EXHIBIT 4.4
FIRST AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND
SECURITY AGREEMENT (this "First Amendment") dated as of December 10, 2000 is by
and among 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, 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. The Credit Agreement is hereby amended as follows:
(a) Section 1.2(i)(A) of the Credit Agreement is deleted in
its entirety and restated as follows:
(A) Subject to the limitations set forth below, the
Administrative Agent is authorized by the Borrower and the Lenders,
from time to time in the Administrative Agent's sole discretion, (A)
after the occurrence of a Default or an Event of Default, or (B) at
any time that any of the other conditions precedent set forth in
Article 8 have not been satisfied, to make Base Rate Revolving Loans
to the Borrower on behalf of the Lenders in an aggregate amount out-
standing at any time not to exceed $6,000,000 (and in no event in an
aggregate amount outstanding which, when added to all other Loans then
outstanding, would exceed the Maximum Revolver Amount) for no longer
than 15 consecutive days which the Administrative Agent, in its
reasonable business judgment, deems necessary or desirable (1) to
provide the Borrower with necessary working capital funds, (2) to
preserve or protect the Collateral, or any portion thereof, (3) to
enhance the likelihood of, or maximize the amount of, repayment of the
Loans and other Obligations, or (4) to pay any other amount
chargeable to the Borrower pursuant to the terms of this Agreement,
including costs, fees and expenses as described in Section 14.7 (any of
such advances are herein referred to as "Agent Advances").
(b) The first sentence of Section 2.5 of the Credit Agreement is
deleted and restated as follows:
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 the appropriate
Applicable Margin per annum in effect from time to time (which shall be
.375% from the Closing Date through the first date on which the
Applicable Margin is adjusted pursuant to the definition of such term),
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.
(c) The second sentence of Section 3.8 of the Credit Agreement is
hereby deleted and restated as follows:
All payments shall be remitted to the Administrative Agent and
all such payments not relating to principal or interest of specific
Loans, or not constituting payment of specific fees, and all proceeds
of Accounts or other Collateral received by the Administrative Agent,
shall be applied, ratably, subject to the provisions of this Agreement,
first, to pay any fees or expense reimbursements then due to the
Lenders from the Borrower; second, to pay interest due in respect of
all Revolving Loans, including Non-Ratable Loans and Agent Advances;
third, to pay or prepay principal of the Non-Ratable Loans and Agent
Advances; fourth, to pay or prepay principal of the Revolving Loans
(other than Non-Ratable Loans and Agent Advances) and unpaid
reimbursement obligations in respect of Letters of Credit; fifth, to
pay an amount to Administrative Agent equal to all outstanding Letter
of Credit Obligations to be held as cash collateral for such
Obligations; sixth, to pay any fees, indemnities or expense
reimbursements including any amounts relating to Bank Products then due
to the Administrative Agent from the Borrower; and seventh, to the
payment of any other Obligation.
(d) Section 7.19 of the Credit Agreement is hereby deleted in its
entirety and restated as follows:
7.19 Sale and Leaseback Transactions. No Credit Party shall,
directly or indirectly, enter into any arrangement with any Person who is not a
Credit Party providing for a Credit Party to lease or rent property that such
Credit
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Party has sold or will sell or otherwise transfer to such Person,
except for leases with respect to computer equipment owned by a Credit
Party but only to the extent the aggregate rental expense of the Credit
Parties with respect to such operating leases does not exceed
$3,000,000 in the aggregate during any Fiscal year of Borrowing during
the term of this Agreement.
(e) Section 7.23 of the Credit Agreement is hereby
deleted in its entirety and restated as follows:
7.23 EBITDA. If Availability is less than
$20,000,000 at any date or dates during the term of this Agreement (any
such date being hereafter referred to as a "Trigger Date"), as of the
last day of the fiscal quarter in which any such Trigger Date occurs,
the Borrower shall achieve EBITDA, on a consolidated basis, of not less
than the amount indicated for the applicable period as set forth below:
Period Ending EBITDA
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The first quarter ending December 31, 2000 $ 6,500,000
The two (2) fiscal quarters ending March 31, 2001 $15,000,000
The three (3) fiscal quarters ending June 30, 2001 $25,000,000
The four (4) fiscal quarters ending September 30, 2001 and as of $35,000,000
the last day of each fiscal quarter thereafter, for the four (4) quarters
ending on each such date
(f) Section 8.2(b) is amended in its entirety to read as
follows:
(b) No such Borrowing shall exceed Availability,
provided, however, that the foregoing conditions precedent are not
conditions to each Lender participating in or reimbursing the Bank or
the Administrative Agent for such Lenders' Pro Rata Share of any
Non-Ratable Loan or Agent Advances made in accordance with the
provisions of Sections 1.2(h) and (i).
(g) The first two (2) sentences of Section 10.1 of the
Credit Agreement are hereby deleted in their entirety and restated as follows:
The term of this Agreement shall end on the Stated
Termination Date unless sooner terminated in accordance with the terms
of this Agreement. The Administrative Agent, upon direction from the
Required Lenders, may terminate this Agreement without notice upon the
occurrence of the Event of Default.
(h) Section 11.1(a) of the Credit Agreement is hereby
amended by adding after clause (ix) thereof clauses (x) and (xi) which shall
provide as follows:
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(x) change the definition of "Stated Termination Date" or
renew or extend the term of this Agreement; or
(xi) notify the Credit Parties of Administrative Agent's
election to make any material change in the manner or timing of the
remittance of payments in respect of Accounts from the requirements set
forth in Section 4(c) of the Security Agreement or otherwise amend the
provisions of Section 4(c) of the Security Agreement.
(i) Section 12.7 of the Credit Agreement is hereby deleted in its
entirety and restated as follows:
12.7 Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon
demand the Administrative Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), in accordance with their Pro Rata
Shares, from and against any and all Indemnified Liabilities as such
term is defined in Section 14.11; provided, however, that no Lender
shall be liable for the payment to the Administrative Agent-Related
Persons of any portion of such Indemnified Liabilities arising from
Bank Products or resulting solely from such Person's gross negligence
or willful misconduct. Without limitation of the foregoing, each Lender
shall reimburse the Administrative Agent upon demand for its Pro Rata
Share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document
(excluding, however, Bank Products), or any other document contemplated
by or referred to herein, to the extent that the Administrative Agent
is not reimbursed for such expenses by or on behalf of the Borrower.
The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the
Administrative Agent.
(j) Section 14.7 of the Credit Agreement is hereby deleted and
restated as follows:
14.7 Fees and Expenses.
(a) The Borrower agrees to pay to the Administrative Agent,
for its benefit, on demand, all costs and expenses that Administrative
Agent pays or incurs in connection with the negotiation, preparation,
consummation, administration, enforcement, and termination of this
Agreement or any of the other Loan Documents, including: (1) Attorney
Costs; (ii) costs and expenses (including attorneys' and
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paralegals' fees and disbursements) for any amendment, supplement, waiver,
consent, or subsequent closing in connection with the Loan Documents and the
transactions contemplated thereby; (iii) costs and expenses of lien and title
searches and title insurance; (iv) taxes, fees and other charges for recording
the Mortgages, filing financing statements and continuations, and other actions
to perfect, protect, and continue the Administrative Agent's Liens (including
costs and expenses paid or incurred by the Administrative Agent in connection
with the consummation of Agreement); (v) sums paid or incurred to pay any amount
or take any action required of the Borrower under the Loan Documents that the
Borrower fails to pay or take; (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
described in the Fee Letter; (vii) costs and expenses of forwarding loan
proceeds, collecting checks and other items of payment, and establishing and
maintaining Payment Accounts and lock boxes; (viii) costs and expenses of
preserving and protecting the Collateral; and (ix) costs and expenses (including
Attorneys' Costs) paid or incurred to obtain payment of the Obligations, enforce
the Administrative Agent's Liens, sell or otherwise realize upon the Collateral,
and otherwise enforce the provisions of the Loan Documents, or to defend any
claims made or threatened against the Administrative Agent or any Lender arising
out of the transactions contemplated hereby (including preparations for and
consultations concerning any such matters).
(b) The Borrower agrees to pay to each Lender, on demand, all costs
and expenses (including attorneys' and paralegals' fees and disbursements) that
such Lender pays or incurs in connection with (i) during the existence of an
Event of Default, any amendment, modification, consent, supplement or waiver of
this Agreement or any Loan Document; (ii) any refinancing or restructuring of
the credit arrangements provided under this Agreement (other than extensions or
renewals of the Stated Termination Date or any further syndication or assignment
of the Lenders' Commitments), whether in the nature of a "workout" or in
connection with any insolvency or bankruptcy proceedings or otherwise; (iii) any
attempt to obtain payment of or collect the Obligations, enforce Liens against
the Collateral, sell or otherwise realize upon the Collateral, and otherwise
enforce the provisions of this Agreement or any of the other Loan Documents, or
to defend any claims made or threatened against any Lender arising out of the
transactions contemplated hereby (including preparations for and consultations
concerning any such matters).
(c) The foregoing shall not be construed to limit any other provisions
of the Loan Documents regarding costs and expenses to be paid by the Borrower.
All of the foregoing costs and expenses shall be charged to the Borrower's Loan
Account as Revolving Loans as described in Section 3.7.
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(k) Clause (iii) of the definition of "Acquisition Loan
Conditions" in Annex A to the Credit Agreement is hereby deleted and restated
as follows:
(iii) After giving effect to the requested Acquisition
Loan, the Borrower shall have not less than $20,000,000 of Availability;
(l) The definition of "EBITDA" in Annex A to the Credit
Agreement is hereby deleted and restated as follows:
"EBITDA" means, with respect to any fiscal period of
the Borrower, Adjusted Net Earnings from Operations, plus, to the extent
deducted in the determination of Adjusted Net Earnings from Operations for that
fiscal period, interest expenses, Federal, state, local and foreign income
taxes, depreciation and amortization, including amortization of the cost of
restricted stock issued by the Borrower during its 2001 fiscal year.
(m) The references to "Section 7.12" in the definition of
"Joinder Agreement" in Annex A to the Credit Agreement are hereby deleted and
references to "Section 7.26" are substituted in lieu thereof.
(n) The reference to "66 2/3" in the definition of
"Required Lenders" in Annex A to the Credit Agreement is hereby deleted and
reference to "66.66%" is substituted in lieu thereof.
(o) Clause (iii) of the definition of "Securities
Repurchase Loan Conditions" in Annex A to the Credit Agreement is hereby
deleted and restated as follows:
(iii) After giving effect to the requested Securities
Repurchase Loan, the Borrower shall have not less than $20,000,000 of
Availability;
2. The Security Agreement is hereby amended by adding at the end
of Section 2 thereof the following:
The Credit Parties and the Administrative Agent, on behalf of
the Lenders, hereby acknowledge and agree that the Collateral shall
not include "margin stock" within the meaning of Regulation U. For
purposes hereof, Regulation U shall mean Regulation U as promulgated
by the Board of Governors of the Federal Reserve System, as from
time to time in effect.
3. Additional Definition. For purposes of the Credit Agreement,
the term "Ybor Property" shall mean the real property of the Borrower described
in Schedule I attached to this First Amendment.
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4. Syndication Fees. The Borrower shall have no obligation to
pay to Administrative Agent any syndication or similar fees in connection with
its syndication of the Credit Agreement.
5. Conditions Precedent. The effectiveness of this First
Amendment is subject to the satisfaction of each of the following conditions (in
form and substance satisfactory to the Administrative Agent);
(a) The Administrative Agent shall have received
executed counterparts of this First Amendment duly executed by the
Credit Parties, the Administrative Agent and the Lenders; and
(b) The Administrative Agent shall have received such
additional agreements, certificates or documents as it may reasonably
request in connection with this First Amendment.
6. 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 First Amendment.
7. The Guarantors (i) acknowledge and consent to all of the
terms and conditions of this First Amendment, (ii) affirm all of their
obligations under the Loan Documents and (iii) agree that this First 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.
8. 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 First
Amendment.
(ii) This First 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
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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 First Amendment.
9. 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.
10. This First 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 First Amendment
to produce or account for more than one such counterpart.
11. This First 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.
[Signatures on following page]
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this First Amendment to be duly executed and delivered as of the
date first above written.
BORROWER: XXXXXX.XXX, INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Treasurer, Asst. Sect.
--------------------------------------
GUARANTORS: XXXXXX.XXX USA, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Treasurer, Asst. Sect.
--------------------------------------
ROMAC OF TEXAS, INC., a Texas corporation
By: /s/ Xxxxx X. Dunhel
-----------------------------------------
Name: Xxxxx X. Dunhel
--------------------------------------
Title: CFO
--------------------------------------
KFORCE AIRLINES, INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Treasurer, Asst. Sect.
--------------------------------------
YBOR HQ1, INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Treasurer, Asst. Sect.
--------------------------------------
KFORCE INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Treasurer, Asst. Sect.
--------------------------------------
[Signatures continued on next page]
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ROMAC INTERNATIONAL, INC., a Florida corporation
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
--------------------------------------
Title: Treasurer, Asst. Sect.
--------------------------------------
ROMAC OF TEXAS 1, L.P., a Texas limited
partnership
By: ROMAC OF TEXAS, INC., its sole
general partner
By: /s/ Xxxxx X. Dunhel
-----------------------------------------
Name: Xxxxx X. Dunhel
--------------------------------------
Title: CFO
--------------------------------------
AGENT: BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
LENDER: 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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