EXHIBIT 4.14
FOURTEENTH AMENDMENT TO CREDIT AGREEMENT
AND LOAN DOCUMENTS
THIS FOURTEENTH AMENDMENT TO CREDIT AGREEMENT AND LOAN DOCUMENTS dated as
of November 30, 2001 (this "AMENDMENT"), is among Alternative Resources
Corporation, a Delaware corporation ("BORROWER"), the undersigned Lenders and
American National Bank and Trust Company of Chicago, as Agent ("AGENT") and as a
Lender. Unless otherwise defined herein, capitalized terms used herein shall
have the meanings ascribed to them in the Credit Agreement (as hereinafter
defined).
W I T N E S S E T H:
WHEREAS the Borrower, the Agent and the Lenders entered into that certain
Credit Agreement dated as of November 7, 1997, as amended by that certain
Thirteenth Amendment to Credit Agreement dated as of July __, 2001 (the
"THIRTEENTH AMENDMENT") by and among Borrower, Agent and Lenders, and certain
MESNE amendments thereof (as so amended and as the same may hereafter be
amended, modified, restated or otherwise supplemented from time to time, the
"CREDIT AGREEMENT");
WHEREAS the Obligations are due and payable in full on January 1, 2002 in
accordance with the definition of Facility Termination Date;
WHEREAS Borrower has obtained written proposals from each of Wynnchurch
Capital, Ltd. ("WYNNCHURCH") and Fleet Capital Corporation ("FLEET") to, in the
case of Wynnchurch, provide financing of $10,000,000 to Borrower in the proposed
form of senior subordinated convertible notes and, in the case of Fleet, to
provide a senior secured credit facility, in an aggregate amount sufficient to
repay the Obligations in full in cash on or before January 31, 2002 (such
transactions, in their entirety, the "REFINANCING"); and
WHEREAS the Borrower has requested that Agent and the Lenders amend and
extend the current Facility Termination Date from January 1, 2002 to January 31,
2002 in order to provide sufficient time to consummate the Refinancing;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the Recitals set forth above (which are incorporated herein by
this reference thereto) and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, each of the
undersigned agrees as follows:
1. CERTAIN AMENDMENTS TO CREDIT AGREEMENT. The parties hereto desire to amend
the Credit Agreement in order to (i) extend the Facility Termination Date by 30
days to January 31, 2002 from January 1, 2002, subject to the provisions hereof,
and (ii) reduce the Aggregate Commitment to $37,350,000 from $42,000,000 as
further provided herein. Accordingly, the
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parties agree, subject to the terms and conditions set forth herein, including,
without limitation the conditions precedent set forth in Section 5 hereof, that
the Credit Agreement is hereby amended as set forth below.
(a) Article I of the Credit Agreement is hereby amended by deleting the defined
terms indicated below in their entirety and substituting the definitions set
forth below in lieu thereof, such that such defined terms as so amended shall
now read as follows:
"Aggregate Commitment" means $37,350,000, as reduced from time to time
pursuant to the terms hereof.
"Commitment" means, for each Lender, the obligation of such Lender to make
Revolving Loans not exceeding the amount set forth opposite its name set
forth below or as set forth in any Notice of Assignment entered into
pursuant to Section 12.3.2, as such amount may be modified from time to
time and not exceeding $36,500,000 in the aggregate:
Lender Commitment
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American National Bank $10,950,000
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▇▇▇▇▇▇ Trust & Savings Bank $ 7,300,000
--------------------------------------------------------------------
Mellon Bank $ 7,300,000
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Fleet National Bank $ 5,475,000
--------------------------------------------------------------------
National City Bank $ 5,475,000
--------------------------------------------------------------------
"Facility Termination Date" means January 31, 2002 or any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Permitted Overadvance" means, $1,000,000 for the period commencing as of
November 30, 2001 through January 31, 2002."
(b) Section 6.24.4 of the Credit Agreement shall be amended by adding or
substituting, as applicable, the following new periods and Consolidated EBITDA
amounts under the columns bearing those headings in said section:
"For the period commencing Consolidated EBITDA shall
7/1/01 and ending: not be less than:
-------------------------- -------------------------
November 30, 2001 $2,400,000
December 31, 2001 $2,600,000
January 31, 2002 $2,800,000"
(c) Section 6.16 of the Credit Agreement shall be amended by adding or
substituting, as applicable, the following new periods and Capex Amounts under
the columns bearing those headings in said section:
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"For the period commencing Capital Expenditures shall
7/1/01 and ending: not exceed:
-------------------------- --------------------------
November 30, 2001 $ 700,000
December 31, 2001 $ 850,000
January 31, 2002 $1,000,000"
(d) The parties hereto acknowledge that each intends to give full effect to the
modifications described above and that the foregoing amendments are not meant to
be exhaustive or complete and they, and each applicable Loan Document, shall be
interpreted in such a manner so as to give full effect to the intended
modifications. In no event, however, shall the same be construed to prejudice,
compromise or adversely affect or impact the rights, remedies, claims or
security interests of Agent or any Lender under the Credit Agreement and the
other Loan Documents except as specifically and expressly set forth above.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) In order to induce Agent and the Lenders to execute and deliver this
Amendment, Borrower hereby represents to Agent and the Lenders that as of the
date hereof, the representations and warranties set forth in Article 5 of the
Credit Agreement and in that certain Eleventh Amendment to Credit Agreement and
Loan Documents dated as of May 18, 2001 by and among Borrower, Agent and the
Lenders (the "ELEVENTH AMENDMENT") relating to, among other things, the Tax
Refund, are and shall be and remain true and correct (except that the
representations contained in Section 5.4 shall be deemed to refer to the most
recent financial statements of the Borrower delivered to the Lenders) and the
Borrower is in compliance with all of the terms and conditions of the Credit
Agreement and no Unmatured Default or Default has occurred and is continuing
under the Credit Agreement or shall result after giving effect to this
Amendment.
(b) Borrower and each Guarantor by its execution of the Reaffirmation and
Consent attached hereto represents and warrants to Agent and Lenders that the
execution, delivery and performance of this Amendment has been duly authorized
by all requisite corporate action on the part of each such Person and that this
Amendment has been duly executed and delivered by each such Person.
(c) Borrower hereby reaffirms that the Tax Refund shall be applied to the
repayment of the Term Loan and then in repayment of the Revolving Loans in
permanent reduction of Aggregate Commitment, as set forth in the Eleventh
Amendment.
3. RELEASE.
In consideration for the agreement of the Agent and the Lenders to this
Amendment, Borrower hereby releases and forever discharges Agent, each Lender,
each of their parent
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corporations, affiliated corporations, subsidiary corporations, predecessor
corporations and successor corporations, and the past and present officers,
directors, agents, assigns, subrogees, servants, employees, financial advisors
and attorneys of each of them from any and all claims, actions, causes of
action, choses in action and suits of every kind and nature whatsoever, whether
at law or in equity, under any facts or legal theory that Borrower ever had, now
has, or hereafter can, shall or may have, in any way related to, arising out of
or based upon this Agreement, the Credit Agreement or any Loan Document, except
for any such claims arising out of Agent's or any Lender's future willful breach
of this Agreement.
4. REAFFIRMATION OF LIENS AND SECURITY INTERESTS.
The other Loan Documents, including specifically but without limitation
each of the Collateral Documents, are each hereby amended to secure the
Obligations as evidenced by the Credit Agreement and the other Loan Documents,
each as amended hereby.
5. CONDITIONS. This effectiveness of this Amendment shall be subject to the
satisfaction of all of the following conditions precedent or concurrent
(unless waived by Agent in writing):
(a) CERTAIN DOCUMENTS. Borrower shall have delivered to Agent and/or
Lenders, as applicable, all of the following, on or before the date indicated
and in each case, in form and substance acceptable to Agent and each Lender in
its sole and absolute discretion:
(1) Commitment Letters. On or before 5:00 p.m. (Chicago time),
December 26, 2001 Borrower shall deliver directly to each Lender, in
accordance with the requirement hereof, binding and legally
enforceable commitment letters (collectively, the "COMMITMENT
LETTERS") (i) from Wynnchurch committing, subject only to appropriate
documentation, to provide financing of not less than $10,000,000 to
Borrower in the form of purchasing senior subordinated convertible
notes, and (ii) from Fleet committing to provide financing in an
amount which, together with the proceeds realized by Borrower from the
Wynnchurch note sale as aforesaid, shall be sufficient to repay the
Obligations in cash, in full, on or before the Facility Termination
Date as amended hereby. Delivery of the Commitment Letters shall be
made by messenger or other appropriate courier or by facsimile
transmission with machine generated, time stamped confirmation of
receipt, to the Lender officers and at the fax numbers indicated on
Schedule 5(a) attached hereto.
(2) Amendment. Fully and duly executed counterparts of this Amendment
in sufficient quantities to provide each party with an original of
such counterpart, together with such other agreements, documents and
instruments as reasonably required by Agent, duly executed by the
respective parties thereto.
(3) Resolutions and Corporate Documents. If requested by Agent, copy,
duly certified by the secretary or an assistant secretary of Borrower,
of (i) resolutions
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of Borrower's Board of Directors authorizing or ratifying the
execution and delivery of this Amendment and authorizing the
borrowings under the Credit Agreement as amended hereby, (ii) all
documents evidencing other necessary corporate action, and (iii) all
approvals or consents, if any, with respect to this Amendment.
(4) Incumbency Certificate. If requested by Agent, a certificate of
the secretary or an assistant secretary of Borrower certifying the
names of Borrower's officers authorized to sign this Amendment and all
other documents or certificates to be delivered hereunder, together
with the true signatures of such officers.
(5) Additional Documents/Actions. Such other documents as the Agent
may reasonably require and all proceedings taken in connection with
the transactions contemplated by this Amendment, and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Agent and its legal counsel.
(b) NO OBJECTIONS TO COMMITMENT LETTERS. Agent, as of 5:00 p.m., Chicago
time, on Friday, December 28, 2001 shall not have received from any Lender
(including American National Bank in its capacity as Lender) a written objection
to or rejection of the Commitment Letters (or any one of them). Each Lender
hereby agrees that, provided each such Lender received copies of the Commitment
Letters in a timely manner in accordance with the provisions of subsection
6(a)(1) above, the failure by such Lender to deliver to Agent a rejection of or
objection to one or both of the Commitment Letters in writing by 5:00 p.m.,
Chicago time, on Friday, December 28, 2001 shall constitute acceptance and
approval by each such Lender of the Commitment Letters for purposes of this
Amendment.
(c) NO DEFAULT. After giving effect to this Amendment, no Unmatured
Default or Default shall have occurred and be continuing or will result from the
execution and delivery of, or the performance by Borrower of any of its
obligations under this Amendment.
(c) GUARANTORS' CONSENT. The Guarantors shall have consented hereto in the
Consent and Reaffirmation attached hereto for such purpose below.
(d) EXTENSION FEE. In consideration of, among other things, Lenders'
execution and delivery of this Amendment, Borrower shall pay to Agent for the
ratable benefit of the Lenders a non-refundable extension fee in the amount of
$93,375.00 representing 0.25% of the Aggregate Commitment as amended hereby (the
"EXTENSION FEE"), which Extension Fee shall be fully earned upon execution of
this Amendment by the parties hereto and shall be due and payable in cash, in
full upon the earliest to occur of (i) the Facility Termination Date, (ii) the
occurrence of an Event of Default, or (iii) the repayment in full of the
Obligations (whether by a refinancing thereof or otherwise); PROVIDED, however,
that notwithstanding the foregoing to the contrary, $46,687.50 of the Extension
fee (representing 50% thereof) shall be forgiven and waived by Agent and Lenders
if the Obligations are paid in full, in accordance with the terms hereof, on or
before the Facility Termination Date as amended hereby.
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(e) OTHER FEES. Borrower agrees to pay, (i) all invoices outstanding as of
the date that this Amendment is executed and delivered by Borrower to Agent (the
"DELIVERY DATE"), (ii) subject to clause (iii) below, all invoices issued by
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ subsequent to the Delivery Date, showing in reasonable detail
and description the amounts therefor, in each case no later than ten days
following receipt by Borrower of such invoice, and (iii) on the Delivery Date, a
$10,000 retainer to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ which will be used to set off any fees and
expenses incurred by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ in connection with its engagement by
Katten Much Zavis in connection with this matter, from and after the Delivery
Date.
This Amendment shall be effective only upon completion of the conditions
set forth above and Borrower's failure to deliver the aforementioned documents
or satisfy each of the foregoing conditions, as applicable, on or before the
dates indicated shall, at the option of the Lenders, result in this Amendment
being null and void, AB INITIO.
7. MISCELLANEOUS.
(a) This Amendment shall become effective upon the execution and delivery
hereof to the Agent by the Borrower and the Lenders and the satisfaction of the
conditions precedent set forth in Section 5 hereof.
(b) Except as specifically amended herein upon the effectiveness hereof,
the Credit Agreement shall continue in full force and effect in accordance with
its original terms. Reference to this specific Amendment need not be made in any
note, document, letter, certificate, the Credit Agreement itself, any Guaranty,
any Collateral Documents, the Notes, any other Loan Document or any
communication issued or made pursuant to or with respect to the Credit
Agreement, any reference in any of such to the Credit Agreement being sufficient
to refer to the same as amended hereby.
(c) The Borrower agrees to promptly pay on demand all costs and expenses of
or incurred by the Agent in connection with the negotiation, preparation,
execution and delivery of this Amendment, including the reasonable fees and
expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, counsel for the Agent, such payment to be made
immediately in the case of invoices rendered more than 30 days prior to the date
hereof and, in all other cases, no later than 30 days following receipt of an
invoice describing the fees and charges in reasonable detail, but in any event,
on or before repayment of the Obligations whether at stated maturity or sooner
in accordance with the terms hereof.
(d) This Amendment may be executed in any number of counterparts, and by
the different parties on different counterparts, all of which taken together
shall constitute one and the same agreement. Any of the parties hereto may
execute this Amendment by signing any such counterpart and each of such
counterparts shall for all purposes be deemed to be an original. This Amendment
shall be governed by the internal laws of the State of
Illinois.
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IN WITNESS WHEREOF, this Fourteenth Amendment to Credit Agreement and Loan
Documents has been duly executed by each of the undersigned as of the day and
year first set forth above.
ALTERNATIVE RESOURCES CORPORATION, a Delaware
corporation
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as Agent and
individually as a Lender
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
MELLON BANK, N.A., as a Lender
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as a Lender
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
FLEET NATIONAL BANK, as a Lender
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
NATIONAL CITY BANK, as a Lender
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
GUARANTORS' REAFFIRMATION AND CONSENT
The Undersigned have each heretofore executed and delivered to the Agent
(defined below) and the Lenders a Guaranty in connection with the obligations
and liabilities of
Alternative Resources Corporation, a Delaware corporation
("Borrower") arising in connection with that certain Credit Agreement by and
among American National Bank and Trust Company of Chicago, as agent ("Agent"),
and as the other Lenders a party thereto. Each of the Undersigned hereby
acknowledges that it has received and has read the Fourteenth Amendment to
Credit Agreement and Loan Documents dated as of November 30, 2001, consents
thereto and to the transactions contemplated thereunder and confirms that its
Guaranty and all of the Undersigned's obligations thereunder remain in full
force and effect in accordance with its terms.
ARC SOLUTIONS, INC.
(formerly known as CGI Systems, Inc.)
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
ARC SERVICE, INC.
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
WRITERS, INC.
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
ARC MIDHOLDING, INC.
(formerly known as CGI Corp.)
By:---------------------------------------
Name:------------------------------------
Its:---------------------------------------
SCHEDULE 5(a)
LENDER DISTRIBUTION INFORMATION
LENDER LENDER CONTACT ` TELEPHONE NUMBER FAX NUMBER
American National Bank ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Mellon Bank, N.A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Bank & Trust ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Fleet National Bank ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
National City Bank ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇