FIFTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Fifth Amendment") dated as of December 5, 2002, is made 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, February 12, 2001, January 23, 2002, and August 5,
2002, (as at any time further amended, modified, supplemented, extended or
restated from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested and the Lenders have agreed to
amend certain terms of the Credit 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. The Credit Agreement is hereby amended as
follows:
(a) References to "$90,000,000" in the preamble of the Credit
Agreement and in Section 1.1 of the Credit Agreement are hereby deleted
reference to the amount of "$100,000,000" is substituted in lieu thereof.
(b) Section 2.1(a) of the Credit Agreement is hereby deleted in
its entirety and restated as follows:
(a) Interest Rates. All outstanding Obligations shall
bear interest on the unpaid principal amount thereof (including, to the
extent permitted by law, on interest thereon not paid when due) from the
date made until paid in full in cash at a rate as set forth below, but
not to exceed the Maximum Rate. If at any time Loans are outstanding
with respect to which the Borrower has not delivered to the
Administrative Agent a notice specifying the basis for determining the
interest rate applicable thereto in accordance herewith, those Loans
shall bear interest at a rate determined by reference to the Base Rate
until notice to the contrary has been given to the Administrative Agent
in accordance
with this Agreement and such notice has become effective. Except as
otherwise provided herein, the outstanding Obligations shall bear
interest as follows:
(i) For all Base Rate Revolving Loans and other
Obligations (other than LIBOR Revolving Loans) at a fluctuating per
annum rate equal to the Base Rate from the period commencing on the date
of the Fifth Amendment through November 30, 2003 and thereafter at a
fluctuating per annum rate equal to the Base Rate plus the Applicable
Margin;
(ii) For all LIBOR Revolving Loans at a per annum rate
equal to the LIBOR Rate plus 2.25% from the period commencing on the
date of the Fifth Amendment through November 30, 2003 and thereafter at
a fluctuating per annum rate equal to the LIBOR Rate plus the Applicable
Margin.
Each change in the Base Rate shall be reflected in the
interest rate applicable to Base Rate Loans as of the effective date of
such change. All interest charges shall be computed on the actual days
elapsed over a year of 360 days. The Borrower shall pay to the
Administrative Agent, for the ratable benefit of Lenders, interest
accrued on all Base Rate Loans in arrears on the first day of each month
hereafter and on the Termination Date. The Borrower shall pay to the
Administrative Agent, for the ratable benefit of Lenders, interest on
all LIBOR Rate Loans in arrears on each LIBOR Interest Payment Date.
(c) Sections 2.4, 2.5, 2.6 and 2.7 of the Credit Agreement are
hereby deleted in their entirety and restated as follows:
2.4 Closing Fee. The Borrower agrees to pay the
Administrative Agent concurrently with the execution and delivery of the
Fifth Amendment a closing fee in the amount of $250,000 for the account
of the Lenders in accordance with their respective Pro Rata Shares.
2.5 Unused Line Fee. On the first day of each month and
on the Termination Date the Borrower agrees to pay to the Administrative
Agent, for the account of the Lenders, in accordance with their
respective Pro Rata Shares, an unused line fee (the "Unused Line Fee")
equal to three tenths of one percent (0.3%) times the amount by which
the Maximum Revolver Amount exceeded the sum of the average daily
outstanding amount of Revolving Loans and the average daily undrawn face
amount of outstanding Letters of Credit, during the immediately
preceding month or shorter period if calculated for the first month
hereafter or on the Termination Date. The Unused Line Fee shall be
computed on the basis of a 360-day year for the actual number of days
elapsed. All principal payments received by the Administrative Agent
shall be deemed to be credited to the Borrower's Loan Account
immediately upon receipt for purposes of calculating the Unused Line Fee
pursuant to this Section 2.5.
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2.6 Letter of Credit Fee. The Borrower agrees to pay to
the Administrative Agent, for the account of the Lenders, in accordance
with their respective Pro Rata Shares, for each Letter of Credit, a fee
(the "Letter of Credit Fee") equal to two and one half percent (2.5%)
per annum and to Administrative Agent for the benefit of the Letter of
Credit Issuer a fronting fee of one quarter of one percent (0.25%) per
annum of the undrawn face amount of each Letter of Credit, and to the
Letter of Credit Issuer, all out-of-pocket costs, fees and expenses
incurred by the Letter of Credit Issuer in connection with the
application for, processing of, issuance of, or amendment to any Letter
of Credit. The Letter of Credit Fee shall be payable monthly in arrears
on the first day of each month following any month in which a Letter of
Credit is outstanding and on the Termination Date. The Letter of Credit
Fee shall be computed on the basis of a 360-day year for the actual
number of days elapsed.
2.7 Other Fees. The Borrower shall pay to Administrative
Agent other fees as set forth in the Revised Fee Letter.
(d) Section 3.2 of the Credit Agreement is hereby deleted in its
entirety and restated as follows:
3.2 Termination of Facility. The Borrower may terminate
this Agreement upon at least ten (10) Business Days' notice to the
Administrative Agent and the Lenders, upon (a) the payment in full of
all outstanding Revolving Loans, together with accrued interest thereon,
and the cancellation and return of all outstanding Letters of Credit,
(b) the payment in full in cash of all reimbursable expenses and other
Obligations, and (c) with respect to any LIBOR Rate Loans prepaid,
payment of the amounts due under Section 4.4, if any.
(e) Section 3.3 of the Credit Agreement is hereby deleted in its
entirety.
(f) Clause (b) of Section 7.4 of the Credit Agreement is hereby
deleted in its entirety and restated as follows:
(b) Upon reasonable notice as to the Borrower's
principal business offices in Tampa, Florida, and upon no less than 72
hours notice as to any other business locations of the Borrower, each
Credit Party will permit, and will cause each of its Subsidiaries to
permit, representatives appointed by the Administrative Agent,
including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect during normal business
hours its properties, including its books and records, its accounts
receivable, inventory, facilities and other business assets, and to make
photocopies or photographs thereof and to write down and record any
information such representative obtains and shall permit the
Administrative Agent or its representatives to investigate and verify
the accuracy of information provided to the Lenders and to discuss all
such matters with the officers, employees and representatives of such
Person. The Credit Parties agree that the Administrative Agent, and its
representatives, may conduct
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four (4) field examinations of the Collateral each fiscal year of the
Borrower during the term of the Credit Agreement, at the expense of the
Credit Parties; provided, however, if an Event of Default exists, the
Administrative Agent or any Lender may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and
without advance notice.
(g) Sections 7.22, 7.23 and 7.24 of the Credit Agreement are
hereby deleted in their entirety and restated as follows:
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 (i) $1,000,000 during
the Borrower's 2002 Fiscal Year; (ii) $6,000,000 during the Borrower's
2003 Fiscal Year or during any Fiscal Year thereafter.
7.23 EBITDA. The Borrower shall achieve EBITDA, on a
consolidated basis, of not less than the amount indicated as of the last
day of any fiscal quarter in which the Borrower fails to maintain
Availability of at least $15,000,000 (the "Availability Threshold")
unless, after any date on which the Availability Threshold is not
satisfied (any such date being a "Threshold Breach Date"), Borrower
shall have (i) achieved the Availability Threshold within (10) ten days
after such Threshold Breach Date and (ii) continued to maintain the
Availability Threshold thereafter for each of the next 30 days:
Period Ending EBITDA
------------- ------
The fiscal quarter ending December 31, 2002 $500,000
The two (2) fiscal quarters ending March 31, 2003 $1,000,000
The three (3) fiscal quarters ending June 30, 2003 $2,000,000
The four (4) fiscal quarters ending September 30, 2003 $6,000,000
The four (4) fiscal quarters ending December 31, 2003 $9,000,000
The four (4) fiscal quarters ending March 31, 2004 $10,000,000
The four (4) fiscal quarters ending June 30, 2004 $11,500,000
The four (4) fiscal quarters ending September 30, 2004 $12,500,000
The four (4) fiscal quarters ending December 31, 2004 $15,500,000
The four (4) fiscal quarters ending March 31, 2005 $16,000,000
The four (4) fiscal quarters ending June 30, 2005 $17,000,000
The four (4) fiscal quarters ending September 30, 2005 $18,000,000
Unless otherwise indicated, solely for purposes of calculating EBITDA
for the fiscal quarter ending December 31, 2002, the following amounts
shall be added to Adjusted Net Earnings from Operations to the extent
deducted therefrom:
(i) an amount not to exceed $2,700,000 in respect of the
early termination fees
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and related expenses under Genuity data processing contracts;
(ii) the fair market value of marked to market interest
rate swap unwind fees under Hedge Agreements with the Bank in an
aggregate amount not to exceed $650,000;
(iii) asset write-offs arising from the write-down of
the valuation of "Wizard" software in an amount not to exceed $750,000;
(iv) an amount not to exceed $1,500,000 in respect of
employee severance expenses;
(v) non-cash charges arising by reason of changes in
accounting rules, including FASB 142, to the extent such non-cash
charges are required under GAAP and to the extent no future payment
obligations will arise in respect thereto, but in no event shall such
non-cash charges exceed $60,000,000 in the aggregate; and
(vi) non-cash charges related to the write-off of
unexpired leases and amortized or depreciated assets in an aggregate
amount not to exceed $10,000,000; provided that, commencing January 1,
2003 and thereafter, lease obligations due with respect to such
unexpired leases shall be deducted from Net Income in the fiscal period
in which they are due, net of sublease payments actually received by the
Borrower in such period with respect thereto.
7.24 Minimum Availability. The Borrower shall maintain
Availability of not less than $10,000,000 at all times during the term
of this Agreement. In addition to the foregoing, for each of the thirty
(30) days following the funding of (i) a Securities Repurchase Loan or
(ii) an Acquisition Loan, Borrower shall maintain Availability of not
less than $15,000,000; provided, however, that if the Target Asset
Inclusion Conditions are satisfied, assets of the Target shall be
included in the calculation of Availability for purposes of clause (ii)
hereof.
(i) Clause (vi) of Section 14.7 of the Credit Agreement is
hereby deleted in its entirety and restated as follows:
(vi) costs of appraisals, inspections, and verifications of the
Collateral, including travel, lodging, and meals for inspections of the
Collateral and the Borrower's operations by the Administrative Agent
plus the Administrative Agent's then customary charge for field
examinations and audits and the preparation of reports thereof as set
forth in the Revised Fee Letter;
(j) by deleting the definition of "Acquisition Loan Conditions"
set forth in Annex A to the Credit Agreement and by restating such definition as
follows, and, if the following provisions are inconsistent with any provision in
any prior amendment to the Credit Agreement with respect to the subject matter
hereof, the provision contained hereinafter shall govern and control:
"Acquisition Loan Conditions" means in respect of each
request for an Acquisition Loan, each of the following:
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(i) The Borrower shall have given Administrative
Agent 15 days' prior notice of its intent to request an
Acquisition Loan, which notice shall include pro-formas
contemplating the proposed Acquisition prepared in a
form and using methodologies reasonably acceptable to
Administrative Agent;
(ii) No Default or Event of Default exists and
no Default or Event of Default would exist after giving
effect to the proposed Acquisition Loan;
(iii) Immediately after the funding of the
requested Acquisition Loan the Borrower shall have not
less than $15,000,000 of Availability (based on
pro-formas delivered to the Administrative Agent and
prepared by the Borrower giving effect to the proposed
Acquisition); provided, that no assets of the Target
shall be included in the calculation of Availability for
purposes of this clause (iii) unless each of the Target
Asset Inclusion Conditions have been satisfied;
(iv) The Accounts Turnover shall be 60 days or
less for the 90 day period ending on the proposed
funding date; and
(v) The proposed Acquisition is an Eligible
Acquisition.
(k) by deleting the definition of "Applicable Margin" set forth
in Annex A to the Credit Agreement and by restating such definition as follows:
"Applicable Margin" means
(i) with respect to Base Rate Revolving Loans and all other
Obligations (other than LIBOR Rate Loans), -0-%; and
(ii) with respect to LIBOR Revolving Loans, 2.25%.
Commencing on December 1, 2003, the foregoing Applicable Margins
shall be adjusted (up or down) prospectively on a quarterly basis as
determined by the Borrower's consolidated financial performance with
respect to the Borrower's quarterly Financial Statements for the fiscal
quarter ending September 30, 2003, and thereafter on the first day of
the first calendar month that occurs more than 5 days after delivery of
the Borrower's quarterly Financial Statements to Lenders, in each case
based on Borrower's consolidated financial performance for the four (4)
fiscal quarters then ending. Adjustments in Applicable Margins shall be
determined by reference to the following grids:
------------------ ----------------- ---------------
IF FUNDED DEBT TO APPLICABLE MARGIN APPLICABLE
EBITDA IS FOR MARGIN FOR
LIBOR RATE LOANS BASE RATE LOANS
------------------ ----------------- ---------------
> 3.0X 300 bps 75 bps
-
-----------------------------------------------------------
> 2.5X but < 3.0X 275 bps 50 bps
-
-----------------------------------------------------------
> 2.0X but < 2.5X 250 bps 25 bps
-
-----------------------------------------------------------
> 1.5X but < 2.0X 225 bps 0 bps
-
-----------------------------------------------------------
> 1.0X but < 1.5X 200 bps 0 bps
-
-----------------------------------------------------------
< 1.0X 175 bps 0 bps
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All adjustments in the Applicable Margins after December 1,
2003, shall be implemented quarterly on a prospective basis, for each
calendar month commencing at least 5 days after the date of delivery
to the Lenders of quarterly unaudited or annual audited (as
applicable) Financial Statements evidencing the need for an
adjustment. Concurrently with the delivery of those Financial
Statements, the Borrower shall deliver to the Administrative Agent and
the Lenders a certificate, signed by its chief financial officer,
setting forth in reasonable detail the basis for the continuance of,
or any change in, the Applicable Margins. Failure to timely deliver
such Financial Statements shall, in addition to any other remedy
provided for in this Agreement, result in an increase in the
Applicable Margins to the highest level set forth in the foregoing
grid, until the first day of the first calendar month following the
delivery of those Financial Statements demonstrating that such an
increase is not required. If a Default or Event of Default has
occurred and is continuing at the time any reduction in the Applicable
Margins is to be implemented, no reduction may occur until the first
day of the first calendar month following the date on which such
Default or Event of Default is waived or cured. Solely for purposes of
calculating EBITDA hereunder, the special adjustments for the
Borrower's fiscal quarter ending December 31, 2002, contemplated in
clause (v) of Section 7.23 of the Credit Agreement shall not be given
effect hereunder for purposes of calculating the Applicable Margin at
any date.
(l) by deleting the definition of "Borrowing Base" set forth
in Annex A to the Credit Agreement and by restating such definition as follows:
"Borrowing Base" means, at any time, an amount equal
to (a) the sum of (A) eighty-five percent (85%) of the Net Amount of
Eligible Accounts; plus (B) the lesser of (i) eighty percent (80%) of
the Net Amount of Eligible Non-Invoiced Accounts or (ii) 35% of the
aggregate amount of Eligible Accounts and Eligible Non-Invoiced
Accounts (as measured as of the last day of the most recent fiscal
quarter of the Borrower and as of the date of the funding of any
Acquisition Loan, whichever occurred most recently) minus (b) Reserves
from time to time established by the Administrative Agent in its
reasonable credit judgment.
(m) by deleting clause (a) of the definition of "Eligible
Acquisition" and restating such Subsection as follows:
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(a) if such Acquisition involves the purchase of
stock or other ownership interests, (i) the acquired Person shall be
organized and existing under the laws of, and shall have its primary
place of business located in, a state of the United States, and (ii)
if such Acquisition shall be effected by merger, then the Borrower
shall be the surviving entity;
(n) by deleting the definition of "Maximum Revolver Amount"
set forth in Annex A to the Credit Agreement and by restating such definition as
follows:
"Maximum Revolver Amount" means $100,000,000.00.
(o) by deleting the definition of "Required Lenders" set forth
in Annex A to the Credit Agreement and by restating such definition as follows:
"Required Lenders" means at any time Lenders whose
Pro Rata Shares aggregate to 64% or more.
(p) by deleting the definition of "Securities Repurchase Loan
Conditions" set forth in Annex A to the Credit Agreement and by restating such
definition as follows:
"Securities Repurchase Loan Conditions" means in
respect of each request for any Securities Repurchase Loan, each of the
following:
(i) The Borrower shall give Administrative
Agent written notice of a request for a Securities
Repurchase Loan and, concurrently therewith written
confirmation that each of the Securities Repurchase
Loan Conditions has been satisfied;
(ii) No Default or Event of Default exists,
and no Default or Event of Default would exist after
giving effect to the proposed Securities Repurchase
Loan;
(iii) Immediately after the funding of the
requested Securities Repurchase Loan, the Borrower
shall have not less than $15,000,000 of Availability;
and
(iv) The Capital Stock to be repurchased by
the Borrower with the proceeds of the requested
Securities Repurchase Loan shall constitute an
Eligible Securities Repurchase; provided, however,
that the proceeds of a Securities Repurchase Loan may
be used to purchase Capital Stock owned by Xxxxx X.
Xxxxxx to the extent that it is for the market price
as of the date of the purchase, the Administrative
Agent is given notice that a Securities Repurchase
Loan is being used for such purposes and such loan
otherwise constitutes an Eligible Securities
Repurchase.
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(q) by deleting the definition of "Stated Termination Date"
set forth in Annex A to the Credit Agreement and by restating such definition as
follows:
"Stated Termination Date" means November 3, 2005.
(r) by deleting the definition of "Unused Letter of Credit
Subfacility" set forth in Annex A to the Credit Agreement and by restating such
definition as follows:
"Unused Letter of Credit Subfacility" means an amount
equal to $7,500,000 minus the sum of (a) the aggregate undrawn amount
of all outstanding Letters of Credit plus, without duplication, (b)
the aggregate unpaid reimbursement obligations with respect to all
Letters of Credit.
(s) by deleting Schedule 1.2 to the Credit Agreement and by
replacing such schedule with Schedule 1.2 attached to this Fifth Amendment.
(t) by adding the following new definitions to Annex A to the
Credit Agreement in the proper alphabetical sequence:
"Accounts Turnover" means, in respect of any
applicable 90 day period, a number determined by (a) dividing (i) the
number equal to the Borrower's actual sales and billed expenses for
such period times four (4), by (ii) the average unpaid balance of all
billed Accounts (exclusive of Accounts that have been charged-off or
otherwise reserved against income) during such period, and (b)
dividing the quotient of the foregoing into 365.
"Fifth Amendment" means the Fifth Amendment to
Amended and Restated Credit Agreement, dated as of December 5, 2002,
among the Borrower, the Subsidiary Guarantors, the Lenders and the
Administrative Agent.
"Revised Fee Letter" means the letter from
Administrative Agent to Borrower, dated as of December 5, 2002, setting
forth certain fees and charges payable in connection with the credit
facilities contemplated under this Agreement.
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"Target" means any Person whose capital stock or
assets are acquired by the Borrower in an Eligible Acquisition.
"Target Asset Inclusion Conditions" mean each of the
following:
(i) Administrative Agent shall have completed
field examinations and/or appraisals of the Target
and its assets with results that are reasonably
acceptable to Administrative Agent and Lenders;
(ii) the advance rates applicable to
Eligible Accounts are deemed by Administrative Agent
to be reasonable and appropriate in respect of
Accounts of the Target; and
(iii) Administrative Agent has established
such Reserves with respect to the Target and/or its
assets as it deems appropriate in its reasonable
credit judgment.
2. Funding of Payroll and Other Direct Deposit Accounts. For so long as
no Default or Event of Default exists, Administrative Agent shall not, nor shall
it require the Borrower, to fund the Borrower's payroll or other direct deposit
accounts sooner than the Business Day on which funds are to be actually
disbursed to the payees of such direct deposit accounts.
3. Schedule of Unexpired Leases. On or before January 30, 2003, the
Borrower shall deliver to the Administrative Agent a schedule of all unexpired
leases the expenses for which were accelerated as of the close of the Borrower's
2002 fiscal year and a schedule of all remaining lease payments payable with
respect to such unexpired leases on a month-by-month basis.
4. Change of Address. For purposes of Section 14.8 of the Credit
Agreement and all other applicable provisions of the Credit Agreement or any of
the other Loan Documents, the Borrower's address and the address for purposes of
notifications to any Credit Party under the Credit Agreement or any Loan
Document shall be as follows:
Kforce Inc.
0000 Xxxx Xxxx Xxxxxx
0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
5. Conditions Precedent. The effectiveness of this Fifth Amendment is
subject to the satisfaction of each of the following conditions (in form and
substance satisfactory to the Administrative Agent):
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(a) The Administrative Agent shall have received executed
counterparts of this Fifth Amendment duly executed by the Credit
Parties, the Administrative Agent and the Lenders; and
(b) The CIT Group/Business Credit, Inc. shall have agreed to
purchase and hold not less than $20,000,000 of the Revolving Loan
Commitments;
(c) PNC Business Credit, Inc. shall have agreed to purchase
and hold not less than $12,500,000 of the Revolving Loan Commitments;
(d) Standard Federal Bank National Association, as successor
in interest to Mellon Bank, N.A. shall executed and delivered to the
Administrative Agent the "Acknowledgement" attached hereto;
(e) The Administrative Agent shall have received such
additional agreements, certificates or documents as it may reasonably
request in connection with this Fifth Amendment.
6. Consent and Agreement of Lenders and New Lenders. Subject to the
provisions of Section 5 above, (a) the Lenders hereby (i) consent to the
non-ratable repayment by the Borrower to Standard Federal Bank National
Association, as successor in interest to Mellon Bank, N.A. ("Standard") of all
amounts owing to Standard under the Credit Agreement as set forth on the "Payoff
Schedule" attached hereto and Standard shall thereupon cease to be a Lender
under the Credit Agreement and shall have no further rights, duties or
obligations thereunder and (ii) agree that upon the date of satisfaction of the
conditions to the effectiveness of this Fifth Amendment (the "Effective Date")
the Lenders identified as "New Lenders" on the signature pages hereof shall be
deemed "Lenders" party to this Agreement and the Credit Agreement with the
respective Revolving Loan Commitments set forth in Schedule 1.2 attached hereto,
and (b) the Lenders and the New Lenders hereby agree that they will make to the
Administrative Agent (or accept from the Administrative Agent) such payments as
are set forth on Exhibit A as are required to result in each Lender and each New
Lender having its Pro Rata Share of the outstanding Revolving Loans as of the
Effective Date in accordance with their respective Revolving Loan Commitments as
reflected on Schedule 1.2.
7. 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 hereby
waived, relinquished and released in consideration of the Lenders' execution and
delivery of this Fifth Amendment.
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8. Guarantor Acknowledgments. The Guarantors (i) acknowledge and
consent to all of the terms and conditions of this Fifth Amendment, (ii) affirm
all of their obligations under the Loan Documents and (iii) agree that this
Fifth 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.
9. 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 Fifth
Amendment.
(ii) This Fifth 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 Fifth Amendment.
10. No Novation; Etc. 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. This
Fifth Amendment is not intended to be, nor shall it be construed to create, a
novation or accord and satisfaction, and the Credit Agreement and the other Loan
Documents as herein modified shall continue in full force and effect.
11. Counterparts. This Fifth 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 Fifth Amendment
to produce or account for more than one such counterpart.
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12. Governing Law. This Fifth 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.
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Fifth Amendment to be duly executed and delivered as of the date first
above written.
BORROWER: KFORCE INC., formerly known as XXXXXX.XXX, INC.,
a Florida corporation
By: /s/ Xxxx Xxxxxxxx
------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
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GUARANTORS: KFORCE AIRLINES, INC., a Florida corporation
By: /s/ Xxxx Xxxxxxxx
------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
ROMAC INTERNATIONAL, INC., a Florida corporation
By: /s/ Xxxx Xxxxxxxx
------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
XXXXXX.XXX, INC., formerly known as Kforce, Inc.
By: /s/ Xxxx Xxxxxxxx
------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
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AGENT: BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxx Xxxxxxx
--------------------
Name: Xxxx Xxxxxxx
Title: Vice President
LENDERS: BANK OF AMERICA, N.A., individually in its capacity
as a Lender
By: /s/ Xxxx Xxxxxxx
--------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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LENDER: FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
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XXX XXXXXX: THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxx Xxxxxxx
-------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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NEW LENDER: PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE 1.2
COMMITMENTS
Revolving Loan Pro Rata Share
Lender Commitment (3 decimals)
------ ---------- ------------
Bank of America, N.A. $35,000,000 35%
Fleet Capital Corporation $32,500,000 32.5%
The CIT Group/ $20,000,000 20%
Business Credit, Inc.
PNC Bank $12,500,000 12.5%
National Association
Total $100,000,000 100%
----
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EXHIBIT A
Net payments from (to) Lenders and New Lenders on the
Effective Date (December 6, 2002):
Bank of America, N.A. ($4,504,160.56)
Fleet Capital Corporation $1,027,627.90
The CIT Group/Business Credit, Inc. $4,400,000.00
PNC Bank, National Association. $2,750,000.00
-20-
Acknowledgement of Standard:
The undersigned, Standard Federal Bank National Association, as
successor in interest to Mellon Bank, N.A. ("Standard"), acknowledges receipt of
the foregoing Fifth Amendment, confirms that the payoff amounts set forth on
Payoff Schedule attached hereto are correct and complete, and that from and
after receipt by Standard of the amount set forth opposite the heading "Total
Payoff Amount to Standard" reflected on the Payoff Schedule, it shall have no
further rights, duties or obligations under the Credit Agreement.
IN WITNESS WHEREOF, Standard has caused this Acknowledgment to be
executed and delivered by its duly authorized officers as of the date first
written above.
STANDARD FEDERAL BANK NATIONAL
ASSOCIATION, formerly known as
MICHIGAN NATIONAL BANK, as successor
in interest to Mellon Bank, N.A.
By: LaSALLE BUSINESS CREDIT, INC., Its agent
By: /s/ Xxxxx X. Xxxxx
--------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
-21-
PAYOFF SCHEDULE
Payments to Standard:
Principal Balance of Revolving Loans (as of 12/6/02) $3,673,467.34
Accrued Interest on Revolving Loans (to 12/6/02) $2,406.52
Letter of Credit Fees (to 12/6/02) $212.26
Unused Line Fees (to 12/6/02) $748.86
Total Payoff Amount to Standard (as of 12/6/02) $3,676,834.98
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