WAIVER AND FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
|You are currently viewing:
WAIVER AND FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
|You are currently viewing:
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).
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.
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:
(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
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
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