WAIVER, CONSENT AND NINTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
10.1
WAIVER,
CONSENT AND NINTH AMENDMENT TO CREDIT AGREEMENT
This
Waiver, Consent and Ninth Amendment to Credit Agreement (this "Amendment")
is
dated as of February 1, 2007, and is by and among General Electric Capital
Corporation, a Delaware corporation, individually as a Lender and as Agent
and
Security Trustee for the Lenders, and Analysts International Corporation, a
Minnesota corporation ("Borrower").
W
I T
N E S S E T H:
WHEREAS,
pursuant to a certain Credit Agreement dated as of April 11, 2002, by and among
General Electric Capital Corporation, a Delaware corporation, individually
as a
Lender and as Agent and Security Trustee for the Lenders, the other Credit
Parties signatory from time to time thereto, and Borrower (as amended or
otherwise modified from time to time, the "Credit Agreement"; capitalized terms
used herein and not otherwise defined herein shall have the meaning ascribed
to
such terms in the Credit Agreement), Agent and Lenders agreed, subject to the
terms and provisions thereof, to provide certain loans and other financial
accommodations to Borrower;
WHEREAS,
Borrower has notified Agent and Lenders that Borrower has provided intercompany
advances to Medical Staffing (as hereinafter defined) in a net amount
outstanding as of the date hereof equal to approximately $1,400,000
(collectively, the "Medical Staffing Affiliate Transactions"), which Medical
Staffing Affiliate Transactions constituted Defaults under Sections
6.3(a)(vii)(x) and 6.4 of the Credit Agreement and separate Events of Default
under Section 8.1(b) of the Credit Agreement (collectively, the "Existing Events
of Default");
WHEREAS,
Borrower desires to provide for working capital purposes intercompany advances
to AISSS (as hereinafter defined) on or prior to May 1, 2007 in an amount not
to
exceed $200,000 in the aggregate (the "AISSS Funding") and intercompany advances
to Medical Staffing on or prior to May 1, 2007 in an amount not to exceed
$200,000 in the aggregate (the "Medical Staffing Funding"), which AISSS Funding
and Medical Staffing Funding, in absence of the prior written consent of Agent
and Requisite Lenders, would be defaults under Sections 6.3(a)(vii)(x) and
6.4
of the Credit Agreement and an Event of Default under Section 8.1(b) of the
Credit Agreement;
WHEREAS,
Borrower desires to transfer to AISSS certain contracts it has entered into
with
customers as part of the managed services group business (the "Contract
Transfers"), which Contract Transfers, in absence of the prior written consent
of Agent and Required Lenders, would be defaults under Sections 6.4 and 6.8
of
the Credit Agreement and an Event of Default under Section 8.1(b) of the Credit
Agreement; and
WHEREAS,
Borrower has requested that Agent and Requisite Lenders waive the Existing
Events of Default, consent to the AISSS Funding, the Medical Staffing Funding
and the Contract Transfers, and amend the Credit Agreement in certain respects,
as set forth below.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Waiver
and Consent.
In
reliance upon the representations and warranties of Borrower set forth in
Section 4 below and the covenant of Borrower set forth in Section 5 below,
and
subject to the conditions to effectiveness set forth in Section 3 below, Agent
and Requisite Lenders hereby (a) waive the Existing Events of Default and (b)
consent to the AISSS Funding, the Medical Staffing Funding and the Contract
Transfers. This is a limited waiver and consent and shall not be deemed to
constitute a waiver of, or consent to, any other future breach of the Credit
Agreement.
2. Amendment.
In
reliance upon the representations and warranties of Borrower set forth in
Section 4 below and the covenant of Borrower set forth in Section 5 below,
and
subject to the conditions to effectiveness set forth in Section 3 below, the
Credit Agreement is hereby amended as follows:
(a) Section
6.20
of the
Credit Agreement is hereby amended and restated in its entirety, as
follows:
6.20
Credit
Parties Other than Borrower.
None
of
the Credit Parties other than Borrower shall engage in any trade or business,
or
own any assets (other than Stock of their Subsidiaries) or incur any
Indebtedness or Guaranteed Indebtedness (other than the Obligations),
provided that
(a)
Medical Staffing shall be permitted to engage in its relevant business and
own
assets, (b) the Staffing Subsidiaries (other than Analysts International
Strategic Sourcing Services, LLC, a Minnesota limited liability company) shall
be permitted to employ personnel to be leased back to the Borrower under those
certain Employee Services Agreements by and between Borrower and each Staffing
Subsidiary (the "Employee Services Agreements") and (c) Analysts International
Strategic Sourcing Services, LLC, a Minnesota limited liability company, shall
be permitted to (i) employ personnel to be leased back to the Borrower under
the
Employee Services Agreements, (ii) engage in the managed services group business
and (iii) own assets in connection with the managed services group business
not
to exceed $4,000,000 at any time outstanding.
(b) Disclosure
Schedule (5.1)
of the
Credit Agreement is hereby amended by adding the trade name "Symmetry Workforce
Solutions" as registered in the State of Minnesota.
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3. Conditions
Precedent.
The
effectiveness of the waiver, consent and amendment contemplated hereby is
subject to the prior receipt by Agent of each of the following documents and
agreements, each in form and substance acceptable to Agent in its sole
discretion:
(a) Agent
shall have received a fully executed copy of this Amendment;
(b) No
Default or Event of Default (other than the Existing Events of Default) shall
have occurred and be continuing; and
(c) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all agreements, documents, instruments and other legal matters
incident thereto shall be satisfactory to Agent and its legal
counsel.
4. Representations
and Warranties.
To
induce Agent to enter into this Amendment, the Borrower hereby represents and
warrants to Agent that:
(a) The
execution, delivery and performance by each Credit Party of this Amendment
and
each other agreement and document contemplated hereby are within their corporate
or limited liability company power, have been duly authorized by all necessary
corporate or limited liability company action, have received all necessary
governmental approval (if any shall be required), and do not and will not
contravene or conflict with any provision of law applicable to any Credit Party,
the articles of incorporation, articles of organization, by-laws or operating
agreement of any Credit Party, any order, judgment or decree of any court or
governmental agency, or any agreement, instrument or document binding upon
any
Credit Party or any of their respective properties;
(b) Each
of
the Credit Agreement, the other Loan Documents, and each other agreement and
document contemplated hereby is the legal, valid and binding obligation of
the
applicable Credit Party, enforceable against such Credit Party in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, moratorium, fraudulent transfer or other similar
laws affecting creditors' rights generally or by principles governing the
availability of equitable remedies;
(c) All
of
the statements contained in Section 2.2 of the Credit Agreement and in Section
4
of the Security Agreement are true and correct on the date hereof;
(d) Each
Credit Party has performed all of its obligations under the Credit Agreement
and
the Loan Documents to be performed by it on or before the date hereof and as
of
the date hereof, each Credit Party is in compliance with all applicable terms
and provisions of the Credit Agreement and each of the Loan Documents to be
observed and performed by it and, except to the extent otherwise waived by
the
provisions hereof, no Event of Default or other event which, upon notice or
lapse of time or both, would constitute an Event of Default, has
occurred.
5. Covenant.
On or
prior to May 1, 2007, Borrower shall and shall cause each other Credit Party
to,
at such Credit Party's expense, duly execute and deliver to Agent an
amendment and restatement to the Credit Agreement and such further instruments,
in each case in form and substance satisfactory to Agent, and
do
and cause to be done such further acts, as the Agent may request to effect
the
addition of AISSS and Medical Staffing as borrowers under the Credit
Agreement.
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6. Reaffirmation.
Each
of
Medical Concepts Staffing, Inc., a Minnesota corporation ("Medical Staffing"),
Analysts International Management Services, LLC, a Minnesota limited liability
company ("AIMS"), Analysts International Business Solution Services, LLC, a
Minnesota limited liability company ("AIBSS"), Analysts International Business
Resource Services, LLC, a Minnesota limited liability company ("AIBRS") and
Analysts International Strategic Sourcing Services, LLC, a Minnesota limited
liability company ("AISSS"; AIMS, AIBSS, AIBRS and AISSS are collectively the
"Staffing Subsidiaries" and each a "Staffing Subsidiary") hereby consents to
Borrower's execution and delivery of this Amendment and agrees to be bound
hereby. Medical Staffing hereby affirms that nothing contained herein shall
modify in any respect whatsoever its obligations under the Loan Documents,
including, without limitation, its guaranty of the obligations of Borrower
to
Agent and Lenders pursuant to the terms of that certain Guaranty, dated as
of
April 7, 2003 (the "MCS Guaranty"), executed by Medical Staffing in favor of
Agent and Lenders and reaffirms that the MCS Guaranty is and shall continue
to
remain in full force and effect. Each Staffing Subsidiary hereby affirms that
nothing contained herein shall modify in any respect whatsoever its obligations
under the Loan Documents, including, without limitation, its guaranty of the
obligations of Borrower to Agent and Lenders pursuant to the Guaranty, dated
December 31, 2003, executed by such Staffing Subsidiary in favor of Agent and
Lenders and reaffirms that such Guaranty is and shall continue to remain in
full
force and effect. Although Medical Staffing and each Staffing Subsidiary has
been informed of the matters set forth herein and has acknowledged and agreed
to
same, such Person understands that Agent and Lenders have no obligation to
inform any such Person of such matters in the future or to seek any such
Person's acknowledgment or agreement to future consents or waivers, and nothing
herein shall create such a duty.
7. Counterparts.
This
Amendment may be executed in any number of counterparts and by the different
parties on separate counterparts, and each such counterpart shall be deemed
to
be an original, but all such counterparts shall together constitute but one
and
the same Amendment. Any such counterpart which may be delivered by facsimile
transmission or electronic portable format (i.e., "pdf") shall be deemed the
equivalent of an originally signed counterpart and shall be fully advisable
in
any enforcement proceeding regarding this Amendment.
8. Continued
Effectiveness.
Except
as amended hereby, the Credit Agreement and each of the Loan Documents shall
continue in full force and effect according to its terms.
9. Costs
and Expenses.
Borrower hereby agrees that all expenses incurred by Agent in connection with
the preparation, negotiation and closing of the transactions contemplated
hereby, including, without limitation, reasonable attorneys' fees and expenses,
shall be part of the Obligations.
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10. Governing
Law.
This
Amendment shall be a contract made under and governed by the internal laws
of
the State of Illinois.
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IN
WITNESS WHEREOF, this Amendment has been executed as of the day and year first
written above.
ANALYSTS
INTERNATIONAL CORPORATION
|
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By
______________________________________
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Its
______________________________________
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MEDICAL
CONCEPTS STAFFING, INC.
|
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By
______________________________________
|
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Its
______________________________________
|
ANALYSTS
INTERNATIONAL MANAGEMENT
|
|
SERVICES,
LLC
|
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By
______________________________________
|
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Its
______________________________________
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ANALYSTS
INTERNATIONAL BUSINESS
|
|
SOLUTION
SERVICES, LLC
|
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By
______________________________________
|
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Its
______________________________________
|
ANALYSTS
INTERNATIONAL BUSINESS
|
|
RESOURCE
SERVICES, LLC
|
|
By
______________________________________
|
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Its
______________________________________
|
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ANALYSTS
INTERNATIONAL STRATEGIC
|
|
SOURCING
SERVICES, LLC
|
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By
______________________________________
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Its
______________________________________
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GENERAL
ELECTRIC CAPITAL CORPORATION,
|
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As
Agent, Security Trustee and Lender
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By
_______________________________________
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An
Authorized Signatory
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