EXHIBIT 4.1
FOURTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Fourth Amendment") dated as of August 5th, 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, and January 23, 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. The Credit Agreement is hereby amended 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 have given
Administrative Agent at least two (2) days' prior
written notice of its intent to request a Securities
Repurchase Loan;
(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) After giving effect to the
requested Securities Repurchase Loan, the Borrower
shall have not less than $25,000,000 of Availability;
(iv) the Capital Stock to be repurchased by the
Borrower is in connection with an Eligible Securities
Repurchase; and
(v) the initial funded amount of all Securities
Repurchase Loans, together with the amount of any requested
Securities Repurchase Loan, shall not exceed $77,000,000 in
the aggregate.
2. Amendment Fee. Concurrently with its execution and delivery of
this Fourth Amendment, the Borrower shall pay to the Administrative Agent, for
the pro rata benefit of the Lenders, an amendment fee in the amount of $25,000.
3. Conditions Precedent. The effectiveness of this Fourth 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 Fourth 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 Fourth Amendment.
4. 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
Fourth Amendment.
5. The Guarantors (i) acknowledge and consent to all of the terms and
conditions of this Fourth Amendment, (ii) affirm all of their obligations under
the Loan Documents and (iii) agree that this Fourth 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.
6. The Borrower and the Guarantors hereby represent and warrant to the
Administrative Agent and the Lenders as follows:
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(1) Each Credit Party has taken all necessary action to
authorize the execution, delivery and performance of this Fourth
Amendment.
(ii) This Fourth 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 Fourth
Amendment.
7. 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.
8. This Fourth Amendment may be executed in any number of
counterparts, each of which when so executed and shall be deemed an
original and it shall not be necessary in making proof of this Fourth Amendment
to produce or account for more than one such counterpart.
9. This Fourth 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 Fourth 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 X. Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
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GUARANTORS: KFORCE AIRLINES, INC., a Florida corporation
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
ROMAC INTERNATIONAL, INC., a Florida corporation
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
XXXXXX.XXX, INC., formerly known as Kforce, Inc.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Treasurer
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AGENT: BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
LENDERS: BANK OF AMERICA, N.A., individually in its capacity
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxx
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Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
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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. as Agent for
Standard Federal Bank National Association
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
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STATE OF GEORGIA
COUNTY OF XXXXXX
AFFIDAVIT REGARDING EXECUTION AND DELIVERY OF CREDIT DOCUMENTS
I HEREBY CERTIFY that on this day before me, the undersigned notary
public authorized to administer oaths and take acknowledgments in the state and
county aforesaid, personally appeared Xxxx Xxxxxxxx (the "Affiant"), who, being
by me first duly sworn, stated under oath:
1. Affiant is the Assistant Treasurer of Kforce Inc., formerly
known as xxxxxx.xxx, Inc. (the "Borrower") and the Subsidiary Guarantors and
has personal knowledge of the facts stated herein.
2. Affiant has on the date hereof in Xxxxxx County, Georgia,
executed that certain Fourth Amendment to Amended and Restated Credit
Agreement, dated on or about the date hereof (the "Amendment"), by and among
the Borrower, the Subsidiary Guarantors, the Lenders from time to time party
thereto and Bank of America, N.A., as administrative agent (in such capacity,
the "Administrative Agent") Capitalized terms used herein, unless otherwise
defined, have the meanings provided in the Amendment.
3. Affiant has on the date hereof in Xxxxxx County, Georgia,
executed the Amendment on behalf of each Credit Party thereto and delivered the
Amendment to the Administrative Agent in Xxxxxx County, Georgia.
Dated: August 5th, 2002
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Sworn to and subscribed before me
this 5th day of August, 2002.
Xxxxx X. Xxxxxxx
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Notary Public
Print Name: Xxxxx X. Xxxxxxx
My Commission Expires: Notary Public, DeKalb County, Georgia
My Commission Expires June 7, 2005
STATE OF GEORGIA
COUNTY OF XXXXXX
AFFIDAVIT REGARDING EXECUTION AND DELIVERY OF CREDIT DOCUMENTS
I HEREBY CERTIFY that on this day before me, the undersigned notary
public authorized to administer oaths and take acknowledgments in the state and
county aforesaid, personally appeared Xxxx Xxxxxxx of Atlanta, Georgia (the
"Affiant"), who, being by me first duly sworn, stated under oath:
1. Affiant is a Vice President of Bank of America, N.A. and has
personal knowledge of the facts stated herein.
2. Affiant has on the date hereof in Xxxxxx County, Georgia,
executed that certain Fourth Amendment to Amended and Restated Credit Agreement
and Security Agreement dated as of January 1, 2002 (the "Amendment"), by and
among Kforce Inc, formerly known as xxxxxx.xxx, Inc. (the "Borrower"), the
Subsidiary Guarantors, the Lenders from time to time party thereto and Bank of
America, N.A., as administrative agent (in such capacity, the "Administrative
Agent"). Capitalized terms used herein, unless otherwise defined, have the
meanings provided in the Amendment.
3. Affiant has on the date hereof in Xxxxxx County, Georgia,
witnessed the execution, by each Credit Party thereto of the Amendment.
4. The Amendment was executed on behalf of the Borrower and Bank
of America, N.A., as a Lender and in its capacity as Administrative Agent and
was delivered to the Affiant in Xxxxxx County, Georgia.
Dated: August 5, 2002
Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Sworn to and subscribed before me
this 5th day of August, 2002.
Xxxxx X. Xxxxxxx
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Notary Public
Print Name: Xxxxx X. Xxxxxxx
My Commission Expires: Notary Public, DeKalb County, Georgia
My Commission Expires June 7, 2005
AUTHORIZATION CERTIFICATE
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The undersigned, being the Secretary of KFORCE INC., formerly known as
XXXXXX.XXX, Inc., a Florida corporation (the "Borrower"), hereby gives this
certificate to induce the lenders (collectively, "Lenders") party from time to
time to a certain Amended and Restated Credit Agreement, dated November 3, 2000
(as at any time amended, the "Credit Agreement"), among Borrower, certain
affiliates of Borrower, Lenders and BANK OF AMERICA, N.A., a national banking
association, as collateral and administrative agent for itself and Lenders
(together with its successors in such capacity, "Agent"), to enter into certain
amendments to the Credit Agreement.
The undersigned hereby certifies that, to the best of his knowledge,
information and belief:
(1) He is the Secretary of the Borrower and the Subsidiary
Guarantors (as defined in the Credit Agreement);
(2) The Borrower and each of the Subsidiary Guarantors is a
corporation duly organized, validly existing and in good standing under the
laws of the state of its incorporation, with full power and authority to
execute and deliver and to carry out and perform its obligations under the
Credit Agreement; and
(3) Xxxx X. Xxxxxxxx is the Assistant Treasurer of the Borrower
and each of the Subsidiary Guarantors and each is duly elected, qualified to
act on behalf of the Borrower and the Subsidiary Guarantors as such;
(4) The Fourth Amendment to Amended and Restated Credit
Agreement, dated on or about the date hereof, has been duly authorized,
executed and delivered by and on behalf of the Borrower and the Subsidiary
Guarantors party thereto.
IN WITNESS WHEREOF, the undersigned has set his hand as of August 2,
2002.
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX, Secretary
