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EXHIBIT 10.43
AMENDMENT NO. 5 TO CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 TO CREDIT AND SECURITY AGREEMENT (this
"AMENDMENT") is entered into as of September 15, 2000, by and among:
(1) SPHERION RECEIVABLES CORP., a Delaware corporation formerly known
as Interim Services Receivables Corp. (together with its successors and
permitted assigns, the "BORROWER"),
(2) SPHERION CORPORATION, a Delaware corporation formerly known as
Interim Services Inc. (together with its successors, "SPHERION"), as initial
servicer (in such capacity, the "SERVICER"),
(3) BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware corporation (together
with its successors, "BLUE RIDGE"), FALCON ASSET SECURITIZATION CORPORATION, a
Delaware corporation (together with its successors, "FALCON"), WACHOVIA BANK,
N.A., a national banking association, in its capacity as a Liquidity Bank to
Blue Ridge (together with its successors, "WACHOVIA"), and BANK ONE, NA, a
national banking association having its main office in Chicago, Illinois and
formerly known as "The First National Bank of Chicago," in its capacity as a
Liquidity Bank to Falcon (together with its successors, "BANK ONE"), as Lenders,
(4) WACHOVIA BANK, N.A., as administrative and liquidity agent for Blue
Ridge and its Liquidity Banks (in such capacity, the "BLUE RIDGE AGENT"), and
BANK ONE, NA [MAIN OFFICE CHICAGO], as administrative and liquidity agent for
Falcon and its Liquidity Banks (in such capacity, the "FALCON AGENT" and,
together with the Blue Ridge Agent, the "CO-AGENTS"), and
(5) WACHOVIA BANK, N.A., as collateral agent for the Agents and the
Lenders (in such capacity, together with any successors thereto in such
capacity, the "COLLATERAL AGENT"), with respect to that certain Credit and
Security Agreement dated as of July 1, 1999, by and among the Borrower, the
Servicer, the Lenders, the Co-Agents and the Collateral Agent (as previously
amended, the "EXISTING AGREEMENT" which, as amended hereby, is hereinafter
referred to as the "AGREEMENT").
UNLESS OTHERWISE INDICATED, CAPITALIZED TERMS USED IN THIS
AMENDMENT ARE USED WITH THE MEANINGS ATTRIBUTED THERETO IN THE EXISTING
AGREEMENT.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Existing Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby agree as follows:
1. AMENDMENTS TO EXISTING AGREEMENT. Subject to the terms and
conditions hereinafter set forth, the parties hereby agree to amend the
Existing Agreement as follows:
1.1. Sections 10.1(f) of the Existing Agreement are hereby amended
and restated in their entirety to read as follows:
(f) The three-month rolling average Dilution Ratio at any Cut-Off Date
occurring on or prior to October 31, 2000 exceeds 2.00%, or at any Cut-Off Date
thereafter, 1.75%; or
2. REPRESENTATIONS.
2.1. Each of the Loan Parties represents and warrants to the Lenders
and the Agents that it has duly authorized, executed and delivered this
Amendment and that the Agreement constitutes, a legal, valid and binding
obligation of such Loan Party, enforceable in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability).
2.2. Each of the Loan Parties further represents and warrants to the
Lenders and the Agents that each of its representations and warranties set forth
in Section 6.1 of the Agreement is true and correct as of the date hereof and
that no Event of Default or Unmatured Default exists as of the date hereof and
is continuing.
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3. CONDITIONS PRECEDENT. This Amendment shall become effective as of
the date first above written upon receipt by the Collateral Agent of (a) a
counterpart hereof duly executed by each of the parties hereto and (b) each of
the documents listed on Annex I hereto.
4. MISCELLANEOUS.
4.1. Except as expressly amended hereby, the Existing Agreement and
shall remain unaltered and in full force and effect, and each of the parties
hereby ratifies and confirms the Agreement and each of the other Transaction
Documents to which it is a party.
4.2. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAW.
4.3. EACH LOAN PARTY HEREBY ACKNOWLEDGES AND AGREES THAT:
4.3.1. IT IRREVOCABLY (i) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION,
FIRST, OF ANY UNITED STATES FEDERAL COURT, AND SECOND, IF FEDERAL JURISDICTION
IS NOT AVAILABLE, OF ANY NEW YORK STATE COURT, IN EITHER CASE SITTING IN NEW
YORK COUNTY, NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THE AGREEMENT, AND (ii) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF AN ACTION OR
PROCEEDING IN SUCH COURTS.
4.3.2. TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID TO EXECUTION,
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER OR IN
CONNECTION WITH THE AGREEMENT.
4.4. This Amendment may be executed in any number of counterparts
and by the different parties hereto in separate 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 Amendment.
< SIGNATURE PAGES FOLLOW >
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
BORROWER:
SPHERION RECEIVABLES CORP.
By: /s/ SHANNON C. ALLEN
-------------------------------------
Name: Shannon C. Allen
Title: Vice President and Treasurer
SERVICER:
SPHERION CORPORATION
By: /s/ SHANNON C. ALLEN
-------------------------------------
Name: Shannon C. Allen
Title: Vice President and Treasurer
BORROWER:
SPHERION RECEIVABLES CORP. [f/k/a/ INTERIM
SERVICES RECEIVABLES CORP.]
By: /s/ SHANNON C. ALLEN
--------------------------------
Name: Shannon C. Allen
Title: Vice President and Treasurer
SERVICER:
SPHERION CORPORATION [f/k/a/INTERIM SERVICES
INC.]
By: /s/ SHANNON C. ALLEN
--------------------------------
Name: Shannon C. Allen
Title: Vice President and Treasurer
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AGENTS:
WACHOVIA BANK, N.A., as Collateral Agent and
Blue Ridge Agent
By: /s/ FRANCES W. JOSEPHIC
-------------------------------------
Name: Frances W. Josephic
Title: Vice President
BANK ONE, NA, as Falcon Agent
By: /s/ JULIE C. BENDA
-------------------------------------
Name: Julie C. Benda
Title: Vice President
LENDERS:
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, N.A., ITS ATTORNEY-IN-FACT
By: /s/ ELIZABETH R. WAGNER
-------------------------------------
Name: Elizabeth R. Wagner
Title: Senior Vice President
Initial Commitment: not applicable
Initial Percentage: not applicable
WACHOVIA BANK, N.A.
By: /s/ FRANCES W. JOSEPHIC
-------------------------------------
Name: Frances W. Josephic
Title: Vice President
Initial Commitment: $150,000,000
Initial Percentage: 60%
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FALCON ASSET SECURITIZATION CORPORATION
By: /s/ JULIE C. BENDA
-------------------------------------
Name: Julie C. Benda
Title: Authorized Signatory
Initial Commitment: not applicable
Initial Percentage: not applicable
BANK ONE, NA
By: /s/ JULIE C. BEND
-------------------------------------
Name: Julie C. Benda
Title: Vice President
Initial Commitment: $100,000,000
Initial Percentage: 40%
