FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 7, 2007 (the “Agreement”) is entered into among Gevity HR, Inc., a Florida corporation (the “Borrower”), the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent entered into that certain Amended and Restated Credit Agreement dated as of August 30, 2006 (as amended and modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
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1. |
Amendments. |
(a) The following definition is hereby added to Section 1.01 of the Credit Agreement in the appropriate alphabetical order to read as follows:
“First Amendment Effective Date” means May 7, 2007.
(b) The following sentence is hereby added at the end of the definition of “Aggregate Revolving Commitments” in Section 1.01 of the Credit Agreement:
After giving effect to the Borrower’s election to increase the Aggregate Revolving Commitments pursuant to Section 2.01(c), the amount of the Aggregate Revolving Commitments on the First Amendment Effective Date is SEVENTY-FIVE MILLION DOLLARS ($75,000,000).
(c) The language preceding the proviso in the first sentence of Section 2.01(c) of the Credit Agreement is hereby amended to read as follows:
The Borrower may at any time, upon prior written notice by the Borrower to the Administrative Agent, make a request for an increase in the Aggregate Revolving Commitments (but not the Letter of Credit Sublimit) of up to FIFTY MILLION DOLLARS ($50,000,000) with additional Commitments from any existing Lender or new Commitments from any other Person selected by the Borrower and approved by the Administrative Agent;
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(d) |
Section 8.06(d) of the Credit Agreement is hereby amended to read as follows: |
(d) the Borrower may repurchase shares of its Capital Stock provided that (i) at the time of any such repurchase and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (ii) the aggregate amount of such repurchases of Capital Stock shall not exceed $125,000,000 during the term of this Agreement.
2. Conditions Precedent. This Agreement shall be effective immediately upon receipt by the Administrative Agent, in form and substance satisfactory to the Administrative Agent, of each of the following:
(a) counterparts of this Agreement duly executed by each of the Borrower, the Guarantors, the Lenders and Bank of America, N.A., as Administrative Agent;
(b) a duly executed copy of a new commitment agreement in form and substance reasonably satisfactory to the Agent;
(c) favorable opinions of general counsel of the Loan Parties and legal counsel to the Loan Parties, addressed to the Administrative Agent and the Lenders, dated as of the First Amendment Effective Date, and in form and substance reasonably satisfactory to the Administrative Agent; and
(d) a certificate of each Loan Party dated as of the First Amendment Effective Date signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the increase in the Aggregate Revolving Commitments, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in Article VI of the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the First Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of Section 2.01(c) of the Credit Agreement, the representations and warranties contained in subsections (a) and (b) of Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01 of the Credit Agreement, and (2) no Default or Event of Default exists.
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3. |
Miscellaneous. |
(a) The Credit Agreement and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms.
(b) Each Guarantor (a) acknowledges and consents to all of the terms and conditions of this Agreement, (b) affirms all of its obligations under the Loan Documents and (c) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Credit Agreement or the other Loan Documents.
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(c) |
The Borrower and the Guarantors hereby represent and warrant as follows: |
(i) Each Loan Party has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered by the Loan Parties and constitutes each of the Loan Parties’ legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforceability may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(iii) No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by any Loan Party of this Agreement.
(d) The Loan Parties represent and warrant to the Lenders that (i) the representations and warranties of the Loan Parties set forth in Article VI of the Credit Agreement and in each other Loan Document are true and correct in all material respects as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier date and (ii) no event has occurred and is continuing which constitutes a Default or an Event of Default.
(e) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be delivered.
(f) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
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BORROWER: |
GEVITY HR, INC., |
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a Florida corporation | |
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By: |
/s/ Xxxx Xxxx |
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Name: |
Xxxx Xxxx |
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Title: |
Chief Executive Officer | ||
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GUARANTORS: |
GEVITY HR, L.P., |
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a Delaware limited partnership | ||
GEVITY HR II, L.P.,
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a Delaware limited partnership |
GEVITY HR III, L.P.,
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a Delaware limited partnership |
GEVITY HR IV, L.P.,
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a Delaware limited partnership |
GEVITY HR V, L.P.,
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a Delaware limited partnership |
GEVITY HR VI, L.P.,
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a Delaware limited partnership |
GEVITY HR VII, L.P.,
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a Delaware limited partnership |
GEVITY HR VIII, L.P.,
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a Delaware limited partnership |
GEVITY HR IX, L.P.,
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a Delaware limited partnership | |
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GEVITY HR X, L.P., |
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a Delaware limited partnership | |
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By: |
Staff Leasing, LLC its General Partner |
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By: /s/ Xxxx Xxxx | ||||
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Name: |
Xxxx Xxxx |
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Title: |
Chief Executive Officer |
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GEVITY HR XI, LLC,
a New Mexico limited liability company
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By: |
/s/ Xxxx Xxxx |
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Name: |
Xxxx Xxxx |
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Title: |
Chief Executive Officer | |||
CHAR1\988704v1
GEVITY HR XII Corp.,
a Florida corporation
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By: |
/s/ Xxxx Xxxx |
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Name: |
Xxxx Xxxx |
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Title: |
Chief Executive Officer | |||
GEVITY XIV, LLC,
a Delaware limited liability company
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By: /s/ Xxxx Xxxx |
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Name: |
Xxxx Xxxx |
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Title: |
Chief Executive Officer | ||
STAFF LEASING, LLC,
a Delaware limited liability company
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By: |
/s/ Xxxx Xxxx |
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Name: |
Xxxx Xxxx |
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Title: |
Chief Executive Officer | |||
GEVITY INSURANCE AGENCY, INC.,
a Delaware corporation
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By: |
/s/ Xxxxx X. Xxxxxxxxx, Xx. |
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Name: |
Xxxxx X. Xxxxxxxxx, Xx. | |||
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Title: |
Secretary |
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CHAR1\988704v1
ADMINISTRATIVE
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AGENT: |
BANK OF AMERICA, N.A., | |
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as Administrative Agent |
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By: |
/s/ Xxxxxxx X. Xxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Senior Vice President | |||
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LENDER: |
BANK OF AMERICA, N.A., | |
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as a Lender and L/C Issuer |
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By: |
/s/ Xxxxxxx X. Xxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Senior Vice President | |||
CHAR1\988704v1
