Exhibit 99(b)(iii)
AMENDMENT NO. 2
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (the "Agreement") is
being executed and delivered as of March 3, 2004 by and among Century Business
Services, Inc., a Delaware corporation (the "Company"), each of the Guarantors
named as signatories hereto, 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.
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 September 26, 2002 as amended by
that certain Amendment No. 1 to Credit Agreement dated as of June 6, 2003 (as
further 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, (i) 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 and (ii) the Company and each
of the Guarantors has executed and delivered a certain Pledge and Security
Agreement and other Loan Documents pursuant to which each such Person has
granted liens and security interests in substantially all of its properties as
security for its respective obligations with respect to the Credit Agreement and
the other Loan Documents; and
WHEREAS, the Company has requested that the Lenders, and
subject to the terms and conditions set forth herein, the Lenders have agreed
to, amend the Credit Agreement to, among other things, permit the repurchase by
the Company, on or before December 31, 2004, of capital stock of the Company for
aggregate consideration of up to $50,000,000.
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 Lenders and the Agent, such parties hereby agree as follows:
1. Amendments. Subject to the satisfaction of each of the
conditions set forth in Paragraph 2 of this Agreement, the Credit Agreement is
hereby amended as follows (unless otherwise specified, section and schedule
references used herein shall mean and refer to sections and schedules of the
Credit Agreement):
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(a) Section 1.01 is amended to delete in its entirety the
definition of "Borrowing Base" and replace the such definition with the
following therefor:
"`Borrowing Base' means, as of any date of determination by
the Agent, from time to time, an amount equal to the sum at
such time of:
(a) 85% of the book value of Company's Eligible Receivables at
such time; plus
(b) the lesser of (i) 60% of the book value of Company's
Eligible Unbilled Work-in-Process and (ii) (x) 35% of the
amount calculated pursuant to clause (a) for the months of
January, February and March of each calendar year, (y) 40% of
the amount calculated pursuant to clause (a) for the months of
April through December during calendar year 2004 and (z) 25%
of the amount calculated pursuant to clause (a) for the months
of April through December of each calendar year other than
calendar year 2004; plus
(c) if, such date of determination occurs during the period
from March 3, 2004 through April 29, 2004, $10,000,000;
provided, however, that (x) the percentages set forth in
either or both of clauses (a) and (b)(i) above may be reduced
from time to time by the Agent in its reasonable discretion
based upon the periodic field examinations conducted by or on
the behalf of the Agent and (y) the Agent may, in its
reasonable discretion, increase any percentage set forth in
clauses (a) or (b)(i) above previously reduced by it pursuant
to the terms hereof provided that such percentage is not
increased to a percentage greater than the applicable
percentage set forth above; and
provided further, however, that if (x) on such date of
determination the Availability would, without giving effect to
this proviso, be less than zero after giving effect to all
Borrowings requested pursuant to Section 2.03(a) on such date
and all prepayments of Loans made on such date, (y) such date
of determination is the first date on which the occurrence
described in the foregoing clause (x) has occurred during the
current month, or the occurrence described in the foregoing
clause (x) has occurred during the current month and on one of
the nine consecutive Business Days immediately preceding such
date and (z) such date of determination occurs during the
period from May 1, 2004 until September 29, 2004 and is not
the last Business Day of any calendar month, then the
Borrowing Base with respect to such date of determination
shall be the sum of (1) the Borrowing Base with respect to
such date calculated without giving effect to this proviso
plus (2) $5,000,000."
(b) Section 8.10 is amended to delete clause (i) from the
proviso therein and replace the following therefor:
"(i) that (x) with respect to the period from June 6, 2003
through December 31, 2003, the amount of such redemptions and
repurchases during such period does not exceed $52,500,000,
(y) with respect to the period from March 3, 2004 through
December 31, 2004, the amount of such redemptions and
repurchases
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during such period does not exceed $50,000,000 and (z) at all
times thereafter, the amount of such redemptions and
repurchases does not exceed an amount equal to fifty percent
(50%) of Net Income for the twelve (12) month period then most
recently ended and with respect to the last month of such
period the Agent and the Lenders shall have received the
monthly financial information required pursuant to Section
7.01(c),".
(c) Section 8.14 is deleted in its entirety and the following
is replaced therefor:
"8.14 Minimum Net Worth. The Company shall not permit
its consolidated Net Worth at any time after March 3, 2004 to
be less than an amount equal to the sum of (a) $226,327,000
plus (b) 50% of the Company's positive net income as
determined in accordance with GAAP (with no deduction for net
losses), if any, for each fiscal quarter ending after March 1,
2004 and prior to any date of determination hereunder plus (c)
an amount equal to 100% of the net cash and non-cash proceeds
of any equity securities issued by the Company or its
Subsidiaries after March 1, 2004 and prior to any date of
determination hereunder less (d) an amount not exceeding
$50,000,000 in the aggregate paid by the Company for any
shares of capital stock of the Company repurchased or redeemed
during the period from March 3, 2004 through December 31,
2004."
2. Effectiveness of this Agreement; Conditions Precedent. The
provisions of Paragraph 1 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 occurrence of each of the following:
(a) receipt by the Agent of an originally-executed counterpart
of this Agreement executed and delivered by duly authorized officers of
the Company, each Guarantor and the Majority Lenders; and
(b) payment in full, in immediately available funds, of (i) a
fee payable to each Lender who executes this Agreement in the amount of
0.05% of such Lender's Revolving Loan Commitment and (ii) the fees
payable to Bank of America pursuant to that certain letter dated as
January 29, 2004 among Bank of America, Banc of America Securities LLC
and the Company.
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 Agreement have been duly authorized by all
proper corporate action, do not violate any provision of its
certificate of incorporation or bylaws, will not violate any law,
regulation, court order or writ applicable to it, and will not require
the approval or consent of any Governmental
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Authority, or of any other third party under the terms of any contract
or agreement to which the Company or any of the Company's Subsidiaries
is bound.
(c) The Company hereby represents and warrants that, after
giving effect to the provisions of this Agreement, (i) no Default or
Event of Default has occurred and is continuing or will have occurred
and be continuing and (ii) all of the representations and warranties of
the Company contained in the Credit Agreement and in each other Loan
Document (other than representations and warranties which, in
accordance with their express terms, are made only as of an earlier
specified date) are, and will be, true and correct as of the date of
the Company's execution and delivery of this Agreement in all material
respects as though made on and as of such date.
(d) The Company hereby represents and warrants that there has
occurred since December 31, 2002, no event or circumstance that has
resulted or could reasonably be expected to result in a Material
Adverse Effect.
(e) The Company hereby represents and warrants that there are
no actions, suits, investigations, proceedings, claims or disputes
pending, or to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any
Governmental Authority, against the Company, its Subsidiaries or any of
their respective properties which purport to affect or pertain to this
Agreement, the Credit Agreement or any other Loan Document or any of
the transactions contemplated hereby or thereby, or which could
reasonably be expected to have a Material Adverse Effect
4. Reaffirmation, Ratification and Acknowledgment;
Reservation. The Company and each Guarantor hereby (a) ratifies and reaffirms
all of its payment and performance obligations, contingent or otherwise, and
each grant of security interests and liens in favor of the Agent, under each
Loan Document to which it is a party, (b) agrees and acknowledges that such
ratification and reaffirmation is not a condition to the continued effectiveness
of such Loan Documents, and (c) agrees that neither such ratification and
reaffirmation, nor the Agent's or any Lender's solicitation of such ratification
and reaffirmation, constitutes a course of dealing giving rise to any obligation
or condition requiring a similar or any other ratification or reaffirmation from
the Company or such Guarantors with respect to any subsequent modifications to
the Credit Agreement or the other Loan Documents. The Credit Agreement is in all
respects ratified and confirmed. Each of the Loan Documents shall remain in full
force and effect and is hereby ratified and confirmed. Neither the execution,
delivery nor effectiveness of this Agreement shall operate as a waiver of any
right, power or remedy of the Agent or the Lenders, or of any Default or Event
of Default (whether or not known to the Agent or the Lenders), under any of the
Loan Documents, all of which rights, powers and remedies, with respect to any
such Default or Event of Default or otherwise, are hereby expressly reserved by
the Agent and the Lenders. This Agreement shall constitute a Loan Document for
purposes of the Credit Agreement.
5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT
THE PARTIES SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
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6. Agent's Expenses. The Company hereby agrees to promptly
reimburse the Agent for all of the reasonable out-of-pocket expenses, including,
without limitation, attorneys' and paralegals' fees, it has heretofore or
hereafter incurred or incurs in connection with the preparation, negotiation and
execution of this Agreement.
7. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement among the parties.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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.
By
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and C.O.O.
Signature Page to
Amendment No. 2 to Credit Agreement
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GUARANTORS:
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BENMARK, INC.
CBIZ ACCOUNTING, TAX & ADVISORY, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF ATLANTA, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF BETHESDA, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF BOCA RATON, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF CENTRAL OHIO, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF CHICAGO, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF CLEVELAND, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF COLORADO, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF COLUMBIA, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF CUMBERLAND, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF KANSAS CITY, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF NEW YORK, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF NORTHEAST OHIO, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF NORTHERN CALIFORNIA,
INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF ORANGE COUNTY, INC.
CBIZ ACCOUNTING, TAX & ADVISORY OF TOPEKA, INC.
Signature Page to
Amendment No. 2 to Credit Agreement
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CBIZ ACCOUNTING, TAX & ADVISORY OF WICHITA, INC.
CBIZ ACTUARIAL & BENEFIT CONSULTANTS, INC.
CBIZ XXXXXX XXXXXXXX BUSINESS SERVICES, INC.
CBIZ BENEFITS & INSURANCE SERVICES, INC.
CBIZ INSURANCE SERVICES, INC.
CBIZ BUSINESS SOLUTIONS OF ST. LOUIS, INC.
CBIZ BVKT BUSINESS SERVICES, INC.
CBIZ FINANCIAL SOLUTIONS, INC.
CBIZ FPG BUSINESS SERVICES, INC.
CBIZ GIBRALTAR REAL ESTATE SERVICES CORPORATION
CBIZ HARBORVIEW, INC.
CBIZ KA CONSULTING, INC.
CBIZ XXXXXXX GOVERNMENT RELATIONS, INC.
CBIZ M & S CONSULTING SERVICES, INC.
CBIZ XXXXXXX ACCOUNTING, TAX & ADVISORY, INC.
CBIZ MEDICAL MANAGEMENT PROFESSIONALS, INC.
CBIZ M.T. XXXXXXX & ASSOCIATES, INC.
CBIZ MERGERS & ACQUISITONS GROUP, INC.
CBIZ XXXXXX XXXXXX, INC.
CBIZ XXXXXXX, XXXXX BUSINESS SERVICES, INC.
CBIZ NETWORK SOLUTIONS, INC.
CBIZ XXXXXX-XXX BUSINESS SERVICES, INC.
CBIZ PROPERTY TAX SOLUTIONS, INC.
CBIZ RETIREMENT CONSULTING, INC.
Signature Page to
Amendment No. 2 to Credit Agreement
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CBIZ SK&B BUSINESS SOLUTIONS, INC.
CBIZ SOUTHERN CALIFORNIA, INC.
CBIZ SPECIAL RISK INSURANCE SERVICES, INC.
CBIZ TAX & ADVISORY OF NEBRASKA, INC.
CBIZ TECHNOLOGIES, INC.
CBIZ TRILINC CONSULTING, INC.
CBIZ VALUATION GROUP, INC.
CBIZ VINE STREET HOLDING CORP.
CBIZ WESTERN KANSAS, INC.
CBIZ WORKSITE SERVICES, INC.
DP & CO. BUSINESS SERVICES, INC.
GOVERNMENT EMPLOYEE BENEFITS CORPORATION OF GEORGIA
MHM RESOURCES, INC.
XXXXX, XXXXX & COMPANY, INC.
By:__________________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President and C.O.O., Century Business
Services, Inc., Vice President and Sole Director of the
Guarantors
Signature Page to
Amendment No. 2 to Credit Agreement
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BANK OF AMERICA, N.A., AS AGENT
By
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Name:
Title:
BANK OF AMERICA, N.A., AS A LENDER
By
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
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FIFTH THIRD BANK, AS A LENDER
By
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
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HUNTINGTON NATIONAL BANK, AS A LENDER
By
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
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U.S. BANK NATIONAL ASSOCIATION, AS A LENDER
By
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Name:
Title:
Signature Page to
Amendment No. 2 to Credit Agreement
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