Exhibit 10.1
WAIVER AND FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This WAIVER AND FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 28,
2011 (the “ Agreement ”) is entered into among
CIBER, Inc., a Delaware corporation (the “
Borrower ”), the Guarantors, the Lenders party hereto
and Bank of America, N.A., as Administrative Agent. All
capitalized terms used herein and not otherwise defined herein
shall have the meanings given to such terms in the Credit Agreement
(as defined below).
RECITALS
A.
The Borrower, the Guarantors, the
Lenders and the Administrative Agent entered into that certain
Amended and Restated Credit Agreement dated as of August 20,
2009 (as amended by (i) that certain First Amendment to
Amended and Restated Credit Agreement dated February 18, 2010,
(ii) that certain Second Amendment to Amended and Restated
Credit Agreement dated August 2, 2010, and (iii) that
certain Third Amendment to Amended and Restated Credit Agreement
dated February 18, 2011 and as further amended or otherwise
modified from time to time, the “ Credit Agreement
”).
B.
Certain Events of Default have
occurred under Section 8.01(b) the Credit Agreement as a
result of the Loan Parties’ failure to comply with
Section 6.12(a) of the Credit Agreement (Consolidated
Fixed Charge Coverage Ratio), Section 6.12(b) of the
Credit Agreement (Consolidated Leverage Ratio) and
Section 6.12(c) of the Credit Agreement (Consolidated
EBITDA), in each case as of the end of the Fiscal Period ended
June 30, 2011 (collectively, the “ Existing Events of
Default ”).
C.
The Loan Parties have requested that
the Administrative Agent and the Required Lenders (i) waive
the Existing Events of Default and (ii) amend certain terms of
the Credit Agreement.
D.
The Administrative Agent and the
Required Lenders are willing to do so, subject to the terms and
conditions specified in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Estoppel, Acknowledgement and
Reaffirmation . The
Borrower hereby acknowledges that the Existing Events of Default
currently exist and have not been previously waived. As of
July 22, 2011, the principal balance outstanding under
(i) the Revolving Credit Loan, including the Swing Line Loan,
was not less than $70,000,000.00 and (ii) the Term Loan was
not less than $32,500,000.00, which amounts constitute valid and
subsisting obligations of the Borrower to the Lenders that are not
subject to any credits, offsets, defenses, claims, counterclaims or
adjustments of any kind. Each Loan Party hereby
(i) acknowledges its obligations under the Loan Documents,
(ii) reaffirms that each of the Liens created and granted
pursuant to the Loan Documents is valid, subsisting, of
first-priority (subject to Permitted Liens) and duly perfected to
the extent required by the Loan Documents and
(iii) acknowledges that this Agreement shall in no manner
impair or otherwise adversely affect such Liens.
2.
Waiver . Subject to the other terms and
conditions of this Agreement, the Administrative Agent and the
Required Lenders hereby waive the Existing Events of Default.
This waiver is limited solely to the Existing Events of Default,
and nothing contained in this Agreement shall be deemed to
constitute a waiver of any other rights or remedies the
Administrative Agent or any Lender may have
under the Credit Agreement or any other Loan
Documents or under applicable law. Nothing herein shall
modify or affect the obligations of the Loan Parties to comply with
each and every duty, term, condition or covenant contained in the
Credit Agreement and the other Loan Documents from and after the
date hereof.
3.
Amendments to Credit
Agreement . The
Credit Agreement is hereby amended as follows:
(a)
The definition of “Applicable
Rate” in Section 1.01 of the Credit Agreement is hereby
amended to read as follows:
“ Applicable Rate
” means with respect to Revolving Credit Loans, the Term
Loan, Swing Line Loans, Letters of Credit and the Commitment Fee,
the following percentages per annum:
|
Commitment
Fee
|
|
L/C Fee
|
|
Eurodollar
Rate Loans
|
|
Base Rate
Loans
|
|
|
0.50%
|
|
4.50%
|
|
4.50%
|
|
3.50%
|
|
(b)
The definition of “Change in
Law” in Section 1.01 of the Credit Agreement is hereby
amended to read as follows:
“ Change in Law ”
means the occurrence, after the Closing Date, of any of the
following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority
or (c) the making or issuance of any request, rule, guideline
or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything
herein to the contrary, (x) the Dodd-Frank Wall Street Reform
and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and
(y) all requests, rules, guidelines or directives promulgated
by the Bank for International settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the
United States regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to be a “Change in
Law”, regardless of the date enacted, adopted or
issued.
(c)
The definition of
“Consolidated EBITDA” in Section 1.01 of the
Credit Agreement is hereby amended to read as follows:
“ Consolidated EBITDA
” means, for any period, for Borrower and its Subsidiaries on
a consolidated basis, the sum of (without duplication):
(a) the net income (or net loss) for such period;
provided that net income (or net loss) shall be computed
without giving effect to extraordinary gains or extraordinary
losses; provided further that there shall be excluded the
net income (or net loss) of any Person (other than a Subsidiary of
Borrower) in which Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is
actually received by Borrower or such Subsidiary in the form of
dividends or similar distributions; plus
(b) Consolidated Interest Expense (net of interest income) for
such period to the extent included in the determination of such net
income (or net loss); plus (c) Consolidated Tax Expense
for such period to the
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extent included in the determination
of such net income (or net loss); plus (d) all amounts
treated as expenses for such period for depreciation and the
amortization of intangibles of any kind; plus (e) any
non-cash expense attributable to the expensing of share based
payment awards (including without limitation awards related to
stock option programs and phantom stock programs) pursuant to the
implementation of or compliance with the Financial Accounting
Standards Board Statement 123R (excluding any such expense that
constitutes an accrual of or a reserve for cash charges for any
future period); plus (f) for the fiscal quarter ending
December 31, 2010, up to $10,000,000 of non-recurring charges
in the aggregate primarily relating to several accounts receivable
balances or unbilled revenue balances where the Borrower’s
ability to collect is questionable due to either the
customers’ ability to pay or disagreements regarding the work
performed, net of any provision previously established, retiree
health care benefits, anticipated litigation settlement costs and
costs relating to a pledge for a donation; minus
(g) without duplication, any non-cash gains attributable to
the expensing of share based payment awards (including without
limitation awards related to stock option programs and phantom
stock programs) pursuant to the implementation of or compliance
with the Financial Accounting Standards Board Statement 123R
(excluding any such gain that represents the reversal of any
accrual of or reserve for anticipated cash charges in any prior
period that are described in the parenthetical to
clause (e) above); plus (h) any non-cash
mark-to-market expense (minus any non-cash mark-to-market gains)
relating to Swap Agreements permitted hereunder for such period to
the extent included in the determination of such net income (or net
loss) plus (i) for the fiscal quarter period ending
June 30, 2010 only, non-cash goodwill impairment charges for
such period not to exceed $112,000,000 in the aggregate;
plus (j) up to $18,000,000 in goodwill impairment to
the extent recognized in accordance with GAAP during the Fiscal
Period ended as of June 30, 2011; plus (k) up to
$2,600,000 in respect of the non-cash earn-out payment true up in
reference to the Segmenta Acquisition to be recognized in
accordance with GAAP during the Fiscal Period ended as of
June 30, 2011; plus (l) the aggregate cash costs
in excess of $100,000 incurred for (1) the field examination
required by the Fourth Amendment and (2) the fees paid to the
financial advisor (or to the Administrative Agent in reimbursement
of such fees) retained by the Administrative Agent as permitted by
the Fourth Amendment, but in each case only to the extent included
in the determination of such Consolidated EBITDA.
(d)
The definition of
“Consolidated Fixed Charges” in Section 1.01 of
the Credit Agreement is hereby amended to read as
follows:
“ Consolidated Fixed
Charges ” means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of
(i) Consolidated Tax Expenses (calculated without giving
effect to any adjustment resulting from (x) the goodwill
impairment charge taken in the fiscal quarter ended June 30,
2011, (y) the up to $10,000,000 non-recurring charge taken in
the fiscal quarter ended December 31, 2010 and (z) the up
to $29,100,000 non-recurring charge taken for the write-down of
deferred tax assets in the fiscal quarter ended June 30, 2011)
for such period plus (ii) Consolidated Interest Expense
for such period plus (iii) Consolidated Scheduled
Funded Debt Payments for such period plus (iv) for only
those periods ending prior to the Third Amendment Effective Date,
the amount of cash Restricted Payments in any
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such period permitted by
Section 7.06(d) as in effect prior to the Third
Amendment Effective Date, all as determined in accordance with
GAAP.
(e)
The following definition of
“Fourth Amendment” is hereby added to Section 1.01
of the Credit Agreement in the appropriate alphabetical order to
read as follows:
“ Fourth Amendment
” means that certain Waiver and Fourth Amendment to Amended
and Restated Credit Agreement entered into by the Loan Parties, the
Administrative Agent and the Required Lenders on the Fourth
Amendment Effective Date.
(f)
The following definition of
“Fourth Amendment Effective Date” is hereby added to
Section 1.01 of the Credit Agreement in the appropriate
alphabetical order to read as follows:
“ Fourth Amendment
Effective Date ” means July 28, 2011.
(g)
Section 6.01 of the Credit
Agreement is hereby amended by (i) deleting the word
“and” at the end of subsection (b) thereof;
(ii) replacing the period at the end of subsection
(c) with “; and” and (iii) adding new
subsections (d) and (e) to the end thereof, to read as
follows:
“(d) as soon as
available, but in any event within twenty-five (25) days after the
end of each calendar month that is not also the end of a Fiscal
Period for which a report under Section 6.01(b) is
required, (i) a consolidated and consolidating balance sheet
for Borrower and its Subsidiaries as at the end of such month, and
the related consolidated and consolidating statements of income or
operations, shareholders’ equity and retained earnings for
such month and for the portion of Borrower’s fiscal year then
ended, setting forth, in each case in comparative form, the figures
for the corresponding months and for the portions of the previous
fiscal year, all in reasonable detail, such financial statements to
be certified by a Responsible Officer of Borrower as fairly
presenting in all material respects the financial condition,
results of operations, shareholders’ equity and retained
earnings of Borrower and its Subsidiaries in accordance with the
standard accounting practices of the Borrower, it being understood
that no GAAP audit adjustments for quarter end or year end shall be
included therein, and (ii) a narrative summary regarding the
efforts of the Loan Parties with respect to material asset
dispositions since the last report to the Lenders under this
Section 6.01(d); and
(e) (i) on the last
Business Day of each calendar month ending after the Fourth
Amendment Effective Date (each such date, a “ Forecast
Date ”), a consolidated forecast of cash flows for the
Loan Parties for the thirteen (13) week period commencing with the
week following such Forec
