Exhibit 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") dated as of
May 9, 1997, is made among Xxxxxx Half International Inc., a Delaware
corporation (the "COMPANY"); each of the Banks that is a party to the Credit
Agreement defined below (individually, a "BANK" and, collectively, the
"BANKS"); NationsBank, N.A. (formerly known as NationsBank of North Carolina,
N.A.), as Administrative Agent for the Banks (in such capacity, together with
its successors in such capacity, the "ADMINISTRATIVE AGENT"); and
NationsBank, N.A., and Bank of America National Trust and Savings
Association, each as Co-Agent and Co-Arranger (in such capacities, together
with their successors in each such capacity, the "CO-AGENTS").
WHEREAS, the Company, the Administrative Agent, the Co-Agents, and the
Banks are parties to the Credit Agreement dated as of November 1, 1993 as
amended through the Second Amendment thereto (the "CREDIT AGREEMENT"); and
WHEREAS, the Company has requested that the Credit Agreement, as in
effect on the date of this Amendment, be amended in the respects set forth
below, and the Administrative Agent, the Co-Agents and the Banks are willing
to accommodate the Company's request on the terms and conditions contained in
this Amendment.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. DEFINED TERMS. Capitalized terms used but not defined in this
Amendment shall have the meanings assigned to such terms in the Credit
Agreement and the rules of interpretation set forth in Sections 1.02(a) and
1.04 of the Credit Agreement shall be applicable to this Amendment.
2. AMENDMENTS TO SECTION 1.01.
(a) Section 1.01 of the Credit Agreement is hereby amended by deleting
the definitions of "APPLICABLE COMMITMENT FEE PERCENTAGE", "APPLICABLE
ISSUANCE FEE PERCENTAGE" and "APPLICABLE MARGIN" in their entirety and
inserting in their respective places the following new definitions:
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"APPLICABLE COMMITMENT FEE PERCENTAGE" shall mean, with
respect to each Bank's Commitment at any time, the rate equal to the
percentages per annum set forth on the right in the table below when the
Total Indebtedness to Cash Flow Ratio for the quarter immediately
preceding the date of determination falls within the parameters listed
on the left in the table below:
APPLICABLE
TOTAL INDEBTEDNESS TO CASH FLOW RATIO FEE (% P.A.)
------------------------------------- ------------
Below 1.00 0.090
Between 1.00 and 2.00 (including 1.00) 0.125
Between 2.00 and 3.00 (including 2.00) 0.150
"APPLICABLE ISSUANCE FEE PERCENTAGE" shall mean, with respect
to each Letter of Credit at any time, the rate equal to the percentages
per annum set forth on the right in the table below when the Total
Indebtedness to Cash Flow Ratio for the quarter immediately preceding
the date of determination falls within the parameters listed on the left
in the table below:
APPLICABLE
TOTAL INDEBTEDNESS TO CASH FLOW RATIO FEE (% P.A.)
------------------------------------- ------------
Below 1.00 0.250
Between 1.00 and 2.00 (including 1.00) 0.375
Between 2.00 and 3.00 (including 2.00) 0.500
"APPLICABLE MARGIN" shall mean, with respect to each
Eurodollar Loan at any time, the percentages per annum set forth on the
right in the table below when the Total Indebtedness to Cash Flow Ratio
for the quarter immediately preceding the date of determination falls
within the parameters listed on the left in the table below:
APPLICABLE
TOTAL INDEBTEDNESS TO CASH FLOW RATIO MARGIN (% P.A.)
------------------------------------- ---------------
Below 1.00 0.250
Between 1.00 and 2.00 (including 1.00) 0.375
Between 2.00 and 3.00 (including 2.00) 0.500
(b) Section 1.01 of the Credit Agreement is further amended by deleting
the definitions of "FIXED CHARGES" and "FIXED CHARGES RATIO" in their
entirety.
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(c) Section 1.01 of the Credit Agreement is further amended by deleting
the definition of "MINIMUM NET WORTH" in its entirety and inserting in lieu
thereof the following new definition:
"MINIMUM NET WORTH" shall mean, as at any date, for the
Company and its Consolidated Subsidiaries (determined on a consolidated
basis in accordance with GAAP), an amount equal to $200,000,000, PLUS,
for each fiscal quarter after December 31, 1996, 50% of Net Income for
each such fiscal quarter. In determining Minimum Net Worth, there shall
be no adjustments for net losses, if any.
(d) The definition of the term "TERMINATION DATE" contained in
Section 1.01 of the Credit Agreement is hereby amended by deleting the
date "August 31, 2001" contained in line 1 of such definition and
substituting in lieu thereof the date "August 31, 2002".
3. AMENDMENT TO SECTION 2.04. Section 2.04(b) of the Credit
Agreement is hereby amended by deleting the table set forth in such
section and substituting in lieu thereof the following table:
(A) (B)
COMMITMENTS REDUCED
COMMITMENT REDUCTION TO THE FOLLOWING
DATE AMOUNTS ($)
-------------------- -------------------
August 31, 2002 $ 0
4. AMENDMENT TO SECTION 8.01. Section 8.01(i) of the Credit
Agreement is hereby deleted.
5. AMENDMENT TO SECTION 8.07. Section 8.07(f) of the Credit
Agreement is hereby amended by deleting the amount "$10,000,000"
contained in line 3 of such section and substituting in lieu thereof the
amount "$20,000,000".
6. AMENDMENT TO SECTION 8.12. Section 8.12 of the Credit
Agreement is hereby amended by deleting the text contained therein and
substituting in lieu thereof the following text:
"The Company will not permit the Total Indebtedness to Cash Flow
Ratio at any time to be greater than 3.0 to 1."
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7. AMENDMENT TO SECTION 8.13. Section 8.13 of the Credit
Agreement is hereby amended by deleting the text contained therein and
substituting in lieu thereof the following text:
"[INTENTIONALLY LEFT BLANK]."
8. AMENDMENT TO SECTION 8.15. Section 8.15 of the Credit
Agreement is hereby amended by deleting the text contained therein and
substituting in lieu thereof the following text:
"[INTENTIONALLY LEFT BLANK]."
9. COMPANY'S REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Administrative Agent, the Co-Agents, the
Issuing Bank and the Banks that:
(a) the representations and warranties made by the Company in
the Credit Agreement and by each Obligor in each of the other Basic
Documents to which it is a party were true and correct when made;
(b) the representations and warranties made by the Company in
Section 7 of the Credit Agreement and by each Obligor in each of the
other Basic Documents to which it is a party are true and correct as of
the date of effectiveness of this Amendment as if made on such date (or,
if any such representation and warranty is expressly stated to have been
made as of a specific date, as of such specific date), except that,
solely for the purpose of this Section 9(b), (i) the representations and
warranties made by the Company in Section 7.02 of the Credit Agreement
shall be deemed to be made with respect to the most recent audited and
unaudited financial statements delivered by the Company pursuant to
Section 8.01 of the Credit Agreement, (ii) all references in Section 7
of the Credit Agreement to Schedule(s) I, III, V and VI to the Credit
Agreement shall be deemed to refer to the updated schedules attached as
Schedule(s) I, III, V and VI to this Amendment and (iii) all of the
Convertible Debentures have been redeemed or converted and none are
outstanding;
(c) upon the date of effectiveness of this Amendment no
Default under the Credit Agreement has occurred and is continuing;
(d) this Amendment constitutes the legal, valid and binding
obligation of the Company enforceable
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against the Company in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability; and
(e) none of the execution and delivery by the Company of this
Amendment, the execution and delivery by each Guarantor or Pledgor of each
Consent referred to in Section 10(b) of this Amendment, the consummation of
the transactions contemplated by this Amendment, nor compliance with the
terms of the Basic Documents (as so amended and so confirmed), (A) does or
will (i) conflict with, violate any provision of, or require any consent
under, the charter or by-laws of the Company or any Active Subsidiary, (ii)
violate any applicable Governmental Rule or conflict with, result in a
breach of, require any consent under or constitute a default under any
agreement or instrument (other than the Basic Documents) to which the
Company or any Active Subsidiary is a party or by which any of them or any
of their Property is bound or to which any of them is subject, (iii)
constitute a default under, or result in the acceleration or mandatory
prepayment of, any indebtedness evidenced by or termination of any such
agreement or instrument, or (iv) result in the creation or imposition of
any Lien upon any Property of the Company or any Active Subsidiary pursuant
to the terms of any such agreement or instrument, in each case which
violation, conflict, breach, default, Lien or failure to obtain consent
would have a Material Adverse Effect or (B) does or will result in a breach
of or constitute a default under the Credit Agreement or any other Basic
Document.
10. CONDITIONS TO EFFECTIVENESS. This Amendment shall be and become
effective upon the execution and delivery by the parties of this Amendment
and receipt by the Administrative Agent of (a) counterparts of this Amendment
executed by the Company, the Co-Agents and all of the Banks and (b)
counterparts of the Consent appended hereto (the "Consent"), executed by each
Guarantor and Pledgor.
11. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) Except as specifically amended by this Amendment, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
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(b) This Amendment shall be construed as one with the Credit
Agreement, and the Credit Agreement shall, where the context requires, be
read and construed throughout so as to incorporate this Amendment.
12. ENTIRE AGREEMENT. This Amendment, together with the Credit
Agreement and the other Basic Documents, and the documents referred to herein
or therein or executed in connection herewith or therewith supersede all
prior or contemporaneous agreements and understandings, written or oral,
among the parties with respect to the subject matter of this Amendment. No
party shall have any duties or responsibilities except those expressly set
forth in the Basic Documents (as from time to time amended, including by this
Amendment).
13. EXPENSES, ETC. Without limiting any provision of the Credit
Agreement, the Company agrees to pay or reimburse each of the Banks and the
Administrative Agent for (a) all reasonable out-of-pocket costs and expenses
of the Administrative Agent (including the reasonable fees and expenses of
Milbank, Tweed, Xxxxxx & XxXxxx, counsel to the Banks), and reasonable costs
and expenses of inside counsel to BofA, in connection with the negotiation,
preparation, execution and delivery of this Amendment and (b) all other costs
and expenses for which the Banks and the Administrative Agent are entitled to
be reimbursed pursuant to Section 11.03 of the Credit Agreement.
14. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of its parties and their respective successors and
permitted assigns.
15. SEVERABILITY. Any provision of this Amendment that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Amendment, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
16. CAPTIONS. The captions and section headings appearing in this
Amendment are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Amendment.
17. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties to this Amendment may execute this
Amendment by signing any such counterpart.
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18. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
CALIFORNIA; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE BANKS SHALL RETAIN
ALL RIGHTS ARISING UNDER FEDERAL LAW. THE COMPANY HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA AND OF ANY CALIFORNIA STATE COURT SITTING IN
SAN FRANCISCO, CALIFORNIA, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AMENDMENT. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY
CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
XXXXXX HALF INTERNATIONAL INC.
By: /s/ M. Xxxxx Xxxxxxx
------------------------------------
Title: Sr. Vice President
NATIONSBANK, N.A., as Administrative
Agent, Co-Agent, Co-Arranger and a Bank
By: /s/ XXXXXXX XXXXXXXX
------------------------------------
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent,
Co-Arranger and a Bank
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, as a Bank
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Title: Vice President
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