EX-10.1



 







EXHIBIT 10.1




AMENDMENT NO. 1

TO

CREDIT AGREEMENT




          THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the “Agreement”) is being executed and
delivered as of May 23, 2006 by and among CBIZ, Inc., a Delaware corporation (the
“Company”), 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 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; 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, amend the Credit Agreement 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 Majority Lenders and the Agent, such parties hereby agree as
follows:




          1. Amendment. 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:




          (a) The definition of “Applicable Margin” set forth in Section 1.01 of the Credit Agreement is
hereby amended and restated in its entirety as follows:





     “ “Applicable Margin” shall mean on any date the applicable percentage
set forth below based upon the Total Leverage Ratio as calculated after adjusting
the Leverage Ratio shown in the Compliance Certificate then most recently delivered
to the Agent and the Lenders:



 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Revolving Loans/ Letters of Credit	 	Fees
	Total Leverage	 	Base	 	Eurodollar	 	Letter of Credit Fees	 	Commitment Fee
	Ratio	 	Rate	 	Rate	 	 	 	 
	3 3.00:1.00
	 	 	1.625	%	 	 	2.625	%	 	 	2.625	%	 	 	0.475	%
	3 2.50:1.00, but
< 3.00:1.00
	 	 	1.375	%	 	 	2.375	%	 	 	2.375	%	 	 	0.425	%
	3 2.00:1.00, but
< 2.50:1.00
	 	 	1.000	%	 	 	2.000	%	 	 	2.000	%	 	 	0.375	%
	3 1.50:1.00, but
< 2.00:1.00
	 	 	0.625	%	 	 	1.625	%	 	 	1.625	%	 	 	0.325	%
	3 1.00:1.00, but
< 1.50:1.00
	 	 	0.375	%	 	 	1.375	%	 	 	1.375	%	 	 	0.275	%
	< 1.00:1.00
	 	 	0.125	%	 	 	1.125	%	 	 	1.125	%	 	 	0.225	%







     ; provided however that, (i) for the period from the Closing
Date to and including the date of the delivery of the Compliance Certificate for the
period ending December 31, 2005, the Applicable Margin shall be determined as if the
Total Leverage Ratio for such period were greater than or equal to 1.00:1.00 but
less than 1.50:1.00, (ii) for the period from May 23, 2006 to and including the date
of the delivery of the Compliance Certificate for the period ending June 30, 2006,
the Applicable Margin shall be determined as if the Total Leverage Ratio for such
period were greater than or equal to 1.50:1.00 but less than 2.00:1.00 and (iii) if
the Company shall have failed to deliver to the Lenders by the date required
hereunder any Compliance Certificate pursuant to Section 7.02(b), then from the date
such Compliance Certificate was required to be delivered until the date of such
delivery the Applicable Margin shall be determined as if the Total Leverage Ratio
for such period was greater than or equal to 3.00:1.00. Each change in the
Applicable Margin (other than pursuant to clause (ii) immediately above,
which change shall take effect on May 23, 2006) shall take effect with respect to
all outstanding Loans on the third Business Day immediately succeeding the day on
which such Compliance Certificate is received by the Agent. Notwithstanding the
foregoing, no reduction in the Applicable Margin shall be effected if a Default or
an Event of Default shall have occurred and be continuing on the date when such
change would otherwise occur, it being understood that on the third Business Day
immediately succeeding the day on which such Default or Event of Default is either
waived or cured (assuming no other Default or Event of Default shall be then
pending), the Applicable Margin shall be reduced (on a prospective basis) in
accordance with the then most recently delivered Compliance Certificate (or
clause (ii) above, as applicable).”



          (b) The definition of “Indebtedness” set forth in Section 1.01 of the Credit Agreement is
hereby amended to (i) delete the word “and” at the end of clause (g) thereof; (ii) delete the
period at the end of clause (h) thereof and substitute therefor a semi-colon (“;”); and (iii) add
at the end of such definition the following:




 









 






     “(i) the Convertible Debt, provided that upon and to the extent of the
conversion of such Convertible Debt into capital stock of the Company, such
Convertible Debt shall no longer constitute Indebtedness.”



          (c) The definition of “Leverage Ratio” set forth in Section 1.01 of the Credit Agreement is
hereby amended to add immediately after the phrase “the ratio of total consolidated Indebtedness”
the parenthetical “(excluding the Convertible Debt)”.




          (d) Clause (3) of the definition of “Permitted Acquisition” set forth in Section 1.01
of the Credit Agreement is hereby amended and restated in its entirety as follows:





     “(3) After giving pro forma effect to such Acquisition (calculated as if such
Acquisition was consummated as of the first day of such twelve month period,
including the effect of any Indebtedness assumed in connection with such
Acquisition, and including adjustments as are permitted under Regulation S-X of the
SEC), the Leverage Ratio for the twelve month period most recently ended with
respect to which the Company has delivered financial statements pursuant to
Section 7.01 is less than 2.00 to 1.00, or if the Leverage Ratio for such
twelve month period is greater than or equal to 2.00 to 1.00, the aggregate cash
consideration paid, incurred or assumed by the Company or any of its Subsidiaries
upon the consummation of such Acquisition and with respect to all other Acquisitions
consummated during such period, plus Indebtedness of the target company or
operations assumed by the Company or any of its Subsidiaries (other than payments by
the target company prior to the Acquisition) with respect to each such Acquisitions,
plus any deferred payments booked as a liability upon the consummation of
such Acquisitions (collectively, “Cash Consideration”), plus the
aggregate consideration paid and other payments made by the Company during such
period with respect to capital stock repurchases and redemptions, and repurchases,
redemptions and prepayments of the Convertible Debt, is equal to or less than
$5,000,000.”



          (e) Section 1.01 of the Credit Agreement is hereby amended to insert alphabetically the
following defined terms:





     “ “Convertible Debt” means the Company’s puttable cash pay convertible
debt incurred pursuant to the Indenture in an aggregate principal amount of up to
$100,000,000.”




     “ “Indenture” means the indenture pursuant to which the Convertible
Debt is issued.”




     “ “Total Leverage Ratio” means, with respect to the Company and its
Subsidiaries (other than Excluded Subsidiaries), on a consolidated basis, as of any
date of determination, the ratio of total consolidated Indebtedness as of such date
to EBITDA for the twelve month period then most recently ended (taken as a single
accounting period).”








 









 








          (f) Section 8.05 of the Credit Agreement is hereby amended to (i) delete the word “and” at the
end of clause (f) thereof; (ii) delete the period at the end of clause (g) thereof and substitute
therefor a semi-colon (“;”); and (iii) add at the end of such section the following:





     “(h) Indebtedness consisting of Convertible Debt in an aggregate outstanding
principal amount not to exceed $100,000,000.”



          (g) Section 8.10 of the Credit Agreement is hereby amended and restated in its entirety as
follows:





     “Restricted Payments. The Company shall not, and shall not suffer or
permit any Subsidiary to, declare or make any dividend payment or other distribution
of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its capital stock, or purchase, redeem or otherwise acquire
for value any shares of its capital stock or any warrants, rights or options to
acquire such shares, now or hereafter outstanding, or purchase, redeem, otherwise
acquire for value, or prepay the Convertible Debt (whether voluntarily or
mandatorily); except that (a) any Wholly-Owned Subsidiary may declare and make
dividend payments or other distributions to the Company or to its immediate parent
Subsidiary of the Company, (b) any Subsidiary that is not a Wholly-Owned Subsidiary
may declare and make pro-rata dividend payments or other pro-rata distributions, (c)
the Company or any of its Subsidiaries may make any repurchase or redemption of its
capital stock or any repurchase, redemption or prepayment of the Convertible Debt,
provided that, in the case of this clause (c), (i) the
Company’s Leverage Ratio for the twelve month period most recently ended with
respect to which the Company has delivered financial statements pursuant to Section
7.01 is less than 2.00 to 1.00 calculated on a pro forma basis (calculated after
giving effect to any such repurchase, redemption, prepayment and any Acquisitions
consummated during such period and determined in the manner provided in clause
(3) of the definition of Permitted Acquisitions) or (ii) if such Leverage Ratio
is greater than or equal to 2.00 to 1.00, the aggregate consideration paid and other
payments made by the Company and its Subsidiaries during such period in connection
with all such repurchases, redemptions and prepayments, including such proposed
repurchase, redemption or prepayment, plus the aggregate Cash Consideration paid,
incurred or assumed by the Company and its Subsidiaries with respect to all
Acquisitions consummated during such period, shall not exceed $5,000,000, (d) the
Company may pay the settlement amount with respect to each $1,000 aggregate
principal amount of Convertible Debt converted into shares of the Company’s common
stock (i) in cash, which shall not exceed the lesser of $1,000 and the conversion
value of such Convertible Debt pursuant to the terms and conditions of the Indenture
and (ii) if the conversion value of such Convertible Debt exceeds $1,000, in the
number of shares of the Company’s common stock as calculated pursuant to the terms
and conditions of the Indenture, (e) with respect to the conversion of the
Convertible Debt into shares of the Company’s common stock, the Company may pay the
cash value of fractional shares of the Company’s common stock pursuant to the






 









 









terms and conditions of the Indenture and (f) the Company may repurchase its
capital stock with the proceeds of the Convertible Debt.”



     (h) Article VIII of the Credit Agreement is hereby amended to add at the end of such Article
the following Section 8.19:





     “8.19 Modification of Convertible Debt. The Company shall not make
any modification to the Indenture or otherwise to the terms and conditions governing
the Convertible Debt which could reasonably be expected to have a materially adverse
effect on the Company’s or the Lenders’ rights and interests without the approval of
the Majority Lenders.”



          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 (i) 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 and (ii) the Convertible Debt having been issued
on terms and conditions acceptable to the Agent.




          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
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, 2005, 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 hereby
(a) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise,
(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 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.




          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 and all of which
together shall constitute one and the same agreement among the parties.




* * * *




     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.









 









 








	 	 	 	 	 	 	 
	 	 	CBIZ, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Signature Page to

Amendment No. 1 to

Credit Agreement







 









 








	 	 	 	 	 	 	 
	 	 	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Signature Page to

Amendment No. 1 to

Credit Agreement







 









 








	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Signature Page to

Amendment No. 1 to

Credit Agreement






 









 








	 	 	 	 	 	 	 
	 	 	HUNTINGTON NATIONAL BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Signature Page to

Amendment No. 1 to

Credit Agreement




 









 








	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






Signature Page to

Amendment No. 1 to

Credit Agreement