EXHIBIT 6(a)
SECOND AMENDMENT TO THE NOTE PURCHASE AGREEMENT DATED AS OF DECEMBER 30, 1998
ANALYSTS INTERNATIONAL CORPORATION
------------------------------
SECOND AMENDMENT
DATED AS OF JUNE 30, 2001
REGARDING
NOTE PURCHASE AGREEMENT
DATED AS OF DECEMBER 30, 1998
------------------------------
RE: $20,000,000 7.00% SENIOR NOTES
DUE DECEMBER 30, 2006
--------------------------------------------------------------------------------
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS SECOND AMENDMENT dated as of June 30, 2001 (the "Second AMENDMENT") to
the Note Purchase Agreement dated as of December 30, 1998 is by and among
ANALYSTS INTERNATIONAL CORPORATION, a Minnesota corporation (the "COMPANY"), and
each of the institutions which is a signatory to this Second Amendment
(collectively, the "NOTEHOLDERS").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into a
Note Purchase Agreement dated as of December 30, 1998 (as amended by the First
Amendment dated March 30, 2001, the "NOTE PURCHASE AGREEMENT"). The Company has
heretofore issued the $20,000,000 7.00% Senior Notes Due December 30, 2006 (the
"NOTES") dated December 30, 1998 pursuant to the Note Purchase Agreement.
B. The Company and the Noteholders now desire to amend the Note Purchase
Agreement in the respects, but only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other acts
and things necessary to make this Second Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this Second Amendment set forth in Section 3.1
hereof, and in consideration of good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. AMENDMENTS AND AGREEMENTS.
1.1. Section 9.6 of the Note Purchase Agreement shall be and is hereby
amended in its entirety to read as follows:
9.6 FIXED CHARGES RATIO.
The Company will maintain, as of the end of each fiscal quarter of the
Company, Consolidated Net Income Available for Fixed Charges for the immediately
preceding twelve months at least equal to (a) 160% of Consolidated Fixed Charges
for the twelve month period ending on June 30, 2001, (b) 120% of Consolidated
Fixed Charges for the twelve month period ending on September 30, 2001, (c) 105%
of Consolidated Fixed Charges for the twelve month period ending on December 31,
2001, and (d) 125% of Consolidated Fixed Charges for any such twelve month
period ending after December 31, 2001.
1.2. Section 9.8 of the Note Purchase Agreement shall be and hereby is
amended in its entirety to read as follows:
9.8 CASH FLOW LEVERAGE RATIO.
The Company will maintain, as of the end of each fiscal quarter of the
Company, its Cash Flow Leverage Ratio at not more than (a) 2.75 to 1.00 as of
the fiscal quarter ending on June 30, 2001, (b) 3.05 to 1.00 as of the fiscal
quarter ending on September 30, 2001, (c) 3.10 to 1.00 as of the fiscal quarter
ending on Xxxxxxxx 00, 0000, (x) 2.50 to 1.00 as of the last day of each fiscal
quarter ending after December 31, 2001 and on or prior to December 31, 2002, and
(e) 1.75 to 1.00 as of the end of last day of each fiscal quarter ending after
December 31, 2002.
1.3. The definition of "Reinvestment Yield" in Section 8.6 of the Note
Purchase Agreement shall be amended by deleting "0.50%" in the first line
thereof and replacing it with "3.75%."
1.4. Effective as of August 1, 2001, the interest rate on the Notes
shall increase from 7% per annum to 9% per annum. The form of Note shall be and
hereby is amended and restated in its entirety to read as set forth in Exhibit 1
hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
2.1. To induce the Noteholders to execute and deliver this Second
Amendment (which representations shall survive the execution and delivery of
this Second Amendment), the Company represents and warrants to the Noteholders
that:
(a) this Second Amendment has been duly authorized, executed and
delivered by it and this Second Amendment constitutes the legal, valid and
binding obligation, contract and agreement of the Company enforceable against it
in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally;
(b) the Note Purchase Agreement, as amended by this Second Amendment,
constitutes the legal, valid and binding obligations, contracts and agreements
of the Company enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principles relating to or limiting creditors'
rights generally;
(c) the execution, delivery and performance by the Company of this
Second Amendment (i) has been duly authorized by all requisite corporate action
and, if required, shareholder action, (ii) does not require the consent or
approval of any governmental or regulatory body or agency, and (iii) will not
(A) violate (1) any provision of law, statute, rule or regulation or its
articles of incorporation or bylaws, (2) any order of any court or any rule,
regulation or order of any other agency or government binding upon it, or (3)
any provision of any material indenture, agreement or other instrument to which
it is a party or by which its properties or assets are or may be bound, or
(B) result in a breach or constitute (alone or with due notice or lapse of time
or both) a default under any indenture, agreement or other instrument referred
to in clause (iii)(A)(3) of this Section 2.1(c);
(d) as of the date hereof and after giving effect to this Second
Amendment, no Default or Event of Default has occurred which is continuing; and
(e) all the representations and warranties contained in Section 5 of
the Note Purchase Agreement are true and correct in all material respects with
the same force and effect as if made by the Company on and as of the date
hereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS SECOND AMENDMENT.
3.1. This Second Amendment shall not become effective until each and
every one of the following conditions shall have been satisfied:
(a) executed counterparts of this Second Amendment, duly executed by
the Company and the holders of at least 50% of the outstanding principal of the
Notes, shall have been delivered to the Noteholders;
(b) replacement Notes in the form of Exhibit 1 hereto or an allonge to
the existing Notes reflecting the increase in interest rate, duly executed by
the Company, shall have been delivered to the Noteholders; and
(c) the representations and warranties of the Company set forth in
Section 2 hereof are true and correct on and with respect to the date hereof.
Subject to satisfaction of the foregoing conditions, this Second
Amendment shall become effective as of June 30, 2001.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
4.1. The Company agrees to pay upon demand, the reasonable fees and
expenses of Faegre & Xxxxxx LLP, counsel to the Noteholders, in connection with
the negotiation, preparation, approval, execution and delivery of this Second
Amendment.
SECTION 5. MISCELLANEOUS.
5.1. This Second Amendment shall be construed in connection with and as
part of the Note Purchase Agreement, and except as modified and expressly
amended by this Second Amendment, all terms, conditions and covenants contained
in the Note Purchase Agreement and the Notes are hereby ratified and shall be
and remain in full force and effect.
5.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Second Amendment
may refer to the Note Purchase Agreement without making specific reference to
this Second Amendment but nevertheless all such references shall include this
Second Amendment unless the context otherwise requires.
5.3. The descriptive headings of the various Sections or parts of this
Second Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
5.4. This Second Amendment shall be governed by and construed in
accordance with Minnesota law.
5.5. The execution hereof by you shall constitute a contract between us
for the uses and purposes hereinabove set forth, and this Second Amendment may
be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
ANALYSTS INTERNATIONAL CORPORATION
By
----------------------------------------------
Its
-------------------------------------------
Accepted and Agreed to:
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By
----------------------------------------------
Its
-------------------------------------------
and
By
----------------------------------------------
Its
-------------------------------------------
NORTHERN LIFE INSURANCE COMPANY
By ING Investment Management LLC
Its Agent
By
--------------------------------------------
Its
-----------------------------------------
RELIASTAR LIFE INSURANCE COMPANY
By ING Investment Management LLC
Its Agent
By
--------------------------------------------
Its
-----------------------------------------
SECURITY CONNECTICUT LIFE INSURANCE COMPANY
By ING Investment Management LLC
Its Agent
By
--------------------------------------------
Its
-----------------------------------------
EXHIBIT 1
FORM OF NOTE
THIS NOTE HAS BEEN PURCHASED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION.
NO SALE, OFFER TO SELL, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS NOTE SHALL
BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, WITH RESPECT TO THIS NOTE IS THEN IN EFFECT OR UNLESS SUCH DISPOSITION
MAY BE EFFECTED WITHOUT VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS.
ANALYSTS INTERNATIONAL CORPORATION
SENIOR NOTE DUE DECEMBER 30, 2006
No.[___] [Date]
$[_____] PPN 032681 A*9
FOR VALUE RECEIVED, the undersigned, ANALYSTS INTERNATIONAL CORPORATION
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Minnesota, hereby promises to pay to [______________], or
registered assigns, the principal sum of [_________________] DOLLARS on December
30, 2006, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the rate of (i) 7.00% per
annum from the date hereof until July 31, 2001, and (ii) 9.00% per annum at all
times thereafter, payable semiannually, on the 30th day of June and December in
each year, commencing with the June or December next succeeding the date hereof,
until the principal hereof shall have become due and payable, and (b) to the
extent permitted by law on any overdue payment (including any overdue
prepayment) of principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the option of the
registered holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 2.00% over the rate then applicable to this Note or
(ii) 2.00% over the rate of interest publicly announced by Xxxxx Fargo Bank
Minnesota, National Association from time to time in Minneapolis, Minnesota as
its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of the Company or at such other place as the
Company shall have designated by written notice to the holder of this Note as
provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the "Notes") in
the aggregate principal amount of $20,000,000 issued pursuant to the Note
Purchase Agreement, dated as of December 30, 1998 (as from time to time amended,
the "Note Purchase Agreement"), between the Company and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder of
this Note will be deemed, by its acceptance hereof, (i) to have agreed to the
confidentiality
provisions set forth in Section 20 of the Note Purchase Agreement and (ii) to
have made the representation set forth in Section 6.2 of the Note Purchase
Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal on the dates and in
the amounts specified in the Note Purchase Agreement. This Note is also subject
to optional prepayment, in whole or from time to time in part, at the times and
on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Minnesota
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
ANALYSTS INTERNATIONAL CORPORATION
By:
---------------------------------------------
Its:
-------------------------------------------
