Exhibit 10.1
CONSENT AND TWELFTH AMENDMENT TO
CREDIT AGREEMENT
This Consent and Twelfth Amendment
to Credit Agreement (this “Amendment”) is dated as of
August 4, 2009, 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, Analysts
International Corporation, a Minnesota corporation
(“Borrower”), Medical Concepts Staffing, Inc., a
Minnesota corporation (“MCS”), 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”; MCS, AIMS, AIBSS, AIBRS and AISSS are
collectively the “Staffing Subsidiaries” and each a
“Staffing Subsidiary”).
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 desires to sell
certain assets of Borrower related to its value-added reseller
business pursuant to the agreement set forth as Exhibit A
hereto (the “Asset Sale”), which Asset Sale, in the
absence of the prior written consent of Agent and Requisite
Lenders, would constitute a breach of Section 6.8 of the Credit
Agreement and an Event of Default under Section 8.1(b) of the
Credit Agreement; and
WHEREAS, Borrower has requested that
Agent and Lenders consent to the Asset Sale, 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.
Consent and Limited Release of Security Interests
.
(a)
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 Lenders
hereby consent to the Asset Sale and acknowledge that there will be
no breach of Section 6.8 as a result of such Asset Sale;
provided that the proceeds of such Asset Sale are used to
prepay the Loans pursuant to Section 1.3(b)(ii) of the Credit
Agreement.
This is a limited waiver and
consent and shall not be deemed to constitute a waiver of, or
consent to, any other future breach of the Credit
Agreement.
(b)
Lenders hereby authorize Agent to release the assets to be conveyed
pursuant to the Asset Sale (collectively, the “Conveyed
Assets”), from the Liens arising under the Collateral
Documents. Upon the consummation of the Asset Sale in
compliance with the provisions hereof, the Liens in the Conveyed
Assets arising under the Collateral Documents shall be released and
terminated, and Borrower (or its designee) may record the UCC-3
partial release attached hereto as Exhibit B .
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)
The reference to “one-quarter of one percent (.25%)” in
Section 1.9(b) of the Credit Agreement is hereby deleted and
replaced with a reference to “three-quarters of one percent
(0.75%)”.
(b)
Each of the definitions of “Applicable Revolver Index
Margin”, “Applicable Revolver LIBOR Margin”, and
“LIBOR Rate” set forth in Annex A to the Credit
Agreement is hereby amended and restated in its entirety, as
follows:
“
Applicable Revolver Index Margin ” means 2.75% per
annum.
“
Applicable Revolver LIBOR Margin ” means 3.75% per
annum.
“ LIBOR Rate ”
means for each LIBOR Period, a rate of interest determined by Agent
equal to:
(a) the greater of (i) the offered
rate for deposits in United States Dollars for the applicable LIBOR
Period that appears on Telerate Page 3750 as of 11:00 a.m. (London
time) and (ii) the offered rate for deposits in United States
Dollars for a three-month LIBOR Period that appears on Telerate
Page 3750 as of 11:00 a.m. (London time), in each case, on the
second full LIBOR Business Day next preceding the first day of such
LIBOR Period (unless such date is not a Business Day, in which
event the next succeeding Business Day will be used); divided
by
(b) a number equal to 1.0
minus the aggregate (but without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect
on the day that is 2 LIBOR Business Days prior to the beginning of
such LIBOR Period (including basic, supplemental, marginal and
emergency reserves under any regulations of the Federal Reserve
Board or other Governmental Authority having jurisdiction with
respect thereto, as now and from time to time in effect) for
Eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Federal Reserve Board
that are required to be maintained by a member bank of the Federal
Reserve System.
2
If such interest rates shall cease
to be available from Telerate News Service, the LIBOR Rate shall be
determined from such financial reporting service or other
information as shall be mutually acceptable to Agent and
Borrower.
“ Revolving Loan
Commitment ” means (a) as to any Lender, the aggregate
commitment of such Lender to make Revolving Credit Advances or
incur Letter of Credit Obligations as set forth on Annex J
to the Agreement or in the most recent Assignment Agreement
executed by such Lender and (b) as to all Lenders, the aggregate
commitment of all Lenders to make Revolving Credit Advances or
incur Letter of Credit Obligations, which aggregate commitment
shall be Fifteen Million Dollars ($15,000,000) on the Twelfth
Amendment Closing Date, as such amount may be adjusted, if at all,
from time to
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