Amendment to Second Amended and Restated Credit Agreement, dated August 29,2005, among Clark, Inc. as Borrower, Chase Bank, NA as Syndicate Leader and Administrative Agent and Other Financial Institutions as Lenders

Exhibit 10.15(a)

 

 

This Second Modification Agreement (this “Amendment”) is executed as of August 29, 2005, by and among CLARK CONSULTING, INC., a Delaware corporation (“Borrower”), JP Morgan Chase Bank, NA, a national banking association (successor-in-interest by merger to Bank One, NA) (“Agent”), as administrative agent for itself and such other entities from time to time designated as “Lenders” under the Loan Agreement (herein defined) (the “Lenders”) and such Lenders .

 

W I T N E S S E T H:

 

WHEREAS, Borrower, Agent and Lenders entered into that certain Second Amended and Restated Credit Agreement, dated as of November 26, 2003, pursuant to which Lenders agreed to make available to Borrower a credit facility (as heretofore or hereafter amended, the “Loan Agreement”) (each capitalized term used herein, but not otherwise defined shall have the same meaning given to it in the Loan Agreement); and

 

WHEREAS, Borrower, Agent and Lenders entered into that certain First Modification Agreement, dated as of November 12, 2004, pursuant to which the parties amended certain provisions contained in the Loan Agreement; and

 

WHEREAS, Borrower, Agent and Lenders desire to increase the credit facility evidenced by the Loan Agreement by the addition of Charter One Bank, N.A. as a Lender (the “New Lender”) and amend the Loan Agreement as more particularly set forth herein; and

 

NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are all hereby acknowledged, Borrower, Agent and the Lenders hereby covenant and agree as follows:

 

 

Section 1.1. New Lender. By its execution of this Agreement, New Lender is hereby added to the Loan Agreement as a Lender, and (i) confirms that it has received a copy of the Loan Agreement and the other Loan Documents, together with copies of any financial statements requested by New Lender and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement, (ii) agrees that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information at it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (iii) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) confirms that the execution and delivery of this Agreement by New Lender is duly authorized, (v) assumes all obligations of a Lender under the Loan Agreement and the other Loan Documents and agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, (vi) confirms that its payment instructions and notice instructions are as set forth in the attached Schedule 1, (vii) confirms that none of the funds, monies, assets or other consideration being used to make the purchase and assumption hereunder are “plan assets” as defined under ERISA and that its rights, benefits and interests in and under the Loan Documents will not be “plan assets” under ERISA, and (viii) if applicable, agrees to provide the forms prescribed by the Internal Revenue Service of the United States certifying that New Lender is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes.

 

Section 1.2. Commitments; Notes. As of the date of this Amendment, the Commitments of the Lenders are as set forth on the amended Commitment Schedule attached hereto and Borrower shall execute promissory notes, in the forms attached as Exhibit E-2 to the Loan Agreement, in favor of the Lenders in the respective amounts set forth on the Commitment Schedule. New Lender shall fund its Pro Rata Share of the outstanding amount of the Loans to Agent, who shall distribute such funds to the other Lenders to reflect the new Commitments as evidenced hereby.

 

Section 1.3. Representations and Warranties. Borrower hereby represents and warrants to Agent and to Lenders that (i) all representations and warranties made by Borrower in the Loan Agreement as of the date thereof are true and correct as of the date hereof, as if such representations and warranties were recited herein in their entirety and (ii) Borrower is not in default of any covenant or agreement contained in the Loan Agreement.

 

Section 1.4. Facility Fee. In consideration of the commitment of the New Lender, Borrower agrees to pay to New Lender a facility commitment fee in the amount of $10,000, which amendment fee is intended as reasonable compensation for the commitment of the New Lender hereunder, and for no other purpose.

 

 

Section 2.1. Conditions Precedent. As conditions precedent to closing this Amendment (i) Borrower, Agent, each Lender and Guarantor, shall have executed and delivered to Agent this Agreement, (ii) Borrower shall have paid to New Lender the facility commitment fee provided for in Section 1.4 above.

 

Section 2.2. Continuing Effect. Except as modified and amended hereby, the Loan Agreement and other Loan Documents are and shall remain in full force and effect in accordance with their terms.

 

Section 2.3. Binding Agreement. This Amendment shall be binding upon, and shall inure to the benefit of, the parties’ respective representatives, successors and assigns.

 

Section 2.4. Nonwaiver of Events of Default. Neither this Amendment nor any other document executed in connection herewith constitutes or shall be deemed (a) a waiver of, or consent by Agent or any Lender to, any default or event of default which may exist or hereafter occur under any of the Loan Documents, (b) a waiver by Agent or any Lender of any of Borrower’s obligations under the Loan Documents, or (c) a waiver by Agent or any Lender of any rights, offsets, claims, or other causes of action that Lender may have against Borrower.

 

Section 2.5. No Defenses. Borrower, by its execution of this Amendment, hereby declares that to its knowledge, it has no set-offs, counterclaims, defenses or other causes of action against Agent or any Lender arising out of the Loan Documents, any documents mentioned herein or otherwise.

 

Section 2.6. Payment of Expenses. Borrower agrees to pay to Agent the reasonable attorneys’ fees and expenses of Agent’s counsel and other expenses incurred by Agent in connection with this Amendment.

 

Section 2.7. Counterparts. This Amendment may be executed in several counterparts, all of which are identical, each of which shall be deemed an original, and all of which counterparts together shall constitute one and the same instrument, it being understood and agreed that the signature pages may be detached from one or more of such counterparts and combined with the signature pages from any other counterpart in order that one or more fully executed originals may be assembled.

 

Section 2.8. Choice of Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, EXCEPT TO THE EXTENT FEDERAL LAWS PREEMPT THE LAWS OF THE STATE OF ILLINOIS.

 

Section 2.9. Entire Agreement. This Amendment, together with the other Loan Documents, contain the entire agreements between the parties relating to the subject matter hereof and thereof. This Amendment and the other Loan Documents may be amended, revised, waived, discharged, released or terminated only by a written instrument or instruments, executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party.

 

 

IN WITNESS WHEREOF, this Amendment is executed effective as of the date first written above.

 

 

CLARK CONSULTING, INC., a Delaware corporation

 

By:  /s/ Thomas M. Pyra

      

                        Print Name:  Thomas M. Pyra

   

                        Title:  President

   

 

102 S. Wynstone Park Drive, Suite 200

N. Barrington, Illinois 60010

Attention: W. T. Wamberg, Tom Pyra

and Jeff Lemajeur

Telephone: (847) 304-5800

FAX: (847) 304-5878

 

 

JP Morgan Chase Bank, NA, a national banking association, as Agent

                        

                        By:  /s/ J. Patrick Brockette

      

Print Name:  J. Patrick Brockette

Title:   Senior Vice President

 

1717 Main Street; Third Floor

Dallas, Texas 75201

Attention: Pat Brockette

Telephone: (214) 290-2453

FAX: (214) 290-2305

 

LENDERS:

 

                        JPMorgan Chase Bank, NA, a national banking association

 

 

                   
                        By:  /s/ J. Patrick Brockette

                          

                        Print Name: J. Patrick Brockette

                        Title:  Senior Vice President

 

1717 Main Street; Third Floor

Dallas, Texas 75201

Attention: Pat Brockette

Telephone: (214) 290-2453

FAX: (214) 290-2305

 

LASALLE BANK NATIONAL ASSOCIATION,

a national banking association (f/k/a LaSalle National Bank)

 

By:  /s/ Brandon S. Allison      

Print Name:  Brandon S. Allison     

Title:  Assistant Vice President      

 

135 South LaSalle Street, Suite 209

Chicago, Illinois 60603

Attention: Brandon S. Allison

Telephone: (312) 904-6324

FAX: (312) 904-6189

 

THE FROST NATIONAL BANK, a national banking association

 

By:  /s/ Stephanie Stove      

Print Name:  Stephanie Stove     

Title:  Vice President      

 

2727 N. Harwood, 10^th Floor

Dallas, Texas 75201

Attn: Chris Holder

Telephone: (214) 515-4960

FAX: (214) 515-4955

 

MB FINANCIAL BANK, N.A., a national banking association

 

By:  /s/ Maureen Janes      

Print Name:  Maureen Janes     

Title:  First Vice President      

 

6111 N. River Rd.

Rosemont, IL 60018

Attn: Maureen Janes

Telephone: (847) 653-1952

FAX: (847) 653-0083

 

FIFTH THIRD BANK-CHICAGO

 

By:  /s/ Robert D. Curtis      

Print Name:  Robert D. Curtis     

Title:  Vice President      

 

Fifth Third Bank-Chicago

1701 Golf Road

Tower 1 MD GRLM9G

Rolling Meadows, IL 60008

Attn: Bob Curtis, Vice President

Telephone: 847 ###-###-####

FAX: 847 ###-###-####

CHARTER ONE BANK, N.A.

 

By:  /s/ Bernardo Lacayo      

Print Name:  Bernardo Lacayo     

Title:  Senior Vice President      

 

Charter One Bank, N.a.

71 South Wacker Drive

Suite 2900

Chicago, IL 60603

Attn: Bernie Lacayo

Telephone: (312) 777-3484

FAX: (312) 777-3481

 

The undersigned Guarantor hereby (a) acknowledges its consent to the changes effected by this Agreement, (b)  ratifies and confirms all terms and provisions of the Unlimited Guaranty dated January 15, 1999, (c) agrees that such Unlimited Guaranty is and shall remain in full force and effect with respect to the Loans, as increased and amended hereby, (d) acknowledges that there are no claims or offsets against, or defenses or counterclaims to, the terms and provisions of and the obligations created and evidenced by such Unlimited Guaranty, and (e) reaffirms all agreements and obligations under such Unlimited Guaranty with respect to the Loan Agreement, the Notes, the Loans and all other documents, instruments or agreements governing, securing or pertaining to the Loans, as the same may be modified and increased by this Agreement.

 

EXECUTED as of this 4th day of August, 2005.

 

 

CLARK, INC., a Delaware corporation

 

By:  /s/ Thomas M. Pyra      

Print Name:  Thomas M. Pyra     

Title:  President      

 

102 S. Wynstone Park Drive, Suite 200

N. Barrington, Illinois 60010

Attention: W. T. Wamberg, Tom Pyra

and Jeff Lemajeur

Telephone: (847) 304-5800

FAX: (847) 304-5878

Lender	Revolving Commitment	Commitment Percentage
JP Morgan Chase Bank, N.A.	$26,401,650	29.663%
LaSalle Bank, National Association	16,001,000	17.978%
Fifth Third Bank - Chicago	15,000,000	16.853%
Frost National Bank	12,000,750	13.483%
Charter One Bank	10,000,000	11.235%
MB Financial Bank, N.A.	9,600,600	10.787%
Total:	$89,004,000	100.000%

 

 

Schedule 1 

 

 

 

Credit Contact:

 

Name:  Bernie Lacayo_______                Telephone No.: (312) 777-3484  

Fax No.: (312) 777-3481_                    Telex No.: _______________ 

Answerback email:   ***@***

 

 

Key Operations Contacts:

 

Primary                                               Secondary

Booking Installation:        Booking Installation:    

Name:   _Curtis Jones        Name:   Kim Bowers  

Telephone No.:  412 ###-###-####      Telephone No.:  412 ###-###-####  

Fax No.:  412 ###-###-####                    Fax No.:  412 ###-###-####  

Telex No.: _______________    Telex No.:  ___________________   

Answerback email: ***@***  Answerback email:   ***@***   

 

 

Payment Information: 

(Payment) Wire Funds to:

Citizens Bank

ABA# 036-076-150

Beneficiary: COB Parti Purchased

ACCT# 4500000134

Ref: Clark Consulting, INC.

Commitment fees:

Charter One Bank, N.A.

ABA 241070417

BENEFICIARY: Commercial Loan Operations

BENEFICIARY NUMBER: 45-00000096

SPECIAL INSTRUCTIONS: Credit GL #369520 RC# 8007600

Other Instructions:  Reference:  Clark Consulting, Inc.