Exhibit 99.1
SIXTH AMENDMENT TO AMENDED AND
RESTATED
CREDIT AND SECURITY AGREEMENT
This Amendment, dated as of
September 19, 2006, is made by and between CIBER, INC., a
Delaware corporation (the “Borrower”), and WELLS FARGO
BANK, N.A. (the “Lender”).
Recitals
The Borrower and the Lender are
parties to an Amended and Restated Credit and Security Agreement
dated as of August 15, 2003, as amended by that certain First
Amendment to Amended and Restated Credit and Security Agreement,
dated as of March 31, 2004, that certain Second Amendment to
Amended and Restated Credit and Security Agreement, dated as of
October 1, 2004, that certain Third Amendment to Amended and
Restated Credit and Security Agreement, dated as of March 31, 2005,
that certain Fourth Amendment to Amended and Restated Credit and
Security Agreement, dated as of July 11, 2005, and that certain
Fifth Amendment to Amended and Restated Credit and Security
Agreement, dated as of December 20, 2005 (as so amended,
the “Credit Agreement”). Capitalized terms used
in these recitals have the meanings given to them in the Credit
Agreement unless otherwise specified.
The Borrower has requested that
certain amendments be made to the Credit Agreement, which the
Lender is willing to make pursuant to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants and agreements herein
contained, it is agreed as follows:
1.
Defined Terms . Capitalized terms used in this
Amendment which are defined in the Credit Agreement shall have the
same meanings as defined therein, unless otherwise defined
herein. In addition, Section 1.1 of the Credit Agreement is
hereby amended by adding or amending, as the case may be, the
following definitions:
“ AAA ” has the
meaning set forth in Section 8.14.
“ Capital Expenditures
” means for a period and measured on a consolidated basis,
any expenditure of money during such period for capital leases or
the purchase or other acquisition of any capital asset.
“ EBITDA ” means,
as determined at the end of each fiscal quarter for the preceding
twelve month period and measured on a consolidated basis, the sum
of (i) pretax earnings from continuing operations, (ii)
Interest Expense and (iii) depreciation and amortization of
tangible and intangible assets, before (a) extraordinary gains and
losses or gains and losses from the cumulative effect of a change
in accounting principles and (b) minority interests, in each case
for such period, computed and calculated in accordance with
GAAP.
“ EBITDAR ”
means, as determined at the end of each fiscal quarter for the
preceding twelve month period and measured on a consolidated basis,
the sum of (i) pretax earnings from continuing operations,
(ii) Interest Expense, (iii) depreciation and
amortization of tangible and
intangible assets, and (iv) Lease Expense, before
(a) extraordinary gains and losses or gains and losses from
the cumulative effect of a change in accounting principles and (b)
minority interests, in each case for such period, computed and
calculated in accordance with GAAP.
“ Floating Rate ”
means, (i) with respect to Revolving Advances, an annual interest
rate equal to the sum of the Prime Rate plus the applicable Margin,
and (ii) with respect to Term Advances, an annual interest rate
equal to the sum of the Prime Rate plus the applicable Margin,
which interest rate shall, in each case, change when and as the
Prime Rate changes.
“ Guarantor(s) ”
means CIBER Indiana, LLC, CIBER Alaska, Inc., Remtech Services,
Inc., CIBER International, Inc., each other domestic Subsidiary of
the Borrower, and any other Person now or hereafter guaranteeing
the Indebtedness.
“ Indebtedness ”
is used herein in its most comprehensive sense and means any and
all advances, debts, obligations and liabilities of the Borrower to
the Lender, heretofore, now or hereafter made, incurred or created,
whether voluntary or involuntary and however arising, whether due
or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, including under any swap, derivative,
foreign exchange, hedge, deposit, treasury management or other
similar transaction or arrangement at any time entered into by the
Borrower with the Lender, and whether the Borrower may be liable
individually or jointly with others, or whether recovery upon such
Indebtedness may be or hereafter becomes unenforceable.
“ Interest Expense
” means for a fiscal year-to-date period, measured on a
consolidated basis, the Borrower’s total gross interest
expense during such period (excluding interest income), and shall
in any event include (i) interest expensed (whether or not paid) on
all Liabilities (other than Liabilities under Swap Contracts), (ii)
the amortization of debt discounts, (iii) the amortization of all
fees payable in connection with the incurrence of Liabilities
(other than Liabilities under Swap Contracts) to the extent
included in interest expense, and (iv) the portion of any
capitalized lease obligation allocable to interest
expense.
“ Maturity Date ”
means September 30, 2008.
“ Obligations ”
is used herein in its most comprehensive sense and means any and
all advances, debts, obligations and liabilities of the Borrower to
the Lender, heretofore, now or hereafter made, incurred or created,
whether voluntary or involuntary and however arising, whether due
or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, including under any swap, derivative,
foreign exchange, hedge, deposit, treasury management or other
similar transaction or arrangement at any time entered into by the
Borrower with the Lender, and whether the Borrower may be liable
individually or jointly with others, or whether recovery upon such
Indebtedness may be or hereafter becomes unenforceable.
“ OFAC ” has the
meaning set forth in Section 6.10(c).
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“ Premises ”
means all premises where the Borrower or a Subsidiary conducts its
business and has any rights of possession.
“ Prime Rate ”
means at any time the rate of interest most recently announced by
the Lender at its principal office as its Prime Rate, with the
understanding that the Prime Rate is one of the Lender’s base
rates, and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto,
and is evidenced by the recording thereof in such internal
publication or publications as the Lender may designate. Each
change in the rate of interest shall become effective on the date
each Prime Rate change is announced by the Lender.
“ Rules ” has the
meaning set forth in Section 8.14.
2.
Other than the definition of “Obligations” in Section
1.1 of the Credit Agreement, each reference in the Credit Agreement
to “Obligations” is hereby deleted and replaced with
the term “Indebtedness”.
3.
Section 2.9(b) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
“(b)
Margins. The Margins through and including the first
adjustment occurring as specified below shall be negative eight
tenths of one percent (<0.80%>) for Floating Rate Advances
and one and three quarters of one percent (1.75%) for LIBOR Rate
Advances. The Margins shall be adjusted each fiscal quarter
of the Borrower on the basis of the Pricing Ratio as at the end of
the previous fiscal quarter, in accordance with the following table
(numbers appearing between “< >“ are
negative):
|
Pricing Ratio
|
|
Margin for Floating
Rate Advances
|
|
Margin for LIBOR
Rate Advances
|
|
|
> 1.00 <1.50
|
|
<0.30%>
|
|
2.00%
|
|
|
> 0.75 < 1.00
|
|
<0.80%>
|
|
1.75%
|
|
|
< 0.75
|
|
<1.25%>
|
|
1.50%
|
|
Reductions and increases in the
Margins will be made quarterly within five calendar days following
receipt of the Borrower’s financial statements and compliance
certificates required under Section 6.1. Notwithstanding the
foregoing, (i) if the Borrower fails to deliver any financial
statements or compliance certificates when required under Section
6.1, the Lender may, by notice to the Borrower, increase the
Margins to the highest rates set forth above until such time as the
Lender has received all such financial statements and compliance
certificates, (ii) no reduction in the Margins will be made if a
Default Period exists at the time that such reduction would
otherwise be made, and (iii) no adjustment in the Margin of a LIBOR
Rate Advance shall be made during the Interest Period applicable to
such LIBOR Rate Advance.”
4.
Section 2.10(a) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
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“(a)
Unused Line Fee . For the purposes of this Section
2.10, “Unused Amount” means the Maximum Line reduced by
outstanding Revolving Advances and the L/C Amount. The
Borrower agrees to pay to the Lender an unused line fee at the
Applicable Unused Line Rate on the average daily Unused Amount from
the date of this Agreement to and including the Termination Date,
due and payable quarterly in arrears on the first day of the month
and on the Termination Date. For purposes of this Section
2.10(a), the ‘Applicable Unused Line Rate’ shall mean,
on any date, a rate determined by (i) the Pricing Ratio as of the
date hereof and (ii) thereafter, effective on the first day of the
month commencing after the month in which the Lender receives the
Borrower’s financial statements for the Borrower’s most
recently completed fiscal quarter, the Pricing Ratio for the most
recently completed fiscal quarter, determined in accordance with
the following table:
|
Pricing Ratio
|
|
Applicable Unused Line
Rate
|
|
|
> 1.00 <1.50
|
|
0.40
|
%
|
|
> 0.75 < 1.00
|
|
0.30
|
%
|
|
> 0.50 < 0.75
|
|
0.25
|
%
|
|
< 0.50
|
|
0.125
|
%”
|
5.
Section 5.1 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
“Section
5.1
Existence and Power; Name; Chief Executive Office; Federal
Employer Identification Number, and Organizational Identification
Number . The Borrower is a corporation, duly organized,
validly existing and in good standing under the laws of the State
of Delaware and is duly licensed or qualified to transact business
in all jurisdictions where the character of the property owned or
leased or the nature of the business transacted by it makes such
licensing or qualification necessary. Each Guarantor is a
corporation, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Each
of the Borrower and each Guarantor has all requisite power and
authority to conduct its business, to own its properties and to
execute and deliver, and to perform all of its obligations under,
the Loan Documents. During its existence, each of the
Borrower and each Guarantor has done business solely under the
names set forth in Schedule 5.1. The Borrower’s and
each Guarantor’s chief executive office and principal place
of business are located at the addresses set forth in Schedule 5.1,
and the Borrower’s and each Guarantor’s records
relating to its business or the Collateral are kept at those
locations. The Borrower’s federal employer
identification number and organization identification number are
correctly set forth in Section 3.5.”
6.
Section 5.3 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
“Section 5.
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Authorization of Borrowing; No Conflict as to Law or
Agreements . The execution, delivery and performance by
the Borrower and any
4
Guarantor of the Loan Documents and
the borrowings from time to time hereunder have been duly
authorized by all necessary corporate action and do not and will
not (i) require any consent or approval of the
Borrower’s Owners or such Guarantor’s shareholders;
(ii) require any authorization, consent or approval by, or
registration, declaration or filing with, or notice to, any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any third party, except
such authorization, consent, approval, registration, declaration,
filing or notice as has been obtained, accomplished or given prior
to the date hereof; (iii) violate any provision of any law,
rule or regulation (including Regulation X of the Board of
Governors of the Federal Reserve System) or of any order, writ,
injunction or decree presently in effect having applicability to
the Borrower or such Guarantor or of the Borrower’s
Constituent Documents or such Guarantor’s Constituent
Documents; (iv) result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other
material agreement, lease or instrument to which the Borrower or
such Guarantor is a party or by which it or its properties may be
bound or affected; or (v) result in, or require, the creation
or imposition of any Lien (other than the Security Interest) upon
or with respect to any of the properties now owned or hereafter
acquired by the Borrower or such Guarantor.”
7.
Section 5.4 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
“Section 5.4
Legal
Agreements . This Agreement constitutes and, upon due
execution by the Borrower, the other Loan Documents will constitute
the legal, valid and binding obligations of the Borrower and each
Guarantor, as the case may be, enforceable against the Borrower and
each Guarantor, as the case may be, in accordance with their
respective terms.”
8.
Section 5.12 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
“Section 5.12
Employees
. There are no controversies pending or threatened between
the Borrower or any of its Subsidiaries and any of its employees,
other than employee grievances arising in the ordinary course of
the Borrower’s or such Subsidiary’s business consistent
with past practices which are not, in the aggregate, material to
the continued financial success and well-being of the Borrower or
such Subsidiary, and the Borrower and each Subsidiary is in
compliance in all material respects with all national, federal and
state laws respecting employment and employment terms, conditions
and practices.”
9.
Section 5.14 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
“Section 5.14
Default .
Each of the Borrower and each Subsidiary is in compliance with all
provisions of all agreements, instruments, decrees and orders to
which it is a party or by which it or its property is bound or
affected, the breach or default
5
of which would reasonably be
expected to have a Material Adverse Effect on the
Borrower.”
10.
Section 6.1(e) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
“Section 6.1(e)
Litigation . Immediately after the commencement
thereof, the Borrower will deliver to the Lender notice in writing
of all litigation and of all proceedings before any governmental or
regulatory agency affecting the Borrower or any Subsidiary (i) of
the type described in Section 5.15(c) or (ii) which seek a monetary
recovery against the Borrower or such Subsidiary in excess of
$5,000,000.”
11.
Section 6.1(h) the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
“Section 6.1(h)
Disputes . Promptly upon knowledge thereof, the
Borrower will deliver to the Lender notice of any written claims by
the Borrower’s or any Subsidiary’s customers exceeding
$10,000,000 in the aggregate during any fiscal
year.”
12.
Section 6.1(l) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
“Section
6.1(l) Violations of Law
. Promptly upon knowledge thereof, the Borrower will deliver
to the Lender notice of the Borrower’s or any
Subsidiary’s violation of any law, rule or regulation, the
non-compliance with which would reasonably be expected to have a
Material Adverse Effect on the Borrower or such
Subsidiary.”
13.
Section 6.3 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:
“Section 6.3
Permitted Liens; Financing
Statements .
(a)
The Borrower will not, and will cause each Subsidiary not to,
create, incur or suffer to exist any Lien upon or of any of its or
their assets, now owned or hereafter acquired, to secure any
indebtedness; excluding, however, from the operation of the
foregoing, the following (collectively, “Permitted
Liens”):
(i)
in the case of any of the Borrower’s or any
Subsidiary’s property, covenants, restrictions, rights,
easements and minor irregularities in title which do not materially
interfere with the Borrower’s or such Subsidiary’s
business or operations as presently conducted or its ownership of
such property;
(ii)
statutory Liens of mechanics, materialmen or suppliers incurred in
the ordinary course of the Borrower’s or a Subsidiary’s
business consistent with past practices and securing amounts not
yet due or declared to be due by the claimant
thereunder;
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(iii)
Liens in existence on the date hereof and listed in Schedule 6.3
hereto, securing indebtedness permitted under Section
6.4;
(iv)
the Security Interest and Liens created by the Security
Documents;
(v)
purchase money Liens relating to the acquisition of machinery and
equipment by the Borrower or a Subsidiary not exceeding the lesser
of cost or fair market value thereof, not exceeding $500,000 in the
aggregate during any fiscal year, so long as no Default Period is
then in existence and none would exist immediately after such
acquisition; and
(vi)
any Lien related to the payment of taxes of up to $500,000 in the
aggregate, if such taxes are not then due and payable.
(b)
The Borrower will not, and will cause each Subsidiary not to, amend
any financing statements in favor of the Lender exc