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EXHIBIT 10.2
CONSENT
This CONSENT (this "Consent"), is dated as of June 28, 2001, by and
among AHL SERVICES, INC. ("AHL"), XXXXXXXXXXX, INC. ("Xxxxxxxxxxx"), XXXXXXXXXXX
HOLDINGS LIMITED ("U.S. Holdings"), ADI ALPHA HOLDING GMBH ("ADI Alpha"), TUJA
XXXXXXXXXX XXXX & XX. XX, XXXXXXXXXX, ("Xxxx"), EMD GESELLSCHAFT FUR
PERSONALDIENSTLEISTUNGEN GMBH & CO. KG, ASCHAFFENBURG ("EMD Aschaffenburg"), and
AHL EUROPE LIMITED ("AHL Europe Limited"; together with AHL, Argenbright, U.S.
Holdings, ADI Alpha, Tuja, and EMD Aschaffenburg, collectively referred to as
the "Borrowers"), the undersigned financial institutions listed on the signature
pages hereto as Lenders, and First Union National Bank, a national banking
association ("First Union"), as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
RECITALS
WHEREAS, the Lenders, the Administrative Agent and the Borrowers are
parties to that certain Second Amended and Restated Credit Agreement dated as of
October 15, 1999, as amended by that certain First Amendment to Second Amended
and Restated Credit Agreement dated as of November 23, 1999, that certain Second
Amendment to Second Amended and Restated Credit Agreement dated as of May 24,
2000, that certain Consent, Waiver and Third Amendment to Second Amended and
Restated Credit Agreement dated as of December 20, 2000, and that certain Fourth
Amendment to Second Amended and Restated Credit Agreement dated as of March 19,
2001 (as so amended, and as may be further amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"; capitalized terms
used herein and not otherwise defined herein shall have the meanings ascribed to
them in the Credit Agreement); and
WHEREAS, at the request of the Borrowers, the Lenders and the
Administrative Agent have agreed (i) to consent to the amendment of the Share
Mortgage over shares in AHL Europe Limited, dated December 20, 2000, between AHL
and the Security Trustee to reduce the percentage of the issued share capital of
AHL Europe Limited mortgaged in favor of the Security Trustee from one hundred
percent (100%) to sixty-five percent (65%) (the "AHL Europe Share Mortgage
Amendment"), (ii) to consent to the restructuring of certain of AHL's German
Subsidiaries as set forth herein, and (iii) to consent to the sale of the
remaining European operations of the Borrowers and their Subsidiaries (the
"European Operations") as set forth herein, and, all upon and subject to all of
the terms, conditions and provisions hereof.
NOW, THEREFORE, in consideration of the premises and the agreements,
covenants and provisions herein contained and for TEN DOLLARS ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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SECTION 1 CONSENT TO AHL EUROPE SHARE MORTGAGE AMENDMENT
Subject to the satisfaction of each of the conditions precedent set
forth in Section 5.1 of this Consent, the Lenders and the Administrative Agent
hereby consent to the AHL Europe Share Mortgage Amendment.
SECTION 2 CONSENT TO GERMAN RESTRUCTURING
AHL also has requested that the Administrative Agent and the Lenders
grant their consent to the following actions (all such actions are referred to
collectively herein as the "German Restructuring"):
1. either (a) the merger of Xxxxxxxx Management GmbH and EMD
Management GmbH into TUJA Management GmbH, (b) the merger of
Xxxxxxxx Management GmbH and TUJA Management GmbH into EMD
Management GmbH, or (c) the merger of TUJA Management GmbH and
EMD Management GmbH into Xxxxxxxx Management GmbH (the entity
surviving any of the foregoing mergers is referred to herein
as the "Surviving Management Company");
2. the increase of the registered share capital of the Surviving
Management Company by the issuance of two additional shares,
each in the nominal amount of DM 500, to Xxxxxxxxxxx (the
"Additional Shares");
3. either (a) the merger of Tuja and EMD Aschaffenburg into
Xxxxxxxx Personal Xxxxxxx XxxX & Xx. XX, Xxxxxxx ("Xxxxxxxx
Xxxxxxx XX"), (x) the merger of Xxxxxxxx Munster KG and EMD
Aschaffenburg into Tuja, or (c) the merger of Xxxxxxxx Munster
KG and Tuja into EMD Aschaffenburg (the entity surviving any
of the foregoing mergers is referred to herein as the
"Surviving Operating Partnership");
4. the conversion of the partnership interests in the Surviving
Operating Partnership from Deutsche Marks to Euros;
5. the renaming of any of the entities to be merged pursuant to
1. or 3. above;
6. moving the registered offices of EMD Management GmbH and EMD
Gesellschaft fur Personaldienstleistungen mbH to Munich;
7. modifying the partnership agreements and the articles of
association of the Subsidiaries of AHL set forth above in
order to reflect the actions set forth above; and
8. the incorporation in the State of Delaware of a new direct
Wholly-Owned Subsidiary of Xxxxxxxxxxx ("AHL Investments"),
and Xxxxxxxxxxx'x transferring of all of the shares of ADI
Alpha Holding to AHL Investments.
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In addition, AHL has requested that the Administrative Agent and the Lenders
consent to the release of the pledge by Xxxxxxxxxxx of the Additional Shares in
favor of the Administrative Agent arising as a result of the German Security
Documents and the consummation of the merger referred to in 1. above (the
"Additional Share Release").
Subject to the satisfaction of each of the conditions precedent set
forth in Section 5.2 of this Consent, the Lenders and the Administrative Agent
hereby grant their consent under the Credit Agreement and the German Security
Documents to the consummation, in whole or in part, of the German Restructuring,
and in conjunction therewith, agree to the Additional Share Release.
SECTION 3 CONSENT TO SALE OF EUROPEAN OPERATIONS
AHL has requested that the Administrative Agent and the Lenders grant
their consent to the sale by AHL and/or certain Subsidiaries of AHL (AHL and/or
such Subsidiaries, the "Sellers") of (i) all or certain of the assets
constituting the European Operations (collectively, the "European Assets")
and/or (ii) the capital stock, limited liability company interests, partnership
interests, or other equity interests in one or more Subsidiaries owning the
Assets (the "European Stock") (collectively, the "European Disposition").
Subject to the satisfaction of each of the conditions precedent set forth in
Section 5.3 of this Consent, the Lenders and the Administrative Agent hereby
grant their consent under the Loan Documents to the European Disposition and
hereby agree to the release of the Administrative Agent's security interests in
the European Assets and the European Stock.
SECTION 4 REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Consent, each Borrower hereby represents and warrants to the Lenders
that: (a) immediately prior to the effectiveness of this Consent, all of the
representations set forth in the Credit Agreement were accurate in all material
respects as of the date hereof, except to the extent that such representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such date, (b) after giving effect to this Consent, all of the representations
and warranties set forth in the Credit Agreement, will be accurate in all
material respects as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall have been true and correct on and
as of such date, and (c) there exists no Default or Event of Default under the
Credit Agreement or the Loan Documents as of the date hereof.
SECTION 5 CONDITIONS TO EFFECTIVENESS
5.1 Consent to AHL Europe Share Mortgage Amendment. The consent
set forth in Section 1 of this Consent shall become effective on the first day
on which each of the following conditions precedent shall have been satisfied:
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(a) AHL shall have paid to the Administrative Agent, for
the account of each Lender signing this approval letter prior to June
27, 2001, a non-refundable consent fee in an amount equal to .05% of
the amount of such Lender's Commitment on such date.
(b) The Administrative Agent shall have received
counterparts to this Consent duly executed by each of the parties
hereto.
(c) AHL shall have executed and delivered to the
Administrative Agent the AHL Europe Share Mortgage Amendment, in
substantially the form attached hereto as Exhibit A.
(d) The Administrative Agent shall have received such
other documents as it shall have reasonably requested, in form and
substance satisfactory to the Administrative Agent.
5.2 Consent to German Restructuring. The consents set forth in
Section 2 of this Consent shall become effective on the first day on which each
of the following conditions precedent shall have been satisfied:
(a) AHL shall have paid the fee set forth in Section
5.1(a) above.
(b) The Administrative Agent shall have received
counterparts to this Consent duly executed by each of the parties
hereto.
(c) If (i) the merger set forth in Section 2(3.) is to be
consummated and Xxxxxxxx Munster KG is to be the Surviving Operating
Partnership and/or (ii) the transactions set forth in Section 2(8.) are
to be consummated, then, in the former case, Xxxxxxxx Munster KG, and
in the latter case, AHL Investments, shall have become a Borrower under
the Credit Agreement (each, a "New Borrower") by executing and
delivering to the Administrative Agent new Notes, in favor of each
Lender, a joinder agreement, a security agreement, and such other
documents and instruments as the Administrative Agent shall request,
each in form and substance satisfactory to the Administrative Agent.
(d) Each Borrower, New Borrower and each other party to
any of the German Security Documents, the UK Security Documents, or any
of the other Loan Documents shall have executed and delivered to the
Administrative Agent such amendments to and confirmations of such
documents, and such other documents and instruments (including, without
limitation, a new pledge agreement in respect of the capital stock of
AHL Investments), as shall be requested by the Administrative Agent,
each in form and substance satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received
favorable opinions of counsel to the Borrowers addressed to the
Administrative Agent and the Lenders, with respect to the existing
Borrowers, the New Borrowers, such other Subsidiaries of AHL as become
a
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party to any of the documents referred to in this Section 5.2, this
Consent, the other Loan Documents executed pursuant to this Section
5.2, and such other matters as the Administrative Agent may reasonably
request, in form and substance satisfactory to the Administrative
Agent.
(f) The Administrative Agent shall have received
certificates as of a recent date as to the good standing of each
domestic Borrower and New Borrower under the laws of their respective
jurisdictions of organization.
(g) The Administrative Agent shall have received a
certificate of the secretary or assistant secretary of each New
Borrower certifying, as applicable, that attached thereto is a true and
complete copy of the articles of incorporation or other charter
documents of such Person and all amendments thereto; that attached
thereto is a true and complete copy of the bylaws (or equivalent
documents) of such Person as in effect on the date of such
certification; that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors (or equivalent
managing body) of such Person, authorizing the borrowings contemplated
by the Credit Agreement and the execution, delivery and performance of
this Consent and the other Loan Documents to which it is a party; and
as to the incumbency and genuineness of the signature of each officer
of such New Borrower executing Loan Documents to which such New
Borrower is a party.
(h) The Administrative Agent shall have received such
other documents as it shall have reasonably requested, in form and
substance satisfactory to the Administrative Agent.
5.3 Consent to Sale of European Operations. The consents and
release set forth in Section 3 of this Consent shall become effective on the
first day on which each of the following conditions precedent shall have been
satisfied:
(a) AHL shall have paid the fee set forth in Section
5.1(a) above.
(b) The Administrative Agent shall have received
counterparts to this Consent duly executed by each of the parties
hereto.
(c) The Administrative Agent shall have received cash
proceeds of the European Disposition in the appropriate currencies in
order to and in an amount sufficient to (i) repay and satisfy in full
all Obligations of the Administrative Agent and the Lenders and (ii) if
required pursuant to Section 5.3(e) below, to establish the minimum
cash collateral for any Letters of Credit remaining outstanding
following the closing of the European Disposition, as set forth in
Section 5.3(e).
(d) Either (i) Borrowers shall have terminated the Credit
Agreement and all Commitments of the Lenders thereunder, or (ii) one
(1) or more of the existing Borrowers, the Administrative Agent and one
(1) or more of the existing Lenders shall have agreed, in the sole and
absolute discretion of each such Person, to continue the
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Credit Agreement and all or a portion of such Lender or Lenders'
Commitments, pursuant to an amendment and restatement of the existing
Credit Agreement, effective as of the date of closing of the European
Disposition, and the Commitments of all other Lenders under the Credit
Agreement shall have been terminated. Each Borrower acknowledges and
agrees that neither the Administrative Agent nor any Lender shall have
any obligation to enter into any such amendment and restatement, to
pursue negotiations of any such document with Borrowers, or to agree to
the continuation of such Lender's Commitments.
(e) With respect to each Letter of Credit which remains
outstanding, either (i) such Letter of Credit shall have been returned
to the Administrative Agent for cancellation, (ii) there shall have
been delivered to the Administrative Agent good funds equal to 100% of
the maximum liability under such Letter of Credit, which funds are to
be deposited in a separate, blocked account (the "Cash Collateral
Account") maintained by Borrowers with the Administrative Agent and are
to be held in the Cash Collateral Account for the benefit of the
Lenders as cash collateral for the Borrowers' joint and several
reimbursement obligations and the other Obligations, (iii) there shall
have been delivered to the Administrative Agent a letter of credit in
form and substance satisfactory to the Administrative Agent in an
amount equal to 100% of the maximum liability under such Letter of
Credit with a term that extends 60 days beyond the latest expiration
date of such Letter of Credit and issued by a bank satisfactory to the
Administrative Agent that may be drawn upon by the Administrative Agent
in the event of any draw under such Letter of Credit, or (iv) if any
amendment and restatement of the Credit Agreement pursuant to Section
5.3(d) shall so provide, such Letter of Credit shall have been
continued as a Letter of Credit under such amendment and restatement.
In addition, if not cancelled at the closing of the European
Dispositions or continued pursuant to Section 5.3(e)(iv), and if so
requested by Administrative Agent, Borrowers shall agree to cause any
remaining outstanding Letters of Credit to be cancelled within sixty
(60) days following such closing.
(f) The Administrative Agent shall have received a
certified true and correct copy of the asset or stock purchase and sale
agreement evidencing the European Disposition, which agreement shall be
in form and substance satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received such
other documents as it shall have reasonably requested, in form and
substance satisfactory to the Administrative Agent.
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SECTION 6 MISCELLANEOUS
6.1 Counterparts. This Consent may be executed by each party to
this Consent upon a separate copy, and in such case one counterpart of this
Consent shall consist of enough of such copies to reflect the signature of all
of the parties to this Consent. This Consent may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Consent or its terms to produce or account for
more than one of such counterparts.
6.2 General. Except as expressly provided herein, the execution
and delivery of this Consent does not and will not amend, modify or supplement
any provision of, or constitute a consent to or a waiver of any noncompliance
with the provisions of, the Credit Agreement or the other Loan Documents, and,
except as specifically provided in this Consent, the Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
6.3 Construction. This Consent is a Loan Document executed
pursuant to the Credit Agreement and shall be construed, administered and
applied in accordance with all of the terms and provisions of the Credit
Agreement.
6.4 Governing Law. This Consent shall be governed by, construed
and enforced in accordance with the laws of the State of Georgia, without
reference to the conflicts or choice of law principles thereof.
6.5 Successors and Assigns. This Consent shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[Signatures appear on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed
by their respective officers hereunder duly authorized as of the day and year
first written above.
BORROWERS:
AHL SERVICES, INC.
By:
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Title:
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[CORPORATE SEAL]
XXXXXXXXXXX, INC.
By:
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Title:
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[CORPORATE SEAL]
XXXXXXXXXXX HOLDINGS LIMITED
By:
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Title:
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[CORPORATE SEAL]
ADI ALPHA HOLDING GMBH
By:
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Title:
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[CORPORATE SEAL]
Signature Page - Fifth Amendment
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TUJA XXXXXXXXXX XXXX & XX. XX, XXXXXXXXXX
By:
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Title:
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[CORPORATE SEAL]
EMD GESELLSCHAFT FUR
XXXXXXXXXXXXXXXXXXXXXXXX
XXXX & XX. XX, XXXXXXXXXXXXX
By:
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Title:
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[CORPORATE SEAL]
AHL EUROPE LIMITED
By:
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Title:
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[CORPORATE SEAL]
Signature Page - Fifth Amendment
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LENDERS:
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By:
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Title:
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FIRST UNION NATIONAL BANK,
LONDON BRANCH, as European Swingline Lender
By:
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Title:
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WACHOVIA BANK, N.A., as Lender
By:
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Title:
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SUNTRUST BANK, as Lender
By:
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Title:
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BANK OF AMERICA, N.A., as Lender
By:
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Title:
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Signature Page - Fifth Amendment
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FLEET NATIONAL BANK, as Lender
By:
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Title:
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DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG CAYMAN
ISLAND BRANCH, as Lender
By:
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Title:
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By:
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Title:
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THE BANK OF NOVA SCOTIA, as Lender
By:
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Title:
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SCOTIABANK EUROPE PLC, as Lender for
Revolving Loans made in Alternative
Currencies, as Lender
By:
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Title:
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SALOMON BROTHERS HOLDING
COMPANY INC., as Lender
By:
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Title:
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Signature Page - Fifth Amendment
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FIRSTSTAR BANK, N.A., as Lender
By:
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Title:
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BANK ONE, NA, as Lender
By:
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Title:
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SOVEREIGN BANK, as Lender
By:
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Title:
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.,
as Lender
By:
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Title:
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By:
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Title:
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Signature Page - Fifth Amendment
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THE FUJI BANK LIMITED, as Lender
By:
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Title:
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BANK LEUMI LE-ISRAEL, B.M.,
MIAMI AGENCY, as Lender
By:
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Title:
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