UNSECURED CREDIT AGREEMENT
between
CIBER, INC.
and
UMB BANK COLORADO
Dated as of November 1, 1999
UNSECURED CREDIT AGREEMENT
THIS AGREEMENT, dated as of the 1st day of November, 1999 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 $50,000,000 through July 1, 2000, reducing to $35,000,000 through January
31, 2001, in revolving loans under this Unsecured Credit Agreement for
working capital purposes and acquisitions; 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
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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 30, 60 or 90 day LIBOR as
published from time to time in the western edition of The Wall Street
Journal, if such rate is available.
"LIEN" means, with respect to any asset, any lien,
charge, mortgage, security interest, pledge or other encumbrance of any kind
in respect to such asset or any preferential arrangement with respect to such
asset, excluding the interest of a vendor or lessor under any conditional
sale agreement, purchase money security agreement, capital lease or other
title retention agreement relating to such asset.
"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.
"NOTES" OR "NOTES" means the Revolving 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.
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"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, 2000, 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, $50,000,000 through July 1, 2000, reducing to $35,000,000 through
January 31, 2001 (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 on a FIFO basis. Any
prepayment of the outstanding amount of all Loans under the Revolving Credit
shall include accrued interest thereon. Upon any payment prior to January 31,
2001 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 January 31, 2001, an aggregate principal amount not to exceed
the difference between (i) the then outstanding aggregate principal amount of
the Borrower's
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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 A 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
January 31, 2001. 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 main
operating account 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 January 31, 2001.
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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.
3. INTEREST/FEES.
3.1 INTEREST RATE. Each Loan under the Revolving Credit and
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 30, 60 or 90 day LIBOR, at the Company's request at the time the advance
is made, plus 200 basis points. The LIBOR shall be initially determined for
all Loans under the Revolving Credit, as of the Business Day immediately
preceding the initial Loan under the Revolving Credit, as the case may be,
and thereafter for all loans under the Revolving Credit, such rate so
determined to be fixed for the 30, 60 of 90 day period. Interest on the
Revolving Credit Note shall be payable monthly on the first (1st) business
day of each calendar month.
3.2 CALCULATION OF INTEREST. Interest shall be computed on
the basis of days elapsed and assuming a 360-day year.
3.3 CREDIT COMMITMENT FEE. The Borrower shall pay to UMB
commencing on December 31, 1999, 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 Twenty-Five Million and
no/100 Dollars ($25,000,000), reducing back to the first Twenty Million and
no/100 Dollars ($20,000,000)
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on July 1, 2000, or at which time the Revolving Credit reduces back to Thirty
Five Million and no/100 Dollars ($35,000,000), 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.
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:
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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
(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.
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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. 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 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,
9
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 Subsidiaries.
Within 30 days after he 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 B 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. 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
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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 January 31, 2001, 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.
5.6 NET WORTH. At all times while any Loans are outstanding
under the Revolving Credit hereunder, at all times prior to January 31, 2001,
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 hereunder, at all times
prior to January 31, 2001, and until all obligations
11
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 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:
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
12
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 and Joint
Ventures 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.
6.5 LIMITATION ON LIENS. The Borrower will not, nor will it
permit, any Subsidiary to create, assume or suffer to exist any Lien on any
property now owned or hereafter acquired by it or any Subsidiary, except for:
(1) Liens in favor of UMB;
(2) Liens for taxes, assessments or other governmental
charges not delinquent or which the Borrower or any Subsidiary, as the
case may be, is contesting, in good faith and by appropriate proceedings,
and as to which it has established adequate reserves;
(3) Liens to secure obligations under xxxxxxx'x
compensation or under Social Security or similar laws or under
unemployment insurance;
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(4) Mechanics', workmen's, materialmen's,
warehousemen's, carriers and other like Liens, arising in the ordinary
course of business with respect to obligations (i) which are not due or
(ii) which it is contesting in good faith and by appropriate proceedings,
and as to which it has established adequate reserves;
(5) Liens arising pursuant to any order of attachment,
distraint or similar legal process arising in connection with court
proceedings, so long as the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith by appropriate proceedings.
(6) Liens with respect to any asset arising pursuant to
the interest of a vendor or lessor under any conditional sale agreement,
purchase money security agreement, capital lease or other title retention
agreement relating to such asset.
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
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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.
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.
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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.
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.
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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 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, 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
17
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.
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.
18
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.
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.
19
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 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 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 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 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
20
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, 1998 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
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.
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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 Executive Chairman and Chief
Officer and Secretary Executive Officer
21
EXHIBIT "B" 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 November 1, 1999
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:
----------------------------
TABLE OF CONTENTS
PAGE:
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 Accounting Terms. . . . . . . . . . . . . . . . . . . . . .1
1.2 Defined Terms . . . . . . . . . . . . . . . . . . . . . . .1
1.3 Singular and Plural . . . . . . . . . . . . . . . . . . . .4
2. The Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.1 The Revolving Credit. . . . . . . . . . . . . . . . . . . .4
2.2 Mandatory Prepayment of Revolving Credit. . . . . . . . . .6
3. Interest/Fees. . . . . . . . . . . . . . . . . . . . . . . . . . .6
3.1 Interest Rate . . . . . . . . . . . . . . . . . . . . . . .6
3.2 Calculation of Interest . . . . . . . . . . . . . . . . . .6
3.3 Credit Commitment Fee . . . . . . . . . . . . . . . . . . .6
3.4 Business Day. . . . . . . . . . . . . . . . . . . . . . . .7
4. Conditions to Making Loans . . . . . . . . . . . . . . . . . . . .7
4.1 No Adverse Change in Business . . . . . . . . . . . . . . .8
4.2 Representations . . . . . . . . . . . . . . . . . . . . . .8
4.3 Required Consents and Approvals . . . . . . . . . . . . . .8
4.4 No Defaults . . . . . . . . . . . . . . . . . . . . . . . .8
4.5 Application Constitutes Representation. . . . . . . . . . .9
5. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . .9
5.1 Financial and Business Information. . . . . . . . . . . . .9
5.2 Corporate Existence and Maintenance of Property . . . . . 10
5.3 Taxes, Charges and Claims . . . . . . . . . . . . . . . . 11
5.4 Location of Records and Property. . . . . . . . . . . . . 11
5.5 Leverage Ratio. . . . . . . . . . . . . . . . . . . . . . 11
5.6 Net Worth . . . . . . . . . . . . . . . . . . . . . . . . 11
5.7 Debt Service Coverage Ration . . . . . . . . . . . . . . 12
5.8 Banking Accounts. . . . . . . . . . . . . . . . . . . . . 12
6. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . 12
6.1 Consolidations, Mergers and Sales of Assets . . . . . . . 12
6.2 Limitation On Dividends . . . . . . . . . . . . . . . . . 13
6.3 Loans and Guarantees. . . . . . . . . . . . . . . . . . . 13
6.4 No Quarterly Losses . . . . . . . . . . . . . . . . . . . 13
6.5 Limitations on Liens. . . . . . . . . . . . . . . . . . . 13
7. Representations and Warranties . . . . . . . . . . . . . . . . . 14
7.1 Corporate Existence and Authority . . . . . . . . . . . . 14
7.2 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . 15
7.3 Financial and Other Information . . . . . . . . . . . . . 15
7.4 Insurance . . . . . . . . . . . . . . . . . . . . . . . . 15
8. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 16
9. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 17
10.2 No Waivers. . . . . . . . . . . . . . . . . . . . . . . . 18
10.3 Offsets . . . . . . . . . . . . . . . . . . . . . . . . . 18
10.4 Colorado Law. . . . . . . . . . . . . . . . . . . . . . . 18
10.5 Severability. . . . . . . . . . . . . . . . . . . . . . . 19
10.6 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 19
10.7 Titles and Headings . . . . . . . . . . . . . . . . . . . 19
10.8 Assignment. . . . . . . . . . . . . . . . . . . . . . . . 19
10.9 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . 19
10.10 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . 20
10.11 Incorporation by Reference. . . . . . . . . . . . . . . . 20
10.12 Interest Rate Limitation. . . . . . . . . . . . . . . . . 20
11. Prior Agreements Superseded/Complete Agreement . . . . . . . . . 21
Exhibits
A Note
B Borrower's Certificate
