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EXHIBIT 4.2
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SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Second Amendment") dated as of February 12, 2001 is by and among kforce.com,
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
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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 (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
and Administrative Agent shall have received any such request
on or before January 1, 2002;
(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;
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(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 $72,000,000 in
the aggregate.
2. Amendment Fee. Concurrently with its execution and delivery
of this Second Amendment, the Borrower shall pay to the Administrative Agent,
for the pro rata benefit of the Lenders, an amendment fee in the amount of
$42,500.
3. Conditions Precedent. The effectiveness of this Second
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 Second 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 Second 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 Second Amendment.
5. The Guarantors (i) acknowledge and consent to all of the
terms and conditions of this Second Amendment, (ii) affirm all of their
obligations under the Loan Documents and (iii) agree that this Second 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
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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 Second
Amendment.
(ii) This Second 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 Second 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 Second 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 Second Amendment
to produce or account for more than one such counterpart.
9. This Second 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 Second Amendment to be duly executed and delivered as of the date first
above written.
BORROWER: KFORCE.COM, INC.,
- --------- a Florida corporation
By:
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Name:
--------------------------------
Title:
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GUARANTORS: KFORCE.COM, INC.
- ---------- a Texas corporation
By:
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Name:
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Title:
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ROMAC OF TEXAS, INC.,
a Florida corporation
By:
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Name:
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Title:
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KFORCE AIRLINES, INC.,
a Florida corporation
By:
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Name:
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Title:
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YBOR HQ1, INC.,
a Florida corporation
By:
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Name:
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Title:
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KFORCE, INC.,
a Florida corporation
By:
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Name:
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Title:
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ROMAC INTERNATIONAL INC.,
a Florida corporation
By:
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Name:
--------------------------------
Title:
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ROMAC OF TEXAS L.L.P.
a Florida corporation
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By: ROMAC OF TEXAS, INC.,
its sole general partner
By: /s/ David ??????
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Name: David ??????
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Title:
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AGENT: BANK OF AMERICA, N.A.,
- ------ as Administrative Agent
By: /s/ Mark Herdman
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Name: Mark Herdman
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Title: Vice President
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LENDERS: BANK OF AMERICA, N.A.,
- ------- individually in its capacity as
a Lender
By: /s/ Mark Herdman
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Name: Mark Herdman
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Title: Vice President
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FLEET CAPITAL CORPORATION
By: /s/ Christopher Nairne
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Name: Christopher Nairne
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Title: Vice President
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MELLON BANK, N.A.
By:
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Name: Roger Attix
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Title: Vice President
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MELLON BANK, N.A.
By: /s/ Patrick Aarons
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Name: Patrick Aarons
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Title: Vice President
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AUTHORIZATION CERTIFICATE
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The undersigned, being the Assistant Secretary of KFORCE.COM, 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 her knowledge,
information and belief:
(1) She is the Assistant Secretary and Treasurer of Borrower;
(2) Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida, with full power
and authority to execute and deliver and to carry out and perform its
obligations under the Credit Agreement; and
(3) A First Amendment to Amended and Restated Credit Agreement
and to Security Agreement, dated December 10, 2000, and a Second Amendment to
Amended and Restated Credit Agreement, dated on or about the date hereof, have
been duly authorized, executed and delivered by and on behalf of Borrower.
IN WITNESS WHEREOF, the undersigned has set her hand, this ___ day of
February, 2001.
/s/ Eileen Kelly
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EILEEN KELLY, Assistant Secretary
and Treasurer
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STATE OF GEORGIA
COUNTY OF FULTON
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 Eileen Kelly (the "Affiant"), who, being
by me first duly sworn, stated under oath:
1. Affiant is the Assistant Secretary and Treasurer of
kforce.com, Inc. and has personal knowledge of the facts stated herein.
2. Affiant has on the date hereof in Fulton County, Georgia,
executed that certain Second Amendment to Amended and Restated Credit
Agreement, dated on or about the date hereof (the "Amendment"), by and among
kforce.com, 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 Fulton County, Georgia,
executed the Amendment on behalf of each Credit Party thereto (other than Romac
of Texas, Inc. and Romac of Texas I, L.P.) and delivered the Amendment to the
Administrative Agent in Fulton County, Georgia.
Dated: February 14, 2001
/s/ Eileen Kelly
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Name: Eileen Kelly
Sworn to and subscribed before me
this 14th day of February, 2001
Tahira Muhammad
- -------------------------------------
Notary Public
Print Name: Tahira Muhammad
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My Commission Expires: March 17, 2002
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