EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 4 TO
REVOLVING CREDIT AND SECURITY AGREEMENT
among
CIT SOUTHEAST, INC.,
UNIFORCE SERVICES, INC.,
BRENTWOOD OF CANADA, INC.,
BRENTWOOD SERVICE GROUP, INC.,
CLINICAL LABFORCE OF AMERICA, INC.,
COMFORCE INFORMATION TECHNOLOGIES, INC.,
COMFORCE TECHNICAL, LLC,
COMFORCE TECHNICAL SERVICES, INC.,
COMFORCE TELECOM, INC.,
CTS OF WASHINGTON, LLC,
XXXXX X., INC.,
LABFORCE SERVICES OF AMERICA, INC.,
PRO CLINICAL SUPPORT SERVICES, LLC,
PRO UNLIMITED, INC.,
PRO UNLIMITED MPS, INC.,
TEMPORARY HELP INDUSTRY SERVICING COMPANY, INC.,
UNIFORCE STAFFING SERVICES, INC.,
SUMTEC CORPORATION,
THISCO OF CANADA, INC.
(as Borrowers)
and
COMFORCE OPERATING, INC.
(as Borrowing Agent)
and
COMFORCE CORPORATION
(as Guarantor)
and
PNC BANK, NATIONAL ASSOCIATION
(as Administrative Agent and Lender)
and
THE OTHER LENDERS PARTY HERETO
as of May 13, 2005
AMENDMENT NO. 4 TO
REVOLVING CREDIT AND SECURITY AGREEMENT
This Amendment No. 4 to Revolving Credit and Security Agreement (this
"Amendment") is entered into as of May 13, 2005, by and among COMFORCE
Operating, Inc., a corporation organized under the laws of the State of Delaware
("COI"), CIT Southeast, Inc., a corporation organized under the laws of the
State of New York ("CIT Southeast"), Uniforce Services, Inc., a corporation
organized under the laws of the State of New York ("USI"), Brentwood of Canada,
Inc., a corporation organized under the laws of the State of New York ("BOCI"),
Brentwood Service Group, Inc., a corporation organized under the laws of the
State of New York ("Brentwood"), Clinical Labforce of America, Inc., a
corporation organized under the laws of the State of New York ("CLOA"), COMFORCE
Information Technologies, Inc., a corporation organized under the laws of the
State of New York ("CIT"), COMFORCE Technical, LLC, a limited liability company
organized under the laws of the State of New York ("CTLLC"), COMFORCE Technical
Services, Inc., a corporation organized under the laws of the State of Delaware
("CTS"), COMFORCE Telecom, Inc., a corporation organized under the laws of the
State of Delaware ("CTI"), CTS of Washington, LLC, a limited liability company
formed under the laws of the State of New York ("CTSLLC"), Xxxxx X., Inc., a
corporation organized under the laws of the State of New York ("Xxxxx"),
Labforce Services of America, Inc., a corporation organized under the laws of
the State of New York ("LSOA"), PrO Clinical Support Services, LLC, a limited
liability company organized under the laws of the State of New York ("PCSS"),
PrO Unlimited, Inc., a corporation organized under the laws of the State of New
York ("PUI"), PrO Unlimited MPS, Inc., a corporation organized under the laws of
the State of New York ("PUMPS"), Temporary Help Industry Servicing Company,
Inc., a corporation organized under the laws of the State of New York
("THISCI"), Uniforce Staffing Services, Inc., a corporation organized under the
laws of the State of New York ("USSI"), Sumtec Corporation, a corporation
organized under the laws of the State of Delaware ("Sumtec"), Thisco of Canada,
Inc., a corporation organized under the laws of the State of New York ("Thisco")
(CIT Southeast, USI, BOCI, Brentwood, CLOA, CIT, CTLLC, CTS, CTI, CTSLLC, Xxxxx,
LSOA, PCSS, PUI, PUMPS, THISCI, USSI, Sumtec and Thisco, collectively, the
"Borrowers"), Comforce Corporation, a Delaware corporation, as guarantor
("Corp."), PNC Bank, National Association ("PNC"), as Administrative Agent for
the Lenders (as defined below) (PNC, in such capacity, "Administrative Agent")
and as Lender, Xxxxxxx Xxxxx Capital, a Division of Xxxxxxx Xxxxx Business
Financial Services Inc. ("Xxxxxxx") and JPMorgan Chase Bank, N.A. ("Chase"), as
Co-Syndication Agents and as Lenders, and Xxxxxxx Business Credit Corporation
(f/k/a Whitehall Business Credit Corporation) ("Webster"), as Documentation
Agent and as Lender. All terms used herein and not otherwise defined shall have
the meanings ascribed to them in the Credit Agreement (as hereinafter defined).
WHEREAS, the Borrowers, COI, Xxxxxxx, Chase, Merrill, the other financial
institutions which are now or which hereafter become a party thereto
(collectively, the "Lenders" and individually, a "Lender") and PNC, as Lender
and as Administrative Agent, entered into that certain Revolving Credit and
Security Agreement, dated as of June 25, 2003, as amended by the Waiver and
Amendment No. 1
to Revolving Credit and Security Agreement, dated as of March 17, 2004, the
Amendment No. 2 to Revolving Credit and Security Agreement, dated as of
September 29, 2004, and the Amendment No. 3 to Revolving Credit and Security
Agreement, dated as of February 3, 2005 (as the same may be from time to time
further amended, extended, restated, supplemented or otherwise modified, the
"Credit Agreement"), pursuant to which the Lenders made available to the
Borrowers loans in an aggregate principal amount of up to $85,000,000; and
WHEREAS, Xxxxxxx and Chase desire to be named as Co-Syndication Agents
under the Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders amend the Credit
Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valid consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
I. AMENDMENT
A. The introductory paragraph of the Credit Agreement is hereby amended by
amending and restating the language following ". . . collectively,
"Borrowers")," with the following:
"PNC Bank, National Association ("PNC"), as Administrative Agent for the
Lenders (PNC, in such capacity, "Administrative Agent") and as Lender,
Xxxxxxx Xxxxx Capital, a Division of Xxxxxxx Xxxxx Business Financial
Services Inc. ("Xxxxxxx") and JPMorgan Chase Bank, N.A. ("Chase"), as
Co-Syndication Agents for the Lenders (Xxxxxxx and Chase, in such capacity,
"Co-Syndication Agents") and as Lenders, Xxxxxxx Business Credit
Corporation (f/k/a Whitehall Business Credit Corporation) ("Whitehall"), as
Documentation Agent for the Lenders (Webster, in such capacity,
"Documentation Agent") and as Lender, and the other financial institutions
which are now or which hereafter become a party hereto (collectively, the
"Lenders" and individually, a "Lender")."
B. Section 1.2 of the Credit Agreement is hereby amended by amending and
restating the definition of "Adjustment Date" in its entirety as follows:
"`Adjustment Date' shall mean, commencing as of December 31, 2004 and
thereafter, (i) with respect to each fiscal quarter ended December 31, the first
day of March in the next succeeding fiscal year, and (ii) with respect to each
fiscal quarter ended March 31, June 30 and September 30, the first day of the
succeeding June, September and December, respectively."
C. Section 1.2 of the Credit Agreement is hereby amended by amending and
restating the definition of "Applicable Margin" in its entirety as follows:
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"`Applicable Margin' shall mean, at any Adjustment Date, the applicable
percentage set forth below opposite the Level of Fixed Charge Coverage Ratio as
of such Adjustment Date (as reflected, except as provided below, in the
calculations delivered pursuant to subsection 9.8 hereof or, with respect to
clause (i) of the definition of Adjustment Date, subsection 9.7 hereof):
Level of Fixed Charge Coverage Ratio Applicable Margin
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Level I: Fixed Charge Coverage Ratio is equal to or less than
1.05:1.00 2.50
Level II: Fixed Charge Coverage Ratio is greater than 1.05:1.00
but less than or equal to 1.30:1.00 2.25
Level III: Fixed Charge Coverage Ratio is greater than 1.30:1.00
but less than or equal to 1.50:1.00 2.00
Level IV: Fixed Charge Coverage Ratio is greater than 1.50:1.00 1.75
; provided that (a) the Applicable Margin determined for any Adjustment Date
shall remain in effect until a subsequent Adjustment Date for which the Fixed
Charge Coverage Ratio falls within a different Level, (b) if the financial
statements (and all required covenant calculations) for any fiscal period are
not delivered by the date due pursuant to subsections 9.7 or 9.8, the Applicable
Margin shall be that set forth above opposite Level I until the next subsequent
Adjustment Date, and (c) during the continuance of any Event of Default, the
Applicable Margin shall at no time be less than the Applicable Margin
immediately prior to such Event of Default notwithstanding the Fixed Charge
Coverage Ratio during such period."
D. The proviso of the first sentence of Section 4.10 is hereby amended by
amending and restating such language in its entirety as follows:
"provided that any more than two (2) audits per calendar year performed by
the Administrative Agent or any Lender shall be at the sole cost and
expense of the Lenders (other than (a) any and all audits performed at any
time following and during the continuance of an Event of Default, or (b)
one audit in connection with each Permitted Acquisition, each of which
shall be at the sole cost and expense of Borrowers)."
E. The last sentence of Section 14.2 of the Credit Agreement is hereby
amended and restating in its entirety as follows:
"Documentation Agent and Co-Syndication Agents, solely in their respective
capacities as such, shall have no duties, responsibilities or rights under
this Agreement or any Other Document."
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II. CONDITIONS PRECEDENT
This Amendment shall become effective as of the date hereof, subject to
satisfaction of each of the following conditions:
A. The Borrowers, COI and Corp. shall have delivered to the Administrative
Agent a fully executed original of this Amendment.
B. The representations and warranties contained in Article V hereof shall
be true and correct as of the date hereof and as of the date of the satisfaction
of each of the conditions contained in this Article II.
III. PLEDGORS CONSENT
The undersigned Pledgors, in their respective capacity as Pledgors, hereby
consent to this Amendment and to the consummation of the transactions
contemplated hereby and hereby restate, ratify and confirm their respective
pledge in support of the Obligations pursuant to the terms of their respective
Pledge Agreements (as defined in the Credit Agreement), in all respects, after
giving effect to the amendments set forth herein and the consummation of the
transactions contemplated hereby. Although each Pledgor has been informed of the
matters set forth herein and has acknowledged and consented to the same, each
Pledgor understands and agrees that neither the Administrative Agent nor any
Lender has any obligation to inform Pledgors of such matters in the future or to
seek any Pledgor's acknowledgment, consent or agreement to future amendments and
nothing herein shall create such duty.
IV. GUARANTORS' CONSENT
The undersigned Guarantors, in their respective capacity as Guarantors,
hereby consent to this Amendment and to the consummation of the transactions
contemplated hereby and each of them hereby restates, ratifies and confirms its
respective joint and several guaranty of the prompt payment of the Obligations
of the Borrowers pursuant to its Guaranty, in all respects, after giving effect
to the amendments set forth herein and the consummation of the transactions
contemplated hereby. Although each Guarantor has been informed of the matters
set forth herein and has acknowledged and consented to the same, each Guarantor
understands and agrees that neither the Administrative Agent nor any Lender has
any obligation to inform such Guarantor of such matters in the future or to seek
such Guarantor's acknowledgment, consent or agreement to future amendments and
nothing herein shall create such duty.
V. REPRESENTATIONS AND WARRANTIES
Each Borrower, COI and Corp. hereby represent and warrant to the Lenders
and Administrative Agent as follows:
A. The execution, delivery and performance by each such Person of this
Amendment and the transactions contemplated hereby (a) are within such Person's
corporate or limited liability company power; (b) have been duly authorized by
all
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corporate or limited liability company or other necessary action; (c) are not in
contravention of any provision of such Person's certificate of incorporation or
formation, operating agreement, bylaws or other documents of organization; (d)
do not violate any law or regulation, or any order or decree of any Governmental
Body; (e) do not conflict with or result in the breach or termination of,
constitute a default under or accelerate any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which such Person is a party or by which such Person or any of such Person's
property is bound; (f) do not result in the creation or imposition of any Lien
upon any of its property (other than Liens in favor of Administrative Agent) and
(g) do not require the consent or approval of any Governmental Body or any other
person.
B. This Amendment has been duly executed and delivered by each signatory
hereto (other than the Administrative Agent and the Lenders) and constitutes the
legal, valid and binding obligation of such Person, enforceable against such
Person in accordance with its respective terms except as the enforceability
hereof may be limited by bankruptcy, insolvency, reorganization, moratorium and
other laws affecting creditors' rights and remedies in general.
C. Each representation and warranty of each Borrower, COI and Corp.
contained in the Credit Agreement and the Other Documents is true and correct on
the date hereof in all material respects and will be true and correct in all
material respects as if made immediately after giving effect to this Amendment
(except to the extent such representation or warranty relates to an earlier
date, in which case such representation and warranty is true and correct in all
material respects on and as of such earlier date).
D. No Default or Event of Default has occurred and is continuing under the
Credit Agreement or any of the Other Documents.
VI. MISCELLANEOUS
A. Each Borrower, COI and Corp. acknowledges and confirms to Administrative
Agent and the Lenders that the Credit Agreement and each Other Document to which
it is a party shall remain in full force and effect and shall continue to
evidence, secure or otherwise guarantee and support the obligations owing by the
Borrowers, COI and Corp. to the Administrative Agent and Lenders pursuant
thereto, and, after giving effect to this Amendment, each Borrower, COI and
Corp. hereby ratifies and affirms each of the foregoing documents to which it is
a party.
B. Each Borrower, COI and Corp. acknowledges and reaffirms to the
Administrative Agent and the Lenders that (i) the Liens granted to the
Administrative Agent for the benefit of the Lenders under the Credit Agreement
and the Other Documents remain in full force and effect and shall continue to
secure the obligations of the Borrowers, COI and Corp. arising under the Credit
Agreement and the Other Documents, and (ii) the validity, perfection or priority
of the Liens will not be impaired by the execution and delivery of this
Amendment.
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C. Each Borrower acknowledges and agrees that no Lender shall waive or
shall be deemed to have waived any of its rights or remedies under the Credit
Agreement or any of the Other Documents which documents shall remain in full
force and effect in accordance with their terms.
D. Borrowers shall be responsible for the prompt payment of and, upon
demand, shall promptly reimburse Administrative Agent for, all of the Lenders'
and Administrative Agent's out-of-pocket costs and expenses related to the
preparation, negotiation, execution and enforcement of this Amendment
(including, without limitation, the reasonable fees and disbursements of legal
counsel to Administrative Agent).
E. This Amendment may be executed in any number of counterparts, including
by telecopy, and by the various parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
F. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SHALL
BE BINDING UPON AND INURE TO THE BENEFIT OF THE SUCCESSORS AND ASSIGNS OF THE
PARTIES HERETO.
* * *
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IN WITNESS WHEREOF, each of the parties hereto, by their officers duly
authorized, has executed this Amendment as of the date first above written.
COMFORCE OPERATING, INC., as Borrowing Agent,
Pledgor and Guarantor
By:
------------------------------------------
Name:
Title:
UNIFORCE SERVICES, INC.
By:
------------------------------------------
Name:
Title:
BRENTWOOD OF CANADA, INC.
By:
------------------------------------------
Name:
Title:
BRENTWOOD SERVICE GROUP, INC.
By:
------------------------------------------
Name:
Title:
CIT SOUTHEAST, INC.
By:
------------------------------------------
Name:
Title:
COMFORCE TECHNICAL, LLC
By: COMFORCE Technical Services, Inc.,
Its Sole Member
By:
------------------------------------------
Name:
Title:
7
COMFORCE INFORMATION TECHNOLOGIES, INC.
By:
------------------------------------------
Name:
Title:
PRO UNLIMITED MPS, INC.
By:
------------------------------------------
Name:
Title:
COMFORCE TECHNICAL SERVICES, INC.
By:
------------------------------------------
Name:
Title:
COMFORCE TELECOM, INC.
By:
------------------------------------------
Name:
Title:
XXXXX X., INC.
By:
------------------------------------------
Name:
Title:
CLINICAL LABFORCE OF AMERICA, INC.
By:
------------------------------------------
Name:
Title:
8
LABFORCE SERVICES OF AMERICA, INC.
By:
------------------------------------------
Name:
Title:
PRO UNLIMITED, INC.
By:
------------------------------------------
Name:
Title:
TEMPORARY HELP INDUSTRY
SERVICING COMPANY, INC.
By:
------------------------------------------
Name:
Title:
UNIFORCE STAFFING SERVICES, INC.
By:
------------------------------------------
Name:
Title:
SUMTEC CORPORATION
By:
------------------------------------------
Name:
Title:
9
THISCO OF CANADA, INC.
By:
------------------------------------------
Name:
Title:
CTS OF WASHINGTON, LLC
By: COMFORCE Technical Services, Inc.,
Its Sole Member
By:
------------------------------------------
Name:
Title:
PRO CLINICAL SUPPORT
SERVICES, LLC
By: PrO Unlimited, Inc.,
Its Sole Member
By:
------------------------------------------
Name:
Title:
Consented and Agreed to:
COMFORCE CORPORATION, as
Guarantor
By:
--------------------------------------------
Name:
Title:
10
PNC BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By:
------------------------------------------
Name:
XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX
XXXXX BUSINESS FINANCIAL SERVICES INC.,
as Co-Syndication Agent and Lender
By:
------------------------------------------
Name:
JPMORGAN CHASE BANK, N.A., as Co-
Syndication Agent and Lender
By:
------------------------------------------
Name:
XXXXXXX BUSINESS CREDIT
CORPORATION, as Documentation
Agent and Lender
By:
------------------------------------------
Name:
