EXHIBIT 10.3
AMENDMENT NO. 2
TO THE CREDIT AGREEMENT
This AMENDMENT AGREEMENT (the "Amendment Agreement"), dated as of August 3,
1998 is made by and among ACSYS, INC. (formerly known as ICCE, INC.) a Georgia
corporation having its principal place of business in Atlanta, Georgia (the
"Borrower"), NATIONSBANK, NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States, as Lender, and
NATIONSBANK, NATIONAL ASSOCIATION, in its capacity as agent for the Lenders (in
such capacity, the "Agent"). Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement
(as defined below).
WITNESSETH:
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WHEREAS, the Borrower, the Agent and the Lenders have heretofore entered
into that certain Credit Agreement dated as of May 16, 1997 as amended by
Amendment No. I to the Credit Agreement dated June 29, 1998 (as further amended,
modified or 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, (i) the Agent and certain Subsidiaries (the "Original Guarantors")
have heretofore entered into a certain Guaranty Agreement dated as of May 16,
1997 (the "Original Guaranty Agreement") and (ii) the Agent and certain other
Subsidiaries (the "Subsequent Guarantors") (the Original Guarantors and the
Subsequent Guarantors being referred to hereinafter collectively as the
"Guarantors") have entered into subsequent Guaranty Agreements as required by
Section 7.19 of the Credit Agreement (the "Subsequent Guaranty Agreements") (the
Original Guaranty Agreement and the Subsequent Guaranty Agreements being
referred to hereinafter collectively as the "Guaranty Agreement"), pursuant to
which the Guarantors have guaranteed the Borrower's Obligations under the Credit
Agreement; and
WHEREAS, (i) the Agent, the Borrower and the Original Guarantors have
entered into a certain Security Agreement dated as of May 16, 1997 (the
"Original Security Agreement") and (ii) the Agent and the Subsequent Guarantors
have entered into subsequent Security Agreements as required by Section 7.19 of
the Credit Agreement, pursuant to which the Borrower and the Guarantors have
granted to the Agent for the benefit of the Secured Parties (as defined in the
Security Agreement) a security interest in certain of their personal property
and assets as collateral security for payment and performance of the Borrower's
Obligations under the Credit Agreement and the Guarantor's Obligations (as
defined in the Guaranty Agreement) under the Guaranty 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
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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 following definitions are amended in their entirety so that as
amended they read as follows:
"'Total Revolving Credit Commitment' means (a) through January 1, 1999 a
principal amount equal to $40,000,000 and (b) at all times thereafter a
principal amount equal to $25,000,000, in each case as reduced from time to time
in accordance with Section 2.07."
2. WAIVER. (a) At the request of the Borrower, the Agent and the Lenders
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hereby waive the requirement of Section 7.19 with respect to KPD Systems, Inc.
until August 14, 1998.
(b) The Borrower, the Agent and the Lenders hereby agree that the
promissory note in the principal amount of $1,015,000 in favor of ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ (the "▇▇▇▇▇▇ Note") is a seller note. The Agent and the Lenders hereby
waive until August 31, 1998 the requirement that the ▇▇▇▇▇▇ Note be expressly
subordinated to the Borrower's Obligations on terms and conditions acceptable to
the Agent in its sole discretion; provide that if the ▇▇▇▇▇▇ Note is not repaid
or subordinated on terms and conditions acceptable to the Agent in its sole
discretion by August 31, 1998, the Borrower shall be in Default.
The Borrower hereby acknowledges that the waivers contained herein are
granted by the Agent and the Lenders only for the limited purpose set forth
herein and each term and provision of the Credit Agreement and the other Loan
Documents continue in full force and effect except as specifically waived or
amended hereby. The waivers are granted only for the specific instances
specified herein and in no manner create a course of dealing or otherwise impair
the future ability of the Agent or the Lenders to declare a Default or Event of
Default under or otherwise enforce the terms of the Credit Agreement or any
other Loan Document with respect to any action or inaction of the Borrower or
any Guarantor not specifically waived or amended hereby.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
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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 VI
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
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Section 6.01(f) shall be those most recently furnished to each Lender pursuant
to Section 7.01;
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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.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement is
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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) a promissory note duly executed by the Borrower in favor of each
Lender;
(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 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.
All proceedings of the Borrower relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
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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, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
6. CONSENT OF GUARANTORS. The Guarantors have joined in the execution of
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this Amendment Agreement for the purposes of consenting hereto and for the
further purpose of
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confirming their guaranty of the Obligations of the Borrower as provided in the
Guaranty Agreement. Without limiting the generality of the foregoing, each
Guarantor acknowledges the increase in the amount of the Obligations as a result
of the terms of this Amendment Agreement.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
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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
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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 11.10 of the Credit Agreement shall apply to
this Amendment Agreement.
10. ENFORCEABILITY. Should any one or more of the provisions of this
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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
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Credit Agreement shall mean and include the Credit Agreement as amended hereby.
12. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding upon
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and inure to the benefit of each of the Borrower, the Lenders, the Agent and
their respective successors, assigns and legal representatives; provided,
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however, that the Borrower, without the prior written consent of the Lenders,
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may not assign any rights, powers, duties or obligations hereunder.
[SIGNATURES ON FOLLOWING PAGES]
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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 above written.
ACSYS, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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/s/ illegible Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
----------------------- Title: President
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GUARANTORS:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ASSOCIATES, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-------------------------- ----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
/s/ illegible Title: President
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ACSYS FINANCIAL STAFFING, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
/s/ illegible Title: President
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EKT, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
/s/ illegible Title: President
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INFINITY ENTERPRISES, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
/s/ illegible Title: President
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CAMA OF TAMPA, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
-------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
/s/ illegible Title: President
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ACSYS RESOURCES, INC.
WITNESS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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/s/ illegible Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
----------------------- Title: President
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C.P.A. STAFFING, INC.
WITNESS
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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/s/ illegible Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
----------------------- Title: President
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▇▇▇▇▇ ▇▇▇▇▇▇ CONSULTING GROUP, INC.
WITNESS
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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/s/ illegible Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
----------------------- Title: President
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ICON SEARCH & CONSULTING, INC.
WITNESS
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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/s/ illegible Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
----------------------- Title: President
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DRAMONDI, INC.
WITNESS
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
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/s/ illegible Name: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
----------------------- Title: President
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Al INVESTMENTS, INC. WITNESS:
WITNESS
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------- ------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------- Title: President
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and Lender
WITNESS
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
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/s/ illegible Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
----------------------- Title: Senior Vice President
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