com_10q0630ex101.htm


    Exhibit
10.1

     

     

    EXECUTION
COPY


    
      


    

    AMENDMENT
NO. 8 TO

    REVOLVING
CREDIT AND SECURITY AGREEMENT

     

    among

     

    UNIFORCE
SERVICES, INC.,

    BRENTWOOD
SERVICE GROUP, INC.,

    CLINICAL
LABFORCE OF AMERICA, INC.,

    COMFORCE
INFORMATION TECHNOLOGIES, INC.,

    COMFORCE
TECHNICAL, LLC,

    COMFORCE
TECHNICAL SERVICES, INC.,

    COMFORCE
TELECOM, INC.,

    CTS
OF WASHINGTON, LLC,

    PRO
CLINICAL SUPPORT SERVICES, LLC,

    PRO
UNLIMITED GLOBAL, LTD (UK),

    PRO
UNLIMITED GLOBAL (HK) LIMITED,

    PRO
UNLIMITED GLOBAL JAPAN, LTD

    a/k/a
PRO UNLIMITED GLOBAL JAPAN, YK,

    PRO
UNLIMITED, INC.,

    PRO
UNLIMITED MPS, INC.,

    TEMPORARY
HELP INDUSTRY SERVICING COMPANY, INC.,

    UNIFORCE
STAFFING SERVICES, INC.,

    SUMTEC
CORPORATION,

    THISCO
OF CANADA, INC.,

    CTS
GLOBAL, INC.

    (as
Borrowers)

     

    and

     

    COMFORCE
OPERATING, INC.

    (as
Borrowing Agent)

     

    and

     

    COMFORCE
CORPORATION

    (as
Guarantor)

     

    and

     

    PNC
BANK, NATIONAL ASSOCIATION

    (as
Administrative Agent and Lender)

     

    and

     

    THE
OTHER LENDERS PARTY HERETO

    


    as
of June 6, 2008

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      EXECUTION
COPY



    AMENDMENT NO. 8 TO CREDIT
AGREEMENT

     

    This
Amendment No. 8 to Credit Agreement (this “Amendment”) is
executed and delivered by the undersigned as of June 6,
2008.  Reference is hereby made to the Revolving Credit and Security
Agreement, dated as of June 25, 2003, as amended, among COMFORCE Operating, Inc.
(“COI”), as
Borrowing Agent (in such capacity, “Borrowing Agent”),
the Borrowers named therein, COMFORCE Corporation, a Delaware corporation, as
guarantor, GE Business Financial Services Inc. and JPMorgan Chase Bank, N.A., as
Co-Syndication Agents for the Lenders and as Lenders, Webster Business Credit
Corporation, as Documentation Agent for the Lenders and as Lender, the other
financial institutions which hereafter become a party thereto (the “Lenders”), and PNC
Bank, National Association, as Administrative Agent for the Lenders (in such
capacity, “Administrative
Agent”) and as Lender (as the same may be from time to time further
amended, extended, restated, supplemented or otherwise modified, the “Credit
Agreement”).  Capitalized terms used, but not defined herein,
shall have the meanings ascribed to them in the Credit Agreement.

     

    WHEREAS,
COI desires to repurchase the Senior 12% Notes;

    


    WHEREAS,
the Borrowers have requested that the Lenders amend the Credit Agreement as set
forth below to facilitate the payment of the Senior 12% Notes.

     

    NOW
THEREFORE, in consideration of the foregoing and for other consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:

     

    I. AMENDMENT

     

    A. Section
7.19 of the Credit Agreement is hereby amended and restated in its entirety as
follows:

     

    “7.19                      Senior 12% Notes;
Subordinated Notes.  At any time, directly or indirectly,
prepay, repurchase, redeem, retire or otherwise acquire, or make any payment on
account of any principal of, interest on or premium payable in connection with
the repayment or redemption of the Senior 12% Notes or Subordinated Notes;
provided that, notwithstanding the foregoing, (a) COI may repurchase or prepay
any portion of the Senior 12% Notes if (i) immediately before and after giving
effect to such repurchase or prepayment (and all fees, penalties, costs and
expenses incurred in connection therewith), no Default or Event of Default shall
exist hereunder, and (ii) during the period beginning twenty (20) Business Days
prior to any such repurchase or prepayment and ending ten (10) Business Days
after giving effect to such repurchase or prepayment, Borrowers shall have an
average Undrawn Availability throughout such period of not less than $2,500,000,
provided,
however, that such amount shall increase by $1,000,000 each month commencing on
the first day of the month after the month in which COI repurchases or prepays
any Senior 12% Notes or Subordinated Notes until such amount reaches $7,500,000,
and (b) provided there are no available options to pay in kind, COI and Holdings
may make regularly scheduled interest payments in cash then due under and
pursuant to the Senior 12% Notes and the Subordinated Notes as in effect on the
date hereof, respectively, if no Default or Event of Default shall have occurred
and be continuing immediately before any such payment or after 

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    giving
effect to any such payment, and (c) the aggregate amount of all such prepayments
and repurchases permitted by clause (a) of this Section 7.19 shall not exceed
$15,000,000 (the “Redemption Allowance”) in any calendar year; provided,
however, that to the extent any portion of the Redemption Allowance for any such
calendar year is not expended to prepay or repurchase the Senior 12% Notes in
such calendar year, then COI may apply all of such unused portion towards the
prepayment or repurchase of the Senior 12% Notes pursuant to clause (a) of this
Section 7.19(a) in any succeeding calendar year to the extent such prepayment or
repurchase is otherwise permitted under clause (a) of this Section
7.19(a).”

     

    B. Section
10.23 of the Credit Agreement is hereby amended and restated in its entirety as
follows:

     

    “10.23                      Undrawn
Availability shall (a) at any time be less than $2,500,000, provided, however,
such amount shall increase by $500,000 each month commencing the first day of
the month after the month in which COI repurchases or prepays any Senior 12%
Notes or Subordinated Notes until such amount reaches $5,000,000, or (b) at any
time within ten (10) Business Days after the consummation of any Permitted
Acquisition, be less than $10,000,000; provided that no more
than once per calendar year if Undrawn Availability shall fall below the minimum
amount required by clause (a) above, no Event of Default shall exist solely by
virtue thereof if within seven (7) days of the date that Undrawn Availability
fell below the minimum amount required by clause (a), Undrawn Availability shall
increase to such minimum amount, which such increased Undrawn Availability shall
be evidenced by a Borrowing Base Certificate delivered to Administrative Agent
in form and substance satisfactory to Administrative Agent; or”

     

    II. CONDITIONS
PRECEDENT

     

    The
effectiveness of this Amendment is subject to the satisfaction of each of the
following conditions:

     

    A.           Borrowers
shall have delivered to Agent a fully executed original of this
Amendment.

     

    B.           The
representations and warranties in Section II hereof shall be true and
correct as of the date hereof and after giving effect to each of the
transactions contemplated hereby.

     

    III. REPRESENTATIONS
AND WARRANTIES

     

    Each of
the Borrowers, Borrowing Agent and Guarantor hereby represent and warrant to the
Lenders and Agent as follows:

     

    A.           The
execution, delivery and performance by each such Person of this Amendment and
the transactions contemplated hereby (a) are within such Person’s corporate or
limited liability company power; (b) have been duly authorized by all corporate
or limited liability company or other necessary action; (c) are not in
contravention of any provision of any such Person’s certificate of incorporation
or formation, operating agreement, bylaws or other documents of organization;
(d) do not violate any law or regulation, or any order or decree of any
Governmental Body; (e) do not conflict with or result in the breach or
termination of, constitute a 

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    default
under or accelerate any performance required by, any indenture, mortgage, deed
of trust, lease, agreement or other instrument to which such party is a party or
by which such party or any of its respective property is bound; (f) do not
result in the creation or imposition of any Lien upon any Borrower’s property or
any property of such Borrower’s respective Subsidiaries (other than Liens in
favor of Agent) and (g) do not require the consent or approval of any
Governmental Body or any other Person.

     

    B.           This
Amendment has been duly executed and delivered by such Person and constitutes
the legal, valid and binding obligation of such Person, enforceable against each
such Person in accordance with its terms except as the enforceability hereof may
be limited by bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors’ rights and remedies in general.

     

    C.           Each
representation and warranty of such Person contained in the Credit Agreement and
the Other Documents is true and correct on the date hereof in all material
respects and will be true and correct in all material respects as if made
immediately after giving effect to this Amendment (except to the extent such
representation or warranty relates to an earlier date, in which case such
representation and warranty is true and correct in all material respects on and
as of such earlier date).

     

    D.           No
Default or Event of Default has occurred and is continuing.

     

    IV. PLEDGORS’
CONSENT

     

    The undersigned Pledgors, in their
respective capacity as Pledgors, hereby consent to this Amendment and to the
consummation of the transactions contemplated hereby and hereby restate, ratify
and confirm their respective pledge in support of the Obligations pursuant to
the terms of their respective Pledge Agreements, in all respects, after giving
effect to the consents and amendments set forth herein and the consummation of
the transactions contemplated hereby. Although each Pledgor has been informed of
the matters set forth herein and has acknowledged and consented to the same,
each Pledgor understands and agrees that neither the Administrative Agent nor
any Lender has any obligation to inform Pledgors of such matters in the future
or to seek any Pledgor’s acknowledgment, consent or agreement to future
amendments and nothing herein shall create such duty.

     

    V. GUARANTOR’S
CONSENT

     

    The undersigned Guarantor, in its
respective capacity as Guarantor, hereby consents to this Amendment and to the
consummation of the transactions contemplated hereby and hereby restates,
ratifies and confirms its joint and several guaranty of the prompt payment of
the Obligations of the Borrowers pursuant to its Guaranty, in all respects,
after giving effect to the amendments set forth herein and the consummation of
the transactions contemplated hereby.  Although the Guarantor has been
informed of the matters set forth herein and has acknowledged and consented to
the same, the Guarantor understands and agrees that neither the Administrative
Agent nor any Lender has any obligation to inform the Guarantor of such matters
in the future or to seek the Guarantor’s acknowledgment, consent or agreement to
future amendments and nothing herein shall create such duty.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    VI. MISCELLANEOUS

     

    A. Each of
the Borrowers, the Borrowing Agent and the Guarantor acknowledges and confirms
to Agent and the Lenders that the Credit Agreement and each Other Document to
which it is a party shall remain in full force and shall continue to evidence,
secure or otherwise guarantee and support the obligations owing by such Person
to Agent and Lenders pursuant thereto and pursuant to the Notes, and, after
giving effect to this Amendment, each such Person hereby ratifies and affirms
each of the foregoing documents to which it is a party.

     

    B. Each of
the Borrowers, the Borrowing Agent and the Guarantor acknowledges and reaffirms
to Agent and the Lenders that (i) the Liens granted to Agent for the benefit of
the Lenders under the Credit Agreement and the Other Documents remain in full
force and effect and shall continue to secure the obligations of Borrowers
arising under the Credit Agreement and the Other Documents, and (ii) the
validity, perfection or priority of the Liens will not be impaired by the
execution and delivery of this Amendment.

     

    C. Each of
the Borrowers, the Borrowing Agent and the Guarantor acknowledges and agrees
that no Lender has waived or shall be deemed to have waived any of its rights or
remedies under the Credit Agreement or any of the Other Documents which
documents shall remain in full force and effect in accordance with their
terms.

     

    D. Borrowers
shall promptly pay to Agent all costs and expenses including, without
limitation, reasonable attorneys’ fees and disbursements incurred by Agent on
its behalf or on behalf of the Lenders in connection herewith, which amount may
be charged to Borrowers’ Account and shall be part of the
Obligations.

     

    E.           This
Amendment is limited to the subject matter hereof and may be executed in any
number of counterparts, including by telecopy, and by the various parties hereto
on separate counterparts, each of which when so executed and delivered shall be
an original, but all of which shall together constitute one and the same
instrument.

     

    E.           THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE SUCCESSORS AND ASSIGNS OF THE
PARTIES HERETO.

     

    *                 *                 *

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    
 

     

    IN WITNESS WHEREOF, each of
the parties hereto, by their officers duly authorized, has executed this
Amendment as of the date first above written.

     

    

      
        	 
      	
                COMFORCE
      OPERATING, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                UNIFORCE
      SERVICES, INC.,

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                BRENTWOOD
      SERVICE GROUP, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                COMFORCE
      TECHNICAL, LLC

                By:
      COMFORCE Technical Services, Inc.,

                       Its
      Sole Member

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                COMFORCE
      INFORMATION TECHNOLOGIES, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                PRO
      UNLIMITED MPS, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	 
      	 
      
	 
      	
                COMFORCE
      TECHNICAL SERVICES, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 	 
	 
      	
                COMFORCE
      TELECOM, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 	 
	 
      	
                CLINICAL
      LABFORCE OF AMERICA, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      
        	 
      	 
      
	 
      	
                PRO
      UNLIMITED, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                TEMPORARY
      HELP INDUSTRY SERVICING COMPANY, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                UNIFORCE
      STAFFING SERVICES, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                SUMTEC
      CORPORATION

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	 
      	 
      
	 
      	
                THISCO
      OF CANADA, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                CTS
      OF WASHINGTON, LLC

                By:
      COMFORCE Technical Services, Inc.,

                       Its
      Sole Member

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                PRO
      CLINICAL SUPPORT

                SERVICES,
      LLC

                By:
      Pro Unlimited, Inc.,

                       Its
      Sole Member

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                PRO
      UNLIMITED GLOBAL JAPAN, LTD. a/k/a PRO UNLIMITED GLOBAL JAPAN,
      YK

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                PRO
      UNLIMITED GLOBAL, LTD. (UK)

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                PRO
      UNLIMITED GLOBAL (HK), LIMITED

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	 
      	 
      
	 
      	
                CTS
      GLOBAL, INC.

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	 	 
	 
      	
                COMFORCE
      CORPORATION

              
	 
      	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              
	 
      	 
      	
                Title:

              
	 
      	 
      	 
      


      

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      
        	 
      	 
      	 
      
	 
      	 
      
	 
      	
                PNC
      BANK, NATIONAL ASSOCIATION, as Administrative Agent and as
      Lender

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	 
      	 
      
	 
      	 
      
	 
      	
                JPMORGAN
      CHASE BANK, N.A., as Co-Syndication Agent and Lender

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	 
      
	 	 
	 
      	
                GE
      BUSINESS FINANCIAL SERVICES INC., as Co-Syndication Agent and
      Lender

              
	 
      	 
      
	
                By:

              	 
      
	 
      	
                Name:

              


      

      


      
        	 	 
      
	 	
                WEBSTER
      BUSINESS CREDIT CORPORATION, as Documentation Agent and
    Lender

              
	 	 
      	 
      
	 	
                By:

              	 
      
	 	 
      	
                Name: