AMENDMENT AGREEMENT NO. 3
TO REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 25th day of
October, 2000, by and among MODIS PROFESSIONAL SERVICES, INC., a Florida
corporation (herein called the 'Borrower'), BANK OF AMERICA, N.A. (successor by
merger of NationsBank, National Association) (the 'Agent'), as Administrative
Agent for the lenders (the 'Lenders') party to the Revolving Credit and
Reimbursement Agreement dated October 30, 1998, as amended by Amendment
Agreement No. 1 dated October 27, 1999 and Amendment Agreement No. 2 dated
August 10, 2000, among such Lenders, Borrower and the Agent, as so amended, (the
'Agreement').
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the Agreement
pursuant to which the Lenders have agreed to make revolving loans to the
Borrower in the aggregate principal amount of up to $350,000,000 as evidenced by
the Notes (as defined in the Agreement) and to issue Letters of Credit for the
benefit of the Borrower; and
WHEREAS, as a condition to the making of the loans pursuant to the Agreement,
the Lenders required that Material Subsidiaries and Receivables Subsidiaries of
the Borrower guarantee payment of all Obligations of the Borrower arising under
the Agreement pursuant to the Guaranty Agreement; and
WHEREAS, by Amendment Agreement No. 2 dated August 10, 2000 (the 'Second
Amendment') the Required Lenders and the Borrower (a) amended the Agreement to
permit (i) the Borrower to restructure a portion of its business in order to
consolidate its e-business solutions operations (the 'E-Business Solutions
Assets') within and under a newly created subsidiary, Idea Integration Corp.
('Idea Corp.'), (ii) the Borrower to sell approximately 17% of the common stock
of Idea Corp., (iii) the Borrower to make loans and investments in Idea Corp.
and (iv) Idea Corp. to incur Indebtedness, and (b) released certain Subsidiaries
of the Borrower which are to become Subsidiaries of Idea Corp. from their
obligations under the Guaranty Agreement; and
WHEREAS, the Borrower has decided not to proceed with the sale of a portion of
the common stock of Idea Corp. but rather distribute all of the common stock of
Idea Corp. to the stockholders of the Borrower in a tax-free spin-off (the
'Spin-off'); and
WHEREAS, in connection with the Spin-off, the Borrower has requested that the
Lenders consent to the transfer by the Borrower of its E-Business Solutions
Assets (including certain Subsidiaries which own only E-Business Solutions
Assets) to Idea Corp. and to release certain Subsidiaries of the Borrower which
are to become Subsidiaries of Idea Corp. from their obligations under the
Guaranty Agreement; and
WHEREAS, the Agent and the Lenders are willing to amend the Agreement in the
manner set forth herein;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree as
follows:
1. Definitions. The term 'Agreement' as used herein and in the Loan Documents
(as defined in the Agreement) shall mean the Agreement as hereinafter amended
and modified. Unless the context otherwise requires, all terms used herein
without definition shall have the definition provided therefor in the Agreement.
2. Second Amendment. In light of the Borrower's decision not to proceed with the
sale of stock of Idea Corp. as permitted by the Second Amendment, and in light
of the fact that the actions permitted by the terms of the Second Amendment have
not been taken, the parties hereto hereby agree that the Second Amendment is
hereby terminated and of no further force and effect (except to the extent that
an identical provision is included in this Amendment Agreement, which identical
provision shall thereupon become the effective provision); provided, however,
that nothing contained herein shall adversely affect any actions taken under the
Second Amendment prior to the effectiveness of this Amendment Agreement,
including the payment of any fees and expenses pursuant to Section 6(f) of the
Second Amendment and the delivery of the Guaranty Agreement of certain
Subsidiaries as provided in Section 6(b) of the Second Amendment.
3. Consent. Each Lender by its execution of this Amendment Agreement consents to
the following:
(a) Notwithstanding the provisions of Section 9.05 and Section 9.11, the
transfer by the Borrower and its Subsidiaries of the E-Business Solutions
Assets, including all of the capital stock of certain Subsidiaries, which
Subsidiaries own only E-Business Solutions Assets, to Idea Corp. and its
Subsidiaries and the distribution by the Borrower of all of the common
stock of Idea Corp. to the shareholders of the Borrower so long as (i) the
E-Business Solution Assets (whether capital stock or otherwise) represent
no more than 25% of Consolidated Total Assets and (ii) the distribution of
the common stock to shareholders of the Borrower has been determined to be
a tax-free spin-off.
(b) Subject to the transfer of all assets owned by them which do not
constitute E-Business Solutions Assets to one or more new or existing
Subsidiaries of the Borrower, which Subsidiary or Subsidiaries are or
become Guarantors, the release of the following Subsidiaries from their
guaranty of payment of the Obligations:
Actium Corp., a Delaware corporation
Berger IT Co., a Delaware corporation
Idea Integration of Georgia, Inc.,
f/k/a Modis of Georgia, Inc., a Florida corporation
Idea Integration of Georgia, L.P.,
f/k/a Modis of Georgia, L.P., a Georgia limited partnership
Idea Integration of Pennsylvania, Inc.,
f/k/a Modis of Pennsylvania, Inc., a Florida corporation
Idea Integration of Pennsylvania, Ltd.,
f/k/a Modis of Pennsylvania, Ltd., a Pennsylvania limited partnership
Open Management Software, Inc., a California corporation
UTEK, Inc., an Illinois corporation
Zeal, Inc., an Illinois corporation
4. Subsidiary Consents. Each Subsidiary of the Borrower that previously
delivered a Guaranty Agreement to the Agent, other than those Guarantors being
released, has joined in the execution of this Amendment Agreement for the
purpose of (i) agreeing to the amendment to the Agreement and (ii) confirming
its guarantee of payment of all the Obligations.
5. Representations and Warranties. The Borrower hereby represents and warrants
that:
(a) The representations and warranties made by Borrower in Article VII of
the Agreement are true on and as of the date hereof except that (i) the
financial statements referred to in Section 7.01(f) shall be those most
recently furnished to each Lender pursuant to Section 8.01, and (ii) the
Subsidiaries are as described in Schedule 7.01(d) to this Amendment
Agreement, provided that the Schedule 7.01(d) attached to this Amendment
Agreement shall, for all purposes, be the Schedule 7.01(d) to the
Agreement;
(b) There has been no material adverse change in the condition, financial
or otherwise, of the Borrower and its Subsidiaries since the date of the
most recent financial reports of the Borrower received by each Lender under
Section 8.01 thereof, other than changes in the ordinary course of
business, none of which has been a material adverse change;
(c) The business and properties of the Borrower and its Subsidiaries are
not and have not been adversely affected in any substantial way as the
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo, riot, activities of armed forces,
war or acts of God or the public enemy, or cancellation or loss of any
major contracts; and
(d) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constitutes a Default
or an Event of Default on the part of the Borrower under the Agreement, the
Notes or any other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
6. Conditions. This Amendment Agreement shall become effective upon:
(a) execution by the Required Lenders and the Borrower delivering to the
Agent fifteen (15) counterparts of this Amendment Agreement duly executed
by the Borrower and consented to by each Subsidiary of Borrower that
previously delivered a Guaranty Agreement to the Agent (other than those
Guarantors being released);
(b) receipt of an opinion of counsel for the Borrower and the Guarantors in
form and content acceptable to the Agent;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower
and each of the Guarantors (other than those being released) to which is
attached resolutions authorizing the transactions contemplated by this
Amendment Agreement; and
(d) payment of all fees due the Agent and the Lenders as well as all
reasonable expenses of the Agent, including fees and expenses of counsel
for the Agent.
7. Entire Agreement. This Amendment Agreement sets forth the entire
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, conditions, 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 other 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.
8. Full Force and Effect of Agreement. Except as hereby specifically amended,
modified or supplemented, the Agreement and all of the other Loan Documents are
hereby confirmed and ratified in all respects and shall remain in full force and
effect according to their respective terms.
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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.
BORROWER:
MODIS PROFESSIONAL SERVICES, INC.
WITNESS:
/s/ Christine A. Iomayzo By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Marie M. Tuttle Title: Senior Vice President, Treasurer &
Chief Financial Officer
GUARANTORS:
ACCOUNTING PRINCIPALS, LTD.,
a Pennsylvania limited partnership
AD L.L.C. I, a Delaware limited liability company
ADDITIONAL TECHNICAL SUPPORT OF MASSACHUSETTS, INC.
AMPL INCORPORATED
AMICUS STAFFING, INC.
BC L.L.C. I, a Delaware limited liability company
CAREER HORIZONS, INC.
DIVERSIFIED SEARCH, INC.
ENTEGEE,INC.
HEALTH FORCE, INC.
HEALTH FORCE OPERATING CORP.
LIT, INC.
MANAGEMENT PRINCIPALS, INC.
(f/k/a Keystone Consulting Group, Inc.)
MANCHESTER, INC.
MEDI-FORCE, INC.
MODIS, INC.
MODIS GP, INC.
MODIS LP-2, INC.
MODIS FACTORING CORPORATION
(f/k/a ASI Factoring Corporation)
MODIS LICENSING CORPORATION
MODIS/COMPUTER ACTION, INC.
MODIS OF GEORGIA, INC.
MODIS OF GEORGIA, L.P.
MODIS OF PENNSYLVANIA, INC.
MODIS OF PENNSYLVANIA, LTD.
SCIENTIFIC STAFFING, INC.
SPECIAL COUNSEL, INC.
WITNESS: SYSTEM PROS OF MASSACHUSETTS, INC.
/s/ Christine A. Iomayzo By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Marie M. Tuttle Title: Senior Vice President
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /s/ John E. Williams
Name: John E. Williams
Title: Managing Director
BANK OF AMERICA, N.A., as Lender
By: /s/ John E. Williams
Name: John E. Williams
Title: Managing Director
FIRST UNION NATIONAL BANK
By: /s/ Timothy N. Hyslop
Name: Timothy N. Hyslop
Title: Senior Vice President
FLEET NATIONAL BANK
By:________________________________
Name:______________________________
Title:_____________________________
BANK ONE, NA, formerly known as
The First National Bank of Chicago
By: /s/ James F. Gable
Name: James F. Gable
Title: Assistant Vice President
WACHOVIA BANK, N.A.
By:________________________________
Name:______________________________
Title:_____________________________
KBC BANK N.V.
By: /s/ Robert Snauffer
Name: Robert Snauffer
Title: First Vice President
By: /s/ Patrick A. Janssens
Name: Patrick A. Janssens
Title: Vice President
HSBC BANK USA
By:________________________________
Name:______________________________
Title:_____________________________
HIBERNIA NATIONAL BANK
By: /s/ Matt Breaux
Name: Matt Breaux
Title: Banking Officer
BNP PARIBAS, HOUSTON AGENCY
By: /s/ Mike Shryock
Name: Mike Shryock
Title: Vice President
By: /s/ Aurora Abella
Name: Aurora Abella
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Akihiko Mabuchi
Name: Akihiko Mabuchi
Title: Senior Vice President
COMERICA BANK
By: /s/ Martin G. Ellis
Name: Martin G. Ellis
Title: Vice President
BANK HAPOALIM B.M.
By: /s/ Laura Anne Raffa
Name: Laura Anne Raffa
Title: First Vice President
and Corporate Manager
By: /s/ Shaun Breidbart
Name: Shaun Breidbart
Title: Vice President