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SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT

Security Agreement

SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT | Document Parties: CIBER, INC | WELLS FARGO BANK, NA You are currently viewing:
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CIBER, INC | WELLS FARGO BANK, NA

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Title: SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
Governing Law: Colorado     Date: 9/22/2006
Industry: Software and Programming     Sector: Technology

SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT, Parties: ciber  inc , wells fargo bank  na
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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. 3          Authorization of Borrowing; No Conflict as to Law or Agreements .  The execution, delivery and performance by the Borrower and any

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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

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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


 
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