NINTH AMENDMENT TO
CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”) is entered into
as of March 23, 2009 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 ”), PLUM RHINO CONSULTING,
LLC , a Delaware limited liability company and successor in
interest to Plum Rhino Consulting, LLC, a Georgia limited liability
company (“ Plum Rhino ”), PRAEOS
TECHNOLOGIES, LLC , a Delaware limited liability company and
successor by merger to Praeos Technologies, Inc., a Georgia
corporation (“ Praeos ”), ASET INTERNATIONAL
SERVICES CORPORATION , a Virginia corporation (“
ASET ”), TAPFIN LLC , a Delaware limited
liability company, formerly known as TWC Group Consulting, LLC (
“TWC Acquisition Sub” ; COMSYS Services, COMSYS
IT, Pure Solutions, Plum Rhino, Praeos, ASET and TWC Acquisition
Sub 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 ”), ECONOMETRIX,
LLC , a Delaware limited liability company (“
Econometrix ”), 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 ”), GE BUSINESS
FINANCIAL SERVICES INC. (formerly known as Merrill Lynch
Business Financial Services Inc.), as administrative agent (the
“ Agent ”), Sole Bookrunner and Sole Lead
Arranger, ING CAPITAL LLC , as co-documentation agent,
ALLIED IRISH BANKS PLC , as co-documentation agent, BMO
CAPITAL MARKETS FINANCING, INC. , as co-documentation agent
(together with ING Capital LLC and Allied Irish Banks PLC, the
“ Co-Documentation Agents ”), and GMAC
COMMERCIAL FINANCE LLC , as syndication agent (the “
Syndication Agent ”).
W I T N E S S E T
H:
WHEREAS, the Borrowers, Holdings,
PFI, COMSYS Canada, Econometrix, 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, hereby is and may hereafter be further amended,
restated, supplemented or otherwise modified and in effect from
time to time, the “ Credit Agreement ”); and
WHEREAS, the Credit Parties, the
Agents and the Lenders desire to amend the Credit Agreement as set
forth herein.
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 Ninth Amendment Effective Date, upon
satisfaction of the conditions precedent set forth in
Section 3 hereof, the Credit Agreement is amended as set forth
in this Section 2:
(a) The parties hereto desire to
reduce the Revolving Loan Commitment from $160,000,000 to
$110,000,000. Accordingly, in order to evidence the reduction in
the 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 (the “ New Annex A
”). The parties hereto hereby agree that (x) the
Revolving Loan Outstandings on the date hereof are $63,027,522.06
and (y) the outstanding principal balance of the Term Loan as
of the Ninth Amendment Effective Date is $0.00.
(b) Each Lender having a
Revolving Loan Commitment Percentage, severally and not jointly,
hereby agrees that the Lenders’ pro rata shares of the
Revolving Loan Commitments as of the Ninth Amendment Effective
Date, shall be as set forth on the New Annex A. To the extent
necessary to give effect to the provisions of the preceding
sentence, Allied Irish Banks PLC (the “Assigning
Lender”) hereby agrees on the date hereof to sell and to
assign to certain of the Lenders having Revolving Commitment
Percentages hereunder (each Lender, in such capacity is referred to
herein as an “Assignee Lender”), without recourse,
representation or warranty (except as set forth below), and each
Assignee Lender, severally and not jointly, hereby purchases and
assumes from the Assigning Lender, a percentage interest in the
Revolving Loan Commitment and the Revolving Loans in amounts
required to give effect to the Revolving Loan Commitment
Percentages on New Annex A. The Assigning Lender and the Assignee
Lenders, severally and not jointly, hereby agree, on the Ninth
Amendment Effective Date, to effect any inter-Lender transfers
necessary to cause the Assigning Lender’s Revolving Loan
Commitment Percentage to be reduced to zero and each Assignee
Lender to hold the portion of the Revolving Loan Commitment set
forth beside such Lender’s name on New Annex A. As a result
of such assignments and acceptances, the Assigning Lender is
absolutely released from any of such obligations, covenants and
agreements, to the extent of its assigned shares of the Revolving
Loan Commitment. Upon the effectiveness of the assignments and
acceptances described in this Section 2(b), the Agent shall
thereafter make all payments in respect of the interests assigned
hereby (including payments of principal, interest, fees and other
amounts) to the Assignee Lenders. The Lenders shall make all
appropriate adjustments in payment for periods prior to the
effectiveness of the assignment and acceptance described in this
Section 2(b) by the Agent or with respect to the making of this
assignment directly between themselves.
(c)
Section 1.1 . Section 1.1 of the Credit
Agreement is hereby amended by substituting the following
definitions of the terms set forth below in lieu of the current
version of such definitions contained in Section 1.1 of the
Credit Agreement:
“ Commitment Expiry
Date ” means March 31, 2012.
“ Financing Documents
” means this Agreement, the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth
Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth
Amendment, the Ninth 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, the Collateral Assignment of
Plum Rhino Purchase Agreement, the Collateral Assignment of Praeos
Purchase Agreement, the Collateral Assignment of TWC Purchase
Agreement, the Collateral Assignment of ASET Purchase Agreement,
any fee letter between Merrill Lynch and any Borrower relating to
the transactions 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.
“ LIBOR Margin ”
means from and after the Ninth Amendment Effective Date, three and
three quarters percent (3.75%) per annum with respect to the
Revolving Loans, the Term Loan and other Obligations.
“ Prime Rate Margin
” means from and after the Ninth Amendment Effective Date,
two and three quarters percent (2.75%) per annum with respect to
the Revolving Loans, the Term Loan and other Obligations.
“ TWC Acquisition Sub
” means TAPFIN LLC, a Delaware limited liability company,
formerly known as TWC Group Consulting, LLC.
(d)
Section 1.1 . Section 1.1 of the Credit
Agreement is hereby further amended by adding thereto the following
defined terms and their respective definitions in the correct
alphabetical order:
“ ASET Purchase
Agreement ” means that certain Stock Purchase Agreement
dated as of June 26, 2008 among COMSYS IT, Holdings, Kevin
Hendzel, an individual, and Erika N. Hendzel, an individual,
relating to the acquisition of ASET.
“ Collateral Assignment of
ASET Purchase Agreement ” means that certain Collateral
Assignment of Purchase Documents dated as of June 26, 2008 by
and among COMSYS IT, Holdings and the Agent.
“ Eighth Amendment
” means that certain Eighth Amendment to Credit Agreement
dated as of June 13, 2008 by and among the Borrowers and
certain other Credit Parties, the Agent, the Co-Documentation
Agents, the Syndication Agent and the Lenders.
“ Ninth Amendment
” means that certain Ninth Amendment to Credit Agreement
dated as of the Ninth Amendment Effective Date by and among the
Borrowers and certain other Credit Parties, the Agent, the
Co-Documentation Agents, the Syndication Agent and the Lenders.
“ Ninth Amendment Effective
Date ” means March 23, 2009.
“ Permitted Joint
Venture ” means a limited partnership, corporation or
limited liability company entered into by (or formed by, as the
case may be) a Borrower or a Domestic Wholly-Owned Subsidiary of a
Borrower with an unrelated, non-Affiliated third party on an
arm’s length basis to engage in the joint undertaking of
business, provided, that, (x) such business arrangements shall
be conducted only through a legal entity whose liabilities are not
(and will not become) by operation of law or otherwise deemed to be
liabilities of such entity’s members, shareholders, partners
or other investors (including, without limitation, the Credit
Parties or their Subsidiaries) and (y) such business shall be
in the same line of business as a Borrower or a Subsidiary of a
Borrower, or any business reasonably related thereto.
(e)
Section 1.1 . Section 1.1 of the Credit
Agreement is hereby further amended by deleting the defined terms
“Adjustment Date” and “Pricing Table” and
their respective definitions in their entirety.
(f)
Section 2.1(e) . The preamble of
Section 2.1(e) of the Credit Agreement is hereby deleted in
its entirety and the following is substituted in lieu thereof:
“(e) All Prepayments .
Any prepayment of a LIBOR Loan on a day other than the last day of
an Interest Period therefor shall include interest on the principal
amount being repaid and shall be subject to
Section 2.3(f)(iv). All prepayments of a Loan shall be applied
first to that portion of such Loan comprised of Prime Rate Loans
and then to that portion of such Loan comprised of LIBOR Loans, in
direct order of Interest Period maturities. All prepayments of the
Term Loan shall be applied pro rata to the remaining installments
thereof. Following the payment in full of the Term Loan, any
remaining amounts required by Section 2.1(c)(ii), (iii) and
(iv) to be used to prepay the Term Loan shall instead be
applied as a repayment of the outstanding Revolving Loans (with any
excess to be held by the Agent as cash collateral to be applied to
repay future outstanding Revolving Loans as and when made), pro
rata among all Lenders having a Revolving Loan Commitment
Percentage. Notwithstanding anything to the contrary contained in
this Section 2.1, each Lender holding a portion of the Term
Loan may elect not to have such Lender’s Pro Rata Share of
the Term Loan prepaid in the case of a mandatory prepayment
pursuant clause (c) of this Section 2.1, by notice to
Agent received one (1) Business Day prior to the date of such
prepayment. The amount of any such prepayment which would have been
applied to the Term Loan but for such elections shall be retained
by the Borrowers.”
(g)
Section 2.2(c)(iv) . Section 2.2(c)(iv) of
the Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
“(iv) Upon repayment in full
of the Term Loan, any amounts required by Section 2.1(c)(ii),
(iii) and (iv) to be used to prepay the Term Loan shall
instead be applied as a repayment of the outstanding Revolving
Loans in accordance with Section 2.1(e).”
(h)
Section 2.3(b) . Section 2.3(b) of the
Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
“(b) Unused Line Fee .
From and following the Ninth Amendment Effective Date, the
Borrowers shall pay Agent, for the benefit of all Lenders committed
to make Revolving Loans, in accordance with their respective Pro
Rata Shares, an aggregate fee in an amount eq
