CONSENT AND SIXTH AMENDMENT TO CREDIT AGREEMENT
Exhibit
10-t
CONSENT
AND SIXTH AMENDMENT TO CREDIT AGREEMENT
This
Consent and Sixth Amendment to Credit Agreement (this "Amendment") is dated as
of January 6, 2005, 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 advised Agent and Lenders that Borrower desires to acquire
substantially all of the assets of WireSpeed Networks LLC, an Ohio limited
liability company (“WireSpeed”),
pursuant to the terms of that certain Asset Purchase Agreement, dated as of the
date hereof (the "Purchase Agreement"), among Borrower, WireSpeed, Xxxx
Xxxxxxxxxx and Xxxx Xxxxxxx (the "Asset Purchase");
WHEREAS,
absent the prior written consent of Requisite Lenders, consummation of the Asset
Purchase would constitute a breach of Sections 6.1 of the Credit Agreement and
an Event of Default pursuant to Section 8.1(b) of the Credit Agreement;
and
WHEREAS,
Borrower has requested that Agent and Requisite Lenders consent to the Asset
Purchase;
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. Consent. Subject
to the satisfaction of the conditions precedent set forth in Section 3 of this
Amendment, and in reliance on the representations and warranties set forth in
Section 4 of this Amendment, Agent and Lenders hereby consent to the Asset
Purchase in accordance with the terms of the Purchase Agreement; provided that
the outstanding Accounts acquired in connection with the Purchase Agreement
shall not be Eligible Accounts for the purposes of determining Borrowing
Availability. By way of clarification, nothing herein shall prevent Accounts
arising after the date hereof from being considered Eligible Accounts if they
otherwise qualify as Eligible Accounts pursuant to the terms of the Credit
Agreement. Except to the extent expressly set forth herein, the foregoing
consent shall not constitute (a) a modification or alteration of the terms,
conditions or covenants of the Credit Agreement or any document entered into in
connection therewith or
(b) a
waiver, release or limitation upon the exercise by Agent or Lender of any of its
rights, legal or equitable, hereunder or under the Credit Agreement or any other
Loan Document. Except as set forth above, each of the Agent and Lender reserves
any and all rights and remedies which it has had, has or may have under the
Credit Agreement and each other Loan Document.
2. Amendments.
Disclosure Schedules 3.2, 3.6, 3.7, 3.12, 3.13 and 3.21 to the Credit Agreement
shall be amended as set forth on Exhibit
A
hereto.
3. Conditions
Precedent. The
effectiveness of the consents and amendments 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 shall have occurred and be continuing;
and
(c) 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.
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 Borrower of this Amendment and each other
agreement and document contemplated hereby are within its corporate power, have
been duly authorized by all necessary corporate 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 Borrower, the
articles of incorporation and by-laws of Borrower, any order, judgment or decree
of any court or governmental agency, or any agreement, instrument or document
binding upon Borrower 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
Borrower, enforceable against Borrower 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) The
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true and accurate as of the date hereof with the same force
and effect as if such had been made on and as of the date
hereof;
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(d) Borrower
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, Borrower 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. Amendment
Fee.
Borrower hereby agrees to pay to Agent, for distribution to the Lenders, a fee
in respect of the transactions contemplated pursuant to this Amendment in the
amount of $1,000, which amount shall be fully earned as of the date
hereof.
6. 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.
7. 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.
8. 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.
[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, this Amendment has been executed as of the day and year first
written above.
|
ANALYSTS
INTERNATIONAL CORPORATION | |
|
By |
|
|
Its |
|
|
GENERAL
ELECTRIC CAPITAL CORPORATION,
as
Agent, Security Trustee and Lender | |
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By |
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|
An
Authorized Signatory | |
