CONSENT AND SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS CONSENT AND SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is made and entered into this 16th day of
December, 2008, by and among KFORCE INC. , a Florida
corporation (“Kforce”); KFORCE GOVERNMENT SOLUTIONS,
INC. , a Pennsylvania corporation and successor by merger to
Bradson Corporation (“Government Solutions”; Kforce and
Government Solutions are collectively referred to herein as
“Existing Borrowers” and individually as
“Existing Borrower”); the affiliates of Existing
Borrowers party hereto as “Subsidiary Guarantors”
(“Subsidiary Guarantors”); the Lenders (as defined in
the Credit Agreement (as defined below)) party hereto; and BANK
OF AMERICA, N.A. , a national banking association, as agent for
the Lenders (together with its successors in such capacity,
“Administrative Agent”).
Recitals
:
Administrative Agent, Lenders,
Existing Borrowers and Subsidiary Guarantors are parties to a
certain Second Amended and Restated Credit Agreement dated as of
October 2, 2006, as amended by that certain letter agreement
dated as of January 5, 2007, as supplemented by that certain
Joinder Agreement dated as of February 28, 2007, and as
further amended by that certain First Amendment to Second Amended
and Restated Credit Agreement dated July 2, 2007 (as at any
other time amended, modified, restated or supplemented, the
“Credit Agreement”), pursuant to which Lenders have
made certain loans and other financial accommodations to Existing
Borrowers.
Kforce, Kforce Government Holdings
Inc., a Florida corporation (“Government Holdings”),
RDI Systems, Inc., a Texas corporation (the “RDI Systems
Target”), the shareholders of the RDI Systems Target and
Nancy R. Kudla, as representative of the shareholders of the RDI
Systems Target, have entered into that certain Stock Purchase
Agreement dated December 2, 2008 (the “RDI Stock
Purchase Agreement”), pursuant to which Government Holdings
has acquired 100% of the issued and outstanding capital stock of
the RDI Systems Target (such transaction is referred to herein as
the “RDI Systems Target Acquisition”). The RDI Systems
Target Acquisition was consummated as of November 30, 2008,
and was permitted under Section 7.10(iii)(B) of the Credit
Agreement.
Pursuant to Section 7.26(b) of
the Credit Agreement, Existing Borrowers have requested that
Required Lenders consent to the RDI Systems Target becoming a
Borrower under the Credit Agreement and, subject to the terms and
conditions of this Amendment, Required Lenders have consented to
the RDI Systems Target becoming a Borrower under the Credit
Agreement.
Kforce has informed Administrative
Agent that it has formed each of Kforce Clinical Research, Inc., a
Florida corporation (“Kforce Clinical Research”),
Kforce Clinical Research Flex, LLC, a Florida limited liability
company (“Kforce Clinical Research Flex”), Kforce
Healthcare, Inc., a Florida corporation (“Kforce
Healthcare”), and Kforce Healthcare Flex, LLC, a Florida
limited liability company (“Kforce Healthcare Flex”).
Pursuant to Section 7.10(iii)(B) of the Credit Agreement,
effective January 1, 2009, Kforce will contribute certain
business units of Kforce to each of Kforce Clinical Research,
Kforce Clinical Research Flex, Kforce Heathcare and Kforce
Healthcare Flex (such proposed investment is referred to herein as
the “Proposed Clinical and Healthcare
Investment”).
Pursuant to Section 7.26(b) of
the Credit Agreement, Existing Borrowers have requested that, upon
contribution of such business units to Kforce Clinical Research,
Kforce Clinical Research Flex, Kforce Healthcare and Kforce
Healthcare Flex in accordance with Section 7.10(iii)(B) of the
Credit Agreement, Required Lenders consent to each of Kforce
Clinical Research, Kforce Clinical Research
Flex, Kforce Healthcare and Kforce Healthcare
Flex becoming Borrowers under the Credit Agreement and, subject to
the terms and conditions of this Amendment, Required Lenders
consent to each of Kforce Clinical Research, Kforce Clinical
Research Flex, Kforce Healthcare and Kforce Healthcare Flex
becoming Borrowers under the Credit Agreement.
Kforce has informed Administrative
Agent that Kforce intends to form each of Kforce FA &
Tech, Inc., a Florida corporation (“Kforce FA &
Tech”), and Kforce FA & Tech Flex, LLC, a Florida
limited liability company (“Kforce FA & Tech
Flex”). Pursuant to Section 7.10(iii)(B) of the Credit
Agreement, effective on a later date in 2009 or thereafter, Kforce
intends to contribute certain business units of Kforce to each of
Kforce FA & Tech and Kforce FA & Tech Flex in
2009 (such proposed investment is referred to herein as the
“Proposed FA & Tech Investment”).
Pursuant to Section 7.26(b) of
the Credit Agreement, Existing Borrowers have requested that, upon
contribution of such business units to Kforce FA & Tech
and Kforce FA & Tech Flex in accordance with
Section 7.10(iii)(B) of the Credit Agreement, Required Lenders
consent to each of Kforce FA & Tech and Kforce
FA & Tech Flex becoming Borrowers under the Credit
Agreement and, subject to the terms and conditions of this
Amendment, Required Lenders consent to each of Kforce FA &
Tech and Kforce FA & Tech Flex becoming Borrowers under
the Credit Agreement.
Existing Borrowers have requested
certain amendments to the Credit Agreement, and Lenders have agreed
to such amendments upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, for TEN DOLLARS
($10.00) in hand paid and other good and valuable consideration,
the receipt and sufficiency of which are hereby severally
acknowledged, each party hereto, intending to be legally bound
hereby, agrees as follows:
1. Definitions
. All capitalized terms
used in this Amendment, unless otherwise defined herein, shall have
the meaning ascribed to such terms in the Credit
Agreement.
2. Consents
.
(a) Subject to satisfaction of each
of the RDI Systems Target Joinder Conditions, Required Lenders
consent to the RDI Systems Target becoming a Borrower under the
Credit Agreement. For purposes of this Amendment, “RDI
Systems Target Joinder Conditions” shall mean satisfaction of
each of the following conditions in form and substance satisfactory
to Administrative Agent:
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(i)
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Each of the
conditions to the effectiveness of this Amendment set forth in
Section 10 of this Amendment shall have been
satisfied.
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(ii)
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Administrative
Agent shall have received each of the following:
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1.
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A Joinder
Agreement duly executed and delivered by each of the RDI Systems
Target, Existing Borrowers and Subsidiary Guarantors, including all
schedules and exhibits thereto (the “RDI Systems Joinder
Agreement”);
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2.
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A Certificate
Regarding Stock Purchase Agreement duly executed and delivered by
Kforce, including all schedules and exhibits thereto, certifying
that (I) the RDI Systems Target Acquisition has been fully
consummated, (II) after giving effect to the RDI Systems Target
Acquisition, Existing Borrowers have Availability of not less than
$15,000,000, and (III) the RDI Systems Target Acquisition is an
Eligible Acquisition;
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3.
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A Pledge
Agreement Supplement pursuant to which Government Holdings pledges
and collaterally assigns to Administrative Agent all of its
interest in the capital stock or equity interests of the RDI
Systems Target;
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4.
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Allonges to the
Amended and Restated Revolving Loan Notes duly executed by the RDI
Systems Target;
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5.
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A Closing and
Incumbency Certificate duly executed and delivered by an authorized
officer or director of the RDI Systems Target, including all
schedules and exhibits thereto;
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6.
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All original
certificates representing the equity interests of the RDI Systems
Target, as well as accompanying stock powers duly executed in
blank, with signatures properly guaranteed;
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7.
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Updated
Liability and Property Insurance Certificates and Endorsements
reflecting the inclusion of the RDI Systems Target on such
certificates and endorsements;
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8.
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An opinion
letter from the counsel of Existing Borrowers, Subsidiary
Guarantors and the RDI Systems Target as to such matters as shall
be requested by Administrative Agent;
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9.
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Good standing
certificates for the RDI Systems Target, issued by the Secretary of
State or other appropriate official of the RDI Systems
Target’s jurisdiction of incorporation and each jurisdiction
where the conduct of the RDI Systems Target’s business
activities or ownership of its property necessitates
qualification;
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10.
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An out-of-state
affidavit executed by the authorized officer or director executing
the RDI Systems Joinder Agreement and the other Loan Documents on
behalf of the RDI Systems Target, which affidavit is made for the
benefit of Administrative Agent and the Lenders for compliance with
the laws of the State of Florida relating to documentary stamp
taxes; and
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11.
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Such other
documents, certificates, resolutions and reports as Administrative
Agent may request.
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(iii)
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The RDI Systems
Target shall have duly executed and delivered to Administrative
Agent all documentation required by Administrative Agent in order
to perfect, or maintain and continue the perfection of,
Administrative Agent’s Liens on the assets and stock of the
RDI Systems Target without interruption or release of any
kind.
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(b) Subject to satisfaction of each
of the Clinical Research and Healthcare Joinder Conditions,
Required Lenders consent to each of Kforce Clinical Research,
Kforce Clinical Research Flex, Kforce Healthcare and Kforce
Healthcare Flex becoming a Borrower under the Credit Agreement;
provided however , that Credit Parties acknowledge
and agree that Administrative Agent and Lenders shall not be
obligated to extend, and no Borrower shall request, any extension
of credit to or for the benefit of Kforce Clinical Research, Kforce
Clinical Research Flex, Kforce Healthcare or Kforce Healthcare Flex
unless and until the Clinical Research and Healthcare Supplemental
Joinder Condition
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has been satisfied and all other conditions to
the extension of credit set forth in the Loan Documents have been
satisfied. For purposes of this Amendment, “Clinical Research
and Healthcare Joinder Conditions” shall mean satisfaction of
each of the following conditions in form and substance satisfactory
to Administrative Agent on or before January 1,
2009:
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(i)
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Each of the
conditions to the effectiveness of this Amendment set forth in
Section 10 of this Amendment shall have been
satisfied.
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(ii)
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Administrative
Agent shall have received each of the following:
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1.
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A Joinder
Agreement duly executed and delivered by each of Kforce Clinical
Research, Kforce Clinical Research Flex, Kforce Healthcare and
Kforce Healthcare Flex, Existing Borrowers, the RDI Systems Target
and Subsidiary Guarantors, including all schedules and exhibits
thereto (the “Clinical and Healthcare Joinder
Agreement”);
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2.
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A Pledge
Agreement Supplement pursuant to which Kforce pledges and
collaterally assigns to Administrative Agent all of its interest in
the capital stock or equity interests of each of Kforce Clinical
Research, Kforce Clinical Research Flex, Kforce Healthcare and
Kforce Healthcare Flex;
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3.
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Allonges to the
Amended and Restated Revolving Loan Notes duly executed by each of
Kforce Clinical Research, Kforce Clinical Research Flex, Kforce
Healthcare and Kforce Healthcare Flex;
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4.
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A Closing and
Incumbency Certificate duly executed and delivered by an authorized
officer or director of Kforce Clinical Research, including all
schedules and exhibits thereto;
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5.
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A Closing and
Incumbency Certificate duly executed and delivered by an authorized
officer or director of Kforce Clinical Research Flex, including all
schedules and exhibits thereto;
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6.
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A Closing and
Incumbency Certificate duly executed and delivered by an authorized
officer or director of Kforce Healthcare, including all schedules
and exhibits thereto;
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7.
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A Closing and
Incumbency Certificate duly executed and delivered by an authorized
officer or director of Kforce Healthcare Flex, including all
schedules and exhibits thereto;
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8.
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All original
certificates representing the equity interests of each of Kforce
Clinical Research, Kforce Clinical Research Flex, Kforce Healthcare
and Kforce Healthcare Flex, as well as accompanying stock powers
duly executed in blank, with signatures properly
guaranteed;
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9.
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Updated
Liability and Property Insurance Certificates and Endorsements
reflecting the inclusion of each of Kforce Clinical Research,
Kforce Clinical Research Flex, Kforce Healthcare and Kforce
Healthcare Flex on such certificates and endorsements;
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10.
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An opinion
letter from the counsel of Existing Borrowers, Subsidiary
Guarantors, the RDI Systems Target, Kforce Clinical Research,
Kforce Clinical Research Flex, Kforce Healthcare and Kforce
Healthcare Flex as to such matters as shall be requested by
Administrative Agent;
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11.
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Good standing
certificates for each of Kforce Clinical Research, Kforce Clinical
Research Flex, Kforce Healthcare and Kforce Healthcare Flex, issued
by the Secretary of State or other appropriate official of the
jurisdiction of incorporation or organization, as applicable, of
each of Kforce Clinical Research, Kforce Clinical Research Flex,
Kforce Healthcare and Kforce Healthcare Flex, and each jurisdiction
where the conduct of the business activities or ownership of
property by each of Kforce Clinical Research, Kforce Clinical
Research Flex, Kforce Healthcare and Kforce Healthcare Flex
necessitates qualification;
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12.
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An out-of-state
affidavit executed by the authorized officer or director executing
the Clinical and Healthcare Joinder Agreement and the other Loan
Documents on behalf of each of Kforce Clinical Research, Kforce
Clinical Research Flex, Kforce Healthcare and Kforce Healthcare
Flex, which affidavit is made for the benefit of Administrative
Agent and the Lenders for compliance with the laws of the State of
Florida relating to documentary stamp taxes; and
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13.
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Such other
documents, certificates, resolutions and reports as Administrative
Agent may request.
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(iii)
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Each of Kforce
Clinical Research, Kforce Clinical Research Flex, Kforce Healthcare
and Kforce Healthcare Flex shall have duly executed and delivered
to Administrative Agent all documentation required by
Administrative Agent in order to perfect, or maintain and continue
the perfection of, Administrative Agent’s Liens on the assets
and stock of each of Kforce Clinical Research, Kforce Clinical
Research Flex, Kforce Healthcare and Kforce Healthcare Flex without
interruption or release of any kind.
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For purposes of this Amendment, the
“Clinical Research and Healthcare Supplemental Joinder
Condition” shall mean delivery to Administrative Agent of a
Certificate Regarding Permitted Investment in the form of
Exhibit A to this Amendment, duly executed and delivered by
Kforce (together with a copy of all contribution documents,
schedules and exhibits referenced therein, in each case, in form
and substance satisfactory to Administrative Agent), certifying
that after giving effect to the Proposed Clinical and Healthcare
Investment, Borrowers have Availability of not less than
$15,000,000.
(c) Subject to satisfaction of each
of the FA & Tech Joinder Conditions, Required Lenders
consent to each of Kforce FA & Tech and Kforce
FA & Tech Flex becoming a Borrower under the Credit
Agreement. For purposes of this Amendment, “FA &
Tech Joinder Conditions” shall mean satisfaction of each of
the following conditions in form and substance satisfactory to
Administrative Agent on or before December 31,
2010:
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(i)
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Each of the
conditions to the effectiveness of this Amendment set forth in
Section 10 of this Amendment shall have been
satisfied.
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(ii)
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Administrative
Agent shall have received each of the following:
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1.
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A Joinder
Agreement duly executed and delivered by each of Kforce
FA & Tech, Kforce FA & Tech Flex, Existing
Borrowers, the RDI Systems Target, Kforce Clinical Research, Kforce
Clinical Research Flex, Kforce Healthcare and Kforce Healthcare
Flex, and Subsidiary Guarantors, including all schedules and
exhibits thereto (the “FA & Tech Joinder
Agreement”);
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2.
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A Certificate
Regarding Permitted Investment duly executed and delivered by
Kforce, including all contribution documents, schedules and
exhibits attached thereto, certifying that after giving effect to
the Proposed FA & Tech Investment, Borrowers have
Availability of not less than $15,000,000;
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3.
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A Pledge
Agreement Supplement pursuant to which Kforce pledges and
collaterally assigns to Administrative Agent all of its interest in
the capital stock or equity interests of each of Kforce
FA & Tech and Kforce FA & Tech Flex;
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4.
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Allonges to the
Amended and Restated Revolving Loan Notes duly executed by each of
Kforce FA & Tech and Kforce FA & Tech
Flex;
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5.
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A Closing and
Incumbency Certificate duly executed and delivered by an authorized
officer or director of Kforce FA & Tech, including all
schedules and exhibits thereto;
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6.
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A Closing and
Incumbency Certificate duly executed and delivered by an authorized
officer or director of Kforce FA & Tech Flex, including
all schedules and exhibits thereto;
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7.
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All original
certificates representing the equity interests of each of Kforce
FA & Tech and Kforce FA & Tech Flex, as well as
accompanying stock powers duly executed in blank, with signatures
properly guaranteed;
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8.
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Updated
Liability and Property Insurance Certificates and Endorsements
reflecting the inclusion of each of Kforce FA & Tech and
Kforce FA & Tech Flex on such certificates and
endorsements;
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9.
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An opinion
letter from the counsel of Existing Borrowers, Subsidiary
Guarantors, the RDI Systems Target, Kforce Clinical Research,
Kforce Clinical Research Flex, Kforce Healthcare, Kforce Healthcare
Flex, Kforce FA & Tech and Kforce FA & Tech Flex
as to such matters as shall be requested by Administrative
Agent;
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10.
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Good standing
certificates for each of Kforce FA & Tech and Kforce
FA & Tech Flex, issued by the Secretary of State or other
appropriate official of the jurisdiction of incorporation or
organization, as applicable, of each of Kforce FA & Tech
and Kforce FA & Tech Flex, and each jurisdiction where the
conduct of the business activities or ownership of property by each
of Kforce FA & Tech and Kforce FA & Tech Flex
necessitates qualification;
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11.
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An out-of-state affidavit
executed by the authorized officer or director executing the
FA & Tech Joinder Agreement and the other Loan Documents
on behalf of each of Kforce FA & Tech and Kforce
FA & Tech Flex, which
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affidavit is made for the benefit of
Administrative Agent and the Lenders for compliance with the laws
of the State of Florida relating to documentary stamp taxes;
and
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12.
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Such other
documents, certificat
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