Exhibit 10.6
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is made and dated as of the 4th day of September, 2001 by and among
SOS STAFFING SERVICES, INC., a Utah corporation (the "Borrower"), the Lenders to
the Credit Agreement described below, XXXXX FARGO BANK, NATIONAL ASSOCIATION
(formerly known as First Security Bank, N.A.), as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), and BANK ONE, NA, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent").
RECITALS
A. Pursuant to that certain Amended and Restated Credit Agreement
dated as of July 27, 1998 among the Lenders, the Borrower, the Documentation
Agent and the Administrative Agent (as amended, extended and replaced from time
to time, the "Credit Agreement"), the Lenders agreed to extend credit to the
Borrower on the terms and conditions set forth therein. All capitalized terms
not otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement.
B. The Borrower has requested that the Lenders agree to amend the
Credit Agreement in certain respects and the Lenders have agreed to do so on the
terms and subject to the conditions set forth more particularly below.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. AMENDMENTS. To reflect the agreement of the parties hereto to amend
the Credit Agreement to make certain conforming changes with respect to the
Collateralization Transaction, effective as of the Effective Date (as such term
is defined in Paragraph 2 below):
(a) The following definitions set forth in Article I of the
Credit Agreement are hereby amended in their entirety to read as follows:
"'Intercreditor Agreement' means that certain Intercreditor
Agreement dated as of July 30, 2001 (as the same may be amended,
restated, supplemented or otherwise modified form time to time) by and
among the Administrative Agent on behalf of the Lenders, the
Noteholders, and the Collateral Agent, and acknowledged and agreed to
by the Company and its Subsidiaries."
"'Lenders' Allocated Share' means (a) on any date prior to
the consummation of the Collateralization Transaction, the ratio,
expressed as a percentage, which: (i) the Aggregate Commitment bears
to the sum of (ii) the Aggregate Commitment plus the aggregate
principal amount of promissory notes outstanding under the Note
Purchase Agreement and (b) at all times thereafter, the aggregate
principal amount that the Lenders would be entitled to receive from
the Collateral Agent is such Net Cash Proceeds were distributed in
accordance with Section 4(b) of the Intercreditor Agreement."
(b) Section 6.1(ii) of the Credit Agreement is hereby amended by
deleting the number "45" set forth in the first line thereof and replacing the
same with the number "30".
(c) A new Section 6.22 is hereby added to the Credit Agreement to
read in its entirety as follows:
"6.22. NOTICE OF PAYMENT TO NOTEHOLDERS. Within three (3)
Business Days of the Company or any of its Subsidiaries making any
payment to the Noteholders (other than any regularly scheduled payment
made in accordance with the payment schedule in effect as of the date
of the Collateralization Transaction."
2. EFFECTIVE DATE. This Amendment shall be effective as of the date
first written above upon the date (the "Effective Date") that the Administrative
Agent shall have received:
(a) This Amendment, duly executed by all parties signatory
hereto;
(b) Such corporate resolutions, incumbency certificates and other
authorizing documentation as the Lenders shall require; and
(c) Such other fees and expenses (including attorneys' fees and
time charges of attorneys for the Administrative Agent, the Documentation Agent
and the Lenders) paid or incurred by the Administrative Agent, the Documentation
Agent or any Lender in connection with the preparation, negotiation, execution,
delivery, review, amendment, modification, and administration of this Amendment
(nothing contained herein shall in any manner or to any extent release the
Borrower from its obligations under Section 9.7 of the Credit Agreement to pay
such other fees and expenses as may be required to be paid by the Borrower
thereunder).
3. REAFFIRMATION OF THE LOAN DOCUMENTS. The Borrower and each of the
Guarantors by executing this Amendment as provided below, hereby affirms and
agrees that: (a) the execution and delivery by it of and the performance of its
obligations under this Amendment shall not in any way amend, impair, invalidate
or otherwise affect any of its obligations under the Loan Documents to which it
is party except to the extent expressly amended hereby, (b) the terms
"Obligations," "Guaranteed Obligations" and "Senior Creditor Obligations" as
used in the Loan Documents include, without limitation, the Obligations of
Borrower under the Credit Agreement as amended by this Amendment (and including,
without limitation, the obligations of the Borrower hereunder), (c) except as
expressly amended hereby, the Loan Documents remain in full force and effect as
written and constitute valid, enforceable obligations of such Persons, as
applicable, and (d) each of such Persons expressly waives, releases and
absolutely and forever discharges the Administrative Agent, the Documentation
Agent and the Lenders and their respective shareholders, directors, officers,
employees and agents, and their heirs, personal representatives, successors and
assigns, from any and all liability, claims, demands, damages, actions and
causes of action that any of such Persons may now have, or have had prior to the
date hereof arising out of or relating to the Loan Documents, the transactions
contemplated thereby and any action or inaction of any of the above-named
Persons with respect thereto.
4. REPRESENTATIONS AND WARRANTIES. The Borrower and each of the
Guarantors by executing this Amendment as provided below, hereby represents and
warrants to the Lenders that:
(a) It has the corporate power and authority and the legal right
to execute, deliver and perform this Amendment and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Amendment.
(b) This Amendment has been duly executed and delivered on its
behalf and constitutes its legal, valid and binding obligation enforceable
against it in accordance with the terms of this Amendment.
(c) On the date of this Amendment, there does not exist a Default
or Unmatured Default which has not been waived hereby.
(d) None of such Persons has any existing claims, defenses,
personal or otherwise, or rights of setoff whatsoever with respect to any of the
Loan Documents.
5. NO OTHER AMENDMENT. Except as expressly amended hereby, the Credit
Agreement and other Loan Documents shall remain in full force and effect as
written.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
[Signature Page Following]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
SOS STAFFING SERVICES, INC.,
as the Borrower
By: /s/ XxXxx X. Xxxxxx
-----------------------------
Name: XxXxx X. Xxxxxx
Title: Chairman, President and
Chief Executive Officer
BANK ONE, NA, as the Documentation
Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------
Title: First Vice President
----------------------------
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as the Administrative
Agent and a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------
Title: Vice President
----------------------------
ACKNOWLEDGED AND AGREED
as of the 4th day of September, 2001:
BEDFORD CONSULTANTS, INC. [merged
with Inteliant Corporation
March 2000]
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
INTELIANT CORPORATION
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
----------------------------
Title: Vice President
----------------------------
SERVCOM STAFF MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------
Title: President
--------------------------
SOS COLLECTION SERVICES, INC.
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
----------------------------
Title: Vice President
---------------------------
DEVON & DEVON PERSONNEL SERVICES, INC.
By: /s/ XxXxx X. Xxxxxx
-----------------------------
Name: XxXxx X. Xxxxxx
--------------------------
Title: President
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