1
EXHIBIT 10.16
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment No. 2"), dated as
of February 28, 1997, is entered into by and among PERSONNEL GROUP OF AMERICA,
INC. (the "Borrower"), CERTAIN SUBSIDIARIES OF THE BORROWER IDENTIFIED ON THE
SIGNATURES PAGES HERETO (the "Guarantors"), CERTAIN LENDERS IDENTIFIED ON THE
SIGNATURE PAGES HERETO (the "Lenders") and NATIONSBANK, N.A., as agent for the
Lenders (in such capacity, the "Agent").
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent are party
to that certain Credit Agreement dated as of September 30, 1996, as amended by
that certain Amendment No. 1 dated as of December 13, 1996 (as amended, the
"Existing Credit Agreement");
WHEREAS, the parties hereto have agreed to amend the Existing Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment No. 2,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 2 Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment No. 2, including its
preamble and recitals, have the meanings provided in the Amended Credit
Agreement.
1
2
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 2
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so amended, the Existing Credit Agreement and all
other Credit Documents shall continue in full force and effect.
SUBPART 2.1. Amendment to Section 1.1. The definition of "Permitted
Acquisitions" set forth in Section 1.1 of the Existing Credit Agreement is
amended in its entirety to read as follows:
"Permitted Acquisitions" means:
(i) acquisitions by the Borrower or its Subsidiaries of all or any
portion of the capital stock or securities or all, substantially all or
any portion of the assets of any Person engaged in a business or
businesses substantially similar to any business currently conducted by
the Borrower or any of its Subsidiaries, provided that (A) the cost
(including, without duplication, the non-contingent purchase price, all
acquired liabilities, all non-compete payments and the principal amount
of any seller financing, but excluding the contingent purchase price and
all fees and expenses) of any such acquisition individually does not
exceed 10% of Consolidated Net Worth, (B) such acquisition is approved by
the board of directors of such Person (if applicable or required), and
(C) after giving effect on a Pro Forma Basis to any such acquisition
(including but not limited to any Indebtedness to be incurred by the
Borrower or any of its Subsidiaries in connection therewith), no Default
or Event of Default would exist hereunder; and
(ii) any merger or consolidation permitted by Section 8.4(b).
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 2 Effective Date. This Amendment No. 2 shall
be and become effective as of the date hereof (the "Amendment No. 2 Effective
Date") when all of the conditions set forth in this Subpart 3.1 shall have been
satisfied, and thereafter this Amendment No. 2 shall be known, and may be
referred to, as "Amendment No. 2."
SUBPART 3.1.1. Execution of Counterparts of Amendment. The Agent shall
have received executed counterparts (or other evidence of execution, including
facsimile signatures, satisfactory to the Agent) of this Amendment No. 2, which
collectively shall have been duly executed on behalf of each of the Borrower,
the Guarantors, the Required Lenders and the Agent.
SUBPART 3.1.2. Other Documents. The Agent shall have received such
other documents as the Agent, any Lender or counsel to the Agent may reasonably
request.
2
3
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment No. 2 to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment No. 2.
SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement. This
Amendment No. 2 is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered and applied in accordance with the terms and provisions
of the Existing Credit Agreement.
SUBPART 4.3. References in Other Credit Documents. At such time as this
Amendment No. 2 shall become effective pursuant to the terms of Subpart 3.1,
all references in the Credit Documents to the "Credit Agreement" shall be
deemed to refer to the Amended Credit Agreement.
SUBPART 4.4. Representations and Warranties. Each Credit Party hereby
represents and warrants that (i) each Credit Party that is party to this
Amendment No. 2: (a) has the requisite corporate power and authority to
execute, deliver and perform this Amendment No. 2, as applicable and (b) is
duly authorized to, and has been authorized by all necessary corporate action,
to execute, deliver and perform this Amendment No. 2, (ii) the Borrower has no
claims, counterclaims, offsets, or defenses to the Credit Documents and the
performance of its obligations thereunder, or if the Borrower has any such
claims, counterclaims, offsets, or defenses to the Credit Documents or any
transaction related to the Credit Documents, the same are hereby waived,
relinquished and released in consideration of the Lenders' execution and
delivery of this Amendment No. 2, (iii) the representations and warranties
contained in Section 6 of the Existing Credit Agreement are, subject to the
limitations set forth therein, true and correct in all material respects on and
as of the date hereof as though made on and as of such date (except for those
which expressly relate to an earlier date) and (iv) no Default or Event of
Default exists under the Existing Credit Agreement on and as of the date hereof
or will occur as a result of the transactions contemplated hereby.
SUBPART 4.5. Liens. The Borrower and the Guarantors, as applicable,
affirm the liens and security interests created and granted in the Credit
Documents and agree that this Amendment No. 2 shall in no manner adversely
effect or impair such liens and security interest.
SUBPART 4.6. Acknowledgment of Guarantors. The Guarantors acknowledge
and consent to all of the terms and conditions of this Amendment No. 2 and
agree that this Amendment No. 2 and all documents executed in connection
herewith do not operate to reduce or discharge the Guarantors' obligations
under the Amended Credit Agreement or the other Credit Documents. The
Guarantors further acknowledge and agree that the Guarantors have no claims,
counterclaims, offsets, or defenses to the Credit Documents and the performance
of the Guarantors' obligations thereunder or if the Guarantors did have any
such claims, counterclaims, offsets or defenses to the
3
4
Credit Documents or any transaction related to the Credit Documents, the same
are hereby waived, relinquished and released in consideration of the Lenders'
execution and delivery of this Amendment No. 2.
SUBPART 4.7. No Other Changes. Except as expressly modified and amended
in this Amendment No. 2, all the terms, provisions and conditions of the
Credit Documents shall remain unchanged.
SUBPART 4.8. Counterparts. This Amendment No. 2 may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SUBPART 4.9. Entirety. This Amendment No. 2, the Amended Credit
Agreement and the other Credit Documents embody the entire agreement between
the parties and supersede all prior agreements and understandings, if any,
relating to the subject matter hereof. These Credit Documents represent the
final agreement between the parties and may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the parties.
SUBPART 4.10. Governing Law. THIS AMENDMENT NO. 2 AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
SUBPART 4.11. Successors and Assigns. This Amendment No. 2 shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[Signatures to Follow]
4
5
This Amendment No. 2 is executed as of the day and year first written above.
BORROWER: PERSONNEL GROUP OF AMERICA, INC.,
a Delaware corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Senior Vice President
---------------------------
GUARANTORS: STAFFPLUS, INC.,
a Delaware corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
▇▇▇▇▇▇ STAFFING SERVICES, INC.,
a California corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
PFI CORP.,
a Delaware corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
NURSEFINDERS, INC.,
a Texas corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
[Guarantor Signatures Continue]
1
6
NF SERVICES, INC.,
a New York corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
B.C.P., INC.,
a Hawaii corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
PROFILE TEMPORARY SERVICES, INC.,
an Illinois corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
INFOTECH SERVICES, INC.,
a North Carolina corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
▇▇▇▇▇▇▇▇▇ SYSTEMS, INC.,
a Virginia corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
WORD PROCESSING PROFESSIONALS, INC.,
a New York corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: Vice President
---------------------------
2
7
LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a Lender and in
its capacity as Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
--------------------------
BANK OF AMERICA ILLINOIS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
--------------------------
BANQUE PARIBAS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Title: Group Vice President
-------------------------
COMERICA BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Title: Account Officer
------------------------
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title:
------------------------
[Lender Signatures Continue]
3
8
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇▇▇▇▇ ▇. St. Amand
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. St. ▇▇▇▇▇
-------------------------
Title: Assistant Vice President
------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------
Title: Vice President
------------------------
UNITED STATES NATIONAL BANK OF OREGON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title: Vice President
------------------------
4