Exhibit 10.7
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Fourth Amendment") is
entered into as of June 30, 2003, by and among Team America, Inc., an Ohio
corporation formerly known as Team Mucho, Inc., ("Team"), Xxxxx.xxx, Inc., a
Nevada corporation ("Xxxxx.xxx) and a wholly-owned subsidiary of Team (Team and
Xxxxx.xxx are hereafter referred to individually, collectively and
interchangeably as "Borrower" and "Borrowers"), The Provident Bank, an Ohio
banking corporation ("Provident"), and The Huntington National Bank, a national
banking association ("Huntington") (Provident and Huntington, together with
their respective successors and assigns, are hereafter referred to individually
as a "Lender" and collectively the "Lenders"). Provident is also executing this
Fourth Amendment in its capacity as Agent for Lenders under the Credit Agreement
hereinafter defined.
BACKGROUND
A. Borrowers, Provident as Agent and as Lender, and Huntington as Lender
are parties to that certain Credit Agreement December 28, 2000, as amended by
that certain First Amendment to Credit Agreement December 7, 2001, a certain
letter agreement dated February 28, 2002, that certain Second Amendment to
Credit Agreement dated March 27, 2002, that certain Omnibus Forbearance and
Modification Agreement dated September 30, 2002, and that certain Third
Amendment to Credit Agreement dated March 28, 2003 (collectively, the "Credit
Agreement"). Capitalized terms used but not defined in this Fourth Amendment are
defined in the Credit Agreement; provided that the documents evidencing the
Loans, Letter of Credit Outstandings and Obligations referred to in the Credit
Agreement, and all other agreements and documents executed in connection with,
relating to or referenced therein, and amendments, modifications, extensions,
renewals and extensions of any of the foregoing, are collectively referred to
herein as the "Loan Documents."
B. On or about June 12, 2003, Borrowers, Provident and Huntington executed
certain agreements, term sheets and other documents in connection with the
execution by Team with Vsource, Inc. of that certain Merger Agreement dated June
12, 2003, pursuant to which, among other things, the parties have agreed to
amend the Credit Agreement as more fully set forth in this Fourth Amendment.
NOW, THEREFORE, for One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Acknowledgments of Borrowers. Borrowers unconditionally acknowledge and
agree, as of the date of this Fourth Amendment, that (a) they are, have been
since the making of each and every Loan and continue to be, unconditionally and
jointly and severally liable for each of the Loans, including the monetary
obligations thereunder, (b) they are unconditionally and jointly and severally
obligated to pay all the Loans, without set off, recoupment, defense,
counterclaim or any other claim of any kind or nature whatsoever, and (c) no set
off, recoupment, defense, counterclaim or other claim of any kind or nature
whatsoever exists which relates to or could affect Borrowers' obligation to pay
the Loans, Letter of Credit Outstandings
or other Obligations and all such set offs, recoupments, defenses, counterclaims
or other claims, whether known or unknown, matured or unmatured, fixed or
contingent, are hereby waived and forever released by Borrowers.
2. Representations and Warranties. As an inducement to Agent and Lenders to
enter into this Fourth Amendment, Borrowers hereby represent and warrant to
Agent and Lenders as follows:
(a) This Fourth Amendment, the Credit Agreement and all other Loan
Documents (collectively, the "Documents"), constitute legal, valid and binding
obligations of each Borrower and each of its Subsidiaries which is party thereto
and are enforceable against each Borrower and each of its Subsidiaries which is
a party thereto in accordance with their respective terms.
(b) Neither Borrower nor any Subsidiary of either Borrower has any defense,
counterclaim or offset with respect to the Loans, the Letter of Credit
Outstandings or the Documents.
(c) Borrowers have the corporate power, and have been duly authorized by
all requisite corporate action, to execute and deliver this Fourth Amendment and
to perform their obligations under this Fourth Amendment and under the other
Documents, all of which have been duly executed and delivered by Borrowers.
(d) Borrowers' execution, delivery and performance of this Fourth Amendment
do not and will not (i) violate any law, rule, regulation, agreement or court
order to which Borrowers are subject, (ii) conflict with or result in a breach
of any of Borrowers' Articles of Incorporation, By-laws or Code of Regulations,
or any agreement or instrument to which either Borrower is a party or by which
it or its properties are bound, or (iii) result in the creation or imposition of
any Lien on any Property of either Borrower, whether now owned or hereafter
acquired, other than Liens in favor of Lenders.
(e) Lenders have and will continue to have a valid Lien in all Collateral,
except as expressly set forth in this Fourth Amendment, and Borrowers expressly
reaffirm all Liens granted to Lenders pursuant to the Documents.
(f) All representations and warranties of Borrowers set forth in the Credit
Agreement and the other Loan Documents are true and correct as of the date
hereof (except to the extent they relate solely to an earlier date or time,
which representations and warranties were true and correct on and as of the
earlier date or time referred to therein and as otherwise set forth on Schedule
I attached to and made part hereof), and there exists no Default or Event of
Default as of the date hereof; provided, however, that with respect to the
representations and warranties contained in Sections 5.5(a), 5.5(b) and 5.5(c),
Borrowers reaffirm such representations and warranties as though the financials
statements and SEC filings and reports referenced therein are with respect to
the fiscal years ended December 28, 2002 and fiscal quarter ended March 28,
2003, as appropriate.
3. Amendments to Credit Agreement. The Credit Agreement is amended as
follows:
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(a) Promptly after execution of this Amendment and prior to the
consummation of the Assignment and the Merger, the Existing Letters of Credit
issued by Provident and participated in by Huntington under the Credit Agreement
in favor of The Hartford Insurance Company and the Ohio Bureau of Workers
Compensation shall be replaced by separate substitute letters of credit issued
concurrently by each of Provident and Huntington for their respective pro rata
shares of the liability under the Existing Letters of Credit (the "Substitute
Letters of Credit"). Prior to or concurrently with the consummation of the
Assignment and the Merger and at all times thereafter, Provident's Substitute
Letters of Credit shall be 100% secured by a cash collateral account transferred
to and owned by Provident free and clear of all Liens, shall be non-renewable,
and shall expire no later than June 30, 2004. Team shall exercise best efforts
to reduce the stated amounts of the Provident Substitute Letters of Credit below
the Stated Amounts of the Existing Letters of Credit. Upon any draw of the
Provident Substitute Letters of Credit, Provident shall have the right to
immediately apply such cash collateral funds as shall be necessary to make
Provident whole. Huntington's Substitute Letters of Credit shall be governed by
a certain credit agreement to be executed concurrently with the consummation of
the Merger which shall set forth the terms of all indebtedness owing by
Borrowers to Huntington. At such time that Provident's Substitute Letter of
Credit shall have either expired by its terms (and not have been renewed) or the
beneficiary thereof gives Provident written direction to reduce the face amount
of Provident's Substitute Letter of Credit or to cancel Provident's Substitute
Letter of Credit, Provident shall return to Borrowers any remaining cash
collateral funds held by it (in the case of cancellation or termination) or any
excess cash collateral over the face amount of such Substitute Letter of Credit
(in the case of a reduction).
(b) Section 2.6(a) of the Credit Agreement shall be amended in its
entirety to read as follows:
"(a) Payments on the Term A Loan. Borrowers shall pay to Agent,
for the account of Lenders in accordance with their respective Pro
Rata Share of the Term A Loan, monthly in arrears on the first
Business Day of each month, interest on the outstanding principal
amount of the Term A Loan at the annual rate equal to the Interest
Rate applicable thereto. Borrowers shall pay to Agent, and Borrowers
hereby authorize Agent to charge the respective accounts of Borrowers
maintained with Agent, beginning on July 1, 2003, and on the first
Business Day of each calendar month thereafter, monthly installments
of principal of One Hundred Thousand and 00/100 Dollars (or such
lesser principal amount of the Term A Loan as shall then be
outstanding), plus accrued and unpaid interest thereon at the Interest
Rate applicable to the Term A Loan (for purposes of this Section
2.6(a), the "Term A Loan Payments"); provided that in any event the
last installment of principal on the Term A Loan shall be due and
payable on the Termination Date (if not earlier prepaid) and shall be
in an amount sufficient to pay in full the entire unpaid principal
amount of the Term A Loan. In the event Borrowers shall make a partial
payment of principal due on the Premerger Payments, as defined below,
Agent shall apply the partial principal payment, to the payment of
such amount of principal of the Notes that is then due, in accordance
with each Lender's Pro Rata share. To the extent Borrowers fail to
timely make Huntington's Pro Rata Share of the principal of the July
1, 2003,
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August 1, 2003 and September 1, 2003 Term A Loan Payments ("Premerger
Payments"), Huntington shall assess a separate forbearance fee in an
amount equal to One Hundred Thousand and 00/100 Dollars for each and
every such missed or late payment ("Restructure Forbearance Fee")
which shall inure solely for the benefit of Huntington. Huntington's
Pro Rata Share of the Term A Loan Payments shall be secured at all
times by a cash collateral account transferred to and owned by
Huntington free and clear of all Liens containing an amount equal to
One Hundred Thousand and 00/100 Dollars ("Cash Deposit"). Such Cash
Deposit shall at all times inure solely to the benefit of Huntington,
provided, however that if the principal amount due on the Premerger
Payments is less than $100,000, then Huntington shall refund to
Borrowers the difference between $100,000 and the total principal due
on the Premerger Payments. If Borrowers fail to make any or all of the
principal payment due on a Premerger Payment, (i) Huntington is
authorized and directed to deduct its Pro Rata Share of the principal
amount for such missed or partial principal payment from the Cash
Deposit without assessing a Restructure Forbearance Fee, and (ii)
Provident agrees to forebear on the declaration of an Event of Default
and the exercise of remedies in respect thereof, unless either
Huntington seeks to commence the exercise of remedies or the Merger
has not occurred on or prior to September 30, 2003, or the
transactions contemplated by letter agreement between VSource, Inc.
and Provident dated June 12, 2003, regarding the sale of Provident's
interests in the Loans has not occurred in accordance with the terms
contemplated thereby."
(c) Section 2.7(b)(i) of the Credit Agreement is hereby amended in
its entirety to read as follows:
"(i) No Default. If the Notes have not been accelerated pursuant
to Section 9.2 and if no Default or Event of Default hereunder or
under the Notes or any of the other Loan Documents shall have occurred
and be continuing at the time Agent receives such funds, in the
following manner: (a) first, to the payment of all fees, charges, and
other sums (with exception of principal and interest) due and payable
to Agent or Lenders under the Notes, this Agreement or the other Loan
Documents at such time; (b) second, to the payment of all of the
interest which shall be due and payable on the principal of the Notes
at the time of such payment in accordance with each Lender's Pro Rata
Share; (c) third, to the payment of such amount of principal of the
Notes that is then due in accordance with each Lender's Pro Rata
Share; (d) fourth, to the payment of the Restructure Forbearance Fee
to Huntington, and (e) fifth, to Borrowers."
4. Cross Default. Borrowers acknowledge and agree that any default or event
of default under this Fourth Amendment constitutes and shall constitute an Event
of Default under the Credit Agreement and each of the other Loan Documents.
5. Release of Claims. As part of the consideration for this Fourth
Amendment, each Borrower hereby (a) releases, remises, acquits and forever
discharges Agent and Lenders and their employees, officers, directors,
fiduciaries, agents, accountants, attorneys and parent companies, and all direct
and indirect subsidiaries and affiliates of such parent companies and all
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employees, officers, directors, fiduciaries, agents, accountants and attorneys
of such parent companies, subsidiaries and affiliates, and the heirs, executors,
administrators, successors and assigns of all of the foregoing, jointly and
severally (collectively, the "Lender Parties"), of and from the following
(collectively, the "Claims"): any and all actions, causes of action, suits,
claims, demands, debts, accounts, obligations, defenses, offsets, counterclaims,
damages, judgments, executions and liabilities of any kind or character
whatsoever, known or unknown, suspected or unsuspected, in contract or in tort,
in law or in equity, including, without limitation, fraud, duress, mistake,
usury, tortious interference, negligence, and other matters of any kind
whatsoever, that the Borrower has, may have or may in the future have against
any one or more of the Lender Parties arising out of, for or by reason of or
resulting from or in any way relating to, in whole or in part, directly or
indirectly, any past or present act, omission, matter, cause or thing whatsoever
through the date of this Fourth Amendment, including, without limitation, this
Fourth Amendment, the Loan Documents, any other document, matter or thing
relating thereto or to any other past or present financing, credit enhancement,
depository or other banking transactions between Agent and Lenders and the
Borrowers; (b) agrees not to commence, aid, cause, permit, join in, prosecute or
participate in any suit or other proceeding in a position adverse to any of the
Lender Parties, which suit or proceeding arises from or relates to, in whole or
in part, any of the Claims; and (c) acknowledges that nothing contained herein
is to be construed as an admission that any Claims exist or as an admission of
liability of any of the Lender Parties. Borrowers acknowledge that the release
in this Section 5 is intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Claims. This Section 5 is
intended to be broad and encompassing in order to release any claims that
Borrowers may have and shall be interpreted in such manner. Notwithstanding
anything to the contrary, the foregoing shall not apply to any claims arising
from the gross negligence or willful misconduct of any of the Lender Parties.
6. Governing Law. This Agreement has been made in the State of Ohio and
shall be interpreted in accordance with the laws of the State of Ohio.
7. Jury Trial Waiver. BORROWERS AND LENDERS AGREE THAT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR
COUNTERCLAIM, BROUGHT BY LENDERS OR BORROWERS, ON OR WITH RESPECT TO THIS
AGREEMENT OR THE LOAN DOCUMENTS OR ANY OTHER DOCUMENTS RELATING TO THE LOANS OR
THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY
BY A COURT AND NOT BY A JURY. LENDERS AND BORROWERS EACH HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR
RESPECTIVE COUNSEL, WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. BORROWERS ACKNOWLEDGE
AND AGREE THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT
AND THAT LENDERS WOULD NOT ENTER INTO THIS AGREEMENT IF THE WAIVER SET FORTH IN
THIS SECTION WAS NOT A PART OF THIS AGREEMENT.
8. Indemnification. Without limiting any provision of this Fourth
Amendment, the Credit Agreement or any other Loan Document, Borrowers agree to
indemnify, defend (by counsel reasonably acceptable to Lenders) and hold Lenders
harmless from and against any and
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all liabilities, claims, demands, losses, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees), actions or causes
of actions, arising out of or relating to any breach of any covenant or
agreement by Borrowers, or the incorrectness or inaccuracy of any representation
or warranty of Borrowers, contained in this Fourth Amendment, the Credit
Agreement or any other Loan Document.
9. Miscellaneous.
(a) Effect and Construction of Agreement. Except as expressly provided
herein, the Credit Agreement and Loan Documents shall remain in full force and
effect in accordance with their respective terms. Further, this Fourth Amendment
shall not additionally be construed to:
(i) impair the validity, perfection or priority of any lien or security
interest securing the Loans;
(ii) waive or impair any rights, powers or remedies of Lenders under, or
constitute a waiver of, any provision of the Documents; or
(iii) constitute an agreement by Lenders or require the Lenders to extend
the Maturity Date or any expiration date of a Letter of Credit, grant any
extension or renewal or extend the time for payment of any of the Loans or
Letter of Credit Drawings.
(b) Conflicts. In the event of any express conflict between the terms of
this Fourth Amendment and any of the other Documents, this Fourth Amendment
shall govern.
(c) Presumptions. Each Borrower acknowledges that it has consulted with and
been advised by its counsel and such other experts and advisors as it has deemed
necessary in connection with the negotiation, execution and delivery of this
Fourth Amendment, and has participated in the drafting hereof. Therefore, this
Fourth Amendment shall be construed without regard to any presumption or rule
requiring that it be construed against any one party causing this Fourth
Amendment or any part hereof to be drafted.
(d) Expenses. Borrowers acknowledge their obligation to pay reasonable
costs, fees and expenses of Lenders (including the costs, fees and expenses of
Lenders' counsel) incurred by Lenders in connection with the negotiation,
preparation, administration and enforcement of this Fourth Amendment and the
other Documents. Failure to insist on payment of these costs and expenses at
this time shall not constitute a waiver or release of the obligation.
(e) Entire Agreement. This Agreement sets forth the entire agreement among
the parties hereto with respect to the subject matters set forth herein.
Borrowers have not relied on any agreements, representations, or warranties of
any Lender or its representatives, except as specifically set forth herein. Any
promises, representations, warranties or guarantees not herein contained and
hereinafter made shall have no force and effect unless in writing, and signed by
each of the parties hereto. Borrowers acknowledge that they are not relying upon
oral representations or statements in entering into this Fourth Amendment.
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(f) Time Periods and Dates. Time is of the essence as to all time periods
and dates for Borrowers' performance required to this Fourth Amendment.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by different parties to this Fourth Amendment on separate
counterparts, each of which, when so executed, shall be deemed an original, but
such counterparts shall constitute one and the same agreement. Any signature
delivered by a party by a facsimile transmission shall be deemed to be an
original signature hereto.
(h) No Waiver. The failure or delay of Lenders in enforcing any right or
obligation or any provision of this Fourth Amendment in any instance shall not
constitute a waiver thereof in that or any other instance. Lenders may only
waive such right, obligation or provision by an instrument in writing signed by
them.
(i) Remedies. The rights and remedies provided in this Fourth Amendment are
cumulative and not exclusive of any other rights or remedies provided in the
Documents, by law or by any other agreement. The exercise by Lenders of any
right or remedy will not preclude Lenders from exercising any other right or
remedy. Lenders may pursue its rights and remedies in such order as they
determine.
(j) Survival. All indemnities, waivers, and releases by Borrowers contained
herein and in the other Documents shall survive payment in full of the
obligations.
(k) Amendments in Writing. No amendment, modification, rescission, waiver
or release of any provision of this Fourth Amendment shall be effective unless
the same shall be in writing and signed by the parties hereto.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, this Fourth Amendment has been duly executed as of
the day and year first written above.
TEAM AMERICA, INC.
By: /s/ S. CASH XXXXXXXXX
_____________________________________
Name: S. CASH XXXXXXXXX
___________________________________
Title: CHIEF EXECUTIVE OFFICER
__________________________________
XXXXX.XXX, INC.
By: /s/ S. CASH XXXXXXXXX
_____________________________________
Name: S. CASH XXXXXXXXX
___________________________________
Title: CHIEF EXECUTIVE OFFICER
__________________________________
THE PROVIDENT BANK, as Agent and a Lender
By: /S/ XXXXXXX X. XXX
_____________________________________
Name: XXXXXXX X. XXX
___________________________________
Title: VICE PRESIDENT
__________________________________
THE HUNTINGTON BANK, as a Lender
By: /S/ XXXXXXX X. XXXXX
_____________________________________
Name: XXXXXXX X. XXXXX
___________________________________
Title: SENIOR VICE PRESIDENT
__________________________________
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