EXHIBIT 10.29.3
THIRD AMENDMENT TO
REVOLVING CREDIT, TERM LOAN, CAPITAL
EXPENDITURE LOAN, GUARANTY AND SECURITY AGREEMENT
Preamble. THIS THIRD AMENDMENT TO REVOLVING CREDIT, TERM LOAN, CAPITAL
EXPENDITURE LOAN, GUARANTY AND SECURITY AGREEMENT (hereinafter, together with
all schedules and exhibits hereto, and any supplements, additions,
modifications or amendments thereto made from time to time called the "Third
Amendment"), dated as of June 3, 2002 (the "Third Amendment Date"), is made by
and among HLM DESIGN, INC., a Delaware corporation, as borrower ("Borrower");
all those parties identified in the Credit Agreement (defined below) as the
"Affiliate Guarantors" (the "Affiliate Guarantors"); IBJ WHITEHALL BUSINESS
CREDIT CORPORATION, a New York corporation (hereinafter, together with its
successors and permitted assigns, called "IBJW "), as sole Lender thereunder
and as agent for all Lenders from time to time party thereto and any Issuer
(IBJW, in such capacity, the "Agent").
The Borrower, and the Affiliate Guarantors (collectively, the "Obligors"),
and IBJW (the foregoing parties herein sometimes collectively called the
"Parties" and individually called a "Party") are parties to a certain Revolving
Credit, Term Loan, Capital Expenditure Loan, Guaranty and Security Agreement,
dated as/-/ of February 7, 2000 (which is, as amended to date, including
pursuant to this Third Amendment,. called herein the "Credit Agreement",
pursuant to which, among other things, IBJW, as sole Lender; agreed to extend
credit and other financial accommodations to the Borrower.
The Parties have agreed to modify and amend the Credit Agreement in the
manner, and subject to the terms and conditions, set forth herein below.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the Parties,
each intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Third Amendment and
not defined herein are defined in the Credit Agreement.
SECTION 2. Amendments. The Credit Agreement shall be amended as follows:
(a) Supplemental Availability. During the period between the Amendment
Date and October 31, 2002 (the "End Date"), the Formula Amount, determined
pursuant to Section 2.1(a) of the Credit Agreement shall be increased (such
increase herein called "Supplemental Availability") as follows: by $500,000,
initially; permanently reducing to $400,000, on August 1, 2002; permanently
reducing further, to $300,000, on September l, 2002; and permanently
reducing further, to zero (0), on the End Date; provided, however, that the
otherwise then effective amount of Supplemental Availability as prescribed
hereinabove shall be further and permanently reduced, dollar-for-dollar, by
any of the following occurring between the Amendment Date and the End Date:
(A) any payment received by Borrower in respect of any account receivable
owing by, Rush Presbyterian on the Amendment Date, and (B) the proceeds of
any equity offering made by Borrowers so long as and to the extent that, the
amount derived from clauses (A) and (B), either individually or in the
aggregate, exceeds $500,000; provided, further, that Supplemental
Availability shall be permanently reduced to zero (0) on August 15, 2002,
unless, on or before such date, the Borrower has obtained either (1)
agreements in writing from at least three (3) of the four (4) holders of
Seller Notes listed on Schedule "A" attached hereto rescheduling the
Indebtedness scheduled to be paid to such holders thereunder on or about
October 30, 2002, on terms satisfactory to the Agent and approved in writing
by it, or (2) at least $2,000,000 in cash from any equity offering made
during the period between the Third Amendment Date and the End Date, to be
used, in part, to pay such Indebtedness.
(b) Change to EBITDA Covenant. Section 6.10A of the Credit Agreement is
deleted effective on the Third Amendment Date, and the following revised
Section 6.10A is substituted in its place:
6.10A EBITDA. During the period from the fiscal month of Borrower
ending closest to May 31, 2002 through the fiscal month of Borrower
ending closest to October 31, 2002, EBITDA, determined on a cumulative
basis shall be at least the following amounts:
EBITDA (cumulative
from fiscal month ending
Fiscal Month Ending Closest to: closest to May 31, 2002)
------------------------------- ------------------------
May 31, 2002............. $ 250,000
June 30, 2002............ $ 500,000
July 31, 2002............ $ 800,000
August 31, 2002.......... $1,100,000
September 30, 2002....... $1,350,000
October 31, 2002......... $1,650,000
Section 6. l 0A of the Credit Agreement, as it existed prior to the Third
Amendment Date, shall continue to be binding on Borrower, for all fiscal
periods prior to May 31, 2002 referenced therein.
SECTION 3. Waiver of Claims. As a. specific inducement to the other
Parties without which the Obligors acknowledge the other Parties would not
enter into this Third Amendment, the Borrowers hereby waive any and all claims
that it may have against any other Party, as of the date hereof, arising out of
or relating to the Credit Agreement or any Other Document whether sounding in
contract, tort, or any other basis.
SECTION 4. Conditions of Effectiveness. This Third Amendment shall become
effective on the Third Amendment Date. Borrower shall pay to IBJW a fully
earned, nonrefundable amendment fee equal to $25,000 on the Third Amendment
Date.
SECTION 5. Miscellaneous.
5.1 Reference to Credit Agreement. Upon the effectiveness of this Third
Amendment, each reference in the Credit Agreement to "this Credit Agreement"
and each reference in the Other Documents to the Credit Agreement, shall
mean and be a reference to the Credit Agreement as amended hereby.
5.2 Effect on Other Documents. Except as specifically amended above,
all terms of the Credit Agreement and all Other Documents shall remain in
full force and effect and are hereby ratified and confirmed.
5.3 No Waiver. The execution, delivery and effectiveness of this Third
Amendment shall not operate as a waiver of any right, power; or remedy of
Lenders or the Agents under any of the Other Documents, nor constitute a
waiver of any provision of any of the Other Documents.
5.4 Costs, Expenses and Taxes. The Borrowers agrees to pay on demand
all costs and expenses of IBJW in connection with the preparation,
reproduction, execution, and delivery of this Third Amendment and the other
instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for IBJW with respect
hereto.
5.5 No Novation. Nothing contained herein intended, or shall be
construed, to constitute a novation to the Credit Agreement or any Other
Document.
5.6 Governing Law. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without
giving affect to conflict of law provisions.
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5.7 Counterparts. This Third Amendment may be executed in counterparts.
Each counterpart shall bind the Party or Parties executing same. All
counterparts, taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties have caused this Third Amendment to be duly
executed, under seal, by their respective authorized officers as of the day and
year first above written.
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as Lender and as Agent
(SEAL)
By: /S/ JOSEPH J. ZAUTRA
-----------------------------
Name: Joseph J. Zautra
-----------------------------
Title: Vice President
-----------------------------
HLM DESIGN, INC., as Borrower and
Borrowing
Agent
By: /S/ VERNON B. BRANNON
-----------------------------
Name: Vernon B. Brannon
-----------------------------
Title: COO/CFO
-----------------------------
JPJ ARCHITECTS, INC., as Affiliate
Guarantor
By: /S/ VERNON B. BRANNON
-----------------------------
Name: Vernon B. Brannon
-----------------------------
Title: VP/Secretary/Treasurer
-----------------------------
HLM DESIGN USA, INC., as Affiliate
Guarantor
By: /S/ VERNON B. BRANNON
-----------------------------
Name: Vernon B. Brannon
-----------------------------
Title: VP/Secretary/Treasurer
-----------------------------
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HLM DESIGN ARCHITECTURE
ENGINEERING AND PLANNING, P.C., as
Affiliate Guarantor
By: /S/ VERNON B. BRANNON
-----------------------------
Name: Vernon B. Brannon
-----------------------------
Title: VP/Secretary/Treasurer
-----------------------------
HLM DESIGN OF NORTHAMERICA, INC., as
Affiliate Guarantor
By: /S/ VERNON B. BRANNON
-----------------------------
Name: Vernon B. Brannon
-----------------------------
Title: Senior VP/CFO/Asst. Secretary
-----------------------------
SOTA SOFTWARE SYSTEMS, INC., as
Affiliate
Guarantor
By: /S/ VERNON B. BRANNON
-----------------------------
Name: Vernon B. Brannon
-----------------------------
Title: VP/Secretary/Treasurer
-----------------------------
ACKNOWLEDGED AND CONSENTED TO
AS INDIVIDUAL GUARANTORS:
The undersigned acknowledge and
consent to the foregoing in respect
of their pre-existing guaranties,
provided that their liabilities
thereunder shall not be increased
hereby.
/S/ VERNON B. BRANNON
--------------------------------------
VERNON B. BRANNON,
Individually
/S/ JOSEPH M. HARRIS
--------------------------------------
JOSEPH M. HARRIS,
Individually
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