AMENDMENT NO. 4 TO AMENDED AND RESTATED
CREDIT FACILITIES AGREEMENT
This AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT FACILITIES AGREEMENT
(this "Agreement") is entered into and effective as of June 25, 2007, 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:
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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, and as amended by Amendment No. 3 (with Waiver)
to Amended and Restated Credit Facilities Agreement dated as of June 23,
2006 as amended or modified from time to time (the "Loan Agreement").
B. Lenders and Borrower have agreed to the provisions set forth herein on the
terms and conditions contained herein.
AGREEMENT
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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
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applicable, executed, sealed, attested, acknowledged, certified, or
authenticated, each in form and
substance satisfactory to Administrative Agent and the Lenders, and the Fourth
Amendment Fee (as defined on Exhibit A) has been paid in same day funds. The
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Fourth Amendment Fee shall be paid solely to, and shared solely by, each of the
Remaining Lenders.
3. ASSIGNMENT AND ASSUMPTION.
3.1.
In connection with this Agreement, and simultaneously with its
effectiveness, Fifth Third Bank, Northern Kentucky, Inc., ArnSouth Bank and UPS
Capital Corporation ("Departing Lenders") will no longer be Lenders under the
Credit Agreement and the other Loan Documents, and GE Commercial Distribution
Finance Corporation, National City Bank, Bank of America, N.A. and PNC Bank,
N.A. (the "Remaining Lenders") will continue to be Lenders under the Credit
Agreement and the Loan Documents. The Lenders, their respective Commitments and
their respective pro-rata shares of the Lenders immediately prior to the
effectiveness of this Agreement is as set forth on Exhibit C.
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3.2.
Upon the full and complete execution of this Agreement, the Administrative
Agent shall arrange, and each Departing Lender and each Remaining Lender shall
fully cooperate, in making or receiving, as directed by the Administrative
Agent, wire transfers and fund transfers reasonably necessary to effectuate the
pro-rate, shares set forth on Exhibit D. The Remaining Lenders (who shall be at
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such time the Lenders), their respective Commitments and their respective
pro-rata shares immediately after the effectiveness of this Agreement and after
giving effect to the transactions described herein shall be as set forth on
Exhibit D.
3.3.
Each Remaining Lender agrees that, to the extent it has purchased and
assumed or be found to have purchased and assumed from any Departing Lender or
any other Remaining Lender any interest in any Loan, the Loan Agreement and the
Loan Documents, that it has purchased and assumed such interest, without
recourse and without representation or warranty except as expressly set forth in
this Section 3, and any such assignment by a Departing Lender or other Remaining
Lender to a Remaining Lender shall be without recourse and without
representation or warranty except as expressly set forth in this Section 3. Such
purchase, assignment and assumption shall include that portion of any Departing
Lender's or Remaining Lender's, as the case may be, obligations to fund unfunded
Approvals,
3.4.
Each Departing Lender and each Remaining Lender represents and warrants
that, immediately prior to the effectiveness of this Agreement, it is the legal
and beneficial owner of its Loans and the interests being assigned hereby, and
that such Loans and interest are free and clear of any adverse claim. Each
Departing Lender and each Remaining Lender, (i) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; and (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or any
Covered Person, or the performance or observance by any Borrower or any Covered
Person of any of its obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto.
3.5.
Each Departing Lender and each Remaining Lender confirms, covenants and
agrees that it has received a copy of the Credit Agreement, the Loan Documents,
together with copies of the Financial Statements referred to therein and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement, and confirms and
covenants that it
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has entered into this Agreement based on its own credit analysis and decision
and without reliance upon any information provided by, or statement made by.
Administrative Agent or any other Lender (including any Departing Lender and any
Remaining Lender).
3.6.
Each Remaining Lender (i) confirms, covenants and agrees that it will,
independently and without reliance upon the Administrative Agent, any Departing
Lender or any Remaining Lender or any other Lender a party to the Loan Agreement
from time to time and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in talcing or
not taking action under the Credit Agreement; (ii) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (iii) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Leader; and (iv) promptly provide to Administrative Agent
any U.S. Internal Revenue Service or other forms required under the Credit
Agreement. Each Remaining' Lender and each Departing Lender stall promptly
following the effectiveness of this Agreement, send to Administrative Agent
(such address being, Xxxxx X Xxxxxxxxx, 0000 Xxxxxxxxxx Xxxx., Xxxxxxx, Xxxxxxx
00000) by overnight delivery service the original Notes held by it marked
"Cancelled" and authorizes Administrative Agent and its representatives and
counsel to xxxx such Notes "Cancelled".
4. AMENDMENTS. The Loan Agreement is hereby amended as follows:
4.1. 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 69.0000% (subject to the terms of Section
7.5)."
4.2. 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 Eighty Million Dollars
($80,000,000), 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."
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4.3. LIMITATIONS ON REVOLVING LOAN ADVANCES. Section 3.1.2 of the Loan
Agreement is deleted and replaced with the following:
"3.1.2. LIMITATION ON REVOLVING LOAN, No Revolving Loan Advance will
be made which would result in either: (i) the Aggregate Revolving Loan
exceeding the Maximum Available Amount; or (ii) the Lenders' Exposure
exceeding the Total Aggregate Facility Limit No Revolving Loan Advance will
be made on or after the Revolving Loan Maturity Date. Lenders may, However,
in their absolute discretion make such Revolving Loan Advances, but shall
not be deemed by doing so to have increased the Maximum Available Amount or
the Total Aggregate Facility Limit and shall not be obligated to make any
such Revolving Loan Advances thereafter. At any time that there is an
Existing Default, the Aggregate Revolving Loan Commitment may be canceled
as provided in Section 16.3. The "Maximum Available Amount" (which can be a
negative number) on any date shall be a Dollar amount equal to the lesser
of (i) (A) the amount of the Aggregate Revolving Loan Commitment minus (B)
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, minus (C) the
outstanding amount of the Swingline Loans, and (ii) the Borrowing Base on
such date, minus (ii) the sum of (a) the Swingline Loan, and (b) the
Floorplan Shortfall, and (c) the Letter of Credit Exposure on such date
(except to the extent that a Revolving Loan Advance will be used
immediately to reimburse Letter of Credit Issuer for unrermbursed draws on
a Letter of Credit). Notwithstanding anything contained in this Agreement
to the contrary, at no time may the Aggregate Revolving Loans, Swingline
Loans and the Letter of Credit Exposure exceed Total Aggregate Facility
Limit"
4.4. LIMITATIONS ON REVOLVING LOAN ADVANCES. Section 3.1.2 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) Eighty Million Dollars ($80,000,000) 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."
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4.5. 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 One Hundred Million Dollars ($100,000,000) in the aggregate (the
"Total Aggregate Facility Limit")."
4.6. PRIME INCREMENTS AND LIBOR INCREMENTS. The table in Section 4.8 of
the Loan Agreement is deleted and replaced with the following:
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"TOTAL FUNDED REVOLVING LOANS FLOORPLAN LOANS BASE RATE BASE RATE
INDEBTEDNESS TO EBITDA AND SWINGLINE LIBOR INCREMENT FOR INCREMENT FOR
LOANS LIBOR INCREMENT REVOLVING FLOORPLAN
INCREMENT LOANS AND LOANS
SWINGLINE LOANS
------------------------------------ ---------------- ---------------- ---------------- --------------
less than or equal to 2.75% 1.50% 0.25% -1.50%
2,75:1.00 but greater than
2.50:1.00
------------------------------------ ---------------- ---------------- ---------------- --------------
less than or equal to 2.50% 1.50% 0.00% -1.50%
2.50:1.00 but greater than
2.00:1.00
------------------------------------ ---------------- ---------------- ---------------- --------------
(A) less than or equal 2.25% 1.50% -0.25% -1.50%
2.00:1.00 but greater than or
equal to 1.00:1.00 OR (B) less
than 1.00:1.00 and Borrower's
quarterly volume for the
preceding quarter for the
Floorplan Loan Facility is less
than $30,000,000
------------------------------------ ---------------- ---------------- ---------------- --------------
(i) less than 1.00:1.00 AND(ii) 2.00% 1.50% -.50% -1.50%"
Borrower's quarterly volume
for the preceding quarter for
the Floorplan Loan Facility is
greater than or equal to $3
0,000,000
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4.7. MATURITY. Section 6.2.1.3 of the Loan Agreement is deleted and
replaced with the following:
"6.1.2.3. MATURITY. Borrower shall repay the entire amount of the
Aggregate Revolving Loan on June 25, 2008 and Borrower shall repay the
entire amount of the Swingline Loan on demand, or if no demand is made, on
June 25, 2008, and plus at such time, payment of cash collateral
satisfactory to Administrative Agent as security for Borrower's obligation
to reimburse the Letter of Credit Issuer for 105% of all draws and expenses
under all outstanding Letters of Credit,
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Borrower shall repay the entire amount of the Aggregate Floorplan Loan and
the Interim Floorplan Loan on the date as provided in Section 3.2.7 or
specified elsewhere in. this Agreement or if no demand is made as set forth
in Section 3.2.7 or elsewhere in this Agreement, then on June 25, 2008
(such date being, the "Floorplan Loan Maturity Date"), plus cash collateral
equal to 100% of any unfunded Approvals, in which case such Approvals shall
he otherwise paid in accordance with the applicable Statements of
Transaction."
4.8, MANDATORY PAYMENTS. The following sentence is added to the end of
Section 6.3.2. of the Loan Agreement:
"In addition, on any date that the sum of the Aggregate Revolving
Loans, the Swingline Loans, the Aggregate Floorplan Loans, the Interim
Floorplan Loans, the Letter of Credit Exposure and the Floorplan Shortfall
exceeds the Borrowing Base plus the Floorplan Inventory Value, then the
Borrower shall immediately make a payment of the amount of such excess to
the Administrative Agent."
4.9. ASSIGNMENTS AT THE DIRECTION OF THE BORROWING AGENT OR THE
ADMINISTRATIVE AGENT A new Section 18.4.8 is hereby added to the Loan Agreement
as follows:
"18.4.8. ASSIGNMENTS AT THE DIRECTION OF THE BORROWING AGENT OR THE
ADMINISTRATIVE AGENT. Notwithstanding anything contained herein to the
contrary, (i) if a Lender fails, refuses or otherwise does not consent to
any amendment, modification, waiver or restatement of this Agreement or any
Loan Document, then the Borrowing Agent in consultation with the
Administrative Agent or the Administrative Agent may require, at any time
within ninety (90) days following such failure or refusal, that such Lender
sell and assign (pursuant to the form Assignment and Acceptance Agreement
attached hereto) to the Administrative Agent, another Lender, another
financial institutional acceptable to Administrative Agent, on no less than
five (5) Business Days prior written notice, at par, all of its Commitments
and outstanding Loans, and (ii) at any time, the Administrative Agent may
require that one or more Lenders (including all Lenders) sell and assign
(pursuant to the form Assignment and Acceptance Agreement attached hereto)
to the Administrative Agent, another Lender, or another financial
institutional acceptable to Administrative Agent, on no less than 20 days
prior written notice, at par, all of its Commitments and outstanding
Loans."
5. 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 parries
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
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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.
6. 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 tune to time
(including any successor statute) and together with all rules promulgated
thereunder, collectively, the
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"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.
7. 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.
8. RELEASE. As a material part of the consideration for Administrative
Agent and each Lender (including, each Remaining Lender and each Departing
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 (including, each Remaining Lender and each
Departing Lender), and Administrative Agent's and each Lender's (including, each
Remaining Lender's and each Departing 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.
9. 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.
10. 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.
11. 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
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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.
12. 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.
13. INCORPORATION BY REFERENCE. Administrative Agent, the 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.
14. 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.
15. 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.
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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: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
XXXXXXX SELECT INTEGRATION SOLUTIONS, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
XXXXXXX SELECT ADVISORY SERVICES, LLC
(FORMERLY,PRIOR TO CONVERSION, XXXXXXX SELECT ADVISORY SERVICES, INC.)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
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: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
XXXXXXX COMPUTER RESOURCES HOLDING COMPANY, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
{remainder of page intentionally left blank; signatures continue}
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XXXXXXX COMPUTER RESOURCES OPERATIONS, LLP
By: Xxxxxxx Computer Resources, Inc., its partner
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
PCR HOLDINGS, INC.
(FORMERLY KNOWN AS, TECHNOLOGY INTEGRATION FINANCIAL SERVICES, INC.)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
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: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
ALTERNATIVE RESOURCES CORPORATION
(AS SUCCESSOR BY MERGER WITH XXXXXXX ACQUISITION SUB, INC.)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
ARC SERVICE, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
{remainder of page intentionally left blank; signatures continue}
10
ARC STAFFING MANAGEMENT LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
ARC SHARED SERVICES LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
ARC TECHNOLOGY MANAGEMENT LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
ARC SOLUTIONS, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
ARC MIDHOLDING, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
Senior Vice President & Chief Financial Officer
11
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
formerly known as Deutsche Financial Services Corporation, as Administrative
Agent and a Leader
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President-Operations
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC., as a Lender
By:
--------------------------------
Name:
------------------------------
Title
-----------------------------
NATIONAL CITY BANK, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
PNC BANK, N.A., as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
UPS CAPITAL CORPORATION, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK OF AMERICA, N.A., as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
AMSOUTH BANK, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
{end of signatures}
12
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
formerly known as Deutsche Financial Services Corporation, as Administrative
Agent and a Lender
By:
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President-Operations
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC, as a Lender
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: Vice President
----------------------------
NATIONAL CITY BANK, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
PNC BANK, N A ., as a Lender
By:
--------------------------------
Name:
------------------------------
Title
-----------------------------
UPS CAPITAL CORPORATION, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK OF AMERICA, N A, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
AMSOUTH BANK, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
{end of signatures}
12
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
formerly known as Deutsche Financial Services Corporation, as Administrative
Agent and a Lender
By:
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President - Operations
FIFTH THIRD BANK, NORTHERN KENTUCKY, ING,, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------
Title: Sr. Vice President
----------------------------
PNC BANK, N.A., as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
UPS CAPITAL CORPORATION, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK OF AMERICA, NA, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
AMSOUTH BANK, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
{end of signatures}
12
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, formerly known as Deutsche
Financial Services Corporation, as Administrative Agent and a Lender
By:
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President-Operations
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC., as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
NATIONAL CITY BANK, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
PNC BANK, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Title: Vice President
----------------------------
UPS CAPITAL CORPORATION, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
BANK OF AMERICA, N.A., as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
AMSOUTH BANK, as a Lender
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
{end of signatures}
12
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION,
formerly known as Deutsche Financial Services Corporation, as Administrative
Agent and a Lender
By:
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President-Operations
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC., as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
NATIONAL CITY BANK, as a Lender
By:
Name:
Title:
PNC BANK, N. A,., as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
UPS CAPITAL CORPORATION, as a Lender
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------
Title: Director, Portfolio Management
------------------------------
BANK OF AMERICA, N.A., as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
AMSOUTH BANK, as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
{end of signatures)
12
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, formerly known as Deutsche
Financial Services Corporation, as Administrative Agent and a Lender
By:
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President-Operations
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC., as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
NATIONAL CITY BANK, as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PNC BANK, N.A., as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
UPS CAPITAL CORPORATION, as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF AMERICA, N. A., as a Lender
By:/s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------
Title: Senior Vice President
------------------------------
AMSOUTH BANK, as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
{end of signatures}
12
GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION formerly known as Deutsche
Financial Services Corporation, as Administrative Agent and a Lender
By:
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President-Operations
FIFTH THIRD BANK, NORTHERN KENTUCKY, INC, as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
NATIONAL CITY BANK, as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PNC BANK, N.A., as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
UPS CAPITAL CORPORATION, as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
BANK OF AMERICA, N.A., as a Lender
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
AMSOUTH BANK, as a Lender
By: Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
{end of signatures}
AMSOUTH BANK
is now
REGIONS BANK
12
EXHIBIT A
---------
DOCUMENTS AND REQUIREMENTS
--------------------------
1. Amendment No. 4 to Amended and Restated Credit Facilities Agreement
executed by Borrower and each of the Lenders.
2. $20,000,000 Amended and Restated Swingline Note payable to GE Commercial
Distribution Finance Corporation.
3. $40,000,000 Amended and Restated Note payable to GE Commercial Distribution
Finance Corporation.
4. $18,700,000 Amended and Restated Note payable to National City Bank.
5. $18,700,000 Amended and Restated Note payable to PNC Bank, N.A.
6. $12,600,000 Amended and Restated Note payable to Bank of America, N.A.
7. 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
8. Secretary's Certificate (certifying resolutions) for Xxxxxxx Computer
Resources Operations, LLP
9. 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.LF.S. Advisory Services, Inc.).
10. Good Standing Certificates for the following Covered Persons from, the
following jurisdictions:
a) Xxxxxxx IT Solutions, Inc. from the Secretary of State of Delaware
b) Xxxxxxx Select Integration Solutions, Inc. from Secretary of
State of Delaware
c) Xxxxxxx Staffing Solutions, LLC from Secretary of State of Delaware
13
d) Pomeroy IT Solutions Sales Company, Inc. from Secretary of State
of Delaware
e) Xxxxxxx Computer Resources Holding Company, Inc. from Secretary
of State of Delaware
f) Xxxxxxx Computer Resources Operations, LLP from Secretary of
State of Kentucky
g) PCR Holdings, Inc. from Secretary of State of Kentucky
h) PCR Properties, LLC from Secretary of State of Delaware
i) Alternative Resources Corporation from Secretary of State of Delaware
j) ARC Service, Inc. from Secretary of State of Delaware
k) ARC Staffing Management LLC from Secretary of State of Delaware
I) ARC Shared Services LLC from Secretary of State of Delaware
m) ARC Technology Management LLC from Secretary of State of Delaware
n) ARC Solutions, Inc. from Secretary of State of Delaware
o) ARC Midholding, Inc. from Secretary of Slate of Delaware
11. Payment of $50,000 (the "Fourth Amendment Fee").
14
Exhibit B
---------
Supplemental Disclosure Schedule
--------------------------------
NONE
15
EXHIBIT C
---------
LENDERS' COMMITMENTS AND PRO-RATA SHARES
IMMEDIATELY PRIOR TO THE EFFECTIVENESS OF THIS AGREEMENT
Subject to the Total Aggregate Facility Limit
---------------------------------------------
-------------------------------------------------------------------------------------
REVOLVING
LOAN FLOORPLAN
COMMIT- LOAN PRO-RATA
LENDER TOTALS MENT FACILITY SHARES
---------------------- --------------- --------------- -------------- -----------
GE Commercial $ 50,000,000.00 $ 33,333,333.00 $22,727,273.00 30.303030%
Distribution Finance
Corporation
---------------------- --------------- --------------- -------------- -----------
Fifth Third Bank 30,000,000.00 20,000,000.00 13,636,364.00 18.181818%
(Northern Kentucky)
---------------------- --------------- --------------- -------------- -----------
National City Bank 25,000,000.00 16,666,667.00 11,363,636.00 15.151515%
---------------------- --------------- --------------- -------------- -----------
PNC Bank, N.A. 25,000,000.00 16,666,667.00 11,363,636.00 15.151515%
---------------------- --------------- --------------- -------------- -----------
UPS Capital 15,000,000.00 10,000,000.00 6,818,182.00 9.090909%
Corporation
---------------------- --------------- --------------- -------------- -----------
Bank of America, N.A. 15,000,000.00 10,000,000.00 6,818,182.00 9.090909%
---------------------- --------------- --------------- -------------- -----------
AmSouth Bank 5,000,000.00 3,333,333.00 2.272,727.00 3.030303%
---------------------- --------------- --------------- -------------- -----------
AGGREGATES $165,000,000.00 $110,000,000.00 $75,000,000.00 100.000000%
-------------------------------------------------------------------------------------
16
EXHIBIT D
---------
LENDERS' COMMITMENTS AND PRO-RATA SHARES
FROM AND AFTER THE EFFECTIVENESS OF THIS AGREEMENT
SUBJECT TO THE TOTAL AGGREGATE FACILITY LIMIT
---------------------------------------------
-----------------------------------------------------------------------------------
REVOLVING
LOAN FLOORPLAN
COMMIT- LOAN PRO-RATA
LENDER TOTALS MENT FACILITY SHARES
--------------------- --------------- -------------- -------------- -----------
GE Commercial $ 50,000,000.00 $40,000,000.00 $40,000,000.00 50.000000%
Distribution Finance
Corporation
--------------------- --------------- -------------- -------------- -----------
National City Bank $ 18,700,000.00 $14,960,000.00 $14,960,000.00 18.700000%
--------------------- --------------- -------------- -------------- -----------
PNC Bank, N.A. $ 18,700,000.00 $14,960,000.00 $14,960,000.00 18.700000%
--------------------- --------------- -------------- -------------- -----------
Bank of America, N.A. $ 12,600,000.00 $10,080,000.00 $10,080,000.00 12.600000%
--------------------- --------------- -------------- -------------- -----------
AGGREGATES $100,000,000.00 $80,000,000.00 $80,000,000.00 100.000000%
-----------------------------------------------------------------------------------
17
