AMENDMENT AGREEMENT NO. 1
TO REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 27th day of
October, 1999, 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 among such Lenders, Borrower and
the Agent (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 $500,000,000 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 have required that all Material Subsidiaries of the Borrower guarantee
payment of all Obligations of the Borrower arising under the Agreement; and
WHEREAS, the 364 Day Facility provided for under the Agreement will terminate on
October 27, 1999 and the Borrower has requested that the Agreement be amended to
permit the creation of a new 364 day credit facility and to make the other
amendments described 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. Amendment. The Agreement is amended, effective as of October 27, 1999, as
follows:
(a) Section 1.01 is hereby amended by adding a new definition "364 Day
Agreement" thereto immediately following the definition "Swing Line
Outstandings" which definition shall read as follows:
"'364 Day Agreement' means the 364 Day Credit Agreement dated as of October 27,
1999 among the Borrower, Bank of America, N.A., as Agent, and the Lenders party
thereto, providing loans of up to $150,000,000 to the Borrower;"
(b) The definition of "Authorized Representative" in Section 1.01 is hereby
amended by deleting the word "Controller" appearing therein and inserting in
lieu thereof the phrase "Chief Accounting Officer."
(c) Clause (g) of the definition of "Permitted Liens" in Section 1.01 is hereby
amended in its entirety so that as amended it shall read as follows:
"(g) Liens consisting of encumbrances in the nature of zoning restrictions,
easements, rights and restrictions of record on the use of real property on the
date of acquisition thereof and statutory or other contractual Liens of
landlords and lessors on personal property located on the premises to which such
lease relates, which in any case do not materially detract from the value of
such property or impair the use thereof;"
(d) Section 7.01(d) is hereby amended by adding the phrase "other than inactive
Subsidiaries" immediately following the word "hereto" and before the semi-colon
in the second line thereof.
(e) Section 9.04 is hereby amended by (i) deleting the word "and" at the end of
clause (e), (ii) relettering clause (f) to be clause (g), and (iii) adding a new
clause (f) thereto which shall read as follows:
"(f) Indebtedness of up to $150,000,000 arising under the 364 Day Agreement;
and"
(f) Section 9.06 is hereby amended by (i) deleting the figure "$5,000,000"
appearing in clause (vi) and inserting in lieu thereof the figure "$25,000,000
and (ii) deleting the figure "$500,000" appearing in clause (ix) and inserting
in lieu thereof the figure "$2,000,000".
(g) Section 9.08 is hereby amended in its entirety so that as amended it shall
read as follows:
"9.08. Restricted Payments. Make Restricted Payments during any Fiscal Year on a
non-cumulative basis (so that amounts not paid in one Fiscal Year may not be
carried forward to a subsequent Fiscal Year) in excess of five percent (5%) of
Consolidated Shareholders' Equity as at the end of such Fiscal Year; provided,
however, that the Borrower shall not make any Restricted Payment if either prior
to or after giving effect to such Restricted Payment a Default or Event of
Default shall exist, provided that in no event shall capital stock of the
Borrower owned by Borrower and its Subsidiaries represent at any time 25% or
more of Consolidated Shareholders' Equity."
(h) A new Section 9.17 is hereby added to the Agreement, which Section shall
read as follows:
"9.17. 364 Day Agreement. Permit at any time the 364 Day Agreement to contain
covenants or conditions more restrictive than those set forth in this
Agreement."
3. The Lenders, the Borrower and the Subsidiaries hereby acknowledge and agree
that the 364 Day Facility has terminated effective as of the date hereof and
that the Borrower no longer is entitled to receive any Advance pursuant to the
364 Day Facility.
4. Subsidiary Consents. Each Subsidiary of the Borrower that has delivered a
Guaranty to the Agent 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 the financial
statements referred to in Section 7.01(f) shall be those most recently furnished
to each Lender pursuant to Section 8.01;
(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
five (5) counterparts of this Amendment Agreement duly executed by the Borrower
and consented to by each of the Material Subsidiaries; and
(b) payment in full of all outstanding 364 Day Loans together with any accrued
and unpaid interest and fees relating thereto.
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/ Steve E. Marshall By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Michelle R. Sutch Title: Senior Vice President
& Treasurer
GUARANTORS:
ACCOUNTING PRINCIPALS, LTD.,
a Pennsylvania limited partnership
ACTIUM CORPORATION
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
BERGER IT CO.
CAREER HORIZONS, INC.
CONSULTING PARTNERS, INC.
DATA MANAGEMENT CONSULTANTS, 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 OF GEORGIA, INC.
MODIS OF GEORGIA, LP,
a Georgia limited partnership MODIS OF PENNSYLVANIA, INC.
WITNESS:
/s/ Steve E. Marshall By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Michelle R. Sutch Title: Senior Vice President
& Treasurer
MODIS OF PENNSYLVANIA, LTD.,
a Pennsylvania limited partnership
MODIS/COMPUTER ACTION, INC.
OPEN MANAGEMENT SOFTWARE, INC.
SCIENTIFIC STAFFING, INC.
SPECIAL COUNSEL, INC.
SYSTEM PROS OF MASSACHUSETTS, INC.
UTEK, INC.
ZEAL, INC.
WITNESS:
/s/ Steve E. Marshall By: /s/ Michael D. Abney
Name: Michael D. Abney
/s/ Michelle R. Sutch Title: Senior Vice President
& Treasurer
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/ R. Lea Williamson
Name: R. Lea Williamson
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ Deborah J. Lawrence
Name: Deborah J. Lawrence
Title: Senior Vice President
BANK ONE, NA, (Chicago Main Office)
as Documentation Agent
By: /s/ Dianna L. McCarthy
Name: Dianna L. McCarthy
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ William R. McCamey
Name: William R. McCamey
Title: Vice President
KBC BANK N.V.
By: /s/ Robert Snauffer /s/ Raymond F. Murray
Name: Robert Snauffer Raymond F. Murray
Title: First Vice President First Vice President
HSBC BANK USA
By: /s/ Jeremy P. Bollington
Name: Jeremy P. Bollington
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Angela Bentley
Name: Angela Bentley
Title: Portfolio Manager
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ Warren Ross
Name: Warren Ross
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ Minami Miura
Name: Minami Miura
Title: Vice President
BANK HAPOALIM B.M.
By: /s/ Laura Anne Raffa /s/ Shaun Breidbart
Name: Laura Anne Raffa Shaun Breidbart
Title: First Vice President & Vice President
Corporate Manager