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Exhibit 10.30
FIRST AMENDMENT
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "First Amendment") is made and entered into as of the 6th day
of May, 1999, by and among STAFFMARK, INC., a Delaware corporation (the
"Borrower"), ROBERT WALTERS PLC, a limited liability company organized and
existing under the laws of England and Wales ("Robert Walters"), ROBERT WALTERS
TRISTAR PTY LTD., a limited liability company organized and existing under the
laws of Australia ("Tristar," and with Robert Walters referred to herein as the
"Alternate Currency Borrowers"), the undersigned lenders which are parties to
the Credit Agreement (as herein defined) (the "Lenders"), THE FIRST NATIONAL
BANK OF CHICAGO, as syndication agent on behalf of Lenders (in such capacity,
the "Syndication Agent") and MERCANTILE BANK NATIONAL ASSOCIATION, as
administrative agent on behalf of Lenders (in such capacity, the
"Administrative Agent" and collectively with the Syndication Agent referred to
herein as the "Agents"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, CREDIT LYONNAIS NEW YORK BRANCH, FLEET NATIONAL BANK and FIRST
UNION NATIONAL BANK, as co-agents on behalf of the Lenders (in such capacity,
the "Co-Agents").
WITNESSETH:
WHEREAS, the Borrower, the Agents, the Co-Agents and the
Lenders have previously entered into that certain Third Amended and Restated
Credit Agreement dated as of January 20, 1999 (as amended, the "Credit
Agreement"); and
WHEREAS, the Borrower has executed and delivered to Lenders,
respectively, its Revolving Credit Notes in the aggregate original principal
amount of $300,000,000.00 (collectively, the "Original Notes"); and
WHEREAS, the Borrower, Agents, Co-Agents and Lenders desire
to, among other things, temporarily increase the maximum principal amount of
Revolving Credit Loans available to Borrower under the Credit Agreement from
$300,000,000.00 to $325,000,000.00 for the period from the date hereof up to
but excluding March 31, 2000 and to amend and restate those Original Notes of
the Lenders which are accepting a commitment under such new temporary facility
during such period, all upon the terms and conditions set forth herein; and
WHEREAS, from and after March 31, 2000 through August 20,
2003, the Primary Facility (as defined in Section 3.1(a) herein) shall continue
as set forth herein;
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NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto mutually promise and agree as follows:
1. A new definition of "Additional Commitment" shall be added
to Section 2 of the Credit Agreement in proper alphabetical order as follows:
Additional Commitment shall mean for each Lender,
subject to termination or reduction as set forth in Section 3.12 or to
termination upon expiration of the Temporary Facility as set forth in
Section 3.1(b), the amount set forth as the Additional Commitment of
such Lender next to its name on the signature pages of the First
Amendment or on the signature pages of any subsequent amendment or of
any subsequent Assignment Agreement to which such Lender is a party,
and Additional Commitments shall mean all of such Additional
Commitments of any of the Lenders holding the same.
2. A new definition of "First Amendment" shall be added to
Section 2 of the Credit Agreement in proper alphabetical order as follows:
First Amendment shall mean that certain First
Amendment to Third Amended and Restated Credit Agreement dated as of
May 6, 1999 made by and among the Borrower, the Agents, the Co-Agents
and the Lenders.
3. A new clause (vii) shall be added at the end of the
definition of "Interest Period" in Section 2 of the Credit Agreement
immediately following clause (vi) therein as follows:
(vii) No Interest Period with respect to any LIBOR
Loan under the Temporary Facility shall extend beyond March 31, 2000.
4. The definition of "Loan Commitment" in Section 2 of the
Credit Agreement hereby is deleted in its entirety and the following is
substituted in its place:
Loan Commitment for each Lender shall mean the total
of the Revolving Credit Commitment, if any, the Additional Commitment,
if any, and the Swing Line Commitment, if any, of each such Lender.
5. The definition of "Pro Rata Share" in Section 2 of the
Credit Agreement hereby is deleted in its entirety and the following is
substituted in its place:
Pro Rata Share with respect to each Lender shall
mean: (i) with respect to Loans made or to be advanced under Section
3.1(a) herein, such Lender's percentage, if any, of the total
Revolving Credit Commitments of all of
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the Lenders, determined by dividing such Lender's Revolving Credit
Commitment under Section 3.1(a) by the aggregate sum of the total
Revolving Credit Commitments of all of the Lenders under Section
3.1(a), and (ii) with respect to Loans made or to be advanced under
the Temporary Facility under Section 3.1(b) herein, such Lender's
percentage, if any, of the total Additional Commitments of all of the
Lenders, determined by dividing the amount of such Lender's Additional
Commitment under Section 3.1(b) by the aggregate sum of the total
Additional Commitments of all of the Lenders under such Section
3.1(b); provided that as used in Section 8 and Section 9.6 herein, the
term Pro Rata Share shall mean with respect to each Lender, such
Lender's percentage of the Total Revolving Credit Commitment of all of
the Lenders (under both Section 3.1(a) and Section 3.1(b)), determined
by dividing the sum of such Lender's Revolving Credit Commitment, if
any, and its Additional Commitment, if any, by the aggregate sum of
the Total Revolving Credit Commitment of all of the Lenders (i. e.
under both Section 3.1(a) and Section 3.1(b)).
6. The definition of "Revolving Credit Notes" in Section 2 of
the Credit Agreement hereby is deleted in its entirety and the following is
substituted in its place:
Revolving Credit Notes shall mean each of the
Revolving Credit Notes of the Borrower to be executed and delivered to
each of the Lenders pursuant to Section 3.1, pursuant to the First
Amendment or pursuant to an Assignment Agreement, as the same may from
time to time be amended, modified, extended or renewed.
7. A new definition of "Temporary Facility" shall be added to
Section 2 of the Credit Agreement in proper alphabetical order as follows:
Temporary Facility shall mean that portion of the
Total Revolving Credit Commitments of the Lenders in excess of Three
Hundred Million Dollars ($300,000,000.00), which is available under
Section 3.1(b) herein up to but excluding March 31, 2000.
8. The definition of "Total Revolving Credit Commitment" in
Section 2 of the Credit Agreement hereby is deleted in its entirety and the
following is substituted in its place:
Total Revolving Credit Commitment shall mean the sum
of the total Revolving Credit Commitments of all of the Lenders plus
the total Additional Commitments of all of the Lenders.
9. Section 3.1 of the Credit Agreement hereby is deleted in
its entirety and the following is substituted in its place:
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3.1 Revolving Credit Loans.
(a) Primary Facility. Subject to the terms
and conditions hereof, during the Term of this Agreement,
each Lender hereby severally agrees to make such loans (each,
individually, a "Revolving Credit Loan" and collectively with
the Loans under Section 3.1(b) below, the "Revolving Credit
Loans"), to the Borrower as the Borrower may from time to
time request pursuant to Section 3.3(a). Subject to the terms
and conditions hereof, during the Term of this Agreement, the
Alternate Currency Bank hereby agrees to make Alternate
Currency Loans to the Alternate Currency Borrowers pursuant
to the applicable Alternate Currency Addenda as the
applicable Alternate Currency Borrower may from time to time
request pursuant to Section 3.19 and the Applicable Currency
Addenda. The aggregate principal amount of Revolving Credit
Loans which Lenders, cumulatively, shall be required to have
outstanding under this Section 3.1(a) at any one time, plus
such Lenders' respective obligations (i) under Section 3.18
to purchase pro rata interests in the outstanding principal
amount of the Swing Loans then outstanding under Section 3.2,
(ii) to purchase participations under Section 3.19(e) in the
Dollar Amounts of Alternate Currency Loans then outstanding
pursuant to Section 3.19, and (iii) to purchase
participations under Section 3.4(d) in the undrawn face
amount of Letters of Credit issued by Administrative Agent
and then outstanding under Section 3.4, shall not, other than
as a result of currency exchange rate fluctuations, exceed
Three Hundred Million Dollars ($300,000,000.00). The amount
each Lender shall be required to have outstanding hereunder
as Revolving Credit Loans plus its undivided Pro Rata Share
of each Swing Loan made by Mercantile under Section 3.2 plus
its undivided Pro Rata Share participation interest in each
Letter of Credit issued by Administrative Agent under Section
3.4, plus its undivided Pro Rata Share of each Alternate
Currency Loan made pursuant to Section 3.19, shall not, other
than as a result of currency exchange rate fluctuations,
exceed, in the aggregate at any one time outstanding, the
amount of such Lender's Revolving Credit Commitment. Each
Revolving Credit Loan under this Section 3.1(a) shall be made
by the Lenders ratably in proportion to their respective
Revolving Credit Commitments. Subject to the terms and
conditions of this Agreement, the Borrower may borrow, repay
and reborrow the amounts available under this Section 3.1(a).
(b) Temporary Facility. From the date of
the First Amendment up to but excluding March 31, 2000,
subject to the other terms and conditions of this Agreement
and provided that the sum of the Revolving Credit Loans,
Alternate Currency Loans, Letters of Credit and Swing Loans
made by Lenders under Section 3.1(a) above and presently
outstanding equal the sum of all of the Revolving Credit
Commitments of the Lenders under Section 3.1(a)
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above, each Lender having an Additional Commitment hereby
severally agrees to make such loans (each, individually, a
"Revolving Credit Loan") to the Borrower as the Borrower may
from time to time request pursuant to Section 3.3(a), and
subject to the other terms and conditions hereof: (x) the
Alternate Currency Bank hereby agrees to make Alternate
Currency Loans under the Additional Commitments available
under this Section 3.1(b) to the Alternate Currency Borrowers
pursuant to the applicable Alternate Currency Addenda as the
applicable Alternate Currency Borrower may from time to time
request pursuant to Section 3.19 and the Applicable Currency
Addenda, (y) the Administrative Agent agrees to issue Letters
of Credit for the account of Borrower under the Additional
Commitments available under this Section 3.1(b) pursuant to
the applicable Letter of Credit Applications as the Borrower
may from time to time request pursuant to Section 3.4, and
(z) the Administrative Agent agrees to make Swing Loans to
Borrower pursuant to Section 3.2, all of which Alternate
Currency Loans, Letter of Credit obligations and Swing Loans
shall be subject to participation by the Lenders under their
Additional Commitments available under this Section 3.1(b) as
provided respectively in Section 3.19(e), Section 3.4(d) and
Section 3.18 herein. The aggregate principal amount of
Revolving Credit Loans which Lenders, cumulatively, shall be
required to have outstanding under this Section 3.1(b) at any
one time, plus such Lenders' respective obligations under
this Section 3.1(b) (i) to purchase pro rata interests under
Section 3.18 in the outstanding principal amount of the Swing
Loans then outstanding under Section 3.2, (ii) to purchase
participations under Section 3.19(e) in the Dollar Amounts of
Alternate Currency Loans then outstanding pursuant to Section
3.19, and (iii) to purchase participations under Section
3.4(d) in the undrawn face amount of Letters of Credit issued
by Administrative Agent and then outstanding under Section
3.4, shall not, other than as a result of currency exchange
rate fluctuations, exceed Twenty-Five Million Dollars
($25,000,000.00). The amount each Lender shall be required to
have outstanding under this Section 3.1(b) as Revolving
Credit Loans plus its undivided Pro Rata Share of each Swing
Loan made by Mercantile under Section 3.2 plus its undivided
Pro Rata Share participation interest in each Letter of
Credit issued by Administrative Agent under Section 3.4, plus
its undivided Pro Rata Share of each Alternate Currency Loan
made pursuant to Section 3.19, shall not, other than as a
result of currency exchange rate fluctuations, exceed, in the
aggregate at any one time outstanding, the amount of such
Lender's Additional Commitment. Each Revolving Credit Loan
under this Section 3.1(b) shall be made by the Lenders
ratably in proportion to their respective Additional
Commitments. Subject to the terms and conditions of this
Agreement, prior to March 31, 2000 the Borrower may borrow,
repay and reborrow the amounts available under this Section
3.1(b). On March 31, 2000, Borrower agrees to immediately
repay any and all Loans and other Borrower's Obligations then
outstanding under Temporary Facility together with all
accrued and unpaid
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interest and fees due thereon and any amounts due under
Section 3.6 herein with respect to any such Loans then
outstanding as LIBOR Loans.
(c) Notes. The Revolving Credit Loans under
Sections 3.1(a) and (b) above shall be evidenced on the date
of the First Amendment by the Revolving Credit Notes of the
Borrower, dated either as of the date of this Agreement or as
of the date of the First Amendment in the case of Lenders
with Additional Commitments under the Temporary Facility, and
payable by the Borrower to the respective orders of each of
the Lenders in the aggregate original principal amount of
Three Hundred Twenty-Five Million Dollars ($325,000,000.00)
and otherwise substantially in the form attached as Exhibit A
hereto (or as Exhibit A to the First Amendment in the case of
Lenders with Additional Commitments under the Temporary
Facility) and incorporated herein by reference (as the same
may from time to time be amended, restated, modified,
extended or renewed, the "Revolving Credit Notes"). The
Alternate Currency Loans shall be evidenced by Alternate
Currency Notes of the applicable Alternate Currency Borrower,
each dated the date hereof and payable by the Alternate
Currency Borrower to the order of the Alternate Currency Bank
in the original principal amount of $25,000,000 and otherwise
in the form attached hereto as Exhibit A-1 (as the same may
be from time to time amended, restated, modified, extended or
renewed, the "Alternate Currency Notes"). The Revolving
Credit Notes and the Alternate Currency Notes shall mature on
August 20, 2003, unless earlier terminated by acceleration or
otherwise upon the occurrence of an Event of Default under
this Agreement.
(d) Order of Borrowing, Repayments and
Commitment Reductions. Borrower and Lenders agree that
notwithstanding any other provision of this Agreement, prior
to the occurrence of an Event of Default hereunder, the
amounts borrowed hereunder shall be advanced by the Lenders
under Section 3.1(a) first, and only after all amounts
available under Section 3.1(a) have been borrowed and are
outstanding shall the amounts borrowed under this Section 3.1
be advanced under the Temporary Facility under Section
3.1(b). Borrower and Lenders further agree that
notwithstanding any other provision of this Agreement, prior
to the occurrence of an Event of Default hereunder, any
repayments of Loans hereunder shall be applied first to
reduce any outstanding Loans under the Temporary Facility
under Section 3.1(b) until repaid in full before being
applied to reduce the Loans and other obligations outstanding
under Section 3.1(a). Borrower and Lenders further agree that
any partial terminations of the Revolving Credit Commitments
and the Additional Commitments pursuant to Section 3.12 shall
be applied to terminate the Additional Commitments under
Temporary Facility first before any such termination or
reduction shall be applied to the Revolving Credit
Commitments under Section 3.1(a).
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(e) Each Lender shall record in its books
and records, and prior to any transfer of its Notes shall
endorse on the schedules forming a part thereof, appropriate
notations to evidence the date and amount of each Loan made
by it during the Term hereof, whether such Loan is then a
Base Rate Loan, a LIBOR Loan or an Alternate Currency Loan,
and the date and amount of each payment of principal made by
the applicable Borrower with respect thereto. Each Lender is
hereby irrevocably authorized by Borrowers so to endorse its
Notes and to attach to and make a part of any such Notes a
continuation of any such schedule as and when required;
provided, however that the obligation of Borrowers to repay
each Loan made hereunder shall be absolute and unconditional,
notwithstanding any failure of any Lender to endorse or any
mistake by any Lender in connection with endorsement on the
schedules attached to their respective Notes. The books and
records of each Lender (including, without limitation, the
schedules attached to the Notes) showing the account between
such Lender and Borrower shall be admissible in evidence in
any action or proceeding and shall constitute prima facie
proof of the items therein set forth.
10. Section 3.2 of the Credit Agreement hereby is deleted in
its entirety and the following is substituted in its place:
3.2 The Swing Line . Subject to all of the terms and
conditions hereof and so long as no Default or Event of
Default under this Agreement has occurred and is continuing,
Mercantile agrees to make loans to Borrower under a Swing
Line ("Swing Loans") during the Term of this Agreement which
shall not in the aggregate at any time outstanding exceed the
lesser of (i) the Swing Line Commitment, or (ii) the
difference between (x) the sum of the Revolving Credit
Commitments of all of the Lenders and the Additional
Commitments of all of the Lenders (if then available) and (y)
the amount of the Revolving Credit Loans and Alternate
Currency Loans and the undrawn face amount of Letters of
Credit then outstanding hereunder at the time of computation.
The Swing Line Commitment shall be available to Borrower and
may be availed of by Borrower from time to time, and
borrowings thereunder may be repaid and used again during the
period ending on the last day of the Term hereof. All Swing
Loans shall be made hereunder only as Base Rate Loans. All
advances made by Mercantile to Borrower under the Swing Line
shall be evidenced by the Swing Line Note of Borrower dated
as of the date hereof (the "Swing Line Note") payable to the
order of Mercantile in the amount of the Swing Line
Commitment and being in the form attached hereto as Exhibit
B.
11. The third sentence of Section 3.4(c) of the Credit
Agreement hereby is deleted in its entirety and the following is substituted in
its place:
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In the event any payment under a Letter of Credit is made by
Administrative Agent prior to receipt of payment from Borrower, such
payment by Administrative Agent shall constitute a request by Borrower
for a Revolving Credit Loan as a Base Rate Loan under either Section
3.1(a) or Section 3.1(b) above.
12. Section 3.12 of the Credit Agreement hereby is deleted in
its entirety and the following is substituted in its place:
3.12 Termination or Reduction of Commitments. The
Borrower may, upon three (3) Business Days' prior written
notice to Administrative Agent, terminate entirely at any
time, or proportionately reduce from time to time on a pro
rata basis among the Lenders based on their respective
Additional Commitments and/or Revolving Credit Commitments,
as the case may require, by an aggregate amount of
$5,000,000.00 or any larger multiple of $5,000,000.00, the
unused portions of the Additional Commitments and/or
Revolving Credit Commitments as specified by Borrower in such
notice to Administrative Agent; provided, however, that (i)
prior to March 31, 2000, all such reductions shall be applied
first to any Additional Commitments and second to the
Revolving Credit Commitments, (ii) at no time shall the
Additional Commitments be reduced to a figure less than the
total of the outstanding principal amount of Revolving Credit
Loans plus the outstanding principal amount of all Swing
Loans plus the outstanding principal amount of all Alternate
Currency Loans, plus the face amount of all outstanding
Letters of Credit then outstanding pursuant to Section
3.1(b), (iii) at no time shall the Revolving Credit
Commitments be reduced to a figure less than the total of the
outstanding principal amount of all Revolving Credit Loans
plus the outstanding principal amount of all Swing Loans plus
the outstanding principal amount of all Alternate Currency
Loans, plus the face amount of all outstanding Letters of
Credit then outstanding pursuant to Section 3.1(a), (iv) at
no time shall the Additional Commitments be reduced to a
figure greater than zero but less than $5,000,000.00, (v) at
no time shall the Revolving Credit Commitments be reduced to
a figure greater than zero but less than $100,000,000.00, and
(vi) any such termination or reduction shall be permanent and
the Borrower shall have no right to thereafter reinstate or
increase the Additional Commitment or the Revolving Credit
Commitment, as the case may be, of any Lender. Each Alternate
Currency Borrower may, upon three Business Days prior written
notice to the Alternate Currency Bank, terminate entirely at
any time or reduce from time to time by an aggregate amount
of $5,000,000.00 or any larger multiple of $5,000,000.00 the
unused portions of the applicable Alternate Currency
Commitment as specified by the applicable Alternate Currency
Borrower in such notice to the Alternate Currency Bank;
provided, however, that at no time shall the Alternate
Currency Commitments be reduced
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to a figure less than the total of the outstanding principal
amount of all Alternate Currency Loans.
13. Section 3.18 of the Credit Agreement hereby is deleted in
its entirety and the following is substituted in its place:
3.18 Swing Loan Settlement After Default . Upon the
occurrence of any Event of Default, Administrative Agent
shall promptly so notify the other Lenders pursuant to
Section 8 herein thereof and of the amount of the Swing Loans
from Mercantile then outstanding, and each of the other
Lenders agrees to immediately purchase from Mercantile with
immediately available funds its Pro Rata Share of the amount
of all such Swing Loans, plus accrued and unpaid interest
calculated on such Pro Rata Share of such principal amount at
a rate per annum equal to the Base Rate plus Applicable
Margin. Such Pro Rata Shares of the Lenders shall be
determined, first, based upon the then available Revolving
Credit Commitments of the Lenders under Section 3.1(a) herein
to the extent any portion thereof then remains unborrowed,
and then based upon the Additional Commitments of the Lenders
under Temporary Facility. Following such advance by each
Lender to Mercantile of its Pro Rata Share of any such Swing
Loans pursuant to the preceding sentence, each such Lender
shall thereafter receive its Pro Rata Share of all principal
payments, interest payments, fees and other amounts due with
respect to such Swing Loans when paid by the Borrower to the
Administrative Agent hereunder. Such Loans shall thereafter
be evidenced by the Revolving Credit Notes of each of the
Lenders.
14. The last sentence of Section 7.1(a) of the Credit
Agreement hereby is deleted in its entirety and the following is substituted in
its place:
Each of the Agents and each of the Lenders are
hereby authorized to deliver a copy of any financial
statement or other information made available by the Borrower
to any proposed assignee or participant in any portion of any
Lender's Loans and its Revolving Credit Commitment and
Additional Commitment, if any, hereunder and to any
regulatory authority having jurisdiction over any such Agent
or any such Lender, pursuant to any request therefor.
15. Schedules 6.5, 6.8, 6.15, and 7.1(k)(viii) to the Credit
Agreement are hereby amended and restated in the forms of Schedules 6.5, 6.8,
6.15, and 7.1(k)(viii) attached to this First Amendment, and all references in
the Credit Agreement to any of such Schedules shall on and after the date
hereof refer to such Schedules in the forms attached to this First Amendment.
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16. The agreements of Agent and the Lenders as set forth
herein are expressly conditioned upon the following:
(a) Resolutions of the Board of Directors of Borrower
authorizing the increase in the Revolving Credit Commitment and the execution
and delivery of this Agreement and the amended and restated Revolving Credit
Notes referenced herein, which resolutions shall be certified to Agents,
Co-Agents and the Lenders by the Secretary of Borrower;
(b) Execution by Borrower of this Agreement and of each of
the amended and restated Revolving Credit Notes in the amounts equal to the sum
of the Revolving Credit Commitment and the Additional Commitment of each of the
respective Lenders holding an Additional Commitment;
(c) Execution by Guarantors of the Consent of Guarantors in
the form attached to this Agreement;
(d) Delivery to Agent and Lenders of an opinion of Borrower's
counsel in form and substance satisfactory to Agent and Lenders relating to the
due execution, delivery and enforceability of this Agreement and the other
Transaction Documents and such other matters as Agent and Lenders may
reasonably require; and
(e) Payment to Administrative Agent of the fee required by
the fee letter between Borrower and the Agents dated of even date herewith.
17. Borrower hereby represents and warrants to Agent and to
Lenders that:
(a) The execution, delivery and performance by Borrower of
this First Amendment and the amended and restated Revolving Credit Notes are
within the corporate powers of Borrower, have been duly authorized by all
necessary corporate action and require no action by or in respect of, or filing
with, any governmental or regulatory body, agency or official. The execution,
delivery and performance by Borrower of this First Amendment and the amended
and restated Revolving Credit Notes do not conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a default under or
result in any violation of, and Borrower is not now in default under or in
violation of, the terms of the Certificate of Incorporation or Bylaws of
Borrower, any applicable law, any rule, regulation, order, writ, judgment or
decree of any court or governmental or regulatory agency or instrumentality, or
any agreement or instrument to which Borrower is a party or by which it is
bound or to which it is subject;
(b) This First Amendment and the amended and restated
Revolving Credit Notes have been duly executed and delivered and constitute the
legal, valid and binding obligations of Borrower enforceable in accordance with
their respective terms; and
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(c) As of the date hereof, all of the covenants,
representations and warranties of Borrower set forth in the Credit Agreement
are true and correct and no "Default" or "Event of Default" (as defined
therein) under or within the meaning of the Credit Agreement, as hereby
amended, has occurred and is continuing.
18. The Credit Agreement, as hereby amended, the Revolving Credit
Notes, as hereby amended and restated, and the other Transaction Documents are
and shall remain the binding obligations of Borrower, and except to the extent
amended by this First Amendment, all of the terms, provisions, conditions,
agreements, covenants, representations, warranties and powers contained in the
Credit Agreement, the Revolving Credit Notes and the other Transaction Documents
shall be and remain in full force and effect and the same are hereby ratified
and confirmed. This First Amendment amends the Credit Agreement and is not a
novation thereof.
19. All references in the Credit Agreement or the other Transaction
Documents to "this Agreement" and any other references of similar import shall
henceforth mean the Credit Agreement as amended by this First Amendment.
20. This First Amendment shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except that
Borrower may not assign, transfer or delegate any of its rights or obligations
hereunder.
21. This First Amendment is made solely for the benefit of Borrower,
Agent and Lenders as set forth herein, and is not intended to be relied upon or
enforced by any other person or entity.
22. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER, AGENT AND LENDERS
FROM ANY MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER,
AGENT AND LENDERS COVERING SUCH MATTERS ARE CONTAINED IN THIS FIRST AMENDMENT,
THE CREDIT AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, WHICH CONSTITUTE A
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENTS BETWEEN BORROWER, AGENT AND
LENDERS EXCEPT AS BORROWER, AGENT AND LENDERS MAY LATER AGREE IN WRITING TO
MODIFY. THIS FIRST AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR WRITTEN)
RELATING TO THE SUBJECT MATTER HEREOF.
23. This First Amendment shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
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24. In the event of any inconsistency or conflict between
this First Amendment and the Credit Agreement or the other Transaction
Documents, the terms, provisions and conditions of this First Amendment shall
govern and control.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to Third Amended and Restated Credit Agreement to be executed and
delivered by their duly authorized officers as of the date first above written.
STAFFMARK, INC.
By: /s/ Terry Bellora
Name: Terry Bellora
Title: Chief Financial Officer
ROBERT WALTERS PLC
By: /s/ T.W. Chambers
Name: Thomas Chambers
Title: Finance Director
ROBERT WALTERS TRISTAR PTY LTD.
By: /s/ E. Goldhammer
Name: E. Goldhammer
Title: Chairman
Revolving Credit Commitment: MERCANTILE BANK
$39,000,000.00 NATIONAL ASSOCIATION
Additional Commitment:
$4,166,666.67
By: /s/ Jeffrey A. Nelson
Name: Jeffrey A. Nelson
Title: Vice President
Address: 721 Locust Street
St. Louis, Missouri 63101
Attention: Mid America Group
Telecopy No: 314-418-3859
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Revolving Credit Commitment: FIRST AMERICAN NATIONAL BANK D/B/A
$15,000,000.00 DEPOSIT GUARANTY
Additional Commitment:
$0.00
By: /s/ Ronald L. Hendrix
Name: Ronald L. Hendrix
Title: Senior Vice President
Address: 210 E. Capital Street
Suite 1180
Jackson, Mississippi 39201
Attention: Ronald L. Hendrix, VP
Telecopy No. 601-354-8412
Revolving Credit Commitment: THE FIRST NATIONAL BANK OF CHICAGO
$39,000,000.00
Additional Commitment:
$4,166,666.67
By: /s/ Jenny A. Gilpin
Name: Jenny A. Gilpin
Title: Vice President
Address: One First National Plaza
14th Floor
Mail Code IL1-0088
Chicago, Illinois 60670-0088
Attention: Jenny A. Gilpin, VP
Telecopy No. (312)732-2991
Revolving Credit Commitment: FIRST UNION NATIONAL BANK
$30,000,000.00
Additional Commitment:
$0.00
By: /s/ Henry R. Biedrzycki
Name: Henry R. Biedrzycki
Title: Vice President
Address: One First Union Center
301 South College Street, DC5
Charlotte, North Carolina 28288-0737
Attention: Henry R. Biedrzycki, VP
Telecopy No. (704)374-3300
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Revolving Credit Commitment: LASALLE NATIONAL BANK
$20,000,000.00
Additional Commitment:
$0.00
By: /s/ Tom Harmon
Name: Tom Harmon
Title: AVP
Address: One Metropolitan Square
211 North Broadway
Suite 2140
St. Louis, Missouri 63102
Attention: Tom Harmon, AVP
Telecopy No. (314)621-1612
Revolving Credit Commitment: BANK OF AMERICA NATIONAL TRUST
$30,000,000.00 AND SAVINGS ASSOCIATION
Additional Commitment:
$4,166,666.67
By: /s/ Kevin Leader
Name: Kevin Leader
Title: Managing Director
Address: 555 California Street
41st Floor
San Francisco, California 94104
Attention: Kevin Leader, Managing Dir.
Telecopy No. (415) 622-8168
Revolving Credit Commitment: FLEET NATIONAL BANK
$30,000,000.00
Additional Commitment:
$4,166,666.67
By: /s/ Michael S. Houllahan
Name: Michael S. Houllahan
Title: Assistant Vice President
Address: One Federal Street
4th Floor
Boston, Massachusetts 02110
Attention: Deborah Lawrence, SVP
Telecopy No. (617)346-4667
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Revolving Credit Commitment: COMERICA BANK
$20,000,000.00
Additional Commitment:
$0.00
By: /s/ Mark Grover
Name: Mark Grover
Title: Vice President
Address: 4100 Spring Valley Road
Suite 900
Dallas, Texas 75244
Attention: Mark Grover
Telecopy No. (214)818-2550
Revolving Credit Commitment: CREDIT LYONNAIS NEW YORK BRANCH
$30,000,000.00
Additional Commitment:
$4,166,666.66
By: /s/ Robert Ivosevich
Name: Robert Ivosevich
Title: Senior VP
Address: 2200 Ross Avenue
Dallas, Texas 75201
Attention: Robert Smith
Telecopy No. (214)220-2323
Revolving Credit Commitment: HIBERNIA NATIONAL BANK
$17,000,000.00
Additional Commitment:
$0.00
By: /s/Angela Bentley
Name: Angela Bentley
Title: Portfolio Manager
Address: 313 Carondelet
12th Floor
New Orleans, Louisiana 70130
Attention: Angela Bentley
Telecopy No. (504)533-5344
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Revolving Credit Commitment: BANQUE NATIONALE DE PARIS,
$15,000,000.00 HOUSTON AGENCY
Additional Commitment:
$0.00
By: /s/ Warren G. Parham
Name: Warren G. Parham
Title: Vice President
Address: 333 Clay Street,
Suite 3400
Houston, Texas 77002
Attention: Warren G. Parham
Telecopy No. (713) 659-1414
Revolving Credit Commitment: WACHOVIA BANK, N.A.
$15,000,000.00
Additional Commitment:
$4,166,666.66
By: /s/ Ken Washington
Name: Ken Washington
Title: Vice President
Address: 191 Peachtree N.E.
Atlanta, Georgia 30303
Attention: Ken Washington
Telecopy No. (404) 332-5016
MERCANTILE BANK NATIONAL
ASSOCIATION, AS ADMINISTRATIVE AGENT
By: /s/ Jeffrey A. Nelson
Name: Jeffrey A. Nelson
Title: Vice President
Address: 721 Locust Street
St. Louis, Missouri 63101
Attention: Mid America Group
Telecopy No: 314-418-3859
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THE FIRST NATIONAL BANK OF
CHICAGO, AS SYNDICATION AGENT
By: /s/ Jenny A. Gilpin
Name: Jenny A. Gilpin
Title: VP
Address: One First National Plaza, 14th Floor
Mail Code IL1-0088
Chicago, Illinois 60670-0088
Attention: Jenny A. Gilpin, VP
Telecopy No. (312)732-2991
CREDIT LYONNAIS NEW YORK
BRANCH, AS CO-AGENT
By: /s/ Robert Ivosevich
Name: Robert Ivosevich
Title: Senior Vice President
Address: 2200 Ross Avenue
Dallas, Texas 75201
Attention: Robert Smith
Telecopy No. (214)220-2323
FIRST UNION NATIONAL BANK, AS CO-AGENT
By: /s/ Henry R. Biedrzycki
Name: Henry R. Biedrzycki
Title: VP
Address: One First Union Center
301 South College Street, DC5
Charlotte, North Carolina 28288-0737
Attention: Henry R. Biedrzycki, VP
Telecopy No. (704)374-3300
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS CO-AGENT
By: /s/ Kevin Leader
Name: Kevin Leader
Title: Managing Director
Address: 555 California Street
41st Floor
San Francisco, California 94104
Attention: Kevin Leader, Managing Dir.
Telecopy No. (415) 622-8168
FLEET NATIONAL BANK, AS CO-AGENT
By: /s/ Michael S. Houllahan
Name: /s/ Michael S. Houllahan
Title: Assistant Vice President
Address: One Federal Street
4th Floor
Boston, Massachusetts 02110
Attention: Deborah Lawrence, SVP
Telecopy No. (617)346-4667
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