EXHIBIT 4.6
JANUARY 23, 2002
THIRD AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT AND SECOND AMENDMENT TO SECURITY AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
SECOND AMENDMENT TO SECURITY AGREEMENT (this "Amendment") dated as of January 1,
2002, is by and among Kforce Inc., formerly known as xxxxxx.xxx, Inc., a Florida
corporation (the "Borrower"), the Subsidiary Guarantors, the Lenders identified
on the signature pages hereof and Bank of America, N.A., as Administrative Agent
for the Lenders (in such capacity, the "Administrative Agent"). Terms used
herein but not otherwise defined herein shall have the meanings provided to such
terms in the Credit Agreement (as hereinafter defined).
W I T N E S S E T H
WHEREAS, the Borrower, the Subsidiary Guarantors, the Lenders and Bank
of America, N.A., in its capacity as Administrative Agent, are parties to that
certain Amended and Restated Credit Agreement dated as of November 3, 2000, as
amended December 10, 2000 and February 12, 2001 (as at any time further amended,
modified, supplemented, extended or restated from time to time, the "Credit
Agreement"); and
WHEREAS, the Borrower, the Subsidiary Guarantors, the Lenders and Bank
of America, N.A., in its capacity as Administrative Agent, are parties to that
certain Security Agreement dated as of November 3, 2000, as amended December 10,
2000 (as at any time further amended, modified, supplemented, extended or
restated from time to time, the "Security Agreement"); and
WHEREAS, the Borrower has requested and the Lenders have agreed to
amend certain terms of the Credit Agreement and the Security Agreement as set
forth herein;
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. Amendments to Credit Agreement. The Credit Agreement
is hereby amended:
(a) effective as of November 30, 2001, by deleting Section 7.22
thereof and by substituting in lieu thereof the following:
7.22 Capital Expenditures. No Credit Party shall
make or incur any Capital Expenditure if, after giving effect thereto,
the aggregate amount of all Capital Expenditures by the Borrower and
its Subsidiaries on a consolidated basis would exceed
$10,000,000 during their 2001 Fiscal Year and $6,000,000 during any
Fiscal Year thereafter.
(b) by deleting Section 7.24 thereof and by substituting in lieu
thereof the following
7.24 Minimum Availability. The Borrower shall maintain
Availability of not less than $15,000,000 at any time during the term
of this Agreement; provided, however, that the foregoing shall be
subject to the adjustments contemplated by Section 4(e) of the Security
Agreement.
2. Borrower and Subsidiary Guarantor Name Changes. Borrower
represents, warrants and agrees that (i) attached hereto as Exhibit A is an
accurate and complete copy of all amendments of its Articles of Incorporation
filed with the Florida Secretary of State and all other jurisdictions in which
Borrower is qualified to do business as of the date hereof, (ii) as of the date
hereof the correct corporate name of Borrower is "Kforce Inc."; (iii) all
references to "xxxxxx.xxx, Inc." in the Credit Agreement or in any of the other
Loan Documents shall be deemed to be references to "Kforce Inc."; (iv) as of
the date hereof the correct corporate name of the Subsidiary Guarantor formerly
known as "Kforce, Inc." is "xxxxxx.xxx, Inc."; (v) all references to "Kforce,
Inc." in the Credit Agreement or in any of the other Loan Documents shall be
deemed to be references to "xxxxxx.xxx, Inc."; (vi) Borrower shall cause its
insurance carrier to issue to Agent a certificate of insurance (complying in
all material respects with the requirements under Section 7.5 of the Credit
Agreement) reflecting the current, correct corporate name of Borrower and each
Subsidiary Guarantor. Borrower and the Subsidiary Guarantors shall execute and
deliver such additional agreements, documents and financing statements as Agent
may reasonably request in connection with such change in the corporate name of
Borrower and any Subsidiary Guarantor.
3. Amendment to Security Agreement. The Security Agreement is
hereby amended by deleting Section 4(e) thereof and by substituting in lieu
thereof the following:
(e) All payments including immediately available funds
received by the Administrative Agent at a bank account designated by it, will
be the Administrative Agent's sole property for its benefit and the benefit of
the Lenders and will be credited to the Loan Account (conditional upon final
collection) pursuant to Section 3.6(a) of the Credit Agreement; provided,
however, that such payments received prior to 2:00 p.m. (Atlanta, Georgia time)
shall be deemed to be credited to the Loan Account upon receipt for purposes of
(i) calculating the Unused Line Fee pursuant to Section 2.5 of the Credit
Agreement, and (ii) calculating the amount of interest accrued thereon. Until
otherwise notified by the Administrative Agent in writing, such payments shall
not be applied against the amount due in respect of Eligible Accounts for
purposes of determining Availability from time to time. In the event that the
Administrative Agent elects to deduct such payments upon receipt for purposes
of calculating Availability, the Administrative Agent shall give to the
Borrower ten (10) days' prior written notice of such election and, thereafter,
the minimum Availability for purposes of Section 7.24 of
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the Credit Agreement shall be reduced to the amount of $10,000,000 at
all times after the effective date of such election.
4. Sale and Acquisition of Certain Persons. (a) The Borrower has
informed Agent that:
(i) all or substantially all of the assets of Romac International of
Canada, Inc. were sold on or about June 1, 2001.
(ii) all or substantially all of the assets of the Kforce Educational
Services Division of the Borrower may be sold and its business operations
terminated (the "Education Services Divestiture Transaction") pursuant to the
terms of an Asset Purchase Agreement, dated as of December 31, 2001
("Education Services Purchase Agreement").
(iii) all or substantially all of the assets of the Kforce Legal
Division of the Borrower may be sold and its business operations terminated in
exchange for, among other things, the acquisition by Kforce Merger Corporation,
a Florida corporation and wholly-owned Subsidiary of the Borrower ("Kforce
Merger"), of all of the assets of the Scientific Staffing, Inc. (the "Legal
Division/Scientific Staffing Transaction") pursuant to the terms of an Asset
Purchase Agreement, dated as of December 10, 2001 ("Legal Division/Scientific
Staffing Purchase Agreement").
(iv) the Borrower intends to merge Emergency Response Staffing Inc., an
Arizona corporation ("Target"), and Kforce Merger, on or about January 1, 2002
(the "Emergency Response Merger Transaction"), with Kforce Merger as the
surviving corporation and a wholly-owned subsidiary of the Borrower, pursuant to
the terms of an Agreement and Plan of Merger, dated as of December 3, 2001
("Emergency Response Merger Agreement") and immediately thereafter merge Kforce
Merger and the Borrower with the Borrower the surviving corporation.
(v) On or about December 27, 2001, the Borrower merged its subsidiary
Romac of Texas, Inc., into xxxxxx.xxx USA, Inc. and on or about December 31,
2001, dissolved xxxxxx.xxx USA, Inc., and distributed its assets and
liabilities to the Borrower and on or about December 31, 2001, Romac of Texas
I, L.P. and Ybor HQI, Inc. were dissolved and their respective assets and
liabilities distributed to the Borrower (collectively, the "Subsidiary
Liquidation Transactions").
(b) (i) Effective as of June 1, 2001, the Administrative Agent hereby
consents to the sale contemplated in clause (a)(i) above; (ii) effective as of
November 30, 2001, the Administrative Agent consents to the Education Services
Divestiture Transaction to the extent consummated substantially in accordance
with the terms and provisions of the 12/26/01 draft of the Education Services
Purchase Agreement and consents to the release of its Liens in and to the
Acquired Assets (as defined in the Education Services Purchase Agreement);
(iii) effective as of November 30, 2001, the Administrative Agent consents to
the Legal Division/Scientific Staffing Transaction to the extent consummated
substantially in accordance with the terms and provisions of the Legal
Division/Scientific Staffing Purchase Agreement and consents to the release of
its
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Liens in and to the Legal Division Assets (as defined in the Legal
Division/Scientific Staffing Purchase Agreement); (iv) effective as of November
30, 2001, the Administrative Agent consents to the Emergency Response Merger
Transaction to the extent consummated substantially in accordance with the
terms and provisions of the Emergency Response Merger Agreement; and (v)
effective as of December 31, 2001, the Administrative Agent consents to the
Subsidiary Liquidation Transactions to the extent consummated substantially in
accordance with the terms and provisions of the [Subsidiary Merger
Plan/Agreement].
5. Acquisition Loan Limits. The Borrower has obtained Revolving
Loans the proceeds of which have been used for Eligible Acquisitions in the
aggregate amount of $5,122,836 as of the date hereof. The Administrative Agent
hereby consents the Borrower's obtaining such Acquisition Loans in excess of the
$5,000,000 limitation set for in the Credit Agreement. The Borrower acknowledges
and agrees that from and after the date hereof it shall not be entitled to
request any additional Acquisition Loans or otherwise utilize the proceeds of
Revolving Loans for Eligible Acquisitions without the prior written consent of
the Administrative Agent and the Required Lenders.
6. Amendment Fee. Concurrently with its execution and delivery
of this Amendment, the Borrower shall pay to the Administrative Agent, for the
pro rata benefit of the Lenders, an amendment fee in the amount of $37,500.
7. Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions (in form and
substance satisfactory to the Administrative Agent):
(i) The Administrative Agent shall have received
executed counterparts of this Amendment together with all exhibits and
schedules referenced therein, duly executed by the Credit Parties, the
Administrative Agent and the Lenders;
(ii) The Administrative Agent shall have received the
amendment fee referenced in Section 7 of this Amendment; and
(iii) The Administrative Agent shall have received such
additional agreements, certificates or documents as it may reasonably
request in connection with this Amendment.
8. Representations and Warranties. The Borrower and the
Guarantors represent and warrant to the Administrative Agent and the Lenders
that (i) the representations and warranties of the Credit Parties set out in
Article 6 of the Credit Agreement are true and correct as of the date hereof
(except those which expressly relate to an earlier period), (ii) no event has
occurred and is continuing which constitutes a Default or Event of Default and
(iii) no Credit Party has any counterclaims, offsets, credits or defenses to the
Loan Documents and the performance of its obligations thereunder, or if any
Credit Party has any such claims, counterclaims, offsets, credits or defenses to
the Loan Documents or any transaction related to the Loan Documents, same are
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hereby waived, relinquished and released in consideration of Lenders' execution
and delivery of this Amendment.
9. Guarantor Acknowledgements. The Guarantors (i) acknowledge and
consent to all of the terms and conditions of this Amendment, (ii) affirm all
of their obligations under the Loan Documents and (iii) agree that this
Amendment and all documents executed in connection herewith do not operate to
reduce or discharge the Guarantors' obligations under Article 13 of the Credit
Agreement or the other Loan Documents.
10. Authorization. The Borrower and the Guarantors hereby represent
and warrant to the Administrative Agent and the Lenders as follows:
(i) Each Credit Party has taken all necessary action to authorize
the execution, delivery and performance of this Amendment.
(ii) This Amendment has been duly executed and delivered by the
Credit Parties and constitutes each of the Credit Parties' legal, valid and
binding obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors' rights generally and (ii) 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 Credit Party of this Amendment.
11. Effect of this Amendment. Except as modified hereby, all of the
terms and provisions of the Credit Agreement (including Schedules and Exhibits)
and the other Loan Documents, and the obligations of the Credit Parties under
the Credit Agreement and the other Loan Documents, are hereby ratified and
confirmed and shall remain in full force and effect.
12. Counterparts; Etc. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
13. Governing Law. This Amendment shall be deemed to be a contract
made under, and for all purposes shall be construed in accordance with, the
laws of the State of Georgia.
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WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: KFORCEINC., formerly know as XXXXXX.XXX,
INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Assistant Secretary
GUARANTORS: KFORCE AIRLINES, INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Assistant Secretary
ROMAC INTERNATIONAL, INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Secretary
XXXXXX.XXX, INC., formerly known as Kforce, Inc.
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Secretary
AGENT: BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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LENDERS: BANK OF AMERICA, N.A., individually in its
capacity as a Lender
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
FLEET CAPITAL CORPORATION
By:
------------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
LASALLE BANK, N.A.
By:
------------------------------------------
Name:
----------------------------------------
Title: Vice President
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AUTHORIZATION CERTIFICATE
The undersigned, being the Secretary of KFORCE INC., formerly known as
XXXXXX.XXX, INC., a Florida corporation (the "Borrower"), hereby gives this
certificate to induce the lenders (collectively, "Lenders") party from time to
time to a certain Amended and Restated Credit Agreement, dated November 3,
2000 (as at any time amended, the "Credit Agreement"), among Borrower, certain
affiliates of Borrower, Lenders and BANK OF AMERICA, N.A., a national banking
association, as collateral and administrative agent for itself and Lenders
(together with its successors in such capacity, "Agent"), to enter into certain
amendments to the Credit Agreement.
The undersigned hereby certifies that, to the best of his knowledge,
information and belief:
(1) He is the Secretary of the Borrower and the Subsidiary
Guarantors (as defined in the Credit Agreement);
(2) The Borrower and each of the Subsidiary Guarantors is a
corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation, with full power and authority to
execute and deliver and to carry out and perform its obligations under the
Credit Agreement; and
(3) Xxxxxx Xxxxx is the Assistant Secretary of the Borrower and
each of the Subsidiary Guarantors and each is duly elected, qualified to act on
behalf of the Borrower and the Subsidiary Guarantors as such;
(4) The Third Amendment to Amended and Restated Credit Agreement
and Second Amendment to Security Agreement, dated as of January 1, 2002, has
been duly authorized, executed and delivered by and on behalf of the Borrower
and the Subsidiary Guarantors party thereto.
IN WITNESS WHEREOF, the undersigned has set his hand as of
January 1, 2002.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
Secretary
STATE OF GEORGIA
COUNTY OF XXXXXX
AFFIDAVIT REGARDING EXECUTION AND DELIVERY OF CREDIT DOCUMENTS
I HEREBY CERTIFY that on this day before me, the undersigned notary
public authorized to administer oaths and take acknowledgments in the state and
county aforesaid, personally appeared Xxxxxx Xxxxx (the "Affiant"), who, being
by me first duly sworn, stated under oath:
1. Affiant is the Assistant Secretary and Treasurer of Kforce
Inc., formerly known as xxxxxx.xxx, Inc. (the "Borrower") and the Subsidiary
Guarantors and has personal knowledge of the facts stated herein.
2. Affiant has on the date hereof in Xxxxxx County, Georgia,
executed that certain Third Amendment to Amended and Restated Credit Agreement,
dated on or about the date hereof (the "Amendment"), by and among Borrower, the
Subsidiary Guarantors, the Lenders from time to time party thereto and Bank of
America, N.A., as administrative agent (in such capacity, the "Administrative
Agent") Capitalized terms used herein, unless otherwise defined, have the
meanings provided in the Amendment.
3. Affiant has on the date hereof in Xxxxxx County, Georgia,
executed the Amendment on behalf of each Credit Party thereto and delivered the
Amendment to the Administrative Agent in Xxxxxx County, Georgia.
Dated: January 23, 2002
/s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Sworn to and subscribed before me
this 23rd day of January, 2002.
/s/ Xxxxx X. Xxxxxxx
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Notary Public
Print Name: Xxxxx X. Xxxxxxx
-------------------------
My Commission Expires:
Notary Public, DeKalb County, Georgia
My Commission Expires June 7, 0000
XXXXX XX XXXXXXX )
)
COUNTY OF XXXXXX )
AFFIDAVIT REGARDING EXECUTION AND DELIVERY OF CREDIT DOCUMENTS
I HEREBY CERTIFY that on this day before me, the undersigned notary
public authorized to administer oaths and take acknowledgments in the state and
county aforesaid, personally appeared Xxxx Xxxxxxx of Georgia (the "Affiant"),
who, being by me first duly sworn, stated under oath:
1. Affiant is a Vice President of Bank of America, N.A. and has
personal knowledge of the facts stated herein.
2. Affiant has on the date hereof in Xxxxxx County, Georgia,
executed that certain Third Amendment to Amended and Restated Credit Agreement
and Security Agreement dated as of January 1, 2002 (the "Amendment"), by and
among Kforce Inc., formerly known as xxxxxx.xxx, Inc. (the "Borrower"), the
Subsidiary Guarantors, the Lenders from time to time party thereto and Bank of
America, N.A., as administrative agent (in such capacity, the "Administrative
Agent"). Capitalized terms used herein, unless otherwise defined, have the
meanings provided in the Amendment.
3. Affiant has on the date hereof in Xxxxxx County, Georgia,
witnessed the execution, by each Credit Party thereto of the Amendment.
4. The Amendment was executed on behalf of the Borrower and Bank
of America, N.A., as a Lender and in its capacity as Administrative Agent and
was delivered to the Affiant in Xxxxxx County, Georgia.
Dated: January 23, 2002
/s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Sworn to and subscribed before me
this 23rd day of January, 2002.
/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Notary Public
Print Name: Xxxxx X. Xxxxxxx
My Commission Expires:
Notary Public, DeKalb County, Georgia
My Commission Expires June 7, 2005
