Exhibit 10.11 

 

 

**FIRST AMENDMENT TO**

**FINANCING AGREEMENT AND WAIVER**

 

This FIRST AMENDMENT TO FINANCING AGREEMENT AND WAIVER (this “**Amendment**”), dated as of March 1, 2004, is entered into by and among HALLKINION & ASSOCIATES, INC., a Delaware corporation (“**HKA**”), GROUP-IPEX, INC., a California corporation (“**Ipex**”), ONSTAFF ACQUISITION CORP., a Delaware corporation (“**Onstaff**” and together with HKAand Ipex, each individually, a “**Company**” and collectively, jointly and severally, the “**Companies**”), and THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation (“**CIT**”). 

 

**RECITALS**

 

A. The Companies and CIT previously entered into that certain Financing Agreement dated as of June 13, 2003 (the“**Financing Agreement**”), pursuant to which CIT provides loans and other financial accommodations to the Companies from time to time. 

 

B. The Companies have requested that CIT waive compliance with and amend certain terms of the Financing Agreement and provide the Companies with certainother accommodations. 

 

C. CIT is willing to agree to suchwaiver and amendments to the Financing Agreement and to provide such other accommodations all on the terms and subject to the conditions set forth below. 

 

**AGREEMENT**

 

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth below and other good and valuable consideration, thereceipt and adequacy of which are hereby acknowledged, the parties agree as follows: 

 

1. Definitions. Capitalized terms used herein and not otherwise defined herein, shall have the respective meanings set forth in the Financing Agreement. 

 

2. Waiver. As of the end of January 2004 and February 2004, theCompanies were not in compliance with the covenant set forth in Section 7.10(b) of the Financing Agreement. As a result thereof, Events of Default have occurred under the Financing Agreement. CIT hereby waives compliance by the Companies with suchcovenant solely with respect to the months ending January 31, 2004 and February 29, 2004 and agrees that such noncompliance shall not constitute Events of Default under the Financing Agreement 

3. Amendments. 

 

(a) The definition of “Empire House Reserve” set forth in Section 1 of the Financing Agreement is hereby amendedand restated in its entirety to read as follows: 

 

“**Empire House Reserve** shall mean an Availability Reserve in an amount equal to one hundred percent (100%) of the proceeds derived from the sale of the Empire House.” 

 

(b) Clause (ii) of Section 7.9(c) of the Financing Agreement is herebyamended and restated in its entirety to read as follows: 

 

“(ii) either all or substantially all of any of the Companies’ assets, which do not constitute Collateral, provided, that HKA may sell the Empire House for fair market value in an arms length transaction on terms satisfactory toCIT, so long as the net proceeds derived from such sale are delivered to CIT for application on the outstanding Revolving Loans and the Empire House Reserve is established immediately after such sale is consummated;” 

 

4. Overadvance Facility. As an accommodation to the Companies, CITwill within the Line of Credit and so long as no Default or Event of Default has occurred under the Financing Agreement, from time to time during the period from March 12, 2004 through April 16, 2004, make available to the Companies loans andadvances in excess of the maximum amount available to the Companies as computed pursuant to Section 3.1 of the Financing Agreement (the “**Overadvance Facility**”); provided that, (a) the aggregate outstanding amount undersuch Overadvance Facility shall not exceed $600,000 at any time, (b) such Overadvance Facility shall be reduced to zero and repaid in full upon the earlier of April 16, 2004 or the termination of the Financing Agreement and (c) such OveradvanceFacility shall (i) be made subject to, and in accordance with, all of the terms, provisions and conditions of the Financing Agreement, (ii) bear interest at the rate set forth in Section 8 of the Financing Agreement and (iii) constitute Obligationsunder the Financing Agreement and be secured by all liens upon, and security interest in, all Collateral and any other assets or property now or hereafter subject to a lien or security interest securing the Obligations. 

 

5. Conditions to Effectiveness. This Amendment shall become effectiveonly upon the satisfaction of all of the following conditions precedent (the date of satisfaction of all such conditions being referred to as the “**Amendment Effective Date**”): 

 

(a) CIT shall have received this Amendment, duly executed anddelivered by the Companies no later than March 3, 2004. 

 

(b) Each of the representations and warranties set forth in this Amendment shall be true and correct as of the Amendment Effective Date. 

 

6. Representations and Warranties. In order to induce CIT to enter into this Amendment and to provide the waiver andaccommodations and amend the Financing 

Agreement in the manner provided in this Amendment, the Companies represent and warrant to CIT as of the AmendmentEffective Date as follows: 

 

(a) Power andAuthority. Each Company has all requisite corporate power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Financing Agreement as amended by this Amendment.

 

(b) Authorization of Agreements. Theexecution and delivery of this Amendment by the Companies and the performance by the Companies of the Financing Agreement, as amended hereby, have been duly authorized by all necessary action, and this Amendment has been duly executed and deliveredby each Company. 

 

(c) Representations andWarranties in the Financing Agreement. Each Company confirms that as of the Amendment Effective Date, the representations and warranties contained in Section 7 of the Financing Agreement are (before and after giving effect to this Amendment)true and correct in all material respects (except to the extent any such representation and warranty is expressly stated to have been made as of a specific date, in which case it shall be true and correct as of such specific date) and that noDefault or Event of Default has occurred and is continuing. 

 

7.Miscellaneous. 

 

(a) Reference to andEffect on the Existing Financing Agreement. 

 

(i) Except as specifically amended by this Amendment and the documents executed and delivered in connection herewith, the Financing Agreement shall be unmodified and continue in full force and effect and is hereby ratified and confirmed.

 

(ii) The execution and delivery of thisAmendment and performance of the Financing Agreement shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of CIT under, the Financing Agreement or any agreementor document executed in connection therewith. 

 

(iii) Upon the conditions precedent set forth herein being satisfied, this Amendment shall be construed as one with the existing Financing Agreement, and the existing Financing Agreement shall, where the context requires, be read andconstrued throughout so as to incorporate this Amendment. 

 

(b) Accommodation Fee. To further induce CIT to enter into this Amendment, the Companies hereby agree to pay to CIT an accommodation fee of $25,000, which fee shall be due and payable by the Companies and fullyearned by CIT as of the date hereof. 

(c) Headings. Section and subsection headings in this Amendment are included forconvenience of reference only and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect. 

 

(d) Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original but all ofwhich together shall constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by telefacsimile shall be equally effective as delivery of an original executed counterpart of this Amendment. 

 

(e) Governing Law. This Amendment shall be governedby and construed according to the laws of the State of California. 

IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first abovewritten. 

 
**HALL, KINION &ASSOCIATES, INC.,**
a Delaware corporation

By:
  
/S/    DAVE HEALEY

Name:
  Dave Healey
Title:
  Treasurer**GROUP-IPEX, INC.,**
a California corporation

By:
  
/S/    DAVE HEALEY

Name:
  Dave Healey
Title:
  Treasurer**ONSTAFF ACQUISITION CORP.,**
a Delaware corporation

By:
  
/S/    DAVE HEALEY

Name:
  Dave Healey
Title:
  Treasurer**THE CIT GROUP/BUSINESS****CREDIT, INC.,**
a New York corporation

By:
  
/S/    JEANNETTE M. BEHM

Name:
  Jeannette M. Behm
Title:
  Vice President

****Each of the undersigned confirms that the foregoing Amendment shall not affect, modify or diminishsuch undersigned’s obligations under any instruments of Guaranty and/or any related pledge or security agreements executed in favor of CIT, that their respective Guaranty and/or any related pledge or security agreements shall extend to andinclude the Overadvance Facility and reaffirms and ratifies each of the terms and conditions of such Guaranty and/or related pledge or security agreements. 

 
**TKO PERSONNEL, INC.**  **ICPLANET CORPORATION**By:  
/s/    Dave Healey
  By:  
/S/    DAVE HEALEY

Name:
  Dave Healey  Name:  Dave Healey
Title:
  Treasurer  Title:  Treasurer**TKI ACQUISITION**  **HUNTINGTON****CORPORATION**  **ACQUISITION**      **CORPORATION**
By:
  
/S/    DAVE HEALEY
  By:  
/S/    DAVE HEALEY

Name:
  Dave Healey  Name:  Dave Healey
Title:
  Treasurer  Title:  Treasurer**INTERACTIVE ACQUISITION**  **TA ACQUISITION CORPORATION****CORPORATION**      
By:
  
/S/    DAVE HEALEY
  By:  
/S/    DAVE HEALEY

Name:
  Dave Healey  Name:  Dave Healey
Title:
  Treasurer  Title:  Treasurer
 

 

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