EXHIBIT 10.13.1
Amendment No. 1 to Credit Agreement dated June 29, 1998 by and among the
Company, NationsBank, National Association, as Lender, and NationsBank, National
Association as Agent for the Lenders
AMENDMENT NO. 1
TO THE CREDIT AGREEMENT
This AMENDMENT AGREEMENT (the "Amendment Agreement"), dated as of June
29, 1998 is made by and among ACSYS, INC. (formerly known as ICCE, INC.) a
Georgia corporation having its principal place of business in Atlanta, Georgia
(the "Borrower"), NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States, as
Lender, and NATIONSBANK, NATIONAL ASSOCIATION, in its capacity as agent for the
Lenders (in such capacity, the "Agent"). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement (as defined below).
W I T N E S S E T H:
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WHEREAS, the Borrower, the Agent and the Lenders have heretofore entered
into that certain Credit Agreement dated as of May 16, 1997 (as amended,
modified or restated from time to time, the "Credit Agreement") pursuant to
which the Lenders agreed to make a revolving credit facility to the Borrower;
and
WHEREAS, (i) the Agent and certain Subsidiaries (the "Original Guarantors")
have heretofore entered into a certain Guaranty Agreement dated as of May 16,
1997 (the "Original Guaranty Agreement") and (ii) the Agent and certain other
Subsidiaries (the "Subsequent Guarantors") (the Original Guarantors and the
Subsequent Guarantors being referred to hereinafter collectively as the
"Guarantors") have entered into subsequent Guaranty Agreements as required by
to Section 7.19 of the Credit Agreement (the "Subsequent Guaranty Agreements")
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(the Original Guaranty Agreement and the Subsequent Guaranty Agreements being
referred to hereinafter collectively as the "Guaranty Agreement"), pursuant to
which the Guarantors have guaranteed the Borrower's Obligations under the Credit
Agreement; and
WHEREAS, (i) the Agent, the Borrower and the Original Guarantors have
entered into a certain Security Agreement dated as of May 16, 1997 (the
"Original Security Agreement") and (ii) the Agent and the Subsequent Guarantors
have entered into subsequent Security Agreements as required by Section 7.19 of
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the Credit Agreement, pursuant to which the Borrower and the Guarantors have
granted to the Agent for the benefit of the Secured Parties (as defined in the
Security Agreement) a security interest in certain of their personal property
and assets as collateral security for payment and performance of the Borrower's
Obligations under the Credit Agreement and the Guarantor's Obligations (as
defined in the Guaranty Agreement) under the Guaranty Agreement; and
WHEREAS, the Borrower has requested that the Agent and the Lenders amend
the Credit Agreement in the manner provided herein; and
WHEREAS, upon the terms and conditions contained herein, the Agent and the
Lenders are willing to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein set
forth, it is hereby agreed as follows:
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A. CREDIT AGREEMENT AMENDMENT. Subject to the conditions hereof,
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the Credit Agreement is hereby amended, effective as of the date the conditions
set forth in Section 3 of this Amendment Agreement are satisfied, as follows:
(a) The following new definitions are added to Section 1.1:
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"`Amendment No. 1' means that certain Amendment Agreement dated as of
June 26, 1998 between the Borrower, the Agent, and the Guarantors.
`Direct Foreign Subsidiary' means any Foreign Subsidiary a majority of
whose outstanding Voting Stock is owned by the Borrower or a Domestic
Subsidiary.
`Domestic Subsidiary' means any Subsidiary of the Borrower organized
under the laws of the United States of America or a state or territory
thereof.
`Foreign Subsidiary' means any Subsidiary of the Borrower that is not
a Domestic Subsidiary.
`Subordinated Indebtedness' means Indebtedness subordinated to the
Obligations in accordance with such terms as shall be acceptable to the
Required Lenders.
`Voting Stock' means shares of capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for election
of directors (or persons performing similar functions) of such Person, even
if the right so to vote has been suspended by the happening of such a
contingency."
(b) The following definitions are amended in their entirety so that as
amended they read as follows:
"`Adjusted Consolidated EBITDA' means Consolidated EBITDA; provided,
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however, that with respect to any Acquisition which occurs within the Four-
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Quarter Period for which the computation thereof is being made,
Consolidated EBITDA shall be adjusted by adding (i) historical pro forma
reductions in compensation expense that are substantiated by employment
contracts, (ii) certain one-time combination expenses such as accounting,
investment banker, broker and legal fees, and (iii) certain other
demonstrable adjustments approved by the Agent; provided, further, that
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with respect to an Acquisition which is accounted for as a "purchase", for
the Four-Quarter Period following the date of such Acquisition,
Consolidated EBITDA shall be adjusted to include the results of operations
of the Person or assets so acquired which amounts shall be determined on an
historical pro forma basis for the Four-Quarter Period preceding or
including the date of such Acquisition as if such Acquisition had been
consummated as a "pooling of interest", plus to the extent applicable, any
adjustments made in accordance with Securities and Exchange Commission Rule
17 C.F.R 210.11-02.
`Change of Control' means, at any time:
(i) any "person" or "group" (each as used in Sections 13(d)(3) and
(14(d)(2) of the Exchange Act), other than Persons owning 30% or more of
the Voting Stock of the Borrower on the effective date of Amendment No.1,
either (A) becomes the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act), directly or indirectly, of Voting Stock of the Borrower (or
securities convertible into or exchangeable for such Voting Stock)
representing 30% or more of the combined voting power of all Voting Stock
of the Borrower (on a fully diluted basis) or (B) otherwise has the
ability, directly or indirectly, to elect a majority of the board of
directors of the Borrower;
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(ii) during any period of up to 24 consecutive months, commencing on
the effective date of Amendment No. 1, individuals who at the beginning of
such 24-month period were directors of the Borrower shall cease for any
reason (other than the death, disability or retirement of an officer of the
Borrower that is serving as a director at such time so long as another
officer of the Borrower replaces such Person as a director) to constitute a
majority of the board of directors of the Borrower;
(iii) any Person or two or more Persons, other than those Persons
listed in clause (ii) hereof, acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence on the management or policies of the Borrower.
The registration and sale by the Borrower of any security issued by it
pursuant to the Securities Act of 1933, as amended, shall not constitute a
Change in Control.
`Consolidated Funded Indebtedness' means, as of the date of
computation thereof, Indebtedness for Money Borrowed plus all
Subordinated Indebtedness of the Borrower and its Subsidiaries, including
any liability associated with an earn-out obligation arising in connection
with an Acquisition which is recorded as a liability on the consolidated
balance sheet of the Borrower and its Subsidiaries all as determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis.
`Revolving Credit Termination Date' means (i) June 30, 2002 or (ii)
such earlier date of termination of the Lenders' obligations pursuant to
Section 9.01 upon the occurrence of an Event of Default, or (iii) such date
as the Borrower may voluntarily permanently terminate the Revolving Credit
Facility by payment in full of all Obligations.
`Total Revolving Credit Commitment' means a principal amount equal to
$25,000,000, as reduced from time to time in accordance with Section 2.07."
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(c) The definition of "Unused Fee" is hereby amended by as follows:
(i) deleting the table in its entirety and placing in lieu thereof the
following table:
Tier Consolidated Leverage Ratio Unused Fee
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I Equal to or less than 1.00 to 1.00 0.200%
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II Greater than 1.00 to 1.00 0.250%
and equal to or less than 1.50 to 1.00
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III Greater than 1.50 to 1.00 0.250%
and equal to or less than 2.00 to 1.00
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IV Greater than 2.00 to 1.00 0.300%
and equal to or less than 2.50 to 1.00
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V Greater than 2.50 to 1.00 0.375%
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(ii) deleting the last sentence in its entirety and placing in lieu
thereof the following:
"From the effective date of Amendment No. 1 to the date next following
the date the next Compliance Certificate is received, the Unused Fee shall
be based on the Compliance Certificate required to be delivered for the
fiscal quarter ended March 31, 1998."
(d) The definition of "Applicable Margin" is hereby amended as follows:
(i) deleting the table in its entirety and placing in lieu thereof the
following table:
Tier Consolidated Leverage Ratio Applicable Margin Applicable Margin
for Base Loans for Eurodollar Loans
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I Equal to or less than 1.00 to 1.00 0.00% 1.00%
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II Greater than 1.00 to 1.00 0.00% 1.25%
and equal to or less than 1.50 to 1.00
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III Greater than 1.50 to 1.00 0.00% 1.50%
and equal to or less than 2.00 to 1.00
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IV Greater than 2.00 to 1.00 0.25% 1.75%
and equal to or less than 2.50 to 1.00
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V Greater than 2.50 to 1.00 0.50% 2.00%
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(ii) deleting the last sentence in its entirety and placing in lieu
thereof the following:
"From the effective date of Amendment No. 1 to the date next following
the date the next Compliance Certificate is received, the Applicable
Margin shall be based on the Compliance Certificate required to be
delivered for the fiscal quarter ended March 31, 1998."
(e) Section 2.03 is hereby amended by deleting the last sentence of such
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section in its entirety.
(f) Section 2.12 is hereby amended by deleting said section in its entirety
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and placing in lieu thereof the following:
"2.12 Use of Proceeds. The proceeds of the Loans made pursuant to
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the Revolving Credit Facility hereunder shall be used by the Borrower to
(i) to finance up to $5,000,0000 of the Borrower's working capital
requirements and (ii) to finance Acquisitions permitted herein."
(g) Section 7.01 is hereby amended as follows:
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(i) by deleting the number "45" from the first line of paragraph (b)
and placing in lieu thereof the number "60";
(ii) by deleting the number "45" from the first line of paragraph (f)
and placing in lieu thereof inserting the number "60";
(iii) by adding a new paragraph (h) to read as follows:
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"(h) forms 10-K and 10-Q within 15 days of filing such forms
with the Securities and Exchange Commission;"
(iv) by deleting paragraph (c) in its entirety;
(h) Section 7.19 is hereby amended by deleting said section in its
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entirety and placing in lieu thereof the following:
"7.19 New Subsidiaries. (a) Within thirty (30) days of the
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acquisition or creation of any Domestic Subsidiary or Direct Foreign
Subsidiary cause to be delivered to the Agent for the benefit of the
Lenders each of the following:
(i) in the case of a Domestic Subsidiary, (A) a Guaranty
Agreement executed by such Domestic Subsidiary substantially in the
form attached hereto as Exhibit K; (B) a Security Agreement executed
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by such Domestic Subsidiary substantially in the form of Exhibit G
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hereto;
(ii) (A) in the case that such Subsidiary is directly owned by
the Borrower or a Domestic Subsidiary which has previously delivered a
Pledge Agreement, a revised Schedule I to the Pledge Agreement
together with (1) stock certificates or other appropriate evidence of
ownership representing 100% of the capital stock and related interests
and rights of a Domestic Subsidiary or (2) not less than 65% of the
Voting Stock and 100% of the non-voting common stock and related
interests and rights of any Direct Foreign Subsidiary and (3) duly
executed stock powers or powers of assignment in blank affixed
thereto;
(B) in the case that such Subsidiary is directly owned by a
Domestic Subsidiary which has not previously delivered a Pledge
Agreement, a Pledge Agreement substantially in the form attached
hereto as Exhibit H, with appropriate revisions as to the identity of
the pledgor (and as required by applicable law and Section 7.19(b) if
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such Subsidiary is a Foreign Subsidiary), and securing the obligations
of such Pledgor under its Guaranty Agreement, together with (1) stock
certificates or other appropriate evidence of ownership representing
100% of the capital stock and related interests and rights of a
Domestic Subsidiary or (2) not less than 65% of the Voting Stock and
100% of the non-voting common stock and related interests and rights
of any Direct Foreign Subsidiary and (3) duly executed stock powers or
powers of assignment in blank affixed thereto;
(iii) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the documents required by the foregoing clauses
(i) and (ii) and addressed to the Agent and the Lenders, in form and
substance substantially similar to the opinion of counsel delivered
pursuant to Section 5.01(c) (or otherwise reasonably acceptable to the
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Agent) with respect to each Loan Party which is party to any Loan
Document which such newly acquired or created Subsidiary is required
to deliver or cause to be delivered pursuant to the foregoing clauses
(i) and (ii);
(iv) current copies of the charter documents, including
partnership agreements and certificate of limited partnership, if
applicable, and bylaws of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners or appropriate committees thereof (and, if
required by such charter documents, bylaws or applicable laws, of the
shareholders or partners) of such Subsidiary authorizing the actions
and the execution and delivery of documents
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described in clauses (i) and (ii) of this Section 7.19 and evidence
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satisfactory to the Agent (confirmation of the receipt of which will
be provided by the Agent) that such Subsidiary is Solvent as of such
dated and after giving effect to the Loan Documents executed by such
Subsidiary;
(b) Subject to the thirty day compliance period set forth in clause
(a) of this Section 7.19, cause at all times the Agent to have a duly
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perfected first priority security interest in (i) 100% of the capital stock
and related interests and rights of a Domestic Subsidiary or (ii) not less
than 65% of the Voting Stock and 100% of the non-voting common stock and
related interests and rights of any Direct Foreign Subsidiary.
(i) Section 8.01 is hereby amended by deleting the number "3.00" and
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placing in lieu thereof the number "3.25".
(j) Section 8.02 is hereby amended by deleting said section in its entirety
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and placing in lieu thereof the following:
"8.02 Consolidated Fixed Charge Coverage Ratio. Permit at the end of
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each fiscal quarter the Consolidated Fixed Charge Coverage Ratio to be less than
that set forth opposite each such period:
Four-Quarter Period Ending Consolidated Fixed Charge Coverage Ratio
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Closing - September 30, 1998 1.40 to 1.00
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Thereafter 1.50 to 1.00
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(k) Section 8.03 is hereby amended by deleting said section in its entirety
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and placing in lieu thereof the following:
"8.03 Consolidated Capitalization Ratio. Permit at any time the
Consolidated Capitalization Ratio to exceed 0.55 to 1.00."
(l) Section 8.05 is hereby amended as follows:
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(i) deleting the amount "$200,000" in paragraph (d) and placing in
lieu thereof the amount "$1,000,000";
(ii) deleting paragraph (e) in its entirety and placing in lieu
thereof the following:
"(e) Indebtedness in the form of seller notes related to
Acquisitions permitted by Section 8.07; provided that such seller
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notes are subordinated in writing to the Obligations on terms
acceptable to the Agent and provided further that the aggregate
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principal amount outstanding of such seller notes shall in no event
exceed $2,500,000 at any time;"
(iii) deleting the amount "$100,000.00" in paragraph (h) and placing
in lieu thereof the amount "$500,000";
(m) Section 8.07 is hereby amended as follows:
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(i) deleting clause (D) of paragraph (iv) in its entirety and placing
in lieu thereof the following:
"(D) if the Person to be (or whose assets are to be)
Acquired is domiciled outside of the United States of America or if
the Cost of Acquisition shall exceed (x) $7,500,000 for any single
Acquisition or (y) cause the aggregate Cost of Acquisitions over the
life of the Revolving Credit Facility to exceed $15,000,000, the
consent of the Required Lenders shall be required, and"
(n) Section 8.09 is hereby amended by deleting it in its entirety and
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placing in lieu thereof the following:
"8.09 Dividends or Distributions. Declare or pay any dividend or
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other distribution, direct or indirect, on account of any shares of any
class of stock of the Borrower or any of the Guarantors (other than those
payable or distributable solely to the Borrower or another Guarantor) now
or hereafter outstanding, except a dividend payable solely in shares of a
class of stock to the holders of that class."
(o) Section 9.01(e) is hereby amended by deleting the amount "$50,000" and
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placing in lieu thereof the amount "$500,000";
(p) Section 9.01(i) is hereby amended by deleting the amount "$50,000" and
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placing in lieu thereof the amount "$500,000";
(q) Section 11.01(a)(i) is hereby amended by deleting the amount
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"$2,500,000" and placing in lieu thereof the amount "$5,000,000".
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
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Lenders to enter into this Amendment Agreement, the Borrower hereby represents
and warrants that the Credit Agreement has been re-examined by the Borrower and
that except as disclosed by the Borrower in writing to the Lenders as of the
date hereof:
(a) The representations and warranties made by the Borrower in Article
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VI thereof are true on and as of the date hereof (except for those
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representations and warranties which expressly relate to an earlier date)
except that the financial statements referred to in Section 6.01(f) shall
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be those most recently furnished to each Lender pursuant to Section 7.01;
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(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the
Closing Date, other than changes in the ordinary course of business, and no
event has occurred which could reasonably be likely to have a Material
Adverse Effect; and
(c) No condition exists which would constitute a Default or an Event
of Default on the part of the Borrower under the Credit Agreement or the
Notes, either immediately or with the lapse of time or the giving of
notice, or both.
3. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement is
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subject to the receipt by the Agent of the following:
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(a) five counterparts of this Amendment Agreement duly executed by all
signatories hereto; and
(b) copies of all additional agreements, instruments and documents
which the Agent may reasonably request, such documents, when appropriate,
to be certified by appropriate governmental authorities; and
(c) receipt of payment by the Agent for all its fees, costs and
expenses incurred in connection with the preparation, negotiation and
execution of this Amendment Agreement, including without limitation the
reasonable fees and disbursements of counsel to the Agent.
All proceedings of the Borrower relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel.
4. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
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understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that,
except as in this Amendment Agreement otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any party to the other. None of the terms or conditions of this Amendment
Agreement may be changed, modified, waived or canceled orally or otherwise,
except by writing, signed by all the parties hereto, specifying such change,
modification, waiver or cancellation of such terms or conditions, or of any
proceeding or succeeding breach thereof.
5. CONSENT OF GUARANTORS. The Guarantors have joined in the execution of
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this Amendment Agreement for the purposes of consenting hereto and for the
further purpose of confirming their guaranty of the Obligations of the Borrower
as provided in the Guaranty Agreement. Without limiting the generality of the
foregoing, each Guarantor acknowledges the increase in the amount of the
Obligations as a result of the terms of this Amendment Agreement.
6. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
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amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
7. COUNTERPARTS. This Amendment Agreement may be executed in any number
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of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
8. GOVERNING LAW. Section 11.10 of the Credit Agreement shall apply to
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this Amendment Agreement.
9. ENFORCEABILITY. Should any one or more of the provisions of this
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Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
10. CREDIT AGREEMENT. All references in any of the Loan Documents to the
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Credit Agreement shall mean and include the Credit Agreement as amended hereby.
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11. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
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upon and inure to the benefit of each of the Borrower, the Lenders, the Agent
and their respective successors, assigns and legal representatives; provided,
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however, that the Borrower, without the prior written consent of the Lenders,
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may not assign any rights, powers, duties or obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
ACSYS, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxx X. Xxxxxx Title: Chief Executive Officer
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GUARANTORS:
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XXXXX X. XXXXXX AND
ASSOCIATES, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxxxxxx Xxxxxxx Title: President
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ACSYS FINANCIAL STAFFING, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxxxxxx Xxxxxxx Title: President
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EKT, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxxxxxx Xxxxxxx Title: President
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INFINITY ENTERPRISES, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxxxxxx Xxxxxxx Title: President
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CAMA OF TAMPA, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxxxxxx Xxxxxxx Title: President
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ACSYS RESOURCES, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxx X. Xxxxxx Title: President
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C.P.A. STAFFING, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxx X. Xxxxxx Title: President
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XXXXX XXXXXX CONSULTING GROUP, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxx X. Xxxxxx Title: President
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ICON SEARCH & CONSULTING, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxx X. Xxxxxx Title: Treasurer and Secretary
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AI INVESTMENTS, INC.
WITNESS:
/s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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DRAMONDI, INC.
WITNESS:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxx, Xx.
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Name: Xxxxxxx Xxxx, Xx.
/s/ Xxxx X. Xxxxxx Title: President
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and Lender
WITNESS:
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President
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