1
Exhibit 2
FIRST AMENDMENT, CONSENT AND WAIVER TO CREDIT AGREEMENT
-------------------------------------------------------
This First Amendment , Consent and Waiver to Credit Agreement (this
"Amendment") is entered into as of May 8, 1998 among Century Business Services,
Inc., (f/k/a International Alliance Services, Inc.), a Delaware corporation (the
"Company"), the Banks (as defined below) and Bank of America National Trust &
Savings Association, individually as a Bank and as agent (the "Agent").
RECITALS
--------
A. The Company, the Agent and certain financial institutions (the
"Banks") are party to that certain Credit Agreement, dated as of October 3, 1997
( as previously amended, the "Credit Agreement"). Unless otherwise specified
herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them by the Credit Agreement.
B. The Company, the Agent and the Banks wish to amend the Credit
Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendments to Credit Agreement.
(a) SECTION 1.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
DELETING THE FOLLOWING DEFINITIONS IN THEIR ENTIRETY:
"Attorney Costs"
"Cash Collateralize"
"Change of Control"
"GAAP"
"Material Adverse Effect"
"Other Taxes"
"Permitted Acquisition Threshold"
"Responsible Officer"
"Statutory Surplus"
(b) SECTION 1.01 OF THE CREDIT AGREEMENT IS HEREBY FURTHER
AMENDED BY INSERTING THE FOLLOWING DEFINITIONS IN APPROPRIATE
ALPHABETICAL ORDER:
"ATTORNEY COSTS" means and includes all reasonable and
customary fees and disbursements of any law firm or other
external counsel, the allocated cost of internal
2
legal services and all disbursements of internal counsel
RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
"CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Agent, the
Issuing Bank and the Banks, as additional collateral for the
L/C Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent
and the Issuing Bank (which documents are hereby consented to
by the Banks). [DELETION] The Company hereby grants the Agent,
for the benefit of the Agent, the Issuing Bank and the Banks,
a security interest in all such cash and deposit account
balances. Cash collateral shall be maintained in blocked
deposit accounts at B of A.
"CHANGE OF CONTROL" means (a) any Person or any two or more
Persons (IN EACH CASE OTHER THAN A PERSON THAT IS A
STOCKHOLDER OF THE COMPANY AS OF THE DATE OF THIS AGREEMENT)
acting in concert acquiring beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Exchange Act), directly or indirectly, of
capital stock of the Company (or other securities convertible
into such capital stock) representing 25% or more of the
combined voting power of all capital stock of the Company
entitled to vote in the election of directors, other than
capital stock having such power only by reason of the
happening of a contingency, or (b) during any period of twelve
consecutive calendar months, individuals who at the beginning
of such period constituted the Company's board of directors
(together with any new directors whose election by the
Company's board of directors or whose nomination for election
by the Company's stockholders was approved by a vote of at
least a majority of the directors then still in office who
either were directors at the beginning of such period or whose
election or nomination for election was previously so
approved) cease for any reasons other than death or disability
to constitute a majority of the directors then in office, or
(c) during any period of twelve consecutive calendar months,
the ceasing of more than 25% of the individuals (i) who hold
an office possessing the title SENIOR Vice President or
Executive Vice President or such title that ranks senior
thereto of the Company, the Company's direct Subsidiaries and
parent Insurance Subsidiaries and (ii) who are the principal
operating manager or manager, or such other title possessing
equivalent duties of Subsidiaries not described in clause (i)
(collectively, "Senior Management"), on the first day of each
such period to be part of the Senior Management of the Company
and its Subsidiaries taken as a whole.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within
the U.S. accounting profession), which are IN EFFECT AND
applicable to the circumstances as of the date of
determination; PROVIDED, HOWEVER, that for purposes of all
computations required to be made with respect to compliance by
the Company with SECTIONS 8.15, 8.16, and 8.17, such term
shall mean
-2-
3
generally accepted accounting principles as in effect on the
date of this Agreement, applied in a manner consistent with
those used in preparing the financial statements referred to
in SECTION 6.11 (x) and (y).
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change
in, or a material adverse effect upon, the operations,
business, properties, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole
or as to the Insurance Subsidiaries and their Subsidiaries
taken as a whole; (b) a material impairment of the ability of
the Company or any GUARANTOR to perform under any Loan
Document and to avoid any Event of Default; or (c) a material
adverse effect upon the legality, validity, binding effect or
enforceability against the Company or any GUARANTOR of any
Loan Document.
"OTHER TAXES" means any present or future stamp, court or
documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution, delivery, performance, OR
enforcement [DELETION] of, or otherwise with respect to, this
Agreement or any other Loan Documents.
"PERMITTED ACQUISITION THRESHOLD" means either (a) the total
consideration to be paid by the Company or any of its
Subsidiaries in connection with an Acquisition (as determined
by the Company) is equal to or in excess of $35,000,000 or (b)
the total cash consideration to be paid by the Company or any
of its Subsidiaries in connection with an Acquisition is equal
to or in excess of $20,000,000.
"RESPONSIBLE OFFICER" means the chief executive officer, the
president, THE EXECUTIVE VICE PRESIDENT OR THE CHIEF FINANCIAL
OFFICER of the Company, or any other officer having
substantially the same authority and responsibility as the
executive vice president and chief financial officer; or, with
respect to compliance with financial covenants, the chief
financial officer or the treasurer of the Company, or any
other officer having substantially the same authority and
responsibility.
"STATUTORY SURPLUS" means, with respect to any Insurance
Subsidiary at any time, the statutory capital and surplus of
such Insurance Subsidiary at such time, as determined in
accordance with SAP ("Liabilities, Surplus and Other Funds"
statement page 3, line 25 of the Annual Statement).
(c) CLAUSE (c) OF SECTION 3.05 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY DELETING SAID CLAUSE (c) IN ITS ENTIRETY AND
INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSE (C):
"(c) The Company hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; PROVIDED, however, that this
assumption is not intended to, and shall not, preclude the
Company's
-3-
4
pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement.
No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank,
shall be liable or responsible for any of the matters
described in clauses (i) through (vii) of Section 3.06;
PROVIDED, however, anything in such clauses to the contrary
notwithstanding, that the Company may have a claim against the
Issuing Bank, and the Issuing Bank may be liable to the
Company, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by
the Company which the Company proves were caused by the
Issuing Bank's willful misconduct or gross negligence or the
Issuing Bank's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and
not in limitation of the foregoing: (i) the Issuing Bank may
accept documents that appear on their face to be in order,
without responsibility for further investigation, UNLESS IT
RECEIVED A notice or information to the contrary; and (ii) the
Issuing Bank shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or
in part, which APPEAR TO BE IN ORDER WHEN PRESENTED.".
(d) CLAUSES (b), (c) AND (d) OF SECTION 6.01 OF THE CREDIT
AGREEMENT ARE HEREBY AMENDED BY DELETING SAID CLAUSES IN THEIR ENTIRETY
AND INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSES (b), (c), AND
(d):
"(b) has the power and authority and all MATERIAL
governmental licenses, authorizations, consents and MATERIAL
approvals to own its assets, carry on its business and to
execute, deliver, and perform its obligations under the Loan
Documents;
(c) is duly qualified as a foreign corporation and is
licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such
qualification or license, EXCEPT IN EACH CASE TO THE EXTENT
THAT THE FAILURE TO DO SO COULD NOT REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT.
(d) is in compliance with all Requirements of Law,
except [DELETION] to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse
Effect.".
(e) SECTION 7.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
DELETING SAID SECTION 7.01 IN ITS ENTIRETY AND INSERTING IN LIEU
THEREOF THE FOLLOWING NEW SECTION 7.01:
-4-
5
"(a) as soon as available, but not later than 90 days
after the end of each fiscal year (commencing with the fiscal
year ended December 31, 1997), TO THE EXTENT PREPARED TO
COMPLY WITH SEC REQUIREMENTS, A COPY OF SEC FORM 10-K'S FILED
BY THE COMPANY WITH THE SEC FOR SUCH FISCAL YEAR, OR IF NO
SUCH FORM 10-K WAS FILED BY THE COMPANY FOR SUCH FISCAL YEAR,
a copy of the audited consolidated [DELETION] balance sheet of
the Company and its Subsidiaries as at the end of such year
and the related consolidated [DELETION] statements of income
or operations and [DELETION] shareholders' equity and cash
flows for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, and accompanied
by the opinion of KPMG Peat Marwick or another
nationally-recognized independent public accounting firm
("INDEPENDENT AUDITOR") which report shall state that such
consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years. Such opinion
shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material
portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days
after the end of each of the first three fiscal quarters of
each fiscal year (commencing with the fiscal quarter ended
September 30, 1997), TO THE EXTENT PREPARED TO COMPLY WITH SEC
REQUIREMENTS, A COPY OF THE SEC FORM 10-QS FILED BY THE
COMPANY WITH THE SEC FOR SUCH FISCAL QUARTER, OR IF NO SUCH
FORM 10-Q WAS FILED BY THE COMPANY FOR SUCH FISCAL QUARTER, a
copy of the unaudited consolidated [DELETION] balance sheet of
the Company and its Subsidiaries as of the end of such quarter
and the related consolidated [DELETION] statements of income
and [DELETION] shareholders' equity and cash flows for the
period commencing on the first day and ending on the last day
of such quarter, and certified by a Responsible Officer as
fairly presenting, in accordance with GAAP (subject to
ordinary, good faith year-end audit adjustments), the
financial position and the results of operations of the
Company and the Subsidiaries;
(c) (i) as soon as available, IF REQUIRED, but not
later than 90 days after the end of each fiscal year of each
Insurance Subsidiary, a copy of the Annual Statement of such
Insurance Subsidiary, setting forth in each case in
comparative form the figures for the previous fiscal year, and
(ii) as soon as available, but not later than 180 days after
the end of each fiscal year of each Insurance Subsidiary, a
copy of the audited financial statements of such Insurance
Subsidiary, setting forth in each case in comparative form the
figures of the previous fiscal year, accompanied by the
opinion of an Independent Auditor, which report shall state
that such financial statements present fairly the financial
position for the periods indicated in conformity with SAP
applied on a basis consistent with prior years. Such opinion
shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material
portion of any Subsidiary's records; and
-5-
6
(d) as soon as available, IF REQUIRED, but not later
than the earlier of (i) ten days after the regulatory filing
date or (ii) 50 days after the end of each of the first three
fiscal quarters of each fiscal year of each Insurance
Subsidiary, a copy of the Quarterly Statement of such
Insurance Subsidiary certified by a Responsible Officer of
such Insurance Subsidiary as fairly presenting, in accordance
with SAP (subject to ordinary, good faith year-end audit
adjustments), the financial position and the results of
operations of such Insurance Subsidiary.".
(f) CLAUSE (d) OF SECTION 7.02 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY DELETING SAID CLAUSE (d) IN ITS ENTIRETY AND
INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSE (d):
"(d) as soon as available, but in any event not later
than the 30th day prior to the end of each fiscal year, a copy
of the plan and forecast (including a projected consolidated
[DELETION] balance sheet, income statement and cash flow
statement BY BUSINESS SEGMENT) of the Company and its
Subsidiaries for the next fiscal year;".
(g) (X) THE TEXT OF CLAUSE (e) OF SECTION 7.02 OF THE CREDIT
AGREEMENT IS HEREBY AMENDED BY DELETING SAID TEXT IN ITS ENTIRETY AND
INSERTING IN LIEU THEREOF THE PHRASE "[INTENTIONALLY OMITTED]".
(Y) THE PARENTHETICAL LANGUAGE CONTAINED IN CLAUSE
(g) OF SECTION 7.02 OF THE CREDIT AGREEMENT IS HEREBY DELETED IN ITS
ENTIRETY.
(h) CLAUSE (a), (i) AND (j) OF SECTION 8.01 OF THE CREDIT
AGREEMENT ARE EACH HEREBY AMENDED BY DELETING SAID CLAUSES IN THEIR
ENTIRETY AND INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSES (a),
(i) AND (j):
"(a) any Lien (other than as described in SECTION
8.01(m)) existing on property of the Company or any Subsidiary
on the Closing Date and set forth in Schedule 8.01 securing
Indebtedness outstanding on such date and described therein
(other than Indebtedness in a principal amount not exceeding
INDIVIDUALLY $50,000 OR IN THE AGGREGATE $250,000, it being
understood and agreed that any such Lien shall be permitted to
exist pursuant to this clause (a) notwithstanding the absence
thereof on Schedule 8.01);"
* * *
"(i) Liens on assets of corporations which become
Subsidiaries after the date of this Agreement, PROVIDED,
HOWEVER, that such Liens existed at the time the respective
corporations became Subsidiaries and were not created in
anticipation thereof and do not in the aggregate at any time
outstanding exceed $10,000,000;
-6-
7
(j) purchase money security interests on any property
acquired or held by the Company or its Subsidiaries in the
ordinary course of business, securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring such property; PROVIDED THAT (i) any such
Lien attaches to such property concurrently with or within 20
days after the acquisition thereof, (ii) such Lien attaches
solely to the property so acquired in such transaction and
(iii) the principal amount of the Indebtedness secured by any
and all such purchase money security interests shall not at
any time exceed, together with Indebtedness permitted under
Section 8.05(d), $10,000,000;".
(i) CLAUSE (d) OF SECTION 8.02 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY DELETING SAID CLAUSE (d) IN ITS ENTIRETY AND
INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSE (d):
"(d) dispositions not otherwise permitted hereunder
which are made for fair market value; PROVIDED that (i) at the
time of any disposition, no Event of Default shall exist or
shall result from such disposition, (ii) not less than 80% of
the aggregate sales price from such disposition shall be paid
in cash, and (iii) the aggregate value of all assets so sold
by the Company and its Subsidiaries, together, shall not
exceed (x) 5% of the net tangible assets of the Company and
its Subsidiaries on a consolidated basis during any twelve
month period with net tangible assets to be measured as of the
beginning of such period, and (y) 15% of the net tangible
assets of the Company and its Subsidiaries on a consolidated
basis during the term of this Agreement, with net tangible
assets to be measured as of the Closing Date.".
(j) CLAUSE (d) OF SECTION 8.05 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY DELETING SAID CLAUSE (d) IN ITS ENTIRETY AND
INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSE (d):
"(d) other Indebtedness in an aggregate amount
outstanding not to exceed $10,000,000 (including Indebtedness
secured by Liens permitted by SECTION 8.01(i) and (j));".
(k) CLAUSE (C) OF SECTION 8.08 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY DELETING SAID CLAUSE (C) IN ITS ENTIRETY AND
INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSE (C):
"(c) Contingent Obligations (x) of the Company and
its subsidiaries existing as of the Closing Date and listed in
SCHEDULE 8.08 AND (y) OF THE COMPANY WITH RESPECT TO PAYMENTS
TO BE MADE BY A SUBSIDIARY OF THE COMPANY PURSUANT TO
OPERATING LEASES ENTERED INTO BY SUCH SUBSIDIARY IN THE
ORDINARY COURSE OF BUSINESS;".
-7-
8
(l) SECTION 8.09 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
DELETING SAID SECTION 8.09 IN ITS ENTIRETY AND INSERTING IN LIEU
THEREOF THE FOLLOWING NEW SECTION 8.09:
"8.09 JOINT VENTURES. The Company shall not, and
shall not suffer or permit any Subsidiary to enter into any
Joint Venture; PROVIDED, HOWEVER that the Company and its
Wholly-Owned Subsidiaries (other than Excluded Subsidiaries)
shall be permitted to make Investments in Joint Ventures so
long as (x) no Default or Event of Default has occurred and is
continuing or would result therefrom, (y) after giving effect
to any such Investment, the Company and/or a Wholly-Owned
Subsidiary of the Company shall control 51% or more of the
interests in such Joint Venture and (z) after giving effect to
any such Investment, the aggregate net amount expended by the
Company and/or any Wholly-Owned Subsidiary of the Company in
connection with all such Investments made after the date of
the Agreement shall not at any time exceed $10,000,000.".
(m) CLAUSES (b) AND (c) OF SECTION 8.10 OF THE CREDIT
AGREEMENT ARE EACH HEREBY AMENDED BY DELETING SAID CLAUSES IN THEIR
ENTIRETY AND INSERTING IN LIEU THEREOF THE FOLLOWING NOW CLAUSES (b)
AND (c):
"(b) operating leases entered into by the Company or
any Subsidiary after the Closing Date in the ordinary course
of business; [DELETION] and
(c) Capital Leases other than those permitted under
clause (a) of this Section, entered into by the Company or any
Subsidiary after the Closing Date to finance the acquisition
of equipment; PROVIDED that the aggregate Capital Lease
Obligations for all such Capital Leases shall not at any time
exceed $10,000,000.".
(n) SECTION 8.13 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
DELETING SAID SECTION 8.13 IN ITS ENTIRETY AND INSERTING IN LIEU
THEREOF THE FOLLOWING NEW SECTION 8.13:
"8.13 Change in Business. The Company shall not, and
shall not suffer or permit any Subsidiary to, engage in any
material line of business substantially different from those
lines of business carried on by the Company and its
Subsidiaries taken as a whole on the CLOSING DATE AND
REASONABLE EXTENSIONS THEREOF.".
(o) CLAUSES (c), (e) AND, (j), OF SECTION 9.01 OF THE CREDIT
AGREEMENT ARE HEREBY AMENDED BY DELETING SAID CLAUSES IN THEIR ENTIRETY
AND INSERTING IN LIEU THEREOF THE FOLLOWING NEW CLAUSES (c), (e), AND
(j),:
"(c) Specific Defaults. The Company fails to perform
or observe any term, covenant or agreement contained in any of
Section 7.01, 7.02, 7.03 (a), (b), (c) OR (f) or 7.08
[DELETION] or in Article VIII; or"
* * *
-8-
9
"(e) CROSS-DEFAULT. (i) The Company or any Subsidiary
(A) fails to make any payment in respect of any Indebtedness
or Contingent Obligation (other than in respect of Swap
Contracts), having an aggregate principal amount (including
undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than $3,000,000 when due (whether by
scheduled maturity, required prepayment, acceleration, demand,
or otherwise) and such failure continues after the applicable
grace or notice period, if any, specified in the relevant
document on the date of such failure; or (B) fails to perform
or observe any other condition or covenant, or any other event
shall occur or condition exist with respect to the obligations
of the Company or such Subsidiary, under any agreement or
instrument relating to any Indebtedness or Contingent
Obligation of more than $3,000,000, and such failure continues
after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure if the
effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity,
or such Contingent Obligation to become payable or cash
collateral in respect thereof to be demanded; or (ii) there
occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (1) any event of
default under such Swap Contract as to which the Company or
any Subsidiary is the Defaulting Party (as defined in such
Swap Contract) or (2) any Termination Event (as so defined) as
to which the Company or any Subsidiary is an Affected Party
(as so defined), and, in either event, the Swap Termination
Value owed by the Company or such Subsidiary as a result
thereof is greater than $3,000,000; or"
* * *
"(j) NON-MONETARY JUDGMENTS. Any non-monetary
judgment, order or decree is entered against the Company or
any Subsidiary which does or would reasonably be expected to
have a Material Adverse Effect, and there shall be any period
of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or".
(p) THE TEXT OF SECTION 11.11 OF THE CREDIT AGREEMENT IS
HEREBY AMENDED BY DELETING SAID TEXT IN ITS ENTIRETY AND INSERTING IN LIEU
THEREOF THE PHRASE "[INTENTIONALLY OMITTED"]".
2. CONSENT AND WAIVER. Notwithstanding the prohibition
contained in SECTION 8.04(d)(i) of the Credit Agreement, the Banks hereby
consent to the acquisition by the Company of 100% of the capital stock of The
Continuous Learning Group, Inc. and of Envision Development Group, Inc. (the
"Continuous Acquisition"), and hereby waive any Default or Event of Default
which
-9-
10
may have resulted solely from the Company's failure to comply with said
SECTION 8.04(d)(i) in connection with the Continuous Acquisition on or prior to
the date of this Amendment.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants that:
(a) The execution, delivery and performance by the Company
of this Amendment have been duly authorized by all necessary corporate
action and that this Amendment constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability;
(b) Each of the representations and warranties contained in
the Credit Agreement is true and correct in all material respects on
and as of the date hereof as if made on the date hereof (except to the
extent such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of such
earlier date); and
(c) After giving effect to this Amendment, no Default or
Unmatured Default has occurred and is continuing.
4. EFFECTIVE DATE. Section 1 of this Amendment shall
become effective upon the date (the "Effective Date") of the execution and
delivery hereof by the Company, the Agent and each of the Banks.
5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(a) Except as specifically amended above, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of the Agent or any Bank under the Credit Agreement or any Loan
Document, nor constitute a waiver of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.
6. COSTS AND EXPENSES. The Company hereby affirms its
obligation under SECTION 11.04 of the Credit Agreement to reimburse the Agent
for all reasonable out-of-pocket costs and expenses incurred by the Agent in
connection with the preparation and execution of this Amendment, including but
not limited to the attorneys' fees and time charges of attorneys for the Agent
with respect thereto.
-10-
11
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT
THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
8. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
9. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed an original but
all such counterparts shall constitute one and the same instrument.
[Signature Pages Follow]
-11-
DEBT
12
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
CENTURY BUSINESS SERVICES, INC. (f/k/a
International Alliance Services, Inc.)
By: /s/ Xxxxxxx X. Xxxx, Xx.
------------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
----------------------------------
Title: Senior Vice President & CFO
---------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ Xxx XxXxxxx
------------------------------------
Name: Xxx XxXxxxx
----------------------------------
Title: Assistant Vice President
---------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: SVP
---------------------------------
STAR BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
S-1
[TO FIRST AMENDMENT]
