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EXHIBIT 10.8.6
AMENDMENT NO. 1
TO AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment Agreement"), dated as of December 31, 1999 is made by and among
ACSYS, INC. a Georgia corporation having its principal place of business in
Atlanta, Georgia (the "Borrower"), BANK OF AMERICA, N.A., SUCCESSOR IN INTEREST
TO NATIONSBANK, N. A., a national banking association organized and existing
under the laws of the United States, as Lender, BANK OF AMERICA, N.A.,
SUCCESSOR IN INTEREST TO NATIONSBANK, N. A., in its capacity as administrative
agent for the Lenders (in such capacity, the "Agent"), and the Lenders party
hereto. 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:
WHEREAS, the Borrower, the Agent and the Lenders have heretofore
entered into that certain Amended and Restated Revolving Credit Agreement dated
as of April 13, 1999 (as amended, modified, supplemented or amended and
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, each Domestic Subsidiary of the Borrower (each a "Guarantor"
and collectively the "Guarantors") is party to that certain Amended and
Restated Guaranty and Suretyship Agreement dated as of April 13, 1999 (as
amended, modified, supplemented or amended and restated from time to time, the
"Guaranty Agreement") pursuant to which the Guarantors guaranteed full payment
and performance of the Borrower's Obligations under the Credit 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:
1. CREDIT AGREEMENT AMENDMENT. Subject to the conditions hereof,
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 definition of "Applicable Margin" in Section 1.02 is
hereby amended and restated as follows:
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"'Applicable Margin' means, at any time during the periods
below, that percent per annum for the fiscal quarter set
forth in Table I below which shall be based upon the
Revolving Credit Outstandings as at the last day of the
preceding fiscal quarter as specified in Table I below:
TABLE I
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Fiscal Quarter and Revolving Credit Applicable Margin for Applicable Margin for
Outstandings Base Rate Loans Eurodollar Rate Loans
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October 1, 2000 to December 31, 2000 and
Revolving Credit Outstandings equal or exceed 2.25% 3.75%
$35,000,000 as at September 30, 2000
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January 1, 2001 to March 31, 2001 and Revolving
Credit Outstandings equal or exceed $30,000,000 2.50% 4.00%
as at December 31, 2000
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April 1, 2001 to June 30, 2001 and July 1, 2001
to October 31, 2001 and Revolving Credit 2.75% 4.25%
Outstandings equal or exceed $25,000,000 as at
March 31, 2001 and June 30, 2001, respectively
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; provided, however that from January 1, 2000 to and
including September 30, 2000, the Applicable Margin shall be
2.00% for Base Rate Loans and 3.50% for Eurodollar Rate
Loans; provided, further, however, that if the Revolving
Credit Outstandings shall be less than the amounts described
in Table I above as at the last day of the fiscal quarter
specified, and the Compliance Certificate for the
Four-Quarter Period ending on such date indicates that the
Consolidated Leverage Ratio is not more than 3.00 to 1.00 and
the Consolidated Fixed Charge Coverage Ratio is not less than
1.75 to 1.00 and no other Default or Event of Default exists,
then the Applicable Margin shall be based on the Consolidated
Leverage Ratio as set forth in Table II below starting on the
date next following the date the Compliance Certificate for
such Four-Quarter Period is received:
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TABLE II
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Tier Consolidated Leverage Ratio Applicable Applicable
Margin for Base Margin for
Rate Loans Eurodollar Rate
Loans
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I Equal to or less than 1.50 to 1.00 0.00% 1.50%
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II Greater than 1.50 to 1.00 and less than or 0.25% 1.75%
equal to 2.00 to 1.00
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III Greater than 2.00 to 1.00 and less than or 0.50% 2.00%
equal to 2.50 to 1.00
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IV Greater than 2.50 to 1.00 and less than or 0.75% 2.25%
equal to 3.00 to 1.00
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V Greater than 3.00 to 1.00 1.00% 2.50%
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and provided, further, however, that if the Revolving Credit
Outstandings shall be greater than or equal to the amounts
described in Table I above as at the last day of the fiscal
quarter specified, and the Compliance Certificate for the
Four-Quarter Period ending on such date indicates that the
Consolidated Leverage Ratio is not more than 3.00 to 1.00 and
the Consolidated Fixed Charge Coverage Ratio is not less than
1.75 to 1.00 and no other Default or Event of Default exists,
then the Applicable Margin shall be based on the Consolidated
Leverage Ratio as set forth in Table III below starting on
the date next following the date the Compliance Certificate
for such Four-Quarter Period is received:
TABLE III
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Tier Consolidated Leverage Ratio Applicable Applicable
Margin for Base Margin for
Rate Loans Eurodollar Rate
Loans
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I Equal to or less than 1.50 to 1.00 1.00% 2.50%
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II Greater than 1.50 to 1.00 and less than or 1.25% 2.75%
equal to 2.00 to 1.00
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III Greater than 2.00 to 1.00 and less than or 1.50% 3.00%
equal to 2.50 to 1.00
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IV Greater than 2.50 to 1.00 and less than or 1.75% 3.25%
equal to 3.00 to 1.00
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V Greater than 3.00 to 1.00 2.00% 3.50%
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The Applicable Margin shall be established at the end of each
fiscal quarter of the Borrower (each, a "Determination
Date"). With respect to changes in the Applicable Margin
based on the Consolidated Leverage Ratio set forth in the
Tables II and III above, each such change in the Applicable
Margin following each Determination Date shall be determined
based upon the computations set
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forth in the Compliance Certificate furnished to the Agent
pursuant to Section 8.01(a)(ii) and Section 8.01(b)(ii),
subject to review and approval of such computations by the
Agent, shall be effective commencing on the date following
the date such Compliance Certificate is received (or, if
earlier, the date such Compliance Certificate was required to
be delivered) until the date following the date on which a
new Compliance Certificate is delivered (or, if a new
Compliance Certificate is delivered later than required,
until the date preceding the date such Compliance Certificate
was required to have been delivered); provided, however, if
the Borrower shall fail to deliver any such Compliance
Certificate within the time period required by Section 8.01,
then the Applicable Margin shall be the Applicable Margin
listed in Table I above for the applicable fiscal quarter and
the type of Loan, regardless of the principal amount of
Revolving Credit Outstandings, until the appropriate
Compliance Certificate is so delivered.
(b) Section 1.02 is hereby amended by adding a new definition of
"Cash Collateral Account" as follows:
"`Cash Collateral Account' shall have the meaning ascribed
thereto in the Cash Collateral Agreement."
(c) Section 1.02 is hereby amended by adding a new definition of
"Cash Collateral Agreement" as follows:
"'Cash Collateral Agreement' means that certain Cash
Collateral Agreement entered into by and among the Borrower,
its Subsidiaries and the Agent on behalf of the Lenders
substantially in the form of Exhibit L hereof."
(d) The definition of "Change of Control" in Section 1.02 is
hereby amended by deleting section (ii) thereof and replacing
in its stead the following:
"(ii) the replacement of a majority of the Board of Directors
of the Borrower over an eighteen month period commencing on
December 31, 1999 from the directors who constituted the
Board of Directors of the Borrower at the beginning of such
period, and the election of each such replacement director
shall not have been approved by a vote of at least a majority
of the Board of Directors of the Borrower then still in
office who either were members of such Board of Directors at
the beginning of such period or whose election as a member of
such Board of Directors was previously so approved."
and by deleting section (iii) thereof and replacing in its
stead the following:
"(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; provided,
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however, that the following shall not be included in this
definition of "Change of Control": the Borrower's entry into
(i) any contract or arrangement for the purchase or merger of
the Borrower by or with any Person or Persons which provides
in writing for payment in full of all of the Obligations
hereunder and reduction of the Total Revolving Credit
Commitment to zero prior to or concurrently with
effectiveness of such purchase or merger transaction or (ii)
a letter of intent (or similar documentation less binding
than, or intended to be preliminary to, a definitive purchase
and sale or merger agreement) for the negotiation of the
purchase or merger of the Borrower by or with any Person or
Persons and the conduct of due diligence relating thereto."
(e) The definition of "Consolidated EBITDA" in Section 1.02 is
hereby amended in its entirety so that as amended it reads as
follows:
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for the Four-Quarter Period ending on the
date of computation thereof, the sum of, without duplication
(i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) state and federal taxes on income (to the
extent accrued by the Borrower and its Subsidiaries), (iv)
amortization, (v) depreciation, and (vi) expenses incurred in
connection with the severance of employees by the Borrower or
any Subsidiary during the fiscal quarter ended December 31,
1999 in an amount not to exceed $2,200,000 for each of the
four Four-Quarter Periods which include the fiscal quarter
ended December 31, 1999 (in addition to any amounts
previously incurred in connection with the severance of
employees by the Borrower or any Subsidiary during the fiscal
quarters ended March 31, 1999 and September 30, 1999 as set
forth in the Compliance Certificates and supporting schedules
thereto previously delivered by the Borrower for such fiscal
quarters), all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis."
(f) The definition of "Required Lenders" in Section 1.02 is
hereby amended by deleting the phrase "66 2/3%" in the
second line of such definition and replacing in its stead the
phrase "80%."
(g) The definition of "Stated Termination Date" in Section 1.02
is hereby amended in its entirety so that as amended it reads
as follows:
"Stated Termination Date" means October 31, 2001.
(h) The definition of "Total Revolving Credit Commitment" in
Section 1.02 is hereby amended in its entirety so that as
amended it reads as follows:
"Total Revolving Credit Commitment" means a principal amount
equal to $55,000,000, as reduced from time to time in
accordance with Section 2.07."
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(i) Section 2.12 is hereby amended in its entirety so that as
amended it reads as follows:
"2.12 Use of Proceeds. The proceeds of the Loans made
hereunder shall be used by the Borrower as follows: (i) a
principal amount not to exceed $45,000,000 at any time
outstanding may be used to finance working capital, capital
expenditures and other lawful general corporate purposes, and
(ii) a principal amount not to exceed $10,000,000 at any time
outstanding may be used to finance Acquisitions permitted
hereunder."
(j) Section 4.07 is hereby amended and restated in its entirety
so that as amended it reads as follows:
"4.07. Replacement Banks. If (a) a Lender requests
compensation from the Borrower pursuant to Section 4.01, (b)
it becomes unlawful for a Lender to make Eurodollar Rate
Loans as set forth in Section 4.03, (c) a Lender refuses or
otherwise fails to consent to any waiver, amendment or other
modification of any Loan Document which (i) requires the
written consent of more than the Required Lenders under
Section 12.06 and (ii) has been approved in writing by the
Required Lenders or (d) the Borrower elects to replace First
Union as a Lender, then so long as there does not then exist
any Default or Event of Default, the Borrower may, in its
sole discretion, on ten (10) Business Days' prior written
notice to the Agent and any such Lender described in clauses
(a), (b), (c) or (d) above, cause such Lender to (and such
Lender shall) assign, pursuant to Section 12.01, all of its
rights and obligations under this Agreement to an Eligible
Assignee designated by the Borrower which is willing to
become a Lender for a purchase price equal to the outstanding
principal amount of the Loans and Reimbursement Obligations
payable to such Lender plus any accrued but unpaid interest
on such Loans and Reimbursement Obligations, any accrued but
unpaid fees payable hereunder to such Lender and any other
amount payable to such Lender under this Agreement; provided,
however, that any expenses or other amounts which would be
owing to such Lender pursuant to any indemnification
provision hereof (including, if applicable, Section 4.05)
shall be payable by the Borrower as if the Borrower had
prepaid the Loans of such Lender rather than such Lender
having assigned its interest hereunder, and provided,
further, however, that the replacement of First Union as a
Lender shall require the approval of all Lenders other than
First Union. The Borrower or the assignee shall pay the
applicable processing fee under Section 12.01. This Section
4.07 shall not be applicable to the replacement of the Swing
Line Lender."
(k) Article VIII is hereby amended by adding the following
Section 8.21 to the end of such Article:
"8.21 Cash Collateral Agreement. Subject to the terms of the
Cash Collateral Agreement, ensure that all of the accounts
receivable of the Borrower and its
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Subsidiaries are paid directly by the account debtors into a
Cash Collateral Account established by the Borrower with the
Agent."
(l) Section 9.01 is hereby amended in its entirety so that as
amended it reads as follows:
"9.01 Consolidated Leverage Ratio. Permit at the end of each
fiscal quarter the Consolidated Leverage Ratio to exceed that
set forth opposite such period:
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Four Quarter Periods Ending: Consolidated Leverage Ratio
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December 31, 1999 3.35 to 1.00
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March 31, 2000 3.35 to 1.00
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June 30, 2000 3.35 to 1.00
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September 30, 2000 3.15 to 1.00
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December 31, 2000 and thereafter 3.00 to 1.00
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(m) Section 9.02 is hereby amended in its entirety so that as
amended it reads as follows:
"9.02 Consolidated Fixed Charge Coverage Ratio. Permit at the
end of each fiscal quarter the Consolidated Fixed Charge
Coverage Ratio to be less than that set forth opposite such
period:
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Four Quarter Periods Ending: Consolidated Fixed Charge Coverage Ratio
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December 31, 1999 1.50 to 1.00
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March 31, 2000 1.25 to 1.00
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June 30, 2000 1.25 to 1.00
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September 30, 2000 1.50 to 1.00
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December 31, 2000 and thereafter 1.75 to 1.00
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(n) Section 9.04 is hereby amended in its entirety so that as
amended it reads as follows:
"9.04 Capital Expenditures. Make or become committed to make
Capital Expenditures (i) which exceed $8,000,000 in the
aggregate for the combined two Fiscal Year period of the
Borrower commencing with the Fiscal Year ending December 31,
1999 and ending with the Fiscal Year ending December 31, 2000
or (ii) which exceed $4,000,000 in the aggregate in any
Fiscal Year of the Borrower commencing with the Fiscal Year
ending December 31, 2001 (on a noncumulative basis, provided
that the Borrower may carry forward to a subsequent Fiscal
Year up to $4,000,000 not expended in the previous Fiscal
Year).
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(o) Section 9.08 (iv)(D) is hereby amended in its entirety so
that as amended it reads as follows:
"(D) the consent of the Required Lenders shall be required
and"
(p) Section 9.10 is hereby amended in its entirety so that as
amended it reads as follows:
"9.10. Restricted Payments. Make any Restricted Payment or
apply or set apart any of their assets therefor or agree to
do any of the foregoing; provided, however, the Borrower (i)
may purchase up to $1,000,000 of its own stock in each Fiscal
Year so long as (A) such repurchased stock is immediately
retired and not held in treasury stock and (B) immediately
prior to and immediately after giving effect thereto no
Default or Event of Default shall exist or occur and be
continuing and (ii) shall be permitted to make or pay a
dividend or distribution on account of its capital stock or
on account of any Right (as defined hereinafter) consisting
of either (A) a right issued under any plan duly adopted by
the Board of Directors of the Borrower to acquire Permitted
Preferred Stock (as defined below) upon exercise of such
right (a "Right"), (B) the Borrower's common stock or (C)
Permitted Preferred Stock. As used herein, "Permitted
Preferred Stock" shall mean any preferred stock of the
Borrower that (I) does not require the Borrower to pay a
dividend on account of such preferred stock (other than in
connection with the requirement under any preferred stock, if
a dividend is being paid on the common stock, to pay a
dividend in an equal amount per share as that paid on the
common stock) and (II) is not mandatorily redeemable or
redeemable at the option of the holder thereof. The Borrower
agrees and acknowledges that it is prohibited from paying any
dividend or other distribution on account of its capital
stock or any Right other than dividends or distributions
payable in the Borrower's common stock, in a Right or in
Permitted Preferred Stock."
(q) Exhibit A of the Credit Agreement is hereby replaced with
Exhibit A attached hereto.
(r) The Credit Agreement is hereby amended by adding a new
Exhibit L consisting of the form of Cash Collateral Agreement
attached as Exhibit B hereto.
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent
and the 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 VII thereof are true on and as of the date hereof
(except for those representations and warranties which expressly
relate to an earlier date) except that the financial statements
referred to in Section 7.01(f) shall be those most recently furnished
to each Lender pursuant to Section 8.01;
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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 subject to the receipt by the Agent of the following:
(a) five counterparts of this Amendment Agreement duly
executed by all signatories hereto; and
(b) five counterparts of the Cash Collateral Agreement
duly executed by all signatories thereto; and
(c) 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
(d) receipt of payment by the Agent for the pro rata
benefit of the Lenders of an amendment fee equal to $275,000; and
(e) 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.
4. ENTIRE AGREEMENT. This Amendment Agreement sets forth the
entire 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, in
accordance with Section 12.06 of the Credit Agreement.
5. CONSENT OF GUARANTORS. The Guarantors have joined in the
execution of 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.
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6. CONSENT OF FIRST UNION. By execution of this Amendment, First
Union National Bank authorizes its replacement as a Lender subject to the
provisions of Section 4.07 of the Credit Agreement, as amended.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby
specifically 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.
8. COUNTERPARTS. This Amendment Agreement may be executed in any
number 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.
9. GOVERNING LAW. Section 12.14 of the Credit Agreement shall
apply to this Amendment Agreement.
10. ENFORCEABILITY. Should any one or more of the provisions of
this 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.
11. CREDIT AGREEMENT. All references in any of the Loan Documents
to the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
12. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be
binding upon and inure to the benefit of each of the Borrower, the Lenders, the
Agent and their respective successors, assigns and legal representatives;
provided, however, that the Borrower, without the prior written consent of the
Lenders, may not assign any rights, powers, duties or obligations hereunder.
[Signature Pages Follow]
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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 written above.
BORROWER:
ACSYS, INC.
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
GUARANTORS:
XXXXX X. XXXXXX AND ASSOCIATES, INC.
ACSYS FINANCIAL STAFFING, INC.
EKT, INC.
INFINITY ENTERPRISES, INC.
CAMA OF TAMPA, INC.
ACSYS RESOURCES, INC.
C.P.A. STAFFING, INC.
XXXXX XXXXXX CONSULTING GROUP, INC.
ACSYS IT, INC.
DRAMONDI, INC.
KPD SYSTEMS, INC.
STAFFING EDGE, INC.
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
AI INVESTMENTS, INC.
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
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AGENT:
BANK OF AMERICA, N.A., as Agent for the
Lenders
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
LENDERS:
BANK OF AMERICA, N.A.
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
FIRST UNION NATIONAL BANK
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
WACHOVIA BANK, N.A.
BY:
--------------------------------------
NAME:
------------------------------------
TITLE:
-----------------------------------
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Exhibit A to Amendment No. 1
EXHIBIT A
Applicable Commitment Percentages
Name of Lender Revolving Credit Applicable
-------------- ---------------- ----------
Commitment Commitment Percentage
---------- ---------------------
Bank of America, N.A. $27,500,000 50.0000000%
First Union National Bank $13,750,000 25.0000000%
Wachovia Bank, N.A. $13,750,000 25.0000000%
TOTAL $55,000,000 100%
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Exhibit B to Amendment No. 1
EXHIBIT L
Form of Cash Collateral Agreement
See attached.
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