EXHIBIT 10.1
EIGHTH AMENDMENT TO CREDIT
AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this
“ Amendment ”) dated as of September 30, 2009 to
the Credit Agreement referenced below is by and among HURON
CONSULTING GROUP INC., as Company, the Guarantors, the Lenders
party hereto and BANK OF AMERICA, N.A., as Administrative Agent (in
such capacity, the “ Administrative Agent
”).
W I T N E S S E T H
WHEREAS, a $240 million revolving credit
facility and a $220 million term loan have been made available to
the Company pursuant to that certain Credit Agreement dated as of
June 7, 2006 (as amended and modified, including by the First
Amendment dated as of December 29, 2006, the Second Amendment dated
as of February 23, 2007, the Third Amendment dated as of May 25,
2007, the Fourth Amendment dated as of July 27, 2007, the Fifth
Amendment dated as of April 1, 2008, the Sixth Amendment dated as
of July 8, 2008, and the Seventh Amendment dated September 30, 2008
the “ Credit Agreement ”) among the Company, the
Guarantors identified therein, the Lenders identified therein and
the Administrative Agent;
WHEREAS, the Company and certain Lenders have
requested certain modifications of the Credit Agreement;
and
WHEREAS, the Lenders, by act of the Required
Lenders, have agreed to the requested modifications of the Credit
Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Defined Terms . Capitalized terms used herein but
not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
2.
Amendments to Credit Agreement .
2.1
Amended Definitions . The following definitions
in Section 1.1 of the Credit Agreement are hereby amended to read
as follows:
Applicable Margin means, for any day, the rate per annum set forth
below opposite the level (the “ Level ”) then in
effect, it being understood that the Applicable Margin for (i)
LIBOR Loans shall be the percentage set forth under the column
“LIBOR Margin”, (ii) Base Rate Loans shall be the
percentage set forth under the column “Base Rate
Margin”, (iii) the Non- Use Fee Rate shall be the percentage
set forth under the column “Non-Use Fee Rate” and (iv)
the L/C Fee shall be the percentage set forth under the column
“L/C Fee Rate”:
[Table on Following Page]
|
Level
|
Consolidated Leverage
Ratio
|
LIBOR
Margin
|
Base Rate
Margin
|
Non-Use
Fee Rate
|
L/C Fee Rate
|
|
I
|
Greater than
2.50:1
|
325.0 bps
|
225.0 bps
|
50.0 bps
|
325.0 bps
|
|
II
|
Greater than
2.00:1 but less than or equal to 2.50:1
|
300.0 bps
|
200.0 bps
|
50.0 bps
|
300.0 bps
|
|
III
|
Greater than
1.50:1 but less than or equal to 2.00:1
|
275.0 bps
|
175.0 bps
|
50.0 bps
|
275.0 bps
|
|
IV
|
Greater than
1.00:1 but less than or equal to 1.50:1
|
250.0 bps
|
150.0 bps
|
50.0 bps
|
250.0 bps
|
|
V
|
Less than or
equal to 1.00:1
|
225.0 bps
|
125.0 bps
|
50.0 bps
|
225.0 bps
|
Any increase or
decrease in the Applicable Margin resulting from a change in the
Consolidated Leverage Ratio shall become effective not later than
the date five (5) Business Days immediately following the date a
Compliance Certificate is delivered pursuant to Section
10.1.3 ; provided , however, that if a Compliance
Certificate is not delivered when due in accordance therewith,
then, upon the request of the Required Lenders, Pricing Level I
shall apply as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered and
shall remain in effect until the date on which such Compliance
Certificate is delivered. The Applicable Margin in
effect from the Amendment No. 8 Effectiveness Date through the date
for delivery of the annual Compliance Certificate for the fiscal
quarter and year ending December 31, 2009 shall be determined based
upon Pricing Level II. Determinations by the
Administrative Agent of the appropriate Pricing Level shall be
conclusive absent manifest error. Notwithstanding
anything to the contrary contained in this definition, the
determination of the Applicable Rate for any period shall be
subject to the provisions of Section 1.3(b) .
Consolidated
EBITDA means, for any
period for the Company and its Subsidiaries, the sum of (a)
Consolidated Net Income, plus , (b) to the extent deducted
in determining such Consolidated Net Income, (i) Consolidated
Interest Expense, plus (ii) taxes, plus (iii)
depreciation and amortization, plus (iv) non-cash stock
compensation expense (including Statement of Financial Accounting
Standards No. 123 (Revised) impact), plus (v) in the case of
non-cash goodwill impairment charges and all other
acquisition-related intangible asset impairment charges (A) all
such charges taken in the fiscal quarter ending September 30, 2009
and (B) thereafter, all such charges (excluding charges under the
foregoing clause (A) above) taken as of the end of any fiscal
quarter for the period of four consecutive fiscal quarters then
ending, in an amount up to the lesser of $30,000,000 and an amount
equal to fifteen percent (15%) of Consolidated Net Worth at the end
of the fiscal quarter immediately preceding the date of the charge
and before giving effect to any such charges, plus (vi)
non-cash charges (and subtraction of any non-cash gains) resulting
from the quarterly valuation of acquisition-related earn-outs and
any other contingent assets and liabilities pursuant to Statement
of Financial Accounting Standards No. 141 (Revised) as it relates
to acquisitions completed subsequent to January 1, 2009 plus
(vii) for the periods ending up to and including September 30,
2009, non-cash compensation charges resulting from
acquisition-related payments that are subsequently redistributed by
selling shareholders among themselves and to other Company
employees based, in part, on continuing employment with the Company
or the achievement of personal performance measures, in each case
determined on a consolidated basis in accordance with GAAP,
plus (c) for the periods ending prior to June 30, 2009,
the
Stockamp Accounting Adjustments, plus (d)
non-cash restructuring charges taken in any period, provided that
“Consolidated EBITDA” will be reduced in any subsequent
period to the extent that cash payment is made in respect
thereof. Except as otherwise expressly provided, the
applicable period shall be the four (4) consecutive fiscal quarters
ending as of the date of determination.
Loan Documents means this Agreement, the Notes, the Letters of
Credit, the Master Letter of Credit Agreement, the L/C
Applications, the Agent Fee Letter, the Guaranty Agreement, the
Pledge Agreement, the Security Agreement, each amendment to the
Credit Agreement and all documents, instruments and agreements
delivered in connection with the foregoing.
Revolving Commitment means, with respect to each Lender with a
Revolving Commitment, such Lender’s commitment to make
Revolving Loans, participate in Letters of Credit and reimburse the
Issuing Lender, and with respect to all of the Lenders with
Revolving Commitments, the aggregate amount of the Revolving
Commitments, or ONE HUNDRED EIGHTY MILLION AND 00/100 DOLLARS
($180,000,000.00), as reduced, from time to time, in accordance
with Section 6.1 . The Revolving Commitments, as
of the Amendment No. 8 Effectiveness Date, are set out in Annex
A .
2.2
New Definitions . The following definitions are
hereby added to Section 1.1 of the Credit Agreement in the
appropriate alphabetical order to read as follows:
Amendment No. 8 Effectiveness Date
means September 30, 2009.
Collateral means the collateral identified in, and at any
time covered by, the Collateral Documents.
Collateral Documents means the Security Agreement and the Pledge
Agreement and any other documents executed and delivered in
connection with the attachment and perfection of security interests
granted to secure the Obligations.
Consolidated Net Worth means, at any time for the Company and its
Subsidiaries, net worth or total shareholders’ equity
determined on a consolidated basis in accordance with
GAAP.
Excluded Property means (a) any personal Property (including motor
vehicles) in respect of which perfection of a Lien is not
accomplished by the filing of a Uniform Commercial Code financing
statement under Article 9 of the Uniform Commercial Code, (b) any
leasehold interests, (c) any Property that is subject to a Lien
existing on the date hereof and listed on Schedule 11.2 or a
Lien securing Capital Lease obligations or purchase money
obligations permitted under Section 11.2(d) of this
Agreement, in either case, pursuant to documents that prohibit (or
give rise to a right of termination or other remedies upon) the
grant of any other Liens in such property, provided in any such
case the prohibition is not rendered ineffective by the Uniform
Commercial Code (including the provisions of Section 9-407 and
9-408) or other applicable law, (d) any permit, lease, license or
other contract pursuant to documents that prohibit (or give rise to
a right of termination or other remedies upon) the grant of any
other Liens therein, provided in any such case the prohibition is
not rendered ineffective by the Uniform Commercial Code (including
the provisions of Section 9-407 and 9-408) or other applicable law,
and (e) any Property or assets owned or held by the Company or any
of its Subsidiaries for or relating to any qualified or
non-qualified deferred compensation plan.
Property means an interest of any kind in any property or
asset, whether real, personal or mixed, and whether tangible or
intangible.
Security Agreement means the security agreement dated as of the
Amendment No. 8 Effectiveness Date given by the Loan Parties, as
grantors, to the Administrative Agent to secure the Obligations,
and any other security agreements that may be given by any Person
pursuant to the terms hereof, in each case as the same may be
amended and modified from time to time.
2.3
Elimination of Ability to Increase Revolving Commitments
. Section 2.1.4 of the Credit Agreement is deleted in
its entirety.
2.4
Representations Regarding the Security Agreement
. Section 9 of the Credit Agreement is amended to
include a new Section 9.24 to read as follows:
9.24
Security Agreement .
The Security Agreement is effective to create in
favor of the Administrative Agent, for the ratable benefit of the
holders of the Obligations, a legal, valid and enforceable security
interest in the Collateral identified therein, except to the extent
the enforceability thereof may be limited by applicable debtor
relief laws affecting creditors’ rights generally and by
equitable principles of law (regardless of whether enforcement is
sought in equity or at law) and, when Uniform Commercial Code
financing statements in appropriate form are duly filed at the
locations identified in the Security Agreement, the Security
Agreement shall create a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors
thereunder in such Collateral, in which a security interest may be
perfected by the filing of a Uniform Commercial Code financing
statement in each case prior and superior in right to any other
Lien (other than Permitted Liens).
2.5
Pledge of Other Property . Section 10 of the
Credit Agreement is amended to include a new Section 10.12 to read
as follows:
10.12
Pledge of Other Property .
Each of the Company and the Guarantors will
pledge and grant a security interest in substantially all personal
property (including all accounts, contract rights, deposit
accounts, chattel paper, insurance proceeds, inventory, investments
and financial assets, general intangibles, intellectual property,
licenses, machinery and equipment) located in the United States and
which may be perfected by filing financing statements under the
Uniform Commercial Code to secure the Obligations. The
scope of the personal property covered by this subsection will not
include Excluded Property. In connection with any grant
of security interest under this subsection, the Loan Parties will
deliver to the Administrative Agent promptly on request, UCC
financing statements and other filings and deliveries as deemed
necessary or appropriate by the Administrative Agent in its
reasonable discretion.
2.6
Permitted Debt . Section 11.1(d) of the Credit
Agreement is amended to read as follows:
(d) Hedging
Obligations incurred in favor of a Lender or an Affiliate thereof
for bona fide hedging purposes and not for speculation and Bank
Products;
2.7
Additional Indebtedness . Section 11.1(i) of the
Credit Agreement is amended to read as follows:
(i) indebtedness
for borrowed money in an aggregate principal amount not to exceed
Fifty Million ($50,000,000.00); provided that (a)
immediately before and immediately after giving effect thereto on a
Pro Forma Basis, there shall exist no Event of Default or Unmatured
Event of Default, (b) immediately before and immediately after
giving effect thereto on a Pro Forma Basis, the Company shall be in
compliance with the financial covenants set for in Section
11.12 , (c) the covenants, defaults or events of default with
respect to such indebtedness shall not be more restrictive as to
any Loan Party than the covenants, defaults, Unmatured Events of
Default and Events of Default hereunder and (d) such indebtedness
must be either senior unsecured or subordinated unsecured
indebtedness on terms and conditions reasonably acceptable to the
Administrative Agent and the Required Lenders.
2.8
Permitted Liens . Section 11.2(h) of the Credit
Agreement is amended to read as follows:
(h) Liens
in favor of a Lender or any of its Affiliates pursuant to a Hedging
Agreement or a Bank Product permitted hereunder, but only to the
extent that (i) the obligations under such Hedging Agreement or
Bank Product are permitted under Section 11.1 ,
(ii) such Liens are on the same collateral that secures the
Loans and (iii) the obligations under such Hedging Agreement or
Bank Product and the Loans share pari passu in the
collateral that is subject to such Lien
