EX-10.1



 





Exhibit 10.1




EXECUTION VERSION




THIRD AMENDMENT

TO

CREDIT AGREEMENT




          THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the “Agreement”) is being executed and
delivered as of November 16, 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 heretofore amended, restated, supplemented or otherwise
modified, 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, the Company has requested that the Lenders agree, and subject to the terms and
conditions set forth herein, the Lenders have agreed, to 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 conditions set forth in
Paragraph 2 of this Agreement, the Credit Agreement is hereby amended as follows (unless
otherwise specified, section references used in this section shall refer to such sections of the
Credit Agreement):





     (a) The definition of “Applicable Margin” set forth in Section 1.01 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	 	 
	Total Leverage	 	Base	 	Eurodollar	 	Fees
	Ratio	 	Rate	 	Rate	 	Letter of Credit Fees	 	Commitment Fee
	≥ 4.00:1.00
	 	 	1.000	%	 	 	2.000	%	 	 	2.000	%	 	 	0.400	%
	≥ 3.00:1.00,
but <
4.00:1.00
	 	 	0.625	%	 	 	1.625	%	 	 	1.625	%	 	 	0.325	%
	≥ 2.00:1.00,
but <
3.00:1.00
	 	 	0.375	%	 	 	1.375	%	 	 	1.375	%	 	 	0.275	%
	≥ 1.00:1.00,
but <
2.00:1.00
	 	 	0.125	%	 	 	1.125	%	 	 	1.125	%	 	 	0.225	%
	< 1.00:1.00
	 	 	0.000	%	 	 	0.875	%	 	 	0.875	%	 	 	0.175	%







          ; provided however that, (i) for the period from the date on
which the Third Amendment dated as of November 16, 2007 to this Agreement shall have
become effective to and including the date of the delivery of the Compliance
Certificate for the fiscal year ending December 31, 2007, the Applicable Margin
shall be determined as if the Total Leverage Ratio for such period were greater than
or equal to 2.00:1.00 but less than 3.00:1.00, and (ii) 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 4.00:1.00. Each change in the Applicable Margin (other
than pursuant to clause (i) immediately above, which change shall take
effect as provided in such clause) 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). Notwithstanding anything to the contrary contained in this
definition, the determination of the Applicable Margin for any period shall be
subject to the provisions of Section 2.11(c).



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          (b) The definition of “Revolving Termination Date” set forth in Section 1.01 is hereby amended
and restated in its entirety as follows:




          “Revolving Termination Date” means the earlier to occur of:





          (a) November 16, 2012; and




          (b) the date on which the Revolving Loan Commitments terminate in accordance
with the provisions of this Agreement.



          (c) Section 2.11 is amended to add the following provision to the end of such section:





               (c) If, as a result of any restatement of or other adjustment to the financial
statements of the Company or for any other reason, the Company or the Lenders determine that
(i) the Total Leverage Ratio as calculated by the Borrower as of any applicable date was
inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in
higher pricing for such period, the Company shall immediately and retroactively be obligated
to pay to the Agent for the account of the Lenders, promptly on demand by the Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with respect to the
Company under the Bankruptcy Code, automatically and without further action by the Agent,
any Lender or the Issuing Bank), an amount equal to the excess of the amount of interest and
fees that should have been paid for such period over the amount of interest and fees
actually paid for such period. This paragraph shall not limit the rights of the Agent, any
Lender or the Issuing Bank, as the case may be, under Section 2.09(c), or
3.03(c) or under Article IX. The Company’s obligations under this paragraph
shall survive the termination of the Commitments and the repayment of all other Obligations
hereunder.



          (d) Section 7.03(d) is amended to add the following provision to the end of such section:




          , including any determination by the Company referred to in Section 2.11(c).




          (e) Section 7.01(c) is hereby deleted in its entirety.




          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:




          (a) the receipt by the Agent of an executed counterpart of this Agreement executed and
delivered by duly authorized officers of the Company and each of the Lenders;




          (b) the receipt by the Agent of a secretary’s certificate, in form, scope and substance
acceptable to the Agent, from the secretary or assistant secretary of the Company, certifying (i)
as to the Company’s board of directors’ resolutions authorizing the Company’s execution, delivery
and performance of this Agreement and the Credit Agreement as amended by this Agreement (with
copies thereof attached to such certificate), (ii) as to the incumbency of the


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officer of the Company to executes and delivers this Agreement and as to such officer’s
signature or facsimile thereof and (iii) as to the currency and completeness of the Company’s
certificate of incorporation and by-laws (with copies thereof attached to such certificate);




          (c) the receipt by the Agent of a legal opinion, in form, scope and substance acceptable to
the Agent, from the Company’s general counsel, with respect to this Agreement and the Credit
Agreement as amended by this Agreement.




          (d) payment in full, in immediately available funds, of (i) an amendment fee payable to each
Lender 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 fee letter dated as of October 19, 2007 among Bank of
America, Banc of America Securities LLC and the Company (all of which fees the Company hereby
covenants and agrees to pay concurrently with the execution and delivery of this Agreement).




          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 (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 not occurred since
December 31, 2006, any 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



4









 







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) ratify and reaffirm all of their payment and performance obligations,
contingent or otherwise, under each Loan Document to which they are a party, (b) agree and
acknowledge that such ratification and reaffirmation are not a condition to the continued
effectiveness of such Loan Documents, and (c) agree 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
as amended hereby and each of the other 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.




* * * *




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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.



	 	 	 	 	 
	 	CBIZ, INC.

 	 
	 	By  
	 /s/ Ware Grove
	 
	 	 	Name:  	Ware Grove 	 
	 	 	Title:  	Senior Vice President

& Chief Financial Officer 	 
	 



Signature Page to

Third Amendment to

Credit Agreement





 









 







THE GUARANTORS:

CBIZ GEBCORP INSURANCE, INC (FORMERLY BENMARK, INC.)

CBIZ ACCOUNTING, TAX & ADVISORY OF ATLANTA, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF MARYLAND, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF BOCA RATON, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF CHICAGO, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF COLORADO, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF COLUMBIA, INC.

CBIZ ACCOUNTING, TAX & ADVISORY OF KANSAS CITY, INC.

CBIZ ACCOUNTING, TAX & ADVISORY OF NEW YORK, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF OHIO, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF NORTHERN CALIFORNIA, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF ORANGE COUNTY, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF PHOENIX, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF SAN DIEGO, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF SOUTH FLORIDA, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF TOPEKA, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF WICHITA, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF WISCONSIN, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF ST. LOUIS, LLC

CBIZ ACCOUNTING, TAX & ADVISORY OF UTAH, LLC

CBIZ ACCOUNTING, TAX & ADVISORY, LLC

CBIZ BEATTY SATCHELL, LLC

CBIZ BENEFITS & INSURANCE SERVICES, INC.

CBIZ BVKT, LLC




Signature Page to

Third Amendment to

Credit Agreement




 









 








CBIZ GIBRALTAR REAL ESTATE SERVICES, LLC

CBIZ RISK & ADVISORY SERVICES, LLC 

(FORMERLY CBIZ
HARBORVIEW, LLC)

CBIZ INSURANCE SERVICES, INC.

CBIZ KA CONSULTING SERVICES, LLC

CBIZ KESSLER GOVERNMENT RELATIONS, LLC

CBIZ M & S CONSULTING SERVICES, LLC

CBIZ M.T. DONAHOE & ASSOCIATES, LLC

CBIZ MEDICAL MANAGEMENT PROFESSIONALS, INC.

CBIZ MMP OF TEXAS, LLC

CBIZ NETWORK SOLUTIONS, LLC

CBIZ NETWORK SOLUTIONS CANADA, INC.

CBIZ OPERATIONS, INC.

CBIZ ACCOUNTING, TAX & ADVISORY OF NAPERVILLE, LLC (FORMERLY CBIZ PHILIP-RAE, LLC)

CBIZ RETIREMENT CONSULTING, INC.

CBIZ SK&B, LLC

CBIZ SOUTHERN CALIFORNIA, LLC

CBIZ SPECIAL RISK INSURANCE SERVICES, INC.

CBIZ TAX AND ADVISORY OF NEBRASKA INC.

CBIZ TECHNOLOGIES, LLC

CBIZ VALUATION GROUP, LLC

CBIZ VINE STREET HOLDING CORP.

CBIZ WEST, INC.

CBIZ WESTERN KANSAS, INC.

G&C BUSINESS SERVICES, INC.

GOVERNMENT EMPLOYEE BENEFITS CORPORATION OF GEORGIA

CBIZ FLEX, INC. (FORMERLY MHM RESOURCES, INC.)

HAWTHORN FINANCIAL CORPORATION

MHM RETIREMENT PLAN SOLUTIONS, LLC

MEDICAL MANAGEMENT SYSTEMS, INC.

ONECBIZ, INC.

TRIMED INDIANA, LLC




	 	 	 	 	 
	 	 	 
	 	By:  	                  /s/ Jerome P. Grisko, Jr.
 	 
	 	Name:  	 	Jerome P. Grisko, Jr. 	 
	 	Title:  	 	Sole Director 	 
	 



Signature Page to

Third Amendment to

Credit Agreement




 









 








	 	 	 	 	 
	BANK OF AMERICA, N.A., as Agent	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

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

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	FIFTH THIRD BANK, as a Lender	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION, as a Lender
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	HUNTINGTON NATIONAL BANK, as a Lender
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION, as a Lender
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 






Signature Page to

Third Amendment to

Credit Agreement