EXHIBIT 10.1
UNSECURED CREDIT AGREEMENT
between
CIBER, INC.
and
UMB BANK COLORADO
Dated as of December 1, 1998
UNSECURED CREDIT AGREEMENT
THIS AGREEMENT, dated as of the 1st day of December, 1998 is made by and
between CIBER, INC., a Delaware corporation (the "Borrower") and UMB Bank
Colorado, a Colorado banking corporation ("UMB").
WHEREAS, the Borrower has requested an aggregate credit facility of up
to $35,000,000 in revolving loans under this Unsecured Credit Agreement for
working capital purposes and acquisitions, with the portion thereof used for
acquisitions to be converted to term loans; and
WHEREAS, UMB is willing to extend such credit facility to the Borrower
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, the parties mutually agree as follows:
1. DEFINITIONS.
1.1 ACCOUNTING TERMS. All accounting and financial terms used
herein are used with the meanings such terms are given in accordance with
generally accepted accounting principles, except as may be otherwise
specifically provided in this Agreement.
1.2 DEFINED TERMS.
"AGREEMENT" means this Unsecured Credit Agreement, as
amended from time to time.
"AUTHORIZED OFFICER" means Mac X. Xxxxxxxxxxx, or such other
officer or employee of the Borrower whose authority to perform acts to be
performed only by an Authorized
Officer under this Agreement is evidenced to UMB by a certified copy of an
appropriate resolution of the Board of Directors of the Borrower.
"BUSINESS DAY" means any day other than a Saturday or Sunday
on which UMB is not authorized or required to close.
"CONSOLIDATED NET OPERATING INCOME" means the net operating
income of the Borrower and its Subsidiaries as shown on its annual audited
consolidated financial statements or on its interim unaudited consolidated
financial statements, all as prepared on a consistent basis in accordance
with generally accepted accounting principles; provided that, for purposes of
calculating Consolidated Net Operating Income for any period, (I) any Person
which was not a Consolidated Subsidiary at the beginning of such period but
was a Consolidated Subsidiary at the end of such period shall be deemed to
have been a Consolidated Subsidiary for the entire period and (II) any person
which was a Consolidated Subsidiary at the beginning of such period but was
not a Consolidated Subsidiary at the end of such period shall be deemed to
have not been a Consolidated Subsidiary for the entire period.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary
or other entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements as of such date.
"DEBT" of any Person means at any date, without duplication,
all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments
"DEBT SERVICE COVERAGE RATIO" means, as of the end of each
calendar quarter, the ratio of (i) Consolidated Net Operating Income plus
amortization allowances for the calendar
2
quarter of the Borrower and its Subsidiaries then most recently ended
multiplied by four (4) to (ii) the total of all current maturities of
long-term Debt of the Borrower and its Subsidiaries.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government, including, without limitation, any agency, body,
commission, court or department thereof, whether federal, state, local or
foreign.
"LIBOR RATE" means the three-month LIBOR as published from
time to time in the western edition of The Wall Street Journal, if such rate
is available.
"LOAN DOCUMENTS" means this Agreement, the Notes and any
other documents, instruments or writings now or hereafter executed and
delivered by or on behalf of the Borrower to UMB to further evidence or
govern the Loans.
"LOAN" and "LOANS" means advances pursuant to the Revolving
Credit or loans under the Term Credit.
"NOTES" OR "NOTES" means the Revolving Credit Notes or the
Term Credit Notes, as the context may require.
"PERSON" means and includes an individual, a partnership, a
joint venture, a corporation, a limited liability company, a trust, an
unincorporated organization and a Governmental Authority.
"PROPERTY" means (i) any property or asset of any kind,
real, personal or mixed, tangible or intangible, wherever situated and (ii)
any right, title or interest in or to any such property or asset.
3
"SUBSIDIARY" shall mean any corporation or other entity of
which capital stock or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions is at the time directly or indirectly owned by the
Borrower. For purposes hereof, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of management and
policies of corporations, partnerships or other business entities in which a
direct or indirect ownership interest exists, whether through the ownership
of voting securities, by contract or otherwise.
1.3 SINGULAR AND PLURAL. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the defined terms.
2. REVOLVING CREDIT.
2.1 THE REVOLVING CREDIT. Subject to all terms and conditions
hereof, UMB agrees to lend to the Borrower during the period of time
beginning on the date hereof and ending on December 1, 1999, such amount or
amounts as the Borrower may from time to time request to borrow up to an
aggregate outstanding principal amount owing to UMB of, but not exceeding at
any time, $35,000,000.00 less the principal amount of all Term Loans made
pursuant to Section 2.3 hereof (the "Revolving Credit"). The Borrower may
prepay all or any part of the outstanding obligations hereunder at any time
on one (1) business day's prior notice and without penalty. Any prepayment
of the outstanding amount of all Loans under the Revolving Credit shall
include accrued interest thereon. Upon any payment prior to December 1, 1999
of Loans under the Revolving Credit, UMB agrees to lend to the Borrower from
time to time during the period beginning upon the date of this Agreement and
ending on November 30, 1999, an aggregate principal amount not to exceed the
difference between (i) the then outstanding aggregate principal amount of the
Borrower's
4
aggregate indebtedness under the Revolving Credit, and (ii) the amount of the
Revolving Credit; provided, however, that UMB shall have no obligation to
make any such Loan if an Event of Default has occurred and is then
continuing, regardless of whether any required notice has been given.
At the time of execution hereof, an Authorized Officer of the Borrower
shall execute promissory note in the form of Exhibit B attached hereto and
incorporated herein by reference (the "Revolving Credit Note" which shall
include all extensions and renewals thereof and replacements therefor, if
any). The Revolving Credit Note shall be due and payable to UMB in full on
December 1, 1999. As the Borrower desires to obtain Loans pursuant to the
Revolving Credit hereunder, it shall verbally give UMB notice of the
Borrower's intention to borrow pursuant to the Revolving Credit as early as
possible on or before the proposed date of borrowing. UMB may conclusively
rely on any such verbal request which shall have been received by it in good
faith from a Person reasonably believed to be an Authorized Officer. Upon
compliance with all conditions of lending stated in this Agreement applicable
to the Revolving Credit, UMB shall disburse the amount of the requested Loan
to the Borrower by causing the same to be deposited in the Borrower's account
number 7170565624 at UMB, and the Borrower hereby authorizes the
disbursement of borrowings under the Revolving Credit in such manner. All
borrowings and payments by the Borrower under the Revolving Credit shall be
recorded by UMB on its books and records and the principal amount outstanding
from time to time, plus interest payable thereon, shall be determined by
reference to the books and records of UMB. Such books and records shall be
rebuttably presumed to be correct as to such matters. In the event of any
conflict between the terms of the Revolving Credit Note executed hereunder
and the terms of this Agreement, the terms of the Revolving Credit Note shall
control. All Loans of the Borrower under the Revolving Credit shall be
reduced to zero by December 1, 1999.
5
2.2 MANDATORY PREPAYMENT OF REVOLVING CREDIT. In the event that
the maximum principal amount of Loans which is outstanding under the
Revolving Credit is at any time greater than the maximum amount which is then
authorized to be outstanding thereunder, the Borrower will immediately, upon
written notice from UMB, pay to UMB the difference between the outstanding
principal amount and the principal amount then authorized to be outstanding
thereunder plus all accrued interest thereon.
2.3 TERM CREDIT. If no Event of Default has occurred and is
continuing, regardless of whether any required notice has been given, and all
terms and conditions of this Agreement are then being complied with, UMB may,
in its sole discretion, at any time within six (6) months of the date of any
Loan under the Revolving Credit all of the proceeds of which are used to
acquire another business entity or all or substantially all of the Property
of another business entity upon request of the Borrower allow the Borrower to
convert such Loan to a term loan (the "Term Credit"). At the time of the
making of each Loan under the Term Credit, an Authorized Officer of the
Borrower shall execute a promissory note in the form of Exhibit C attached
hereto and incorporated herein by reference (the "Term Credit Note" which
shall include all extensions and renewals thereof, if any). Each Term Credit
Note payable to UMB shall be payable by the Borrower to UMB in eleven (11)
equal consecutive monthly payments of principal and interest and a final
payment of principal and interest, such first eleven (11) payments to be
based upon a five (5) year amortization. Each Loan to the Borrower under the
Term Credit shall mature and be payable in full one year from the date of the
Term Credit Note evidencing such Loan.
The amount of the Revolving Credit shall be automatically and
permanently reduced by the principal amount of each Term Credit Note as of
the date of each such Note.
6
The Borrower may prepay all or any part of the obligations under any
Term Credit Note at any time, upon one (1) day's prior notice and without
penalty. Any prepayment of the full amount of any Term Credit Note shall
include accrued interest thereon. Any prepayment of less than the full
amount of any Term Credit Note shall be first applied on the last maturing
installment or installments of principal. No prepayments of principal on any
Term Credit Note may be reborrowed by the Borrower. In the event of any
conflict between the terms of any Term Credit Note and the terms of this
Agreement, the terms of such Term Credit Note shall control.
3. INTEREST/FEES.
3.1 INTEREST RATE. Each Loan under the Revolving Credit and
under the Term Credit shall bear interest, on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate equal to the LIBOR plus 200 basis points. The LIBOR shall be
initially determined for all Loans under the Revolving Credit and for each
Loan under the Term Credit, as of the Business Day immediately preceding the
initial Loan under the Revolving Credit and for each Loan under the Term
Credit, as the case may be, and thereafter for all loans under the Revolving
Credit and for each Term Credit Note as of the first (1st) day of each
December, March, June and September of each year, such rate so determined to
be fixed through such initial determination period and during each three (3)
month determination period thereafter. Interest on the Revolving Credit Note
shall be payable monthly on the first (1st) business day of each calendar
month. Interest on each Term Credit Note shall be payable as provided in
such Note.
3.2 CALCULATION OF INTEREST. Interest shall be computed on the
basis of days elapsed and assuming a 360-day year.
7
3.3 CREDIT COMMITMENT FEE. The Borrower shall pay to UMB
commencing on December 31, 1998, and continuing on the last day of each
March, June, September and December thereafter, so long as the Revolving
Credit is available, a commitment fee equal to .225%, on an annualized basis,
of the average daily unused portion of the first Fifteen Million and no/100
Dollars ($15,000,000) of the Revolving Credit during the immediately
preceding three (3) month period ending March 31, June 30, September 30 or
December 31 or any shorter period in the case of the first period or in the
event of the full termination of the Revolving Credit (the "Commitment Fee
Periods"). Effective as of the relevant payment date, the obligation to pay
the commitment fee shall be an absolute obligation of the Borrower, not
subject to cancellation or reduction for any reason, including, without
limitation, termination, in whole or in part, of the Revolving Credit, and,
once paid, the commitment fee shall be non-refundable; provided, however, to
the extent the Revolving Credit is reduced or terminated, then the fee
payable by the Borrower for the next succeeding Commitment Fee Periods shall
be accordingly reduced. UMB is hereby authorized by the Borrower to
automatically debit any of the Borrower's accounts with UMB for the payment
of any commitment fee due and payable hereunder. UMB shall give notice of
any such debit to the Borrower when any such debit is made. The Revolving
Credit commitment fee shall be computed on the basis of days elapsed and
assuming a 360-day year.
3.4 BUSINESS DAY. If any installment of principal or interest
on any Loan becomes due and payable on a day other than a Business Day, the
maturity of the installment of principal or interest shall be extended to the
next succeeding Business Day, and interest shall be payable during such
extension of maturity.
8
4. CONDITIONS TO MAKING LOANS. UMB's obligation to make any Loan
pursuant to this Agreement shall be subject to compliance by the Borrower
with all of its obligations hereunder and to the following specific
conditions being met by the Borrower at the time of the making of each
borrowing hereunder:
4.1 NO ADVERSE CHANGE IN BUSINESS. The Borrower shall not have
experienced any material adverse change in the conduct of its business,
operations, financial condition or otherwise since the date of this Agreement.
4.2 REPRESENTATIONS. The covenants, representations and
warranties made in Sections 5, 6 and 7 shall be true and correct as of the
date of each borrowing made hereunder, and an Authorized Officer of the
Borrower shall certify in writing to the same; provided, however, the
representations and warranties made with respect to financial statements
shall be deemed to refer to the most recent financial statements furnished to
UMB pursuant to Section 5.1 hereof.
4.3 REQUIRED CONSENTS AND APPROVALS. All approvals required
from the Board of Directors of the Borrower for the execution of this
Agreement, the borrowings contemplated hereunder and the execution of all
documents to be executed hereunder have been obtained and shall be in full
force and effect.
4.4 NO DEFAULTS.
(1) The Borrower shall be in compliance with all of the terms and
conditions hereof, and no Event of Default shall have occurred and be
continuing, regardless of whether any required notice has been given; and
9
(2) After giving effect to the requested borrowing and to each
borrowing that has been made and is then unpaid, the aggregate principal
amount of all outstanding Loans shall not exceed the sum of the Revolving
Credit then in effect.
4.5 APPLICATION CONSTITUTES REPRESENTATION. Each verbal
application by the Borrower for any borrowing shall be and constitute a
representation that the representations set forth in Sections 4.1 through 4.4
hereof are true and correct.
5. AFFIRMATIVE COVENANTS. The Borrower covenants and agrees from the
date hereof and until payment in full of all obligations incurred pursuant to
this Agreement, that it shall comply with each of the following provisions:
5.1 FINANCIAL AND BUSINESS INFORMATION. The Borrower will
furnish to UMB as soon as reasonably available after the end of each fiscal
year, but in no event later than 120 days following the end of its fiscal
year, its audited consolidated financial statements without qualification
including, at a minimum, a balance sheet, statements of income and
stockholders' equity and a statement of cash flows for such fiscal year, all
of which shall have been reported by independent certified public accountants
and which shall be in conformity with generally accepted accounting
principles consistently applied. The Borrower will furnish to UMB for each
calendar month as soon as reasonably available, its consolidated financial
statements for the immediately preceding calendar month, all such financial
statements to be certified by the Chief Financial Officer or Chief Accounting
Officer of the Borrower. Such monthly financial statements shall include a
balance sheet and statements of income and stockholders' equity.
Notwithstanding the foregoing, in the event applicable regulations of the
Securities and Exchange Commission prohibit the disclosure of monthly
financial statements the Borrower shall provide UMB with quarterly financial
statements in the same
10
form as would otherwise be required for monthly financial statements no later
than 45 days following the end of each calendar quarter of the Borrower. The
Borrower further agrees to at all times keep accurate and complete records of
its financial condition and of its assets, and it agrees that it will furnish
to UMB, at the Borrower's expense, from time to time such other and further
information regarding its and its Subsidiaries' financial condition as UMB
may reasonably request, including upon such request by UMB, an opportunity or
opportunities for employees or representatives of UMB to inspect, audit,
check, examine and copy books and records of the Borrower and its
Subsidiaries and meet with representatives of the Borrower to discuss the
business and financial condition of the Borrower and its Subsidiarie. Within
30 days after the end of each calendar month, the Borrower will furnish to
UMB a certificate of the Chief Financial Officer or the Chief Accounting
Officer of the Borrower in the form of Exhibit A attached hereto (i) setting
forth in reasonable detail the calculations required to establish whether the
Borrower was in compliance with the requirements of Sections 5.5, 5.6 and
5.7 on the date of such financial statements and (ii) stating, to the best of
his or her knowledge and belief after due inquiry and review of the
Borrower's books and records, whether there exists on the date of such
certificate any Event of Default, regardless of whether any required notice
has been given, and, if any Event of Default exists, setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto.
5.2 CORPORATE EXISTENCE AND MAINTENANCE OF PROPERTY. Subject to
the terms of Section 6.1 of this Agreement, the Borrower will, and will cause
its Subsidiaries to, do or cause to be done all things necessary or
appropriate to preserve and keep in full force and effect and in good
standing its and their corporate existence, its and their authority to
continue to do business and conduct its and their operations and its and
their rights and franchises now or hereafter possessed.
11
Subject to the terms of Section 6.1 of this Agreement, the Borrower will, and
will cause its Subsidiaries to, preserve and maintain its and their property
and assets used or useful in the conduct of its and their business and cause
the same to be kept in good repair, working order and condition.
5.3 TAXES, CHARGES AND CLAIMS. The Borrower will, and will
cause its Subsidiaries to, pay and discharge all taxes, assessments,
governmental charges or levies invoked upon it or them or its or their income
or profits or its or their property or assets and all indebtedness payable by
it or them before the same shall be deemed in default, as well as all lawful
claims for labor, materials and supplies which, if unpaid, might become a
lien or charge upon such property or assets or any part thereof, provided,
however, that the Borrower and its Subsidiaries shall not be required to pay
and discharge any such tax, assessment, charge, levy, claim or indebtedness
so long as the validity thereof shall be contested in good faith by an
appropriate proceeding, and the Borrower or any of its Subsidiaries, as the
case may be, shall have set aside on its books adequate reserves to cover the
contested item.
5.4 LOCATION OF RECORDS. The location of the Borrower's books
and records and the books and records of each of its Subsidiaries shall not
be changed by the Borrower or any of its Subsidiaries without giving written
notice of the address of the new location to UMB at least 30 days prior to
such a change.
5.5 LEVERAGE RATIO. At all times while any Loans are
outstanding under the Revolving Credit and/or the Term Credit hereunder, at
all times prior to December 1, 1999 and until all obligations of the Borrower
hereunder are paid in full the Borrower will maintain a ratio of total
consolidated liabilities to consolidated net worth of not more than 1.5 to 1.
12
5.6 NET WORTH. At all times while any Loans are outstanding
under the Revolving Credit and/or the Term Credit hereunder, at all times
prior to December 1, 1999 and until all obligations of the Borrower hereunder
are paid in full the Borrower will maintain a consolidated net worth of not
less than $90,000,000.
5.7 DEBT SERVICE COVERAGE RATIO. At all times while any Loans
are outstanding under the Revolving Credit and/or the Term Credit hereunder,
at all times prior to December 1, 1999 and until all obligations of the
Borrower hereunder are paid in full, the Borrower will maintain a debt
service coverage ratio of at least 1.5 to 1.0.
5.8 BANKING ACCOUNTS. The Borrower shall maintain all of its,
and shall cause all of its Subsidiaries to maintain all of their, primary
deposit accounts with UMB or any of its affiliates. UMB or its affiliates,
as the case may be, will in accordance with its or their Account Analysis
procedures give credit to the Borrower and its Subsidiaries for their account
balances, to the extent thereof, against charges for banking services
provided to the Borrower and its Subsidiaries; provided, however, to the
extent such account balances are insufficient to generate sufficient credits
during any calendar quarter to offset all charges for banking services
provided during such quarter the Borrower agrees to pay to UMB or its
affiliates, as the case may be, upon notice thereof the difference between
the total charges for banking services during such quarter and the amount of
account balance credits applied thereto.
6. NEGATIVE COVENANTS. The Borrower covenants and agrees from the
date hereof until payment in full of all obligations incurred pursuant to
this Agreement, that the Borrower shall comply with each of the following
provisions:
13
6.1 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower
will not (i) consolidate or merge with or into any other Person unless the
Borrower is the surviving corporation and immediately after and giving effect
thereto no Event of Default, regardless of whether any required notice has
been given, shall have occurred and be continuing or (ii) sell, lease or
otherwise transfer all or substantially all of its Properties to any other
Person. The Borrower will not permit any Subsidiary to consolidate with,
merge with or into or transfer all or substantially all of its Properties to
any Person other than the Borrower or a wholly-owned Consolidated Subsidiary.
The Borrower will not, and will not permit any Subsidiary to, sell, lease or
otherwise transfer any substantial part of its Properties to any other Person
(except, in the case of a Subsidiary, to the Borrower or a wholly-owned
Consolidated Subsidiary) except for cash in an amount not less than the fair
market value thereof.
6.2 LIMITATION ON DIVIDENDS. So long as no Event of Default or
a Default has occurred and is then continuing, regardless of whether any
required notice has been given, the Borrower may declare and pay dividends on
shares of its outstanding common stock.
6.3 LOANS AND GUARANTEES. The Borrower will not make any loans
or advances to any Person other than its Subsidiaries which in the aggregate
at any time exceed $500,000. The Borrower will not, nor will it permit any
of its Subsidiaries to, guarantee the obligations of or otherwise be or
become responsible for the obligations of any other Person other than a
Subsidiary to the extent the aggregate outstanding amount of all such
guarantees or responsibilities at any time exceeds $500,000 without the prior
written consent of UMB.
6.4 NO QUARTERLY LOSSES. The Borrower shall not incur a
consolidated net loss in any calendar quarter.
14
7. REPRESENTATIONS AND WARRANTIES. In order to induce UMB to extend
credit to the Borrower hereunder, the Borrower hereby represents and warrants
to UMB as of the date hereof and at all times hereafter while any obligations
are outstanding under this Agreement that:
7.1 CORPORATE EXISTENCE AND AUTHORITY. The Borrower is duly
incorporated and existing in good standing under the laws of the State of
Delaware and is qualified to do business as a foreign corporation in every
jurisdiction where the ownership of its Property or the nature of its
business requires qualification. Each Subsidiary of the Borrower is duly
incorporated in its respective state of incorporation and is existing in good
standing under the laws of such state and is qualified to do business as a
foreign corporation in every jurisdiction where the ownership of its
respective Property or the nature of its respective business requires
qualification. All ownership interests of the Borrower in such Subsidiaries
are held free and clear of all liens and encumbrances. The Borrower is duly
authorized to execute and deliver this Agreement, to borrow monies hereunder
and to execute and deliver Notes evidencing borrowings under this Agreement.
The execution and delivery of this Agreement and of all Notes evidencing
borrowings under this Agreement does not conflict with any provision of law,
any order of any court or Government Authority, the Articles of Incorporation
or By-laws of the Borrower or any agreement binding upon it.
7.2 TAX RETURNS. The Borrower has filed all tax returns which
are required to be filed and has paid, or made adequate provision for the
payment of, all taxes which have or may become due pursuant to said returns
or to assessments received by the Borrower. The Borrower knows of no
material additional assessments for which adequate reserves determined in
accordance with generally accepted accounting principles have not been
established. The Borrower has made adequate provision for the payment of all
current taxes.
15
7.3 FINANCIAL AND OTHER INFORMATION. All balance sheets and
statements of income and financial condition of the Borrower furnished by the
Borrower to UMB are materially correct and complete.
7.4 INSURANCE. The Borrower shall maintain, with financially
sound and reputable insurance companies, insurance against liability for
hazards and risks and liability to persons and property to the extent and in
the manner customary for companies in similar businesses similarly situated.
All policies of insurance maintained by the Borrower may contain reasonable
deductibles in amounts generally acceptable for companies similarly situated
in the Borrower's industry and the Borrower may self insure as to those risks
for which self insuring is reasonably acceptable for companies similarly
situated in the Borrower's industry.
8. EVENTS OF DEFAULT. "Event of Default" shall mean any one or more
of the following:
8.1 Failure of the Borrower to cure, within 5 business days
after receipt of written notice of the same, any default in the payment of
principal or of interest or any other amount payable under this Agreement on
any obligations of the Borrower incurred pursuant to the terms and conditions
of this Agreement when and as the same shall become due and payable, whether
at the maturity date stated on any Note evidencing such obligations or at a
date fixed for prepayment or by acceleration or otherwise.
8.2 Material breach by the Borrower of any covenant, obligation
or requirement contained herein or in any document required to be executed
pursuant hereto or failure of the Borrower, within 30 days after receipt of
written notice specifying the same, to materially perform any covenant,
obligation or requirement contained in this Agreement or in the other Loan
Documents.
16
8.3 Any representation or warranty made by the Borrower
hereunder being untrue in any material respect now or hereafter; or any
schedule, statement, report, notice, information or writing furnished by the
Borrower to UMB being untrue in any material respect as of the date the facts
set forth therein are stated or certified.
8.4 Failure of any of the Borrower or any Subsidiary to cure,
within 5 business days after receipt of written notice of the same, any
default in the payment of principal or of interest on any Debt of the
Borrower or any Subsidiary payable to UMB other than indebtedness incurred
hereunder or payable to any person or entity other than UMB in the amount of
$10,000,000 or more when and as the same shall become due and payable,
whether at the maturity date stated on any note evidencing such Debt or at a
date fixed for prepayment or by acceleration or otherwise.
8.5 The Borrower or any Subsidiary shall admit in writing their
inability to pay their debts as they mature; or the Borrower or any
Subsidiary shall make a general assignment for the benefit of creditors or
the Borrower or any Subsidiary, consents to, applies for or acquiesces in the
appointment of a trustee or receiver for any of them or for substantially all
of the Property of any of them; or the Borrower or any Subsidiary shall
suffer proceedings under any law relating to bankruptcy, insolvency or
reorganization or the release of debtors to be instituted by or against it,
and if contested, not dismissed or stayed within 60 days; the Borrower or any
Subsidiary shall suffer any writ of attachment or execution or any similar
process to be issued or levied against any material portion of its Property
which is not released, stayed, bonded or vacated within 60 days after its
issue or levy.
9. ACCELERATION. In the event of the occurrence of any one or more
Events of Default which are defined in paragraph 8 of this Agreement, and if
such Event of Default is not cured within
17
the allowed grace period and shall be continuing, UMB may declare the entire
principal amount of all Notes executed hereunder, together with accrued
interest thereon, to be immediately due and payable, and in the event of the
occurrence of any one or more such Events of Default and if such Event of
Default is continuing, UMB may terminate the Revolving Credit and the Term
Credit, all without further notice of any kind to the Borrower. Upon the
occurrence of an Event of Default, UMB may proceed to enforce payment of all
obligations of the Borrower to UMB under this Agreement and may exercise any
and all rights and remedies possessed by it.
10. GENERAL.
10.1 NOTICES. All notices hereunder shall be deemed to be
received 3 days after being deposited in the U.S. Mail addressed to either
party hereto at the following addresses or such other address as, from time
to time, either party identifies in a written notice to the other given
pursuant to this Section 10.1 at least thirty (30) days prior to the
effective date of such new address:
If to UMB:
UMB Bank Colorado
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxx X. Xxxx
If to the Borrower:
CIBER, Inc.
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 000000-0000
Attention: Mac X. Xxxxxxxxxxx.
18
10.2 NO WAIVERS. No failure or delay by UMB in exercising any
right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial modification or waiver of any provision of this
Agreement or of any Note executed hereunder or a single or partial exercise
of any such right, power or privilege preclude any other or further exercise
of such or of any other right, power or privilege.
10.3 OFFSETS. The Borrower specifically agrees that upon the
occurrence of an Event of Default regardless of whether any required notice
has been given, and if such Event of Default is continuing, UMB shall be
entitled to exercise a right of setoff at any time, irrespective of the
stated maturity of all Notes executed hereunder evidencing the obligations of
the Borrower to UMB, and irrespective of the fact that UMB has not given any
notice of such setoff.
10.4 COLORADO LAW. This Agreement and all Notes issued hereunder
shall be deemed to be contracts made under and shall be construed in
accordance with the laws of the state of Colorado.
10.5 SEVERABILITY. In the event any one or more of the
provisions of this Agreement or of any Note executed and delivered hereunder
shall be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
10.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but when taken
together shall constitute but one agreement.
10.7 TITLES AND HEADINGS. All titles and headings which are used
in this Agreement are used solely for the convenience of the parties hereto
and are not part of the agreement of the parties.
19
10.8 ASSIGNMENT. This Agreement and all provisions hereof shall
be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns; provided, however, that the Borrower
may not assign any rights hereunder without the prior written consent of UMB;
and provided further that the Borrower acknowledges and agrees that UMB may,
without notice, assign all or any part of their rights and obligations
hereunder to any other bank or lender, at their sole discretion, or may grant
one or more participation interests in any of the obligations of the Borrower
hereunder to any other lender.
10.9 EXPENSES. The Borrower agrees to pay all out of pocket
expenses, including reasonable attorneys fees, incurred by UMB in connection
with the preparation and amendment of this Agreement and, to the extent allow
by law, the enforcement of the rights of UMB in connection with this
Agreement and all Notes executed and delivered pursuant hereto and in
connection with any amendment, extension or renewal thereof, or waivers
thereunder.
10.10 WAIVER OF JURY TRIAL. IN THE EVENT OF ANY DISPUTE BETWEEN
THE BORROWER AND UMB RELATED IN ANY WAY TO THIS AGREEMENT WHICH BECOMES THE
SUBJECT OF ANY JUDICIAL PROCEEDING IN ANY COURT OF LAW, THE BORROWER AND UMB
HEREBY EACH WAIVE ANY RIGHT WHICH THEY MAY RESPECTIVELY HAVE TO A TRIAL BY
JURY.
10.11 INCORPORATION BY REFERENCE. Each of the Revolving Credit
Notes, the Term Credit Notes and the other Loan Documents are hereby made
subject to all of the terms, covenants, conditions, obligations, stipulations
and agreements contained in this Agreement to the same extent and effect as if
fully set forth therein, and this Agreement is hereby made subject to all of the
terms, covenants, conditions, obligations, stipulations and agreements contained
in the Revolving Credit
20
Notes, the Term Credit Notes and the other Loan Documents to the same extent
and effect as if fully set forth herein. All Exhibits hereto are
incorporated herein by reference. All representations and warranties of the
Borrower contained herein in Section 7 have been or will be relied upon by
UMB notwithstanding any investigation made by or on behalf of them.
10.12 INTEREST RATE LIMITATION. Notwithstanding any provisions of
this Agreement or any of the Revolving Credit Notes, the Term Credit Notes or
the Loan Documents, in no event shall the amount of interest paid or agreed
to be paid by the Borrower exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement, the Revolving
Credit Notes, the Term Credit Notes or any Loan Document at the time
performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, the obligations to be
fulfilled shall be reduced to an amount computed at the highest rate of
interest permissible under applicable law, and if for any reason whatsoever
UMB shall ever receive as interest an amount which would be deemed unlawful
under such applicable law, such interest shall be automatically applied to
the payment of principal of the amounts outstanding hereunder (whether or not
then due and payable) and not to the payment of interest, or shall be
refunded to the Borrower if such principal and all other obligations of the
Borrower to UMB have been paid in full.
11. PRIOR AGREEMENTS SUPERSEDED/COMPLETE AGREEMENT. This Agreement and
all documents referred to herein contain the entire agreement of the parties
hereto with respect to the subject matter hereof and supersede the terms and
conditions of all prior agreements of the parties pertaining to the subject
matter hereof, specifically including but not limited to that certain Credit
Agreement between the parties dated as of December 1, 1997 and all documents
referred to therein ; provided, however, this Agreement shall not supersede any
agreements of the Borrower set forth in any promissory notes outstanding as of
the date hereof which have been executed by the Borrower
21
and are not paid in full by use of the proceeds of any borrowing hereunder or
other funds available to the Borrower and in the event such promissory notes
are not so paid within thirty (30) days of the date hereof, all terms of such
promissory notes modified hereby shall be deemed to be in full force and
effect as if this Agreement had not been executed.
------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed and made this
Agreement effective as of the day and year first stated above.
CIBER, INC. UMB BANK COLORADO
By /s/ Mac X. Xxxxxxxxxxx By /s/ Xxx X. Xxxx
--------------------------- -----------------------
Mac X. Xxxxxxxxxxx Xxx X. Xxxx
President, Chief Operating Chairman and Chief
Officer and Treasurer Executive Officer
22
EXHIBIT "A" TO
UNSECURED CREDIT
AGREEMENT
BORROWER'S CERTIFICATE
Date:
-----------------
To: UMB Bank Colorado
From: CIBER, Inc. (for itself and its Subsidiaries)
Pursuant to the Unsecured Credit Agreement dated as of December 1, 1998
between CIBER, Inc. ("Borrower") and UMB Bank Colorado (the "Bank") and all
amendments therein, if any (the "Agreement"), Borrower hereby certifies to
the following as of the date first stated above:
Financial Covenants COMPLIANCE
------------------- -----------------------
ACTUAL YES NO
------ ----- -----
1. Consolidated Net Worth must
exceed $90,000,000 at all times.
2. Leverage Ratio must not exceed 1.5:1.0
at all times.
3. Debt Service Coverage Ratio (as of the end
of the most recent calendar quarter) must
be at least 1.5:1.0.
As used herein, all terms have the same meaning as that stated in the
Agreement and Notes executed pursuant thereto.
BORROWER IS NOT IN DEFAULT OR IN BREACH OF ANY OF ITS OBLIGATIONS UNDER THE
AGREEMENT, ANY NOTES EXECUTED PURSUANT THERETO OR ON ANY OTHER LIABILITY TO
BANK.
CIBER, INC.
By:
---------------------
Title:
------------------
Date:
-------------------
