Exhibit 10.9
EXECUTION COPY
WAIVER AND SECOND AMENDMENT
TO
CREDIT AGREEMENT
THIS
WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT (the “
Agreement ”) is being executed and delivered as of
March 12, 2007 by and among CBIZ, Inc., a Delaware corporation
(the “ Company ”), the “Guarantors”
as defined in the Credit Agreement, the several financial
institutions from time to time party to the Credit Agreement
referred to and defined below (collectively, the “
Lenders ”) and Bank of America, N.A. (“ Bank
of America ”), as administrative agent for the Lenders
(in such capacity, the “ Agent ”). Undefined
capitalized terms used herein shall have the meanings ascribed to
such terms in such Credit Agreement as defined below, and section
references used herein, shall, unless otherwise specified, refer to
sections of such Credit Agreement as defined below.
W I T
N E S S E T H:
WHEREAS,
the Company, the Lenders and the Agent have entered into that
certain Credit Agreement dated as of February 13, 2006 (as may
be amended, restated, supplemented or otherwise modified from time
to time, the “ Credit Agreement ”), pursuant to
which, among other things, the Lenders have agreed to provide,
subject to the terms and conditions contained therein, certain
loans and other financial accommodations to or for the benefit of
the Company;
WHEREAS,
in connection with the Credit Agreement, the Guarantors have each
executed and delivered in favor of the Agent and the Lenders a
certain Guaranty pursuant to which the Guarantors have guaranteed
the Company’s obligations under the Credit Agreement;
WHEREAS,
pursuant to Section 8.08 of the Credit Agreement, the Company
is not permitted to incur or permit any Subsidiary to incur any
Contingent Obligations, unless expressly permitted by one or more
of clauses (a) through (h) of such section;
WHEREAS,
clause (g) of Section 8.08 permits Contingent Obligations
incurred by the Company in connection with a Permitted Acquisition
if the aggregate maximum amount of such Contingent Obligations
(other than that incurred in connection with the Acquisition of any
Excluded Subsidiary) does not exceed at any time an amount equal to
the lesser of 10% of the total assets of the Company and its
Subsidiaries on a consolidated basis or 50% of the Tangible Net
Worth;
WHEREAS,
the Company has notified the Agent and the Lenders that it has
incurred, as of December 31, 2006, Contingent Obligations in
connection with Permitted Acquisitions in excess of 50% of Tangible
Net Worth, and that such incurrence caused the
Company
to fail to comply with Section 8.08 as of such date resulting
in an Event of Default under Section 9.01(c) (the “
Contingent Obligations Default ”); and
WHEREAS,
the Company has requested that the Majority Lenders, and subject to
the terms and conditions set forth herein, the Majority Lenders
have agreed to, waive the Contingent Obligations Default and amend
the Credit Agreement in certain respects as hereinafter set
forth.
NOW,
THEREFORE, in consideration of the foregoing premises, the terms
and conditions stated herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the
Company, the Guarantors, the Majority Lenders and the Agent, such
parties hereby agree as follows:
1.
Amendment . Subject to the satisfaction of the condition set
forth in Paragraph 3 of this Agreement,
Section 8.08(g) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“(g) Contingent
Obligations incurred by the Company in connection with a Permitted
Acquisition; provided that the aggregate maximum
amount of such Contingent Obligations (other than Contingent
Obligations incurred in connection with the Acquisition of any
Excluded Subsidiary) does not exceed at any time an amount equal to
10% of the total assets of the Company and its Subsidiaries on a
consolidated basis; and”
2.
Waiver . Subject to the satisfaction of the condition set
forth in Paragraph 3 of this Agreement, the Majority Lenders
hereby waive the Contingent Obligations Default.
3.
Effectiveness of this Agreement; Conditions Precedent . The
provisions of Paragraph 1 and Paragraph 2
of this Agreement shall be deemed to have become effective as of
the date of this Agreement, but such effectiveness shall be
expressly conditioned upon the receipt by the Agent of an executed
counterpart of this Agreement executed and delivered by duly
authorized officers of the Company and the Majority Lenders.
3.
Representations and Warranties .
(a) The Company hereby represents and
warrants that this Agreement and the Credit Agreement as amended by
this Agreement constitute the legal, valid and binding obligations
of the Company enforceable against the Company in accordance with
their terms.
(b) The Company hereby represents and
warrants that its execution, delivery and performance of this
Agreement and the Credit Agreement as amended by this A
