principal Office or such Lending Office); or
(ii) imposes or modifies any reserve, special deposit, deposit
insurance or assessment, minimum capital, capital ratio or
similar requirements relating to any extensions of credit, or
commitments therefor, or other assets of, or any deposits with or
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other liabilities of, the Bank (including any of such Loans or
any deposits referred to in the definition of "Reserve Adjusted
Eurodollar Rate" in Section 1.01); or (iii) imposes any other
condition affecting this Agreement or the Note (or any of such
extensions of credit, or commitments therefor, or liabilities).
The Bank will notify the Co-Borrowers of any event occurring
after the date of this Agreement which will entitle the Bank to
compensation pursuant to this Section 5.01(a) as promptly as
practicable after it obtains knowledge thereof and determines to
request such compensation. If the Bank requests compensation
from the Co-Borrowers under this Section 5.01(a), or under
Section 5.01(c), the Co-Borrowers may, by notice to the Bank,
suspend the obligation of the Bank to make Loans of the type with
respect to which such compensation is requested (in which case
the provisions of Section 5.04 shall be applicable).
(b) Without limiting the effect of the foregoing
provisions of this Section 5.01, in the event that, by reason of
any Regulatory Change, the Bank either (i) incurs Additional
Costs based on or measured by the excess above a specified level
of the amount of a category of deposits or other liabilities of
the Bank which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in
this Agreement or a category of extensions of credit or other
assets of the Bank which includes Eurodollar Loans or
(ii) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if the
Bank so elects by notice to the Co-Borrowers, the obligation of
the Bank to make Loans of such type hereunder shall be suspended
until the date such Regulatory Change ceases to be in effect (in
which case the provisions of Section 5.04 shall be applicable).
(c) Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the
Co-Borrowers shall pay directly to the Bank from time to time on
request such amounts as the Bank may determine to be necessary to
compensate the Bank for any costs which it determines are
attributable to the maintenance by it or any of its affiliates
pursuant to any law or regulation of any jurisdiction or any
interpretation, directive or request (whether or not having the
force of law and whether in effect on the date of this Agreement
or thereafter) of any court or governmental or monetary authority
of capital in respect of its Loans hereunder (such compensation
to include, without limitation, an amount equal to any reduction
in return on assets or equity of the Bank to a level below that
which it could have achieved but for such law, regulation,
interpretation, directive or request). The Bank will notify the
Co-Borrowers if it is entitled to compensation pursuant to this
Section 5.01(c) as promptly as practicable after it determines to
request such compensation.
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(d) Determinations and allocations by a Bank for
purposes of this Section 5.01 of the effect of any Regulatory
Change pursuant to subsections (a) or (b), or of the effect of
capital maintained pursuant to subsection (c), on its costs of
making or maintaining Loans or its obligation to make Loans, or
on amounts receivable by, or the rate of return to, it in respect
of Loans, or such obligation, and of the additional amounts
required to compensate the Bank under this Section 5.01, shall be
conclusive absent manifest error, provided that such
determinations and allocations are made on a reasonable basis and
provided further that the Bank provides the Co-Borrowers with
copies of the calculations made by the Bank to enable such
determination or allocation to be made.
Section 5.02. Limitation on Types of Loans. Anything
herein to the contrary notwithstanding, if:
(a) the Bank determines (which determination shall be
conclusive) that quotations of interest rates for the relevant
deposits referred to in the definition of "Reserve Adjusted
Eurodollar Rate" in Section 1.01 are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining the rate of interest for any Eurodollar Loans as
provided in this Agreement; or
(b) the Bank reasonably determines (which determination
shall be conclusive) that the relevant rates of interest referred
to in the definition of "Reserve Adjusted Eurodollar Rate" in
Section 1.01 upon the basis of which the rate of interest for any
Eurodollar Loans is to be determined do not cover the cost to the
Bank of making or maintaining such Loans, then the Bank shall
give the Co-Borrowers prompt notice thereof (i.e., the condition
described in (a) or (b) above), and so long as such condition
remains in effect, the Bank shall be under no obligation to make
Loans of such type.
Section 5.03. Illegality. Notwithstanding any other
provision in this Agreement, in the event that it becomes
unlawful for the Bank or its Lending Office to honor its
obligation to make or maintain Eurodollar Loans hereunder, then
the Bank shall promptly notify the Co-Borrowers thereof and the
Bank's obligation to make or maintain Eurodollar Loans hereunder
shall be suspended until such time as the Bank may again make and
maintain such affected Loans (in which case the provisions of
Section 5.04 shall be applicable).
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Section 5.04. Certain Variable Rate Loans Pursuant To
Sections 5.01, 5.02 and 5.03. If the obligations of the Bank to
make Eurodollar Loans (Eurodollar Loans being herein called
"Affected Loans") shall be suspended pursuant to Section 5.01,
5.02 or 5.03, all Affected Loans shall be made instead as
Variable Rate Loans and, if an event referred to in Section
5.01(b), 5.02 or 5.03 has occurred and the Bank so requests by
notice to the Co-Borrowers, all Affected Loans of the Bank then
outstanding shall be automatically converted into Variable Rate
Loans on the date specified by the Bank in such notice, and, to
the extent that Affected Loans are so made as (or converted into)
Variable Rate Loans, all payments of principal which would
otherwise be applied to the Bank's Affected Loans shall be
applied instead to its Variable Rate Loans. In the event of any
conversion of any Eurodollar Loan to a Variable Rate Loan
pursuant to this Section 5.04 prior to the last day of the
Interest Period with respect to such Eurodollar Loan, the
Co-Borrowers jointly and severally shall pay to the Bank all
amounts required to be paid pursuant to Section 5.05 hereof.
Section 5.05. Certain Compensation. The Co-Borrowers
shall pay to the Bank, upon the request of the Bank, such amount
or amounts as shall be sufficient (in the reasonable opinion of
the Bank) to compensate it for any loss, cost or expense which
the Bank determines is attributable to:
(a) any prepayment by the Co-Borrowers of a Eurodollar
Loan made by the Bank (whether by reason of the mandatory
prepayment provisions of this Agreement or otherwise) or any
failure by the Co-Borrowers to pay principal or interest on a
Eurodollar Loan made by the Bank when due as required hereunder;
or
(b)(i) any failure by the Co-Borrowers to borrow,
convert into or continue a Eurodollar Loan to be made by the Bank
on the date specified therefor in the relevant notice under
Section 4.01 or (ii) any conversion under Section 5.04; or
(c) any failure by the Co-Borrowers to prepay a
Eurodollar Loan on the date required pursuant to Section 4.02.
Without limiting the foregoing, such compensation shall include
an amount equal to the excess, if any, of: (i) the amount of
interest which otherwise would have accrued on the principal
amount so paid or converted or not borrowed (i.e., not borrowed,
not converted or not continued) for the period from and including
the date of such payment or failure to borrow (i.e., failure to
borrow, failure to convert or failure to continue) to but
excluding the last day of the Interest Period for such Loan (or,
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in the case of a failure to borrow, to but excluding the last day
of the Interest Period for such Loan which would have commenced
on the date specified therefor in the relevant notice) at the
applicable rate of interest for such Loan provided for herein;
over (ii) the amount of interest (as reasonably determined by the
Bank) the Bank would have bid in the London interbank market for
Dollar deposits for amounts comparable to such principal amount
and maturities comparable to such period. A determination of the
Bank as to the amounts payable pursuant to this Section 5.05
shall be conclusive absent manifest error provided that such
determination is made on a reasonable basis and provided further
that the Bank provides the Co-Borrowers with copies of the
calculations made by the Bank in making such determination.
ARTICLE 6. CONDITIONS PRECEDENT.
Section 6.01. Documentary Conditions Precedent. The
obligation of the Bank to make Loans constituting any borrowing
on the date hereof, to enter into this Agreement and to
consummate the transactions contemplated hereby is subject to the
conditions precedent that:
(a) the Bank shall have received, on or before the
Closing Date, each of the following, in form and substance
satisfactory to the Bank and its counsel:
(i) the Revolving Credit Note duly executed by the
Co-Borrowers;
(ii) a certificate of the Secretary or Assistant
Secretary of each Co-Borrower, dated the Closing Date,
attesting to all corporate action taken by such
Co-Borrower, including resolutions of its Board of
Directors authorizing the execution, delivery and
performance of the Facility Documents and each other
document to be delivered pursuant to this Agreement,
together with certified (by the Secretary or Assistant
Secretary) copies of the certificates or articles of
incorporation and by-laws of each of IMI and Olsten;
and, such certificate shall state that the resolutions
and corporate documents thereby certified have not been
amended, modified, revoked or rescinded as of the date
of such certificate;
(iii) a certificate of the Secretary or Assistant
Secretary of each Co-Borrower, dated the Closing Date,
certifying the names and true signatures of the
officers of each Co-Borrower authorized to sign the
Facility Documents and the other documents to be
delivered by such Co-Borrower under this Agreement;
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(iv) a certificate of a duly authorized officer of
IMI and Olsten, dated the Closing Date, stating that
the representations and warranties in Article 7 are
true and correct on such date as though made on and as
of such date (except when such representation or
warranty by its terms relates to a specific date other
than the date made or the date hereof) and that no
event has occurred and is continuing which constitutes
a Default or an Event of Default;
(v) a favorable opinion of counsel for the
Co-Borrowers, dated the Closing Date, in substantially
the form of Exhibit B and as to such other matters as
the Bank may reasonably request;
(vi) good standing certificates evidencing that
each of IMI and Olsten is duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation;
(vii) evidence of the payment in full of the Debt
described in paragraph 1(b) of Schedule II hereto and
the release of all obligations, liabilities and Liens
arising out of or under, or relating to, such Debt;
(viii) such other documents, instruments,
approvals, opinions and evidence as the Bank may
require; and
(ix) a Borrowing Base Certificate (dated the
Closing Date) with information thereon as of October
29, 1995;
(b) the Co-Borrowers shall have paid or caused to be
paid all fees required to be paid hereunder or in connection
herewith;
(c) the Co-Borrowers shall have obtained all consents,
permits and approvals required in connection with the execution,
delivery and performance by the Co-Borrowers of their obligations
hereunder and such consents, permits and approvals shall continue
in full force and effect; and
(d) all legal matters in connection with this
financing shall be satisfactory to the Bank and its counsel.
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Section 6.02. Additional Conditions Precedent. The
obligation of the Bank to make any Loan (including, without
limitation, the Term Loan on the Conversion Date) shall be
subject to the further conditions precedent that on the date of
such Loan:
(a) the following statements shall be true:
(i) the representations and warranties contained
in Article 7 are true and correct on and as of the date of such
Loan as though made on and as of such date (except when such
representation or warranty relates to a specific date other than
the Closing Date);
(ii) no Default or Event of Default has occurred
and is continuing or would result from such Loan; and
(iii) no material adverse change shall have
occurred in the business, financial condition or operations of
the Co-Borrowers, taken as a whole, since the date of the then
most recent financial statements of the Co-Borrowers delivered to
the Bank hereunder or in connection herewith; and
(b) with respect to the conversion of all outstanding
Revolving Credit Loans to a Term Loan on the Conversion Date
only,
(i) the Bank shall have received, on or before
the Conversion Date, the Term Note evidencing the Term Loan duly
completed and executed by the Co-Borrowers; and
(ii) the Co-Borrowers shall have paid or caused to
be paid all fees required to be paid hereunder or in connection
herewith and all accrued fees and expenses of the Bank in
connection with such conversion, if any; and
(c) the Bank shall have received such approvals,
opinions, documents or instruments as the Bank may reasonably
request.
Section 6.03. No Default Certificate and Deemed
Representations. Each notice of a Loan (including, without
limitation, the Term Loan on the Conversion Date) shall be
accompanied by a certificate of the chief financial officer of
Olsten certifying that the statements contained in Section
6.02(a) are true and correct on the date of such notice or
submission and, unless the Co-Borrowers otherwise notify the Bank
prior to such borrowing, the acceptance by the Co-Borrowers of
the proceeds thereof shall constitute a representation and
warranty that such statements are true and correct as of the date
of such Loan.
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ARTICLE 7. REPRESENTATIONS AND WARRANTIES.
The Co-Borrowers hereby represent and warrant that:
Section 7.01. Incorporation, Good Standing and Due
Qualification; Compliance with Law. Each of the Co-Borrowers and
their respective Subsidiaries is duly incorporated, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to
own its assets and to transact the business in which it is now
engaged or proposed to be engaged, and is duly qualified as a
foreign corporation and in good standing under the laws of each
other jurisdiction in which such qualification is required except
where the failure to so qualify and/or be in good standing would
not in any case or in the aggregate, have a material adverse
effect on the operations, business, property or financial
condition of the Co-Borrowers taken as a whole or on the ability
of the Co-Borrowers to perform their obligations hereunder. In
addition, each of the Co-Borrowers and their respective
Subsidiaries is in compliance with all laws, treaties, rules or
regulations, or determination of an arbitration or a court or
other governmental authority, in each case applicable to or
binding upon it or any of its material property or to which it or
any of its material property is subject, except to the extent
that the failure to so comply would not, in any case or in the
aggregate, have a material adverse effect on the operations,
business, property or financial condition of the Co-Borrowers
taken as a whole or on the ability of the Co-Borrowers to perform
their obligations hereunder.
Section 7.02. Corporate Power and Authority; No
Conflicts. The execution, delivery and performance by each of
the Co-Borrowers of the Facility Documents have been duly
authorized by all necessary corporate action and do not and will
not: (a) require any consent or approval of its stockholders;
(b) contravene its charter or by-laws; (c) violate any provision
of, or require any filing, registration, consent or approval
under, any law, rule, regulation (including, without limitation,
the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve system as in effect from time to
time), order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to such
Co-Borrower or any of its Subsidiaries; (d) result in a breach of
or constitute a default or require any consent under any
indenture or loan or credit agreement or any other agreement,
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lease or instrument to which such Co-Borrower is a party or by
which any of its properties may be bound or affected; (e) result
in, or require, the creation or imposition of any Lien upon or
with respect to any of the properties now owned or hereafter
acquired by such Co-Borrower; or (f) cause such Co-Borrower (or
any Subsidiary) to be in default under any such rule, regulation,
order, writ, judgment, injunction, decree, determination or award
or any such indenture, agreement, lease or instrument, except, in
the case of clauses (c), (d), (e) and (f) above, where such
violation, failure to satisfy such requirement, breach, default,
failure to obtain consent or creation or imposition of a lien, as
the case may be, would not, in any case or in the aggregate, have
a material adverse effect upon the operations, business, property
or financial condition of the Co-Borrowers taken as a whole or on
the ability of the Co-Borrowers to perform their obligations
hereunder.
Section 7.03. Legally Enforceable Agreements. Each
Facility Document is, or when delivered under this Agreement will
be, a legal, valid and binding obligation of each of the
Co-Borrowers party thereto enforceable against such Co-Borrowers
in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency
and other similar laws affecting creditors' rights generally.
Section 7.04. Litigation. There are no actions, suits
or proceedings pending or, to the knowledge of the Co-Borrowers,
threatened, against or affecting the Co-Borrowers or any of them
or any of their respective Subsidiaries before any court,
governmental agency or arbitrator, which may, in any one case or
in the aggregate, materially adversely affect the financial
condition, operations, properties or business of the
Co-Borrowers, taken as a whole, or on the ability of the
Co-Borrowers to perform their obligations under the Facility
Documents.
Section 7.05. Financial Statements. The consolidated
balance sheet of Olsten and its Consolidated Subsidiaries as at
January 1, 1995 and the related consolidated income statements
and statements of cash flow of Olsten and its Consolidated
Subsidiaries for the fiscal year then ended, and the accompanying
notes, together with the opinion thereon of Coopers & Xxxxxxx,
independent certified public accountants, copies of which have
been furnished to the Bank, and the interim financial statements
of Olsten and its Consolidated Subsidiaries as at and as of (as
the case may be) October 1, 1995 for the nine month period then
ended, copies of which have been furnished to the Bank, are
complete and correct and fairly present the consolidated
financial condition of Olsten and its Consolidated Subsidiaries
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as at such dates, and the consolidated results of the operations
of Olsten and its Consolidated Subsidiaries for the periods
covered by such statements all in accordance with GAAP
consistently applied (subject, in the case of interim financial
statements, to year-end adjustments and except, in the case of
such interim financial statements, for the absence of GAAP Notes
thereto). As of the date hereof, there are no liabilities of
such Co-Borrowers, fixed or contingent, which are material but
are not reflected in the financial statements or in the notes
thereto, other than liabilities arising in the ordinary course of
business since October 1, 1995, and the liabilities created by
this Agreement. No information, exhibit or report furnished by
the Co-Borrowers to the Bank in connection with the negotiation
of this Agreement contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make
the statements contained therein not materially misleading.
Since the date of the most recent financial statements delivered
to the Bank hereunder, there has been no material adverse change
in the condition (financial or otherwise), business, operations
or prospects of the Co-Borrowers taken as a whole.
Section 7.06. Ownership and Liens. Each of the
Co-Borrowers has title to, or valid leasehold interests in, all
of its properties and assets, real and personal, including the
properties and assets, and leasehold interests reflected in the
financial statements referred to in Section 7.05 (other than any
properties or assets disposed of in the ordinary course of
business), and none of the properties and assets owned by the
Co-Borrowers, or any of them, and none of their leasehold
interests is subject to any Lien, except as disclosed in
Schedule II or as may be permitted hereunder.
Section 7.07. Taxes. Each of the Co-Borrowers and
their respective Subsidiaries has filed all tax returns (federal,
state and local) required to be filed except where the failure to
file would not, in any case, or in the aggregate, have a material
adverse effect upon the operations, business, property or
financial condition of the Co-Borrowers taken as a whole or on
the ability of the Co-Borrowers to perform their obligations
hereunder and each of the Co-Borrowers and their respective
Subsidiaries has paid all taxes, assessments and governmental
charges and levies thereon to be due, including interest and
penalties other than taxes, assessments and governmental changes
and levies being contested in good faith by appropriate
proceedings and with respect to which adequate reserves in
conformity with GAAP shall have been provided on the books of the
Co-Borrowers or their Subsidiaries, as the case may be.
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Section 7.08. ERISA. Each of the Co-Borrowers and
their respective Subsidiaries is in compliance in all material
respects with all applicable provisions of ERISA. No Reportable
Event has occurred with respect to any Plan; no notice of intent
to terminate a Plan has been filed nor has any Plan been
terminated; no circumstance exists which constitutes grounds
under Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer, a
Plan, nor has the PBGC instituted any such proceedings; none of
the Co-Borrowers nor any ERISA Affiliate has completely or
partially withdrawn under Sections 4201 or 4204 of ERISA from a
Multiemployer Plan; each of the Co-Borrowers and each of its
ERISA Affiliates has met its minimum funding requirements under
ERISA with respect to all of its Plans and there are no Unfunded
Vested Liabilities; and none of the Co-Borrowers nor any ERISA
Affiliate has incurred any liability to the PBGC under ERISA.
Section 7.09. Subsidiaries and Ownership of Stock.
Schedule I is a complete and accurate list of the Subsidiaries of
Olsten, showing the jurisdiction of incorporation or organization
of each Subsidiary and showing the percentage of the Olsten's
ownership of the outstanding stock or other interest of each such
Subsidiary. All of the outstanding capital stock or other
interest of each such Subsidiary has been validly issued, is
fully paid and nonassessable and is owned by Olsten free and
clear of all Liens. Except as disclosed in Schedule I, none of
the Co-Borrowers has any Subsidiaries.
Section 7.10. Credit Arrangements. Schedule II is a
complete and correct list of all credit agreements, indentures,
purchase agreements, guaranties, Capital Leases and other
investments, agreements and arrangements in effect on the date of
this Agreement providing for or relating to extensions of credit
to the Co-Borrowers or any of them (including agreements and
arrangements for the issuance of letters of credit or for
acceptance financing) which provide for maximum availability of
$100,000 or more in principal or face amount in respect of which
the Co-Borrowers, or any of them, or any of their respective
Subsidiaries is in any manner directly or contingently obligated;
and the maximum principal or face amounts of the credit in
question, outstanding and which can be outstanding, are correctly
stated, and all Liens of any nature given or agreed to be given
as security therefor are correctly described or indicated in such
Schedule.
Section 7.11. Operation of Business. Each of the
Co-Borrowers and each of their respective Subsidiaries possesses
all licenses, permits, franchises, patents, copyrights,
trademarks and trade names, or rights thereto, to conduct their
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business substantially as now conducted and as presently proposed
to be conducted except where the failure to do so would not, in
any case or in the aggregate, have a material adverse effect upon
the operations, business, property or financial condition of the
Co-Borrowers taken as a whole or on the ability of the
Co-Borrowers to perform their obligations hereunder; and none of
the Co-Borrowers nor any of their respective Subsidiaries is in
violation of any valid rights of others with respect to any of
the foregoing, except where such violation would not, in any case
or in the aggregate, have a material adverse effect upon the
operations, business, property or financial condition of the
Co-Borrowers taken as a whole or on the ability of the
Co-Borrowers to perform their obligations hereunder. Without
limiting the generality of the foregoing, all health care
personnel employed by the Co-Borrowers, or any of them, including
all nurses, home health aides, therapists, etc. are properly
licensed, to the extent required, to perform the duties of their
employment in each jurisdiction where such duties are performed,
except where the failure to be properly licensed would not, in
any case or in the aggregate, have a material adverse effect upon
the operations, business, property or financial condition of the
Co-Borrowers taken as a whole or on the ability of the
Co-Borrowers to perform their obligations hereunder.
Section 7.12. Hazardous Substances. Each of the
Co-Borrowers, and each of their respective Subsidiaries, is in
compliance with all Environmental Laws, and has obtained all
necessary licenses and permits required to be issued pursuant to
any Environmental Law except where the failure to so comply or to
obtain such licenses or permits would not in any case or in the
aggregate have a material adverse effect on the business,
property or financial condition of the Co-Borrowers taken as a
whole or on the ability of the Co-Borrowers to perform their
obligations hereunder. To the best of the Co-Borrowers'
knowledge, none of the Co-Borrowers, nor any of their respective
Subsidiaries, has received any notice or communication from any
governmental agency with respect to (i) any Hazardous Substance
relative to its operations, property or acts or (ii) any
investigation, demand or request pursuant to or enforcing any
Environmental Law relating to it or its operations, no such
investigation is pending or threatened.
Section 7.13. No Default on Outstanding Judgments or
Orders. Each of the Co-Borrowers and each of their respective
Subsidiaries has satisfied all judgments and none of the
Co-Borrowers nor any of their respective Subsidiaries is in
default with respect to any judgment, writ, injunction, decree,
rule or regulation of any court, arbitrator or federal, state,
municipal or other governmental authority, commission, board,
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bureau, agency or instrumentality, domestic or foreign except to
the extent that such defaults would not, in any case or in the
aggregate, have a material adverse effect on the operations,
business, property or financial condition of the Co-Borrowers
taken as a whole or on the ability of the Co-Borrowers to perform
their obligations hereunder.
Section 7.14. No Defaults on Other Agreements. None
of the Co-Borrowers nor any of their respective Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or
other agreement or instrument or subject to any charter or
corporate restriction which would in any case or in the aggregate
have a material adverse effect on its ability to carry out its
obligations under the Facility Documents or on the business,
properties, assets, operations or condition, financial or
otherwise, of the Co-Borrowers taken as a whole or on the ability
of the Co-Borrowers to perform their obligations hereunder. None
of the Co-Borrowers, nor any of their respective Subsidiaries is
in default in any respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument material to its business
to which it is a party except where such default would not, in
any case or in the aggregate, have a material adverse effect on
the business, properties, assets, operations or condition,
financial or otherwise of the Co-Borrowers taken as a whole or on
the ability of the Co-Borrowers to perform their obligations
hereunder.
Section 7.15. Labor Disputes and Acts of God. Neither
the business nor the properties of the Co-Borrowers or any of
them or any of their respective Subsidiaries are affected by any
fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or
of the public enemy or other casualty (whether or not covered by
insurance), materially and adversely affecting such business or
properties or the operations of the Co-Borrowers taken as a whole
or the ability of the Co-Borrowers to perform their obligations
hereunder.
Section 7.16. Governmental Regulation. None of the
Co-Borrowers nor any of their respective Subsidiaries is subject
to regulation under the Public Utility Holding Company Act of
1935, the Investment Company Act of 1940 or any other statute or
regulation limiting its ability to incur indebtedness for money
borrowed as contemplated hereby.
Section 7.17. Partnerships. Except as disclosed on
Schedule III hereto, none of the Co-Borrowers nor any of their
respective Subsidiaries is a partner in any partnership.
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Section 7.18. No Forfeiture. To the best of the
Co-Borrowers' knowledge, none of the Co-Borrowers, nor any of
their respective Subsidiaries is engaged in or proposes to be
engaged in the conduct of any business or activity which could
result in a Forfeiture Proceeding and no Forfeiture Proceeding
against any of them is pending or, to the best of the
Co-Borrowers' knowledge, threatened.
Section 7.19. No Default or Event of Default. No
Default or Event of Default has occurred and is continuing.
Section 7.20. Accounts Receivable. To the best of the
Co-Borrowers' knowledge, each account receivable shown on each
Borrowing Base Certificate shall be based upon an actual bona
fide sale and shipment of delivery of goods or rendition of
services to customers, made by the Co-Borrowers in the ordinary
course of its business; the goods and inventory being sold and
the accounts thereby created and created by services being
rendered are the Co-Borrowers' exclusive property and are not and
shall not be subject to any Lien (other than Liens permitted
hereunder or which are disclosed on Schedule II hereto); and
except as the Co-Borrowers may otherwise advise the Bank pursuant
to Section 8.08(o), the Co-Borrowers' customers have accepted
such goods or services and owe and are obligated to pay the full
amount stated in the invoices according to their terms, without
dispute, offset, defense or counterclaim.
Section 7.21. Solvency. The Co-Borrowers are Solvent
on a consolidated basis.
Section 7.22. Material Adverse Change. No event or
series of events has occurred since October 1, 1995 which would
result in a material adverse effect on the operations, business,
property or financial condition of the Co-Borrowers taken as a
whole or on the ability of the Co-Borrowers to perform their
obligations hereunder.
Section 7.23. Consolidated Total Assets. At least 90%
of the amount of Consolidated Total Assets of, owned or held by
Olsten and its Consolidated Subsidiaries as at the date hereof
are the amount of Consolidated Total Assets of, owned or held by
one or more of the Co-Borrowers.
ARTICLE 8. AFFIRMATIVE COVENANTS.
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So long as the Note shall remain unpaid or the Bank
shall have any Commitment under this Agreement, the Co-Borrowers
and each of them shall:
Section 8.01. Maintenance of Existence. Except as
otherwise provided in this Agreement, preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its
corporate existence and good standing in the jurisdiction of its
incorporation, and qualify and remain qualified, and cause each
of its Subsidiaries to qualify and remain qualified, as a foreign
corporation in each jurisdiction in which such qualification is
required except where the failure to remain qualified as a
foreign corporation would not, in any case or in the aggregate,
have a material adverse effect upon the operations, business,
property or financial condition of the Co-Borrowers taken as a
whole or on the ability of the Co-Borrowers to perform their
obligations hereunder.
Section 8.02. Conduct of Business. In all material
respects to continue, and cause each of its Subsidiaries to
continue, to engage in an efficient and economical manner in the
business of providing human resource services including, without
limitation, office management services, health care services and
other related businesses, or information technology services.
Section 8.03. Maintenance of Properties. Maintain,
keep and preserve, and cause each of its Subsidiaries to
maintain, keep and preserve, all of its properties (tangible and
intangible) necessary or useful in the proper conduct of its
business in good working order and condition, ordinary wear and
tear excepted.
Section 8.04. Maintenance of Records. Keep, and cause
each of its Subsidiaries to keep, adequate records and books of
account, in which complete entries will be made in accordance
with GAAP, reflecting all financial transactions of such
Co-Borrower and its Subsidiaries.
Section 8.05. Maintenance of Insurance. Maintain, and
cause each of its Subsidiaries (i) to maintain insurance with
financially sound and reputable insurance companies or
associations or (ii) to maintain self-insurance in accordance
with prudent business practices, in each case, in such amounts
and covering such risks as are usually carried by companies
engaged in the same or a similar business and similarly situated,
which insurance may provide for reasonable deductibles or
self-retained amounts.
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Section 8.06. Compliance with Laws. Comply, and cause
each of its Subsidiaries to comply, in all respects with all
applicable laws, rules, regulations and orders except where the
failure to so comply would not have a material adverse effect
upon the operations, business, properties or financial condition
of the Co-Borrowers taken as a whole or on the ability of the
Co-Borrowers to perform their obligations hereunder.
Section 8.07. Right of Inspection. At any reasonable
time during normal business hours and from time to time, permit
the Bank or any agent or representative thereof, to examine and
make copies and abstracts from the records and books of account
of, and visit the properties of, such Co-Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts
of such Co-Borrower and any such Subsidiary with any of their
respective officers and directors and such Co-Borrower's
independent accountants; provided, that prior to the occurrence
and continuance of a Default or Event of Default, the costs of
any such examination or visit shall not be charged to the
Co-Borrowers hereunder but shall be borne by the Bank.
Notwithstanding the foregoing, the costs of any reports delivered
to the Bank under Section 8.08 below shall be borne by the
Co-Borrowers.
Section 8.08. Reporting Requirements. Furnish
directly to the Bank:
(a) as soon as available and in any event within
90 days after the end of each fiscal year of Olsten, an audited
consolidated balance sheet of Olsten and its Consolidated
Subsidiaries as of the end of such fiscal year and a consolidated
income statement, balance sheet and statement of cash flows of
such entities for such fiscal year, all in reasonable detail (and
including a complete listing and description of all deferred
charges by line item and by category) and stating in comparative
form the respective consolidated figures for the corresponding
date and period in the prior fiscal year and all prepared in
accordance with GAAP and as to the consolidated statements
accompanied by an opinion thereon acceptable to the Bank by
Coopers & Xxxxxxx or other independent certified public
accountants acceptable to the Bank which opinion neither includes
an exception as to adherence with GAAP nor expresses an adverse
opinion nor contains a disclaimer;
(b) as soon as available and in any event within
45 days after the end of each of the first three quarters of each
fiscal year of Olsten, a consolidated balance sheet of Olsten and
its Consolidated Subsidiaries as of the end of such quarter and a
consolidated income statement, balance sheet and statements of
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cash flow of such entities for the period commencing at the end
of the previous fiscal year and ending with the end of such
quarter, all in reasonable detail (and including a complete
listing and description of all deferred charges by line item and
by category) and stating in comparative form the respective
consolidated figures for the corresponding date and period in the
previous fiscal year and all prepared in accordance with GAAP and
attested to by the chief financial officer of Olsten (subject to
year-end adjustments);
(c) promptly following receipt thereof, copies of any
management letter prepared by the Co-Borrowers' independent
certified public accountants relating to the consolidated
financial statements of the Co-Borrowers and delivered to Olsten;
(d) simultaneously with the delivery of the financial
statements referred to above, a certificate of the chief
financial officer of Olsten (i) certifying that to the best of
his knowledge no Default or Event of Default has occurred and is
continuing or, if a Default or Event of 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
(ii) with computations demonstrating compliance with the
covenants contained in Article 10;
(e) quarterly, on or before the 28th day of each
calendar month which immediately succeeds a fiscal quarter end of
the Co-Borrowers, through the Termination Date, a duly completed
and fully executed Borrowing Base Certificate for the last day of
each such fiscal quarter, together with summary aging reports
(including a breakdown of Medicare and Medicaid Receivables), in
form and substance satisfactory to the Bank;
(f) simultaneously with the delivery of the annual
financial statements referred to in Section 8.08(a), (i) a
certificate of the independent public accountants who audited
such statements to the effect that, in making the examination
necessary for the audit of such statements, they have obtained no
knowledge of any condition or event which constitutes a Default
or Event of Default, or if such accountants shall have obtained
knowledge of any such condition or event, specifying in such
certificate each such condition or event of which they have
knowledge and the nature and status thereof and (ii) an
affirmation by such accountants of the information contained in
the Borrowing Base Certificate delivered by the Co-Borrowers to
the Bank providing information for December of such fiscal year;
(g) promptly after the Co-Borrowers become aware of
the commencement thereof, notice of all actions, suits, and
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proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Co-Borrowers, or any of them, or any of
their respective Subsidiaries including, without limitation, any
such proceeding relating to any alleged violation of any
Environmental Law, which, if determined adversely to the
Co-Borrowers or such Subsidiary, would have a material adverse
effect on the financial condition, properties, or operations of
the Co-Borrowers, taken as a whole or on the ability of the
Co-Borrowers to perform their obligations hereunder;
(h) as soon as possible and in any event within five
days after the occurrence of each Default or Event of Default a
written notice setting forth the details of such Default or Event
of Default and the action which is proposed to be taken by the
Co-Borrowers with respect thereto;
(i) as soon as possible and in any event within five
days after the Co-Borrowers know or have reason to know that any
of the events or conditions specified below with respect to any
Plan or Multiemployer Plan have occurred or exist, a statement
signed by a senior financial officer of Olsten setting forth
details respecting such event or condition and the action, if
any, which the Co-Borrowers or their ERISA Affiliate proposes to
take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC by the Co-Borrower, or
any of them or an ERISA Affiliate with respect to such event or
condition):
(i) any reportable event, as defined in Section
4043(b) of ERISA and the regulations issued thereunder,
with respect to a Plan, as to which PBGC has not by
regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the
occurrence of such event (provided that a failure to
meet the minimum funding standard of Section 412 of the
Code or Section 302 of ERISA shall be a reportable
eventregardless of the issuance of any waivers in
accordance with Section 412(d) of the Code);
(ii) the filing under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the
termination of any Plan;
(iii) the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or
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the receipt by the Co-Borrowers, or any of them or any
ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by PBGC with respect to
such Multiemployer Plan;
(iv) the complete or partial withdrawal by the
Co-Borrowers or any of them or any ERISA Affiliate
under Section 4201 or 4204 of ERISA from a
Multiemployer plan, or the receipt by the Co-Borrowers,
or any of them or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or
that it intends to terminate or has terminated under
Section 4041A of ERISA; and
(v) the institution of a proceeding by a
fiduciary or any Multiemployer Plan against the
Co-Borrowers or any ERISA Affiliate to enforce Section
515 of ERISA, which proceeding is not dismissed within
30 days;
(j) promptly after the furnishing thereof, copies of
any statement or report furnished to any other party pursuant to
the terms of any indenture, loan or credit or similar agreement
and not otherwise required to be furnished to the Bank pursuant
to any other clause of this Section 8.08;
(k) promptly, and in any event within five business
days, after the sending or filing thereof, copies of all proxy
statements, financial statements and reports which the
Co-Borrowers, or any of them or any of their respective
Subsidiaries sends to its stockholders, and copies of all
regular, periodic and special reports and all registration
statements which the Co-Borrowers, or any of them or any such
Subsidiary files with the Securities and Exchange Commission or
any governmental authority which may be substituted therefor, or
with any national securities exchange or state securities
administrator;
(l) promptly after the commencement thereof or
promptly after the Co-Borrowers know of the commencement or
threat thereof, notice of any Forfeiture Proceeding;
(m) promptly following the creation thereof, notice of
the creation of any Subsidiary of any Co-Borrower and disclosure
in reasonable detail of the assets transferred to or Investments
in any such Person;
(n) promptly, notice of any matter materially
adversely affecting the value, enforceability or collectability
of the Eligible Receivables taken as a whole including, without
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limitation, notice of all material customer disputes, offsets,
defenses, counterclaims, returns and rejections and all reclaimed
or repossessed merchandise or goods;
(o) promptly after the occurrence of any Acceptable
Acquisition, notice of the identity of any Acceptable Acquisition
and such other information as is included in the press or other
public releases disseminated with regard to the Acceptable
Acquisition; and
(p) such other information respecting the condition or
operations, financial or otherwise, of the Co-Borrowers, or any
of them or any of their respective Subsidiaries as the Bank may
from time to time reasonably request.
Section 8.09. Payment of Obligations. Each
Co-Borrower will, and will cause each of its Subsidiaries to,
pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all of its
material Debt and other material obligations of whatever nature
(including any obligation for taxes and wages), except for any
Debt or other material obligation which is being contested in
good faith and with respect to which on a consolidated basis,
adequate reserves in conformity with GAAP shall have been
provided on the books of the Co-Borrowers or their Subsidiaries,
as the case may be.
Section 8.10. Consolidated Total Assets. At least 90%
of the amount of Consolidated Total Assets of, owned or held by
Olsten and its Consolidated Subsidiaries shall at all times be
the amount of Consolidated Total Assets of, owned or held by, one
or more of the Co-Borrowers.
ARTICLE 9. NEGATIVE COVENANTS.
So long as the Note shall remain unpaid, or the Bank
shall have any Commitment under this Agreement, neither the
Co-Borrowers nor any of them shall:
Section 9.01. Debt. Create, incur, assume or suffer
to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist any Debt, except:
(a) Debt of the Co-Borrowers under this Agreement or
the Note;
(b) Debt described in Schedule II hereto, and any
renewals, extensions or refinancings of any of such items of
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Debt, provided, that such renewals, extensions or refinancings
are on terms no less favorable to the Co-Borrowers than the
original terms of such Debt and that such terms are reasonably
satisfactory to the Bank, and further provided, that no such
renewals, extensions or refinancings shall increase the Debt
(i.e., either with respect to outstandings or availability) of
the Co-Borrowers, or any of them, and further provided, that with
respect to the item of Debt described in paragraph 3(a) of
Schedule II hereto, the Bank shall at all times be deemed a
holder of "Senior Debt" under the instruments or agreements
evidencing such scheduled Debt and that any amendment,
supplementation or modification of the terms of such scheduled
Debt shall be subject to Section 9.09 hereof;
(c) Subordinated Debt;
(d) Debt of any Co-Borrower to any other Co-Borrower;
(e) Debt incurred in connection with operating leases
entered into by the Co-Borrowers, or any of them, consistent with
past practices or in the ordinary course of business;
(f) Notwithstanding anything contained in Section 9.01
hereof to the contrary and in addition to any of the Debt
described in any of Sections 9.01(a)-(j) hereof (other than this
Section 9.01(f)), Debt incurred after the date of this Agreement
(including, without limitation, Debt of any Co-Borrower to any
Subsidiary of any Co-Borrower which is not itself a Co-Borrower
and guarantees by any Co-Borrower of the Debt of any Subsidiary
of any Co-Borrower which is not itself a Co-Borrower) in an
aggregate principal amount not to exceed the difference of
$40,000,000 less the amount of the Debt of the Co-Borrowers under
this Agreement, the Note or any of the other Facility Documents
at any time outstanding as to all such Persons;
(g) Debt of the Co-Borrowers or any of them secured by
purchase money Liens permitted by Section 9.02(i);
(h) Debt of the Co-Borrowers or any of them secured by
a mortgage on the property of Olsten located at One Xxxxxxx
Avenue, Westbury, New York or any adjacent property in an amount
not to exceed $7,000,000 or if such property is sold by Olsten,
the property of Olsten or another Co-Borrower located at
000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx and any adjacent
property in an amount not to exceed $15,000,000;
(i) Guarantees by any Co-Borrower of the Debt of any
other Co-Borrower; and
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(j) Debt incurred as a result of bid bonds or
performance bonds incurred by any Co-Borrower in the ordinary
course of its business consistent with past practices.
Section 9.02. Liens. Create, incur, assume or suffer
to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien, upon or with respect to any
of its properties, now owned or hereafter acquired, except:
(a) Liens in favor of the Bank securing the Loans
hereunder;
(b) Liens for taxes or assessments or other government
charges or levies if not yet due and payable or if due and
payable if they are being contested in good faith by appropriate
proceedings and for which appropriate reserves are maintained in
conformity with GAAP;
(c) Liens imposed by law, such as mechanic's,
materialmen's, landlord's, warehousemen's and carrier's Liens,
and other similar Liens, securing obligations incurred in the
ordinary course of business which are not past due for more than
30 days, or which are being contested in good faith by
appropriate proceedings and for which appropriate reserves have
been established;
(d) Liens under workers' compensation, unemployment
insurance, social security or similar legislation (other than
ERISA);
(e) Liens, deposits or pledges to secure the
performance of bids, tenders, contracts (other than contracts for
the payment of money), leases, public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar
bonds, or other similar obligations arising in the ordinary
course of business;
(f) judgment and other similar Liens arising in
connection with court proceedings; provided that the execution or
other enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good faith
and by appropriate proceedings;
(g) easements, rights-of-way, restrictions and other
similar encumbrances which, in the aggregate, do not materially
interfere with the occupation, use and enjoyment by the
Co-Borrower or any such Subsidiary of the property or assets
encumbered thereby in the normal course of its business or
materially impair the value of the property subject thereto;
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(h) Liens securing obligations of any Co-Borrower to
another Co-Borrower;
(i) purchase money Liens on any property heretofore or
hereafter acquired or the assumption of any Lien on property
existing at the time of such acquisition, or a Lien incurred in
connection with any conditional sale or other title retention
agreement or a Capital Lease; provided, that such liens attach
only to the property as acquired and do not extend to any
additional property of the Co-Borrowers;
(j) Liens existing on the date hereof and described on
Schedule II hereto;
(k) Liens securing indebtedness permitted by Section
9.01(h) hereof;
(l) Notwithstanding anything contained in this Section
9.02 to the contrary, Liens securing indebtedness of any of the
Co-Borrowers in an aggregate principal amount outstanding or
available to be drawn at any one time respecting all of the
Co-Borrowers, not in excess of $1,000,000, provided that such
Liens do not attach to the accounts receivable of the
Co-Borrowers, or any of them; and
(m) Liens on accounts receivable acquired by the
Co-Borrowers (or any of them) in Acceptable Acquisitions or on
accounts receivable of entities acquired by the Co-Borrowers (or
any of them) in Acceptable Acquisitions which secure indebtedness
provided that all such indebtedness so secured shall not be in
excess of $20,000,000 at any one time outstanding.
Section 9.03. Investments. Notwithstanding anything
contained in this Agreement to the contrary, make, or permit any
of its Subsidiaries to make, any loan or advance to any Person or
purchase or otherwise acquire or redeem,or permit any such
Subsidiary to purchase or otherwise acquire, any capital stock,
assets, obligations or other securities of, make any capital
contribution to, or otherwise invest in, or acquire any interest
in (each of the foregoing, an "Investment"), any Person
(including, without limitation, any Co-Borrower or any Subsidiary
or Affiliate of any Co-Borrower), except (a) any of the following
Investments: (i) obligations issued or guaranteed by states or
municipalities within the United States of America and rated at
least A-1 by Standard & Poors or an equivalent rating by another
recognized credit rating agency approved by the Bank (an
"Equivalent Rating"); (ii) obligations issued or guaranteed by
the United States of America or any agency or subdivision
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thereof, the payment or guarantee of which constitutes a full
faith and credit obligation of the United States of America;
(iii) certificates of deposit, time deposits, Eurodollar
certificates of deposit, bankers acceptances and other "money
market instruments" issued by any bank, trust company or
financial institution organized under the laws of the United
States of America or any state thereof (or, in the case of
Eurodollar certificates of deposit, a branch of any such bank,
trust company or financial institution) having capital and
surplus in an aggregate amount not less than $200,000,000 and
rated (i.e., the instrument) at least A-1 by Standard & Poors or
an Equivalent Rating, or by the Bank, or by any bank, trust
company or financial institution organized under the laws of a
jurisdiction other than the United States of America or any state
thereof having capital and surplus in an aggregate amount not
less than $200,000,000 and rated (i.e., the instrument) at least
A-1 by Standard & Poors or an Equivalent Rating; (iv) commercial
paper rated at least Prime-1 by Xxxxx'x Investor Services or A-1
by Standard & Poors; (v) repurchase agreements entered into with
any bank, trust company or financial institution organized under
the laws of the United States of America or any state thereof
having capital and surplus in an aggregate amount not less than
$200,000,000 or with the Bank, or with any bank, trust company or
financial institution organized under the laws of a jurisdiction
other than the United States of America or any state thereof
having capital and surplus in an aggregate amount not less than
$200,000,000, and which (with respect to any such repurchase
agreement referred to in this Section 9.03(v)) are fully secured
by obligations of the type described in Section 9.03(ii) hereof
and (vi) Investments, other than of any of the types referenced
in (a)(i)-(v) above or (b)-(f) below, which are of the same
general nature as the Co-Borrowers' Investments existing on the
date hereof, including without limitation, loans to franchisees
or licensed area representatives of the Co-Borrowers or any of
them, provided that the recipient or beneficiary of any such
Investment referred to in this Section 9.03(a)(vi) is not an
Affiliate of the Co-Borrowers or any of them, and further
provided that the aggregate of such Investments (i.e., those
referenced in this clause (vi)) do not, at any time, in any case
or in the aggregate, exceed $20,000,000; and provided that in the
case of any of the Investments referred to in clauses (i), (ii),
(iii) and (iv) above, each such Investment matures or is maturing
or being due or payable in full not more than one year after the
relevant Person's acquisition thereof; (b) Acceptable
Acquisitions with respect to which the amounts paid or payable
(which amount includes cash, notes, issuance of equity securities
and the assumption of debt) do not at any time, in any case or in
the aggregate, exceed $125,000,000 during fiscal year 1995
(excluding the IMI, Norsk Personal Gruppen and OFFiS Unternehmen
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fur Zeitarbeit GmbH & Co KG acquisitions) and $100,000,000 during
any fiscal year of Olsten thereafter (excluding the OFFiS
Unternehmen fur Zeitarbeit GmbH & Co KG acquisition during fiscal
year 1996) during the term of this Agreement; (c) Investments
(including by the purchase of equity securities) to or in non-
Subsidiary entities that are Affiliates of the Co-Borrowers, or
any of them, provided that such entities are engaged in the
business of providing human resource services, including without
limitation, health care services, related office management
services or related businesses, and that such entities do not
become Subsidiaries of the Co-Borrowers or any of them as a
result of such loans, advances or investments; (d) Investments to
or in any Subsidiary that is not a Co-Borrower; provided,
however, that notwithstanding anything contained in this
Agreement to the contrary, in the case of any of the Investments
referenced in either of clauses (c) or (d) above, such
Investments do not, at any time, in any case or in the aggregate
(i.e., any such Investments referenced in clause(c) above plus
any such Investments referenced in clause (d) above), exceed
$20,000,000; (e) Investments in Subsidiaries that are not Co-
Borrowers for the purpose of making Acceptable Acquisitions with
respect to which the amounts paid or payable (which amount
includes cash, notes, issuance of equity securities and the
assumption of debt) do not at any time, in any case or in the
aggregate, exceed $125,000,000 during fiscal year 1995 and
$100,000,000 during any fiscal year of Olsten thereafter during
the term of this Agreement; provided that any such Subsidiary
must be a "new Subsidiary" within the meaning given to such
phrase in Section 13.06 hereof; and (f) Investments to or in any
Co-Borrower.
Notwithstanding anything to the contrary in the foregoing
paragraphs, for the purpose hereof, the aggregate of the amounts
paid or payable with respect to Acceptable Acquisitions under
Section 9.03(b) hereof and Investments in Subsidiaries that are
not Co-Borrowers under Section 9.03 hereof may not exceed
$125,000,000 during fiscal year 1995 and $100,000,000 during any
fiscal year of Olsten thereafter during the term of this
Agreement.
Section 9.04. Sale of Assets. Sell, lease, assign,
transfer or otherwise dispose of, or permit any of its
Subsidiaries to sell, lease, assign, transfer or otherwise
dispose of, any of its now owned or hereafter acquired assets
(including, without limitation, shares of stock and indebtedness
of such Subsidiaries, receivables and leasehold interests),
except: (a) for assets disposed of in the ordinary course of
business; (b) the sale or other disposition of assets no longer
used or useful in the conduct of its business; (c) that any
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Co-Borrower may sell, lease, assign, or otherwise transfer its
assets to another Co-Borrower; (d) for dispositions of shares of
capital stock in connection with a transaction permitted by
Section 9.06; (e) sales or dispositions of assets in arm's length
transactions, provided that the aggregate net proceeds of all
such sales shall not exceed $50,000,000 in any fiscal year (in
addition to the transactions described in any of subsections
(a)-(d) or (f) of this Section 9.04); and (f) the sale of all of
the issued and outstanding shares of capital stock of Healthcare
Staff Resources, Inc. on or prior to March 10, 1995 by Xxxxxxxx
Services, Inc. pursuant to a certain Stock Purchase and Sale
Agreement (the "Stock Purchase Agreement") dated as of February
17, 1995 between Xxxxxxxx Services, Inc. and Careerstaff
Unlimited, Inc., provided that no Default or Event of Default
shall occur under or with respect to any other section of this
Agreement as a result of or after giving effect to the
consummation of the transactions contemplated by the Stock
Purchase Agreement.
Section 9.05. Transactions with Affiliates. Enter
into any transaction, including, without limitation, the
purchase, sale or exchange of property or the rendering of any
service, with any Affiliate or permit any of its Subsidiaries to
enter into any transaction, including, without limitation, the
purchase, sale or exchange of property or the rendering of any
service, with any Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of such Co-Borrower's or
such Subsidiary's business and upon fair and reasonable terms no
less favorable to such Co-Borrower or such Subsidiary than would
obtain in a comparable arm's length transaction with a Person not
an Affiliate.
Section 9.06. Mergers, Etc. Merge or consolidate
with, or sell, assign, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter
acquired) to, any person, or acquire all or substantially all of
the assets or the business of any Person (or enter into any
agreement to do any of the foregoing), or permit any of its
Subsidiaries to do so except: (a) that any such Co-Borrower or
Subsidiary may merge into or transfer assets to a Co-Borrower;
(b) that a Co-Borrower may effect any Acceptable Acquisition
permitted by Section 9.07 by means of a merger or otherwise
provided that if such Acceptable Acquisition is effected by means
of a merger, the Co-Borrower shall be the surviving entity, and
further provided that in any merger transaction referenced in
either (a) or (b) above involving Olsten, Olsten shall be the
surviving entity; and (c) for a transaction permitted by Section
9.04 hereof.
Section 9.07. Acquisitions. Make any Acquisition
other than an Acceptable Acquisition.
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Section 9.08. No Activities Leading to Forfeiture.
None of the Co-Borrowers nor any of their respective Subsidiaries
shall engage in the conduct of any business or activity which
could result in a Forfeiture Proceeding.
Section 9.09. Amendments to Indenture; Certain
Voluntary Prepayments; etc. Amend, supplement or modify any term
or provision of the Indenture or of any Subordinated Debt or of
any of the items of Debt referenced in any of Schedule II which
would adversely affect the rights of the Bank, including, without
limitation, amendments to the subordination provisions of the
Subordinated Debt and amendments, modifications or changes which
would accelerate the maturity or increase the amount of any
payment of principal thereof or which would increase the rate or
accelerate the date for the payment of interest thereon, or
consent to or permit any such amendment, supplement or
modification; or make any voluntary or optional prepayment,
repurchase or redemption of or with respect to any Debt other
than the item of Subordinated Debt referenced in Schedule II,
paragraph 3(a).
Section 9.10. Corporate Documents; Fiscal Year.
Amend, modify or supplement its certificate or articles of
incorporation or by-laws in any way which would adversely affect
the ability of the Co-Borrowers to perform their obligations
hereunder or change its fiscal year.
ARTICLE 10. FINANCIAL COVENANTS.
Note: The fiscal year-end dates for the 1993, 1994,
1995, 1996, 1997, 1998 and 1999 fiscal years of Olsten are
1/2/94, 1/1/95, 12/31/95, 12/29/96, 12/28/97, 1/3/99 and 1/2/00,
respectively.
So long as the Note shall remain unpaid or the Bank
shall have any Commitment under this Agreement:
Section 10.01. Minimum Consolidated Working Capital.
The Co-Borrowers shall maintain at all times an excess of
Consolidated Current Assets over Consolidated Current Liabilities
(hereinafter, "CWC") of not less than the amount set forth below
opposite the applicable period:
Period Amount
------ ------
The date hereof through 12/30/95 $149,000,000
12/31/95-12/28/96 $156,000,000
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12/29/96-12/27/97 CWC as at 12/31/95 plus
$35,000,000
12/28/97-1/2/99 CWC as at 12/29/96 plus
$35,000,000
1/3/99-1/1/00 CWC as at 12/28/97 plus
$35,000,000
1/2/00 and thereafter CWC as at 1/3/99 plus
$35,000,000
Section 10.02. Minimum Consolidated Tangible Net
Worth. The Co-Borrowers shall maintain at all times during each
of the periods set forth below, a Consolidated Tangible Net Worth
of not less than the amount set forth below opposite such period:
Period Amount
------ ------
1/2/94-12/31/94 $80,000,000
1/1/95-12/30/95 Consolidated Tangible Net
Worth as at 1/2/94 plus
$35,000,000
12/31/95-12/28/96 Consolidated Tangible Net
Worth as at 1/1/95 plus
$35,000,000
12/29/96-12/27/97 Consolidated Tangible Net
Worth as at 12/31/95 plus
$35,000,000
12/28/97-1/2/99 Consolidated Tangible Net
Worth as at 12/29/96 plus
$35,000,000
1/3/99-1/1/00 Consolidated Tangible Net
Worth as at 12/28/97 plus
$35,000,000
1/2/00 and thereafter Consolidated Tangible Net
Worth as at 1/3/99 plus
$35,000,000
Section 10.03. Current Ratio. The Co-Borrowers shall
maintain, determined as of the last day of each fiscal quarter
ending prior to the Termination Date, a ratio of Consolidated
Current Assets to Consolidated Current Liabilities of not less
than 2.00:1.00.
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Section 10.04. Consolidated Total Liabilities To
Consolidated Tangible Net Worth Ratio. The Co-Borrowers shall
not permit, determined as of the last day of each fiscal quarter
ending prior to the Termination Date, the ratio of Consolidated
Total Liabilities minus Consolidated Subordinated Debt to
Consolidated Tangible Net Worth plus Consolidated Subordinated
Debt to be greater than the ratio set forth opposite the
applicable period:
Period Ratio
------ -----
The date hereof through 12/30/95 1.35
12/31/95-12/28/96 1.25
12/29/96 and thereafter 1.00
Section 10.05. Fixed Coverage Ratio. The Co-Borrowers
shall not permit on a consolidated basis determined as of the
last day of each fiscal quarter ending prior to the Termination
Date, for the period of four consecutive fiscal quarters then
ended, the ratio of (i) Net Profit Before Taxes plus Depreciation
plus Amortization plus Interest Expense to (ii) Principal
Payments plus Dividends plus Interest Expense plus Capital
Expenditures, to be less than 2.00:1.00; provided, that the
Co-Borrowers shall not permit Net Profit Before Taxes for any
four consecutive quarterly periods to be less than or equal to
zero ($0) Dollars.
Section 10.06. Funded Debt to Consolidated Net
Operating Cash Flow. The Co-Borrowers shall not permit the ratio
of Funded Debt to Consolidated Net Operating Cash Flow to exceed,
at any time during the period from the date hereof to but
excluding the Termination Date, 2.50:1.00. For purposes of
calculating this ratio, Funded Debt shall be determined on the
date of calculation and Consolidated Net Operating Cash Flow
shall be the aggregate Consolidated Net Operating Cash Flow for
the four consecutive quarterly periods immediately preceding the
date of calculation.
Compliance with all of the financial covenants
contained in this Article 10 shall be determined by reference to
the consolidated financial statements of Olsten and its
Consolidated Subsidiaries delivered to the Bank in accordance
with Section 8.08 hereof.
ARTICLE 11. EVENTS OF DEFAULT.
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Section 11.01. Events of Default. Any of the
following events shall be an "Event of Default":
(a) The Co-Borrowers shall: (i) fail to pay the
principal of the Note as and when due and payable; or (ii) fail
to pay interest on the Note or any fee or other amount due
hereunder or under any of the other Facility Documents as and
when due and payable.
(b) Any representation or warranty made or deemed made
by the Co-Borrowers or any of them in this Agreement or in any
other Facility Document or which is contained in any certificate,
document, opinion, financial or other statement furnished at any
time under or in connection with any Facility Document shall
prove to have been incorrect in any material respect on or as of
the date made or deemed made;
(c) The Co-Borrowers shall: (i) fail to perform or
observe any term, covenant or agreement contained in Section 2.03
or in Articles 9 or 10; or (ii) fail to perform or observe any
term, covenant or agreement on their part to be performed or
observed (other than the obligations specifically referred to in
Section 11.01(a), Section 11.01(b), Section 11.01(c)(i) or any of
Sections 11.01(d)-(h)) which is contained in any Facility
Document and such failure shall continue for 30 consecutive days;
(d)(i) The Co-Borrowers, or any of them or any of
their respective Subsidiaries shall: (A) fail to pay any Debt,
including but not limited to indebtedness for borrowed money
(other than the payment obligations described in (a) above), of
the Co-Borrowers, or such Subsidiary, as the case may be, or any
interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise); or (B) fail to perform or observe any term, covenant
or condition on its part to be performed or observed under any
agreement or instrument relating to any such Debt, when required
to be performed or observed, if the effect of such failure to
perform or observe is to accelerate, or to permit the
acceleration of, after the giving of notice or passage of time,
or both, the maturity of such Debt, whether or not such failure
to perform or observe shall be waived by the holder of such Debt;
or (ii) any such Debt (other than under the circumstances and
with respect to the Debt described in Section 11.01(d)(iii)
hereof) shall be declared due and payable, or shall be required
to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or (iii) the
Debentures, or any portion thereof, shall be declared or deemed
due and payable or shall be required, pursuant to a "Repurchase
Event" (as such term is defined in the Indenture) or otherwise,
to be repurchased or prepaid, as the case may be, prior to the
stated maturity thereof (including, without limitation, prior to
the "Stated Maturity" as such term is defined in the Indenture);
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provided, that, for purposes of clauses (i) and (ii) hereof only,
such events shall only constitute "Events of Default" if the
affected Debt, in any case or in the aggregate, exceeds
$1,000,000 in principal amount outstanding; and further provided,
that for purposes of clause (iii) hereof only, such events shall
only constitute "Events of Default" if the principal amount of
Debentures which are declared due and payable or are required to
be repurchased or prepaid prior to the stated maturity thereof as
set forth in such clause (iii) hereof, in any case or in the
aggregate, exceeds $1,000,000.
(e) The Co-Borrowers, or any of them, or any of their
respective Subsidiaries (i) shall generally not, or be unable to,
or shall admit in writing its or their inability to, pay its or
their debts as such debts become due; or (ii) shall make an
assignment for the benefit of creditors, petition or apply to any
tribunal for the appointment of a custodian, receiver or trustee
for it or a substantial part of its or their assets; or
(iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; or (iv) shall have had any such petition or
application filed or any such proceeding shall have been
commenced, against it or them, in which an adjudication or
appointment is made or order for relief is entered, or which
petition, application or proceeding remains undismissed for a
period of 30 days or more; or shall be the subject of any
proceeding under which its or their assets may be subject to
seizure, forfeiture or divestiture (other than a proceeding in
respect of a Lien permitted under Section 9.02(b)); or (v) by any
act or omission shall indicate its or their consent to, approval
of or acquiescence in any such petition, application or
proceeding or order for relief or the appointment of a custodian,
receiver or trustee for all or any substantial part of its or
their property; (vi) shall suffer any such custodianship,
receivership or trusteeship to continue undischarged for a period
of 30 days or more; or (vii) on a consolidated basis with the
other Co-Borrowers, shall cease to be Solvent;
(f) One or more judgments, decrees or orders for the
payment of money in excess of $1,000,000 in the aggregate shall
be rendered against the Co-Borrowers, or any of them, or any of
their respective Subsidiaries and such judgments, decrees or
orders shall continue unsatisfied and in effect for a period of
30 consecutive days without being vacated, discharged, satisfied
or stayed or bonded pending appeal;
(g) An event or condition specified in Section 8.08(i)
hereof shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or condition,
together with all other such events or conditions, the
Co-Borrowers, or any of them, or any ERISA Affiliate shall incur
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or in the opinion of the Bank shall be reasonably likely to incur
a liability to a Plan, a Multiemployer Plan or PBGC (or any
combination of the foregoing) which is, in the determination of
the Bank, material in relation to the consolidated financial
condition, operations, business or prospects taken as a whole of
the Co-Borrowers and their Subsidiaries; or
(h) Any Forfeiture Proceeding shall have been
commenced or the Co-Borrowers shall have given the Bank written
notice of the commencement of any Forfeiture Proceeding as
provided in Section 8.08(l).
Section 11.02. Remedies. If any Event of Default
shall occur and be continuing, the Bank may, by notice to the
Co-Borrowers, (a) declare the Commitment to be terminated,
whereupon the same shall forthwith terminate, and (b) declare the
outstanding principal of the Note, all interest thereon and all
other amounts payable under this Agreement, the Note or the other
Facility Documents to be forthwith due and payable, whereupon the
Note, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly
waived by the Co-Borrowers; provided, that notwithstanding the
foregoing, upon the occurrence of an Event of Default referred to
in any of Sections 11.01(d)(iii), 11.01(e) or 11.01(h) above, the
Commitment shall be immediately terminated, and the Note, all
interest thereon and all other amounts payable under this
Agreement, the Note or the other Facility Documents shall be
immediately due and payable without notice, presentment, demand,
protest or other formalities of any kind, all of which are hereby
expressly waived by the Co-Borrowers.
ARTICLE 12. THIS ARTICLE IS INTENTIONALLY LEFT BLANK.
ARTICLE 13. MISCELLANEOUS.
Section 13.01. Amendments and Waivers. Except as
otherwise expressly provided in this Agreement, any provision of
this Agreement may be amended or modified only by an instrument
in writing signed by the Co-Borrowers and the Bank; and any
provision of this Agreement may be waived by the Co-Borrowers, if
such provision requires performance by the Bank, without the
written consent of the Bank, or by the Bank, if such provision
requires performance by the Co-Borrowers or any of them, without
the written consent of the Co-Borrowers or any of them. No
failure on the part of the Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof
or preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
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Section 13.02. Usury. Anything herein to the contrary
notwithstanding, the obligations of the Co-Borrowers under this
Agreement and the Note shall be subject to the limitation that
payments of interest shall not be required to the extent that
receipt thereof would be contrary to provisions of law applicable
to the Bank limiting rates of interest which may be charged or
collected by the Bank.
Section 13.03. Expenses. The Co-Borrowers shall
reimburse the Bank for all of its reasonable costs and expenses
(including, without limitation, the Bank's allocated costs of its
in-house counsel) in connection with the enforcement or
preservation of any rights under this Agreement, the Note or the
other Facility Documents. The Co-Borrowers agree to indemnify
the Bank and its Affiliates, directors, officers, employees and
agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any
of them arising out of or by reason of any investigation or
litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any
actual or proposed use by the Co-Borrowers, or any of them, or
any of their respective Subsidiaries of the proceeds of the
Loans, including without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such
investigation or litigation or other proceedings (but excluding
any such losses, liabilities, claims, damages or expenses
incurred by reason of the gross negligence, willful misconduct or
bad faith of the Person to be indemnified).
Section 13.04. Survival. The obligations of the
Co-Borrowers under Section 2.03(b), Article V and Section 13.03
shall survive the repayment of the Loans and the termination of
the Commitment.
Section 13.05. Assignment; Participation. This
Agreement shall be binding upon, and shall inure to the benefit
of, the Co-Borrowers, the Bank and their respective successors
and assigns, except that the Co-Borrowers may not assign or
transfer their rights or obligations hereunder. The Bank may
assign, or sell participations in, all or any part of any Loan or
the Commitment to another bank or other entity, in which event
(a) in the case of an assignment, upon notice thereof by the Bank
to the Co-Borrowers, the assignee shall have, to the extent of
such assignment (unless otherwise provided therein), the same
rights, benefits and obligations as it would have if it were a
Bank hereunder, and concomitantly, the assignor shall, to the
extent of such assignment (unless otherwise provided therein),
have relinquished such rights and benefits and be released from
such obligations; and (b) in the case of a participation, the
participant shall have no rights under the Facility Documents and
all amounts payable by the Co-Borrowers under Article 4 or
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Article 5 shall be determined as if the Bank had not sold such
participation. The agreement executed by the Bank in favor of
the participant shall not give the participant the right to
require the Bank to take or omit to take any action hereunder
except action directly relating to (i) the extension of a payment
date with respect to any portion of the principal of or interest
on any amount outstanding hereunder allocated to such
participant, (ii) the reduction of the principal amount
outstanding hereunder or (iii) the reduction of the rate of
interest payable on such amount or any amount of fees payable
hereunder to a rate or amount, as the case may be, below that
which the participant is entitled to receive under its agreement
with the Bank. The Bank may furnish any information concerning
the Co-Borrowers in the possession of the Bank from time to time
to assignees and participants (including prospective assignees
and participants); provided that the Bank shall require any such
prospective assignee or such participant (prospective or
otherwise) to agree in writing to maintain the confidentiality of
such information.
Section 13.06. Special Provision With Respect To New
Subsidiaries. Upon receiving notice that a Co-Borrower has
established a new Subsidiary in accordance with Section 8.08(m),
the Bank may require the Co-Borrowers to designate such new
Subsidiary to act as a Co-Borrower hereunder, in which case such
new Subsidiary shall agree to abide by all of the terms,
covenants, conditions and obligations applicable to the
Co-Borrowers herein. The Co-Borrowers agree to take all action
necessary to cause such new Subsidiary to become a Co-Borrower
hereunder promptly upon the request of the Bank. Alternatively,
at the option of the Bank, such new Subsidiary may become a
guarantor of the Co-Borrowers' obligations hereunder in which
event it will execute and deliver a guarantee in form and
substance satisfactory to the Bank. Notwithstanding any other
provision of this Agreement, no such new Subsidiary shall be
formed unless Olsten includes such Subsidiary in its consolidated
financial statements required to be delivered hereunder.
Section 13.07. Notices. Unless the party to be
notified otherwise notifies the other party in writing as
provided in this Section, and except as otherwise provided in
this Agreement, notices shall be given to the Bank by telephone,
confirmed by telecopy or other writing, and to the Co-Borrowers
by certified or registered mail or by recognized overnight
delivery services, to such party at its address on the signature
page of this Agreement, provided that notices to the
Co-Borrowers, or to any of them, shall be effective if delivered
at the following address: 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxx 00000, Attn.: General Counsel. Notices shall be effective:
(a) if given by registered or certified mail, 72 hours after
deposit in the mails with postage prepaid, addressed as
aforesaid; (b) if given by recognized overnight delivery service,
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on the business day following deposit with such service addressed
as aforesaid; and (c) if given by telecopy, when the telecopy is
transmitted to the telecopy number as aforesaid; provided that
all notices to the Bank shall be effective upon receipt.
Section 13.08. Setoff. The Co-Borrowers agree that,
in addition to (and without limitation of) any right of setoff,
banker's lien or counterclaim the Bank may otherwise have, the
Bank shall be entitled, at its option without any prior notice to
the Co-Borrowers (any such notice being expressly waived by the
Co-Borrowers to the extent permitted by applicable law), to
offset balances (general or special, time or demand, provisional
or final) held by it for the account of the Co-Borrowers or any
of them at any of the Bank's offices, in Dollars or in any other
currency, against any amount payable by the Co-Borrowers or any
of them to the Bank under this Agreement, the Note or any other
Facility Document which is not paid when due (regardless of
whether such balances are then due to the Co-Borrowers), in which
case it shall promptly notify the Co-Borrowers thereof; provided
that the Bank's failure to give such notice shall not affect the
validity thereof. Payments by the Co-Borrowers hereunder shall be
made without setoff or counterclaim.
Section 13.09. Jurisdiction; Immunities.
(a) The Co-Borrowers hereby irrevocably submit to the
jurisdiction of any New York State or United States Federal court
sitting in New York County over any action or proceeding arising
out of or relating to this Agreement, the Note or any other
Facility Document, and the Co-Borrowers hereby irrevocably agree
that all claims in respect of such action or proceeding may be
heard and determined in such New York State or Federal court.
The Co-Borrowers irrevocably consent to the service of any and
all process in any such action or proceeding by the mailing (by
certified or registered mail) of copies of such process to the
Co-Borrowers at the address specified in Section 13.07. The
Co-Borrowers agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. The Co-Borrowers further waive any objection to
venue in such State and any objection to an action or proceeding
in such State on the basis of forum non conveniens. The
Co-Borrowers further agree that any action or proceeding brought
against the Bank shall be brought only in New York State or
United States Federal court sitting in New York County. Each of
the Bank and each of the Co-Borrowers waives any right it may
have to a jury trial.
(b) Nothing in this Section 13.09 shall affect the
right of the Bank to serve legal process in any other manner
permitted by law or affect the right of the Bank to bring any
action or proceeding against the Co-Borrowers, or any of them, or
their or its property in the courts of any other jurisdictions.
-59-
65
(c) To the extent that the Co-Borrowers have or
hereafter may acquire any immunity from jurisdiction of any court
or from any legal process (whether from service or notice,
attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property,
the Co-Borrowers hereby irrevocably waive such immunity in
respect of its obligations under this Agreement, the Note and the
other Facility Documents.
Section 13.10. Table of Contents; Headings. Any table
of contents and the headings and captions hereunder are for
convenience only and shall not affect the interpretation or
construction of this Agreement.
Section 13.11. Severability. The provisions of this
Agreement are intended to be severable. If for any reason any
provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the
extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any
other jurisdiction or the remaining provisions hereof in any
jurisdiction.
Section 13.12. Counterparts. This Agreement may be
executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing any such
counterpart.
Section 13.13. Integration. The Facility Documents
set forth the entire agreement among the parties hereto relating
to the transactions contemplated thereby and supersede any prior
oral or written statements or agreements with respect to such
transactions.
Section 13.14. Governing Law. This Agreement shall be
governed by, and interpreted and construed in accordance with,
the law of the State of New York.
Section 13.15. Treatment of Certain Information. The
Co-Borrowers (a) acknowledge that services may be offered or
provided to it (in connection with this Agreement or otherwise)
by the Bank or by one or more of its Subsidiaries or Affiliates
and (b) acknowledges that information delivered to the Bank by
the Co-Borrowers may be provided to each such Subsidiary and
Affiliate.
-60-
66
Section 13.16. Co-Borrowers' Attorney-in-Fact. Each
Co-Borrower, other than Olsten, hereby irrevocably appoints
Olsten as such Co-Borrower's attorney-in-fact to act on behalf of
such Co-Borrower to execute such documents, instruments or
agreements as may be required from such Co-Borrower from time to
time pursuant to the terms of the Facility Documents.
Section 13.17. Joint and Several Obligations. Each of
the Co-Borrowers acknowledges and agrees that the obligations and
liabilities of the Co-Borrowers for the payment and performance
of the Obligations shall be joint and several.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
-61-
67
CO-BORROWERS:
OLSTEN CORPORATION f/k/a THE OLSTEN CORPORATION
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICE CORP. f/k/a OLSTEN HOLDING COMPANY
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN STAFFING SERVICES, INC. f/k/a FLYING NURSES, INC.
OLSTEN OF WESTCHESTER, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
IMI SYSTEMS INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICARE, INC.
AMERICARE MEDICAL EQUIPMENT, INC.
AMERICARE PHARMACEUTICALS, INC.
BROAD PINES DEVELOPMENT CORP.
DIRKA CO.
OLSTEN FLYING NURSES CORP.
XXXXXX XXXXXXXX CORP.
QUALITY MANAGED CARE, INC.
-62-
68
By:_____________________________________
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President for all of the above Co-Borrowers
Address for Notices: 000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: General Counsel
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
BANK:
FLEET BANK
By:_______________________________________
Name: Xxxxxx X. Xxxx
Title: Vice President
Lending Office and Address for Notices:
Fleet Bank
000 Xxxxx Xxxxxx Xxxx
Corporate Banking Division, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxx
Telephone No.: (000) 000-0000
Telefax No.: (000) 000-0000
-63-
69
Exhibit A
---------
REVOLVING CREDIT NOTE
$___________ December 22, 1995
The undersigned (the "Co-Borrowers"), for value received,
hereby jointly and severally promise to pay to the order of Fleet
Bank (the "Bank"), at the principal office of Fleet Bank at 000
Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000-0000 (the "Bank"), the
principal sum of ____________________________________ ($_________)
Dollars, or, if less, the amount loaned as Revolving Credit Loans
by the Bank to the Co-Borrowers pursuant to the Agreement referred
to below, in lawful money of the United States of America and in
immediately available funds, on the date(s) and in the manner
provided in said Agreement. The Co-Borrowers also jointly and
severally promise to pay interest on the unpaid principal balance
hereof, for the period such balance is outstanding, at said
principal office for the account of said principal office, in like
money, at the rates of interest as provided in the Agreement
described below, on the date(s) and in the manner provided in said
Agreement.
The date and amount of each Revolving Credit Loan made by
the Bank to the Co-Borrowers under the Agreement referred below,
maturity date and each payment of principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of
this Note (or, at the discretion of the Bank, at any other time),
endorsed by the Bank on the schedule attached hereto or any
continuation thereof.
This is the Revolving Credit Note referred to in that
certain Agreement (as amended, modified or restated from time to
time the "Agreement") dated as of December 22, 1995 among the Co-
Borrowers and the Bank and evidences the Revolving Credit Loans
made by the Bank thereunder. All terms not defined herein shall
have the meanings given to them in the Agreement.
The Agreement provides for the acceleration of the
maturity of principal upon the occurrence of certain Events of
Default and for prepayments on the terms and conditions specified
therein.
The Co-Borrowers waive presentment, notice of dishonor,
protest and any other notice or formality with respect to this
Note.
70
This Note shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
OLSTEN CORPORATION f/k/a THE OLSTEN CORPORATION
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICE CORP. f/k/a OLSTEN HOLDING COMPANY
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN STAFFING SERVICES, INC. f/k/a FLYING NURSES, INC.
OLSTEN OF WESTCHESTER, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
IMI SYSTEMS INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICARE, INC.
AMERICARE MEDICAL EQUIPMENT, INC.
AMERICARE PHARMACEUTICALS, INC.
BROAD PINES DEVELOPMENT CORP.
DIRKA CO.
OLSTEN FLYING NURSES CORP.
XXXXXX XXXXXXXX CORP.
QUALITY MANAGED CARE, INC.
71
By______________________________________________
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
72
Exhibit A-1
-----------
FORM OF TERM NOTE
$___________ December 15, 1996
[Insert names of Co-Borrowers] (the "Co-Borrowers"), for
value received, hereby jointly and severally promise to pay to the
order of Fleet Bank (the "Bank"), at the principal office of Fleet
Bank at __________________________________________________ (the
"Bank"), the principal sum of ____________________________________
($_________) Dollars, in lawful money of the United States of
America and in immediately available funds, in the principal
amounts, on the dates and in the manner provided in the Agreement
described below. The Co-Borrowers also jointly and severally
promise to pay interest on the unpaid principal balance hereof, for
the period such balance is outstanding, at said principal office
for the account of said principal office, in like money, at the
rates of interest as provided in the Agreement described below, on
the date(s) and in the manner provided in said Agreement.
The date and amount of each payment or prepayment of
principal hereof, the date of each interest rate conversion or
continuation pursuant to Section 3.04 of the Agreement described
below and the principal amount subject thereto and the Interest
Period and interest rate applicable thereto shall be recorded by
the Bank on its books and, prior to any transfer of this Note (or,
at the discretion of the Bank, at any other time), endorsed by the
Bank on the schedule attached hereto or any continuation thereof.
This is the Term Note referred to in that certain
Agreement (as amended, modified or restated from time to time the
"Agreement") dated as of ______________, 1995 among the
Co-Borrowers and the Bank and evidences the Term Loan made by the
Bank thereunder. All terms not defined herein shall have the
meanings given to them in the Agreement.
The Agreement provides for the acceleration of the
maturity of principal upon the occurrence of certain Events of
Default and for prepayments on the terms and conditions specified
therein.
The Co-Borrowers waive presentment, notice of dishonor,
protest and any other notice or formality with respect to this
Note.
73
This Note shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
[INSERT NAMES OF CO-BORROWERS]
74
Exhibit C
---------
Form of
Borrowing Base Certificate
--------------------------
Reference is made to that certain Credit Agreement dated
as of ___________, 199_ (the "Agreement") by and between The Olsten
Corporation and certain of its subsidiaries signatory thereto (the
"Co-Borrowers") and Fleet Bank (the "Bank"). All capitalized terms
used herein and not defined herein shall have the respective
meanings given to them in the Agreement.
The undersigned hereby certifies to the Bank that as of
__________, 199_ the following information was true, correct and
accurate:
Column 1 Column 2 Column 3
Total Percent Col. 1 x
Col. 2
A. Available Borrowing Base
Eligible Receivables $_____ 85% $
(other than Eligible ============
Receivables from Medicare
or Medicaid) (no more than
63 days past invoice date)
Eligible Receivables $______ 70% $
(other than Eligible Receivables ============
from Medicare or Medicaid)
(at least 64 days but no more
than 91 days past invoice date)
Eligible Receivables which $______ 50% $
are Medicare and Medicaid ============
Receivables (not more than
91 days past their invoice date)
Available Borrowing Base $
============
B. Under the Agreement
1. Commitment $
============
75
2. Outstanding Principal $
Amount of Note ============
3. Remaining Commitment $
(Item B1 minus Item B2)* ============
C. Under the "Credit Agreement"
1. Revolving Credit Commitment $125,000,000
===========
2. Total Aggregate Outstanding $
Principal Amount of Notes ===========
3. Remaining Revolving Credit $
Commitment (Item C1 minus ===========
Item C2)
4. Letter of Credit Commitment $ 75,000,000
===========
5. Aggregate LC Outstandings $
===========
6. Remaining Letter of Credit $
Commitment (Item C4 minus ===========
Item C5)*
D. Remaining Availability (Item A $
minus the aggregate of Items B2, ===========
C2 and C5)*
E. Mandatory Prepayment, if any (the $
amount necessary to cause Item B2 ===========
to be equal to or less than Item
B1 and [, without duplication,]
the amount necessary to cause the
aggregate of Items B3, C3 and C6
to be equal to or less than
Item A)
IN WITNESS WHEREOF, the undersigned has executed this
certificate this ____ day of ________, 19__.
OLSTEN CORPORATION
By:______________________________
Name:
Title: Chief Financial Officer
*Negative nubers are to be entered as "$0".
-2-
76
REVOLVING CREDIT NOTE
$___________ December 22, 1995
The undersigned (the "Co-Borrowers"), for value received,
hereby jointly and severally promise to pay to the order of Fleet
Bank (the "Bank"), at the principal office of Fleet Bank at 000
Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000-0000 (the "Bank"), the
principal sum of ____________________________________ ($_________)
Dollars, or, if less, the amount loaned as Revolving Credit Loans
by the Bank to the Co-Borrowers pursuant to the Agreement referred
to below, in lawful money of the United States of America and in
immediately available funds, on the date(s) and in the manner
provided in said Agreement. The Co-Borrowers also jointly and
severally promise to pay interest on the unpaid principal balance
hereof, for the period such balance is outstanding, at said
principal office for the account of said principal office, in like
money, at the rates of interest as provided in the Agreement
described below, on the date(s) and in the manner provided in said
Agreement.
The date and amount of each Revolving Credit Loan made by
the Bank to the Co-Borrowers under the Agreement referred below,
maturity date and each payment of principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of
this Note (or, at the discretion of the Bank, at any other time),
endorsed by the Bank on the schedule attached hereto or any
continuation thereof.
This is the Revolving Credit Note referred to in that
certain Agreement (as amended, modified or restated from time to
time the "Agreement") dated as of December 22, 1995 among the Co-
Borrowers and the Bank and evidences the Revolving Credit Loans
made by the Bank thereunder. All terms not defined herein shall
have the meanings given to them in the Agreement.
The Agreement provides for the acceleration of the
maturity of principal upon the occurrence of certain Events of
Default and for prepayments on the terms and conditions specified
therein.
The Co-Borrowers waive presentment, notice of dishonor,
protest and any other notice or formality with respect to this
Note.
77
This Note shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
OLSTEN CORPORATION f/k/a THE OLSTEN CORPORATION
XXXXXX XXXXXXXX QUALITYCARE, INC.
OLSTEN CERTIFIED HEALTHCARE CORP.
OLSTEN SERVICE CORP. f/k/a OLSTEN HOLDING COMPANY
OLSTEN SERVICES OF NEW YORK, INC.
OLSTEN STAFFING SERVICES, INC. f/k/a FLYING NURSES, INC.
OLSTEN OF WESTCHESTER, INC.
OLS HOLDINGS, INC.
OLSTEN HOME HEALTHCARE, INC.
NEW YORK HEALTHCARE SERVICES, INC.
ALL MEDICARE HOME HEALTH AGENCY, INC.
AMERICAN HOME HEALTH CARE, INC.
GOLD COAST SOUTH HOME HEALTH AGENCY, INC.
GULF COAST HOME HEALTH SERVICES CENTRAL, INC.
GULF COAST HOME HEALTH SERVICES EAST, INC.
GULF COAST HOME HEALTH SERVICES NORTH, INC.
GULF COAST HOME HEALTH SERVICES OF FLORIDA, INC.
GULF COAST HOME HEALTH SERVICES SOUTHWEST, INC.
GULF COAST HOME HEALTH SERVICES WEST, INC.
HHC MANAGEMENT, INC.
IMI SYSTEMS INC.
XXXXXXXX HOME HEALTH CARE, INC.
XXXXXXXX QUALITY CARE INFUSION THERAPY SERVICES, INC.
XXXXXXXX SERVICES, INC.
QC-MEDI CALIFORNIA, INC.
QC MEDI-ILLINOIS, INC.
QC MEDI-LOUISIANA, INC.
QC-MEDI MASS, INC.
QC-MEDI OF MICHIGAN, INC.
QC-MEDI NEW YORK, INC.
QC MEDI-TENN, INC.
QUALITY CARE-USA, INC.
QUALITY CARE, INC.
QUALITY CARE HEALTH SERVICES, INC.
QUALITY CARE HOME HEALTH, INC.
QUALITY CARE OF CONNECTICUT, INC.
QUALITY CARE SERVICE CORP.
RAINIER HOME HEALTH CARE, INC.
SUPERIOR CARE, INC.
UHH HOME SERVICES CORPORATION
AMERICARE, INC.
AMERICARE MEDICAL EQUIPMENT, INC.
AMERICARE PHARMACEUTICALS, INC.
BROAD PINES DEVELOPMENT CORP.
DIRKA CO.
OLSTEN FLYING NURSES CORP.
XXXXXX XXXXXXXX CORP.
QUALITY MANAGED CARE, INC.
78
By______________________________________________
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
