AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT FACILITIES AGREEMENT
EXHIBIT
10.1
AMENDMENT
NO. 5 TO AMENDED AND RESTATED
This
AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT FACILITIES AGREEMENT (this
“Agreement”) is entered into and effective as of April 15, 2008, by and among
(1) Xxxxxxx IT Solutions, Inc. (formerly known as, Pomeroy Computer Resources,
Inc., and as successor by merger with Val Tech Computer Systems, Inc.), (2)
Xxxxxxx Select Integration Solutions, Inc., (3) Xxxxxxx Staffing Solutions, LLC
(formerly, prior to conversion, Xxxxxxx Select Advisory Services, Inc.), (4)
Pomeroy IT Solutions Sales Company, Inc. (formerly known as, Pomeroy Computer
Resources Sales Company, Inc., and as successor by merger with TheLinc, LLC and
as successor by merger with Micrologic Business Systems of K.C., LLC), (5)
Xxxxxxx Computer Resources Holding Company, Inc., (6) Xxxxxxx Computer Resources
Operations, LLP, (7) PCR Holdings, Inc. (formerly known as, Technology
Integration Financial Services, Inc.), (8) PCR Properties, LLC (formerly, prior
to conversion, PCR Properties, Inc., and prior to such conversion, formerly
known as, T.I.F.S. Advisory Services, Inc.), (9) Alternative Resources
Corporation, a Delaware corporation (as successor by merger with Xxxxxxx
Acquisition Sub, Inc.), (10) ARC Service, Inc., a Delaware corporation, (11) ARC
Staffing Management LLC, a Delaware limited liability company, (12) ARC Shared
Services LLC, a Delaware limited liability company, (13) ARC Technology
Management LLC, a Delaware limited liability company, (14) ARC Solutions, Inc.,
a Delaware corporation, and (15) ARC Midholding, Inc., a Delaware corporation
(collectively and separately referred to as, “Borrower” or “Borrowers”), and GE
Commercial Distribution Finance Corporation, formerly known as Deutsche
Financial Services Corporation (“GECDF”), as Administrative Agent, and GECDF and
the Lenders.
Recitals:
|
A.
|
Borrower,
Administrative Agent and Lenders are party to that certain Amended and
Restated Credit Facilities Agreement dated as of June 25, 2004, as amended
by Amendment No. 1 (with Waiver) to Amended and Restated Credit Facilities
Agreement dated as of March 31, 2006, as amended by Amendment No. 2 (with
Waiver) to Amended and Restated Credit Facilities Agreement dated as of
April 13, 2006, as amended by Amendment No. 3 (with Waiver) to Amended and
Restated Credit Facilities Agreement dated as of June 23, 2006, as amended
by Amendment No. 4 to Amended and Restated Credit Facilities Agreement
dated as of June 25, 2007, and as further amended or modified or consented
to from time to time (the “Loan
Agreement”).
|
|
B.
|
The
Lenders and Borrower have agreed to the provisions set forth herein on the
terms and conditions contained
herein.
|
Agreement
Therefore,
in consideration of the mutual agreements herein and other sufficient
consideration, the receipt of which is hereby acknowledged, Borrower,
Administrative Agent and the Lenders hereby agree as follows:
1. Definitions. All
references to the “Agreement” or the “Loan Agreement” in the Loan Agreement and
in this Agreement shall be deemed to be references to the Loan Agreement as it
may be amended, restated, extended, renewed, replaced, or otherwise modified
from time to time. Capitalized terms used and not otherwise defined
herein have the meanings given them in the Loan Agreement.
2. Effectiveness of
Agreement. This Agreement shall become effective as of the
date first written above, but only if this Agreement has been executed by
Borrower, Administrative Agent and each of the Lenders, and only if all of the
documents listed on Exhibit A to this
Agreement have been delivered and, as applicable, executed, sealed, attested,
acknowledged, certified, or authenticated, each in form and substance
satisfactory to Administrative Agent and the Lenders, and the Fifth Amendment
Fee (as defined on Exhibit A) has been
paid in same day funds. The Fifth Amendment Fee shall be paid pro
rata to, and shared pro rata by, each Lender.
3. Waivers for January 5, 2008
Covenants. Borrower has
notified Administrative Agent that Borrower has violated Section 15.2 (Minimum
Tangible Net Worth) of the Loan Agreement for the January 5, 2008 computation
date, Section 15.4 (Minimum Fixed Charges) of the Loan Agreement for the January
5, 2008 computation date, and, during the Borrower’s fiscal quarter ending
January 5 ,2008, redeemed some of its Capital Securities while there was an
Existing Default in violation of Section 14.10.1 of the Loan
Agreement. Under Section 16.1.7 of the Loan Agreement, Borrower’s
violation of Section 15.2 of the Loan Agreement, Section 15.4 of the Loan
Agreement and Section 14.10.1 of the Loan Agreement, each constitutes an Event
of Default (collectively, such violations being, the “January Events of
Default”).
The
Borrower has requested that the Required Lenders waive the January Events of
Default. The Required Lenders hereby waive the January Events of
Default.
The
waivers contained in this Section 3 are specific in intent and are valid
only for the specific purpose for which they are given. Nothing
contained herein obligates Administrative Agent or any Lender to agree to any
additional waivers of any provisions of any of the Loan Documents, including but
not limited to, Section 15.2 of the Loan Agreement, Section 15.4 of the Loan
Agreement and Section 14.10.1 of the Loan Agreement. The waivers
contained in this Section 3 are waivers of only the January Events of Default,
and shall not operate as a waiver of Administrative Agent's or any Lenders'
right to exercise remedies resulting from (i) any other existing and/or
continuing Defaults or Events of Default whether or not of a similar nature and
whether or not Administrative Agent or any Lender is actually aware of any such
existing and/or continuing Defaults or Events of Default, or (ii) any future
Defaults or Events of Default, whether or not of a similar nature and whether or
not known to Administrative Agent or any Lender.
4. Waivers for April 5, 2008 Covenant
Defaults. Borrower has
notified the Administrative Agent pursuant to Section 13.10 of Credit Agreement
that it has breached Section 15.2 (Minimum Net Worth) for the April 5, 2008
computation date, Section 15.3 (Maximum Net Loss After Tax) for the April 5,
2008 computation date, and Section 15.4 (Minimum Fixed Charge Coverage) for the
April 5, 2008 computation date and, during the Borrower’s fiscal quarter ending
April 5 ,2008, redeemed some of its Capital Securities while there was an
Existing Default in violation of Section 14.10.1 of the Loan
Agreement. Under Section 16.1.7 of the Loan Agreement, Borrower’s
violation of Section 15.2 of the Loan Agreement, Section 15.3 of the Loan
Agreement, Section 15.4 of the Loan Agreement and Section 14.10.1 of the Loan
Agreement, each constitutes an Event of Default (collectively, such violations
being, the “April Events of Default”).
The
Borrower has requested that the Required Lenders waive the April Events of
Default. The Required Lenders hereby waive the April Events of
Default.
The
waivers contained in this Section 4 are specific in intent and are valid only
for the specific purpose for which they are given. Nothing contained
herein obligates Administrative Agent or any Lender to agree to any additional
waivers of any provisions of any of the Loan Documents, including but not
limited to, Section 15.2 of the Loan Agreement, Section 15.3 of the Loan
Agreement, Section 15.4 of the Loan Agreement and Section 14.10.1 of the Loan
Agreement. The waivers contained in this Section 4 are waivers of
only the April Events of Default, and shall not operate as a waiver of
Administrative Agent's or any Lenders' right to exercise remedies resulting from
(i) any other existing and/or continuing Defaults or Events of Default whether
or not of a similar nature and whether or not Administrative Agent or any Lender
is actually aware of any such existing and/or continuing Defaults or Events of
Default, or (ii) any future Defaults or Events of Default, whether or not of a
similar nature and whether or not known to Administrative Agent or any
Lender.
2
5. Amendments. The
Loan Agreement is hereby amended as follows:
5.1. Required
Lenders. Section 2.5 of the Loan Agreement is deleted in its
entirety and replaced with the following:
“2.5. References to
Required Lenders. The words “Required Lenders” means any one
or more Lenders whose shares of Lenders’ Exposure at the relevant time aggregate
at least 66.6667% (subject to the terms of Section 7.5); provided, however, if,
at any time, there shall be two or fewer Lenders, then “Required Lenders” means
all such Lenders.”
5.2. Revolving Loans Aggregate
Amount. Section 3.1.1 of the Loan Agreement is deleted and
replaced with the following:
“3.1.1. Aggregate
Amount. Subject to the limitations in Section 3.1.2, Section
3.6 and elsewhere herein, each Lender commits to make available to Borrower,
from the Effective Date to the Revolving Loan Maturity Date, such Lender’s
pro-rata share (as listed on Exhibit 3 hereto) of an “Aggregate Revolving Loan
Commitment” that is initially Sixty Eight Million Seven Hundred Thousand Dollars
($68,700,000), but which may decrease from time to time as provided herein,
minus the outstanding amount of the Swingline Loans and minus the outstanding
amount of the Aggregate Floorplan Loans made and outstanding Approvals granted
due to any unused portion of the Aggregate Revolving Loan Facility as provided
in Section 3.2.1, by funding such Lender’s pro-rata share of Revolving Loan
Advances made from time to time by Administrative Agent as provided
herein. Subject to the limitations in Section 3.1.2 and elsewhere
herein, payments and prepayments that are applied to reduce the Aggregate
Revolving Loan may be reborrowed through Revolving Loan
Advances. Each Lender’s Revolving Loan Commitment is its pro-rata
share of the Aggregate Revolving Loan Commitment. Upon any reduction
of the Aggregate Revolving Loan Commitment permitted in this Agreement, each
Lender’s Revolving Loan Commitment will automatically reduce by such Lender’s
pro-rata share of such reduction of the Aggregate Revolving Loan
Commitment.”
5.3. Limitations on Revolving Loan
Advances. Section 3.2.1 of the Loan Agreement is deleted and
replaced with the following:
“3.2.1. Floorplan Loan
Facility Generally. Each Lender shall, subject to the terms
and limitations in this Section 3.2, Section 3.6, and elsewhere herein, make
available to Borrower such Lender’s pro-rata share (as listed on Exhibit 3
hereto) of an “Aggregate Floorplan Loan Facility” that is (A) Sixty Eight
Million Seven Hundred Thousand Dollars ($68,700,000) plus, if applicable, (B) at
any time, the unused portion of the Aggregate Revolving Loan Facility, by
funding such Lender’s pro-rata share thereof as provided for
herein. Each Lender’s Floorplan Loan Facility is its pro-rata share
of the Aggregate Floorplan Loan Facility. All Floorplan Loan Advances
and Interim Floorplan Loan Advances will be made directly to approved Vendors
and not to the Borrower. No Floorplan Loan Advance will be made which
would result in either: (i) the sum of the Aggregate Floorplan Loan, the Interim
Floorplan Loan, and all unfunded Approvals, exceeding Total Aggregate Facility
Limit; or (ii) the Lenders’ Exposure exceeding the Total Aggregate Facility
Limit. Subject to the terms of this Agreement, payments and
prepayments that are applied to reduce the Aggregate Floorplan Loan may be
re-borrowed through subsequent Floorplan Loan Advances, subject to the terms and
conditions of this Agreement and the Loan Documents. The Aggregate
Floorplan Loan Facility is not a commitment to lend or advance funds but is a
discretionary facility. From and after the date on which the
Administrative Agent has actual knowledge of an Event of Default under Section
16.1.1 or under Section 16.1.12, no further Approvals will be issued and except
with respect to existing unfunded Approvals, no further Floorplan Loan Advances
shall be made. From and after the date on which Administrative Agent
has actual knowledge of any other Event of Default, no further Approvals will be
issued if the Administrative Agent so chooses in its discretion to no longer
issue Approvals or if the Required Lenders direct the Administrative Agent to no
longer issue Approvals, and except with respect to existing unfunded Approvals,
no further Floorplan Loan Advances shall be made.”
3
5.4. Total Aggregate Facility
Limit. Section 3.6 of the Loan Agreement is deleted and
replaced with the following:
“3.6. Total Aggregate
Facility Limit. Notwithstanding the Commitments herein or
anything else contained in this Agreement or any of the other Loan Documents to
the contrary, Borrower, Administrative Agent and each Lender acknowledge and
agree that at no time shall the Aggregate Revolving Loan, the Swingline Loan,
the Aggregate Floorplan Loan, the Interim Floorplan Loan, the Letter of Credit
Exposure and all unfunded Approvals, exceed Sixty Eight Million Seven Hundred
Thousand Dollars ($68,700,000) in the aggregate (the “Total Aggregate Facility
Limit”).”
5.5. Minimum Tangible Net
Worth. Section 15.2 of
the Loan Agreement is deleted in its entirety and replaced with the
following:
“15.2. Minimum Tangible Net
Worth. Each Borrower covenants that Tangible Net Worth on the
last day of each fiscal quarter shall be no less than Seventy Million Dollars
($70,000,000).”
5.6. Exhibit 3. The
existing Exhibit 3 to the Credit Agreement as set forth on Exhibit C attached
hereto is deleted and replaced with the Exhibit 3 s set forth on Exhibit D attached
hereto.
5.7. Schedule II to the Compliance
Certificate. The existing Schedule II to the Compliance
Certificate is amended to reflect the amendment in Section 5.5
above.
6. Representations and Warranties of
Borrower. Each Borrower hereby represents and warrants to
Administrative Agent and the Lenders that (i) such Borrower’s execution of this
Agreement has been duly authorized by all requisite action of such Borrower,
(ii) no consents are necessary from any third parties for such Borrower’s
execution, delivery or performance of this Agreement, (iii) this Agreement, the
Loan Agreement, and each of the other Loan Documents, constitute the legal,
valid and binding obligations of Borrower enforceable against Borrower in
accordance with their terms, except to the extent that the enforceability
thereof against Borrower may be limited by bankruptcy, insolvency or other laws
affecting the enforceability of creditors rights generally or by equity
principles of general application, (iv) except as disclosed on the disclosure
schedule attached to the Loan Agreement and attached hereto as Exhibit B, all of the
representations and warranties contained in Section 11 of the Loan Agreement are
true and correct with the same force and effect as if made on and as of the date
of this Agreement, and (v) after giving effect to this Agreement, there is no
Existing Default.
4
7. Customer Identification - USA PATRIOT
Act Notice. Administrative Agent and each Lender hereby
notifies the Borrowers and each other Covered Person that, pursuant to the
requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed into
law October 26, 2001 (as amended from time to time (including any successor
statute) and together with all rules promulgated thereunder, collectively, the
“Act”), it is required to obtain, verify and record information that identifies
the Borrowers and each other Covered Person, which information includes the name
and address of the Borrowers and each other Covered Person and other information
that will allow Administrative Agent and each Lender to identify the Borrowers
and each other Covered Person in accordance with the Act.
8. Reaffirmation. Each
Borrower hereby represents, warrants, acknowledges and confirms that (i) except
as specifically modified by the terms of this Agreement, the Loan Agreement and
the other Loan Documents remain in full force and effect as amended by this
Agreement, (ii) such Borrower has no defense to its obligations under the Loan
Agreement and the other Loan Documents, and the Loan Obligations are due and
owing to the Administrative Agent and the Lenders without setoff or
counterclaim, (iii) the Security Interests of the Administrative Agent (held for
the ratable benefit of the Lenders) under the Security Documents secure all the
Loan Obligations, are reaffirmed in all respects, continue in full force and
effect, have the same priority as before this Agreement, and are not impaired or
extinguished in any respect by this Agreement, and (iv) such Borrower has no
claim against Administrative Agent or any Lender arising from or in connection
with the Loan Agreement or the other Loan Documents and any such claim is hereby
irrevocably waived and released and discharged forever. Until the
Loan Obligations are paid in full in cash and all obligations and liabilities of
each Borrower under this Agreement and the Loan Documents are performed and paid
in full in cash, each Borrower agrees and covenants that they are respectively
bound by the covenants and agreements set forth in the Loan Agreement, Loan
Document and in this Agreement. The Borrowers hereby ratify and
confirm the Loan Obligations. This Agreement does not create or
constitute, and is not, a novation of the Loan Agreement and the other Loan
Documents.
9. Release. As a
material part of the consideration for Administrative Agent and each Lender
entering into this Agreement, each Borrower, jointly and severally, for
themselves and their officers, directors, employees and agents (collectively
“Releasor”) hereby forever releases, forever waives and forever discharges
Administrative Agent, each Lender, and Administrative Agent’s and each Lender’s
predecessors, successors, assigns, officers, managers, directors, shareholders,
employees, agents, attorneys, representatives, parent corporations,
subsidiaries, and affiliates (hereinafter all of the above collectively referred
to as “Administrative Agent and Lender Group”), jointly and severally, from any
and all claims, counterclaims, demands, damages, debts, agreements, covenants,
suits, contracts, obligations, liabilities, accounts, offsets, rights, actions,
and causes of action of any nature whatsoever, including, without limitation,
all claims, demands, and causes of action for contribution and indemnity,
whether arising at law or in equity, and whether arising under, arising in
connection with, or arising from, the Loan Agreement, and the other Loan
Documents or otherwise, whether presently possessed or possessed in the future,
whether known or unknown, whether liability be direct or indirect, liquidated or
unliquidated, whether presently accrued or to accrue hereafter, whether absolute
or contingent, foreseen or unforeseen, and whether or not heretofore asserted,
which Releasor may have or claim to, have against any of Administrative Agent
and Lender Group.
10. Governing Law. This
Agreement has been executed and delivered in St. Louis, Missouri, and shall be
governed by and construed under the laws of the State of Missouri without giving
effect to choice or conflicts of law principles thereunder.
5
11. Section Titles. The
section titles in this Agreement are for convenience of reference only and
shall not be construed so as to modify any provisions of this
Agreement.
12. Fees and
Expenses. Borrower shall promptly pay to Administrative Agent
all fees, expenses and other amounts owing to Administrative Agent under the
Loan Agreement and the other Loan Documents upon demand, including, without
limitation, all reasonable fees, costs and expenses incurred by Administrative
Agent in connection with the preparation, negotiation, execution, and delivery
of this Agreement.
13. Counterparts; Facsimile
Transmissions. This Agreement may be executed in one or more
counterparts and on separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Signatures to this Agreement may be given by facsimile or
other electronic transmission, and such signatures shall be fully binding on the
party sending the same.
14. Incorporation By
Reference. Administrative Agent, the Required Lenders and
Borrower hereby agree that all of the terms of the Loan Documents are
incorporated in and made a part of this Agreement by this
reference. This Agreement is a Loan Document.
15. Notice—Insurance. The
following notice is given pursuant to Section 427.120 of the Missouri Revised
Statutes; nothing contained in such notice shall be deemed to limit or modify
the terms of the Loan Documents:
UNLESS
YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENT WITH
US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR
COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT YOUR
INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT
YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE
COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT
ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY
OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL
BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM,
INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF
THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL
OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE
MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR
OWN.
16. Notice—Oral Commitments Not
Enforceable. The following notice is given pursuant to
Sections 432.045 and 432.047 of the Missouri Revised Statutes; nothing contained
in such notice shall be deemed to limit or modify the terms of the Loan
Documents:
ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE, REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED THAT
IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT YOU (BORROWER(S)) AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
6
{remainder
of page intentionally left blank; signature pages follow}
7
IN
WITNESS WHEREOF, this Agreement has been duly executed as of the date first
above written.
|
XXXXXXX
IT SOLUTIONS, INC.
|
||
|
(formerly
known as, Pomeroy Computer Resources, Inc.,
|
||
|
as
successor by merger with Val Tech Computer Systems,
Inc.)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXX
SELECT INTEGRATION SOLUTIONS, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXX
SELECT ADVISORY SERVICES, LLC
|
||
|
(formerly,
prior to conversion, Xxxxxxx Select Advisory Services,
Inc.)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
POMEROY
IT SOLUTIONS SALES COMPANY, INC.
|
||
|
(formerly
known as, Pomeroy Computer Resources Sales Company,
Inc.,
|
||
|
and
as successor by merger with TheLinc, LLC and as successor by merger with
Micrologic Business Systems of K.C., LLC)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXXX
COMPUTER RESOURCES HOLDING COMPANY, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
{remainder
of page intentionally left blank; signatures continue}
8
|
XXXXXXX
COMPUTER RESOURCES OPERATIONS, LLP
|
||
|
By:
Xxxxxxx Computer Resources, Inc., its partner
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
PCR
HOLDINGS, INC.
|
||
|
(formerly
known as, Technology Integration Financial Services,
Inc.)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
PCR
PROPERTIES, LLC
|
||
|
(formerly,
prior to conversion, PCR Properties, Inc.,
|
||
|
and
prior to such conversion, formerly known as, T.I.F.S. Advisory Services,
Inc.)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ALTERNATIVE
RESOURCES CORPORATION
|
||
|
(as
successor by merger with Xxxxxxx Acquisition Sub, Inc.)
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ARC
SERVICE, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
{remainder
of page intentionally left blank; signatures continue}
9
|
ARC
STAFFING MANAGEMENT LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ARC
SHARED SERVICES LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ARC
TECHNOLOGY MANAGEMENT LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ARC
SOLUTIONS, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
ARC
MIDHOLDING, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
{remainder
of page intentionally left blank; signatures continue}
10
|
GE
COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
|
||
|
formerly
known as Deutsche Financial Services Corporation,
|
||
|
as
Administrative Agent and as a Lender
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
NATIONAL CITY BANK, as a
Lender
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
{end
of signatures}
11
Exhibit
A
Documents and
Requirements
|
1.
|
Amendment
No. 5 to Amended and Restated Credit Facilities Agreement executed by
Borrower and each Lender.
|
|
2.
|
Receipt
of a fully-executed Master Assignment and Acceptance
Agreement.
|
|
3.
|
Secretary’s
Certificate (certifying resolutions) for each of the
following:
|
|
|
a)
|
Xxxxxxx
IT Solutions, Inc. (formerly known as, Pomeroy Computer Resources, Inc.,
and as successor by merger with Val Tech Computer Systems,
Inc.),
|
|
|
b)
|
Xxxxxxx
Select Integration Solutions, Inc.,
|
|
|
c)
|
Pomeroy
IT Solutions Sales Company, Inc. (formerly known as, Pomeroy Computer
Resources Sales Company, Inc., and as successor by merger with TheLinc,
LLC and as successor by merger with Micrologic Business Systems of K.C.,
LLC),
|
|
|
d)
|
Xxxxxxx
Computer Resources Holding Company,
Inc.,
|
|
|
e)
|
PCR
Holdings, Inc. (formerly known as, Technology Integration Financial
Services, Inc.),
|
|
|
f)
|
Alternative
Resources Corporation, a Delaware corporation (as successor by merger with
Xxxxxxx Acquisition Sub, Inc.),
|
|
|
g)
|
ARC
Service, Inc., a Delaware
corporation,
|
|
|
h)
|
ARC
Solutions, Inc., a Delaware corporation,
and
|
|
|
i)
|
ARC
Midholding, Inc., a Delaware
corporation
|
|
4.
|
Secretary’s
Certificate (certifying resolutions) for Xxxxxxx Computer Resources
Operations, LLP
|
|
5.
|
Member’s
Certificate (certifying resolutions)
for:
|
|
|
a)
|
ARC
Staffing Management LLC, a Delaware limited liability
company,
|
|
|
b)
|
ARC
Shared Services LLC, a Delaware limited liability
company,
|
|
|
c)
|
ARC
Technology Management LLC, a Delaware limited liability
company,
|
|
|
d)
|
Xxxxxxx
Staffing Solutions, LLC (formerly, prior to conversion, Xxxxxxx Select
Advisory Services, Inc., and after conversion, formerly Xxxxxxx Select
Advisory Services, LLC), and
|
|
|
e)
|
PCR
Properties, LLC (formerly, prior to conversion, PCR Properties, Inc., and
prior to such conversion, formerly known as, T.I.F.S. Advisory Services,
Inc.).
|
|
6.
|
Payment
of $50,000 (the “Fifth Amendment
Fee”).
|
12
Exhibit
B
Supplemental Disclosure
Schedule
NONE
13
Exhibit
C
EXHIBIT
3
LENDERS’
COMMITMENTS AND PRO-RATA SHARES
PRIOR
TO THE EFFECTIVENESS OF THIS AGREEMENT
Subject to the Total
Aggregate Facility Limit
|
LENDER
|
TOTALS
|
REVOLVING
LOAN COMMIT-MENT
|
FLOORPLAN
LOAN FACILITY
|
PRO-RATA
SHARES
|
||||||||||||
|
GE
Commercial Distribution Finance Corporation
|
$ | 81,300,000.00 | $ | 65,040,000.00 | $ | 65,040,000.00 | 81.300000 | % | ||||||||
|
National
City Bank
|
$ | 18,700,000.00 | $ | 14,960,000.00 | $ | 14,960,000.00 | 18.700000 | % | ||||||||
|
AGGREGATES
|
$ | 100,000,000.00 | $ | 80,000,000.00 | $ | 80,000,000.00 | 100.000000 | % | ||||||||
14
Exhibit
D
EXHIBIT
3
LENDERS’
COMMITMENTS AND PRO-RATA SHARES
FROM
AND AFTER THE EFFECTIVENESS OF THIS AGREEMENT
Subject to the Total
Aggregate Facility Limit
|
LENDER
|
TOTALS
|
REVOLVING
LOAN COMMIT-MENT
|
FLOORPLAN
LOAN FACILITY
|
PRO-RATA
SHARES
|
||||||||||||
|
GE
Commercial Distribution Finance Corporation
|
$ | 50,000,000.00 | $ | 50,000,000.00 | $ | 50,000,000.00 | 72.7803 | % | ||||||||
|
National
City Bank
|
$ | 18,700,000.00 | $ | 18,700,000.00 | $ | 18,700,000.00 | 27.2197 | % | ||||||||
|
AGGREGATES
|
$ | 68,700,000.00 | $ | 68,700,000.00 | $ | 68,700,000.00 | 100.00000 | % | ||||||||
15
