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EXHIBIT 2.2
CONSENT, WAIVER AND THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This CONSENT, WAIVER AND THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
CREDIT AGREEMENT (this "Amendment"), is dated as of December 20, 2000, by and
among AHL SERVICES, INC. ("AHL"), ARGENBRIGHT SECURITY, INC. ("Argenbright
Security"), ARGENBRIGHT, INC. ("Argenbright"), ADI U.K. LIMITED ("ADI U.K."),
AVIATION DEFENCE INTERNATIONAL GERMANY LIMITED ("ADI Germany"), ARGENBRIGHT
HOLDINGS LIMITED ("U.S. Holdings"), THE ADI GROUP LIMITED ("European Holdings"),
and ADI ALPHA HOLDING GMBH ("ADI Alpha") (each of AHL, Argenbright Security,
Argenbright, ADI U.K., ADI Germany, U.S. Holdings, European Holdings and ADI
Alpha is sometimes individually referred to as an "Existing Borrower" and
collectively are referred to as the "Existing Borrowers"), TUJA ZEITARBEIT GMBH
& CO. KG, INGOLSTADT, ("TUJA"), EMD GESELLSCHAFT FUR PERSONALDIENSTLEISTUNGEN
GMBH & CO. KG, ASCHAFFENBURG ("EMD Aschaffenburg"), and AHL EUROPE LIMITED ("AHL
Europe Limited"; together with TUJA and EMD Aschaffenburg, the "New Borrowers"),
the financial institutions listed on the signature pages hereto as Lenders, and
First Union National Bank, a national banking association ("First Union"), as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
RECITALS
WHEREAS, the Lenders, the Administrative Agent and the Existing
Borrowers are parties to that certain Second Amended and Restated Credit
Agreement dated as of October 15, 1999, as amended by that certain First
Amendment to Second Amended and Restated Credit Agreement dated as of November
23, 1999 and that certain Second Amendment to Second Amended and Restated Credit
Agreement dated as of May 24, 2000 (as so amended, and as may be further
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"; capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement); and
WHEREAS, at the request of the Existing Borrowers, the Lenders and the
Administrative Agent have agreed (i) to amend certain provisions of the Credit
Agreement as set forth herein, (ii) to waive certain Events of Default that have
occurred in connection with the formation of AHL Europe Limited, and (iii) to
consent to the sale of the Borrowers' domestic and European aviation services,
facility support services, and transportation businesses (the "Aviation
Business") as set forth herein, all upon and subject to all of the terms,
conditions and provisions hereof.
NOW, THEREFORE, in consideration of the premises and the agreements,
covenants and provisions herein contained and for TEN DOLLARS ($10.00) and other
good and valuable
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consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1 AMENDMENTS TO CREDIT AGREEMENT
Subject to the satisfaction of each of the conditions precedent set
forth in Section 5.1 of this Amendment, the Existing Borrowers, the Lenders and
the Administrative Agent hereby agree that the Credit Agreement be, and it
hereby is, amended as follows, effective as of the First Effective Date (as
defined below):
1.1 Amendment to Section 1.1. Section 1.1 of the Credit Agreement
is hereby amended by:
(a) amending the following defined terms to read in their
entirety as follows:
"Adjusted EBITDA" as applied to AHL and the Subsidiaries,
means, for any period, AHL and the Subsidiaries' Net Income (but
without deduction of income and franchise taxes that have been
accrued), plus (a) Interest Expense paid or accrued, (b) amortization
and depreciation deducted in determining Net Income, and (c) the
Reserve Increase during the period, provided that in calculating Net
Income for the purpose of calculating Adjusted EBITDA there shall be
excluded therefrom (i) any loss arising from the sale of capital
assets; (ii) any loss arising from any write-up of assets; and (iii)
any loss arising from extraordinary or nonrecurring items.
"Aggregate Commitment" means Three Hundred Million Dollars
($300,000,000).
"Aviation Business Sale" shall have the meaning given thereto
in the Third Amendment.
"Commitment" means the commitment of a Lender to make Loans,
the Issuing Bank to issue Letters of Credit hereunder, and of each
Lender to reimburse the Issuing Bank for unreimbursed drawings under
any Letter of Credit. On the Third Amendment Effective Date, the
Commitment of each Lender shall be the amount set forth opposite such
Lender's name on Schedule 1.1 under the caption "Commitment", as the
same may be reduced or modified at any time or from time to time
pursuant to Section 2.4(c) and Section 12.8.
"Foreign Borrowers" means each of ADI U.K., ADI Germany,
European Holdings, ADI Alpha Holding, AHL Europe Limited, TUJA, and EMD
Aschaffenburg.
"EBITDA" as applied to AHL and the Subsidiaries, means, for
any period, AHL and the Subsidiaries' Net Income (but without deduction
of income and franchise taxes that have been accrued), plus (a)
Interest Expense paid or accrued, (b) amortization and depreciation
deducted in determining Net Income, and (c) the Reserve Increase during
the
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period.
"Expiration Date" means April 15, 2002.
"Net Income" means, with respect to AHL and its Subsidiaries,
for any period and without duplication, net income (or loss) for such
period determined in accordance with GAAP, provided that in calculating
Net Income there shall be excluded therefrom (i) any gain arising from
the sale of capital assets; (ii) any gain arising from any write-up of
assets; (iii) all net earnings of any entity (other than a Subsidiary)
in which AHL has an ownership interest unless such net earnings have
actually been received by AHL and the Subsidiaries in the form of cash
distributions; (iv) any portion of the net earnings of any Subsidiary
which for any reason is unavailable for payment of dividends to the AHL
and the Subsidiaries; and (v) any gain arising from extraordinary or
nonrecurring items.
"Prime Rate" means, at any time, with respect to European
Swingline Loans in the Base Rate Currency, the fluctuating and publicly
announced base rate of HSBC Plc (formerly named Midland Bank, plc).
Each change in the Prime Rate shall be effective as of the opening of
business on the day such change in the Prime Rate occurs. The parties
hereto acknowledge that the rate that may be announced publicly as the
Prime Rate is an index or base rate and shall not necessarily be the
lowest or best rate charged to customers or other banks
"Pro Forma Adjusted EBITDA" as applied to AHL and the
Subsidiaries, means, for any period, Consolidated Adjusted EBITDA of
AHL and the Subsidiaries calculated on a pro forma basis to (i) include
as of the first day of such period, the Adjusted EBITDA of all
companies acquired during such period as if they had been owned by AHL
and the Subsidiaries for the entire period (adjusted for any
non-recurring costs and expenses incurred by the acquired company prior
to the date of such acquisition, as approved by the Administrative
Agent in its sole discretion (or, in the case of any acquisition that
requires the consent of the Required Lenders, as approved by the
Administrative Agent and the Required Lenders)) and (ii) exclude as of
the first day of such period, the Adjusted EBITDA of all companies
disposed of during such period as if they had not been owned by AHL and
the Subsidiaries at any time during such period. Borrowers hereby agree
to promptly furnish to the Administrative Agent any information,
including, without limitation, financial statements of the acquired
company, as may reasonably be requested by the Administrative Agent in
order to calculate Pro Forma Adjusted EBITDA.
"Pro Forma EBITDA" as applied to AHL and the Subsidiaries,
means, for any period, Consolidated EBITDA of AHL and the Subsidiaries
calculated on a pro forma basis to (i) include as of the first day of
such period, the EBITDA of all companies acquired during such period as
if they had been owned by AHL and the Subsidiaries for the entire
period (adjusted for any non-recurring costs and expenses incurred by
the acquired company prior to the date of such acquisition, as approved
by the Administrative
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Agent in its sole discretion (or, in the case of any acquisition that
requires the consent of the Required Lenders, as approved by the
Administrative Agent and the Required Lenders)) and (ii) exclude as of
the first day of such period, the EBITDA of all companies disposed of
during such period as if they had not been owned by AHL and the
Subsidiaries at any time during such period. Borrowers hereby agree to
promptly furnish to the Administrative Agent any information,
including, without limitation, financial statements of the acquired
company, as may reasonably be requested by the Administrative Agent in
order to calculate Pro Forma EBITDA.
(b) and adding the following new definitions in
alphabetical order:
"AHL Europe Limited" means AHL Europe Limited, a private
company with limited liability incorporated under the laws of England
and Wales.
"EMD Aschaffenburg" means EMD Gesellschaft fur
Personaldienstleistungen GmbH & Co. KG, Aschaffenburg, a limited
partnership organized under the laws of the Federal Republic of
Germany.
"Third Amendment" means that certain Consent, Waiver and Third
Amendment To Second Amended and Restated Credit Agreement, dated as of
December 20, 2000, by and among the Borrowers, the Lenders and the
Administrative Agent.
"Third Amendment Effective Date" means the date which is the
"First Effective Date", as defined in the Third Amendment.
"TUJA" means TUJA Zeitarbeit GmbH & Co. KG, Ingolstadt, a
limited partnership organized under the laws of the Federal Republic of
Germany.
1.2 Amendment to Section 3.1(a).(a) Section 3.1(a) of the Credit
Agreement is hereby amended to read in its entirety as follows:
(a) Interest Rate Options. Base Rate Loans shall bear
interest at a rate equal to (i) the Domestic Base Rate plus the
Applicable Margin (the "Applicable Margin") as set forth below in this
Section 3.1, if such Loans constitute Revolving Loans made in Dollars
or Swingline Loans, or (ii) the Foreign Base Rate plus the Applicable
Margin, if such Loans constitute European Swingline Loans made as Base
Rate Loans in the Base Rate Currency. LIBOR Rate Loans (which shall
include all Revolving Loans made as Foreign Currency Loans, and any
European Swingline Loans made in Alternative Currencies other than
Europeans Swingline Loans made as Base Rate Loans in the Base Rate
Currency) shall bear interest at the LIBOR Rate plus the Applicable
Margin. On behalf of the Borrowers, AHL shall determine whether a
Revolving Loan is to be a Foreign Currency Loan, Base Rate Loan or
LIBOR Rate Loan and select the Interest Period, if any, applicable to
such Loan at the time a request for borrowing is given or at the time a
Notice of Conversion/Continuation is given pursuant to Section 3.2. Any
Revolving Loan or any portion thereof as to which the
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Company has not duly specified an interest rate as provided herein
shall, (x) if it is a Loan made in Dollars, be deemed a Base Rate Loan,
and (y) if it is a Revolving Loan made as a Foreign Currency Loan, be
deemed a LIBOR Rate Loan having an Interest Period of one month. Any
LIBOR Rate Loan for which an Interest Period has ended, shall, so long
as no Event of Default has occurred and shall be continuing, be deemed
renewed as a LIBOR Rate Loan in the currency in which the LIBOR Rate
Loan was repayable (unless it is a Foreign Currency Loan made in
Deutsche Marks, which shall be paid in full at the end of such Interest
Period), and have an Interest Period of one month, provided that no
Event of Default shall arise as a result thereof.
For the avoidance of doubt and without limiting the foregoing,
(i) any borrowings under the Revolving Facility made in an Alternative
Currency (including English Pounds) shall be made by the Lenders solely
as LIBOR Rate Loans, (ii) any borrowings under the European Swingline
Facility made in an Alternative Currency (other than English Pounds)
shall be made by the European Swingline Lender solely as LIBOR Rate
Loans having an Interest Period of one month or as otherwise acceptable
to the European Swingline Lender, and (iii) any borrowings under the
European Swingline Facility made in English Pounds shall be made by the
European Swingline Lender as Foreign Base Rate Loans or, if acceptable
to the European Swingline Lender, as LIBOR Rate Loans having an
Interest Period of one month or as otherwise acceptable to the European
Swingline Lender.
1.3 Amendment to Section 3.1(d). Section 3.1(d) of the Credit
Agreement is hereby amended to read in its entirety as follows:
(d) Applicable Margin. The Applicable Margin with respect
to Revolving Loans bearing interest determined with reference to the
Domestic Base Rate, European Swingline Loans bearing interest
determined with reference to the Foreign Base Rate, and LIBOR Rate
Loans shall be determined on the earlier of (A) at the end of each
fiscal quarter hereof by reference to the ratio of Consolidated Total
Indebtedness of AHL and its Subsidiaries as of the end of such fiscal
quarter to Consolidated Pro Forma Adjusted EBITDA for AHL and its
Subsidiaries for the period of four (4) consecutive fiscal quarters
ending on the last day of such fiscal quarter, and (B) where the
Borrowers are required to deliver an officer's certificate under
Section 9.4(g)(v) in connection with the consummation of an
acquisition, by reference to the ratio of Consolidated Total
Indebtedness of AHL and its Subsidiaries as of the most recently ended
fiscal quarter to Consolidated Pro Forma Adjusted EBITDA for AHL and
its Subsidiaries for the period of four (4) consecutive fiscal quarters
ending on the last day of such fiscal quarter (calculated on a pro
forma basis in accordance with said Section), in each case, as follows:
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Applicable Margin
<TABLE>
<CAPTION>
Total Indebtedness/Pro Domestic Base Rate Foreign Base
Forma Adjusted EBITDA Margin Rate Margin LIBOR Margin
-------------------------------- ------------------------- ----------------- ------------
<S> <C> <C> <C>
Greater than or equal to 3.00 to .875% 2.875% 2.125%
1.00
Greater than or equal to 2.50 to .625% 2.625% 1.875%
1.00 but less than 3.00 to 1.00
Greater than or equal to 1.50 to .375% 2.375% 1.625%
1.00 but less than 2.50 to 1.00
Less than 1.50 to 1.00 .125% 2.125% 1.375%
</TABLE>
All adjustments to the Applicable Margin shall be made by the
Administrative Agent as provided in Section 3.1(e) below.
1.4 Amendment to Section 3.1(e). Section 3.1(e) of the Credit
Agreement is hereby amended to read in its entirety as follows:
(e) Adjustments to Applicable Margin. Adjustments, if
any, in the Applicable Margin shall be made by the Administrative Agent
five (5) Business Days after receipt by the Administrative Agent of (i)
quarterly financial statements for AHL and its Subsidiaries and the
accompanying Officer's Compliance Certificate setting forth the ratio
of Consolidated Total Indebtedness to Consolidated Pro Forma Adjusted
EBITDA for AHL and its Subsidiaries as of the most recent fiscal
quarter end (calculated as provided in subsection (d) above), and (ii)
each officer's certificate setting forth the ratio of Consolidated
Total Indebtedness to Consolidated Pro Forma Adjusted EBITDA for AHL
and its Subsidiaries calculated on a pro forma basis required to be
delivered pursuant to Section 9.4(g)(v). Subject to Section 3.1(f), in
the event AHL fails to deliver such financial statements and
certificate within the time required by Section 6.2 or Section
9.4(g)(v), as applicable, the Applicable Margin shall be the highest
Applicable Margin set forth above until five (5) Business Days after
the delivery of such financial statements and certificate.
Notwithstanding any other provision of this Section 3.1(e), the
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Applicable Margin shall be adjusted or established, as applicable, on
the Third Amendment Effective Date to reflect the change in the amount
of the Applicable Margin for LIBOR Rate Loans and the additions of the
Applicable Margin for Domestic Base Rate Loans and the Applicable
Margin for Foreign Base Rate Loans effected by the Third Amendment.
1.5 Amendment to Section 8.2. Section 8.2 of the Credit Agreement
is hereby amended to read in its entirety as follows:
SECTION 8.2 Consolidated Total Indebtedness to
Consolidated Pro Forma EBITDA. As of any fiscal quarter end, permit the
ratio of (a) Consolidated Total Indebtedness of AHL and its
Subsidiaries as of such date to (b) Consolidated Pro Forma EBITDA of
AHL and its Subsidiaries for the period of four (4) consecutive fiscal
quarters ending on or immediately prior to such date to exceed (x) 3.50
to 1.00, at each fiscal quarter end prior to the date of the closing,
if any, of the Aviation Business Sale, and (y) 2.75 to 1.00, at each
fiscal quarter end on and after the date of the closing, if any, of
Aviation Business Sale. For purposes of determining compliance by
Borrowers with the covenant set forth in this Section 8.2 for any
period containing both or either the fiscal quarter ending March 31,
2000 and/or the fiscal quarter ending December 31, 2000, Consolidated
Net Income of AHL and its Subsidiaries for the fiscal quarter ending
March 31, 2000 (as reflected on the financial statements of AHL and its
Subsidiaries delivered to the Administrative Agent pursuant to Section
6.1(a) of the Credit Agreement) shall be deemed to be increased by an
amount equal to $2,700,000 for such quarterly period, and Consolidated
Net Income of AHL and its Subsidiaries for the fiscal quarter ending
December 31, 2000 (as reflected on the financial statements of AHL and
its Subsidiaries delivered to the Administrative Agent pursuant to
Section 6.1(a) of the Credit Agreement) shall be deemed to be increased
by an amount equal to $2,900,000 for such quarterly period.
1.6 Amendment to Section 8.3. Section 8.3 of the Credit Agreement
is hereby amended to read in its entirety as follows:
SECTION 8.3 Interest Coverage Ratio. As of any fiscal
quarter end, permit the Interest Coverage Ratio to be less than 2.00 to
1.00. For purposes of determining compliance by Borrowers with the
covenant set forth in this Section 8.3 for any period containing both
or either the fiscal quarter ending March 31, 2000 and/or the fiscal
quarter ending December 31, 2000, Consolidated Net Income of AHL and
its Subsidiaries for the fiscal quarter ending March 31, 2000 (as
reflected on the financial statements of AHL and its Subsidiaries
delivered to the Administrative Agent pursuant to Section 6.1(a) of the
Credit Agreement) shall be deemed to be increased by an amount equal to
$2,700,000 for such quarterly period, and Consolidated Net Income of
AHL and its Subsidiaries for the fiscal quarter ending December 31,
2000 (as reflected on the financial statements of AHL and its
Subsidiaries delivered to the Administrative Agent pursuant to Section
6.1(a) of the Credit Agreement) shall be deemed to be increased by an
amount
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equal to $2,900,000 for such quarterly period.
1.7 Amendment to Section 9.4(g)(ii). Section 9.4(g)(ii) of the
Credit Agreement is hereby amended to read in its entirety as follows:
(ii) no Default or Event of Default is in existence at the
time of such acquisition or would be created as a consequence of such
acquisition, and after giving effect to any such acquisition on a pro
forma basis, AHL and its Subsidiaries are in pro forma compliance with
the Consolidated Total Indebtedness to Consolidated Pro Forma EBITDA
covenant set forth in Section 8.2 as of the most recently ended fiscal
quarter for the period of four (4) consecutive fiscal quarters ending
on the last day of such fiscal quarter end,
1.8 Amendment to Section 9.4(g)(iii). Section 9.4(g)(iii) of the
Credit Agreement is hereby amended to read in its entirety as follows:
(iii) the aggregate consideration (including any
indebtedness assumed by AHL or any of its Subsidiaries in connection
with such acquisition) in any single acquisition does not exceed
$15,000,000,
1.9 Amendment to Section 12.8. Section 12.8 of the Credit
Agreement is hereby amended by adding the following new sentence at the end of
such Section:
"Notwithstanding the provisions of this Section 12.8, a Lender party to
a Hedging Agreement is not required to obtain the consent of any other
Lender in order to amend such Hedging Agreement, or grant its consent
or waiver with respect thereto."
1.10 Amendment to Schedule 1.1. Schedule 1.1 to the Credit
Agreement is hereby amended to read in its entirety as set forth on Schedule 1.1
to this Amendment.
SECTION 2 WAIVERS IN RESPECT OF AHL EUROPE LIMITED AND ARGENBRIGHT B.V.
AHL has notified the Administrative Agent that Events of Default have
occurred as a result of the Borrowers' failure to comply with the UK Security
Documents and Sections 7.12, 9.1, 9.4, and 9.6 of the Credit Agreement caused by
(i) the transfer by AHL of its shares in European Holdings to AHL Europe
Limited, a direct Wholly-Owned Subsidiary of AHL, (ii) the failure to deliver to
the Administrative Agent the documents and instruments required by Section 7.12
of the Credit Agreement with respect to AHL Europe Limited, (iii) the incurrence
by Argenbright B.V., a limited liability company organized under the laws of the
Netherlands and a direct Wholly-Owned Subsidiary of AHL ("Argenbright B.V."), of
indebtedness to AHL in the principal amount of (pound) 10,250,000, (iv) the
incurrence by AHL Europe Limited of indebtedness to Argenbright B.V. in the
principal amount of (pound) 10,250,000 (the "Intercompany Debt") and the
expenditure of (pound) 10,000,000 of such loan proceeds to purchase additional
shares of European
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Holdings, and (v) the guaranty by AHL Services, Inc. of the Intercompany Debt
(collectively, the "Existing Events of Default"). Subject to the satisfaction of
each of the conditions precedent set forth in Section 5.1 of this Amendment, the
Lenders and the Administrative Agent hereby waive the Existing Events of Default
and the effects thereof, effective as of the First Effective Date (as defined
below).
SECTION 3 CONSENT TO SALE OF AVIATION BUSINESS
AHL has requested that the Administrative Agent and the Lenders grant
their consent to (a) the sale by AHL and/or certain Subsidiaries of AHL (AHL
and/or such Subsidiaries, the "Sellers") of (i) the assets constituting the
Aviation Business and certain intellectual property associated with the Aviation
Business (collectively, the "Aviation Assets") and/or (ii) the capital stock,
limited liability company interests, partnership interests, or other equity
interests in one or more Subsidiaries owning substantially no assets other than
the Aviation Assets (the "Aviation Stock") and (b) the incurrence by the Sellers
of an obligation (the "Clawback Obligation") to the purchaser of the Aviation
Business to pay up to $10,000,000 in an adjustment to the purchase price paid at
closing, based on the performance of the Aviation Business during the twelve
(12) months following the closing of the sale (collectively, the "Aviation
Business Sale"). Subject to the satisfaction of each of the conditions precedent
set forth in Section 5.2 of this Amendment and the proviso contained in this
sentence below, the Lenders and the Administrative Agent hereby consent to the
Aviation Business Sale solely with respect to the Security Documents and
Sections 9.4 and 9.6 of the Credit Agreement and hereby agree to the release of
the Administrative Agent's security interests in the Aviation Assets and the
Aviation Stock, effective as of the Second Effective Date (as defined below),
provided that the closing of the Aviation Business Sale shall be consummated on
or prior to February 28, 2001.
SECTION 4 REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Amendment, each Borrower hereby represents and warrants to the Lenders
that: (a) immediately prior to the effectiveness of this Amendment, all of the
representations set forth in the Credit Agreement were accurate in all material
respects as of the date hereof, (b) after giving effect to this Amendment, all
of the representations and warranties set forth in the Amended Credit Agreement,
will be accurate in all material respects as of the date hereof, except to the
extent that such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been true and
correct on and as of such date, and (c) other than the Existing Events of
Default, there exists no Default or Event of Default under the Credit Agreement
or the Loan Documents as of the date hereof.
SECTION 5 CONDITIONS TO EFFECTIVENESS
5.1 First Effective Date. The amendments to the Credit Agreement
set forth in Section 1 of this Amendment and the waivers set forth in Section 2
of this Amendment all shall become effective on the first day on which each of
the following conditions precedent shall have been
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satisfied (the "First Effective Date"):
(a) AHL shall have paid to the Administrative Agent, for
the account of each Lender signing this approval letter, a
non-refundable amendment fee in an amount equal to .125% of the amount
of such Lender's reduced Commitment as set forth on Schedule 1.1 to
this Amendment.
(b) The Administrative Agent shall have received
counterparts to this Amendment duly executed by each of the parties
hereto.
(c) Each New Borrower shall have become a Borrower under
the Credit Agreement on the First Effective Date by executing and
delivering to the Administrative Agent a Joinder Agreement, dated as of
the First Effective Date, in form and substance satisfactory to the
Administrative Agent.
(d) Each New Borrower shall have executed and delivered
to the Administrative Agent new Notes, dated as of the First Effective
Date, in favor of each Lender, in form and substance satisfactory to
the Administrative Agent.
(e) AHL shall have executed and delivered to the
Administrative Agent a share mortgage (or its equivalent), dated as of
the First Effective Date, in favor of the Administrative Agent, in form
and substance satisfactory to the Administrative Agent, pursuant to
which AHL grants a mortgage in the ordinary shares of (pound) 1 each in
AHL Europe Limited representing 100% of the outstanding ordinary shares
thereof.
(f) AHL Europe Limited shall have executed and delivered
to the Administrative Agent a share mortgage, dated as of the First
Effective Date, in favor of the Administrative Agent, in form and
substance satisfactory to the Administrative Agent, pursuant to which
AHL Europe Limited grants a mortgage in the shares of European Holdings
representing 100% of the outstanding shares of capital stock of
European Holdings.
(g) AHL, Argenbright B.V. and AHL Europe Limited shall
have executed and delivered to the Administrative Agent an intercompany
subordination agreement, dated as of the First Effective Date, in favor
of the Administrative Agent, in form and substance satisfactory to the
Administrative Agent, pursuant to which the Intercompany Debt (and
AHL's guaranty thereof) shall be subordinated to the Obligations and
payments of principal, and, after the occurrence and the during the
continuance of an Event of Default, interest, in respect of the
Intercompany Debt (or AHL's guaranty thereof) shall be prohibited so
long as the Obligations remain outstanding.
(h) Each New Borrower and each party to the German
Security Documents and the UK Security Documents shall have executed
and delivered to the Administrative Agent such amendments to and
confirmations of such documents as shall be requested by
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the Administrative Agent, in form and substance satisfactory to the
Administrative Agent.
(i) The Administrative Agent shall have received
favorable opinions of counsel to the Borrowers addressed to the
Administrative Agent and the Lenders, with respect to the Existing
Borrowers and the New Borrowers, this Amendment, the other Loan
Documents executed pursuant to this Section 5.1, and such other matters
as the Administrative Agent may reasonably request, in form and
substance satisfactory to the Administrative Agent.
(j) The Administrative Agent shall have received
certificates as of a recent date as to the good standing of each
Existing Borrower and New Borrower under the laws of their respective
jurisdictions of organization.
(k) The Administrative Agent shall have received a
certificate of the secretary or assistant secretary of each Existing
Borrower and New Borrower certifying, as applicable, that attached
thereto is a true and complete copy of the articles of incorporation or
other charter documents of such Person and all amendments thereto (or,
that there has been no modification thereto since the last date upon
which such charter documents were certified to the Administrative
Agent); that attached thereto is a true and complete copy of the bylaws
of such Person as in effect on the date of such certification (or, that
there has been no modification thereto since the last date upon which
such charter documents were certified to the Administrative Agent);
that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of such Person, authorizing the
borrowings contemplated by the Credit Agreement and the execution,
delivery and performance of this Amendment and the other Loan Documents
to which it is a party; and as to the incumbency and genuineness of the
signature of each officer of such Existing Borrower or New Borrower
executing Loan Documents to which such Existing Borrower or New
Borrower is a party.
(l) The Administrative Agent shall have received such
other documents as it shall have reasonably requested, in form and
substance satisfactory to the Administrative Agent.
5.2 Second Effective Date. The consent set forth in Section 3 of
this Amendment shall become effective on the first day on which each of the
following conditions precedent shall have been satisfied (the "Second Effective
Date"):
(a) The First Effective Date shall have occurred.
(b) The Administrative Agent shall have received the
entire Net Cash Proceeds of the Aviation Business Sale received by
Borrowers at the time of the closing of the Aviation Business Sale, in
the minimum amount of $140,000,000 less, if the Sellers are required by
the definitive documentation for the Aviation Business Sale to
deposit funds in escrow in respect of the Clawback Obligation, an
amount equal to the lesser of (i) the
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actual amount of such funds deposited into escrow and (ii) $6,000,000,
and seventy percent (70%) of such Net Cash Proceeds shall have been
applied to repay the Loans and permanently reduce the Aggregate
Commitment by the amount of such repayment. Borrowers shall promptly
upon receipt repay the Loans and permanently reduce the Aggregate
Commitment by the amount of funds, if any, that are returned to Sellers
from the escrow established in respect of the Clawback Obligation.
(c) All Obligations of each Borrower whose capital stock
is sold pursuant to the Aviation Business Sale, and each Subsidiary
thereof (collectively, the "Sold Companies"), in respect of Loans made
to any Sold Company shall have been repaid in full.
(d) With respect to each Letter of Credit issued on
behalf of any Sold Company which remains outstanding, either (i) such
Letter of Credit shall have been returned to the Administrative Agent
for cancellation, (ii) there shall have been delivered to the
Administrative Agent good funds equal to 100% of the maximum liability
under such Letter of Credit, which funds are to be deposited in a
separate, blocked account (the "Cash Collateral Account") maintained by
Borrowers with the Administrative Agent and are to be held in the Cash
Collateral Account for the benefit of the Lenders as cash collateral
for the Borrowers' joint and several reimbursement obligations and the
other Obligations, or (iii) there shall have been delivered to the
Administrative Agent a letter of credit in form and substance
satisfactory to the Administrative Agent in an amount equal to 100% of
the maximum liability under such Letter of Credit with a term that
extends 60 days beyond the latest expiration date of such Letter of
Credit and issued by a bank satisfactory to the Administrative Agent
that may be drawn upon by the Administrative Agent in the event of any
draw under such Letter of Credit.
(e) The Administrative Agent shall have received a
certified true and correct copy of the asset or stock purchase and sale
agreement evidencing the Aviation Business Sale, which agreement shall
be in form and substance satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received such
other documents as it shall have reasonably requested, in form and
substance satisfactory to the Administrative Agent.
Upon and after the Second Effective Date, (i) the Commitment of each Lender in
respect of each Sold Company which was a Borrower prior to the Second Effective
Date, and each Sold Company's rights and obligations under the Loan Documents
(other than any provision of any of the Loan Documents which survives repayment
of the Obligations and termination of the Loan Documents), shall immediately
terminate, and (ii) all references to "Borrower" in the Loan Documents shall
exclude each such Sold Company.
12
<PAGE> 13
SECTION 6 MISCELLANEOUS
6.1 Counterparts. This Amendment may be executed by each party to
this Amendment upon a separate copy, and in such case one counterpart of this
Amendment shall consist of enough of such copies to reflect the signature of all
of the parties to this Amendment. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Amendment or its terms to produce or account
for more than one of such counterparts.
6.2 General. Upon and after the First Effective Date, all
references to the Credit Agreement in that document or in any other Loan
Document shall mean the Credit Agreement as amended hereby. Except as expressly
provided herein, the execution and delivery of this Amendment does not and will
not amend, modify or supplement any provision of, or constitute a consent to or
a waiver of any noncompliance with the provisions of, the Credit Agreement, and,
except as specifically provided in this Amendment, the Credit Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
6.3 Construction. This Amendment is a Loan Document executed
pursuant to the Credit Agreement and shall be construed, administered and
applied in accordance with all of the terms and provisions of the Credit
Agreement.
6.4 Governing Law. This Amendment shall be governed by, construed
and enforced in accordance with the laws of the State of Georgia, without
reference to the conflicts or choice of law principles thereof.
6.5 Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
[Signatures appear on following pages]
13
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers hereunder duly authorized as of the day and year
first written above.
EXISTING BORROWERS:
AHL SERVICES, INC.
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
ARGENBRIGHT SECURITY, INC.
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
ARGENBRIGHT, INC.
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
ADI U.K. LIMITED
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
Signature Page - Third Amendment
<PAGE> 15
AVIATION DEFENCE INTERNATIONAL
GERMANY LIMITED
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
ARGENBRIGHT HOLDINGS LIMITED
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
THE ADI GROUP LIMITED
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
ADI ALPHA HOLDING GMBH
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
Signature Page - Third Amendment
<PAGE> 16
NEW BORROWERS:
TUJA ZEITARBEIT GMBH & CO. KG, INGOLSTADT
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
EMD GESELLSCHAFT FUR
PERSONALDIENSTLEISTUNGEN GMBH & CO. KG,
ASCHAFFENBURG
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
AHL EUROPE LIMITED
By:
-----------------------------------------
Title:
--------------------------------------
[CORPORATE SEAL]
Signature Page - Third Amendment
<PAGE> 17
LENDERS:
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By:
-----------------------------------------
Title:
--------------------------------------
FIRST UNION NATIONAL BANK,
LONDON BRANCH, as European Swingline Lender
By:
----------------------------------------
Title:
-------------------------------------
WACHOVIA BANK, N.A., as Lender
By:
----------------------------------------
Title:
-------------------------------------
SUNTRUST BANK, as Lender
By:
----------------------------------------
Title:
-------------------------------------
BANK OF AMERICA, N.A., as Lender
By:
----------------------------------------
Title:
-------------------------------------
Signature Page - Third Amendment
<PAGE> 18
FLEET NATIONAL BANK, as Lender
By:
----------------------------------------
Title:
-------------------------------------
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as Lender
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG CAYMAN
ISLAND BRANCH, as Lender
By:
----------------------------------------
Title:
-------------------------------------
By:
----------------------------------------
Title:
-------------------------------------
THE BANK OF NOVA SCOTIA, as Lender
By:
----------------------------------------
Title:
-------------------------------------
SCOTIABANK EUROPE PLC, as Lender for
Revolving Loans made in Alternative
Currencies, as Lender
By:
----------------------------------------
Title:
-------------------------------------
Signature Page - Third Amendment
<PAGE> 19
SALOMON BROTHERS HOLDING
COMPANY INC., as Lender
By:
----------------------------------------
Title:
-------------------------------------
FIRSTSTAR BANK, N.A., as Lender
By:
----------------------------------------
Title:
-------------------------------------
BANK ONE, NA, as Lender
By:
----------------------------------------
Title:
-------------------------------------
SOVEREIGN BANK, as Lender
By:
----------------------------------------
Title:
-------------------------------------
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC., as Lender
By:
----------------------------------------
Title:
-------------------------------------
Signature Page - Third Amendment
<PAGE> 20
By:
----------------------------------------
Title:
-------------------------------------
Signature Page - Third Amendment
<PAGE> 21
THE FUJI BANK LIMITED, as Lender
By:
----------------------------------------
Title:
-------------------------------------
BANK LEUMI LE-ISRAEL, B.M.,
MIAMI AGENCY, as Lender
By:
----------------------------------------
Title:
-------------------------------------
Signature Page - Third Amendment
<PAGE> 22
SCHEDULE 1.1
<TABLE>
<CAPTION>
Commitment
Lenders Commitment Percentage
----------------------------- ------------ --------------
(Dollars)
<S> <C> <C>
First Union National Bank and $ 38,000,000 12.6666666666%
its Lender Affiliates
Salomon Brothers Holding Company $ 34,000,000 11.3333333333%
Inc.
Bank of America, N.A. $ 32,000,000 10.6666666667%
Wachovia Bank N.A. $ 32,000,000 10.6666666667%
SunTrust Bank $ 28,000,000 9.3333333333%
Fleet National Bank $ 24,000,000 8.0000000000%
Dresdner Bank AG, New York and $ 20,000,000 6.6666666667%
Grand Cayman Branches
Firststar Bank, N.A. $ 16,000,000 5.3333333333%
The Bank of Nova Scotia and its $ 16,000,000 5.3333333333%
Lender Affiliates
Bank One, NA $ 12,000,000 4.0000000000%
Sovereign Bank $ 12,000,000 4.0000000000%
Bank Austria Creditanstalt $ 12,000,000 4.0000000000%
Corporate Finance Inc.
The Fuji Bank Limited $ 10,000,000 3.3333333333%
DG Bank Deutsche $ 8,000,000 2.6666666667%
Genossenschaftsbank Cayman
Islands Branch
Bank Leumi Le-Israel, B.M., $ 6,000,000 2.0000000000%
Miami Agency
TOTAL: $300,000,000 100.000%
</TABLE>
