Exhibit 10.8
$125,000,000
REVOLVING CREDIT AGREEMENT
between
CACI International Inc,
as Borrower
and
The Lenders From Time
To Time a Party Hereto,
as Lenders
with
NationsBank, N.A.,
as Agent
Dated as of June 19, 1998
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Definitions
Section 1.2 Accounting Terms
Section 1.3 Time Period Computations
ARTICLE II GENERAL PROVISIONS OF REVOLVING CREDIT FACILITY
Section 2.1 The Revolving Loans
Section 2.2 Revolving Loan Borrowing Procedures
Section 2.3 Standby Letters of Credit
Section 2.4 Swing Line Loan Subfacility
ARTICLE III INTEREST, FEES AND REPAYMENT
Section 3.1 Interest on the Revolving Loans
Section 3.2 Regulatory Changes
Section 3.3 Interest after Due Date
Section 3.4 Payment and Computations
Section 3.5 Payment at Maturity
Section 3.6 Prepayments; Certain Early Repayments
Section 3.7 Unused Portion Fee, Administrative Fee, L/C Fee
and Fronting Fee
Section 3.8 LIBOR Conversion
Section 3.9 Breakage, etc.
ARTICLE IV CONDITIONS PRECEDENT
Section 4.1 Conditions Precedent to Effective Date
Section 4.2 Further Conditions Precedent to Loans and Standby Letters
of Credit
ARTICLE V REPRESENTATIONS
Section 5.1 Existence, Power and Authority
Section 5.2 Authorization; Enforceable Obligations
Section 5.3 No Legal Bar
Section 5.4 Consents
Section 5.5 Litigation
Section 5.6 No Default
Section 5.7 Financial Condition
Section 5.8 Use of Proceeds
Section 5.9 Borrower Not an Investment Company
Section 5.10 Taxes
Section 5.11 Environmental Matters
Section 5.12 Subsidiaries
Section 5.13 Year 2000 Compliance
ARTICLE VI COVENANTS
Section 6.1 Affirmative Covenants
Section 6.2 Negative Covenants
ARTICLE VII EVENTS OF DEFAULT
Section 7.1 Events of Default
ARTICLE VIII THE AGENT
Section 8.1 Appointment of Agent
Section 8.2 Nature of Duties; Non-Reliance on Agent and other Lenders
Section 8.3 Rights, Exculpation, Etc.
Section 8.4 Reliance; Notice of Default
Section 8.5 Indemnification
Section 8.6 The Agent Individually
Section 8.7 Successor Agent; Resignation of Agent
Section 8.8 Certain Matters Requiring the Consent of all Lenders
Section 8.9 Defaulting Lenders Vote Not Counted
ARTICLE IX MISCELLANEOUS
Section 9.1 Amendments and Waivers; Cumulative Remedies
Section 9.2 Survival of Representations and Warranties
Section 9.3 Supervening Illegality
Section 9.4 No Reduction in Payments
Section 9.5 Stamp Taxes
Section 9.6 Notices
Section 9.7 Governing Law
Section 9.8 Successors and Assigns; Participations; Assignments
Section 9.9 Affirmative Rate of Interest Permitted by Law
Section 9.10 Costs and Expenses; Indemnification
Section 9.11 Set-Off; Suspension of Payment and Performance
Section 9.12 Judicial Proceedings; Waiver of Jury Trial
Section 9.13 Integration
Section 9.14 Further Acts and Assurances
Section 9.15 No Fiduciary Relationship
Section 9.16 Severability
Section 9.17 Counterparts
Section 9.18 Headings, Bold Type and Table of Contents
Schedule I Lender Commitments
Schedule 5.5 Litigation
Schedule 5.6 Defaults
Schedule 5.12 Foreign Subsidiaries
Exhibit A Notarial Deed
Exhibit B Pledge Agreement
Exhibit C Form of Revolving Note
Exhibit D Subsidiary Guarantee
Exhibit E Form of Swing Line Note
Exhibit F Form of Backlog Report
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT, dated as of June 19, 1998 as amended,
modified, or otherwise supplemented from time to time (this "Agreement"), is
between (i) CACI INTERNATIONAL INC, a Delaware corporation (the "Borrower"),
(ii) THE LENDERS FROM TIME TO TIME A PARTY TO THIS AGREEMENT (each, a"Lender"
and, collectively, the "Lenders") and (iii) NATIONSBANK, N.A., a national
banking association and in its separate capacity as agent for the Lenders
hereunder (in such capacity, the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested the Lenders to make available to the
Borrower a revolving line of credit for loans and letters of credit up to an
aggregate of $125,000,000 for the purpose of financing stock or asset
acquisitions and the general working capital requirements of the Borrower and
its subsidiaries (the "Permitted Uses"), in each case upon the terms and
conditions set forth herein;
WHEREAS, as collateral security for the obligations of the Borrower under
this Agreement, and to induce the Lenders and the Agent to enter into this
Agreement, (i) the Borrower and the Agent are, contemporaneously with the
execution and delivery hereof, entering into the Notarial Deed, pursuant to
which the Borrower has pledged to the Agent a first priority security interest
in the CACI Limited Shares and (ii) CACI N.V. and the Agent are,
contemporaneously with the execution and delivery hereof, entering into, the
Pledge Agreement, pursuant to which CACI N.V. has pledged to the Agent the
CACI Limited Shares;
WHEREAS, to induce the Lenders and the Agent to enter into this
Agreement, the Agent, on behalf of itself and the Lenders, and the Guarantors
are entering into the Subsidiary Guarantee;
WHEREAS, the Lenders are willing to make the loans and issue the letters
of credit to the Borrower, and the Agent is willing to act as "Agent", upon
the terms and subject to the conditions and provisions set forth herein; and
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, the Borrower, the Lenders and the Agent hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms shall have the meanings
indicated (such meanings to be, when appropriate, equally applicable to both
the singular and plural forms of the terms defined):
"ABR" means, for any day, the greater of (x) the Bank Prime Rate as in
effect on such day and (y) the Federal Funds Rate as in effect on such day
plus one-half of 1%.
"ABR Period" means any 30-day period in respect of which interest accrues
on the Revolving Loans bearing interest at the ABR.
"Accumulated Funding Deficiency" has the meaning ascribed to that term in
ERISA Section 302.
"Acquisition Consideration" has the meaning specified in Section
6.2(e)(i) of this Agreement.
"Administrative Fee " has the meaning specified in Section 3.7(b) of this
Agreement.
"Administrative Fee Letter" shall have the meaning specified in Section
3.7(b) hereof, and shall include any amendment, modification or supplement
thereof.
"Affected Advance" has the meaning specified in Section 3.8(d) of this
Agreement.
"Affiliate" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" or "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to vote 10% or more of the securities having voting power for the
election of directors of such Person or otherwise to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agent" has the meaning specified in the preamble of this Agreement and
shall include any successor Agent appointed pursuant to Section 8.7 hereof.
"Agent Lending Office" or "Lending Office of the Agent" means the Agent's
offices at NationsBank, N.A., Corporate Credit Services, care of ▇▇▇▇▇▇ ▇▇▇▇▇,
NC1-001-15-04, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
or such other office in the United States of America of Agent as it may from
time to time designate to the Borrower or the Lenders by written notice.
"Agreement" shall have the meaning specified in the preamble hereof.
"Applicable L/C Margin" means, for any period, in the event the Funded
Debt to EBITDA ratio calculated pursuant to Section 6.1(e) hereof is (a) less
than or equal to 1.00 to 1.00, then 0.375%, (b) greater than 1.00 to 1.00 but
less than or equal to 1.50 to 1.00, then 0.50%, (c) greater than 1.50 to 1.00
but less than 2.00 to 1.00, then 0.625%, (d) greater than 2.00 to 1.00 but
less than 2.50 to 1.00, then 0.75%, and (e) greater than 2.50 to 1.00, then
1.0%.
"Applicable LIBOR Rate" means, for any period, in the event the Funded
Debt to EBITDA ratio calculated pursuant to Section 6.1(e) hereof is (a) less
than or equal to 1.00 to 1.00, LIBOR plus 0.375%, (b) greater than 1.00 to
1.00 but less than or equal to 1.50 to 1.00, LIBOR plus 0.50%, (c) greater
than 1.50 to 1.00 but less than 2.00 to 1.00, LIBOR plus 0.625%, (d) greater
than 2.00 to 1.00 but less than 2.50 to 1.00, LIBOR plus 0.75%, and (e)
greater than 2.50 to 1.00, LIBOR plus 1.0%.
"Applicable Swing Line Rate" means, for any period, in the event the
Funded Debt to EBITDA ratio calculated pursuant to Section 6.1(e) hereof is
(a) less than or equal to 1.00 to 1.00, LIBOR (based on a LIBOR Period of 30
days) plus 0.55%, (b) greater than 1.00 to 1.00 but less than or equal to 1.50
to 1.00, LIBOR (based on a LIBOR Period of 30 days) plus 0.65%, (c) greater
than 1.50 to 1.00 but less than or equal to 2.00 to 1.00, LIBOR (based on a
LIBOR Period of 30 days) plus 0.75%, (d) greater than 2.00 to 1.00 but less
than or equal to 2.50 to 1.00, LIBOR (based on a LIBOR Period of 30 days) plus
0.85%, and (e) greater than 2.50 to 1.00, LIBOR (based on a LIBOR Period of 30
days) plus 1.05%.
"Authorized Officer" means any of the Chief Executive Officer, Chief
Financial Officer or Treasurer of any Person which is a corporation,
partnership, or other business organization.
"Bank Prime Rate" means, for any period, a fluctuating interest rate per
annum equal to the rate of interest publicly announced by the Agent as its
prime rate in effect from time to time (which rate may not be the lowest rate
of interest charged by the Agent to commercial borrowers).
"Bankruptcy Code" shall mean Title 11 of the United States Code or any
similar or successor federal law for the relief of debtors, as the same may be
amended from time to time.
"Benefit Plan" means any employee benefit plan (including a Multiemployer
Benefit Plan), the funding requirements of which (under ERISA Section 302 or
Section 412 of the Code) are, or at any time within six years immediately
preceding the time in question were, in whole or in part, the responsibility
of the Borrower or an ERISA Affiliate.
"Borrower" has the meaning specified in the preamble of this Agreement.
"Borrower Account" means the bank account of the Borrower maintained with
the Agent for general purposes and assigned the account number designated by
the Agent in writing to the Borrower.
"Borrowing Notice" has the meaning specified in Section 2.2(a) of this
Agreement.
"Breakage Period" has the meaning specified in Section 3.9 of this
Agreement.
"Business Day" means any day on which commercial banks are open for
business (and not required or authorized by law to close) in Fairfax County,
Virginia, and Charlotte, North Carolina.
"CACI Limited" shall mean CACI Limited, a United Kingdom corporation and,
except as otherwise permitted by the proviso contained in Section 6.1(q)
hereof, an indirect, wholly-owned subsidiary of the Borrower.
"CACI Limited Shares" means the issued and outstanding shares of capital
stock of CACI Limited pledged by CACI N.V. to the Agent under the Pledge
Agreement.
"CACI N.V." shall mean CACI N.V., a corporation organized under the laws
of The Netherlands and, except as otherwise permitted by the proviso contained
in Section 6.1(q) hereof, an indirect, wholly-owned subsidiary of the
Borrower.
"CACI N.V. Shares" means the issued and outstanding shares of capital
stock of CACI N.V. pledged by the Borrower to the Agent under the Notarial
Deed.
"Capital Expenditures" shall mean all expenditures classified as capital
expenditures in accordance with GAAP.
"Capital Lease" of any Person shall mean any lease of any property
(whether real, personal or mixed) by such Person (as lessee or guarantor or
other surety) which would, in accordance with GAAP, be required to be
classified and accounted for as a capital lease on a balance sheet of such
Person.
"Cash Equivalents" shall mean securities or other instruments of the type
described in (A) clauses (i) and (ii) of the definition of Permitted
Investment provided such obligations have a maturity of not more than twelve
(12) months from the date purchased, (B) clause (iii) of the definition of
Permitted Investment provided such instruments have a maturity of not more
than 270 days from the date purchased, and (C) clause (v) of the definition of
Permitted Investment provided such commercial paper has a maturity of not
greater than six (6) months from the date purchased.
"Cash Flow" shall mean, for any period of determination, the sum of a
Person's earnings before interest, taxes, depreciation, amortization, lease
and rental expenses less Capital Expenditures, as determined in accordance
with GAAP.
"Change in Control" means one or more of the following events:
(a) if any Person (including a person as defined in Section
3(a)(9), Section 13(d) or Section 14(d) of the Exchange Act) is or becomes the
owner or beneficial owner, directly or indirectly, of securities of the
Borrower representing fifty percent (50%) or more of the combined voting power
of the Borrower's then outstanding securities (the term "beneficial owner" as
used herein shall include but not be limited to any person with the attributes
or interests described in Rule 13d-3 (as now in effect or as amended)
promulgated under the Exchange Act); or
(b) (i) the shareholders of the Borrower approve one or more
mergers, consolidations or combinations of the Borrower with any other
corporations or entities which, if consummated prior to the Maturity Date,
would result in (A) the voting securities of the Borrower outstanding the day
following the Effective Date (together with any voting securities issued by
the Borrower permitted under Section 6.2(c) herein) representing less than 50%
of the combined voting power of the voting securities of the Borrower or such
surviving entity immediately after consummation of any such merger,
consolidation or combination, or (B) after giving effect to such merger,
consolidation or combination, a change in the person holding the Office of
Chief Executive Officer, President, Chief Operating Officer or Chief Financial
Officer of the Borrower relative to the person holding such respective office
immediately prior to giving effect to such merger, consolidation or
combination, or (ii) the shareholders of the Borrower approve a plan of
liquidation of the Borrower or an agreement for the sale, disposition or
transfer by the Borrower of all or substantially all the assets of the
Borrower and its Consolidated Subsidiaries.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor Federal statute.
"Commitment" shall mean, with respect to each Lender's commitment to make
Revolving Loans and to issue (or participate in the issuance of) Standby
Letters of Credit, the aggregate Dollar amount set forth on Schedule I hereto
opposite such Lender's name under the heading "Commitment" or assigned to it
in accordance with Section 9.8(c), as such amount may be reduced or otherwise
adjusted from time to time in accordance with the provisions of this
Agreement.
"Consolidated Cash Flow" means, as computed at any time and from time to
time, the sum of the Borrower's and its Subsidiaries' earnings before
interest, taxes, depreciation, amortization, lease and rental expenses less
Capital Expenditures, as determined in accordance with GAAP.
"Consolidated Fixed Charges" means, as computed at any time and from time
to time, the sum of the Borrower's and its Subsidiaries' cash interest paid,
lease and rental expenses, dividends paid, declared or accumulated on any
class of capital stock and payments of principal due (during the period as to
which such computation relates) under any Indebtedness, as determined in
accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the consolidated
net income of the Borrower and its Subsidiaries for any period, as determined
in accordance with GAAP.
"Consolidated Net Worth" means, as computed at any time and from time to
time, the excess of Consolidated Total Assets over Consolidated Total
Liabilities.
"Consolidated Subsidiary" means with respect to any Person, at any time,
any Subsidiary or other Person the accounts of which would be consolidated
with those of such first Person in its consolidated financial statements as of
such time.
"Consolidated Total Assets" means all assets of the Borrower and its
Subsidiaries, computed at any time and from time to time on a consolidated
basis, which would be classified, in accordance with GAAP, as total assets of
a corporation conducting a business the same as, or similar in nature to, the
business conducted by the Borrower and its Subsidiaries.
"Consolidated Total Liabilities" means all liabilities of the Borrower
and its Subsidiaries, computed at any time and from time to time on a
consolidated basis, which would be classified, in accordance with GAAP, as
total liabilities of a corporation conducting a business the same as, or
similar in nature to, the business conducted by the Borrower and its
Subsidiaries.
"Credit Agreement Related Claim" means any claim (whether civil, criminal
or administrative and whether sounding in tort, contract or otherwise) in any
way arising out of, related to, or connected with, this Agreement or any other
Loan Document or the relationships established hereunder or thereunder.
"Default Rate" means the rate of interest applicable under Section 3.3 of
this Agreement from time to time.
"Dollars", "U.S.$" and the sign "$" mean such coin or currency of the
United States of America as at the time shall constitute legal tender for the
payment of public and private debts.
"Domestic Subsidiary" shall mean any Subsidiary that is created under the
laws of any State of the United States of America or the District of Columbia.
"Drawing" has the meaning specified in Section 2.3(e) of this Agreement.
"EBITDA" means, as at the end of any Fiscal Quarter, all of the
Borrower's and its Subsidiaries' earnings before interest, taxes, depreciation
and amortization for such fiscal quarter and the immediately preceding three
fiscal quarters, as determined in accordance with GAAP. For the avoidance of
doubt, EBITDA shall be computed based on a rolling four quarter basis.
"Effective Date" has the meaning specified in Section 4.1 of this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any Person, including a Subsidiary or other
Affiliate, that is a member of any group of organizations within the meaning
of Code Sections 414(b), (c), (m) or (o) of which Borrower is a member.
"Event of Default" has the meaning specified in Section 7.1 of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor Federal statute.
"Facility Amount" shall mean $125,000,000.00.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward to the nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided that (x) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day and (y) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Agent on such day on such
transactions as determined by the Agent Lender.
"Fee Payment Date" means (x) in the case of the Unused Portion Fee, the
first Business Day following the end of any Fiscal Quarter (or part thereof),
and (y) in the case of the Administrative Fee and the Fronting Fee, the first
Business Day following each annual anniversary of the Effective Date.
"Fiscal Quarter" means the quarter, during any Fiscal Year, ending March
31, June 30, September 30 and December 31.
"Fiscal Year" has the meaning specified in Section 6.1(a) of this
Agreement.
"Fixed Charge Coverage Ratio" means the ratio of Consolidated Cash Flow
to Consolidated Fixed Charges.
"Foreign Subsidiary" shall mean any Subsidiary that is not created or
organized under the laws of any State of the United States of America or the
District of Columbia.
"Form 8-K" means Form 8-K of the Exchange Act.
"Form 10-K" means Form 10-K of the Exchange Act.
"Form 10-Q" means Form 10-Q of the Exchange Act.
"Fronting Fee" shall have the meaning specified in Section 2.3(b) hereof.
"Funded Debt" means, as of any date of determination, the sum of all
Indebtedness.
"Funding Date" shall mean the date on which any loan shall be made by a
Lender to the Borrower hereunder.
"GAAP" has the meaning specified in Section 1.2 of this Agreement.
"Governmental Body" means (i) the United States of America or any State
thereof or any department, agency, commission, board, bureau or
instrumentality of the United States of America or any State thereof, and (ii)
any quasi-governmental body, agency or authority (including any central bank)
exercising regulatory authority over the Lender pursuant to applicable law in
respect of the transactions contemplated by this Agreement.
"Guarantors" means those Subsidiaries who have executed the Subsidiary
Guarantee on the Effective Date, or who may thereafter become a party to the
Subsidiary Guarantee in accordance with the provisions hereof.
"Indebtedness" means all (i) indebtedness, obligations and liabilities
now existing or hereafter arising for money borrowed by the Borrower or any
Subsidiary thereof, whether or not evidenced by a note, indenture or other
agreement (including, without limitation, the Revolving Notes, the Swing Line
Note and the Subsidiary Guarantee), (ii) reimbursement or indemnification
obligations in respect of any letter of credit issued for the account of the
Borrower or any Subsidiary thereof, (iii) reimbursement or indemnification
obligations in respect of any guarantee issued by or on behalf of the Borrower
or any Subsidiary thereof, (iv) obligations of the Borrower or any Subsidiary
thereof as lessee under any Capital Lease, (v) all amounts owing by the
Borrower or any Subsidiary thereof under purchase money mortgages or other
purchase money liens or conditional sales or other title retention agreements
and (vi) all indebtedness secured by purchase money mortgages, liens, security
interests, conditional sales or other title retention agreements upon property
owned by the Borrower or any Subsidiary thereof (whether or not the Borrower
or Subsidiary has assumed or become liable for the payment of such
indebtedness).
"Indemnified Person" has the meaning specified in Section 9.10(b) of this
Agreement.
"Initial Fiscal Quarter" has the meaning specified in Section 6.1(e).
"Interest Payment Date" means (x) in the case of Revolving Loans bearing
interest at the ABR, the last Business Day of the calendar month (or part
thereof) in which interest accrues on such Revolving Loans, (y) in the case of
LIBOR Loans, the expiration of the LIBOR Period in respect of such LIBOR
Loans, and (z) in the case of any Swing Line Loans, on the last Business Day
of the Swing Line Period in respect of such Swing Line Loans.
"Interest Period" means any 30-day period in respect of which interest
accrues on the Revolving Loans bearing interest at the ABR.
"Issuing Lender" shall mean, initially, the Agent and, thereafter, such
other Lender as from time to time shall agree to act as the issuer of the
Standby Letters of Credit by notice to the Lenders, the Agent and the
Borrower.
"L/C Fee" has the meaning specified in Section 2.3(b) of this Agreement.
"L/C Fee Payment Date" means the first Business Day of the calendar month
following each Fiscal Quarter.
"Lender" or "Lenders" have the meanings specified in the preamble of this
Agreement.
"Lender Availability" shall mean, as of any date of determination and
with respect to each Lender, the amount determined by deducting (x) the amount
of such Lender's Pro Rata Share of the Total Outstanding Amount from (y) the
amount of such Lender's Pro Rata Share of the Revolving Loan Commitment.
"LIBOR" means, with respect to any LIBOR Period, (x) the per annum
interest rate (rounded upward to the nearest 1/100th of 1%) determined on the
basis of the offered rates for Dollar deposits for a term comparable to such
LIBOR Period and in an amount substantially equal to the outstanding amount of
the Revolving Loans in respect of which such determination is made which
appear on the Telerate Screen Page 3750 as of 11:00 a.m. (London time) on the
day that is two LIBOR Business Days prior to the first day of such LIBOR
Period, divided by (y) a number equal to 1.00 minus the LIBOR Reserve Rate.
"LIBOR Business Day" means any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or
such other Euro-dollar interbank market as may be selected by the Lender in
its sole discretion.
"LIBOR Conversion" has the meaning specified in Section 3.8 of this
Agreement.
"LIBOR Conversion Notice" has the meaning specified in Section 3.8 of
this Agreement.
"LIBOR Loans" means the Revolving Loans which bear interest at the
Applicable LIBOR Rate.
"LIBOR Period" means the one month, two month, three month or six month
interest period selected by the Borrower pursuant to any LIBOR Conversion
Notice.
"LIBOR Reserve Rate" means, for any day with respect to a LIBOR Loan, the
maximum rate (expressed as a decimal) at which a Lender would be required to
maintain reserves under Regulation D of the Board of Governors of the Federal
Reserve System, as amended from time to time (or any successor or similar
regulations relating to such reserve requirements), against "Eurocurrency
liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The LIBOR Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in the LIBOR Reserve Rate.
"Lien" of any Person shall mean any mortgage, deed of trust, lien,
pledge, adverse interest in property, charge, security interest or other
encumbrance in or on, or any interest or title of any vendor, lessor, Lender
or other secured party to or of such Person under any conditional sale or
other title retention agreement or Capital Lease with respect to, any property
or asset owned or held by such Person, or the signing or filing of any
security agreement with respect to any of the foregoing authorizing any other
party as the secured party thereunder to file any financing statement.
"Loan" shall mean any Revolving Loan (whether bearing interest at the ABR
or Applicable LIBOR Rate) or Swing Line Loan, and "Loans" shall mean,
collectively, all Revolving Loans (whether bearing interest at the ABR or
Applicable LIBOR Rate) and Swing Line Loans.
"Loan Documents" means this Agreement, the Revolving Notes, the Swing
Line Note, the Subsidiary Guarantee, the Notarial Deed, the Pledge Agreement
and the Administrative Fee Letter.
"Mandatory Borrowing" shall have the meaning specified in Section 2.4(e)
hereof.
"Maturity Date" means June 19, 2003.
"Multiemployer Plan" means any "multiemployer plan" as defined in ERISA
Section 4001(a)(3) to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the
preceding three plan years made or accrued an obligation to make
contributions.
"NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC" means that certain affiliate of
Agent which is a party to the Administrative Fee Letter.
"Notarial Deed" means that certain notarial deed of pledge of shares,
dated on or about the date of the initial Loan made hereunder, by and among
the Borrower, the Agent and CACI N.V., and notarized by a civil law notary
officiating in Amsterdam, pursuant to which the Borrower pledged to the Agent,
on behalf of the Lenders, the CACI N.V. Shares, substantially in the form of
Exhibit A hereto, as the same may be amended, modified or otherwise
supplemented from time to time.
"Note" means each of the Revolving Notes and the Swing Line Note.
"Obligations" shall mean all now existing or hereafter arising
indebtedness, obligations, liabilities and covenants of the Borrower to the
Lenders or the Agent, their respective Affiliates or permitted successors and
assigns or any other Indemnified Person, in each case arising under or
evidenced by this Agreement or any other Loan Document, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or to
become due.
"Optional Prepayment" means the optional prepayment of Revolving Loans
pursuant to Section 3.6(b) hereof or the optional prepayment of Swing Line
Loans pursuant to Section 2.4(f) hereof, as the context shall require.
"Permitted Investment" means each of (i) direct obligations of the United
States of America, and agencies thereof; (ii) obligations fully guaranteed by
the United States of America; (iii) certificates of deposit issued by, or
bankers' acceptance of, or time deposits with, any bank, trust company or
national banking association incorporated or doing business under the laws of
the United States of America or one of the states thereof having combined
capital and surplus and retained earnings of at least $100,000,000; (iv)
bearer note deposits with, or certificates of deposit issued by, or promissory
notes of, any subsidiary incorporated under the laws of Canada (or any
province thereof) of any bank, trust company or national banking association
described in clause (iii) or (vi); (v) commercial paper of companies having a
rating assigned to such commercial paper by Standard & Poor's Corporation or
▇▇▇▇▇'▇ Investors Service, Inc. (or, if neither such organization shall rate
such commercial paper at any time, by any nationally recognized rating
organization in the United States of America) of A-1 or P-1, respectively;
(vi) U.S. dollar-denominated time deposits with any Canadian bank having a
combined capital and surplus and retained earnings of at least $100,000,000,
having a rating of A, its equivalent or better by ▇▇▇▇▇'▇ Investors Service,
Inc. or Standard & Poor's Corporation (or, if neither such organization shall
rate such institution at any time, by any nationally recognized rating
organization in the United States of America); (vii) Canadian Treasury Bills
fully hedged to U.S. dollars; (viii) bonds or other debt instruments of any
company, if such bonds or other debt instruments, at the time of their
purchase, are rated AAA or Aaa, respectively, by Standard & Poor's Corporation
or ▇▇▇▇▇'▇ Investors Service, Inc. (or, if neither such organization shall
rate such obligations at such time, by any nationally recognized rating
organization in the United States of America); (ix) if such investment is to
be made by the Borrower or any Subsidiary thereof not organized or created
under the laws of any State of the United States of America or the District of
Columbia or any territory of the United States of America, each of (A) direct
obligations of the countries of France, The Federal Republic of Germany, the
United Kingdom, The Netherlands or Switzerland (each, an "E.C. State") and
agencies thereof, (B) obligations fully guaranteed by any E.C. State; (C)
certificates of deposit issued by, or bankers' acceptance of, or time deposits
with, any bank, trust company or national banking association incorporated or
doing business under the laws of any E.C. State having combined capital and
surplus retained earnings of the local currency counter value of at least
$100,000,000 having a rating of A, its equivalent or higher by Standard &
Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. (or, if neither such
organization shall rate such institution at any time, by any nationally
recognized rating organization in the relevant E.C. State); (D) commercial
paper of companies having a rating assigned to such commercial paper by
Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. (or, if
neither such organization shall rate such commercial paper at any time, by any
nationally recognized rating organization in the relevant E.C. State) equal to
A-1 or P-1, respectively; (E) bonds or other debt instruments of any company,
if such bonds or other debt instruments, at the time of their purchase, are
rated A-1 or P-1, respectively, by Standard & Poor's Corporation or ▇▇▇▇▇'▇
Investors Service, Inc., (or, if neither such organization shall rate such
obligations at such time, by any nationally recognized rating organization in
the relevant E.C. State); or (x) any investment provided the aggregate amount
of all such investments shall not exceed $4,000,000.00.
"Permitted Uses" shall have the meaning specified in the first Whereas
clause hereof.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or
agency thereof.
"Pledge Agreement" means that certain Pledge Agreement, dated as of June
19, 1998, between the Agent and CACI N.V., substantially in the form of
Exhibit B hereto, as the same may be amended, modified or supplemented from
time to time.
"Pledgor" shall mean each of the Borrower and CACI N.V.
"Potential Change In Control" means one or more of the following events:
(a) the Borrower enters into an agreement, the consummation of which
would result in the occurrence of a Change In Control; or
(b) the Board of Directors of the Borrower adopts a resolution, the
effect of which would result in the occurrence of a Change in Control.
"Potential Event of Default" means an event, condition or circumstance
which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Prepayment Date" has the meaning specified in the first sentence of
Section 9.3 of this Agreement.
"Prohibited Transaction" shall have the meaning ascribed to such term in
ERISA.
"Pro Rata Share" shall mean, as of any date of determination and with
respect to any Lender, a fraction (expressed as a percentage), the numerator
of which shall be the amount of such Lender's Commitment and the denominator
of which shall be the aggregate amount of Commitments of all Lenders, as such
Commitments may be reduced or otherwise adjusted from time to time in
accordance with the provisions of this Agreement; provided, however, that if
all of the Commitments are terminated or reduced to zero hereunder, the Pro
Rata Share shall mean, as of any date of determination and with respect to any
Lender, a fraction (expressed as a percentage), the numerator of which shall
be the sum of the aggregate amount of such Lender's Revolving Loans then
outstanding plus the aggregate amount of such Lender's participation in any
outstanding Standby Letter of Credit and the denominator of which shall be the
sum of the aggregate amount of all Revolving Loans then outstanding plus all
Standby Letters of Credit then outstanding.
"Regulatory Change" means any applicable law, interpretation, directive,
request or guideline (whether or not having the force of law), or any change
therein or in the administration or enforcement thereof, that becomes
effective or is implemented or first required or expected to be complied with
after the date hereof, whether the same is (i) the result of an enactment by a
government or any agency or political subdivision thereof, a determination of
a court or regulatory authority, or otherwise or (ii) enacted, adopted, issued
or proposed before or after the date hereof, including any such that imposes,
increases or modifies any tax, reserve requirement, insurance charge, special
deposit requirement, assessment or capital adequacy requirement, but excluding
any such that imposes, increases or modifies any income or franchise tax
imposed upon any Lender by any jurisdiction (or any political subdivision
thereof) in which any Lender or any office is located.
"Reportable Event" means any event or condition described in ERISA
Section 4043(b), other than an event or condition with respect to which the
30-day notice requirement has been waived.
"Required Lenders" shall mean, except as otherwise provided in Section
8.9(i) hereof, as of any date of determination, such Lenders whose Pro Rata
Shares of the Revolving Loan Commitment, in the aggregate, are greater than
sixty-six and two-thirds percent (66 2/3%); provided, however, that for so
long as only two financial institutions constitute Lenders hereunder (it being
understood that, solely for the purposes of determining the number of
financial institutions constituting Lenders under this proviso, each financial
institution, together with its Affiliates, shall constitute a single Lender),
Required Lenders shall mean, except as otherwise provided in Section 8.9(i)
hereof, as of any date of determination, such Lenders whose Pro Rata Shares of
the Revolving Loan Commitment, in the aggregate, constitute one hundred
percent (100%).
"Revolving Loan" has the meaning specified in Section 2.1 of this
Agreement.
"Revolving Loan Commitment" shall mean the commitment of the Lenders to
make Revolving Loans and issue (or participate in the issuance of) Standby
Letters of Credit in an aggregate amount of up to the Facility Amount, as such
amount may be reduced or otherwise adjusted from time to time in accordance
with the provisions of this Agreement.
"Revolving Note" means any promissory note issued to a Lender by the
Borrower pursuant to this Agreement, substantially in the form (appropriately
completed) of Exhibit C to this Agreement, as the same may be amended,
modified or supplemented from time to time, and any other promissory note
issued in exchange or substitution thereof, and "Revolving Notes" means,
collectively, all such promissory notes so issued.
"SEC" means the Securities and Exchange Commission or any similar Federal
agency.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor Federal statute.
"Stamp Taxes" has the meaning specified in Section 9.5 of this Agreement.
"Standby Letter of Credit" has the meaning specified in Section 2.3 of
this Agreement.
"Subsidiary" shall mean any corporation, limited liability company,
partnership, trust or other entity a majority of the capital stock (or
equivalent ownership or controlling interest) of which at the time
outstanding, having ordinary voting power for the election of directors (or
equivalent controlling interest or person), is owned by Borrower directly or
indirectly, and "Subsidiaries" means, collectively, all such entities.
"Subsidiary Guarantee" means the Subsidiary Guarantee, dated as of June
19, 1998, substantially in the form of Exhibit D hereto, between the
Guarantors and the Agent, as the same may be amended, modified or supplemented
from time to time.
"Swing Line Lender" shall have the meaning specified in Section 2.4(a)
hereof.
"Swing Line Borrowing Notice" shall have the meaning specified in Section
2.4(c) hereof.
"Swing Line Loan" shall have the meaning specified in Section 2.4(a)
hereof.
"Swing Line Note" means the promissory note issued by the Borrower to
NationsBank, N.A. pursuant to this Agreement in respect of the Swing Line
Loans, substantially in the form (appropriately completed) of Exhibit E to
this Agreement, as the same may be amended, modified or supplemented from time
to time, and any other promissory note issued in exchange or substitution
therefor.
"Swing Line Period" shall have the meaning specified in Section 2.4(c)
hereof.
"Swing Line Subfacility" shall have the meaning specified in Section
2.4(a) hereof.
"Target" has the meaning specified in Section 6.2(e) of this Agreement.
"Termination Event" means, with respect to any Benefit Plan, (i) any
Reportable Event with respect to such Benefit Plan, (ii) the termination of
such Benefit Plan, or the filing of a notice of intent to terminate such
Benefit Plan, or the treatment of any amendment to such Benefit Plan as a
termination under ERISA Section 4041(c), (iii) the institution of proceedings
to terminate such Benefit Plan under ERISA Section 4042 or (iv) the
appointment of a trustee to administer such Benefit Plan under ERISA Section
4042.
"Total Outstanding Amount" has the meaning specified in Section 2.1(a) of
this Agreement.
"U.K. Debt" has the meaning specified in Section 4.1(iii) of this
Agreement.
"Unused Portion Fee" has the meaning specified in Section 3.7(a) of this
Agreement.
"Year 2000 Compliant" has the meaning specified in Section 5.13 of this
Agreement.
"Year 2000 Problem" has the meaning specified in Section 5.13 of this
Agreement.
Section 1.2 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles ("GAAP") consistently applied in the United States.
Section 1.3 TIME PERIOD COMPUTATIONS. In the computation of a period of time
specified in this Agreement from a specified date to a subsequent date, the
word "from" means "from and including" and the words "to" and "until" mean "to
but excluding".
ARTICLE II
GENERAL PROVISIONS OF REVOLVING CREDIT FACILITY
Section 2.1 THE REVOLVING LOANS.
(a) REVOLVING LOAN BORROWINGS. Subject to the terms and conditions of
this Agreement, each Lender severally and not jointly agrees to make revolving
loans (each individually, a "Revolving Loan" and, collectively, the "Revolving
Loans") to the Borrower, at any time and from time to time on and after the
Effective Date until one Business Day prior to the Maturity Date in an amount
which shall not exceed such Lender's Pro Rata Share of the Revolving Loan
Commitment; provided, however, that (i) the sum of the aggregate outstanding
amount of all Revolving Loans plus the aggregate outstanding amount of all
Swing Line Loans plus the aggregate outstanding amount of all Standby Letters
of Credit (such sum, the "Total Outstanding Amount") shall at no time exceed
the Facility Amount, and (ii) the aggregate outstanding amount of all
Revolving Loans made by each individual Lender pursuant to this Section 2.1
plus the aggregate outstanding amount of all Standby Letters of Credit made by
the Issuing Lender and deemed made by each other Lender pursuant to Section
2.3 hereof shall at no time exceed such Lender's Pro Rata Share of the
Revolving Loan Commitment. Within the limits and subject to the terms and
conditions set forth in this Agreement, the Borrower may borrow pursuant to
this Section 2.1 and Section 2.2 hereof, may prepay pursuant to Section
3.6(b), and reborrow under this Section 2.1 hereof.
(b) THE REVOLVING NOTES; MATURITY. The Revolving Loans made by each
Lender pursuant hereto shall be evidenced by a separate Revolving Note. Each
Revolving Note shall be issued on or before the Effective Date and shall bear
interest for the period from the initial Funding Date thereof until paid in
full on the unpaid principal amount thereof at the rate specified in Section
3.1 of this Agreement. Each Lender is hereby authorized to record in the
books and records of such Lender (without making any notation in such Lender's
Revolving Note or any schedule thereto) the amount and Funding Date of each
Revolving Loan made by such Lender, and the amount and date of each payment or
prepayment of any Revolving Loan. No failure to so record nor any error in so
recording shall affect the obligations of the Borrower to repay the actual
outstanding principal amount of the Revolving Loans, with interest thereon, as
provided in this Agreement. The aggregate principal amount of the Revolving
Loans shall be payable on the Maturity Date, unless sooner accelerated
pursuant to the terms of this Agreement.
Section 2.2 REVOLVING LOAN BORROWING PROCEDURES.
(a) NOTICE OF REVOLVING BORROWING. Whenever the Borrower desires to
borrow Revolving Loans under Section 2.1 hereof, the Borrower shall deliver to
the Agent irrevocable written notice (each such notice, a "Borrowing Notice"),
no later than 10:00 A.M. (Eastern time) on the Funding Date on a Revolving
Loan bearing interest at the ABR (it being understood that the Borrower may
request Revolving Loans to bear interest initially at the Applicable LIBOR
Rate provided the Borrower complies with all of the provisions of Section
3.8(a) (with such modifications thereof as shall be necessary to reflect that
an initial loan, rather than the conversion of an outstanding loan, is being
requested, including the delivery to the Agent of a Borrowing Notice no later
than 10:00 a.m. at least three (3) LIBOR Business Days prior to the first day
of the LIBOR Period as to which such initial loan relates) and, to the extent
applicable but without duplication, this Section 2.2(a)) specifying (i) that
the Borrower wishes to effect Revolving Loans, (ii) the amount of the
Revolving Loans thereby requested (which shall not be less than $500,000 and
shall be in multiples of $100,000), (iii) the requested Funding Date of such
Revolving Loans, which date shall be a Business Day, and (iv) whether the
requested Revolving Loans will bear interest at the ABR or Applicable LIBOR
Rate. Each Borrowing Notice shall be accompanied by the officer's certificate
contemplated by Section 4.2(vi) hereof. In lieu of delivering the
above-described Borrowing Notice, and only with the consent of the Agent in
its sole discretion at such time, the Borrower may give the Agent telephonic
notice of any such proposed borrowing by the time required under this Section
2.2(a); provided that, in the event the Agent so consents, such notice shall
be confirmed in writing by delivery to the Agent promptly (but in no event
later than 12:00 noon (Eastern time) on the Funding Date of the requested
Revolving Loans) of a Borrowing Notice (it being understood that any such
telephonic notice shall be irrevocable). Notwithstanding anything contained
herein to the contrary, if on any Interest Payment Date the credit balance in
the Borrower Account is insufficient to permit the debit contemplated by the
second sentence of Section 3.4(a) of this Agreement, the Agent, without any
notice or other authorization being required, shall (and is hereby irrevocably
instructed by the Borrower to) effect Revolving Loans in an amount sufficient
to permit such debit to be implemented or, if the amount of such debit is
greater than the aggregate Lender Availability, in the amount of such unused
portion.
(b) MAKING OF REVOLVING LOANS. Promptly after receipt of a Borrowing
Notice under clause (a) of this Section 2.2 (or telephonic notice if the Agent
so consents thereto), the Agent shall notify each Lender by telecopy or telex
or other customary form of teletransmission of the requested borrowing. Each
Lender shall make the amount of its Revolving Loan available to the Agent in
Dollars and in immediately available funds, not later than 3:00 P.M. (Eastern
time) on the Funding Date specified in the Borrowing Notice. After the
Agent's receipt of the proceeds of such Revolving Loans from the Lenders, the
Agent shall (unless it shall have learned that any of the conditions precedent
set forth in Section 4.2 hereof have not been satisfied) make the proceeds of
such Revolving Loans available to the Borrower on such Funding Date and shall
disburse such funds in Dollars to the Borrower in immediately available funds
by crediting the Borrower Account.
(c) FAILURE TO FUND BY LENDER. Unless the Agent shall have been
notified by any Lender prior to 12:00 P.M. (Eastern time) on any Funding Date
in respect of Revolving Loans requested under a Borrowing Notice that such
Lender does not intend to make available to the Agent such Lender's Revolving
Loan on such Funding Date, the Agent may assume that such Lender has made such
amount available to the Agent on such Funding Date and the Agent in its sole
discretion may, but shall not be obligated to, make available to the Borrower
a corresponding amount on such Funding Date. If such corresponding amount is
not in fact made available to the Agent by such Lender on or prior to 3:00
P.M. (Eastern time) on a Funding Date, such Lender agrees to pay and the
Borrower agrees to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is paid or repaid
to the Agent, at (i) in the case of such Lender, the Federal Funds Rate, and
(ii) in the case of the Borrower, the ABR. If such Lender shall pay to the
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Revolving Loan, and if both such Lender and the Borrower shall have
paid and repaid, respectively, such corresponding amount, the Agent shall
promptly pay over to the Borrower such corresponding amount in same day funds,
but the Borrower shall remain obligated for all interest thereon. Nothing
contained in this Section 2.2(b) shall be deemed to relieve any Lender of its
obligation hereunder to make its Revolving Loan on any Funding Date.
Section 2.3 STANDBY LETTERS OF CREDIT.
(a) GENERALLY. Subject to and in accordance with the terms and
conditions set forth herein, the Borrower may request the Issuing Lender, from
time to time during the period commencing on the Effective Date and ending 10
Business Days prior to the Maturity Date, to issue, and subject to the terms
hereof the Issuing Lender shall issue, for the account of the Borrower and on
behalf of itself or any Subsidiary, one or more standby letters of credit
(each, a "Standby Letter of Credit") pursuant to the Issuing Lender's
customary letter of credit application. The aggregate outstanding amount at
any time and from time to time of all Standby Letters of Credit shall not
exceed $15,000,000. The Issuing Lender shall have no obligation to issue any
Standby Letter of Credit if, after giving effect to the issuance thereof, the
Total Outstanding Amount shall then exceed the Facility Amount (it being
understood that the Issuing Lender shall, upon request of the Borrower, issue
a Standby Letter of Credit in an amount that would, after giving effect to the
issuance thereof, not cause the Facility Amount to be exceeded).
(b) STANDBY LETTER OF CREDIT FEES; MATURITY. The Borrower shall, among
other things, pay to the Issuing Lender for the benefit of the Lenders, pro
rata, on each L/C Fee Payment Date, in arrears, a fee (the AL/C Fee") per
annum (calculated on the basis of a 360 day year and the actual number of days
elapsed), computed by multiplying the Applicable L/C Margin for the Fiscal
Quarter immediately preceding the applicable L/C Fee Payment Date by the daily
average of the aggregate of all Standby Letters of Credit outstanding during
such Fiscal Quarter. Any change in the Applicable L/C Margin resulting from a
change in the ratio of Funded Debt to EBITDA calculated pursuant to Section
6.1(e) hereof shall be effective five (5) Business Days after receipt of
Borrower's financial statements reflecting such ratio; provided, however, that
if such financial statements are not delivered when due, then the highest
Applicable L/C Margin shall apply. In addition to the L/C Fee, the Borrower
shall pay to the Issuing Lender, for its own account, an annual fronting fee
(the "Fronting Fee"). The Fronting Fee shall be payable not later than the
Fee Payment Date and shall be equal to 0.125% per annum (calculated on the
basis of a 360 days year and the actual number of days elapsed) of the daily
average of the aggregate of all Standby Letters of Credit outstanding during
the period as to which such Fronting Fee shall have accrued.
All Standby Letters of Credit issued by the Issuing Lender as
contemplated by this Section 2.3 shall expire no later than the Maturity
Date. Notwithstanding that the Issuing Lender shall have no obligation to
issue any Standby Letter of Credit the expiration date of which shall extend
beyond the Maturity Date, if the expiration date of any Standby Letter of
Credit shall in fact extend beyond the Maturity Date, then on the last
Business Day immediately preceding the Maturity Date, there shall be deemed to
have been made Revolving Loans in the outstanding amount of all Standby
Letters of Credit the expiration date of which shall occur after the Maturity
Date, the proceeds of which the Issuing Lender shall deposit in a collateral
account at the Issuing Lender or an Affiliate thereof in order to
collateralize such Standby Letters of Credit, which collateral account shall
bear interest for the account of the Borrower based upon investment of the
funds as agreed between the Issuing Lender and the Borrower.
(c) STANDBY LETTER OF CREDIT REQUEST PROCEDURE. Whenever the Borrower
desires that a Standby Letter of Credit be issued on its behalf, the Borrower
shall give the Issuing Lender (with copies to be sent to the Agent and each
other Lender) at least five (5) Business Days' prior written notice therefor.
The execution and delivery of each request for a Standby Letter of Credit
shall be deemed to be a representation and warranty by the Borrower that such
Standby Letter of Credit may be issued in accordance with, and will not
violate the requirements of, this Section 2.3. Unless the Issuing Lender has
received notice from the Agent or any Lender before it issues the respective
Standby Letter of Credit that one or more of the conditions specified in
Section 4.2 are not then satisfied, or that the issuance of such Standby
Letter of Credit would violate this Section 2.3, then the Issuing Lender may
issue the requested Standby Letter of Credit for the account of the Borrower
in accordance with the terms of this Agreement and, with respect to any
matters not specifically covered by this Agreement, in accordance with the
Issuing Lender's usual and customary practices as in effect from time to time.
(d) LETTER OF CREDIT PARTICIPATIONS.
(i) Immediately upon the issuance by the Issuing Lender of any
Standby Letter of Credit, the Issuing Lender shall be deemed to have sold and
transferred to each Lender (other than the Issuing Lender), and each such
Lender shall be deemed irrevocably and unconditionally to have purchased and
received from the Issuing Lender, without recourse or warranty, an undivided
interest and participation, in proportion to such Lender's Pro Rata Share, in
such Standby Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
collateral therefor. Upon any change in a Lender's Pro Rata Share of the
Revolving Loan Commitment, it is hereby agreed that with respect to all
outstanding Standby Letters of Credit, there shall be an automatic adjustment
to the participations pursuant to this Section 2.3(d) to reflect the new Pro
Rata Share of the Revolving Loan Commitment of the assigning and assignee
Lenders.
(ii) In determining whether to pay under any Standby Letter of
Credit, the Issuing Lender shall have no obligation relative to the Lenders
other than to confirm that any documents required to be delivered under such
Standby Letter of Credit appear to have been delivered and that they appear to
comply on their face with the requirements of such Standby Letter of Credit.
Any action taken or omitted to be taken by the Issuing Lender under or in
connection with any Standby Letter of Credit, if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for the
Issuing Lender any resulting liability to any Lender.
(iii) Upon the request of any Lender, the Issuing Lender shall
furnish to such Lender copies of any Standby Letter of Credit to which the
Issuing Lender is party and such other documentation relating to such Standby
Letter of Credit as may reasonably be requested by such Lender.
(iv) As between the Borrower on the one hand and the Issuing
Lender and the Lenders on the other hand, the Borrower assumes all risks of
the acts and omissions of, or misuse of the Standby Letters of Credit by the
respective beneficiaries of such Standby Letters of Credit. Without limiting
the generality of the foregoing, neither the Issuing Lender nor any other
Lender shall be responsible (except in the case of its gross negligence or
willful misconduct) for the following:
(A) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any documents submitted by any party in connection with the
application for and issuance of or any drawing under such Standby Letters of
Credit, even if it should in fact prove to be in any respects invalid,
insufficient, inaccurate, fraudulent or forged;
(B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Standby
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of any such Standby Letter
of Credit to comply fully with conditions required in order to draw upon such
Standby Letter of Credit, other than material conditions or instructions that
expressly appear in such Standby Letter of Credit;
(D) errors, omissions, interruptions or delays in the
transmission or delivery of any messages by mail, cable, telegraph,
telecopier, telex or otherwise, whether or not they are encoded;
(E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any such Standby Letter
of Credit or the proceeds thereof;
(G) the misapplication by the beneficiary of any such
Standby Letter of Credit of the proceeds of any drawing of any such Standby
Letter of Credit; or
(H) any consequences arising from causes beyond the control
of the Issuing Lender, including without limitation any acts of governments.
(v) The obligations of the Lenders to make payments to the Agent
for the account of the Issuing Lender with respect to Standby Letters of
Credit shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(A) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a beneficiary named in a
Standby Letter of Credit, any transferee of any Standby Letter of Credit (or
any Person for whom any such transferee may be acting), the Agent, the Issuing
Lender, any Lender, or any other Person, whether in connection with this
Agreement, any Standby Letter of Credit, the transactions contemplated herein
or any unrelated transactions;
(C) any draft, certificate or any other document presented
under the Standby Letter of Credit shall prove to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein shall prove to
be untrue or inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan Documents;
(E) the occurrence of any Event of Default or Potential
Event of Default; or
(F) the termination of this Agreement or any Commitment.
(e) STANDBY LETTER OF CREDIT DRAWINGS CONSTITUTE REVOLVING LOANS. The
Issuing Lender shall promptly notify the Agent, and the Agent shall promptly
notify each Lender, in each case by telecopy or telex or other customary form
of teletransmission, of any drawing under any Standby Letter of Credit (each
drawing, a "Drawing"). Each Drawing shall immediately be deemed to be and for
all purposes of this Agreement shall constitute a Revolving Loan hereunder in
the amount of such drawing. Each Lender shall promptly and unconditionally
pay to the Agent for the account of the Issuing Lender an amount equal to such
Lender's Pro Rata Share of such Drawing in same day funds. Such payment shall
be made to the Agent at the Agent Lending Office. If the Agent delivers such
notice to such Lender prior to 2:00 P.M. (Eastern time) on any Business Day,
such Lender shall make its required payment on the same Business Day. If and
to the extent such Lender shall not have made available to the Agent for the
account of the Issuing Lender such Lender's Pro Rata Share of such Drawing,
such Lender agrees to pay to the Agent for the account of the Issuing Lender,
promptly upon demand, such amount, together with interest thereon, for each
day from such date until the date such amount is paid to the Agent for the
Account of the Issuing Lender at the Federal Funds Rate plus 100 basis
points. The failure of any Lender to make available to the Agent for the
Account of the Issuing Lender its Pro Rata Share of any Drawing shall not
relieve any other Lender of its obligation hereunder to make available to the
Agent for the Account of the Issuing Lender its Pro Rata Share of any Drawing
on the date so required; provided, however, that no Lender shall be
responsible for the failure of any other Lender to make available to the Agent
for the account of the Issuing Lender such other Lender's Pro Rata Share of
such Drawing.
Section 2.4 SWING LINE LOAN SUBFACILITY.
(a) SWING LINE SUBFACILITY. Subject to the terms and conditions
hereof, NationsBank, N.A., in its individual capacity (as such, the ASwing
Line Lender"), shall, in its sole and absolute discretion from and after the
Effective Date until one Business Day prior to the Maturity Date, make certain
revolving credit loans (each, a "Swing Line Loan" and, collectively, the
"Swing Line Loans") to the Borrower; provided, however, that (i) the aggregate
principal amount of all Swing Line Loans shall at no time exceed
$10,000,000.00 (such amount, the "Swing Line Subfacility"), and (ii) the sum
of the aggregate amount of all Revolving Loans (whether bearing interest at
the ABR or Applicable LIBOR Rate) plus the aggregate amount of all Swing Line
Loans plus the aggregate amount of all Standby Letters of Credit shall at no
time exceed the Facility Amount.
(b) THE SWING LINE NOTE; MATURITY. The Swing Line Loans made by the
Swing Line Lender pursuant hereto shall be evidenced by a separate Swing Line
Note. The Swing Line Note shall be issued on or before the Effective Date and
shall bear interest for the period from the date of the initial funding of any
Swing Line Loan until paid in full on the unpaid principal amount thereof.
The Swing Line Lender is hereby authorized to record in its books and records
(without making any notation on the Swing Line Note or any schedule thereto)
the amount and date of funding of each Swing Line Loan made by it, and the
amount and date of each payment or prepayment of any Swing Line Loan. No
failure to so record nor any error in so recording shall affect the
obligations of the Borrower to repay the actual outstanding principal amount
of the Swing Line Loans, with interest thereon, as provided in this
Agreement. The aggregate principal amount of the Swing Line Loans shall be
payable on the Maturity Date.
(c) SWING LINE LOAN BORROWING PROCEDURE. Whenever the Borrower desires
to borrow Swing Line Loans under this Section 2.4, the Borrower shall deliver
to the Swing Line Lender irrevocable written notice (each such notice, a
"Swing Line Borrowing Notice"), and the Swing Line Lender may, in its sole and
absolute discretion and upon such other arrangements as shall be specifically
agreed to by the Swing Line Lender and the Borrower, make a Swing Line Loan to
the Borrower on the date (which shall be a Business Day), at the time and in
the amount so agreed; provided, however, that (i) the principal amount of any
Swing Line Loan made hereunder shall not be less than $1,000.00 (and shall be
in multiples of $1,000.00) and (ii) an individual Swing Line Loan shall be
offered by the Swing Line Lender for a period of not less than 1 but not more
than 29 days (any such period, a "Swing Line Period"). In addition, and as an
alternative when requested by the Borrower, the Swing Line Lender shall
provide autoborrow services in respect of the Swing Line Loans pursuant to the
Swing Line Lender's standard terms and conditions for such services as set
forth in a mutually acceptable agreement or other arrangement between the
Swing Line Lender and the Borrower.
(d) INTEREST ON SWING LINE LOANS. Subject to the provisions of clause
(e) of this Section 2.4, in the event that the Swing Line Lender shall make
any Swing Line Loan pursuant to Section 2.4 hereof, the aggregate principal
amount of Swing Line Loans outstanding from time to time shall bear interest
at a rate per annum equal to the Applicable Swing Line Rate for the applicable
Swing Line Period (or such other interest rate agreed to in writing by the
Swing Line Lender and the Borrower). Any change in the Applicable Swing Line
Rate resulting from a change in the ratio of Funded Debt to EBITDA calculated
pursuant to Section 6.1(e) hereof shall be effective five (5) Business Days
after timely receipt of Borrower's financial statements reflecting such ratio;
provided, however, that if such financial statements are not delivered when
due, then the highest Applicable Swing Line Rate shall apply.
(e) REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan made by the
Swing Line Lender hereunder shall be due and payable upon the expiration of
the Swing Line Period relating to such Swing Line Loan. The Swing Line Lender
may, at any time and in its sole and absolute discretion, by written notice to
the Borrower and the Agent (which shall promptly deliver a copy thereof to the
other Lenders), demand repayment of its Swing Line Loans then outstanding by
way of a Revolving Loan borrowing (a "Mandatory Borrowing"), in which case the
Borrower, shall be deemed to have requested a Revolving Loan borrowing in the
amount of the then outstanding Swing Line Loans which shall bear interest at
the ABR; provided, however, that, in the following circumstances, any such
demand shall also be deemed to have been given one Business Day prior to each
of (i) the Maturity Date, (ii) the occurrence of any Event of Default
described in clause (g), (h) or (i) of Section 7.1 hereof, (iii) upon
acceleration of the Obligations hereunder, whether on account of an Event of
Default described in clause (g), (h) or (i) of Section 7.1 or any other Event
of Default, and (iv) the exercise of remedies in accordance with the
provisions of Section 7.1 hereof. Each Lender hereby irrevocably agrees to
make such Revolving Loans promptly upon any such request or deemed request on
account of a Mandatory Borrowing, in the amount (but in proportion to each
Lender's Pro Rata Share) and in the manner specified in the preceding sentence
and on the same such date notwithstanding that (A) the amount of the Mandatory
Borrowing may not comply with the minimum amount for borrowings of Revolving
Loans otherwise required hereunder, (B) whether any conditions specified in
Section 4.2 are then satisfied, (C) whether a Default or an Event of Default
then exists, (D) failure of any such request or deemed request for Revolving
Loans to be made by the time otherwise required in Section 2.2 hereof, (E) the
date of such Mandatory Borrowing, or (F) any reduction in the Revolving Loan
Commitment or termination of the Commitments relating thereto immediately
prior to such Mandatory Borrowing or contemporaneously therewith. In the
event that any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding in bankruptcy with respect to the Borrower), then
each Lender hereby agrees that it shall forthwith purchase (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swing Line Lender such participations in the then
outstanding Swing Line Loans as shall be necessary to cause each such Lender
to share in such Swing Line Loans ratably based upon its respective Pro Rata
Share of the Revolving Loan Commitment (determined before giving effect to any
termination of the Revolving Loan Commitments pursuant to the last paragraph
of Section 7.1), provided that (1) all interest payable on the Swing Line
Loans shall be for the account of the Swing Line Lender until the date as of
which the respective participation of each other Lender is purchased, and (2)
at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay to the Swing
Line Lender interest on the principal amount of such participation purchased
for each day from and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of payment for such
participation, at the rate equal to, if paid within 2 Business Days of the
date of the Mandatory Borrowing, the Federal Funds Rate, and thereafter at a
rate equal to the ABR.
(f) OPTIONAL PREPAYMENT OF SWING LINE LOANS. Subject to the provisions
of this clause (f) and Section 3.9 hereof, the Borrower may, at its sole
option, prepay the principal amount of the Swing Line Loans in whole or in
part (in an amount of $10,000 or more and in multiples of $1,000) at any time
and from time to time, without premium or penalty. In respect of each Optional
Prepayment of a Swing Line Loan proposed to be made by the Borrower, the right
of the Borrower to make such Optional Prepayment is subject to the Agent's
receipt from the Borrower, no later than 12:00 P.M. on the Business Day
specified therein as the date on which such Optional Prepayment is to be made,
of a written notice (which shall be irrevocable) specifying (i) that the
Borrower desires to prepay such Swing Line Loan, (ii) the principal amount of
such Optional Prepayment, and (iii) the date (which shall be a Business Day)
on which such Optional Prepayment will be made. Any Optional Prepayment of a
Swing Line Loan, which has not been converted to a Revolving Loan, made by the
Borrower as permitted hereunder shall be paid to the Agent for the account of
the Swing Line Lender no later than 12:00 P.M. (Eastern Time) on the
applicable prepayment date.
ARTICLE III
INTEREST, FEES AND REPAYMENT
Section 3.1 INTEREST ON THE REVOLVING LOANS
(a) ABR. The initial Revolving Loan and, except as provided pursuant
to clause (b) of this Section 3.1, the aggregate principal amount of the
Revolving Loans outstanding from time to time shall bear interest at a rate
per annum equal to the ABR until the entire principal amount of the Revolving
Loans shall have been repaid. Any change in the rate of interest on the
Revolving Loans resulting from a change in the ABR shall be effective as of
the opening of business on the day on which such change is effective.
(b) LIBOR RATE. In the event the Borrower shall effect a LIBOR
Conversion in accordance with the provisions of Section 3.8 of this Agreement
or obtain a Revolving Loan that shall bear interest initially at the
Applicable LIBOR Rate as provided in Section 2.2(a) hereof, the aggregate
principal amount of the Revolving Loans that are the subject of such LIBOR Conve
rsion or Borrowing Notice, as the case may be, shall bear interest at a rate
per annum equal to the Applicable LIBOR Rate. Any change in the Applicable
LIBOR Rate resulting from a change in the ratio of Funded Debt to EBITDA
calculated pursuant to Section 6.1(e) hereof shall be effective five (5)
Business Days after receipt of Borrower's financial statements reflecting such
ratio; provided, however, that if such financial statements are not delivered
when due, then the highest Applicable LIBOR Rate shall apply.
Section 3.2 REGULATORY CHANGES. If, after the date of this Agreement,
any Regulatory Change
(i) shall subject any Lender to any tax, duty or other charge
with respect to its obligation to make or maintain any Loan or its Commitment,
or shall change the basis of taxation of payments to such Lender of the
principal of or interest on the Loans or in respect of any other amounts due
under this Agreement in respect of its obligation to make any Loan or maintain
its Commitment (except for changes in the rate of tax on the overall net
income of such Lender); or
(ii) shall impose, modify or deem applicable any reserve,
assessment, special deposit, capital adequacy, capital maintenance or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, such Lender or shall impose on such Lender any other condition
affecting (x) the obligation of the Lender to make or maintain the Loans or
its Commitment, or (y) the Revolving Notes or the Swing Line Note;
and the result of any of the foregoing is to increase the cost to such Lender
of making or maintaining any Loan or maintaining its Commitment or to reduce
the amount of any sum received or receivable by such Lender under, or the rate
of return attributable to, this Agreement or under the Revolving Notes or the
Swing Line Note, such Lender shall, within 30 days after the effective date of
such Regulatory Change, provide written notice to the Borrower of such
Regulatory Change (it being agreed by the parties hereto that if such notice
is given after 30 days' of the effective date of such Regulatory Change, the
Borrower shall be liable to the Lenders for the additional amounts payable
pursuant to this Section 3.2 only to the extent such additional amounts accrue
from and after the date of the giving of such notice), together with a
certificate describing in reasonable detail such increase or reduction, as the
case may be, then, within 30 days after delivery of such notice by such Lender
to the Borrower if such Regulatory Change shall impose costs in excess of
those costs, or reduce the amount of any such sum or rate of return below the
amount or rate, applicable on the date of this Agreement, the Borrower, shall
pay to such Lender for the account of such Lender such additional amount or
amounts as will compensate such Lender for such increase or reduction. A
certificate of such Lender setting forth the basis for the amount of said
increase or reduction, as the case may be, shall be conclusive in the absence
of manifest error.
Section 3.3 INTEREST AFTER DUE DATE. In the event the Borrower fails to
make any payment of the principal amount of or interest on any of the
Revolving Loans or Swing Line Loans, or of the Unused Portion Fee, the
Administrative Fee, the L/C Fee or the Fronting Fee, in each case when due
(whether by demand, acceleration or otherwise), the Borrower, shall pay to the
Agent for the account of the Lenders interest on such unpaid amount, payable
from time to time on demand, from the date such amount shall have become due
to the date of payment thereof, accruing on a daily basis, at a per annum rate
(the "Default Rate") equal to the sum of (x) the greater of the ABR and
Applicable LIBOR Rate determined on and, in the case of any continuing
default, from time to time after the date of such default plus (y) two percent
(2%).
Section 3.4 PAYMENT AND COMPUTATIONS.
(a) PAYMENTS. All payments required or permitted to be made to the
Agent, to the Agent for the account of the Lenders, or to any Lender under
this Agreement or under any Note shall be made in Dollars (i) if to the Agent,
at the Lending Office of the Agent in immediately available funds and (ii) if
to any Lender, to it in immediately available funds at an account specified by
such Lender in writing to the Borrower. The Borrower hereby irrevocably
instructs and authorizes the Agent to effect each payment of interest on the
Loans due on each Interest Payment Date, and of each payment of the Unused
Portion Fee and the Administrative Fee due on the applicable Fee Payment Date
by debiting the Borrower Account on such Interest Payment Date or Fee Payment
Date, as the case may be, with the aggregate amount thereof, in each case,
after giving effect to the crediting to the Borrower Account of the proceeds
of the Revolving Loan, if any, made on such Interest Payment Date or Fee
Payment Date, as the case may be, in accordance with Section 2.1(b) of this
Agreement. The Agent shall provide to the Borrower an invoice showing the
amount of such debit and the manner in which it was calculated.
(b) COMPUTATIONS. Interest on the unpaid portion of the Revolving
Loans, the Swing Line Loans, the Unused Portion Fee and the Administrative Fee
shall each be calculated for the actual number of days (including the first
day but excluding the last day) elapsed and shall be computed on the basis of
a year of 360 days.
(c) INTEREST AND FEE PAYMENT DATES. The Unused Portion Fee and
interest on the Loans shall be payable in arrears (i) in the case of the
Revolving Loans and Swing Line Loans, on each Interest Payment Date and (ii)
in the case of the Unused Portion Fee, on each Fee Payment Date. The
Administrative Fee, if any, shall be payable in advance on each Fee Payment
Date. The L/C Fee and the Fronting Fee shall be payable in arrears as
provided in Section 2.3(b) hereof.
(d) APPLICATION OF PAYMENTS; APPORTIONMENT.
(i) APPORTIONMENT OF PAYMENTS AND PREPAYMENTS. Unless a Lender
shall be in default of its obligations to advance any Revolving Loan or
reimburse the Agent as provided herein, all payments and prepayments of
principal and interest in respect of outstanding Revolving Loans and all
payments of fees (other than the Administrative Fee and Fronting Fee) and all
other payments in respect of any other Obligations (other than with respect to
Swing Line Loans) shall be allocated among (and paid over promptly after
receipt thereof to) such of the Lenders as are entitled thereto in proportion
to their respective Pro Rata Share. All payments and prepayments of principal
and interest and other amounts in respect of the Swing Line Loans that have
not been converted to Revolving Loans and of the Administrative Fee and
Fronting Fee shall be allocated only to the Swing Line Lender.
(ii) Upon the occurrence and during the continuance of an Event of
Default, the Agent shall, unless otherwise specified by the Required Lenders
as provided in the last paragraph of this clause (ii), apply all payments
(including the proceeds of any collateral obtained upon the exercise by the
Agent of any remedy specified in the Pledge Agreement or in the Notarial Deed)
in respect of any Obligations:
(A) first, and except as otherwise provided in Section
4(b)(ii) of the Pledge Agreement and in the Notarial Deed, to pay interest on
and then principal of any portion of the Loans which the Agent may have
advanced on behalf of any Lender for which the Agent has not then been
reimbursed by such Lender or the Borrowers;
(B) second, to pay Obligations in respect of any fees,
expense reimbursement or indemnities due to the Agent;
(C) third, to pay Obligations in respect of any fees,
expense reimbursement, indemnities, increased costs or breakage then due to
the Lenders, pro rata;
(D) fourth, to the ratable payment of overdue interest or
late charges, if any, then due the Lenders;
(E) fifth, to the ratable payment of interest due in
respect of the Revolving Loans and Swing Line Loans;
(F) sixth, to the ratable payment or prepayment of
principal due in respect of the Revolving Loans and Swing Line Loans; and
(G) seventh, to the ratable payment of all other
Obligations;
provided, however, that no Lender which shall be in default of its obligations
to fund Revolving Loans or reimburse the Agent as provided herein shall be
entitled to its ratable share of payments in respect of any Obligations prior
to the payment to all non-defaulting Lenders of all amounts due such Lenders
as provided herein.
The order of priority set forth in this Section 3.4(d)(ii) is set
forth solely to determine the rights and priorities of the Agent and the
Lenders as among themselves. The order of priority set forth in clauses (C)
through (G) of this Section 3.4(d)(ii) may at any time and from time to time
be changed by the Required Lenders without necessity of notice to or consent
of or approval by the Borrower, or any other Person. The order of priority
set forth in clauses (A) and (B) of this Section 3.4(d)(ii) may be changed
only with the prior written consent of the Agent.
Section 3.5 PAYMENT AT MATURITY. Any outstanding principal amount of the
Revolving Notes or the Swing Line Note theretofore not repaid, together with
any accrued and unpaid Unused Portion Fee, Administrative Fee, L/C Fee or
Fronting Fee, any accrued and unpaid interest thereon, together with any other
amounts due and payable in accordance with the provisions hereof (including
pursuant to Section 9.10 hereof) shall be due and payable in full on the
Maturity Date (unless sooner accelerated pursuant to the terms hereof), and
this Agreement shall not terminate until all Obligations shall have been paid
in full.
Section 3.6 PREPAYMENTS; CERTAIN EARLY REPAYMENTS.
(a) MANDATORY PREPAYMENT OF LOANS AND STANDBY LETTERS OF CREDIT.
(i) Upon the termination of this Agreement pursuant to the first
sentence of Section 9.3 of this Agreement, the Borrower shall on the
Prepayment Date (x) prepay the Loans in full together with interest accrued on
the aggregate principal amount of the Loans to the Prepayment Date, and (y)
pay to the Agent, for the account of the Lenders all other amounts payable
pursuant to Sections 3.9 and 9.3 of this Agreement.
(ii) If at any time the Total Outstanding Amount shall be greater
than the Facility Amount, the Borrower shall, without notice from the Lender,
prepay that portion of the Loans and/or the Standby Letters of Credit, as the
case may be, in an amount equal to such excess.
(b) OPTIONAL PREPAYMENTS OF REVOLVING LOANS. Subject to the terms and
conditions of clause (c) below and Section 3.9 hereof, the Borrower may, at
its sole option prepay the principal amount of the Revolving Loans (whether
bearing interest at the ABR or Applicable LIBOR Rate) in whole or in part (in
an amount of $500,000 or more and in multiples of $100,000) at any time and
from time to time, without premium or penalty.
(c) OPTIONAL PREPAYMENT PROCEDURE. In respect of each Optional
Prepayment of Revolving Loans (whether bearing interest at the ABR or
Applicable LIBOR Rate) proposed to be made by the Borrower, the right of the
Borrower to make such Optional Prepayment is subject to the Agent's receipt
from the Borrower, no later than 10:00 A.M. (Eastern Time) on the Business Day
specified therein as the date on which such Optional Prepayment is to be made
(unless such Optional Prepayment shall relate to LIBOR Loans, in which case
such notice shall be given no later than 10:00 A.M. (Eastern time) at least
three (3) Business Days prior to the date of prepayment, of a written notice
(which shall be irrevocable) specifying (i) that the Borrower desires to
prepay the Revolving Loans, (ii) the principal amount of such Optional
Prepayment, and (iii) the date (which shall be a Business Day or, if such
Optional Prepayment relates to a LIBOR Loan, a LIBOR Business Day) on which
such Optional Prepayment will be made. Any Optional Prepayment of Revolving
Loans made by the Borrower as permitted hereunder shall be paid to the Agent
for the account of the Lenders no later than 12:00 P.M. (Eastern Time) on the
applicable prepayment date (except that any prepayment of a LIBOR Loan shall
be paid no later than 10:00 A.M. (Eastern Time) on the applicable prepayment
date).
Section 3.7 UNUSED PORTION FEE, ADMINISTRATIVE FEE, L/C FEE AND
FRONTING FEE.
(a) UNUSED PORTION FEE. For each Fiscal Quarter (or part thereof)
during the period from the Effective Date until the Maturity Date, the
Borrower shall pay to the Agent for the account of the Lenders pro rata based
upon each Lender's Pro Rata Share of the Revolving Loan Commitment, an unused
portion fee (the "Unused Portion Fee") determined by subtracting the sum of
the aggregate outstanding amount of all Revolving Loans and Standby Letters of
Credit (computed on the basis of the daily average for such Fiscal Quarter)
from the Facility Amount. The Unused Portion Fee shall be computed at a rate
per annum equal to, in the event the Funded Debt to EBITDA ratio calculated
pursuant to Section 6.1(e) hereof is (i) less than or equal to 1.00 to 1.00,
then 0.125%, (ii) greater than 1.00 but less than or equal to 1.50 to 1.00,
then 0.15%, (iii) greater than 1.50 to 1.00, but less than or equal to 2.00 to
1.00, then 0.175%, (iv) greater than 2.00 to 1.00 but less than or equal to
2.50 to 1.00, then 0.20%, and (v) greater than 2.50 to 1.00, then 0.25%. The
Unused Portion Fee shall be due and payable in arrears on the Fee Payment Date
to which such Unused Portion Fee relates and on the Maturity Date, and shall
be calculated on the basis of a 360 day year and the actual days elapsed.
(b) ADMINISTRATIVE FEE. The Borrower shall pay to the Agent, as
compensation for the services of the Agent hereunder, a fee (the
"Administrative Fee") in an amount separately agreed to by the Borrower,
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and the Agent in that certain letter
agreement dated the date hereof (the "Administrative Fee Letter"). The
Administrative Fee payable by the Borrower as contemplated by this clause (b)
shall be due on the applicable Fee Payment Date (and the Borrower shall not be
entitled to any credit if any Lender as to which such fee shall have been paid
ceases to be a Lender hereunder for the entire year in respect of which such
fee shall have been due and payable).
(c) L/C FEE. The Borrower shall pay the L/C Fee and the Fronting Fee
in accordance with the provisions of Section 2.3(b) hereof.
Section 3.8 LIBOR CONVERSION
(a) CONVERSION. So long as no Event of Default or Potential Event of
Default shall have occurred and be continuing, the Borrower shall have the
right to convert all or part of the outstanding Revolving Loans bearing
interest at the then ABR to loans bearing interest at the then Applicable
LIBOR Rate (such conversion, a "LIBOR Conversion"); provided, however, that
the LIBOR Period to which such LIBOR Conversion shall relate will not extend
beyond the Maturity Date. In order to effect a LIBOR Conversion, the Borrower
shall give the Agent irrevocable written notice (such notice, a "LIBOR
Conversion Notice") prior to 10:00 A.M. (Eastern time), at least three LIBOR
Business Days prior to the first day of the LIBOR Period to which such LIBOR
Conversion shall apply, stating that (i) the Borrower wishes to effect a LIBOR
Conversion, (ii) the aggregate principal amount of outstanding Revolving Loans
which the Borrower wishes to bear interest at the Applicable LIBOR Rate (it
being understood and agreed that no LIBOR Conversion shall be permitted in an
amount less than $500,000.00 and shall be in multiples of $100,000.00), (iii)
the applicable LIBOR Period being elected by the Borrower (it being understood
that no change in LIBOR with respect to any LIBOR Loans may be effected during
any applicable LIBOR Period) and (iv) the Business Day on which the LIBOR
Period is to be effective.
(b) NOTICE OF LIBOR TO BORROWER. In the event the Borrower has
requested a LIBOR Conversion, the Agent shall give written notice to the
Borrower and the Lenders of LIBOR as promptly as reasonably possible after
such rate is determined. The Agent's determination of LIBOR shall be
conclusive in the absence of manifest error.
(c) SUCCESSIVE NOTICE OF LIBOR CONVERSION. Subject to the provisions
of clause (a) of this Section 3.8, the Borrower may, by executing a LIBOR
Conversion Notice at least three LIBOR Business Days prior to the first day of
the LIBOR Period to which such LIBOR Conversion Notice shall apply, execute
successive LIBOR Conversions with respect to any Revolving Loan then
outstanding and bearing interest at the ABR together with any then outstanding
LIBOR Loans the LIBOR Period in respect of which is scheduled to expire on or
before the start of the LIBOR Period specified in such LIBOR Conversion
Notice. If, with respect to any LIBOR Loans, the Agent shall not have
received a LIBOR Conversion Notice for the next immediately succeeding LIBOR
Period which complies with the provisions of clause (a) of this Section 3.8,
such LIBOR Loans shall, immediately upon the expiration of the then current
LIBOR Period and without any notice to the Borrower, bear interest at the ABR
in accordance with the provisions of Section 3.1(a) of this Agreement.
(d) MARKET DISRUPTION, ETC. In the event that the Agent (i) shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that by reason of circumstances affecting the London interbank
market either adequate or reasonable means do not exist for ascertaining LIBOR
elected by the Borrower pursuant to the terms hereof or (ii) the Agent shall
have determined (which determination shall be conclusive and binding on the
Borrower) that the applicable LIBOR will not adequately and fairly reflect the
cost to the Agent of maintaining or funding loans bearing interest based on
such LIBOR rate, with respect to any portion of the Revolving Loans that the
Borrower has requested be made as a LIBOR Loan (each, an "Affected Advance"),
the Agent shall promptly notify the Borrower (by telephone or otherwise, to be
promptly confirmed in writing), with a copy to the Lenders, of such
determination. If the Agent shall give such notice, (x) any Affected Advances
shall be made as advances which shall bear interest at the ABR, and (y) any
outstanding LIBOR Loan shall, from and after the last day of the then current
LIBOR Period applicable thereto, bear interest at the ABR. Until any notice
under clauses (i) or (ii) of this Section 3.8(d) has been withdrawn by the
Agent, no amounts outstanding or to be advanced hereunder shall bear interest
based upon LIBOR.
Section 3.9 BREAKAGE, ETC. In the event of the prepayment of any LIBOR Loan
(whether by way of acceleration or otherwise or due to an Optional Prepayment
of any LIBOR Loan pursuant to Section 3.6(b) hereof), the Borrower shall pay
to each Lender whose LIBOR Loan has been so prepaid any loss or expense which
such Lender may incur or sustain directly as a result of such prepayment,
including without limitation, an amount equal to (i) an amount of interest
which would have accrued on the amount so prepaid for the period beginning on
the date of such prepayment and ending on the last day of the applicable LIBOR
Period (such period, the "Breakage Period"), at the Applicable LIBOR Rate
minus (ii) the amount of interest (as reasonably determined by each affected
Lender) which would have accrued to such Lender on such amount by placing such
amount on deposit for the Breakage Period with leading banks in the London
interbank market. Without limitation of the foregoing provisions of this
Section 3.9, the Borrower agrees to pay to each Lender the losses or expenses
which any Lender may suffer or incur as a result of such prepayments of any
Loan.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 CONDITIONS PRECEDENT TO EFFECTIVE DATE. This Agreement, and the
Revolving Loan Commitment of the Lenders hereunder, shall become effective at
a closing at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ only on the day (the "Effective Date") on which
all of the following conditions precedent shall have been fulfilled to the
satisfaction of the Lenders; provided, however, that in the event the
Effective Date shall have not occurred on or prior to June 30, 1998, the
Lenders shall have no further obligations hereunder:
(i) The Agent, on behalf of the Lenders, shall have received from the
Borrower the following instruments, agreements, certificates and payments, as
the case may be, on or prior to the Effective Date:
(A) A Revolving Note, dated the Effective Date, payable to the
order of each of Lender in the amount of such Lender's Pro Rata Share of the
Revolving Loan Commitment and duly executed by the Borrower;
(B) A Swing Line Note, dated the Effective Date, payable to the
order of NationsBank, N.A. in the amount of $10,000,000.00 and duly executed
by the Borrower;
(C) The Subsidiary Guarantee, executed in favor of the Agent by
each Domestic Subsidiary of the Borrower existing as of the Effective Date;
(D) The Pledge Agreement, executed by CACI N.V. in favor of the
Agent, together with stock certificates evidencing the CACI Limited Shares,
duly indorsed in blank for transfer or having attached thereto stock transfer
powers duly indorsed in blank;
(E) The Notarial Deed, executed by the Borrower in favor of the
Agent and acknowledged or executed by CACI N.V.;
(F) An opinion or opinions of counsel to the Borrower, Guarantors
and Pledgors, in form and substance satisfactory to the Lenders;
(G) A certified copy of the resolutions of the Board of Directors
of the Borrower, Guarantors and the Pledgors authorizing the execution and
delivery of this Agreement and/or the other Loan Documents to which they are a
party;
(H) A copy of the charter documents and by-laws of the Borrower
and any Subsidiary thereof, together with all amendments thereto, certified by
the Secretary of the Borrower or such Guarantor as being true, complete and
correct and in effect as of the Effective Date;
(I) An incumbency certificate of the Secretary, an Assistant
Secretary or an Assistant Treasurer of the Borrower, the Guarantors and CACI
N.V. certifying the names and true signatures of each officer of the Borrower,
the Guarantors and CACI N.V. authorized to execute the Loan Documents;
(J) By wire transfer of immediately available funds, the Borrower
shall have paid to the Agent, on behalf of the Lenders, as applicable, a fee
in the amount of (i) in the case of NationsBank, N.A., $25,000.00, (ii) in the
case of First Union Commercial Corporation, $18,750.00, (iii) in the case of
Mellon Bank, N.A., $16,875.00, and (iv) in the case of Crestar Bank
$16,875.00,
(K) A certificate of an Authorized Officer of the Borrower, dated
the Effective Date, certifying that the matters contained in clauses (iii),
(iv) and (v) of Section 4.2 hereof are true and correct;
(L) A certificate of an Authorized Officer of the Borrower, dated
the Effective Date, certifying, in form and substance satisfactory to the
Lenders, the Borrower's compliance with Section 6.1(m) hereof, having attached
to such certificate a summary in reasonable detail of the Borrower's and its
Subsidiaries' insurance coverage. Upon request of the Lenders, the Borrower
shall deliver an insurance report of an independent insurance broker as to due
compliance with Section 6.1(m) hereof; and
(M) The results of a search, upon the records maintained with the
appropriate Secretary of State and county or city recorder offices of all
jurisdictions deemed advisable by the Lenders, regarding liens, if any, on
file with such offices and naming the Borrower or any Subsidiary as a debtor,
which results shall be satisfactory to the Lenders.
(ii) The Borrower shall have disclosed to the Lenders
promptly from time to time any material developments or changes in the
Borrower and its Subsidiaries', taken as a whole, business, assets, results of
operations, condition (financial or otherwise) or prospects, including without
limitation amendments to their charter documents or the Borrower's Form 10-K
or 10-Q and the exhibits thereto, and any material amendments, changes or
terminations of any material contracts or the award of or loss of any material
bid or proposal. Any such material developments, changes or amendments shall
not have affected adversely the assumptions contained in the credit analysis
of the Borrower performed by the Lenders prior to the execution of this
Agreement or resulted in a material adverse change since March 31, 1998 in the
business, assets, results of operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries, taken as a whole;
(iii) The Borrower shall have delivered to the Lenders a
true, correct and complete copy of all loan documents relating to that certain
unsecured loan facility made to CACI Limited by the financing institution or
institutions named therein in the aggregate amount of up to 500,000 Pound
Sterling (the "U.K. Debt"), certified as of the Effective Date by an
Authorized Officer of CACI Limited as such and that the U.K. Debt loan
documents remain in full force and effect and that no default or event that,
with the lapse of time or the giving of notice or both, would constitute an
event of default exists thereunder;
(iv) The Borrower shall have delivered to the Lenders (A)
the Borrower's Form 10-K for the Fiscal Years ending June 30, 1996 and 1997
and Form 10-Q for the Fiscal Quarters ending September 30, 1997, December 31,
1997 and March 31, 1998, and (B) such other unaudited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries as any Lender
shall reasonably request, together with, in each case, an officer's
certificate, dated the Effective Date, from each of the Borrower's Chief
Financial Officer and Treasurer, stating that, to their personal knowledge
after having performed such due diligence as would customarily be performed by
a corporate officer in their position but no additional due diligence, the
Borrower's Form 10-K and Form 10-Qs and unaudited consolidated financial
statements, if any, attached thereto as of the Effective Date do not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(v) All legal matters incident to this Agreement shall be
satisfactory to counsel for the Lenders, and the Borrower shall have
reimbursed the Lenders for their fees and expenses and the fees and expenses
of the Lenders' counsel in connection with the preparation or review, as the
case may be, of the Loan Documents and all matters incident thereto (it being
understood that such statement may not reflect the final statement of fees and
expenses incurred by the Lenders' counsel in connection with such preparation
or review);
(vi) All Schedules delivered hereunder by the Borrower shall
be in form and substance satisfactory to the Lenders;
(vii) By wire transfer of immediately available funds, the
Agent shall have received the Administrative Fee due and payable to the Agent
on the Effective Date pursuant to the Administrative Fee Letter;
(viii) By wire transfer of immediately available funds,
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC shall have received the fee due and
payable to it on the Effective Date in accordance with the Administrative Fee
Letter;
(ix) The Lenders shall have completed their due diligence
review of the Borrower and its Subsidiaries, including their business, assets,
results of operations, condition (financial or otherwise), prospects,
liabilities (both actual and contingent, including environmental liabilities),
management and affairs, and the results thereof shall have been satisfactory
to the Lenders in their sole discretion;
(x) The Lenders shall have received such other documents,
instruments, certificates, opinions, agreements and information as the Lenders
or their counsel shall reasonably request in their discretion in connection
with the consummation of the transactions contemplated by this Agreement
(including, without limitation, current consolidated and consolidating
financial statements of the Borrower and its Subsidiaries, a report describing
the aggregate amount and current age status of accounts receivable of the
Borrower, a report describing the current status of goods or services on
backlog with the Borrower or any Subsidiary thereof and a report describing
the status of pending or threatened litigation).
Section 4.2 FURTHER CONDITIONS PRECEDENT TO LOANS AND STANDBY LETTERS OF
CREDIT. The obligation of the Agent, on behalf of the Lenders, to make any
Revolving Loan, and the obligation of the Swing Line Lender to make any Swing
Line Loan, and the obligation of the Issuing Lender to issue any Standby
Letter of Credit shall be subject to the fulfillment to the satisfaction of
the Lenders, in the case of Revolving Loans and Standby Letters of Credit, and
the Swing Line Lender, in the case of Swing Line Loans, of the further
conditions precedent that, on the Funding Date for such Revolving Loan or
Swing Line Loan or the issuance date for such Standby Letter of Credit, as the
case may be:
(i) The Agent shall have received a Borrowing Notice (except as
otherwise provided in the last sentence of Section 2.2(a) of this Agreement)
in accordance with Section 2.2(a) or the Swing Line Lender shall have received
a Swing Line Borrowing Notice in accordance with Section 2.4(c) or the Issuing
Lender shall have received a request for a Standby Letter of Credit in
accordance with Section 2.3(c), as the case may be, in each case executed by
an Authorized Officer of the Borrower (or other officer of the Borrower
designated by such Authorized Officer as having authority to execute such
notice);
(ii) The prospect of payment of all obligations and liabilities
outstanding or to become outstanding under this Agreement is not impaired due
to acts or events materially bearing upon the financial condition of the
Borrower and its Consolidated Subsidiaries (taken as a whole), as determined
by the Required Lenders (or, in the case of Swing Line Loans, the Swing Line
Lender) in their sole discretion;
(iii) Since the date of the most recent financial statements or
projections provided to the Lenders, there shall have been no material adverse
change in the Borrower's or its Consolidated Subsidiaries' (taken as a whole)
financial condition or in the Borrower's or its Consolidated Subsidiaries'
(taken as a whole) assets or prospects, in each case as determined by the
Required Lenders (or, in the case of Swing Line Loans, the Swing Line Lender)
in their sole discretion;
(iv) The representations and warranties of the Borrower, the Pledgors
and the Guarantors contained in Article V of this Agreement, in the Pledge
Agreement, the Notarial Deed and the Subsidiary Guarantee, as the case may be,
are true and correct as of such Funding Date (or, in the case of Standby
Letters of Credit, the date of issuance thereof) as though made on and as of
such Funding Date (or, in the case of Standby Letters of Credit, the date of
issuance thereof) (and, if any such representation and warranty shall not be
true and correct, the Borrower shall describe in writing to the Agent the
nature of such misrepresentation and warranty);
(v) No event has occurred and is continuing, or would result from such
Revolving Loan or Swing Line Loan after giving effect to the application of
the proceeds therefrom or from the issuance of such Standby Letter of Credit
if the beneficiary thereof were to fully draw upon such Standby Letter of
Credit on the date of issuance, which constitutes an Event of Default or would
constitute a Potential Event of Default; and
(vi) The Agent shall have received a certificate, addressed to the
Lenders (or, in the case of a Swing Line Loan, the Swing Line Lender), of an
Authorized Officer of the Borrower, dated the date of the Borrowing Notice,
certifying that the matters contained in clauses (iii), (iv) and (v) of this
Section 4.2 are true and correct.
ARTICLE V
REPRESENTATIONS
In order to induce the Lenders and the Agent to enter into this Agreement
and make the Loans contemplated by the terms hereof, the Borrower represents
and warrants with respect to itself and its Subsidiaries, as the context shall
require, as of the date hereof and as of the Effective Date that:
Section 5.1 EXISTENCE, POWER AND AUTHORITY. The Borrower and each Subsidiary
thereof is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, with full corporate
power and authority to carry on its business as currently conducted and to own
or hold under lease its property; the Borrower and each Subsidiary thereof is
duly qualified to do business as a foreign corporation in good standing in
each other jurisdiction in which the conduct of its business or the
maintenance of its property requires it to be so qualified and where the
failure to be so qualified would have a material adverse effect on the
financial condition, business or operation of the Borrower or such Subsidiary;
and, the Borrower and its Subsidiaries have full corporate power and authority
to execute and deliver the Loan Documents to which they are a party and to
carry out the transactions contemplated thereby.
Section 5.2 AUTHORIZATION; ENFORCEABLE OBLIGATIONS. As of the Effective Date
and thereafter, the Loan Documents to which the Borrower and the Subsidiaries
are a party have been duly authorized, executed and delivered by the Borrower
and such Subsidiaries and constitute legal, valid and binding obligations of
the Borrower and such Subsidiaries, enforceable against the Borrower and such
Subsidiaries in accordance with their respective terms (except as such
enforceability may be limited by general principles of the law of equity or by
any applicable bankruptcy, reorganization, insolvency, moratorium or similar
laws and laws affecting creditors' rights generally).
Section 5.3 NO LEGAL BAR. The execution, delivery and performance by the
Borrower and the Subsidiaries of the Loan Documents to which they are a party
(i) do not violate the certificate of incorporation, by-laws or any preferred
stock provision of the Borrower or such Subsidiaries (ii) do not violate or
conflict with any law, governmental rule or regulation or any judgment, writ,
order, injunction, award or decree of any court, arbitrator, administrative
agency or other governmental authority applicable to the Borrower or such
Subsidiaries or any indenture, mortgage, contract, agreement or other
undertaking or instrument to which the Borrower or such Subsidiaries is a
party or by which their respective property may be bound and/or (iii) do not
and will not result in the creation or imposition of any lien, mortgage,
security interest or other encumbrance on any of its property pursuant to the
provisions of any such indenture, mortgage, contract, agreement or other
undertaking or instrument.
Section 5.4 CONSENTS. The execution, delivery and performance by the
Borrower and the Subsidiaries of the Loan Documents to which they are a party
does not require any consent, which has not been obtained, of any other
Person (including, without limitation, stockholders of the Borrower or such
Subsidiaries) or any consent, license, permit, authorization or other approval
of, any giving of notice to, exemption by, any registration, declaration or
filing with, or any taking of any other action in respect of, any court,
arbitrator, administrative agency or other governmental authority.
Section 5.5 LITIGATION. Except as set forth on Schedule 5.5 hereto, there is
no action, suit, investigation or proceeding by or before any court,
arbitrator, administrative agency or other governmental authority pending or,
to the knowledge of the Borrower or the Subsidiaries, threatened (i) which
involves any of the transactions contemplated by this Agreement or (ii)
against or affecting the Borrower or any Subsidiary thereof which could in the
reasonable judgment of the Borrower materially adversely affect the financial
condition, business or operation of the Borrower, CACI N.V. or the Guarantors
or any Subsidiary thereof.
Section 5.6 NO DEFAULT. Except as set forth on Schedule 5.6 hereto in
writing, neither the Borrower nor any Subsidiary thereof is in default under
any material order, writ, injunction, award or decree of any court,
arbitrator, administrative agency or other governmental authority binding upon
it or its property, or any material indenture, mortgage, contract, agreement
or other undertaking or instrument to which it is a party or by which its
property may be bound, and nothing has occurred which would materially
adversely affect the ability of any of them to carry on their respective
business or perform their respective obligations under any such material
order, writ, injunction, award or decree or any such material indenture,
mortgage, contract, agreement or other undertaking or instrument.
Section 5.7 FINANCIAL CONDITION. The financial statements of the Borrower
(including the Borrower's Form 10-K and Form 10-Q) and its Subsidiaries,
copies of which have been furnished to the Lenders, were prepared in
accordance with GAAP and are complete and correct and fairly and accurately
present the financial condition of the Borrower and its Subsidiaries (taken as
a whole) as of their dates and the results of their operations for the periods
then ended. There has been no material adverse change in the financial
condition of the Borrower and the Guarantors (taken as a whole) or the results
of their operations since the date of such financial statements.
Section 5.8 USE OF PROCEEDS. None of the proceeds of any Loan have been or
will be used to purchase or carry, or reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the meaning of
Regulations G, U and X of the Board of Governors of the Federal Reserve
system) or to extend credit to others for the purchasing or carrying of any
margin stock. Neither the Borrower nor any of its Subsidiaries is engaged in
the business of extending credit for the purpose of purchasing or carrying any
margin stock.
Section 5.9 BORROWER NOT AN INVESTMENT COMPANY. Neither the Borrower nor any
of its Subsidiaries is an "investment company", or a company "controlled" by
an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
Section 5.10 TAXES. T he Borrower and its Subsidiaries have filed or caused
to be filed all tax returns which are required to be filed by them and have
paid or caused to be paid all taxes which have been shown to be due and
payable by such returns or (except to the extent being contested in good faith
and for the payment of which adequate reserves have been provided) tax
assessments received by the Borrower or any Subsidiary thereof to the extent
that such taxes have become due and payable.
Section 5.11 ENVIRONMENTAL MATTERS. The Borrower and its Subsidiaries
conduct their respective operations in compliance with all applicable laws and
regulations concerning the discharge of substances into the environment and
other environmental control matters, except to the extent that non-compliance
would not have a material adverse effect on the business, results of
operations or condition (financial or otherwise) of the Borrower and the
Guarantors (taken as a whole). Neither the Borrower nor any Subsidiary
thereof has any liability, contingent or otherwise, under any law, ordinance
or regulation relating to the storage, transport, disposal or release of
"oil", "petroleum products", "hazardous substance", "hazardous waste",
"hazardous material", "hazardous chemical substance", "refuse" or any other
term of similar import (as such terms are defined in any such law, ordinance
or regulation), except to the extent that any such liability would not have a
material adverse effect on the business, results of operations or condition
(financial or otherwise) of the Borrower and the Guarantors (taken as a
whole).
Section 5.12 SUBSIDIARIES. There are no Affiliates or Subsidiaries
(consolidated or otherwise, direct or indirect) of the Borrower other than (i)
the Guarantors, (ii) the Foreign Subsidiaries set forth on Schedule 5.12
hereof and (iii) in the case of Affiliates, certain other Persons disclosed in
writing to the Lenders prior to the date hereof. The Borrower is the holder
(either directly or indirectly) of all of the outstanding shares of capital
stock of each Subsidiary and, except as otherwise provided in the proviso
contained in Section 6.1(q) hereof, of each Foreign Subsidiary. All Foreign
Subsidiaries other than CACI Limited, CACI Virgin Islands, Inc., a corporation
organized under the laws of the United States Virgin Islands, and CACI
Nederland B.V., a corporation organized under the laws of The Netherlands, are
non-operating companies. Except for CACI N.V. and CACI Limited, no Foreign
Subsidiary is material to the financial condition or assets of the Borrower
and its Consolidated Subsidiaries, taken as a whole.
Section 5.13 YEAR 2000 COMPLIANCE. The Borrower has (i) initiated a review
and assessment of all areas within its and each of the Subsidiaries' business
and operations (including those affected by suppliers and vendors) that could
be adversely affected by the risk that computer applications used by the
Borrower or any of its Subsidiaries (or its suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999 (the "Year 2000
Problem"), (ii) developed a plan and timeline for addressing the Year 2000
Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. The Borrower reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be able to perform properly date-sensitive functions for all
dates before and after January 1, 2000 (such compliance, "Year 2000
Compliant"), except to the extent that a failure to do so could not reasonably
be expected to have a material adverse effect on the Borrower and the
Guarantors, taken as a whole.
ARTICLE VI
COVENANTS
Section 6.1 AFFIRMATIVE COVENANTS. The Borrower covenants and agrees for
itself and its Subsidiaries (in which case the Borrower shall cause such
Subsidiaries to take or refrain from taking the actions described below) that,
so long as this Agreement shall remain in effect or any Obligation shall
remain unpaid:
(a) AUDITED ANNUAL FINANCIALS. The Borrower shall deliver to the
Agent and each Lender, as soon as available but within 90 days of the end of
each fiscal year of the Borrower ending June 30 (each such year, a "Fiscal
Year"), a full and complete set of the annual audited consolidated financial
statements (including statements of financial condition, income, cash flows
and changes in shareholders' equity), together with all notes thereto, of the
Borrower and its Consolidated Subsidiaries prepared in accordance with GAAP
and certified by an independent accounting firm of national recognition
reasonably acceptable to the Required Lenders (which certificate shall be
accompanied by an unqualified opinion of such accounting firm of such
statements).
(b) QUARTERLY FINANCIAL STATEMENTS. The Borrower shall deliver to the
Agent and each Lender, as soon as available but within 48 days following the
end of each of the Borrower's Fiscal Quarters, internally prepared
consolidated and consolidating financial statements of the Borrower and its
Consolidated Subsidiaries (including a balance sheet, income statement and
statement of cash flows), together with (i) a report detailing the aggregate
amount and current age status of accounts receivable of the Borrower and any
of its Consolidated Subsidiaries, and (ii) a report, substantially in the form
of Exhibit F hereof, describing the current status of goods or services on
backlog with the Borrower or any such Consolidated Subsidiary, in each case as
of the end of such Fiscal Quarter]. The financial statements and reports
required to be delivered under this clause (b) shall be accompanied by a
certificate of an Authorized Officer of the Borrower, to the effect that the
information contained therein is true and accurate as of the date of such
certificate.
(c) EXCHANGE ACT AND SECURITIES ACT FILINGS. The Borrower shall
deliver to each Lender and the Agent, within 5 days following the filing with
the SEC, copies of all filings by it or any of its Subsidiaries under the
Exchange Act (including reports on Forms 10-Q, 10-K and 8-K) and registration
statements filed with the SEC under either the Securities Act or the Exchange
Act. The Borrower shall deliver to each Lender and the Agent copies of all of
the Borrower's Annual Reports and Proxy Statements and, at the request of such
Lender, any other shareholder communication.
(d) TAX FORMS. From time to time, the Borrower shall cause each of its
Foreign Subsidiaries to cooperate with each Lender and shall execute and
deliver to such Lender in a timely manner such forms (including Internal
Revenue Service Forms) and certificates as such Lender shall reasonably
request, in each case for the purpose of confirming that such Lender is
capable, under the provisions of any applicable tax treaty concluded with the
United States of America or any other applicable law, of receiving payments of
interest hereunder without deduction or withholding of any tax. In the event
that any such tax shall be required to be withheld or deducted, the Borrower
shall pay to such Lender an amount that would fully indemnify such Lender for
such withheld or deducted amount.
(e) FUNDED DEBT TO EBITDA RATIO. The Borrower and its Subsidiaries,
taken as a whole, shall maintain, for (and at all times during) each Fiscal
Quarter beginning with the Fiscal Quarter ending March 31, 1998 (the "Initial
Fiscal Quarter"), a ratio of Funded Debt to EBITDA of not greater than 3.00 to
1.00. The ratio contemplated by this clause (e) shall be computed on a
rolling four quarter basis and shall include the Fiscal Quarter for which such
ratio shall be determined plus the immediately preceding three Fiscal
Quarters; provided, however, that to the extent that any Target acquired in
accordance with Section 6.2(e) hereof shall not constitute a Subsidiary for a
month falling within such rolling four quarters at the time of the
determination of this ratio, then EBITDA for the purposes of this ratio shall
include, for such rolling four quarter basis as it relates to such Target, (i)
the pro forma EBITDA of such Target for that portion of the rolling four
quarter period during which the Target was not a Subsidiary of the Borrower,
and (ii) the actual EBITDA of the Target for that portion of the rolling four
quarter period during which the Target constitutes a Subsidiary of the
Borrower. For the purposes of illustration of the proviso to the preceding
sentence, if a Target is acquired on March 31, 2000 and the ratio contemplated
by this clause (e) shall be determined for the period ending June 30, 2000,
then such Target's pro forma EBITDA as it existed prior to the acquisition for
the quarters ending September 30, 1999, December 31, 1999 and March 31, 2000,
together with such Target's actual EBITDA as a Subsidiary of the Borrower for
the quarter ending June 30, 2000, shall be taken into account for the purposes
of calculating this ratio.
(f) CONSOLIDATED NET WORTH. The Borrower and its Subsidiaries, taken
as a whole, shall maintain, for (and at all times during) each Fiscal Quarter
beginning with the Initial Fiscal Quarter, a Consolidated Net Worth of not
less than (i) $70,000,000.00 plus (ii) fifty percent (50%) of Consolidated Net
Income (computed on a cumulative basis for each Fiscal Quarter during the term
of this Agreement, from the Initial Fiscal Quarter to the date of
determination without deducting any net losses during any Fiscal Quarter in
which there was a net loss) plus (iii) the net proceeds from the issuance of
any capital stock of the Borrower as determined on a cumulative basis.
(g) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. The Borrower and its
Subsidiaries, taken as a whole, shall at all times maintain, for (and at all
times during) each Fiscal Quarter beginning with the Initial Fiscal Quarter,
a ratio of Consolidated Cash Flow to Consolidated Fixed Charges of not less
than 2.00 to 1.00. The ratio contemplated by this clause (g) shall be
computed on a rolling four quarter basis and shall include the Fiscal Quarter
for which such ratio shall be determined plus the immediately preceding three
Fiscal Quarters; provided, however, that to the extent that any Target
acquired in accordance with Section 6.2(e) hereof shall not constitute a
Subsidiary for a month falling within such rolling four quarters at the time
of the determination of this ratio, then Consolidated Cash Flow for the
purposes of this ratio shall include, for such rolling four quarter basis as
it relates to such Target, (i) the pro forma Cash Flow of such Target for that
portion of the rolling four quarter period during which the Target was not a
Subsidiary of the Borrower, and (ii) the actual Cash Flow of the Target for
that portion of the rolling four quarter period during which the Target
constitutes a Subsidiary of the Borrower. For the purposes of illustration of
the proviso to the preceding sentence, if a Target is acquired on March 31,
2000 and the ratio contemplated by this clause (g) shall be determined for the
period ending June 30, 2000, then such Target's pro forma Cash Flow as it
existed prior to the acquisition for the quarters ending September 30, 1999,
December 31, 1999 and March 31, 2000, together with such Target's actual Cash
Flow as a Subsidiary of the Borrower for the quarter ending June 30, 2000,
shall be taken into account for the purposes of calculating this ratio.
(h) PROCEEDS. The Borrower shall use the proceeds of the Loans and the
Standby Letters of Credit for the Permitted Uses and for no other purpose.
(i) PAYMENT OF DEBTS AND TAXES. The Borrower and its
Subsidiaries shall pay all debts, liabilities, taxes, assessments and other
governmental charges when due in the ordinary course; provided, however, that
no such debt, liability, tax, assessment or other governmental charge need be
paid if such is being contested in good faith by appropriate legal proceedings
promptly initiated and diligently conducted and if such reserves or other
appropriate provision, if any, as shall be required by GAAP shall have been
made therefor.
(j) CONDUCT OF BUSINESS. The Borrower and its Subsidiaries shall
continue to engage in business of the same general type as now conducted by
the Borrower or Subsidiary. The Borrower and its Subsidiaries will conduct
and manage their respective business and affairs in the ordinary course, and
shall take all steps necessary and reasonable for the purpose of preserving
the value of their respective business and assets.
(k) PRESERVATION OF CORPORATE EXISTENCE. The Borrower and its
Subsidiaries shall at all times preserve and keep in full force and effect
their respective corporate existence and their respective rights, privileges,
licenses and franchises which are necessary in the normal conduct of their
business; provided, however, that without the consent of the Required Lenders,
the Borrower may cause any non-operating Subsidiary not a party to any Loan
Document or CACI Nederland B.V. to cease its corporate existence so long as
the assets of such entity are distributed to its parent company prior to such
cessation; and provided, further, that any Domestic Subsidiary of the Borrower
may merge with and into any other Domestic Subsidiary of the Borrower, and any
Foreign Subsidiary of the Borrower may merge with and into any other Foreign
Subsidiary of the Borrower, so long as the surviving entity resulting from
such merger shall have succeeded to all rights, assets, liabilities,
obligations and properties of the disappearing entity.
(l) BOOKS AND RECORDS. The Borrower and its Subsidiaries shall
at all times keep and maintain complete and accurate books, accounts and
records of its operations and affairs in accordance with customary and sound
business practices, and shall permit each Lender and the Agent and their
respective officers, employees, agents and representatives to, from time to
time upon reasonable notice, have access to its place of business, examine
such books, accounts and records and make copies thereof and discuss the
affairs and finances of the Borrower or its Subsidiary with any of their
respective officers or directors.
(m) INSURANCE. The Borrower and its Subsidiaries shall maintain
in full force and effect policies of insurance with responsible and reputable
insurance companies or associations in such amounts as are within an
acceptable range for and covering such risks as are usually and customarily
insured against by companies engaged in similar businesses and owning similar
properties in the same general area in which the Borrower or Subsidiary is
engaged.
(n) COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries
shall comply with all applicable laws, rules, regulations and orders of any
governmental or regulatory body or authority, a breach of which could have a
material adverse effect on the financial condition or business of the Borrower
and its Consolidated Subsidiaries (taken as a whole).
(o) COMPLIANCE WITH LOAN DOCUMENTS. The Borrower and its
Subsidiaries shall comply with the terms and agreements contained in each Loan
Document to which they are a party.
(p) LENDING RELATIONSHIP WITH THE AGENT. The Borrower shall
maintain with the Agent the Borrower Account.
(q) PARENT OWNERSHIP OF CONSOLIDATED SUBSIDIARIES. The Borrower
will, at all times, either directly or indirectly own all of the shares of
each class of capital stock of each Subsidiary thereof; provided, however,
that, in the case of any Foreign Subsidiary, not more than three percent (3%)
of such shares may be owned by Persons other than the Borrower or its
Subsidiaries. So long as any Obligation remains outstanding, the Borrower
shall continue to consolidate the accounts of each its Foreign and Domestic
Subsidiaries on the consolidated financial statements of the Borrower.
(r) NOTICE OF DEFAULT. The Borrower shall, promptly after
becoming aware thereof, deliver to each Lender and the Agent notice of any
Event of Default and Potential Event of Default, and such notice shall contain
an express reference to this Agreement and that such notice is a "notice of an
Event of Default" or "notice of Potential Event of Default," as the case may
be.
(s) NOTICE OF ENVIRONMENTAL CLAIMS. The Borrower shall deliver
to each Lender and the Agent a copy of any notice or other communication (i)
alleging any violation by the Borrower or its Subsidiaries of any laws or
regulations concerning the discharge of substances into the environment and
other environmental control matters or (ii) under which the Borrower or its
Subsidiaries shall admit to any such violation. Each copy of any such notice
shall be delivered to the Lenders and the Agent promptly following the receipt
or issuance thereof by the Borrower or such Subsidiary.
(t) PAYMENTS PARI PASSU. Under applicable laws in force from
time to time, the claims and rights of the Lenders and the Agent against the
Borrower and its Subsidiaries under the Loan Documents will not be subordinate
to, and will rank at least pari passu with, the claims and rights of each
other unsecured creditor of the Borrower and its Subsidiaries.
(u) YEAR 2000 COMPLIANCE. The Borrower will promptly notify the
Agent in the event the Borrower discovers or determines that any computer
application (including those of its suppliers and vendors) that is material to
its or any of its Subsidiaries' business and operations will not be Year 2000
Compliant on a timely basis, except to the extent that such failure could not
reasonably be expected to have a material adverse effect upon the Borrower and
the Guarantors, taken as a whole.
Section 6.2 NEGATIVE COVENANTS. The Borrower covenants and agrees for
itself and its Subsidiaries (in which case the Borrower shall cause such
Subsidiaries to take or refrain from taking the actions described below),
that, so long as this Agreement shall remain in effect or any Obligation shall
remain unpaid:
(a) LIENS. The Borrower and its Subsidiaries, taken as a whole, shall
not, directly or indirectly, create, incur, assume, grant, pledge or permit to
exist any Lien on the property or assets of the Borrower and its Subsidiaries,
taken as a whole, whether now owned or hereafter acquired, or any income or
profits therefrom, other than:
(i) any Lien (other than a Lien arising out of a purchase money
security interest) which, together with all such other similar Liens, are no
greater than $250,000;
(ii) any Lien which shall constitute a purchase money security
interest which, together with all such other similar Liens, are no greater
than $5,000,000; and
(iii) the Lien granted by the CACI N.V. under the Pledge Agreement
and the Lien granted by the Borrower under the Notarial Deed.
(b) INDEBTEDNESS. Neither the Borrower nor its Subsidiaries shall,
directly or indirectly, create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to, any Indebtedness, other than:
(i) the Indebtedness incurred by the Borrower hereunder and
evidenced by the Revolving Notes and the Swing Line Note and the Indebtedness
of the Guarantors under the Subsidiary Guarantee;
(ii) the Indebtedness incurred by CACI Limited under the loan
documents evidencing the U.K. Debt;
(iii) the Indebtedness evidenced by the Standby Letters of Credit,
if any, issued by the Lender in accordance with Section 2.3 hereof;
(iv) indebtedness of the type described in clauses (i) and (ii) of
Section 6.2(a) which does not exceed (in each case in the aggregate and as to
the Borrower and its Subsidiaries, taken as a whole) the respective amounts
set forth in such clauses (i) and (ii) of Section 6.2(a);
(v) (A) any guarantee, suretyship agreement, other similar
arrangement effecting the assumption of a debt or obligation of Borrower or
any Subsidiary, or the endorsement of any promissory note or other instrument
of obligation of any other Subsidiary thereof, in each case which is entered
into in the ordinary course of the Borrower's or Subsidiary's business and is
necessary and beneficial in connection with the operation thereof, or (B) any
guarantee, suretyship agreement, other similar arrangement effecting the
assumption of a debt or obligation of any Person (other than the Borrower or
Subsidiary thereof), or the endorsement of any promissory note or other
instrument of obligation of any Person (other than the Borrower or Subsidiary
thereof), in each case which is entered into in the ordinary course of the
Borrower's or its Subsidiaries' business, is necessary and beneficial in
connection with the operation thereof and the aggregate amount of all such
guarantees, suretyship agreements, or other similar arrangements shall not
exceed in the aggregate $1,000,000.00; and
(vi) trade debt, operating leases, accounts payable and other
similar indebtedness incurred in the ordinary course of the Borrower's or its
Subsidiaries' business.
(c) CAPITAL STOCK. Without the prior written consent of the Required
Lenders, neither the Borrower nor any Subsidiary thereof shall, directly or
indirectly, repurchase, redeem or retire any of their capital stock, create
new classes of capital stock, declare or pay any cash dividends on their
capital stock, except that the Borrower may:
(i) repurchase from time to time the capital stock of the
Borrower provided such repurchases do not, throughout the term of this
Agreement, exceed in the aggregate $10,000,000.00 and, provided further, that
after giving effect to any such repurchase, the Borrower shall be in
compliance with all provisions of this Agreement (including, without
limitation, all financial ratios contained in Section 6.1 hereof based on the
financial statements most recently provided by the Borrower to the Lenders);
(ii) declare and pay dividends or make other distributions on its
capital stock if the Borrower would be in compliance with all provisions of
this Agreement, including without limitation the financial ratios contained in
Section 6.1 hereof after giving effect to the payment or distribution thereof;
and
(iii) issue securities authorized under stock incentive plans
described in the Borrower's Form 10-K or Proxy Statement.
(d) LOAN. Neither the Borrower (nor any Subsidiary thereof) shall,
directly or indirectly, make any loans or advances to any corporate officers
or directors, or any employees, or any insiders or affiliates (as defined in
the Exchange Act) or to any Subsidiary of the Borrower not a party to the
Subsidiary Guarantee, other than:
(i) travel, relocation and other salary advances made in the
ordinary course of the Borrower's or its Subsidiaries' business;
(ii) loan the proceeds of the Revolving Loans or Swing Line Loans
to any Subsidiary of the Borrower that is not a party to the Subsidiary
Guarantee for the purpose of financing the acquisition of any Target as
contemplated by, and in accordance with the limitations contained in, Section
6.1(e) hereof (provided such Subsidiary shall have become a party to the
Subsidiary Guarantee in accordance with Section 6.2(h) hereof); and
(iii) loans to any officer of the Borrower for the purpose of
enabling such officer to purchase securities of the type described in Section
6.2(c)(iii) hereof; provided that the aggregate amount of all loans made
pursuant to this clause and outstanding from time to time shall not exceed
$500,000.00.
(e) NO MERGER OR ACQUISITION. Without the prior written consent of the
Required Lenders, neither the Borrower nor any Subsidiary thereof shall
acquire, whether by stock or asset purchase, merger, consolidation or other
business combination, any corporation, partnership, joint venture or other
business organization (any such entity, the "Target"); provided, however, that
the Borrower or any direct or indirect Consolidated Subsidiary thereof may
acquire, either by way of stock or asset acquisition, merger, consolidation or
otherwise, one or more Targets involved in a line of business similar to the
line of business of the Borrower if:
(i) for any calendar year during the term of this Agreement, the
aggregate consideration (whether such consideration shall consist of stock,
cash, the assumption of debt, or otherwise, and whether or not paid at closing
or deferred) (any such consideration, "Acquisition Consideration") paid for
all Targets acquired during such calendar year shall not exceed
$60,000,000.00; provided, however, that if Borrower either directly or
indirectly shall so acquire QuesTech, Inc., a Virginia corporation, on or
before December 31, 1998, then, solely with respect to the calendar year
ending December 31, 1998, such aggregate consideration paid for all Targets
during such calendar year ending December 31, 1998 shall not exceed
$75,000,000.00;
(ii) for any calendar year during the term of this Agreement, the
cash component (which, for the purposes of this clause (ii), shall include all
cash and cash equivalents and the assumption of debt, whether or not paid at
closing or deferred) of Acquisition Consideration paid for all Targets
acquired during such calendar year shall not exceed $40,000,000.00; provided,
however, that if Borrower either directly or indirectly shall so acquire
QuesTech, Inc., a Virginia corporation, on or before December 31, 1998, then,
solely with respect to the calendar year ending December 31, 1998, such cash
component of Acquisition Consideration paid for all Targets acquired during
such calendar year ending December 31, 1998 shall not exceed $55,000,000.00;
(iii) such Target's earnings before interest, taxes, depreciation
and amortization shall, for the 12 month period immediately preceding the
acquisition of such Target, be greater than $0.00;
(iv) the Borrower and its Subsidiaries shall, after giving effect
to the acquisition of any such Target as provided above, be in compliance with
all of the terms of this Agreement including the financial covenants described
in Sections 6.1(e), 6.1(f) and 6.1(g) hereof as determined on a pro-forma
basis;
(v) such acquisition, merger, consolidation (or otherwise) is not
hostile or pursued by way of tender offer, proxy contest or other contested
manner (unless the Required Lenders shall have waived in writing compliance
with this clause (v));
(vi) for any calendar year during the term of this Agreement
(including the calendar year beginning January 1, 1998), Targets that are not
organized under the laws of a state of the United States of America or the
District of Columbia may not be so acquired except to the extent that the
Aggregate Consideration paid for all such Targets during such calendar year
does not exceed $5,000,000.00;
(vii) such Target shall have become a party to the Subsidiary
Guarantee pursuant to an instrument in writing satisfactory to the Agent
(unless such Target shall, after giving effect to the acquisition thereof,
constitute a Foreign Subsidiary, in which case the entity acquiring the
capital stock or other equity interests of such Target shall pledge to the
Agent for the benefit of the Lenders, pursuant to a pledge agreement
satisfactory to the Agent, not more than 65% of the issued and outstanding
shares of capital stock or other equity interests of such Target); and
(viii) three (3) Business Days prior to consummation thereof, the
Borrower shall have delivered to the Agent (which shall promptly deliver a
copy to the Lenders) a certificate, executed by an Authorized Officer of the
Borrower, demonstrating in sufficient detail compliance with the financial
covenants contained in this Section 6.2(e) and, further, certifying that,
after giving effect to the consummation of such acquisition, merger,
consolidation (or otherwise), the representations and warranties of the
Borrower contained herein will be true and correct and that the Borrower, as
of the date of such consummation, will be in compliance with all other terms
and conditions contained herein.
(f) MODIFICATIONS OF U.K. DEBT. CACI Limited shall not amend or modify
in any respect any of the agreements or instruments delivered in connection
with the U.K. Debt, the effect of which would, as a result thereof, contravene
any of the provisions contained herein, increase the aggregate amount of the
loan facility thereunder (which, as of the date hereof, is 500,000 Pounds
Sterling) or otherwise adversely effect the ability of the Borrowers to make
any payments of the principal of, or interest on, any Loan or of any Unused
Portion Fee or Administrative Fee or L/C Fee or Fronting Fee or of any other
amounts payable hereunder, in each case in accordance with the provisions
hereof.
(g) FISCAL YEAR. The Borrower and its Subsidiaries shall not, without
the prior written consent of the Required Lenders, make any material change in
accounting policies or reporting practices, including a change in their Fiscal
Year.
(h) ADVANCES TO SUBSIDIARIES AND AFFILIATES. The Borrower shall not,
without the prior written consent of the Required Lenders, make any advances
(either directly or indirectly), whether such advances are made from the
proceeds of the Revolving Loans, any Swing Line Loan or Standby Letters of
Credit or otherwise, to any of its Subsidiaries or Affiliates not a party to
the Subsidiary Guarantee unless such Subsidiary or Affiliate shall have
entered into an agreement or instrument (in form and substance acceptable to
the Required Lenders) pursuant to which such Subsidiary or Affiliate shall
have agreed to be bound by all of the terms, conditions, covenants and
agreements contained in the Subsidiary Guarantee and such Subsidiary or
Affiliate shall have delivered such documents, certificates and opinions as
any Lender may reasonably request to implement such agreement or instrument.
(i) CREATION OF SUBSIDIARIES. Neither the Borrower nor any Subsidiary
thereof shall create or cause to be formed any Subsidiary without the consent
of the Required Lenders unless such Subsidiary is a Consolidated Subsidiary of
the Borrower and agrees to be bound by the terms and conditions of the
Subsidiary Guarantee pursuant to an agreement of the type and to the extent
described in clause (h) above; provided, however, that the Borrower or any of
its Domestic Subsidiaries may form a Domestic Subsidiary for the purpose of
implementing or giving effect to any acquisition permitted by Section 6.2(e)
without such newly formed Domestic Subsidiary being required to be a party to
the Subsidiary Guarantee so long as such newly formed Domestic Subsidiary
shall have received none of the proceeds of any Loan or shall have no material
assets.
(j) DISPOSITION OF ASSETS. Neither the Borrower nor any Subsidiary
thereof shall, without the prior written consent of the Required Lenders,
sell, transfer or otherwise dispose of (including by way of a sale and
leaseback transaction) any its assets (whether real or personal) other than in
the ordinary and usual course of its business.
(k) PERMITTED INVESTMENTS. Neither the Borrower nor the Subsidiary
thereof shall, without the prior written consent of the Required Lenders, make
any investment in any security (whether consisting of debt or equity or a
partnership, limited liability company or other interest) or like instrument
except for Permitted Investments (it being understood and agreed that this
clause (k) shall not prohibit the investment in any Target to the extent
permitted by the provisions of Section 6.2(e) hereof).
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 EVENTS OF DEFAULT. If one or more of the following events or
conditions (each, an "Event of Default") shall occur and be continuing, that
is to say:
(a) the Borrower defaults in the payment of principal of any Revolving
Note or the Swing Line Note when due, or any Guarantor defaults in observance
or performance of any agreement contained in Section 2 of the Subsidiary
Guarantee; or
(b) the Borrower defaults in the payment of interest on any Loan, or of
the Unused Portion Fee, the Administrative Fee, any L/C Fee, the Fronting Fee
or of any other fee, expense or other amount payable hereunder after the same
becomes due and payable for more than three (3) Business Days after notice
thereof has been given by the Agent to the Borrower (which notice may be
telephonic); or
(c) the Borrower or any Subsidiary defaults in any payment of principal
of or interest on, or fees and expenses relating to any other obligation for
borrowed money (including without limitation the obligations arising under the
U.K. Debt) beyond any period of grace provided with respect thereto or in the
performance of any other agreement, term or condition contained in any
instrument or agreement evidencing, securing, guaranteeing or otherwise
relating to any such obligation and shall not have cured such default within
any period of grace provided by such agreement and such obligation, either
individually or in the aggregate, is for an amount in excess of $250,000 of
the Indebtedness of the Borrower; or
(d) any written representation or warranty made by the Borrower, the
Guarantors or the Pledgors in or pursuant to this Agreement or any other Loan
Document or in any other documents, certificates, financial statements or
reports furnished by the Borrower, the Guarantors or the Pledgors or any
Subsidiary of any thereof in connection with the transactions contemplated
hereby shall prove to have been false or misleading in any material respect as
of the time made or furnished; or
(e) (i) the Borrower shall default in the performance or observance of
any covenant, condition or agreement contained in clause (c), (d), (h), (j),
(k), (l), (m), (s) or (t) of Section 6.1 and such default shall remained
unremedied for more than ten (10) Business Days, or (ii) the Borrower shall
default in the performance or observance of any other covenant, condition or
agreement contained in Section 6.1 or any covenant, condition or agreement
contained in Section 6.2; or
(f) the Borrower shall default in the performance or observance of any
other covenant, condition or provision hereof or in any other Loan Document or
any Pledgor shall default in the performance or observance of any covenant,
condition or provision in the Pledge Agreement or in the Notarial Deed or any
Guarantor shall default in the performance or observance of any covenant,
condition or provision in the Subsidiary Guarantee (other than Section 2
thereof, as to which clause (a) of this Section 7.1 relates), as the case may
be, and such default shall not be remedied within thirty (30) days after
written notice thereof is received by the Borrower (or, in the case of a
default under the Pledge Agreement, the Subsidiary Guarantee or the Notarial
Deed, as the case may be, the applicable Pledgor or Guarantor) from any Lender
or the Agent; or
(g) a proceeding (other than a proceeding commenced by the Borrower or
any Subsidiary thereof, as the case may be) shall have been instituted in a
court having jurisdiction in the premises seeking a decree or order for relief
in respect of the Borrower or such Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Borrower or such Subsidiary
or for any substantial part of its total assets, or for the winding-up or
liquidation of its affairs and such proceedings shall remain undismissed or
unstayed and in effect for a period of thirty (30) consecutive days or such
court shall enter a decree or order granting the relief sought in such
proceeding; or
(h) the Borrower or any Subsidiary thereof, as the case may be, shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the Borrower
or such Subsidiary or for any substantial part of its total assets, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action in furtherance of any of the foregoing; or
(i) a judgment or order shall be entered against the Borrower or any
Subsidiary thereof, by any court, and (i) in the case of a judgment or order
for the payment of money, either (A) such judgment or order shall continue
undischarged and unstayed for a period of fifteen (15) days in which the
aggregate amount of all such judgments and orders exceeds $100,000 or (B)
enforcement proceedings shall have been commenced upon such judgment or order
and (ii) in the case of any judgment or order for other than the payment of
money, such judgment or order could, in the reasonable judgment of any Lender,
together with all other such judgments or orders, have a materially adverse
effect on the Borrower and its Subsidiaries taken as a whole; or
(j) subject to the proviso contained in Section 6.1(q) hereof, the
Borrower shall cease to own (either directly or indirectly) 100% of the
outstanding capital stock or other equity interests of its Subsidiaries; or
(k) the occurrence of a material adverse change in the financial
condition, properties or assets of the Borrower and its Consolidated
Subsidiaries, taken as a whole; or
(l) (i) any Termination Event shall occur with respect to any Benefit
Plan, (ii) any Accumulated Funding Deficiency, whether or not waived, shall
exist with respect to any Benefit Plan, (iii) any Person shall engage in any
Prohibited Transaction involving any Benefit Plan, (iv) the Borrower or any
ERISA Affiliate shall be in "default" (as defined in ERISA Section 4219(c)(5))
with respect to payments owing to a Multiemployer Benefit Plan as a result of
the Borrower's or any ERISA Affiliate's complete or partial withdrawal (as
described in ERISA Section 4203 or 4205) from such Multiemployer Benefit Plan,
(v) the Borrower or any ERISA Affiliate shall fail to pay when due an amount
that is payable by it to the Pension Benefit Guaranty Corporation or to a
Benefit Plan under Title IV of ERISA, or (vi) a proceeding shall be instituted
by a fiduciary of any Benefit Plan against the Borrower or any ERISA Affiliate
to enforce ERISA Section 515 and such proceeding shall not have been dismissed
within 30 days thereafter, except that no event or condition referred to in
clauses (i) through (vi) shall constitute an Event of Default if it, together
with all other such events or conditions at the time existing, has not had,
and in the reasonable determination of the Required Lenders will not have, a
materially adverse effect on the Borrower and its Subsidiaries, taken as
whole; or
(m) if (i) the Borrower or any Subsidiary thereof shall be suspended or
debarred from contracting with the United States Government and such
suspension or debarment shall not have been lifted within fifteen (15) days
after the imposition thereof, or (ii) the United States Government shall have
terminated any contract to which the Borrower or any Consolidated Subsidiary
thereof is a party and such termination would have a material adverse effect
upon the financial condition or prospects of the Borrower and its Consolidated
Subsidiaries, taken as a whole;
(n) the occurrence of a Change in Control or a Potential Change in
Control; then, and upon any such event, the Agent, with the consent of the
Required Lenders, may (1) upon notice to the Borrower declare the entire
outstanding principal amount, if any, of the Revolving Notes, the Swing Line
Note, any and all accrued and unpaid interest thereon, the aggregate amount
outstanding under all Standby Letters of Credit, any and all accrued and
unpaid Unused Portion Fee, Administrative Fee, L/C Fees and the Fronting Fee,
and any and all other amounts payable by the Borrower to the Lenders or the
Agent under this Agreement or the Revolving Notes or the Swing Line Note to be
forthwith due and payable, whereupon the entire outstanding principal amount,
if any, of the Revolving Notes and the Swing Line Note, together with any and
all accrued and unpaid interest thereon, the aggregate amount outstanding
under all Standby Letters of Credit, any and all accrued and unpaid Unused
Portion Fee, Administrative Fee, the fees in respect of Standby Letters of
Credit, and any and all other such amounts and such reimbursement 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
Borrower; provided, however, that in the event of the entry of an order for
relief with respect to the Borrower or its Subsidiary under the Bankruptcy
Code, any principal amount of the Revolving Notes and the Swing Line Note then
outstanding, together with any and all accrued and unpaid interest thereon,
the aggregate amount outstanding under all Standby Letters of Credit, any and
all accrued and unpaid Unused Portion Fee, Administrative Fee and any fee in
respect of any Standby Letter of Credit, and any and all such other amounts
shall thereupon automatically become and be due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower; (2) terminate or reduce the Revolving Loan
Commitment; (3) exercise any rights and remedies available to it under any
Loan Document (including without limitation the Subsidiary Guarantee, the
Pledge Agreement and the Notarial Deed) or under applicable laws, including
without limitation any rights and remedies of a secured party under the
Uniform Commercial Code in effect in the Commonwealth of Virginia and under
the Netherlands Civil Code and under any other applicable laws.
ARTICLE VIII
THE AGENT
Section 8.1 APPOINTMENT OF AGENT.
(a) APPOINTMENT GENERALLY. Each of the Lenders hereby designates and
appoints NationsBank, N.A. as the Agent of such Lender under this Agreement
and the other Loan Documents, and each of the Lenders hereby irrevocably
authorizes the Agent to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers as are
set forth herein and therein, together with such other powers as are
incidental thereto. The Agent agrees to act as such on the express conditions
contained in this Article VIII.
(b) AGENT ACTS FOR LENDERS. The provisions of this Article VIII are
solely for the benefit of the Agent and the Lenders and the Borrower shall
have no right (including as third party beneficiary) to rely on or enforce any
of the provisions hereof. In performing its functions and other duties under
this Agreement and the other Loan Documents, the Agent shall act solely as
agent for the Lenders and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for
the Borrower or any of their Affiliates.
Section 8.2 NATURE OF DUTIES; NON-RELIANCE ON AGENT AND OTHER LENDERS.
(a) The Agent shall not have any duties or responsibilities except
those expressly set forth in this Agreement or in the other Loan Documents.
The duties of the Agent shall be mechanical and administrative in nature. The
Agent shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship in respect of any Lender and is not a trustee for the
Lenders. Nothing in this Agreement or any of the other Loan Documents,
expressed or implied, is intended to or shall be construed to impose upon the
Agent any obligations in respect of this Agreement or any of the other Loan
Documents except as expressly set forth herein and therein. If the Agent
seeks the consent or approval of the Lenders to the taking or refraining from
taking of any action hereunder, the Agent shall send notice thereof to each
Lender. The Agent shall promptly notify each Lender at any time the Required
Lenders or all of the Lenders, as the case may be, have instructed the Agent
to act or refrain from acting pursuant hereto. The Agent may execute any of
its duties hereunder or under any other Loan Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
(b) Each Lender expressly acknowledges that neither the Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the Agent
or any Affiliate thereof hereinafter taken, including any review of the
affairs of the Borrower or any Subsidiary thereof, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower and its
Subsidiaries and made its own decision to make its Loans and issue or
participate in the issuance of Standby Letters of Credit hereunder and enter
into this Agreement and the other Loan Documents to which it is a party. Each
Lender covenants that it will, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
or any other Loan Document to which it is a party, and to make such
investigations as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, assets, property, financial and other conditions,
prospects or creditworthiness of the Borrower and its Subsidiaries which may
come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
Section 8.3 RIGHTS, EXCULPATION, ETC. Neither the Agent nor any of its
Affiliates nor any of their respective officers, directors, employees, agents,
attorneys or consultants shall be liable to any Lender for any action taken or
omitted by it or such Person hereunder or under any of the other Loan
Documents, or in connection herewith or therewith, except that (i) the Agent
shall be obligated on the terms set forth herein for performance of its
express obligations hereunder, and (ii) neither the Agent nor any such other
Person shall have any liability hereunder or under any other Loan Document
except to the extent arising out of its own gross negligence or willful
misconduct (as determined by the final judgment of a court of competent
jurisdiction). The Agent shall not be liable for any apportionment or
distribution of payments made by it in good faith pursuant to the terms of
this Agreement and if any such apportionment or distribution is subsequently
determined to have been made in error the sole recourse of any Lender to whom
payment was due, but not made, shall be to recover from other Lenders any
payment in excess of the amount to which they are determined to have been
entitled. The Agent shall not be responsible to any Lender for any recitals,
statements, representations or warranties made by the Borrower or Subsidiary
thereof in this Agreement or in any other Loan Document or in any other
document, certificate report or financial statement delivered by the Borrower
or any Subsidiary thereof in connection herewith or therewith or for the
execution, effectiveness, genuineness, validity, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents, or any of the transactions contemplated thereby, or for the
financial condition of the Borrower or any of its Subsidiaries. The Agent
shall not be required to make any inquiry concerning conditions of this
Agreement or any of the Loan Documents or the financial condition of the
Borrower or its Subsidiaries or the existence or possible existence of any
Potential Event of Default or Event of Default. The Agent may at any time
request instructions from the Lenders with respect to any actions or approvals
which by the terms of this Agreement or of any of the other Loan Documents the
Agent is permitted or required to take or to grant, and if such instructions
are promptly requested, the Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not incur any
liability whatsoever to any Person for refraining from any action or
withholding any approval under any of the Loan Documents until it shall have
received such instructions from the Required Lenders or, to the extent
specifically provided herein, all the Lenders or unless it shall first be
indemnified by the Lenders against any and all liability and expense which may
be incurred by it by reason of refraining to take any action or withholding
any approval. Without limiting the foregoing, no Lender shall have any right
of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting under this Agreement or any of the other Loan Documents
in accordance with the instructions of the Required Lenders or, to the extent
specifically provided herein, all the Lenders, and such instructions shall be
binding upon all Lenders (including their successors and assigns).
Section 8.4 RELIANCE; NOTICE OF DEFAULT.
(a) The Agent shall be entitled to rely upon any written notice,
statement, certificate, order, letter, cablegram, telegram, telecopy, telex or
teletype message, statement or other document or any telephone message
believed by it in good faith to be genuine and correct and to have been signed
or made by the proper Person, and with respect to all matters pertaining to
this Agreement or any of the other Loan Documents and its duties hereunder or
thereunder, upon advice of legal counsel (including counsel for the Borrower,
the Guarantors or the Pledgors), independent public accountants and other
experts selected by it with reasonable care. The Agent may deem and treat
each Lender as the owner of its interests hereunder for all purposes unless
and until the Agent shall have received a duly executed instrument of
assignment as contemplated by Section 9.8(c) hereof and the other conditions
to assignment, to the extent applicable, shall have been satisfied.
(b) The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Event of Default or Potential Event of Default unless the
Agent has received notice from a Lender or the Borrower referring to this
Agreement, describing such Event of Default or Potential Event of Default and
stating that such notice is a "notice of Event of Default" of "notice of
Potential Event of Default", as the case may be. The Agent shall take such
action with respect to such Event of Default or Potential Event of Default as
shall be reasonably directed by the Required Lenders.
Section 8.5 INDEMNIFICATION. To the extent that the Agent is not reimbursed
and indemnified by the Borrowers or the Borrowers fail upon demand by the
Agent to perform their obligations to reimburse or indemnify the Agent, the
Lenders will severally reimburse and indemnify the Agent for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the Agent
in any way relating to or arising out of this Agreement or any of the other
Loan Documents or any action taken or omitted by the Agent under this
Agreement or any of the other Loan Documents, in proportion to each Lender's
Pro Rata Share; provided, that no Lender shall be liable for (i) any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct (as determined by the final judgment of
a court of competent jurisdiction) or (ii) the legal fees and expenses
incurred by the Agent in connection with the execution and delivery of this
Agreement and the other Loan Documents (to the extent not reimbursed by the
Borrower). The obligations of the Lenders under this Section 8.5 shall
survive the payment in full of the Revolving Loans and the Swing Line Loans
and the termination of this Agreement.
Section 8.6 THE AGENT INDIVIDUALLY. With respect to its Pro Rata Share
hereunder and the Revolving Loans, Swing Line Loans, if any, and Standby
Letters of Credit made by it, the Agent shall have and may exercise the same
rights and powers hereunder and is subject to the same obligations and
liabilities as and to the extent set forth herein for any other Lender. The
term "Lenders" or "Required Lenders" or any similar terms shall, unless the
context clearly otherwise indicates, include the Agent in its individual
capacity as a Lender. The Agent and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Borrower as if it were not acting as Agent pursuant hereto.
Section 8.7 SUCCESSOR AGENT; RESIGNATION OF AGENT.
(a) The Agent may resign from the performance of its functions and
duties hereunder at any time by giving at least twenty (20) days' prior
written notice to the Lenders and the Borrower. In the event that the Agent
gives notice of its desire to resign from the performance of its functions and
duties as Agent, any such resignation shall take effect only upon the
acceptance by a successor Agent of appointment pursuant to clauses (b) and
(c) below.
(b) The Required Lenders shall jointly appoint a successor Agent, which
shall be a Lender hereunder.
(c) If a successor Agent shall not have been so appointed within said
twenty (20) day period, the retiring Agent shall then appoint a successor
Agent who shall serve as Agent until such time, if any, as the Lenders appoint
a successor Agent as provided above, it being understood and agreed that any
successor Agent so appointed by the retiring Agent pursuant to this clause (c)
need not be, notwithstanding the provisions of clause (b) above, a Lender
hereunder so long as such successor Agent is a commercial bank organized under
the laws of the United States of America or of any State thereof or of the
District of Columbia and has a combined capital and surplus of at least
$400,000,000.00.
(d) Upon the appointment of a successor Agent, the term "Agent" shall,
for all purposes of this Agreement and the other Loan Documents, thereafter
include such successor Agent, the retiring Agent shall be discharged from its
duties and obligations as Agent, as appropriate, under this Agreement and the
other Loan Documents and the successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Agent, except that the retiring Agent shall reserve all rights as to
obligations accrued or due to it, in its capacity as such, at the time of such
succession and all rights (whenever arising) under Section 9.10 hereof.
Section 8.8 CERTAIN MATTERS REQUIRING THE CONSENT OF ALL LENDERS. Subject to
the provisions of Section 8.9(ii) hereof, the consent of all the Lenders shall
be required for taking any of the following required or permitted actions
hereunder:
(i) any decrease or increase in any interest rate or margin applicable
to any Loan or in any fee payable hereunder, or change in the method of
computing the interest rate or margin applicable to any Loan or in any fee
payable hereunder;
(ii) any change in the Maturity Date;
(iii) any increase in the Facility Amount;
(iv) the release of any collateral, including but not limited to the
CACI Limited Shares and the CACI N.V. Shares;
(v) any change in the definition of Required Lenders;
(vi) any assignment or delegation of Borrower's Obligations and rights
hereunder;
(vii) any change in the definition of Pro Rata Share;
(viii) any amendment, modification or waiver of this Section 8.8; and
(ix) any postponement of the date of payment of any principal, interest
or fees (other than the Administrative Fee, which may be postponed or waived
at the sole discretion of the Agent) due hereunder.
For the avoidance of doubt, all other actions, consents, waivers and
amendments permitted or required hereunder by the Lenders shall be by the
Required Lenders (unless such action, consent, waiver or amendment shall
relate only to an individual Lender, in which case such action may be taken by
such Lender individually).
Section 8.9 DEFAULTING LENDERS VOTE NOT COUNTED. Whenever the "Required
Lenders" or "all the Lenders" shall be required or permitted to take any
action pursuant to the provisions of any Loan Document, for so long as a
Lender shall be in default of its obligation to advance its Pro Rata Share of
any Loan or advance any other funds to the Agent or any other Lender as
required hereunder:
(i) until the earlier of the cure of such default and the termination
of the Revolving Loan Commitment, the term Required Lenders for purposes of
this Agreement shall mean Lenders (excluding all Lenders whose default shall
have not been cured) whose Pro Rata Shares represent more than sixty-six and
two-thirds percent (66 2/3%) of the aggregate Pro Rata Shares of such Lenders;
and
(ii) until the earlier of the cure of such default and the termination
of the Revolving Loan Commitment, the term "all the Lenders" for purposes of
this Agreement shall mean Lenders (excluding all Lenders whose default shall
have not been cured) whose Pro Rata Shares represent one hundred percent
(100%) of the aggregate Pro Rata Shares of such Lenders.
ARTICLE IX
MISCELLANEOUS
Section 9.1 AMENDMENTS AND WAIVERS; CUMULATIVE REMEDIES. No delay or
failure of any Lender or the Agent or the holder of any the Revolving Notes or
the Swing Line Note in exercising any right, power or privilege hereunder or
under any other Loan Document shall affect such right, power or privilege; nor
shall any single or partial exercise thereof or any abandonment or
discontinuance of steps to enforce such a right, power or privilege preclude
any further exercise thereof or of any other right, power or privilege. The
rights and remedies of any Lender or the Agent or any other holder of the
Revolving Notes or the Swing Line Note are cumulative and not exclusive of any
rights or remedies which any of them would otherwise have. Neither this
Agreement or any other Loan Document, nor any term, condition, representation,
warranty, covenant or agreement hereof or thereof, may be changed, waived,
discharged or terminated orally but only by an instrument in writing executed
by the party against whom such change, waiver, discharge or termination is
sought. Any waiver, permit, consent or approval of any kind or character
(whether involving a breach, default, provision, condition or term hereof or
otherwise) on the part of any Lender or the Agent or any other holder of any
Note, or of the Borrower under this Agreement, or under any other Loan
Document shall be effective only in the specific instance and for the purpose
for which given and only to the extent set forth specifically in writing. No
notice or demand given hereunder shall entitle the recipient thereof to any
other or further notice or demand in similar or other circumstances.
Section 9.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties, covenants and agreements of the Borrower, the
Guarantors and the Pledgors contained herein or made in writing in connection
herewith shall survive the execution and delivery of this Agreement, the
Subsidiary Guarantee, the Pledge Agreement and the Notarial Deed, the making
of Loans hereunder and the issuance of the Notes.
Section 9.3 SUPERVENING ILLEGALITY. If, after the Effective Date, as the
result of (i) the adoption of any law, rule or regulation by any Governmental
Body, (ii) any change in the existing laws, rules and regulations of any
Governmental Body, (iii) the issuance of any order or decree by any
Governmental Body, (iv) any change in the interpretation or administration of
any applicable law, rule, regulation, order or decree by any Governmental Body
(including any central bank or similar agency) charged with the
interpretations or administration thereof, or (v) compliance by any Lender
with any request or directive (whether or not having the force of law) of any
Governmental Body, it shall be unlawful or impossible for any Lender to
maintain the Revolving Loans or the Swing Line Loans, such Lender shall so
notify the Borrower and the Agent and such Lender, by giving the Borrower at
least one hundred twenty (120) Business Days' prior written notice, may
require the Borrower to prepay the aggregate principal amount of, and all
accrued and unpaid Unused Portion Fee and all other fees and all accrued and
unpaid interest on, the Revolving Loans and the Swing Line Loans, as the case
may be (together with any other amounts that may become payable hereunder as a
result thereof, including all amounts pursuant to Section 9.10 of this
Agreement), on a Business Day (the "Prepayment Date") specified in such
notice. If after the date of this Agreement and prior to the initial Funding
Date it shall become unlawful for any Lender to make any Revolving Loans or
Swing Line Loans hereunder or to maintain its Commitment, this Agreement shall
terminate forthwith with respect to such Lender and neither such Lender nor
the Borrower shall have any further rights or obligations under this
Agreement, provided, however, that the Borrower, in the event of any
termination pursuant to this second sentence of Section 9.3, shall pay to such
Lender the amount of all accrued and unpaid fees, if any, together with all
amounts then due pursuant to Section 9.10 hereof. If it shall become unlawful
for any such Lender to make any Revolving Loans or Swing Line Loans as
provided in this Section 9.3, the Revolving Loan Commitment shall
automatically be deemed to be decreased in the amount of such Lender's Pro
Rata Share, and the Commitment of each such other Lender shall be adjusted
accordingly.
Section 9.4 NO REDUCTION IN PAYMENTS. All payments due to the Lenders
hereunder, and all other terms, conditions, covenants and agreements to be
observed and performed by the Borrower hereunder, shall be made, observed or
performed by the Borrower without any reduction or deduction whatsoever,
including any reduction or deduction for any set-off, recoupment, counterclaim
(whether sounding in tort, contract or otherwise) or tax.
Section 9.5 STAMP TAXES. The Borrower, on behalf of the Guarantors and the
Pledgors, agrees to pay, and to save each Lender harmless from all liability
for, any State or Federal stamp, transfer, documentary or similar taxes,
assessments or charges (herein "Stamp Taxes"), and any penalties or interest
with respect thereto, which may be assessed, levied, collected or imposed by
or upon such Lender, or otherwise become payable by such Lender, in connection
with the execution and delivery of this Agreement or the other Loan
Documents.
Section 9.6 NOTICES. Any notice, statement, request or demand required or
permitted hereunder to be in writing may be given by telecopy, telex, cable or
other customary means of electronic communication or by registered or
certified mail (return receipt requested) or express courier, postage
prepaid. All notices, statements, requests and demands given to or made upon
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given or made, in the case of telephonic notice (to the
extent expressly permitted hereunder) when made, or in the case of any other
type of notice, when actually received, if:
to the Borrower, to it at:
CACI International Inc
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
if to the Agent, to it at:
NationsBank, N.A.
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▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
and if to any Lender, to it at its
address specified opposite its name
on the signature pages hereto.
or such other address for notice as any party hereto may designate for itself
in a notice to the other party, except in cases where it is expressly provided
herein that such notice, statement, request or demand shall not be effective
until received by the party to whom it is addressed.
Section 9.7 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN THE NOTARIAL DEED) SHALL BE DEEMED TO BE CONTRACTS UNDER THE LAWS
OF THE COMMONWEALTH OF VIRGINIA AND, FOR ALL PURPOSES, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES.
Section 9.8 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective permitted
successors and assigns of the parties hereto, provided that the Borrower may
not assign or transfer any of its interest hereunder without the prior written
consent of the Lenders and the Agent.
(b) PARTICIPATIONS. Any Lender may sell participation in all or any
part of the Revolving Loans made by it or its Commitment or any other interest
herein or in its Revolving Note or in any other document delivered or
instrument delivered in connection herewith to another bank or other entity.
In the case of such participation by a Lender, (i) the participant shall not
have any rights under this Agreement or the applicable Revolving Note or any
other document or instrument delivered in connection herewith (the
participant's rights against such Lender in respect of such participation to
be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto), (ii) all amounts payable by the Borrower shall
be determined as if such Lender had not sold such participation and (iii) the
Borrower shall continue to deal directly with such Lender with respect to the
transactions contemplated hereby.
(c) ASSIGNMENTS. Each Lender may assign any of its rights or interests
under the Loan Documents to one or more financial institutions, provided that:
(i) each such assignment shall be in an amount not less than
$10,000,000.00 (or such lesser amount if, after giving effect to such
assignment and all other assignments by such Lender occurring substantially
simultaneously therewith, such assigning Lender shall hold no Commitment or
any Revolving Loan);
(ii) each such assignment by a Lender of its Commitment or
Revolving Loans shall be made in such manner so that the same portion of such
Lender's Commitment, Revolving Loans, Revolving Note and obligations in
respect of any Standby Letter of Credit is assigned to the respective assignee
Lender;
(iii) the assigning Lender shall pay to the Agent a one-time fee in
the amount of $3,500.00; and
(iv) the Agent shall have consented to such Assignment, which
consent shall not be unreasonably withheld or delayed.
Upon execution and delivery by the assignee to the Borrower and the Agent of
an instrument in writing pursuant to which such assignee agrees to be a
"Lender" hereunder (if not already a Lender) having the Commitment and
Revolving Loans specified in such assignment, and upon the consent of the
Agent as provided above, the assignee shall have, to the extent of such
assignment, the rights, benefits and obligations of a Lender hereunder holding
the Commitment, Revolving Loans (or portions thereof) and Standby Letters of
Credit or deemed participations therein, as applicable, assigned to it
pursuant to such assignment (in addition to the Commitment, Revolving Loans
(or portions thereof) and Standby Letters of Credit or deemed participations
therein, as applicable, theretofore held by such assignee), and the assigning
Lender shall, to the extent of such assignment, be relieved from its
Commitment (or portion thereof) and other obligations hereunder so assigned.
Section 9.9 AFFIRMATIVE RATE OF INTEREST PERMITTED BY LAW. Nothing in this
Agreement or in any Note shall require the Borrower to pay interest to the
Agent for the account of the Lenders at a rate exceeding the maximum rate
permitted by applicable law to be charged or received by the Lenders, it being
understood that this Section 9.9 is not intended to make the criminal laws of
any jurisdiction applicable in circumstances in which they would not otherwise
apply. If the rate of interest specified herein, in any Revolving Note or in
the Swing Line Note would otherwise exceed the maximum rate so permitted to be
charged or received with respect to any amounts outstanding hereunder or under
such Revolving Note or the Swing Line Note, the rate of interest required to
be paid to the Agent for the account of the Lenders shall be automatically
reduced to such maximum rate.
Section 9.10 COSTS AND EXPENSES; INDEMNIFICATION.
(a) Without regard to whether the Effective Date shall have come into
existence or whether any Revolving Loan or Swing Line Loan or Standby Letter
of Credit shall have been made or issued hereunder, the Borrower, on behalf of
the Guarantors and the Pledgors, shall pay to each Lender and the Agent, as
the case may be, and reimburse each Lender and the Agent for, as the case may
be, and save each Lender and the Agent, as the case may be, harmless from and
indemnify each Lender and the Agent, as the case may be, against losses from:
(i) in the case of the Agent, (x) all out-of-pocket cost and
expenses of the Agent in connection with the preparation, execution, delivery,
waiver, modification and amendment of this Agreement and any other Loan
Document (to the extent applicable) and any other document or instrument
delivered in connection with the transactions contemplated hereby, including,
without limitation, the reasonable fees and expenses of counsel for the Agent
with respect thereto, and (y) all out-of-pocket costs and expenses, if any
(including without limitation, reasonable counsel fees and expenses), of such
Agent in such capacity in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement and any other
Loan Document and any other document or instrument delivered in connection
with the transactions contemplated hereby, including, for the avoidance of
doubt and without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this clause (i); and
(ii) in the case of any Lender, all out-of-pocket costs and
expenses, if any (including without limitation, reasonable counsel fees and
expenses), of such Lender in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement and any other
Loan Document and any other document or instrument delivered in connection
with the transactions contemplated hereby, including, for the avoidance of
doubt and without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this clause (ii).
(b) The Borrower, on behalf of itself, the Guarantors and the Pledgors,
shall indemnify and hold harmless each Lender, the Agent and their respective
affiliates, officers, directors, employees, agents and advisors (each, an
"Indemnified Person") from and against, and pay and reimburse each Indemnified
Person for, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and disbursements of counsel)
which may be incurred by or asserted or awarded against any Indemnified Person
in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation,
litigation or proceeding arising out of, related to or in connection with this
Agreement, the Subsidiary Guarantee, the Pledge Agreement, the Notarial Deed,
the Revolving Notes, the Swing Line Note and any other document or instrument
delivered in connection with the transactions contemplated hereby, whether or
not an Indemnified Person is a party hereto or thereto and whether or not the
Effective Date shall have come into existence or any Revolving Loan or Swing
Line Loan or Standby Letter of Credit has been made or issued under this
Agreement; provided, however, that, and except as specifically limited by the
next succeeding proviso, the Borrower shall have no obligation to indemnify or
hold harmless any Indemnified Person for liability or expenses to the extent
arising out of such Indemnified Person's gross negligence or willful
misconduct; and provided, further, and that the Borrower shall have no
obligation to indemnify or hold harmless any Indemnified Person for liability
or expenses arising out of any investigation, litigation or proceeding
instituted by the Borrower against an Indemnified Person if such liability or
expenses are attributable to the negligence of such Indemnified Person in the
performance of such Indemnified Person's obligations under any Loan Document
as finally determined by a court of competent jurisdiction or as mutually
agreed upon by such Indemnified Person and the Borrower (it being understood
and agreed that nothing contained in this proviso shall have the effect of
limiting or otherwise prejudicing any Indemnified Person's right to
indemnification hereunder for liability or expenses arising out of any
investigation, litigation or proceeding instituted by the Borrower against an
Indemnified Person in connection with any action or inaction taken by such
Indemnified Person under, pursuant to or in connection with Section 2.3 hereof
unless such liability or expenses are attributable to such Indemnified
Person's gross negligence or willful misconduct.)
(c) All amounts payable by the Borrower under this Section 9.10 shall
be immediately due upon written request by a Lender or the Agent, as the case
may be, for the payment thereof. The obligations of the Borrower under this
Section 9.10 shall survive the payment of the Revolving Notes and the Swing
Line Note.
Section 9.11 SET-OFF; SUSPENSION OF PAYMENT AND PERFORMANCE. Each Lender and
the Agent is hereby authorized by the Borrower, at any time and from time to
time, without notice (a) during any Event of Default, to set off against, and
to appropriate and apply to the payment of, the liabilities of the Borrower
then due under this Agreement and any other Loan Document any and all
liabilities owing by any Lender or the Agent or any of their Affiliates to the
Borrower (whether payable in Dollars or any other currency, whether matured or
unmatured and, in the case of liabilities that are deposits (including,
without limitation, any funds from time to time on deposit in the Borrower
Account or other account maintained with any Lender or the Agent Lender,
whether general or special, time or demand and however evidenced and whether
maintained at a branch or office located within or without the United States),
and (b) during any Event of Default, to suspend the payment and performance of
such liabilities owing by such Person or its Affiliates and, in the case of
liabilities that are deposits, to return as unpaid for insufficient funds any
and all checks and other items drawn against such deposits.
Section 9.12 JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. Any judicial
proceeding brought against the Borrower with respect to any Credit Agreement
Related Claim may be brought in any court of competent jurisdiction in the
Commonwealth of Virginia, and, by execution and delivery of this Agreement,
the Borrower (a) accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and irrevocably
agrees to be bound by any judgment rendered thereby in connection with any
Credit Agreement Related Claim and (b) irrevocably waives any objection it may
now or hereafter have as to the venue of any such proceeding brought in such a
court or that such a court is an inconvenient forum. The Borrower hereby
waives personal service of process and consents that service of process upon
it may be made by certified or registered mail, return receipt requested, at
its address specified or determined in accordance with the provisions of
Section 9.6 of this Agreement, and service so made shall be deemed completed
on the earlier of (x) the receipt thereof and (y) the fifth (5th) Business Day
after such service is deposited in the mail. Nothing herein shall affect the
right of any Lender, the Agent or any other Indemnified Person to serve
process in any other manner permitted by law or shall limit the right of any
Lender, the Agent or any other Indemnified Person to bring proceedings against
the Borrower in the courts of any other jurisdiction. Any judicial proceeding
by the Borrower against any Lender or the Agent involving any Credit Agreement
Related Claim shall be brought only in a court located in the Commonwealth of
Virginia. THE BORROWER AND THE LENDERS AND THE AGENT HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING ANY CREDIT
AGREEMENT RELATED CLAIM.
Section 9.13 INTEGRATION. This Agreement and the Other Loan Documents
constitute the entire agreement of the Agent, the Lenders, the Borrower and
the Guarantors with respect to the subject matter hereof and thereof, and
there are no promises, undertakings, representations or warranties by the
Agent or any Lender relative to the subject matter hereof or thereof not
expressly set forth or referred to herein or in the other Loan Documents.
Section 9.14 FURTHER ACTS AND ASSURANCES. The Borrower shall, and shall
cause the Guarantors or CACI N.V. to, promptly and duly execute and deliver to
a Lender or the Agent, as the case may be, and to such other persons as such
Lender or the Agent shall designate, such further instruments and shall take
such further action as may be required by law or as such Lender or the Agent
may from time to time request in order more effectively to carry out and
accomplish the intent and purpose of this Agreement and the other Loan
Documents and to establish and protect the rights and remedies created or
intended to be created in favor of the Lender hereunder or under any other
Loan Document.
Section 9.15 NO FIDUCIARY RELATIONSHIP. The Borrower acknowledges that no
provision of this Agreement or in any of the other Loan Documents, and no
course of dealing between any Lender or the Agent and the Borrower, the
Guarantors or CACI N.V. shall be deemed to create any fiduciary duty by the
Agent or any Lender to the Borrower, the Guarantors and CACI N.V.
Section 9.16 SEVERABILITY. The provisions of this Agreement are severable,
and if any clause or provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such clause or
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 of such clause or provision in any other jurisdiction or the
remaining provisions hereof in any jurisdiction.
Section 9.17 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each
complete set of which, when so executed and delivered by all parties, shall be
an original, but all such counterparts shall together constitute but one and
the same instrument.
Section 9.18 HEADINGS, BOLD TYPE AND TABLE OF CONTENTS. The section
headings, subsection headings, and bold type used herein and the Table of
Contents hereto have been inserted for convenience of reference only and do
not constitute matters to be considered in interpreting this Agreement.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
BORROWER
--------
CACI INTERNATIONAL INC
By: /s/
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
AGENT
-----
Address: NATIONSBANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/
Fifth Floor ---------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
LENDERS
-------
Address: NATIONSBANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/
Fifth Floor ---------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: FIRST UNION COMMERCIAL
CORPORATION
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ By: /s/
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ---------------------------------
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: MELLON BANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ---------------------------------
Attention: Ms. Crissola ▇▇▇▇▇▇▇ Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Address: CRESTAR BANK
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ---------------------------------
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇ Name: R. ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Title: Vice President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit C to
Revolving Credit Agreement
FORM OF
REVOLVING NOTE
--------------
REVOLVING NOTE
U.S.$ Dated: June , 1998
--------------------- ---
FOR VALUE RECEIVED, the undersigned, CACI International Inc, a Delaware
corporation, (the "Borrower"), hereby promises to pay on June , 2003 (the
---
"Maturity Date") to the order of [NATIONSBANK, N.A.] [FIRST UNION COMMERCIAL
CORPORATION] [MELLON BANK, N.A.] [CRESTAR BANK] (the "Lender") the principal
amount of the lesser of (x) MILLION UNITED STATES DOLLARS
----------
($ ) and (y) the aggregate amount of Revolving Loans made by the
-----------
Lender to the Borrower pursuant to the Agreement (as hereinafter defined) and
remaining outstanding on such date. Capitalized terms used (but not defined)
in this Revolving Note shall have the meanings given to them in the Agreement
(as hereinafter defined).
The Borrower promises to pay interest from the initial Funding Date of
such Revolving Loans until the Maturity Date on the principal amount of this
Revolving Note from time to time outstanding at the rate, and in the manner,
prescribed in the Agreement. Any principal amount of, or any interest accrued
on, this Revolving Note which is not paid on the date due shall bear interest
from such due date until paid in full at the Default Rate. In no event shall
the rate of interest borne by this Revolving Note at any time exceed the
maximum rate of interest permitted at that time under applicable law.
Payments of the principal amount of and interest on this Revolving Note
shall be made in lawful money of the United States of America to the Lending
Office of the Agent on behalf of the Lender as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Revolving Credit Agreement, dated as of June , 1998 (the "Agreement"),
---
between the Lender, the other financial institutions from time to time a party
thereto, the Borrower and the Agent. The Lender is entitled to the rights and
benefits of the Agreement and the other Loan Documents, and the Agent, for the
benefit of the Lender, is secured by certain collateral described in the
Pledge Agreement and the Notarial Deed and is entitled to the benefits of the
Subsidiary Guarantee. The Agreement, among other things, contains provisions
for optional and mandatory prepayments on account of the principal of this
Revolving Note by the Borrower and for acceleration of the maturity of this
Revolving Note upon the terms and conditions therein specified.
THIS REVOLVING NOTE IS BEING ISSUED IN THE COMMONWEALTH OF VIRGINIA AND
FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF VIRGINIA WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES.
CACI INTERNATIONAL INC
By: /s/
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
ARTICLE I
Exhibit E to
Revolving Credit Agreement
FORM OF
SWING LINE NOTE
---------------
SWING LINE NOTE
U.S.$10,000,000.00 Dated: June , 1998
---
FOR VALUE RECEIVED, the undersigned, CACI International Inc, a Delaware
corporation (the "Borrower"), hereby promises to pay on June , 2003 (the
---
"Maturity Date") to the order of NATIONSBANK, N.A. (the "Lender") the
principal amount of the lesser of (x) TEN MILLION UNITED STATES DOLLARS
($10,000,000.00) and (y) the aggregate amount of Swing Line Loans made by the
Lender to the Borrower pursuant to the Agreement (as hereinafter defined) and
remaining outstanding on such date. Capitalized terms used (but not defined)
in this Swing Line Note shall have the meanings given to them in the Agreement
(as hereinafter defined).
The Borrower promises to pay interest from the initial Funding Date of
such Swing Line Loans until the Maturity Date on the principal amount of this
Swing Line Note from time to time outstanding at the rate, and in the manner,
prescribed in the Agreement. Any principal amount of, or any interest accrued
on, this Swing Line Note which is not paid on the date due shall bear interest
from such due date until paid in full at the Default Rate. In no event shall
the rate of interest borne by this Swing Line Note at any time exceed the
maximum rate of interest permitted at that time under applicable law.
Payments of the principal amount of and interest on this Swing Line Note
shall be made in lawful money of the United States of America to the Lending
Office of the Agent on behalf of the Lenders as provided in the Agreement.
This Swing Line Note is the Swing Line Note referred to in the Revolving
Credit Agreement, dated as of June , 1998 (the "Agreement"), between the
---
Lender, the other financial institutions from time to time a party thereto,
the Borrower and the Agent. The Lender is entitled to the rights and benefits
of the Agreement and the other Loan Documents, and the Agent, for the benefit
of the Lender, is secured by certain collateral described in the Pledge
Agreement and the Notarial Deed and is entitled to the benefits of the
Subsidiary Guarantee. The Agreement, among other things, contains provisions
for optional and mandatory prepayments on account of the principal of this
Swing Line Note by the Borrower and for acceleration of the maturity of this
Swing Line Note upon the terms and conditions therein specified.
THIS SWING LINE NOTE IS BEING ISSUED IN THE COMMONWEALTH OF VIRGINIA AND
FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF VIRGINIA WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES.
CACI INTERNATIONAL INC
By: /s/
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
SCHEDULE I TO
THE REVOLVING CREDIT AGREEMENT
Name of Lender Commitment (in Dollars)
-------------- -----------------------
NationsBank, N.A. $50,000,000.00
First Union Commercial Corporation $30,000,000.00
Mellon Bank, N.A. $22,500,000.00
Crestar Bank $22,500,000.00
Schedule 5.12
Foreign Subsidiaries
--------------------
1. CACI SYSTEMS AND TECHNOLOGY LTD, a corporation organized under the laws
of Ontario, Canada
2. CACI Virgin Islands, Inc., a corporation organized under the laws of the
United States Virgin Islands
3. CACI N.V., a corporation organized under the laws of The Netherlands
4. CACI Limited, a corporation organized under the laws of the United
Kingdom
5. CACI-Dublin Limited, a corporation organized under the laws of Ireland
6. CACI Nederland B.V., a corporation organized under the laws of The
Netherlands
Schedule 5.5
Litigation
----------
1. CACI, INC.-FEDERAL is engaged in litigation with the State of Arizona
Department of Transportation as more fully described in CACI International
Inc.'s Forms 10K and 10Q filed beginning with the fiscal period ended June 30,
1996 and continuing through the fiscal quarter ended March 31, 1998.
2. Various litigation instituted by Pentagen Technologies International,
Ltd. against CACI International Inc and certain of its subsidiaries as more
fully described in CACI International Inc's Forms 10K and 10Q filed beginning
with the fiscal year ended June 30, 1993 and continuing through the fiscal
year ended June 30, 1997.
3. On May 18, 1998, Computer Systems and Communications Corporation (CSCC)
transmitted a Demand Letter to CACI International Inc (CACI) seeking payment
of Fifteen Million Dollars ($15,000,000) in damages allegedly caused by CACI's
termination of efforts to acquire substantially all of the assets of CSCC.
Schedule 5.6
Defaults
--------
1. ▇▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇▇▇-▇▇ between the State of Arizona Department of
Transportation (ADOT) and CACI, INC-FEDERAL (CACI). CACI notified ADOT in
November, 1995 that CACI considered ADOT to be in material breach of the
contract. ADOT, in turn, notified CACI that ADOT considered the contract
terminated for default. The dispute is now in litigation as described in
Schedule 5.5.
2. On May 18, 1998, Computer Systems and Communications Corporation (CSCC)
transmitted a demand letter to CACI International Inc (CACI) alleging that
CACI had materially breached an alleged contract under which CACI and CSCC
allegedly had agreed that CACI would purchase substantially all of the assets
of CSCC. Litigation has been threatened, but has not begun.
SCHEDULES
---------
Schedule I Lender Commitments
Schedule 5.5 Litigation
Schedule 5.6 Defaults
Schedule 5.12 Foreign Subsidiaries
EXHIBITS
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Exhibit A Notarial Deed
Exhibit B Pledge Agreement
Exhibit C Form of Revolving Note
Exhibit D Subsidiary Guarantee
Exhibit E Form of Swing Line Note
Exhibit F Form of Backlog Report