FIRST
AMENDMENT
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is made and entered into this 2
nd
day of July, 2007,
by and among Kforce Inc., a Florida corporation
(“Kforce”), Kforce Government Solutions, Inc., a
Pennsylvania corporation (“Government Solutions”) and
Bradson Corporation, a Rhode Island corporation
(“Bradson” and together with Kforce and Government
Solutions, “Borrowers” and each a
“Borrower”); the affiliates of the Borrowers party
hereto as “Subsidiary Guarantors” (the
“Subsidiary Guarantors”); the Lenders (as defined in
the Credit Agreement (as defined below)) party hereto; 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,
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, and as supplemented by that certain Joinder
Agreement dated as of February 28, 2007 (the “Credit
Agreement”) pursuant to which Lenders have made certain loans
and other financial accommodations to Borrowers.
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, the parties hereto, intending to be legally bound
hereby, agree 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. Amendments to Credit
Agreement . The
Credit Agreement is hereby amended as follows:
(a) Section 7.2 of the Credit
Agreement, Legal Existence and Good Standing , is hereby
deleted in its entirety and the following is hereby substituted
therefor:
“7.2 Legal Existence and
Good Standing. Each Credit Party shall maintain (i) its
legal existence and (ii) its qualification and good standing
in all jurisdictions in which the failure to maintain such
existence and qualification or good standing could reasonably be
expected to have a Material Adverse Effect; provided ,
however , that in connection with the merger of a Credit
Party into another Credit Party permitted under Section 7.9
hereof, upon consummation of such merger, the obligations in this
Section 7.2 shall not continue to apply to any Credit Party
that is not the continuing or surviving corporation of such
merger.”
(b) Section 7.9 of the Credit
Agreement, Mergers, Consolidations or Sales , is hereby
modified and amended to delete clause (a) thereof in its
entirety and the following is hereby substituted
therefor:
“(a) to enter into any
transaction of merger or consolidation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution);
provided that, notwithstanding the foregoing provisions of this
Section 7.9, (i) any Borrower may merge or consolidate
with any of its Subsidiaries provided that (A) a Borrower
shall be the continuing or surviving corporation, (B) the
Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Administrative Agent
may request in order to maintain the perfection and priority of the
Administrative Agent’s liens on the assets of the Credit
Parties as required by Section 6(f) of the Security Agreement
after giving effect to such transaction and (C) after giving
effect to such transaction, no Default or Event of Default exists,
(ii) any Credit Party other than a Borrower may merge or
consolidate with any other Credit Party other than a Borrower
provided that (A) the Credit Parties shall cause to be
executed and delivered such documents, instruments and certificates
as the Administrative Agent may request in order to maintain the
perfection and priority of the Administrative Agent’s liens
on the assets of the Credit Parties as required by
Section 6(f) of the Security Agreement after giving effect to
such transaction and (B) after giving effect to such
transaction, no Default or Event of Default exists, (iii) any
Consolidated Party which is not a Credit Party may be merged or
consolidated with or into any Credit Party provided that
(A) such Credit Party shall be the continuing or surviving
corporation, (B) the Credit Parties shall cause to be executed
and delivered such documents, instruments and certificates as the
Administrative Agent may request in order to maintain the
perfection and priority of the Administrative Agent’s liens
on the assets of the Credit Parties as required by
Section 6(f) of the Security Agreement after giving effect to
such transaction and (C) after giving effect to such
transaction, no Default or Event of Default exists, (iv) any
Consolidated Party which is not a Credit Party may be merged or
consolidated with or into any other Consolidated Party which is not
a Credit Party provided that, after giving effect to such
transaction, no Default or Event of Default exists; (v) any
Immaterial Subsidiary of any Borrower may dissolve itself so long
as (A) the assets of such Immaterial Subsidiary are
transferred to another Credit Party prior to such dissolution and
(B) the Borrowers provide the Administrative Agent with
written notice of such dissolution with five (5) Business Days
of the occurrence of such dissolution; and (vi) any Borrower
may merge or consolidate with any other Borrower provided that
(A) a Borrower shall be the continuing or surviving
corporation and, in the event of any merger with Parent, Parent
shall be the continuing or surviving corporation, (B) the
Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Administrative Agent
may request in order to maintain the perfection and priority of the
Administrative Agent’s liens on the assets of the Credit
Parties as required by Section 6(f) of the Security Agreement
after giving effect to such transaction and (C) after giving
effect to such transaction, no Default or Event of Default exists;
provided further, that any transaction described in the foregoing
clauses (i) through (vi) shall be consummated in
accordance with all applicable licenses, permits, franchises,
governmental authorizations and all other Requirements of
Law.”
(c) Section 7.10 of the Credit
Agreement, Distributions; Capital Change; Restricted
Investments , is hereby deleted in its entirety and the
following is hereby substituted therefor:
7.10 Distributions; Capital
Change; Restricted Investments . No Credit Party shall
(i) directly or indirectly declare or make, or incur any
liability to make, any Distribution, except (A) in connection
with an with an Eligible Securities Repurchase that is funded by a
Securities Repurchase Loan, (B) Distributions to the Parent by
a Subsidiary, (C) a Distribution of all of the outstanding
capital stock of Kforce Global Solutions, Inc., a Pennsylvania
corporation formerly known as Provident Computer Consultants, Inc.,
from Government Solutions to Government Holdings, provided that
(i) the Credit Parties shall cause to be executed and
delivered such documents, instruments and certificates as the
Administrative Agent may request in order to maintain the
perfection and priority of the Administrative Agent’s liens
on the assets of the Credit Parties as required by
Section 6(f) of the Security Agreement after giving effect to
such Distribution (including, without limitation, any original
stock certificates issued to Government Holdings evidencing such
Capital Stock) and (ii) after giving effect to such
Distribution, no Default or Event of Default exists, or (D) at
any time after the expiration or termination of the Additional
Availability Period, Distributions by the Parent if, after giving
effect thereto the Borrowers have Availability of not less than
$15,000,000; (ii) make any change in its capital structure
which could have a Material Adverse Effect; or (iii) make any
Investments in or to any Person, except (A) Permitted
Investments and (B) at any time after the expiration or
termination of the Additional Availability Period, any other
Investment so long as, after giving effect thereto, the Borrowers
have Availability of not less than $15,000,000.
(d) Section 7.15 of the Credit
Agreement, Transactions with Affiliates , is hereby modified
and amended to delete the period at the end of Section 7.15
and to add the following new clauses (c) and (d) to the
end thereof:
“, and (c) each Credit
Party and each Subsidiary of a Credit Party may engage in
transactions with Affiliates that are permitted pursuant to
Section 7.9 or Section 7.10 hereof, and (d) a Credit
Party may transfer all outstanding capital stock of any of its
Subsidiaries that is a Credit Party to another Credit Party with
Administrative Agent’s prior written consent and provided
that the Credit Parties shall have caused to be executed and
delivered such documents, instruments and certificates as the
Administrative Agent may request in connection therewith,
including, without limitation, all documents, instruments and
certificates as the Administrative Agent may request in order to
maintain the perfection and priority of the Administrative
Agent’s liens on the assets of the Credit Parties as required
by Section 6(f) of the Security Agreement.”
(e) Section 7.28 of the Credit
Agreement, Post Closing Covenants , is hereby modified and
amended to delete clause (a) thereof in its entirety and to
substitute the following therefor:
“(a) On or before
August 1, 2007 (or such later date as shall be permitted by
the Administrative Agent in writing), the Borrowers shall deliver
evidence to the Administrative Agent that the collateral
descriptions set forth in financing statements 200408305523 and
20050040074X filed with the Florida Secured Transactions Registry
have been amended to the satisfaction of the Administrative
Agent.”
3. Ratification and
Reaffirmation . Each
Borrower hereby ratifies and reaffirms the Obligations, each of the
Loan Documents and all of such Borrower’s covenants, duties,
indebtedness and liabilities under the Loan Documents.
4. Acknowledgments and
Stipulations . Each
Borrower acknowledges and stipulates that the Credit Agreement, as
amended by the Amendment, and the other Loan Documents executed by
such Borrower are legal, v
