Eurodollar Rate plus the Applicable Margin with respect to Eurodollar Rate Loans.”

 

(d)            The definition of “ Undrawn Availability ” set forth in Section 1.2 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:

 

  “ “ Undrawn Availability ” at a particular date shall mean an amount equal to (a) the Maximum Revolving Advance Amount minus (b) the sum of (i) the outstanding principal amount of Advances, (ii) the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit, plus (iii) fees and expenses for which Borrower is liable but which have not been paid or charged to Borrower’s Account.”

 

(e)            The following definitions are hereby added to Section 1.2 of the Loan Agreement in the alphabetical order in which they would otherwise appear:

 

“ Adjusted EBITDA ” shall mean, for a particular period, EBITDA for such period, minus unfunded Capital Expenditures during such period.

 

“ Applicable Margin ” means the Applicable Margin in effect from time to time determined in accordance with the grid set forth below:

 

TIER		Ratio of Net Funded Debt to EBITDA		Applicable Margin for Domestic Rate Loans		Applicable Margin for Eurodollar Rate Loans
I		Less than 1.00 to 1		0	%	1.00	%
II		Greater than or equal to 1.00 to 1 but less than or equal to 1.50 to 1		0	%	1.25	%
III		Greater than 1.50 to 1 but less than or equal to 2.00 to 1		0	%	1.50	%
IV		Greater than 2.00 to 1		.25	%	1.75	%

 

Commencing on the date hereof, the Tier I Applicable Margin shall be in effect until adjusted in accordance with the terms hereof.  The first adjustment of the Applicable Margin will occur on the fifth (5th) Business Day following Agent’s receipt of Borrower’s audited financial statements and Compliance Certificate for Borrower’s December 31, 2005 fiscal year-end in accordance with Section 9.7 hereof.  Thereafter, the Applicable Margin will be adjusted quarterly (based on the ratio of Borrower’s Net Funded Debt to EBITDA for the immediately preceding rolling four (4) fiscal quarter period) on the date which is five (5) business days subsequent to Agent’s receipt of Borrower’s compliance certificate delivered pursuant to Section 9.8 hereof.  The Applicable Margin shall be determined as provided in the grid set forth above and remain in effect until adjusted in accordance

 

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with the terms hereof.  Should Borrower fail to deliver to Agent any quarterly compliance certificate when and as required under Section 9.8 hereof, in addition to the other rights and remedies Agent has under this Agreement, Agent may, in its discretion, immediately increase the Applicable Margin then in effect to the highest Applicable Margin set forth in the grid set forth above.  If Borrower subsequently delivers the tardy quarterly compliance certificate after Agent has adjusted the Applicable Margin to the highest level, and such compliance certificate indicates that the Applicable Margin should be at a lower level, Agent will adjust the Applicable Margin effective as of the fifth (5th) Business Day following Agent’s receipt of such compliance certificate, but not retroactively, which Applicable Margin shall remain in effect until adjusted in accordance with the terms hereof.

 

Notwithstanding anything to the contrary contained in this paragraph, if Agent determines that the calculations of the ratio of Borrower’s Net Funded Debt to EBITDA for the applicable test period in any compliance certificate are incorrect, Agent may adjust the Applicable Margin as set forth in the immediately preceding paragraph based on its own good faith calculation of the ratio of Borrower’s Net Funded Debt to EBITDA for the applicable test period.”

 

“ Facility Fee Percentage ” means the Facility Fee Percentage in effect from time to time determined in accordance with the grid set forth below:

 

Ratio of Borrower’s Net Funded Debt to EBITDA		Facility Fee Percentage		TIER
Less than 1.00 to 1		.15	%	I
Greater than or equal to 1.00 to 1 but less than or equal to 1.50 to 1		.20	%	II
Greater than 1.50 to 1 but less than or equal to 2.00 to 1		.20	%	III
Greater than 2.00 to 1		.25	%	IV

 

Commencing on the date hereof, the Tier I Facility Fee Percentage shall be in effect until adjusted in accordance with the terms hereof.  The first adjustment of the Facility Fee Percentage will occur on the fifth (5th) Business Day following Agent’s receipt of Borrower’s audited financial statements and Compliance Certificate for Borrower’s December 31, 2005 fiscal year-end in accordance with Section 9.7 hereof.  Thereafter, the Facility Fee Percentage will be adjusted quarterly (based on the ratio of Borrower’s Net Funded Debt to EBITDA for the immediately preceding rolling four (4) fiscal quarter period) on the date which is five (5) business days subsequent

 

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to Agent’s receipt of Borrower’s compliance certificate delivered pursuant to Section 9.8 hereof.  The Facility Fee Percentage shall be determined as provided in the grid set forth above and remain in effect until adjusted in accordance with the terms hereof.  Should Borrower fail to deliver to Agent any quarterly compliance certificate when and as required under Section 9.8 hereof, in addition to the other rights and remedies Agent has under this Agreement, Agent may, in its discretion, immediately increase the Facility Fee Percentage then in effect to the highest Facility Fee Percentage set forth in the grid set forth above.  If Borrower subsequently delivers the tardy quarterly compliance certificate after Agent has adjusted the Facility Fee Percentage to the highest level, and such compliance certificate indicates that the Facility Fee Percentage should be at a lower level, Agent will adjust the Facility Fee Percentage effective as of the fifth (5th) Business Day following Agent’s receipt of such compliance certificate, but not retroactively, which Facility Fee Percentage shall remain in effect until adjusted in accordance with the terms hereof.

 

Notwithstanding anything to the contrary contained in this paragraph, if Agent determines that the calculations of the ratio of Borrower’s Net Funded Debt to EBITDA for the applicable test period in any compliance certificate are incorrect, Agent may adjust the Facility Fee Percentage as set forth in the immediately preceding paragraph based on its own good faith calculation of the ratio of Borrower’s Net Funded Debt to EBITDA for the applicable test period.”

 

“ Issuer ” shall mean any Person who issues a Letter of Credit and/or accepts a draft pursuant to the terms hereof.

 

“ Letter of Credit Fees ” shall have the meaning set forth in Section 3.11 .

 

“ Letter of Credit Borrowing ” shall have the meaning set forth in Section 2.16(d) .

 

“ Letter of Credit Sublimit ” means an amount up to Two Million Dollars ($2,000,000.00).

 

“ Letters of Credit ” shall have the meaning set forth in Section 2.13 .

 

“ Maximum Face Amount ” shall mean, with respect to any outstanding Letter of Credit, the face amount of such Letter of Credit including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective.

 

“ Maximum Undrawn Amount ” shall mean with respect to any outstanding Letter of Credit, the amount of such Letter of Credit that

 

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is or may become available to be drawn, including all automatic increases provided for in such Letter of Credit, whether or not any such automatic increase has become effective.

 

“ Minimum Liquidity ” for a particular period, with respect to Borrower, shall mean the cash of Borrower on deposit with Agent, plus any Undrawn Availability.

 

“ Net Funded Debt ” shall mean, with respect to any Person, without duplication, all Indebtedness for borrowed money evidenced by notes, bonds, debentures, or similar evidences of Indebtedness that by its terms matures more than one year from, or is directly or indirectly renewable or extendible at such Person’s option under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of more than one year from the date of creation thereof, and specifically including letters of credit issued for the account of such Person, Capitalized Lease Obligations, current maturities of long-term debt, revolving credit and short-term debt extendible beyond one year at the option of the debtor, and also including, in the case of Borrower, the Obligations and, without duplication, Indebtedness consisting of guaranties of Funded Debt of other Persons.  For purposes of calculating the ratio of Borrower’s Net Funded Debt to EBITDA, all marketable securities and money market funds in excess of $5,000,000.00 held by Agent or an Affiliate of Agent will be deducted from Borrower’s Net Funded Debt.

 

“ Net Worth ” at a particular date, shall mean all amounts which would be included under shareholders’ equity on a balance sheet of Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP as at such date.

 

“ Participation Commitment ” shall mean each Lender’s obligation to buy a participation of the Letters of Credit issued hereunder.

 

“ Permitted Acquisition ” means any acquisition by Borrower or any wholly owned Subsidiary, whether by purchase, merger or otherwise, of all or substantially all of the assets of, all of the equity interests of, or a business line or unit or a division of, any Person which is organized in and whose operations and assets are conducted and located in the United States of America; provided that,

 

(i)             immediately prior to, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom;

 

(ii)            all transactions in connection therewith shall be consummated, in all material respects, in accordance with all applicable laws and in conformity with all applicable laws;

 

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(iii)           in the case of the acquisition of equity interests, all of the equity interests (except for any such securities in the nature of directors’ qualifying shares required pursuant to applicable law) acquired or otherwise issued by such Person or any newly formed Subsidiary of Borrower in connection with such acquisition shall be owned 100% by Borrower or such newly formed Subsidiary and such equity interests shall be pledged to Agent pursuant to documentation in form and content reasonably satisfactory to Agent;

 

(iv)           Borrower shall have delivered to Agent at least ten (10) Business Days prior to such proposed acquisition (A) a compliance certificate and supporting calculations evidencing compliance with Sections 6.5, 6.6 and 6.7 both before and after giving effect to such acquisition and pro form compliance with Sections 6.5, 6.6 and 6.7 for the twelve (12) month period following such acquisition, (B) all relevant financial information with respect to such acquired assets or equity interests (and any issuer thereof), including, without limitation, the consideration for such acquisition and any other information required to demonstrate compliance with Sections 6.5, 6.6 and 6.7 , and (C) copies of all material documents and agreements in connection with such acquisition, which document shall be in form and content satisfactory to Agent and shall be subject to Agent’s approval;

 

(v)            any Person or assets or division as acquired in accordance herewith shall be in same business or lines of business in which Borrower and its Subsidiaries are engaged or a similar or related business or line of business or such other lines of businesses as may be consented to by Bank;

 

(vi)           Borrower’s Minimum Liquidity after giving effect to such acquisition shall be at least Ten Million Dollars ($10,000,000.00);

 

(vii)          if such acquisition is structured as a purchase of equity interests by Borrower or a newly formed Subsidiary of Borrower, both the Person acquired as well as any newly formed Subsidiary of Borrower, contemporaneously with the closing of such acquisition, shall execute a Guaranty for all Obligations and a Security Agreement securing all Obligations, each in form and content satisfactory to Agent;

 

(xii)           with respect to Borrower’s acquisition of Webhire, Inc., the aggregate acquisition consideration (including, without limitation, assumed liabilities and any future “earn-out” or other similar payments) does not exceed $37,000,000.00; and

 

(xiii)          within ten (10) days after the closing of such acquisition, Borrower shall have delivered to Agent copies of all

 

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material documents and agreements in connection with such acquisition.”

 

“ Total Funded Debt ” shall mean, with respect to any Person, without duplication, all Indebtedness for borrowed money evidenced by notes, bonds, debentures, or similar evidences of Indebtedness that by its terms matures more than one year from, or is directly or indirectly renewable or extendible at such Person’s option under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of more than one year from the date of creation thereof, and specifically including letters of credit issued for the account of such Person, Capitalized Lease Obligations, current maturities of long-term debt, revolving credit and short-term debt extendible beyond one year at the option of the debtor, and also including, in the case of Borrower, the Obligations and, without duplication, Indebtedness consisting of guaranties of Funded Debt of other Persons.

 

2.              Revolving Advances .

 

(a)            Section 2.1(a)  of the Loan Agreement is hereby deleted in its entirety and replaced with the following:

 

“2.1(a)     Revolving Advances .  Subject to the terms and conditions set forth in this Agreement including, without limitation, Section 2.1(b) , each Lender, severally and not jointly, will make Revolving Advances to Borrower in aggregate amounts outstanding at any time equal to such Lender’s Commitment Percentage of the Maximum Revolving Advance Amount.  The Revolving Advances shall be evidenced by one or more secured promissory notes (collectively, the “Revolving Credit Note” ) substantially in the form attached hereto as Exhibit 2.1(a) .”

 

(b)            Section 2.2(b)  of the Loan Agreement is hereby deleted in its entirety and replaced with the following:

 

“(b)          Notwithstanding the provisions of subsection (a)  above, in the event Borrower desires to obtain a Eurodollar Rate Loan, Borrower shall give Agent at least three (3) Business Days’ prior written notice, specifying (i) the date of the proposed borrowing (which shall be a Business Day), (ii) the type of borrowing and the amount on the date of such Advance to be borrowed, which amount shall be in a minimum amount of Five Hundred Thousand Dollars ($500,000.00) and in integral multiples of One Hundred Thousand Dollars ($100,000.00) thereafter, and (iii) the duration of the first Interest Period therefor.  Interest Periods for Eurodollar Rate Loans shall be for one (1), two (2), three (3) or six (6) months; provided, if an Interest Period would end on a day that is not a Business Day, it shall end on the next succeeding Business Day unless such day falls

 

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in the next succeeding calendar month in which case the Interest Period shall end on the next preceding Business Day.  No Eurodollar Rate Loan shall be made available to Borrower during the continuance of a Default or an Event of Default.”

 

(c)            Limit on Eurodollar Rate Loans .  Section 2.2(d)  of the Loan Agreement is hereby deleted in its entirety and replaced with the following:

 

“(d)          Provided that no Event of Default shall have occurred and be continuing, Borrower may, on the last Business Day of the then current Interest Period applicable to any outstanding Eurodollar Rate Loan, or on any Business Day with respect to Domestic Rate Loans, convert any such loan into a loan of another type in the same aggregate principal amount provided that any conversion of a Eurodollar Rate Loan shall be made only on the last Business Day of the then current Interest Period applicable to such Eurodollar Rate Loan.  If Borrower desires to convert a loan, Borrower shall give Agent not less than three (3) Business Days’ prior written notice to convert from a Domestic Rate Loan to a Eurodollar Rate Loan or one (1) Business Day’s prior written notice to convert from a Eurodollar Rate Loan to a Domestic Rate Loan, specifying the date of such conversion, the loans to be converted and if the conversion is from a Domestic Rate Loan to any other type of loan, the duration of the first Interest Period therefor.  After giving effect to each such conversion, there shall not be outstanding more than six (6) Eurodollar Rate Loans, in the aggregate.”

 

(d)            Use of Proceeds .  Section 2.11 of the Loan Agreement is hereby deleted in its entirety and replaced with the following:

 

“2.11        Use of Proceeds .  Borrower shall apply the proceeds of the Advances to provide for its working capital needs and to fund Permitted Acquisitions.”

 

(e)            Section 2 of the Loan Agreement is hereby amended to include the following paragraphs as Section 2.13 - Section 2.22 .

 

“2.13        Letters of Credit . Subject to the terms and conditions hereof, Agent shall issue or cause the issuance of standby and/or trade Letters of Credit ( “Letters of Credit” ) for the account of Borrower; provided, however, that Agent will not be required to issue or cause to be issued any Letters of Credit to the extent that the issuance thereof would then cause the sum of (i) the outstanding Revolving Advances plus (ii) the Maximum Undrawn Amount of all outstanding Letters of Credit to exceed the Maximum Revolving Advance Amount.  The Maximum Undrawn Amount of all outstanding Letters of Credit shall not exceed in the aggregate at any time the Letter of Credit Sublimit. All disbursements or payments related to Letters of Credit shall be deemed to be Domestic Rate Loans consisting of Revolving

 

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Advances and shall bear interest at the Revolving Interest Rate for Domestic Rate Loans. Letters of Credit that have not been drawn upon shall not bear interest.

 

2.14          Issuance of Letters of Credit .

 

(a)            Borrower may request Agent to issue or cause the issuance of a Letter of Credit by delivering to Agent, at the Payment Office, prior to 10:00 a.m. (New York time), at least five (5)  Business Days’ prior to the proposed date of issuance, Agent’s form of Letter of Credit Application (the “Letter of Credit Application” ) completed to the satisfaction of Agent; and, such other certificates, documents and other papers and information as Agent may reasonably request.  Borrower also has the right to give instructions and make agreements with respect to any application, any applicable letter of credit and security agreement, any applicable letter of credit reimbursement agreement and/or any other applicable agreement, any letter of credit and the disposition of documents, disposition of any unutilized funds, and to agree with Agent upon any amendment, extension or renewal of any Letter of Credit.

 

(b)            Each Letter of Credit shall, among other things, (i) provide for the payment of sight drafts, other written demands for payment, or acceptances of usance drafts when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have an expiry date not later than twelve (12) months with respect to standby Letters of Credit and ninety (90) days with respect to trade Letters of Credit after such Letter of Credit’s date of issuance and in no event later than one (1) year following the last day of the Term.  Each standby Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, and any amendments or revision thereof adhered to by the Issuer ( “UCP 500” ) or the International Standby Practices (ISP98-International Chamber of Commerce Publication Number 590) ( “ISP98 Rules” ), as determined by Agent, and each trade Letter of Credit shall be subject to UCP 500.

 

(c)            Agent shall use its reasonable efforts to notify Lenders of the request by Borrower for a Letter of Credit hereunder.

 

2.15          Requirements For Issuance of Letters of Credit .  Borrower shall authorize and direct any Issuer to name Borrower as the “Applicant” or “Account Party” of each Letter of Credit.  If Agent is not the Issuer of any Letter of Credit, Borrower shall authorize and direct the Issuer to deliver to Agent all instruments, documents, and other writings and property received by the Issuer pursuant to the Letter of Credit and to accept and rely upon Agent’s instructions and

 

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agreements with respect to all matters arising in connection with the Letter of Credit, the application therefore.

 

2.16          Disbursements, Reimbursement .

 

(a)            Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Agent a participation in such Letter of Credit and each drawing thereunder in an amount equal to such Lender’s Commitment Percentage of the Maximum Face Amount of such Letter of Credit and the amount of such drawing, respectively.

 

(b)            In the event of any request for a drawing under a Letter of Credit by the beneficiary or transferee thereof, Agent will promptly notify Borrower.  Provided that it shall have received such notice, Borrower shall reimburse (such obligation to reimburse Agent shall sometimes be referred to as a “Reimbursement Obligation” ) Agent prior to 12:00 Noon, New York time on each date that an amount is paid by Agent under any Letter of Credit (each such date, a “Drawing Date” ) in an amount equal to the amount so paid by Agent.  In the event Borrower fails to reimburse Agent for the full amount of any drawing under any Letter of Credit by 12:00 Noon, New York time, on the Drawing Date, Agent will promptly notify each Lender thereof, and Borrower shall be deemed to have requested that a Domestic Rate Loan be made by the Lenders to be disbursed on the Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of the Maximum Revolving Advance Amount and subject to Section 8.2 hereof.  Any notice given by Agent pursuant to this Section 2.16(b)  may be oral if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(c)            Each Lender shall upon any notice pursuant to Section 2.16(b)  make available to Agent an amount in immediately available funds equal to its Commitment Percentage of the amount of the drawing, whereupon the participating Lenders shall (subject to Section 2.16(d) ) each be deemed to have made a Domestic Rate Loan to Borrower in that amount.  If any Lender so notified fails to make available to Agent the amount of such Lender’s Commitment Percentage of such amount by no later than 2:00 p.m., New York time on the Drawing Date, then interest shall accrue on such Lender’s obligation to make such payment, from the Drawing Date to the date on which such Lender makes such payment (i) at a rate per annum equal to the Federal Funds Rate during the first three days following the Drawing Date and (ii) at a rate per annum equal to the rate applicable to Domestic Rate Loans on and after the fourth day following the Drawing Date.  Agent will promptly give notice of the

 

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occurrence of the Drawing Date, but failure of Agent to give any such notice on the Drawing Date or in sufficient time to enable any Lender to effect such payment on such date shall not relieve such Lender from its obligation under this Section 2.16(c) , provided that such Lender shall not be obligated to pay interest as provided in Section 2.16(c)(i) and (ii)  until and commencing from the date of receipt of notice from Agent of a drawing.

 

(d)            With respect to any unreimbursed drawing that is not converted into a Domestic Rate Loan to Borrower in whole or in part as contemplated by Section 2.16(b) , because of Borrower’s failure to satisfy the conditions set forth in Section 8.2 (other than any notice requirements) or for any other reason, Borrower shall be deemed to have incurred from Agent a borrowing (each a “Letter of Credit Borrowing” ) in the amount of such drawing. Such Letter of Credit Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the rate per annum applicable to a Domestic Rate Loan.  Each Lender’s payment to Agent pursuant to Section 2.16(c)  shall be deemed to be a payment in respect of its participation in such Letter of Credit Borrowing and shall constitute a “Participation Advance” from such Lender in satisfaction of its Participation Commitment under this Section 2.16 .

 

(e)            Each Lender’s Participation Commitment shall continue until the last to occur of any of the following events:  (x) Agent ceases to be obligated to issue or cause to be issued Letters of Credit hereunder; (y) no Letter of Credit issued or created hereunder remains outstanding and uncancelled and (z) all Persons (other than the Borrower) have been fully reimbursed for all payments made under or relating to Letters of Credit.

 

2.17          Repayment of Participation Advances .

 

(a)            Upon (and only upon) receipt by Agent for its account of immediately available funds from Borrower (i) in reimbursement of any payment made by the Agent under the Letter of Credit with respect to which any Lender has made a Participation Advance to Agent, or (ii) in payment of interest on such a payment made by Agent under such a Letter of Credit, Agent will pay to each Lender, in the same funds as those received by Agent, the amount of such Lender’s Commitment Percentage of such funds, except Agent shall retain the amount of the Commitment Percentage of such funds of any Lender that did not make a Participation Advance in respect of such payment by Agent.

 

(b)            If Agent is