WAIVER AND ELEVENTH AMENDMENT TO CREDIT AGREEMENT
EXHIBIT
10.1
WAIVER
AND ELEVENTH AMENDMENT TO CREDIT AGREEMENT
This
Waiver and Eleventh Amendment to Credit Agreement (this "Amendment") is dated
as
of July 26, 2007, and is by and among General Electric Capital Corporation,
a
Delaware corporation, individually as a Lender and as Agent and Security Trustee
for the Lenders, and Analysts International Corporation, a Minnesota corporation
("Borrower").
W
I T N E S S E T H:
WHEREAS,
pursuant to a certain Credit Agreement dated as of April 11, 2002, by and among
General Electric Capital Corporation, a Delaware corporation, individually
as a
Lender and as Agent and Security Trustee for the Lenders, the other Credit
Parties signatory from time to time thereto, and Borrower (as amended or
otherwise modified from time to time, the "Credit Agreement"; capitalized terms
used herein and not otherwise defined herein shall have the meaning ascribed
to
such terms in the Credit Agreement), Agent and Lenders agreed, subject to the
terms and provisions thereof, to provide certain loans and other financial
accommodations to Borrower;
WHEREAS,
Borrower has notified Agent and Lenders that Borrower has incurred surety and
performance bond reimbursement obligations in excess of $3,000,000 individually,
and in excess of $10,000,000 in the aggregate, constituting breaches of Sections
6.3(a)(vi) and Section 6.7(d) of the Credit Agreement and separate Events of
Default under Section 8.1(b) of the Credit Agreement (collectively, the
"Existing Events of Default"); and
WHEREAS,
Borrower has requested that Agent and Requisite Lenders waive the Existing
Events of Default and amend the Credit Agreement in certain respects, as set
forth below.
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Waiver. In
reliance upon the representations and warranties of Borrower set forth in
Section 4 below, and subject to the conditions to effectiveness set forth in
Section 3 below, Agent and Requisite Lenders hereby waive the Existing Events
of
Default. This is a limited waiver and shall not be deemed to
constitute a waiver of, or consent to, any other future breach of the Credit
Agreement.
2. Amendment. In
reliance upon the representations and warranties of Borrower set forth in
Section 4 below, and subject to the conditions to effectiveness set forth in
Section 3 below, the Credit Agreement is hereby amended as follows:
(a) Section
6.3(a) of the Credit Agreement is hereby amended by deleting the reference
therein to "$10,000,000" and inserting a reference to "$30,000,000" in lieu
thereof.
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(b) Section
6.7(d) of the Credit Agreement is hereby amended by (i) deleting the
reference therein to "$3,000,000" and inserting a reference to "$7,500,000"
in
lieu thereof and (ii) deleting the reference therein to "$10,000,000" and
inserting a reference to "$30,000,000" in lieu thereof.
(c) Section
6.14 of the Credit Agreement is hereby amended by (i) deleting the reference
therein to "and" immediately prior to clause (e) thereof and inserting a
comma in lieu thereof and (ii) inserting the following new clause (f)
therein, immediately prior to the end of such Section, which clause (f)
shall read as follows:
"(f)
purchases by Borrower of Borrower's outstanding common stock in an aggregate
amount not to exceed $5,000,000; provided that at the time of any such
purchase (i) no Event of Default has occurred and is then continuing and (ii)
Borrowing Availability immediately after giving effect to any such purchase
is
not less than $15,000,000; provided, further, that Borrower's
right to make purchases pursuant to this clause (f) shall be suspended
over any period commencing on the date that Borrowing Availability is less
than
$15,000,000 through and including the date that Borrowing Availability shall
have exceeded $15,000,000 for ninety (90) consecutive days."
(d) Clause
(a) of Annex E to the Credit Agreement is hereby amended by (i)
deleting the reference therein to "and" immediately prior to clause (iii)
thereof and inserting a comma in lieu thereof and (ii) inserting the following
new clause (iv) therein, immediately following clause (iii)
thereof, which clause (iv) shall read as follows:
"(iv)
a listing of all surety and/or performance bonds outstanding for the account
of
Borrower or any of its Subsidiaries, setting forth with respect to each such
bond the original face amount thereof and the aggregate amount of Accounts
collected by Borrower or any of its Subsidiaries with respect to any contractual
undertakings supported by such bond, together with a listing of all related
reimbursement agreements or other obligations entered into by Borrower or any
of
its Subsidiaries in connection therewith."
(e) Annex
G to the Credit Agreement is hereby amended by amending and restating
clause (c) thereof as follows:
"(c) Minimum
Fixed Charge Coverage Ratio. In the event that average daily
Borrowing Availability for any Fiscal Month (the "Trigger Month") is less than
$7,000,000, then Borrower and its Subsidiaries shall have on a consolidated
basis at the end of each Fiscal Month, commencing with the Trigger Month, a
Fixed Charge Coverage Ratio for the twelve (12) Fiscal Month period then ended
of not less than 1.0 to 1.0."
3. Conditions
Precedent. The effectiveness of the waivers and amendments
contemplated hereby is subject to the prior receipt by Agent of each of the
following documents and agreements, each in form and substance acceptable to
Agent in its sole discretion:
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(a) Agent
shall have received a fully executed copy of this Amendment;
(b) No
Default or Event of Default (other than the Existing Events of Default) shall
have occurred and be continuing; and
(c) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all agreements, documents, instruments and other legal matters
incident thereto shall be satisfactory to Agent and its legal
counsel.
4. Representations
and Warranties. To induce Agent to enter into this Amendment, the
Borrower hereby represents and warrants to Agent that:
(a) The
execution, delivery and performance by each Credit Party of this Amendment
and
each other agreement and document contemplated hereby are within their corporate
or limited liability company power, have been duly authorized by all necessary
corporate or limited liability company action, have received all necessary
governmental approval (if any shall be required), and do not and will not
contravene or conflict with any provision of law applicable to any Credit Party,
the articles of incorporation, articles of organization, by-laws or operating
agreement of any Credit Party, any order, judgment or decree of any court or
governmental agency, or any agreement, instrument or document binding upon
any
Credit Party or any of their respective properties;
(b) Each
of the Credit Agreement, the other Loan Documents, and each other agreement
and
document contemplated hereby is the legal, valid and binding obligation of
the
applicable Credit Party, enforceable against such Credit Party in accordance
with their terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, moratorium, fraudulent transfer or other similar
laws affecting creditors' rights generally or by principles governing the
availability of equitable remedies;
(c) All
of the statements contained in Section 3 of the Credit Agreement and in Section
4 of the Security Agreement are true and correct on the date
hereof;
(d) Each
Credit Party has performed all of its obligations under the Credit Agreement
and
the Loan Documents to be performed by it on or before the date hereof and as
of
the date hereof, each Credit Party is in compliance with all applicable terms
and provisions of the Credit Agreement and each of the Loan Documents to be
observed and performed by it and, except to the extent otherwise waived by
the
provisions hereof, no Event of Default or other event which, upon notice or
lapse of time or both, would constitute an Event of Default, has occurred;
and
(e) Set
forth as Schedule 1 hereto is a listing of all surety and/or performance
bonds outstanding as of the date hereof for the account of Borrower or any
of
its Subsidiaries, setting forth with respect to each such bond the original
face
amount thereof and the aggregate amount of Accounts collected by Borrower or
any
of its Subsidiaries with respect to any contractual undertakings supported
by
such bond, together with a listing of all related reimbursement agreements
or
other obligations entered into by Borrower or any of its Subsidiaries in
connection therewith.
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5. Collection
Reserve. Pursuant to the Loan Documents, Agent established, prior
to the date hereof, a Collection Reserve in the amount of
$3,200,000. The Collection Reserve shall remain in effect until such
time, if any, that Agent shall have determined, in its reasonable credit
judgment, to terminate, reduce or otherwise modify such Reserve (without
limitation of Agent's rights generally to establish and adjust
Reserves).
6. Reaffirmation. Each
of Medical Concepts Staffing, Inc., a Minnesota corporation ("Medical
Staffing"), Analysts International Management Services, LLC, a Minnesota limited
liability company ("AIMS"), Analysts International Business Solution Services,
LLC, a Minnesota limited liability company ("AIBSS"), Analysts International
Business Resource Services, LLC, a Minnesota limited liability company ("AIBRS")
and Analysts International Strategic Sourcing Services, LLC, a Minnesota limited
liability company ("AISSS"; AIMS, AIBSS, AIBRS and AISSS are collectively the
"Staffing Subsidiaries" and each a "Staffing Subsidiary") hereby consents to
Borrower's execution and delivery of this Amendment and agrees to be bound
hereby. Medical Staffing hereby affirms that nothing contained herein
shall modify in any respect whatsoever its obligations under the Loan Documents,
including, without limitation, its guaranty of the obligations of Borrower
to
Agent and Lenders pursuant to the terms of that certain Guaranty, dated as
of
April 7, 2003 (the "MCS Guaranty"), executed by Medical Staffing in favor of
Agent and Lenders and reaffirms that the MCS Guaranty is and shall continue
to
remain in full force and effect. Each Staffing Subsidiary hereby
affirms that nothing contained herein shall modify in any respect whatsoever
its
obligations under the Loan Documents, including, without limitation, its
guaranty of the obligations of Borrower to Agent and Lenders pursuant to the
Guaranty, dated December 31, 2003, executed by such Staffing Subsidiary in
favor
of Agent and Lenders and reaffirms that such Guaranty is and shall continue
to
remain in full force and effect. Although Medical Staffing and each
Staffing Subsidiary has been informed of the matters set forth herein and has
acknowledged and agreed to same, such Person understands that Agent and Lenders
have no obligation to inform any such Person of such matters in the future
or to
seek any such Person's acknowledgment or agreement to future consents or
waivers, and nothing herein shall create such a duty.
7. Counterparts. This
Amendment may be executed in any number of counterparts and by the different
parties on separate counterparts, and each such counterpart shall be deemed
to
be an original, but all such counterparts shall together constitute but one
and
the same Amendment. Any such counterpart which may be delivered by
facsimile transmission or electronic portable format (i.e., "pdf") shall be
deemed the equivalent of an originally signed counterpart and shall be fully
advisable in any enforcement proceeding regarding this Amendment.
8. Continued
Effectiveness. Except as amended hereby, the Credit Agreement and
each of the Loan Documents shall continue in full force and effect according
to
its terms.
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9. Costs
and Expenses. Borrower hereby agrees that all expenses incurred by Agent in
connection with the preparation, negotiation and closing of the transactions
contemplated hereby, including, without limitation, reasonable attorneys' fees
and expenses, shall be part of the Obligations.
10. Governing
Law. This Amendment shall be a contract made under and governed
by the internal laws of the State of Illinois.
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IN
WITNESS WHEREOF, this Amendment has been executed as of the day and year first
written above.
ANALYSTS
INTERNATIONAL CORPORATION
|
|
By___________________________________
|
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Its
___________________________________
|
MEDICAL
CONCEPTS STAFFING, INC.
|
|
By
___________________________________
|
|
Its
___________________________________
|
ANALYSTS
INTERNATIONAL MANAGEMENT
|
|
SERVICES,
LLC
|
|
By
___________________________________
|
|
Its
___________________________________
|
ANALYSTS
INTERNATIONAL BUSINESS
|
|
SOLUTION
SERVICES, LLC
|
|
By
___________________________________
|
|
Its
___________________________________
|
ANALYSTS
INTERNATIONAL BUSINESS
|
|
RESOURCE
SERVICES, LLC
|
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By
____________________________________
|
|
Its
____________________________________
|
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ANALYSTS
INTERNATIONAL STRATEGIC
|
|
SOURCING
SERVICES, LLC
|
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By
____________________________________
|
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Its
____________________________________
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GENERAL
ELECTRIC CAPITAL CORPORATION,
|
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As
Agent, Security Trustee and Lender
|
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By
_____________________________________
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An
Authorized Signatory
|
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