Exhibit 10.1


 


CONSENT
AND TWELFTH AMENDMENT TO CREDIT AGREEMENT


 


This Consent and Twelfth
Amendment to Credit Agreement (this “Amendment”) is dated as of August 4, 2009,
and is by and among General Electric Capital Corporation, a Delaware
corporation, individually as a Lender and as Agent and Security Trustee for the
Lenders, Analysts International Corporation, a Minnesota corporation (“Borrower”),  Medical Concepts Staffing, Inc., a Minnesota
corporation (“MCS”), Analysts International Management Services, LLC, a
Minnesota limited liability company (“AIMS”), Analysts International Business
Solution Services, LLC, a Minnesota limited liability company (“AIBSS”),
Analysts International Business Resource Services, LLC, a Minnesota limited
liability company (“AIBRS”) and Analysts International Strategic Sourcing
Services, LLC, a Minnesota limited liability company (“AISSS”; MCS, AIMS,
AIBSS, AIBRS and AISSS are collectively the “Staffing Subsidiaries” and each a “Staffing
Subsidiary”).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to a
certain Credit Agreement dated as of April 11, 2002, by and among General
Electric Capital Corporation, a Delaware corporation, individually as a Lender
and as Agent and Security Trustee for the Lenders, the other Credit Parties
signatory from time to time thereto, and Borrower (as amended or otherwise
modified from time to time, the “Credit Agreement”; capitalized terms used
herein and not otherwise defined herein shall have the meaning ascribed to such
terms in the Credit Agreement), Agent and Lenders agreed, subject to the terms
and provisions thereof, to provide certain loans and other financial
accommodations to Borrower;


 


WHEREAS,
Borrower desires to sell certain assets of Borrower related to its value-added
reseller business pursuant to the agreement set forth as Exhibit A
hereto (the “Asset Sale”), which Asset Sale, in the absence of the prior
written consent of Agent and Requisite Lenders, would constitute a breach of Section
6.8 of the Credit Agreement and an Event of Default under Section 8.1(b) of the
Credit Agreement; and


 


WHEREAS,
Borrower has requested that Agent and Lenders consent to the Asset Sale, and amend the Credit Agreement in certain
respects, as set forth below.


 


NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.             Consent and Limited Release of Security Interests.


 


(a)   In reliance upon the
representations and warranties of Borrower set forth in Section 4 below, and
subject to the conditions to effectiveness set forth in Section 3 below, Agent
and Lenders hereby consent to the Asset Sale and acknowledge that there will be
no breach of Section 6.8 as a result of such Asset Sale; provided that
the proceeds of such Asset Sale are used to prepay the Loans pursuant to Section
1.3(b)(ii) of the Credit Agreement.  


 

















 


This
is a limited waiver and consent and shall not be deemed to constitute a waiver
of, or consent to, any other future breach of the Credit Agreement.


 


(b)   Lenders hereby authorize
Agent to release the assets to be conveyed pursuant to the Asset Sale (collectively,
the “Conveyed Assets”), from the Liens arising under the Collateral Documents.  Upon the consummation of the Asset Sale in
compliance with the provisions hereof, the Liens in the Conveyed Assets arising
under the Collateral Documents shall be released and terminated, and Borrower
(or its designee) may record the UCC-3 partial release attached hereto as Exhibit
B.


 


2.             Amendment. 
In reliance upon the representations and warranties of Borrower set
forth in Section 4 below, and subject to the conditions to effectiveness set
forth in Section 3 below, the Credit Agreement is hereby amended as
follows:


 


(a)   The reference to “one-quarter of one percent
(.25%)” in Section 1.9(b) of the Credit Agreement is hereby deleted and
replaced with a reference to “three-quarters of one percent (0.75%)”.


 


(b)   Each of the definitions of “Applicable
Revolver Index Margin”, “Applicable Revolver LIBOR Margin”, and “LIBOR Rate” set
forth in Annex A to the Credit Agreement is hereby amended and restated in its
entirety, as follows:


 


“Applicable Revolver Index Margin” means 2.75%
per annum.


 


“Applicable Revolver LIBOR Margin” means 3.75%
per annum.


 


“LIBOR Rate” means for each LIBOR Period, a
rate of interest determined by Agent equal to:


 


(a) the greater of (i) the offered rate for deposits
in United States Dollars for the applicable LIBOR Period that appears on
Telerate Page 3750 as of 11:00 a.m. (London time) and (ii) the offered rate for deposits in United States Dollars for
a three-month LIBOR Period that appears on Telerate Page 3750 as of 11:00 a.m.
(London time), in each case, on the second full LIBOR Business Day next
preceding the first day of such LIBOR Period (unless such date is not a
Business Day, in which event the next succeeding Business Day will be used);
divided by


 


(b) a number equal to 1.0 minus the aggregate
(but without duplication) of the rates (expressed as a decimal fraction) of
reserve requirements in effect on the day that is 2 LIBOR Business Days prior
to the beginning of such LIBOR Period (including basic, supplemental, marginal
and emergency reserves under any regulations of the Federal Reserve Board or
other Governmental Authority having jurisdiction with respect thereto, as now
and from time to time in effect) for Eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board
that are required to be maintained by a member bank of the Federal Reserve
System.


 


2

















 


If such interest rates shall cease to be available
from Telerate News Service, the LIBOR Rate shall be determined from such
financial reporting service or other information as shall be mutually
acceptable to Agent and Borrower.


 


“Revolving Loan Commitment” means (a) as to any
Lender, the aggregate commitment of such Lender to make Revolving Credit
Advances or incur Letter of Credit Obligations as set forth on Annex J
to the Agreement or in the most recent Assignment Agreement executed by such
Lender and (b) as to all Lenders, the aggregate commitment of all Lenders to
make Revolving Credit Advances or incur Letter of Credit Obligations, which
aggregate commitment shall be Fifteen Million Dollars ($15,000,000) on the Twelfth
Amendment Closing Date, as such amount may be adjusted, if at all, from time to
time in accordance with the Agreement.


 


(c)   Annex A to the Credit Agreement
(Definitions) is hereby amended by adding the following defined term in proper
alphabetical order:


 


“Twelfth Amendment Closing Date” means August 4,
2009.


 


(d)           The reference to “Commitment
Termination Date” in the first sentence of paragraph (a) of Annex B to
the Credit Agreement (Letters of Credit) is hereby deleted and replaced with a
reference to “August 4, 2009”.


 


(e)           Annex G to the Credit
Agreement is hereby amended by amending and restating clause (c) thereof
as follows:


 


“(c)         Minimum Fixed
Charge Coverage Ratio.  In the event
that (a) the average daily Borrowing Availability for any Fiscal Month (the “Trigger
Month”) is less than $5,000,000, and (b) there are Loans outstanding hereunder
at any time during such Trigger Month, then Borrower and its Subsidiaries shall
have on a consolidated basis at the end of each Fiscal Month, commencing with
the Trigger Month, a Fixed Charge Coverage Ratio for the twelve (12) Fiscal
Month period then ended of not less than 1.0 to 1.0.”


 


(f)            The reference to “$55,000,000” on Annex
J to the Credit Agreement is hereby deleted and replaced with a reference
to “$15,000,000”.


 


3.             Conditions Precedent.  The
effectiveness of the consent and amendment contemplated hereby is
subject to the prior receipt by Agent of each of the following documents and
agreements, each in the form and substance acceptable to Agent in its sole
discretion:


 


(a)   Agent shall have received a
fully executed copy of this Amendment;


 


(b)   No Default or Event of
Default shall have occurred and be continuing; and


 


(c)   All proceedings taken in connection with the transactions
contemplated by this Amendment on or prior to the date hereof and all
agreements, documents, instruments and other legal matters incident thereto
entered into on or prior to the date hereof shall be reasonably satisfactory to
Agent and its legal counsel.


 


3

















 


4.             Representations and Warranties.  To induce Agent to enter into this Amendment,
the Borrower hereby represents and warrants to Agent that:


 


(a)   The execution, delivery and performance by each
Credit Party of this Amendment and each other agreement and document
contemplated hereby are within their corporate or limited liability company power,
have been duly authorized by all necessary corporate or limited liability company
action, have received all necessary governmental approval (if any shall be
required), and do not and will not contravene or conflict with any provision of
law applicable to any Credit Party, the articles of incorporation, articles of
organization, by-laws or operating agreement of any Credit Party, any order,
judgment or decree of any court or governmental agency, or any agreement,
instrument or document binding upon any Credit Party or any of their respective
properties;


 


(b)   Each of the Credit Agreement, the other Loan
Documents, and each other agreement and document contemplated hereby is the
legal, valid and binding obligation of the applicable Credit Party, enforceable
against such Credit Party in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, reorganization,
moratorium, fraudulent transfer or other similar laws affecting creditors’
rights generally or by principles governing the availability of equitable
remedies;


 


(c)   The representations and warranties of each Credit
Party in the Loan Documents are true and correct in all material respects
(except to the extent stated to relate to a specific earlier date, in which
case such representations and warranties are true and correct in all material
respects as of such earlier date);


 


(d)   No Default or Event of Default exists or would exist after giving effect to
this Amendment;


 


(e)   Each Credit Party has performed all of its
obligations under the Credit Agreement and the Loan Documents to be performed
by it on or before the date hereof and as of the date hereof, each Credit Party
is in compliance with all applicable terms and provisions of the Credit
Agreement and each of the Loan Documents to be observed and performed by it
and, except to the extent otherwise waived by the provisions hereof, no Event
of Default or other event which, upon notice or lapse of time or both, would
constitute an Event of Default, has occurred.


 


5.             Reaffirmation. 
Each Staffing Subsidiary hereby consents to Borrower’s execution and
delivery of this Amendment and agrees to be bound hereby.  Each Staffing Subsidiary hereby affirms that
nothing contained herein shall modify in any respect whatsoever its obligations
under the Loan Documents, including, without limitation, its guaranty of the
obligations of Borrower to Agent and Lenders pursuant to those certain
guarantees  dated April 7, 2003 or December
31, 2003, as the case may be (the April 7, 2003 and December 31, 2003
guarantees collectively referred to herein as the “Guaranty”), 


 


4

















 


executed by such Staffing Subsidiary in favor of Agent
and Lenders and reaffirms that such Guaranty is and shall continue to remain in
full force and effect.  Although each
Staffing Subsidiary has been informed of the matters set forth herein and has
acknowledged and agreed to same, such Person understands that Agent and Lenders
have no obligation to inform any such Person of such matters in the future or
to seek any such Person’s acknowledgment or agreement to future consents or
waivers, and nothing herein shall create such a duty.


 


6.             Release.


 


(a)   In consideration of the agreements of Agent and
Lenders contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Borrower and each of
the Staffing Subsidiaries, on behalf of itself and its successors, assigns, and
other legal representatives, hereby absolutely, unconditionally and irrevocably
releases, remises and forever discharges Agent and Lenders, and their
successors and assigns, and their present and former shareholders, affiliates,
subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents and other representatives (Agent, each Lender and all such
other Persons being hereinafter referred to collectively as the “Releasees”
and individually as a “Releasee”), of and from all demands, actions,
causes of action, suits, covenants, contracts, controversies, agreements,
promises, sums of money, accounts, bills, reckonings, damages and any and all
other claims, counterclaims, defenses, rights of set-off, demands and
liabilities whatsoever (individually, a “Claim” and collectively, “Claims”)
of every name and nature, either known or suspected, both at law and in equity,
which Borrower or any of the Staffing Subsidiaries or any of their successors,
assigns, or other legal representatives may now or hereafter own, hold, have or
claim to have against the Releasees or any of them for, upon, or by reason of
any circumstance, action, cause or thing whatsoever which arises at any time on
or prior to the day and date of this Amendment, including, without limitation,
for or on account of, or in relation to, or in any way in connection with any
of the Credit Agreement, or any of the other Loan Documents or transactions
thereunder or related thereto.


 


(b)   Borrower and each of the
Staffing  Subsidiaries understands,
acknowledges and agrees that the release set forth above may be pleaded as a
full and complete defense and may be used as a basis for an injunction against
any action, suit or other proceeding which may be instituted, prosecuted or
attempted in breach of the provisions of such release.


 


7.             Counterparts. 
This Amendment may be executed in any number of counterparts and by the
different parties on separate counterparts, and each such counterpart shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same Amendment.  Any such
counterpart which may be delivered by facsimile transmission or electronic
portable format (i.e., “pdf”) shall be deemed the equivalent of an originally
signed counterpart and shall be fully advisable in any enforcement proceeding
regarding this Amendment.


 


5

















 


8.             Continued Effectiveness.  Except as amended hereby, the Credit
Agreement and each of the Loan Documents shall continue in full force and
effect according to its terms.


 


9.             Costs and Expenses. Borrower hereby agrees that
all expenses incurred by Agent in connection with the preparation, negotiation
and closing of the transactions contemplated hereby, including, without
limitation, reasonable attorneys’ fees and expenses, shall be part of the
Obligations.


 


10.           Governing Law.  This
Amendment shall be a contract made under and governed by the internal laws of
the State of Illinois.


 


[REMAINDER OF PAGE LEFT
INTENTIONALLY BLANK]


 


6

















 


IN WITNESS WHEREOF, this
Amendment has been executed as of the day and year first written above.


 


 


	
   

  	
  ANALYSTS INTERNATIONAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Randy Strobel

  
	
   

  	
  Its

  	
  SVP & CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDICAL CONCEPTS STAFFING,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Brittany McKinney

  
	
   

  	
  Its

  	
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ANALYSTS INTERNATIONAL
  MANAGEMENT SERVICES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Randy Strobel

  
	
   

  	
  Its

  	
  CFO & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ANALYSTS INTERNATIONAL
  BUSINESS SOLUTION SERVICES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Randy Strobel

  
	
   

  	
  Its

  	
  CFO & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ANALYSTS INTERNATIONAL
  BUSINESS RESOURCE SERVICES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Randy Strobel

  
	
   

  	
  Its

  	
  CFO & Treasurer

  



 

















 


	
   

  	
  ANALYSTS INTERNATIONAL
  STRATEGIC SOURCING SERVICES, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Randy Strobel

  
	
   

  	
  Its

  	
  CFO & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION,

  
	
   

  	
  as Agent, Security Trustee and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Tom D. Chapman

  
	
   

  	
   

  	
  An Authorized Signatory

  



 

















 


EXHIBIT A


 


Asset Purchase Agreement with respect to the Asset Sale


(see attached)


 

















 


EXHIBIT B


 


UCC-3 Partial Release


(see attached)