THIRTEENTH AMENDMENT TO CREDIT AGREEMENT AND LOAN DOCUMENTS
THIRTEENTH AMENDMENT TO CREDIT AGREEMENT
AND LOAN DOCUMENTS
THIS THIRTEENTH AMENDMENT TO CREDIT AGREEMENT AND LOAN DOCUMENTS dated as of July __, 2001 (this “Amendment”), is among Alternative Resources Corporation, a Delaware corporation (“Borrower”), the undersigned Lenders and American National Bank and Trust Company of Chicago, as Agent (“Agent”) and as a Lender. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Credit Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders entered into that certain Credit Agreement dated as of November 7, 1997, as amended by that certain Twelfth Amendment to Credit Agreement dated as of June 30, 2001 (the “Twelfth Amendment”) by and among Borrower, Agent and Lenders, and certain mesne amendments thereof (as so amended and as the same may hereafter be amended, modified, restated or otherwise supplemented from time to time, the “Credit Agreement”);
WHEREAS, Defaults have occurred and is continuing under the Credit Agreement as a result of Borrower’s failure to comply with its Minimum EBITDA covenant set forth in Section 6.24 of the Credit Agreement and its maximum Capital Expenditures covenant set for in Section 6.16, both for the measurement period ended June 30, 2001 (the “Financial Covenant Defaults”).
WHEREAS, a Default has occurred and is continuing under the Credit Agreement as a result of Borrower’s failure to comply with the tax filing requirements set forth in Section 2 of the Twelfth Amendment with respect to its state income tax returns and/or amendments (together with the Financial Covenant Defaults, the “Existing Defaults”); and
WHEREAS, the Borrower has requested that Agent and the Lenders waive the Existing Defaults and reset the filing deadline with respect to its state income tax returns and/or amendments;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Recitals set forth above (which are incorporated herein by this reference thereto) and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, each of the undersigned agrees as follows:
1. Certain Amendments to Credit Agreement. The parties hereto desire to amend the Credit Agreement in order to reset the filing deadlines with respect to its state income tax returns and/or amendments. Accordingly, the parties agree, subject to the terms and conditions set forth herein, that the Credit Agreement is hereby amended by deleting section 2(a) of the Twelfth Amendment and substituting the following new Section 2(a) therefor:
“(a) Borrower shall file its 1998 and 2000 state
income tax returns and/or amendments as soon as practicable but in no event
later than August 15, 2001 and shall exercise its best efforts to expedite the
processing and obtaining of the Tax Refunds on or before October 31, 2001.”
2. Waiver of Existing Defaults. Effective as of the date hereof, upon satisfaction of the conditions precedent set forth in Section 6 hereof, in reliance upon the representations and warranties of Borrower set forth in the Credit Agreement and in this Amendment, Agent and Lenders hereby waive the Existing Defaults. The foregoing is a limited, one time waiver and the execution and delivery of this Amendment does not constitute a waiver by Agent or any Lender of any other Default or Unmatured Default now or hereafter existing, or any other term or provision of the Loan Documents. This Waiver does not (i) constitute a waiver of any term or provision of the Loan Documents, except as expressly set forth above, or (ii) except as expressly provided herein with respect to the Existing Defaults, constitute a waiver by Lender of any of its other rights or remedies under the Loan Documents (all such rights and remedies being expressly reserved), or (iii) establish a custom or a course of dealing or conduct between Agent, any Lender and Borrower.
3. Representations, Warranties and Covenants.
(a) In order to induce Agent and the Lenders to execute and deliver this Amendment, Borrower hereby represents to the Lenders that as of the date hereof, the representations and warranties set forth in Article 5 of the Credit Agreement are and shall be and remain true and correct (except that the representations contained in Section 5.4 shall be deemed to refer to the most recent financial statements of the Borrower delivered to the Lenders) and the Borrower is in compliance with all of the terms and conditions of the Credit Agreement and, except for the Existing Defaults, no Unmatured Default or Default has occurred and is continuing under the Credit Agreement or shall result after giving effect to this Amendment.
(b) Borrower and each Guarantor by its execution of the Reaffirmation and Consent attached hereto represents and warrants to Agent and Lenders that the execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate action on the part of each such Person and that this Amendment has been duly executed and delivered by each such Person.
4. Release.
In consideration for the agreement of the Agent and the Lenders to this Amendment, Borrower hereby releases and forever discharges Agent, each Lender, each of their parent corporations, affiliated corporations, subsidiary corporations, predecessor corporations and successor corporations, and the past and present officers, directors, agents, assigns, subrogees, servants, employees, financial advisors and attorneys of each of them from any and all claims, actions, causes of action, choses in action and suits of every kind and nature whatsoever, whether at law or in equity, under any facts or legal theory that Borrower ever had, now has, or hereafter can, shall or may have, in any way related to, arising out of or based upon this Agreement, the Credit Agreement or any Loan Document, except for any such claims arising out of Agent’s or any Lender’s future willful breach of this Agreement.
5. Reaffirmation of Liens and Security Interests.
The other Loan Documents, including specifically but without limitation each of the Collateral Documents, are each hereby amended to secure the Obligations as evidenced by the Credit Agreement and the other Loan Documents, each as amended hereby.
6. Conditions Precedent. This effectiveness of this Amendment shall be subject to the satisfaction of all of the following conditions precedent or concurrent (unless waived by Agent in writing):
(a) Certain Documents. Borrower shall have delivered to Agent all of the following, each duly executed and dated as of the date hereof and in form and substance acceptable to Agent:
(1) Amendment. Fully and duly executed counterparts of this Amendment in sufficient quantities to provide each party with an original of such counterpart, together with such other agreements, documents and instruments as reasonably required by Agent, duly executed by the respective parties thereto.
(2) Resolutions and Corporate Documents. If requested by Agent, copy, duly certified by the secretary or an assistant secretary of Borrower, of (i) resolutions of Borrower's Board of Directors authorizing or ratifying the execution and delivery of this Amendment and authorizing the borrowings under the Credit Agreement as amended hereby, (ii) all documents evidencing other necessary corporate action, and (iii) all approvals or consents, if any, with respect to this Amendment.
(3) Incumbency Certificate. If requested by Agent, a certificate of the secretary or an assistant secretary of Borrower certifying the names of Borrower's officers authorized to sign this Amendment and all other documents or certificates to be delivered hereunder, together with the true signatures of such officers.
(4) Additional Documents/Actions. Such other documents as the Agent may reasonably require and all proceedings taken in connection with the transactions contemplated by this Amendment, and all documents, instruments and other legal matters incident thereto shall be satisfactory to Agent and its legal counsel.
(b) No Default. After giving effect to this Amendment and the waivers contained
herein, no Unmatured Default or Default shall have occurred and be continuing
or will result from the execution and delivery of, or the performance by
Borrower of any of its obligations under this Amendment.
(c) Guarantors Consent. The Guarantors shall have consented hereto in the Consent and Reaffirmation attached hereto for such purpose below
7. Miscellaneous.
(a) This Amendment shall become effective upon the execution and delivery hereof to the Agent by the Borrower and the Lenders and the satisfaction of the conditions precedent set forth in Section 6 hereof.
(b) Except as specifically amended herein, the Credit Agreement shall continue in full force and effect in accordance with its original terms. Reference to this specific Amendment need not be made in any note, document, letter, certificate, the Credit Agreement itself, any Guaranty, any Collateral Documents, the Notes, any other Loan Document or any communication issued or made pursuant to or with respect to the Credit Agreement, any reference in any of such to the Credit Agreement being sufficient to refer to the same as amended hereby.
(c) The Borrower agrees to pay on demand all costs and expenses of or incurred by the Agent in connection with the negotiation, preparation, execution and delivery of this Amendment, including the reasonable fees and expenses of Xxxxxx Xxxxxx Xxxxx, counsel for the Agent, such payment to be made no later than 30 days following receipt of an invoice showing in reasonable detail and description the amounts therefor.
(d) This Amendment may be executed in any number of counterparts, and by the different parties on different counterparts, all of which taken together shall constitute one and the same agreement. Any of the parties hereto may execute this Amendment by signing any such counterpart and each of such counterparts shall for all purposes be deemed to be an original. This Amendment shall be governed by the internal laws of the State of Illinois.
[remainder
of this page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF, this Thirteenth Amendment to Credit Agreement and Loan
Documents has been duly executed by each of the undersigned as of the day and
year first set forth above.
| ALTERNATIVE RESOURCES CORPORATION, a Delaware | |
| corporation | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| AMERICAN NATIONAL BANK AND TRUST | |
| COMPANY OF CHICAGO, as Agent and | |
| individually as a Lender | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| MELLON BANK, N.A., as a Lender | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| XXXXXX TRUST AND SAVINGS BANK, as a Lender | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| FLEET NATIONAL BANK, as a Lender | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| NATIONAL CITY BANK, as a Lender | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
GUARANTORS’ REAFFIRMATION AND CONSENT
The Undersigned have each heretofore executed and delivered to the Agent (defined below) and the Lenders a Guaranty in connection with the obligations and liabilities of Alternative Resources Corporation, a Delaware corporation (“Borrower”) arising in connection with that certain Credit Agreement by and among American National Bank and Trust Company of Chicago, as agent (“Agent”), and as the other Lenders a party thereto. Each of the Undersigned hereby acknowledges that it has received and has read the Thirteenth Amendment to Credit Agreement and Loan Documents dated as of July __, 2001, consents thereto and to the transactions contemplated thereunder and confirms that its Guaranty and all of the Undersigned’s obligations thereunder remain in full force and effect in accordance with its terms.
| ARC
SOLUTIONS, INC. (formerly known as CGI Systems, Inc.) |
|
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| ARC SERVICE, INC. | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| WRITERS, INC. | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
| ARC MIDHOLDING, INC. | |
| (formerly known as CGI Corp.) | |
| By: | |
|
|
|
| Name: | |
|
|
|
| Its: | |
|
|
|
