CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT
THIS CONSENT AND THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of
December 15, 2006 by and among COMSYS SERVICES LLC, a Delaware limited liability company (“COMSYS
Services”), COMSYS INFORMATION TECHNOLOGY SERVICES, INC., a Delaware corporation (“COMSYS IT”),
PURE SOLUTIONS, INC., a California corporation (“Pure Solutions”; COMSYS Services, COMSYS IT and
Pure Solutions are referred to herein each individually as a “Borrower” and collectively as the
“Borrowers”), COMSYS IT PARTNERS, INC., a Delaware corporation (“Holdings”), PFI LLC, a Delaware
limited liability company (“PFI”), COMSYS IT CANADA, INC., a North Carolina corporation (“COMSYS
Canada”), COMSYS Services, acting in its capacity as borrowing agent and funds administrator for
the Borrowers (in such capacity, the “Funds Administrator”), the financial institutions from time
to time parties thereto (the “Lenders”), XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx
Business Financial Services Inc., individually as a Lender, as administrative agent (the “Agent”),
Sole Bookrunner and Sole Lead Arranger, ING CAPITAL LLC, as co-documentation agent and as a Lender,
ALLIED IRISH BANKS PLC, as co-documentation agent and as a Lender, BMO CAPITAL MARKETS FINANCING,
INC. (individually, “BMO”), as co-documentation agent (together with ING Capital LLC and Allied
Irish Banks PLC, the “Co-Documentation Agents”) and as a Lender, and GMAC COMMERCIAL FINANCE LLC,
as syndication agent (the “Syndication Agent”) and as a Lender.
W I T N E S S E T H:
WHEREAS, the Borrowers, Holdings, PFI, COMSYS Canada, the Agent, the Co-Documentation Agents,
the Syndication Agent and each Lender are parties to that certain Credit Agreement dated as of
December 14, 2005 (as the same has been and may further be amended, restated, supplemented or
otherwise modified and in effect from time to time, the “Credit Agreement”);
WHEREAS, the Borrowers have requested, among other things, that the Lenders (a) increase the
Revolving Loan Commitment by $15,000,000, (b) consent to prepayment by the Borrowers of one hundred
percent (100%) of the outstanding principal amount of the Second Lien Term Loan in an amount equal
to $30,000,000 plus all accrued and unpaid interest on such prepaid principal and the applicable
prepayment premiums associated with such prepayment (the “Second Lien Term Loan Payoff”) with the
proceeds of Revolving Loans borrowed on the date hereof, and (c) amend the Credit Agreement in
certain other respects; and
WHEREAS, the Agent and the Lenders agree to accommodate such requests of the Credit Parties,
on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, the parties agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Credit Agreement (as amended by this Amendment).
2. Amendments. Effective as of the date hereof, upon satisfaction of the conditions
precedent set forth in Section 5 hereof, the Credit Agreement is amended as set forth in this
Section 2:
(a) Annex A. The parties hereto desire to increase the Revolving Loan Commitment from
$145,000,000 to $160,000,000. Accordingly, in order to evidence such increased Revolving Loan
Commitment, the Commitment Annex affixed to the Credit Agreement as Annex A is deleted in its
entirety and a new Annex A in the form of Exhibit A attached to this Amendment is
substituted therefor.
(b) Section 1.1. Section 1.1 of the Credit Agreement is hereby amended by adding
thereto the following defined terms and their respective definitions in the correct alphabetical
order:
“Adjustment Date” means the first Business Day of each February, May, August and
November of each year, commencing with the first Business day of February, 2007.
“LIBOR Margin” means (i) as of the Third Amendment Effective Date, two percent
(2.00%) per annum with respect to the Revolving Loans, the Term Loan and other
Obligations, and (ii) thereafter, as of each Adjustment Date, the LIBOR Margin shall
be adjusted, if necessary, to the applicable percent per annum set forth in the
Pricing Table corresponding to the ratio of (x) Total Debt on the last day of the
most recently completed fiscal quarter prior to the applicable Adjustment Date to
(y) Adjusted EBITDA for the twelve (12) month period ending on the last day of such
fiscal quarter; provided, that if an Event of Default has occurred and is continuing
on an Adjustment Date, no reduction in the LIBOR Margin shall occur on such
Adjustment Date.
“Pricing Table” means the following table:
| Total Debt to | Revolving Loans, the Term Loan and all | |||||||
| Adjusted | other Obligations | |||||||
| EBITDA Ratio | Prime Rate | LIBOR | ||||||
Greater than or equal to 2.00 to 1.0 |
1.00 | % | 2.00 | % | ||||
Less than 2.00 to 1.0 |
0.75 | % | 1.75 | % | ||||
For purposes of the Pricing Table, if the Funds Administrator, on behalf
of the Borrowers, shall at any time fail to timely deliver a Compliance Certificate,
then effective as of the tenth (10th) Business Day following the date on which such
Compliance Certificate was due, each applicable Prime Rate Margin and each
applicable LIBOR Margin shall be conclusively presumed to equal the highest
applicable Prime Rate Margin and the highest applicable LIBOR Margin
specified in the Pricing Table until the date of delivery of such Compliance
Certificate.
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“Prime Rate Margin” means (i) as of the Third Amendment Effective Date, one percent
(1.00%) per annum with respect to the Revolving Loans, the Term Loan and other
Obligations, and (ii) thereafter, as of each Adjustment Date, the Prime Rate Margin
shall be adjusted, if necessary, to the applicable percent per annum set forth in
the Pricing Table corresponding to the ratio of (x) Total Debt on the last day of
the most recently completed fiscal quarter prior to the applicable Adjustment Date
to (y) Adjusted EBITDA for the twelve (12) month period ending on the last day of
such fiscal quarter; provided, that if an Event of Default has occurred and is
continuing on an Adjustment Date, no reduction in the Prime Rate Margin shall occur
on such Adjustment Date.
“Restricted Canadian Accounts” mean account numbers 00002-0000000, 00002-1346840,
00002-4062527 and 00002-4062535 each maintained by COMSYS IT at Royal Bank of
Canada.
“Second Lien Term Loan Payoff” means the prepayment in full of the Second Lien Term
Loan by the Borrowers in an amount equal to $30,000,000 plus all accrued and unpaid
interest on such prepaid principal and any applicable prepayment premiums associated
with such prepayment, which such prepayment shall be paid on the Third Amendment
Effective Date with the proceeds of Revolving Loans.
“Third Amendment” means that certain Consent and Third Amendment to Credit Agreement
dated as of the Third Amendment Effective Date by and among the Borrowers and
certain other Credit Parties, the Agent, the Documentation Agent, the Syndication
Agent and the Lenders.
“Third Amendment Effective Date” means December 15, 2006.
“Vendor Management Funds” means funds received by a Credit Party in connection with
a vendor management program in Canada whereby the Credit Party in the ordinary
course of business periodically receives funds relating to work performed by
subvendors in Canada and within a few Business Days thereafter disburses
substantially all of such funds to such subvendors, other than the portion retained
by such Credit Party as revenue for managing such program.
(c) Section 1.1. Section 1.1 of the Credit Agreement is hereby further amended by
substituting the definitions of the terms “Commitment Expiry Date”, “Financing Documents” and
“Operative Documents” as set forth below in lieu of the current versions of such definitions
contained in Section 1.1 of the Credit Agreement:
“Commitment Expiry Date” means March 31, 2010.
“Financing Documents” means this Agreement, the First Amendment, the Second
Amendment, the Third Amendment, the Notes, the Security Documents, the Information
Certificate, the Fee Letter, any subordination agreement to be
entered into among the Agent, the Borrowers and Holdings in connection with the
Holdings Intercompany Loan, the Assignment of PS Purchase Agreement, any fee letter
between Xxxxxxx Xxxxx and any Borrower relating to the transactions
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contemplated
hereby, any Swap Contract entered into between any Credit Party and any Eligible
Swap Counterparty, and all other documents, instruments and agreements contemplated
herein or thereby and executed concurrently by a Credit Party with or in favor of
the Agent or the Lenders in connection herewith or at any time and from time to time
hereafter, as any or all of the same may be amended, supplemented, restated or
otherwise modified from time to time.
“Operative Documents” means the Financing Documents, the Merger Documents, the PS
Purchase Documents, the Venturi Staffing Purchase Agreement and the Equity
Documents.
(d) Section 3.4. Section 3.4 of the Credit Agreement is hereby deleted in its entirety
and the following is substituted in lieu thereof:
“Section 3.4 Capitalization.
The authorized equity securities of each of the Credit Parties as of the
Closing Date is as set forth on the Information Certificate. All issued and
outstanding equity securities of each of the Credit Parties are duly authorized and
validly issued, fully paid, nonassessable, and, solely with respect to the equity
securities of PFI, each Borrower, COMSYS Canada and each of their respective
Subsidiaries, free and clear of all Liens other than those in favor of Agent for the
benefit of Agent and Lenders and other Liens permitted pursuant to Section 5.2(d),
and all such equity securities of each Credit Party were issued in compliance with
all applicable state, federal and foreign laws concerning the issuance of
securities. The identity of the holders of the equity securities of each of the
Credit Parties and the percentage of their fully-diluted ownership of the equity
securities of each of the Credit Parties as of the Closing Date is set forth on the
Information Certificate. Holdings owns all of the issued and outstanding equity
securities of COMSYS IT and PFI. COMSYS IT owns all of the issued and outstanding
equity securities of COMSYS Services, Pure Solutions and COMSYS Limited. COMSYS
Services owns all of the issued and outstanding equity securities of COMSYS Canada.
No shares of the capital stock or other equity securities of any Credit Party, other
than those described above, are issued and outstanding. Except as set forth on the
Information Certificate, as of the Closing Date there are no preemptive or other
outstanding rights, options, warrants, conversion rights or similar agreements or
understandings for the purchase or acquisition from any Credit Party of any equity
securities of any such entity.”
(e) Section 4.7. Section 4.7 of the Credit Agreement is hereby deleted in its entirety
and the following is substituted in lieu thereof:
“The Borrowers will use the proceeds of the Closing Date Term Loan solely for (i)
transaction fees incurred in connection with the Operative Documents entered into on
the Closing Date, and (ii) the repayment on the Closing Date of Existing
Debt of the Credit Parties. The Borrowers will use the proceeds of the Second
Amendment Term Loan solely to make the Second Lien Term Loan Prepayment. The
proceeds of Revolving Loans shall be used by the Borrowers solely (i) for the
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purposes set forth in the preceding sentences, (ii) to consummate the Second Lien
Term Loan Payoff and (iii) for working capital needs of the Borrowers including,
without limitation, for making Permitted Acquisitions, for payment of fees and
expenses in connection with amendments and waivers of the Operative Documents and
for the making of Restricted Distributions to the extent permitted pursuant to
Section 5.4.”
(f) Section 4.8. Section 4.8 of the Credit Agreement is hereby deleted in its entirety
and the following is substituted in lieu thereof:
“Section 4.8 Lenders’ Meetings.
Within forty-five (45) days after the end of each Fiscal Year (or more
frequently upon the request of the Agent upon the occurrence and during the
continuance of an Event of Default), the Credit Parties will conduct a meeting of
Agent and the Lenders to discuss such Fiscal Year’s results and the financial
condition of the Credit Parties and their respective Subsidiaries at which shall be
present a Responsible Officer and such officers of the Credit Parties as may be
reasonably requested to attend by Agent or any Lender, such request or requests to
be made within a reasonable time prior to the scheduled date of such meeting. Such
meetings shall be held at a time and place convenient to the Lenders and to the
Credit Parties.”
(g) Section 5.1. Section 5.1(h) of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
“(h) Intentionally Omitted;”
(h) Section 5.2. Section 5.2(h) of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
“(h) Intentionally Omitted;”
(i) Section 5.3. Section 5.3(j) of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
“(j) Intentionally Omitted;”
(j) Section 5.4. Section 5.4(e) of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
“(j) Intentionally Omitted;”
(k) Section 5.4. Section 5.4 of the Credit Agreement is hereby further amended by (i)
deleting the “and” at the end of clause (h)(v) thereof, (ii) deleting the period at the end of
clause (i) thereof and substituting “; and” therefor and (iii) adding a new clause (j) thereto
immediately following clause (i) thereof as follows:
“(j) redemptions (or withholdings) of common stock of Holdings from time to time
from any officer of any Credit Party or any other individual in connection
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with
share grants made to such individual under a restricted stock or other equity
incentive plan of Holdings in the ordinary course of business, so long as (i) the
amounts redeemed or withheld in each instance do not exceed such individual’s share
of United States income and payroll taxes arising from such share issuance, (ii) the
cash value of the common stock redeemed or withheld from such individual does not
exceed the amount required to be withheld with respect to taxes payable by such
individual in connection with income associated with such share issuance and (iii)
the cash value attributable to all such redeemed or withheld common stock for all
such individuals after the date hereof does not exceed $1,200,000 in any Fiscal
Year.”
(l) Section 5.6. Sections 5.6(a) and 5.6(b) of the Credit Agreement are hereby
deleted in their entirety and the following is substituted in lieu thereof:
“(a) Intentionally Omitted;
(b) Intentionally Omitted;”
(m) Section 6.1(d). Section 6.1(d) of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
“(d) Each Credit Party (other than Foreign Subsidiaries) shall establish and
maintain, at its sole expense, and shall cause each Subsidiary to establish and
maintain, at its sole expense, blocked accounts or lockboxes and related blocked
accounts (in either case, “Blocked Accounts”), as Agent may reasonably specify, with
such banks as are reasonably acceptable to Agent into which such Credit Party and
its Subsidiaries shall promptly deposit and direct their respective Account Debtors
to directly remit all payments on Accounts and all payments constituting proceeds of
Collateral in the identical form in which such payments are made, whether by cash,
check or other manner. Each Credit Party shall deliver, or cause to be delivered,
to Agent a Deposit Account Control Agreement duly authorized, executed and delivered
by each bank where a Blocked Account for the benefit of such Credit Party or any of
its Subsidiaries is maintained, and by each bank where any other Deposit Account is
from time to time maintained. Each Credit Party shall further execute and deliver,
and shall cause each of its Subsidiaries to execute and deliver, such agreements and
documents as Agent may reasonably require in connection with such Blocked Accounts,
Deposit Accounts and such Deposit Account Control Agreements. Without limiting the
provisions of Section 5.15, no Credit Party shall establish, and no Credit Party
(other than a Foreign Subsidiary) shall cause or permit any of its Subsidiaries to
establish, any Deposit Accounts not existing as of the Closing Date, unless such
Credit Party or its Subsidiaries (as applicable) have complied in full with the
provisions of this Section 6.1 with respect to such Deposit Accounts. Each Credit
Party agrees that all payments made to such Blocked Accounts or other funds received
and collected by Agent or any Lender, whether in respect of the Accounts, as
proceeds of Collateral or otherwise shall be treated as payments to Agent and
Lenders in respect of the Obligations and therefore shall constitute the
property of Agent and Lenders to the extent of the then outstanding Obligations.
The foregoing and anything contained in any Financing Document to the contrary
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notwithstanding, (i) the Credit Parties shall not be required to deliver any such
Deposit Account Control Agreements in respect of (A) any “Payroll Account” or
“Payroll Tax Account” (in each case, as defined on the Bank Account Schedule to the
Information Certificate) each maintained at Wachovia Bank, National Association;
provided, that, the Credit Parties shall not, and shall not cause or permit any of
their respective Subsidiaries to, deposit or maintain funds in such account other
than funds deposited therein in the ordinary course of business for purposes of
funding current payroll liabilities, (B) the “Benefit Accounts” (as defined on the
Bank Account Schedule to the Information Certificate) and the “Pre Tax Parking
Account” (as defined on the Bank Account Schedule to the Information Certificate)
maintained at Wachovia Bank, National Association; provided, that, in each case, the
Credit Parties shall not, and shall not cause or permit any of their respective
Subsidiaries to, deposit or maintain funds in such accounts other than funds
deposited therein at the direction of such Credit Party’s employees to be held
therein for the benefit of the employees of such Credit Party and the Credit Parties
will at no time deposit any of their own assets into such accounts, and (C) any
other Restricted Account; provided, that the Credit Parties shall not, and shall not
cause or permit any of their respective Subsidiaries to, deposit or maintain funds
in such Restricted Accounts other than funds deposited therein in the ordinary
course of business for funding current liabilities and (ii) the Credit Parties
shall, within the time periods set forth in Section 4 of the Third Amendment, be
required to deliver Deposit Account Control Agreements that require only springing
dominion control over each Restricted Canadian Account and such agreements shall not
require the depository banks where such Restricted Canadian Accounts are maintained
to wire, or otherwise transfer all funds received or deposited into any Restricted
Canadian Account to the Payment Account of the Agent; provided, that the Credit
Parties shall not, and shall not cause or permit any of their respective
Subsidiaries to, deposit or maintain funds (other than Vendor Management Funds) in
excess of $2,000,000 in the aggregate in all Restricted Canadian Accounts at any
time, and in the event the aggregate amount of funds (other than Vendor Management
Funds) maintained in such Restricted Canadian Accounts is in excess of the foregoing
limitation, the Credit Parties shall, within five (5) Business Days, transfer such
excess to Account Number 001/2000022986605 maintained at Wachovia Bank, National
Association. At no time shall any Credit Party or any of its Subsidiaries deposit,
or permit or direct any Account Debtor or any other Person (other than Agent) to
deposit, funds directly into any account maintained by any Credit Party other than
the “Depository Accounts,” and/or the “Lockboxes” maintained at Wachovia Bank,
National Association (in each case, as defined in the Information Certificate).”
(n) Section 7.2. Section 7.2 of the Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
“Section 7.2 Total Debt to Adjusted EBITDA Ratio.
In the event Net Borrowing Availability of the Borrowers (disregarding the
Permanent Reserve in the calculation of the Borrowing Base) is equal to or
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less than
$25,000,000 as reflected on any Borrowing Base Certificate delivered to Agent in
accordance with the terms of this Agreement (or, if the Funds Administrator, on
behalf of the Borrowers, shall at any time fail to timely deliver a Borrowing Base
Certificate in accordance with the terms of this Agreement, and Net Borrowing
Availability (disregarding the Permanent Reserve in the calculation of the Borrowing
Base) is determined by Agent to be equal to or less than $25,000,000 in the exercise
of its reasonable credit judgment based on a calculation of Net Borrowing
Availability reflected in the most recently delivered Borrowing Base Certificate,
with such adjustments to the values of Eligible Billed Accounts and Eligible
Unbilled Accounts as Agent deems appropriate in the exercise of its reasonable
credit judgment), then commencing with the first fiscal quarter ending after
delivery of such Borrowing Base Certificate (or such determination by Agent, as the
case may be) and at all times thereafter, the Credit Parties shall not permit the
ratio of (i) Total Debt as of the last day of each fiscal quarter (commencing with
the fiscal quarter ending closest to March 31, 2007) to (ii) Adjusted EBITDA for the
four (4) fiscal quarter period ending on the last day of such fiscal quarter or any
subsequent fiscal quarter to exceed 3.50 to 1.00.”
(o) General Amendment. Anything contained in the Credit Agreement or the other
Financing Documents to the contrary notwithstanding, effective on the Third Amendment Effective
Date upon the consummation of the Second Lien Term Loan Payoff, the parties hereto hereby
acknowledge and agree that: (i) all Second Lien Debt shall have been paid in full in cash and shall
no longer be deemed outstanding; (ii) no additional Second Lien Debt shall be incurred by the
Credit Parties; and (iii) any references in the Credit Agreement or the other Financing Documents
to any actions required to be taken, or consents required to be granted, by the Second Lien Lenders
and/or the Second Lien Agents shall be deemed deleted from the Credit Agreement and each other
Financing Document and shall be of no further force and effect.
3. Consent to Second Lien Term Loan Payoff. Effective as of the date hereof, subject
to the conditions set forth below in this Section 3, upon satisfaction of the conditions precedent
set forth in Section 5 hereof, and in reliance upon the representations and warranties of the
Credit Parties set forth in the Credit Agreement, the other Financing Documents and in this
Amendment, and notwithstanding anything to the contrary contained in the Credit Agreement, the
Second Lien Intercreditor Agreement or any other Financing Document (including, without limitation,
Section 5.6 of the Credit Agreement), the Agent and the Lenders hereby consent to the Second Lien
Term Loan Payoff, provided that the effectiveness of such consent is subject to the following
conditions: (i) the Second Lien Term Loan Payoff is consummated on the date hereof solely with
proceeds of Revolving Loans, (ii) the Second Lien Term Loan Payoff shall constitute the payment in
full in cash of all Second Lien Debt, (iii) all Second Lien Lenders and the Second Lien Agents
shall have executed and delivered a payoff letter evidencing the payment in full of all Second Lien
Debt and the termination of all Second Lien Debt Documents, in form and substance reasonably
acceptable to the Agent and shall agree that, upon receipt of the Second Lien Term Loan Payoff, all
liens in favor of the Second Lien Lenders shall be deemed automatically terminated (the “Second
Lien Payoff Letter”), and (iv) the Borrowers shall have
provided evidence to the Agent, reasonably satisfactory to the Agent, that the Second Lien
Term Loan Payoff has been applied as a prepayment of the Second Lien Term Loan.
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4. Conditions Subsequent. As soon as practicable, but in no event later than thirty
(30) days after the Third Amendment Effective Date, COMSYS IT shall deliver or cause to be
delivered to the Agent the Deposit Account Control Agreements required pursuant to Section
6.1(d)(ii) of the Credit Agreement (as amended by this Amendment) executed by COMSYS IT and each
bank where a Restricted Canadian Account is maintained, in form and substance reasonably
satisfactory to the Agent with respect to each Restricted Canadian Account or, close all such
Restricted Canadian Accounts and transfer any funds maintained therein to an account maintained a
financial institution that has executed (or will execute) a Deposit Account Control Agreement in
form and substance reasonably acceptable to Agent.
5. Conditions Precedent. The effectiveness of this Amendment is subject to the
satisfaction of the following conditions precedent:
| (a) | delivery to the Agent of the following documents, each duly authorized and executed and in form and substance reasonably satisfactory to the Agent: |
| (i) | this Amendment executed by each Credit Party that is a party hereto, the Agent and the Lenders; | ||
| (ii) | original Second Amended and Substituted Revolving Loan Notes executed by the Borrowers in favor of each Lender whose Revolving Loan Commitment Amount shall be increased as a result of this Amendment; | ||
| (iii) | a fee letter executed by the Borrowers in favor of the Agent; and | ||
| (iv) | such evidence of the authority of the Credit Parties to execute and deliver this Amendment and all other Financing Documents delivered in connection herewith as the Agent may reasonably require, including but not limited to a copy of resolutions duly adopted by the board of directors (or other governing authority) of each such Person, authorizing the execution by each such Person of this Amendment and the other agreements, documents and instruments to be executed by each such Person pursuant to this Amendment, certified as complete and correct by the corporate secretary or similar officer of each such Person; |
| (b) | the delivery to Agent of a fully executed Second Lien Payoff Letter; | ||
| (c) | the Borrowers shall have delivered (and the Borrowers hereby covenant and agree to pay) to the Agent for the ratable benefit of the Lenders that are increasing their Revolving Loan Commitments, based on their respective commitments being issued on the Third Amendment Effective Date, a non-refundable closing fee in the aggregate amount of $37,500, which fee shall be fully earned and payable as of the date hereof; | ||
| (d) | the truth and accuracy of the representations and warranties contained in Section 6 hereof; and |
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| (e) | after giving effect to this Amendment, no Default or Event of Default under the Credit Agreement, as amended hereby, shall have occurred and be continuing. |
6. Representations and Warranties. Each Credit Party that is a party hereto hereby
represents and warrants to the Agent and each Lender as follows:
| (a) | the representations and warranties of the Borrowers and the other Credit Parties contained in the Financing Documents are true and correct in all material respects as of the date hereof, except to the extent that any such representation or warranty (i) relates to a specific date, in which case such representation and warranty shall be true and correct in all material respects as of such earlier date or (ii) is qualified by materiality or has Material Adverse Effect qualifiers, in which case, such representations and warranties shall be true and correct in all respects; | ||
| (b) | the execution, delivery and performance by such Credit Party of this Amendment are within its powers, have been duly authorized by all necessary action pursuant to its Organizational Documents, require no further action by or in respect of, or filing with, any governmental body, agency or official (other than (i) routine corporate, tax, ERISA, intellectual property, environmental filings and other filings from time to time necessary in connection with the conduct of such Credit Party’s business in the ordinary course, and (ii) recordings and filings in connection with the Liens granted to the Agent under the Financing Documents) and do not violate, conflict with or cause a breach or a default under any provision of applicable law or regulation or of the Organizational Documents of any Credit Party or of any agreement, judgment, injunction, order, decree or other instrument binding upon it, except for such failures to file, violations, conflicts, breaches or defaults as could not reasonably be expected to have a Material Adverse Effect; | ||
| (c) | this Amendment constitutes the valid and binding obligation of the Credit Parties that are parties hereto, enforceable against such Persons in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws relating to the enforcement of creditor’s rights generally and by general equitable principles; and | ||
| (d) | after giving effect to this Amendment, no Default or Event of Default exists. |
7. No Waiver. Except as expressly set forth herein, nothing contained herein shall be
deemed to constitute a waiver of compliance with any term or condition contained in the Credit
Agreement or any of the other Financing Documents or constitute a course of conduct or dealing
among the parties. Except as expressly stated herein, the Agent and Lenders reserve all
rights, privileges and remedies under the Financing Documents. Except as amended or consented
to hereby, the Credit Agreement and other Financing Documents remain unmodified
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and in full force
and effect. All references in the Financing Documents to the Credit Agreement shall be deemed to
be references to the Credit Agreement as amended and waived hereby.
8. Severability. In case any provision of or obligation under this Amendment shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
9. Headings. Headings and captions used in this Amendment (including the Exhibits,
Schedules and Annexes hereto, if any) are included for convenience of reference only and shall not
be given any substantive effect.
10. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AMENDMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES. EACH CREDIT PARTY HEREBY CONSENTS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF XXXX, STATE OF ILLINOIS AND IRREVOCABLY
AGREES THAT, SUBJECT TO THE AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AMENDMENT OR THE OTHER FINANCING DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. EACH CREDIT
PARTY EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY
DEFENSE OF FORUM NON CONVENIENS. EACH CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PERSON BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED C/O THE FUNDS ADMINISTRATOR AT THE ADDRESS SET
FORTH IN THE CREDIT AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME
HAS BEEN POSTED.
11. WAIVER OF JURY TRIAL. EACH CREDIT PARTY, THE AGENT AND THE LENDERS HEREBY
IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY AND AGREES THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
12. Counterparts; Integration. This Amendment may be executed and delivered via
facsimile with the same force and effect as if an original were executed and may be signed in any
number of counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument. This Amendment constitutes the entire agreement
and understanding among the parties hereto with respect to the subject matter hereof and supersedes
any and all prior agreements and understandings, oral or written, relating to the subject matter
hereof.
13. Reaffirmation. Each of the Credit Parties that is a party hereto, as debtor,
grantor, pledgor, guarantor, assignor, or in other any other similar capacity in which such Credit
Party grants liens or security interests in its property or otherwise acts as accommodation party
or
11
guarantor, as the case may be, hereby (i) ratifies and reaffirms all of its payment and
performance obligations, contingent or otherwise, under each of the Financing Documents to which it
is a party (after giving effect hereto) and (ii) to the extent such Credit Party granted liens on
or security interests in any of its property pursuant to any such Financing Document as security
for or otherwise guaranteed the Borrowers’ Obligations under or with respect to the Financing
Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and
confirms and agrees that such security interests and liens hereafter secure all of the Obligations
as amended hereby. Each of the Credit Parties hereby consents to this Amendment and acknowledges
that each of the Financing Documents remains in full force and effect and is hereby ratified and
reaffirmed, subject to the amendments, consents and waivers set forth herein. The execution of
this Amendment shall not operate as a waiver of any right, power or remedy of the Agent or Lenders
or constitute a waiver of any provision of any of the Financing Documents (except as expressly set
forth herein) or serve to effect a novation of the Obligations.
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signature pages follow]
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12
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above.
| BORROWERS: | ||||
| COMSYS SERVICES LLC, a Delaware limited liability company, as the Funds Administrator and as a Borrower | ||||
| By: | /s/ XXXXX X. XXXX | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President — Corporate Development | |||
| COMSYS INFORMATION TECHNOLOGY SERVICES, INC., a Delaware corporation, as a Borrower | ||||
| By: | /s/ XXXXX X. XXXX | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President — Corporate Development | |||
| PURE SOLUTIONS, INC., a Delaware corporation, as a Borrower | ||||
| By: | /s/ XXXXX X. XXXX | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President — Corporate Development | |||
Consent
and Third Amendment to Credit Agreement
(COMSYS)
(COMSYS)
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above.
| OTHER CREDIT PARTIES: | ||||
| COMSYS IT PARTNERS, INC., a Delaware corporation | ||||
| By: | /s/ XXXXX X. XXXX | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President — Corporate Development | |||
| PFI LLC, a Delaware limited liability company | ||||
| By: | /s/ XXXXX X. XXXX | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President — Corporate Development | |||
| COMSYS IT CANADA, INC., a North Carolina corporation | ||||
| By: | /s/ XXXXX X. XXXX | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President — Corporate Development | |||
Consent
and Third Amendment to Credit Agreement
(COMSYS)
(COMSYS)
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above.
| AGENT AND LENDER: | ||||
| XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services Inc., as Agent and a Lender | ||||
| By: | /s/ XXXXX X. XXXX | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Vice President | |||
Consent
and Third Amendment to Credit Agreement
(COMSYS)
(COMSYS)
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above.
| LENDERS: | ||||||
| GMAC COMMERCIAL FINANCE LLC, as Syndication Agent and as a Lender | ||||||
| By: | /s/ XXXXXX XXXXX | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Director | |||||
| ING CAPITAL LLC, as Co-Documentation Agent and as a Lender | ||||||
| By: | /s/ XXXXX X. XXXXX | |||||
| Name: | Xxxxx X. Xxxxx | |||||
| Title: | Vice President | |||||
| ALLIED IRISH BANKS PLC, as Co-Documentation Agent and as a Lender | ||||||
| By: | /s/ XXXXXX XXXX | |||||
| Name: | Xxxxxx Xxxx | |||||
| Title: | Senior Vice President | |||||
| By: | /s/ XXXXXX XXXXXXXX | |||||
| Name: | Xxxxxx XxXxxxxx | |||||
| Title: | Assistant Vice President | |||||
| AIB DEBT MANAGEMENT, LIMITED | ||||||
| By: | /s/ XXXXXX XXXX | |||||
| Name: | Xxxxxx Xxxx | |||||
| Title: | Senior Vice President | |||||
| Investment Advisor to AIB Debt Management Limited |
||||||
| By: | /s/ XXXXXX XXXXXXXX | |||||
| Name: | Xxxxxx XxXxxxxx | |||||
| Title: | Assistant Vice President | |||||
| Investment advisor to AIB Debt Management Limited |
||||||
Consent
and Third Amendment to Credit Agreement
(COMSYS)
(COMSYS)
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date set forth above.
| NORTH FORK BUSINESS CAPITAL CORPORATION, as a Lender | ||||||
| By: | /s/ XXX XXXXXX | |||||
| Name: | Xxx Xxxxxx | |||||
| Title: | Vice President | |||||
| BMO CAPITAL MARKETS FINANCING, INC., as
Co-Documentation Agent and as a Lender |
||||||
| By: | /s/ XXXXX X. XXXXXXXXX | |||||
| Name: | Xxxxx X. XxXxxxxxx | |||||
| Title: | Managing Director | |||||
Consent and Third Amendment to Credit Agreement
(COMSYS)
(COMSYS)
EXHIBIT A
Annex A
Commitment Annex
| Revolving Loan | Revolving Loan | Term Loan | Term Loan | |||||||||||||
| Commitment | Commitment | Commitment | Commitment | |||||||||||||
| Lender | Amount | Percentage | Amount | Percentage | ||||||||||||
Xxxxxxx Xxxxx Capital |
$ | 47,900,000 | 29.93750 | % | $ | 2,500,000 | 25.00000 | % | ||||||||
GMAC Commercial Finance LLC |
$ | 30,000,000 | 18.75000 | % | $ | 1,900,000 | 19.00000 | % | ||||||||
ING Capital LLC |
$ | 23,100,000 | 14.43750 | % | $ | 1,800,000 | 18.00000 | % | ||||||||
North Fork Business Capital
Corporation |
$ | 9,000,000 | 5.62500 | % | $ | 700,000 | 7.00000 | % | ||||||||
Allied Irish Banks plc |
$ | 26,200,000 | 16.37500 | % | N/A | N/A | ||||||||||
BMO Capital Markets Financing, Inc. |
$ | 23,800,000 | 14.87500 | % | $ | 1,200,000 | 12.00000 | % | ||||||||
AIB Debt Management, Limited |
N/A | N/A | $ | 1,900,000 | 19.00000 | % | ||||||||||
TOTALS |
$ | 160,000,000.00 | 100 | % | $ | 10,000,000 | 100 | % | ||||||||
Consent
and Third Amendment to Credit Agreement
(COMSYS)
(COMSYS)
