Exhibit 10.6
FIFTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
November 9, 2001 (this "AGREEMENT"), is by and among CENTURY BUSINESS SERVICES,
INC., a Delaware corporation (the "COMPANY"), the Lenders party to the Credit
Agreement referred to below (the "LENDERS"), BANK OF AMERICA, N.A. as agent (the
"AGENT"), and FLEET NATIONAL BANK, BANK ONE, MICHIGAN, LASALLE BANK NATIONAL
ASSOCIATION AND PNC BANK, NATIONAL ASSOCIATION, each as Co-Agent (the
"CO-AGENTS").
RECITALS:
WHEREAS, the Company, Agent, Co-Agents and the Lenders are parties to that
certain Amended and Restated Credit Agreement dated as of October 3, 1997, as
amended and restated as of August 10, 1998, as amended and restated as of August
24, 1999 (as amended, restated, supplemented or otherwise modified and in effect
from time to time, the "CREDIT AGREEMENT"); and
WHEREAS, the Company, Agent, Co-Agents and the Lenders wish to amend the
Credit Agreement in certain respects as set forth herein, subject to the terms
and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings given them in the Credit Agreement.
SECTION 2. AMENDMENTS AND WAIVERS TO CREDIT AGREEMENT. The Credit Agreement
is, as of the Effective Date (as defined below), hereby amended as follows:
(a) THE DEFINITIONS OF "ELIGIBLE RECEIVABLES" AND "OFFSHORE RATE" IN
ARTICLE I OF THE CREDIT AGREEMENT ARE HEREBY AMENDED BY DELETING SAID
DEFINITIONS IN THEIR ENTIRETY AND INSERTING THE FOLLOWING IN LIEU THEREOF:
"ELIGIBLE RECEIVABLES" means:
(i) at any time on or prior to March 31, 2001, (x)
work-in-progress of the Company and each of its Wholly Owned
Subsidiaries which are party to a Security Agreement (each, a "Tested
Person") less than or equal to 120 days plus (y) the total face of the
trade receivables less than or equal to 120 days (related to the sale
of goods and services other than to affiliates of the Company) of each
Tested Person, calculated in accordance with GAAP, consistently
applied;
(ii) thereafter but on and prior to September 29, 2001, (x)
work-in-progress of each Tested Person less than or equal to 90 days
plus (y) the total face of the trade receivables less than or equal to
120 days (related to the sale of goods and services other than to
affiliates of the Company) of each Tested Person, calculated in
accordance with GAAP, consistently applied; and
(iii) at any time thereafter, (x) work-in-progress of each Tested
Person less than or equal to 90 days plus (y) the total face of the
trade receivables less than or equal to 90 days (related to the sale
of goods and services other than to affiliates of the Company) of each
Tested Person, calculated in accordance with GAAP, consistently
applied.
"OFFSHORE RATE" means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%) determined by
the agent as follows:
Offshore Rate : IBOR
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1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred
to as "Eurocurrency Liabilities"); and
"IBOR" means the rate of interest per annum determined by the Agent as
the rate at which dollar deposits in the approximate amount of B of
A's Offshore Rate Loan for such Interest Period would be offered by B
of A's Grand Cayman Branch, Grand Cayman B.W.I. (or such other office
as may be designated for such purpose by B of A), to major banks in
the offshore dollar interbank market at their request at approximately
10:00 a.m. (Chicago time) two Business Days prior to the commencement
of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
(b) ARTICLE I OF THE CREDIT AGREEMENT IS AMENDED BY INSERTING THE
FOLLOWING DEFINITIONS IN ALPHABETICAL ORDER:
"FIFTH AMENDMENT" means the Fifth Amendment to the Amended and
Restated Credit Agreement, dated as of November 9, 2001.
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(c) ARTICLE VIII OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY DELETING
SECTION 8.19 IN ITS ENTIRETY AND INSERTING THE FOLLOWING IN LIEU THEREOF:
"8.19 EBITDA. The Company shall not, as of the last day of each
period set forth below, permit its consolidated EBITDA for such period
then ending to be less than the amount set forth below for such
period:
PERIOD AMOUNT
January 1, 2001 through and $50,000,000
including September 30, 2001
January 1, 2001 through and $50,000,000
including December 31, 2001
Thereafter through and including $50,000,000
June 30, 2002, the period of four fiscal
quarters ending on the last day of
each succeeding fiscal quarter
Thereafter, the period of four fiscal $55,000,000".
quarters ending on the last day of
each succeeding fiscal quarter
(d) THE UNDERSIGNED LENDERS HEREBY WAIVE ANY DEFAULT OR EVENT OF
DEFAULT ARISING OUT OF THE COMPANY'S NON-COMPLIANCE WITH SECTIONS 8.16 AND 8.17
OF THE CREDIT AGREEMENT FOR THE PERIOD ENDING SEPTEMBER 30, 2001.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT. This
Agreement shall become effective upon the date (the "EFFECTIVE DATE") each of
the following conditions have been satisfied:
(a) EXECUTION AND DELIVERY. The Company and the Majority Lenders shall
have executed and delivered this Agreement;
(b) NO DEFAULTS. No Default or Event of Default under the Credit
Agreement (as amended hereby) shall have occurred and be continuing;
(c) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Company contained in this Agreement, the Credit Agreement (as amended
hereby) and the other Loan Documents shall be true and correct in all material
respects as of the Effective Date, with the same effect as though made on such
date, except to the extent that any such representation or warranty expressly
refers to an earlier date, in which case such representation or warranty shall
be true and correct in all material respects as of such earlier date;
(d) REDUCTION OF COMMITMENT. The Company shall have delivered a notice
to the Agent pursuant to SECTION 2.05 of the Credit Agreement permanently
reducing the Revolving Loan Commitment to $100,000,000; and
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(e) AMENDMENT FEE. The receipt by the Agent, for distribution to the
relevant Lender, from the Company of an amendment fee payable to each Lender
executing this Amendment in an amount equal to .125% of such Lender's Revolving
Loan Commitment (after giving effect to the reduction referred to in Section
3(d)).
SECTION 4. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants (i) that it has full power and
authority to enter into this Agreement and perform its obligations hereunder in
accordance with the provisions hereof, (ii) that this Agreement has been duly
authorized, executed and delivered by such party and (iii) that this Agreement
constitutes the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally and by general principles of
equity.
(b) The Company represents and warrants that the following statements
are true and correct:
(i) The representations and warranties contained in the Credit
Agreement and each of the other Loan Documents are and will be true
and correct in all material respects on and as of the Effective Date;
except to the extent such representations and warranties expressly
refer to an earlier date, in which case they were true and correct in
all material respects on and as of such earlier date.
(ii) No event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Agreement
that would constitute an Event of Default.
(iii) The execution, delivery and performance of this Agreement
by the Company do not and will not violate its respective certificate
or articles of incorporation or by-laws, any law, rule, regulation,
order, writ, judgment, decree or award applicable to it or any
contractual provision to which it is a party or to which it or any of
its property is subject.
(iv) No authorization or approval or other action by, and no
notice to or filing or registration with, any governmental authority
or regulatory body is required in connection with its execution,
delivery and performance of this Agreement and all agreements,
documents and instruments executed and delivered pursuant to this
Agreement.
SECTION 5. REFERENCES TO AND EFFECT ON THE CREDIT AGREEMENT.
(a) On and after the Effective Date each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference to the Credit Agreement in the Loan Documents and all
other documents (the "ANCILLARY DOCUMENTS") delivered in connection with the
Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby.
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(b) Except as specifically amended above, the Credit Agreement, the
Loan Documents and all other Ancillary Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver (except as
specifically waived above) of any right, power or remedy of the Lenders or the
Agent under the Credit Agreement, the Loan Documents or the Ancillary Documents.
SECTION 6. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS,
WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 8. HEADINGS. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purposes.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
date above first written.
CENTURY BUSINESS SERVICES, INC.
By
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Name:
Title:
BANK OF AMERICA, N.A., as Agent
By
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Name:
Title:
BANK OF AMERICA, N.A., Individually as a
Lender and as the Issuing Bank
By
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Name:
Title:
FLEET NATIONAL BANK, as a Co-Agent
and individually as a Lender
By
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Name:
Title:
BANK ONE, MICHIGAN, as a Co-Agent and
individually as a Lender
By
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Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION, as
a Co-Agent and individually as a Lender
By
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as a Co-
Agent and individually as a Lender
By
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Name:
Title:
COMERICA BANK
By
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Name:
Title:
FIFTH THIRD BANK, NORTHEASTERN OHIO
By
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Name:
Title:
HUNTINGTON NATIONAL BANK
By
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Name:
Title:
FIRSTAR BANK, N.A.
By
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Name:
Title:
FIRSTMERIT BANK, N.A.
By
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Name:
Title:
FIRST UNION NATIONAL BANK
By
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Name:
Title:
U.S. BANK, N.A.
By
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Name:
Title:
