Exhibit 10.1
EXECUTION COPY
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AMENDMENT NO. 3 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
THE LENDERS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION
(as Administrative Agent and Lender)
as of February 3, 2005
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AMENDMENT NO. 3 TO
REVOLVING CREDIT AND SECURITY AGREEMENT
This Amendment No. 3 to Revolving Credit and Security Agreement (this
"Amendment") is entered into as of February 3, 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,
Xxxxxxx Business Credit Corporation ("Xxxxxxx"), JPMorgan Chase Bank, N.A.
("Chase"), Xxxxxxx Xxxxx Capital ("Xxxxxxx") and PNC Bank, National Association
("PNC"), as Administrative Agent for the Lenders (as defined below) (PNC, in
such capacity, "Administrative 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, and Amendment No. 2 to Revolving Credit and Security Agreement, dated
as of September 29, 2004 (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 Original Borrowers loans in
an aggregate principal amount of up to $75,000,000; and
WHEREAS, the Borrowers have requested that the Lenders amend the Credit
Agreement to increase the Maximum Revolving Advance Amount to $85,000,000;
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:
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I. AMENDMENT
A. Section 1.2 of the Credit Agreement is hereby amended to amend and
restate the definition of "Maximum Revolving Advance Amount" in its entirety as
follows:
"'Maximum Revolving Advance Amount' shall mean $85,000,000."
B. The Commitment Percentages set forth on the signature pages to the
Credit Agreement are hereby amended by the Commitment Percentages set forth on
the signature pages to this Amendment.
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 shall have delivered to the Administrative Agent a fully
executed original of this Amendment.
B. The Borrower shall have delivered to the Administrative Agent fully
executed Third Amended and Restated Revolving Credit Notes in the forms of
Exhibit A and B attached hereto in favor of PNC and Chase, respectively
(together, the "Notes").
C. The Borrowers shall have paid the fees set forth in the Fee Letter,
dated as of the date hereof, among the Borrowers and the Administrative Agent.
D. 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,
consents or waivers, 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,
consents or waivers, and nothing herein shall create such duty.
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V. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Lenders and
Administrative Agent as follows:
A. The execution, delivery and performance by each Borrower of this
Amendment and the transactions contemplated hereby (a) are within such
Borrower's corporate or limited liability company power; (b) have been duly
authorized by all 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 and the Notes have been duly executed and delivered by
each signatory hereto (other than the Administrative Agent) and constitute 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 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 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 to the
Administrative Agent and Lenders pursuant thereto and pursuant to the Notes,
and, after giving effect to this Amendment, each Borrower hereby ratifies and
affirms each of the foregoing documents to which it is a party.
B. Each Borrower 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 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.
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.
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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:
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Name:
Title:
BRENTWOOD OF CANADA, INC.
By:
---------------------------------------------
Name:
Title:
BRENTWOOD SERVICE GROUP, INC.
By:
---------------------------------------------
Name:
Title:
CIT SOUTHEAST, INC.
By:
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Name:
Title:
COMFORCE TECHNICAL, LLC
By: COMFORCE Technical Services, Inc.,
Its Sole Member
By:
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Name:
Title:
COMFORCE INFORMATION TECHNOLOGIES, INC.
By:
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Name:
Title:
PRO UNLIMITED MPS, INC.
By:
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Name:
Title:
COMFORCE TECHNICAL SERVICES, INC.
By:
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Name:
Title:
COMFORCE TELECOM, INC.
By:
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Name:
Title:
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XXXXX X., INC.
By:
---------------------------------------------
Name:
Title:
CLINICAL LABFORCE OF AMERICA, INC.
By:
---------------------------------------------
Name:
Title:
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:
THISCO OF CANADA, INC.
By:
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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:
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PNC BANK, NATIONAL ASSOCIATION, as
Administrative Agent
By:
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Name:
Title:
Commitment Percentage: 35.29%
XXXXXXX BUSINESS CREDIT CORPORATION
By:
---------------------------------------------
Name:
Title:
Commitment Percentage: 20.59%
JPMORGAN CHASE BANK, N.A.
By:
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Name:
Title:
Commitment Percentage: 20.59%
XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX XXXXX
BUSINESS FINANCIAL SERVICES INC.
By:
---------------------------------------------
Name:
Title:
Commitment Percentage: 23.53%
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