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EXHIBIT 10.2
AMENDED AND RESTATED CREDIT AGREEMENT
By and Between
XXXXX FARGO BANK, N.A.,
as a Lender and as Agent Bank
XXXXXX TRUST AND SAVINGS BANK,
as a Lender,
KEYBANK NATIONAL ASSOCIATION,
as a Lender,
and
X.X. XXXXXXX & COMPANY,
as a Borrower,
X.X. XXXXXXX WORLD SOLUTIONS COMPANY,
as a Borrower,
X.X. XXXXXXX WORLD SOURCE COMPANY,
as a Borrower
July 25, 1997
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TABLE OF CONTENTS
Page
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. The Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Revolving Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Letter of Credit Accommodations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.3 Draws Constitute Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.4 Application for Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.5 Form of Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.6 Expiration Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.7 Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.8 Indemnification for Acts of Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.9 Syndication Parties to Receive a Copy of All Letters of Credit Issued by Agent . . . . . . . . . . . . . 3
4. Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Variable Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.2 Libor Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.3 Matrix Spread . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.4 Default Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.5 Minimum Principal Amount of Variable Rate Loans and Libor Loans . . . . . . . . . . . . . . . . . . . . . 4
4.6 360-Day Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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4.7 Additional Provisions for Libor Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.8 Agent Fee; Arrangement Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.9 Unused Line Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.2 Interest Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.3 Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4.1 Voluntary Prepayment of Variable Rate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4.2 Voluntary Prepayment of Libor Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4.3 Minimum Amount of Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.5 Mandatory Prepayment on Account of Commitment Amount . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.6 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.7 Prepaid Principal May Be Reborrowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.8 Reduction of Aggregate Commitment Amount by Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.9 Payments on Business Days; Date That Payments and Prepayments Are Deemed Received . . . . . . . . . . . . 9
5.10 Payments Free and Clear of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.11 Payments to be Made United States Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Conditions to Initial Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1.2 No Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1.3 Receipt of Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1.4 Advance Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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6.1.5 Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1.6 Organizational Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1.7 Evidence of Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1.8 Authorized Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1.9 Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1.10 Evidence of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6.1.11 Evidence of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1.12 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1.13 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1.14 Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1.15 Appointment of The Corporation Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2 Conditions to All Subsequent Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2.2 No Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2.3 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2.4 Advance Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3 Conditions to Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3.1 Application and Reimbursement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3.2 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.3.3 Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.4 Additional Disbursement Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.4.1 Aggregate Commitment Amount; LC Commitment Amount . . . . . . . . . . . . . . . . . . . . . . 12
6.4.2 Construction Commitment Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.4.3 Disbursement Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.4.4 Illegality of Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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6.5 Conditions to Performance Under This Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.5.1 Receipt of Executed Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.5.3 Organizational Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.5.4 Evidence of Corporate Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7. Borrowers' Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.1 Organization and Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.2 Corporate Authority, Due Authorization; Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.3 Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.5 No Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.6 Binding Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.7 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.8 Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.9 Financial Statements; No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.10 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.11 Licenses and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.12 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.12.1 Employee Benefit Plans; Multiemployer Plans . . . . . . . . . . . . . . . . . . . . . . . . 15
7.12.2 Pension Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.12.3 Compliance by Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.12.4 Annual Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.12.5 Prohibited Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.12.6 Bonding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.12.7 Civil/Criminal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.12.8 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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7.12.9 Compliance With Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.12.10 Multiple Employer Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.12.11 Plan Termination Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.12.12 Pension Plan Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.12.13 Reportable Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.12.14 Payment of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.12.15 Welfare Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.12.16 ESOP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.13 Capitalization of Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.14 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.15 Environmental Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.16 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.17 Regulations U and X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.18 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.19 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.20 Continuing Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8. Borrowers' Affirmative Covenants and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.1 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2 Reports and Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2.1 Annual Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2.2 Quarterly Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2.3 Additional Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2.4 Annual Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2.5 Notice of Default under Other Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2.6 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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8.2.7 Notice of Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2.8 Notice of Material Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2.9 Notification of Claims by Contractors and Materialmen . . . . . . . . . . . . . . . . . . . . 21
8.2.10 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2.11 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2.12 SEC Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.2.13 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.3 Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.4 Compliance with Legal Requirements and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.5 Compliance with Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.7 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.8 Title to Assets and Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.9 Payment of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.10 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.11 Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.12 Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.13 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.13.1 Quick Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.13.2 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.13.3 Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.15 Additional Costs of Maintaining Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.16 Reimbursement for Additional Capital Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.17 Hazardous Substances Indemnifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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8.18 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.19 Good Standing Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8.20 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9. Borrowers' Negative Covenants and Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.1 Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.2 Change in Business Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.3 Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.4 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.5 Recapitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.6 Dividends and Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.7 Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.8 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.9 Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.10 Loans, Advances and Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.11 Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.14 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.15 Profitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10. Events of Default/Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.1 Failure to Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.2 Failure to Perform Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.3 Failure to Perform Other Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.4 Bankruptcy/Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
10.5 False Representations or Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
vii
9
10.6 Default Under Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.7 Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.8 Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.9 Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.10 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11. Agency Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.1 Purchase and Sale of Syndication Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.2 Syndication Parties' Obligations to Remit Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.3 Notice and Timing of Initial Payment and Each Advance Payment . . . . . . . . . . . . . . . . . . . . 33
11.4 Syndication Party's Failure to Remit Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.5 Agency Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.6 Power and Authority of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.7 Duties of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.8 Agent's Resignation or Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.9 Consent Required for Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
11.10 Distribution of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11.11 Distribution of Certain Fees and Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
11.12 Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.13 Collateral Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.14 Amounts Required to be Returned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.15 Reports and Information to Syndication Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.16 Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.17 No Trust Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
11.18 Sharing of Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.19 Syndication Parties' Indemnification of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
viii
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11.20 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.21 Agent Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.22 Representations and Warranties of All Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.23 Representations and Warranties of Xxxxx Fargo . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.24 Syndication Parties' Independent Credit Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.25 No Joint Venture or Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.26 Purchase for Own Account/Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.27 Method of Making Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.28 Events of Syndication Default/Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.29 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
12. Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
12.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
12.2 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
12.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
12.3.1 Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
12.3.2 Syndication Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
12.3.3 Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
12.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.5 Colorado Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.6 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.7 Severability/Titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
12.9 Waiver of Jurisdiction, Service of Process, and Jury Trial . . . . . . . . . . . . . . . . . . . . . . 53
12.10 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
12.10.1 Binding Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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12.10.2 Governing Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
12.10.3 No Waiver, Preservation of Remedies, Multiple Parties . . . . . . . . . . . . . . . . . . . 55
12.10.4 Arbitration Powers and Qualifications; Awards . . . . . . . . . . . . . . . . . . . . . . . 55
12.10.5 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.11 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.12 Termination and Mutual Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
12.13 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.14 Amendment to Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.15 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.16 Notice to Syndication Parties and Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
12.17 Joint and Several Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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EXHIBITS
Exhibit 5.1 Form of Note
Exhibit 6.2.4 Form of Advance Request
Exhibit 7.3 Permitted Encumbrances and Condition of Assets
Exhibit 7.4 Litigation
Exhibit 7.8 Material Agreements
Exhibit 7.12 Employee Benefit Plans
Exhibit 7.13 Capitalization of Borrowers
Exhibit 7.14 Subsidiaries
Exhibit 7.15 Environmental Matters
Exhibit 7.16 Intellectual Property
Exhibit 9.11.1 Investment Policy
Exhibit 9.11.2 Existing Investments
Exhibit 11.3.1 Form of Initial Payment Notice
Exhibit 11.3.2 Form of Loan Notice of Advance
Exhibit 11.3.3 Form of LC Notice of Advance
Exhibit 11.27 Wire Instructions
Exhibit 12.1 Form of Compliance Certificate
Exhibit 12.1(a) Legal Description
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement ("Agreement") is entered
into as of the 25th day of July, 1997, by and between XXXXX FARGO BANK, N.A.,
successor by merger to Xxxxx Fargo Bank (Colorado), N.A. ("Xxxxx Fargo") for
its own benefit as a lender (in that capacity sometimes referred to as "Xxxxx
Fargo") and, as Agent Bank for the benefit of the present and future
Syndication Parties (in that capacity "Agent"), XXXXXX TRUST AND SAVINGS BANK
("Xxxxxx Bank") as a lender, KEYBANK NATIONAL ASSOCIATION, successor by merger
to Key Bank of Colorado ("Key Bank") as a lender, and X.X. XXXXXXX & COMPANY
("Holding Company"), as a borrower, X.X. XXXXXXX WORLD SOLUTIONS COMPANY
("World Solutions"), as a borrower, and X.X. XXXXXXX WORLD SOURCE COMPANY
("World Source"), (Holding Company, World Solutions and World Source shall be
collectively referred to herein as "Borrowers").
R E C I T A L S
A. The parties hereto entered into that certain Credit Agreement
dated as of August 1, 1996 ("Original Credit Agreement").
B. The parties hereto now desire to modify certain covenants set
forth in the Original Credit Agreement, to make certain other amendments to the
Original Credit Agreement and to set forth all such amendments and
modifications in an amendment and restatement of the Original Credit Agreement.
A G R E E M E N T
For good and valuable consideration, including the mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. Definitions. Certain capitalized terms are used in this
Agreement as specifically defined herein. These definitions are set forth or
referred to in Section 12.1 hereof.
2. The Loan. The Syndication Parties agree to make, in
accordance with their respective Syndication Shares, the following loan
("Loan") to Borrowers:
2.1 Revolving Loan. A revolving line of credit loan
("Revolving Loan") on the terms and conditions contained herein, with the
maximum amount thereof available to, or for the benefit of, Borrowers at any
time being limited to (a) $50,000,000.00 ("Aggregate Commitment Amount"), less
(b) the undrawn face amount of all Letters of Credit (as defined below) issued
hereunder. All funds advanced under the Revolving Loan may, to the extent
repaid, be reborrowed at any time prior to July 31, 1999 ("Termination Date"),
subject to the terms and conditions set forth herein.
2.2 Purpose. Borrowers agree to use the proceeds of the
Loan only for (a) working capital requirements and other general corporate
purposes in connection with its normal operations and (b) funding the
construction of the Phase I Headquarters Building ("Phase I Construction") and
the Phase II Headquarters Building ("Phase II
14
Construction"); provided, however that (i) the aggregate amount of Loan
proceeds used to fund the Phase I Construction shall not exceed $5,000,000.00
("Phase I Construction Commitment Amount") unless Borrowers have obtained, and
the Required Lenders have approved in their reasonable discretion, either a
commitment for the permanent financing of all Advances disbursed and to be
disbursed for the Phase I Construction or an agreement between Borrowers and a
third party which is not an affiliate of Borrowers for the purchase of the
Phase I Headquarters Building from Borrowers; and (ii) the aggregate amount of
Loan proceeds used to fund the Phase II Construction shall not exceed
$5,000,000.00 ("Phase II Construction Commitment Amount") unless Borrowers have
obtained, and the Required Lenders have approved in their reasonable
discretion, either a commitment for the permanent financing of all Advances
disbursed and to be disbursed for the Phase II Construction or an agreement
between Borrowers and a third party which is not an affiliate of Borrowers for
the purchase of the Phase II Headquarters Building from Borrowers.
3. Letter of Credit Accommodations. The Syndication Parties
agree to cause Agent to issue standby letters of credit (each, a "Letter of
Credit") for the account of Borrowers, or any of them, as follows:
3.1 Amount. The face amount of each such Letter of
Credit issued hereunder: (a) when added to the principal then outstanding under
the Notes shall not exceed the Aggregate Commitment Amount less the undrawn
face amount of all other Letters of Credit outstanding; and (b) when added to
the undrawn face amount of all other outstanding Letters of Credit, shall not
exceed $20,000,000.00 ("LC Commitment Amount").
3.2 Purpose. Letters of Credit may be requested for any
purpose set forth in Section 2.2 and for any other purpose approved by Agent in
its sole discretion.
3.3 Draws Constitute Advances. The amount of each draw
paid under each Letter of Credit (a) shall be deemed to be an Advance and shall
be added to the outstanding principal balance of the Notes on the date such
draw is honored, and (b) shall bear interest at the Variable Rate.
3.4 Application for Issuance of Letters of Credit. A
Borrower shall be required to complete Agent's standard application and
reimbursement agreement for each Letter of Credit to be issued hereunder. Each
reimbursement agreement shall be executed for the benefit of Agent and the
Syndication Parties, and Borrowers shall be obligated to pay to Agent for the
account of the Syndication Parties according to their respective Syndication
Shares, the amount payable under the applicable reimbursement agreement for a
draw under a Letter of Credit, either as a payment on the Principal Amount or
as a direct payment under the reimbursement agreement.
3.5 Form of Letter of Credit. Each Letter of Credit
shall be issued on Agent's standard form of standby letter of credit.
2
15
3.6 Expiration Date. No Letter of Credit may have an
expiration date which is more than twelve (12) months from the date of issuance
of such Letter of Credit, and in no event shall the expiration date of any
Letter of Credit be later than July 31, 2000.
3.7 Letter of Credit Fees. Borrowers shall pay Agent a
fee ("Letter of Credit Fee"), for the account of the Syndication Parties
according to their respective Syndication Shares, with respect to each Letter
of Credit issued or renewed pursuant to this Credit Agreement equal to the
greater of 80 basis points of the face amount of each Letter of Credit or
$250.00, each such Letter of Credit Fee to be paid upon the issuance or renewal
of each Letter of Credit. Borrowers shall pay Agent such other fees with
respect to each Letter of Credit, such as fees for amendment, transfer or
negotiation of a Letter of Credit, as are charged by Agent in accordance with
its then current fee policy in effect for letters of credit ("Letter of Credit
Fee Policy").
3.8 Indemnification for Acts of Beneficiary. Borrowers
assume all risks with respect to, and indemnify and holds Agent harmless from
and against any and all losses, claims, damages, liabilities, costs and
expenses which Agent may suffer or incur on account of, the acts or omissions
of the beneficiary of any Letter of Credit, and for such purposes, the
beneficiary shall be deemed Borrowers' agent; provided, however, that nothing
herein shall relieve Agent of responsibility for its gross negligence or
willful misconduct.
3.9 Syndication Parties to Receive a Copy of All Letters
of Credit Issued by Agent. Agent shall, promptly after issuance, send each
Syndication Party a copy of each Letter of Credit issued hereunder.
4. Interest and Fees.
4.1 Variable Rate. Except as provided in Section 4.2 of
this Agreement and subject to the requirements of Section 4.5 of this
Agreement, the unpaid principal balance owing on the Notes will bear interest
at the Base Rate as it may change from time to time modified by the addition
(or subtraction where it is a negative number) of the applicable Base Rate
Margin as determined pursuant to Section 4.3 hereof ("Variable Rate"). The
term "Base Rate" shall mean the greater of (a) the Federal Funds Rate plus 50
basis points or (b) the Prime Rate. Information on the Prime Rate currently in
effect is announced publicly by, and can be obtained by contacting, Agent at
its principal office in San Francisco, California. The Prime Rate is not
necessarily the best rate which Agent charges to its customers, and Agent and
the Syndication Parties may make loans at, above, or below the Prime Rate.
4.2 Libor Rate. From time to time, and so long as no
Event of Default has occurred and is continuing and subject to the requirements
of Section 4.5 of this Agreement, at the request of a Borrower ("Libor Rate
Request"), all or a portion of the outstanding principal balance under the
Notes may bear interest at the Base Libor Rate plus the applicable Libor Margin
as determined pursuant to Section 4.3 hereof ("Libor
3
16
Rate"). A Libor Rate Request must be submitted each time that a Borrower would
like either (a) all or a portion of a Variable Rate Loan to be converted to a
Libor Loan, or (b) a current Libor Loan to bear interest at the Libor Rate upon
expiration of the Interest Period for such Libor Loan. The Libor Rate Request
may be made to Agent orally or in writing on any Business Day (provided that if
such request is made orally, such Borrower must furnish written confirmation of
such request within one (1) Business Day) and is effective as of the second
Business Day after the Libor Rate Request is received if received by Agent no
later than 10:00 a.m. Pacific time or as of the third Business Day if received
later than 10:00 a.m. Pacific time. The Libor Rate Request must specify (a)
the principal amount of the requested Libor Loan, (b) the Interest Period
selected by such Borrower, and the date on which such Borrower requests that
such Interest Period commence ("Interest Period Commencement Date"). Following
the expiration of the Interest Period for any Libor Loan, interest shall
automatically accrue on the principal amount thereof at the Variable Rate
until, and except to the extent, a Borrower requests and receives another Libor
Loan as provided in this Section.
4.3 Matrix Spread. The applicable Base Rate Margin and
Libor Margin will be determined as provided in the Original Credit Agreement
until July 25, 1997. As of such date, the applicable Base Rate Margin and
Libor Margin will be re-set, effective on the first day of the month commencing
after the month in which Agent receives Borrowers' financial statements for
Borrowers' most recently completed Fiscal Quarter, based upon the Leverage
Ratio for such most recently completed Fiscal Quarter determined in accordance
with the following table:
Leverage Ratio Libor Margin Base Rate Margin
less than or equal to 1.00 75 basis points -25 basis points
less than or equal to 1.25 greater than 1.00 100 basis points 0 basis points
less than or equal to 1.50 greater than 1.25 125 basis points 0 basis points
less than or equal to 2.00 greater than 1.50 150 basis points 25 basis points
greater than 2.00 175 basis points 50 basis points
4.4 Default Interest Rate. Upon the occurrence of the
Maturity Date or an Event of Default, the unpaid balance of principal and
accrued interest on the Notes shall bear interest at the Default Interest Rate
from and after the due date for the payment, or on the date of maturity or
acceleration, as the case may be.
4.5 Minimum Principal Amount of Variable Rate Loans and
Libor Loans. Each Variable Rate Loan shall be for a minimum principal amount
of $100,000.00 and shall be a multiple of $50,000.00. Each Libor Loan shall be
for a minimum principal amount of $500,000.00 and shall be a multiple of
$100,000.00.
4.6 360-Day Year. Interest on the Notes shall be
converted from an annual rate to a daily rate on the basis of a 360-day year
and applied to the actual number of days elapsed.
4
17
4.7 Additional Provisions for Libor Loans.
4.7.1 If (a) Agent at any time shall determine that
for any reason adequate and reasonable means do not exist for ascertaining the
Base Libor Rate, or (b) if any Syndication Party shall advise Agent that the
Base Libor Rate does not adequately and fairly reflect the cost to such
Syndication Party of funding its Syndication Share of any Libor Loan, then
Agent shall promptly give notice thereof to Borrowers. If such notice is given
and until such notice has been withdrawn by Agent, then (a) no new Libor Loan
may be requested by any Borrower, and (b) any portion of the outstanding
principal balance hereof which bears interest determined in relation to the
Base Libor Rate, shall, subsequent to the end of the Interest Period applicable
thereto, bear interest at the Variable Rate.
4.7.2 If any law, treaty, rule, regulation or
determination of a court or governmental authority or any change therein or in
the interpretation or application thereof (each, a "Change in Law") shall make
it unlawful for any of the Syndication Parties to (a) advance its Syndication
Share of any Libor Loan or (b) maintain its Syndication Share of all or any
portion of the Libor Loans, each such Syndication Party shall promptly, by
telephone or facsimile, notify Agent thereof, and of the reasons therefor and
Agent shall promptly notify Borrowers thereof and if the notice from such
Syndication Party is in writing, Agent shall provide a copy of such notice to
Borrowers. In the former event, any obligation of any such Syndication Party
to make available its Syndication Share of any future Libor Loan shall
immediately be canceled, and in the latter event, any such unlawful Libor Loans
or portions thereof then outstanding shall be converted, at the option of such
Syndication Party, to a Variable Rate Loan; provided, however, that if any such
Change in Law shall permit the Libor Rate to remain in effect until the
expiration of the Interest Period applicable to any such unlawful Libor Loan,
then such Libor Loan shall continue in effect until the expiration of such
Interest Period. Upon the occurrence of any of the foregoing events, Borrowers
shall pay to Agent immediately upon demand such amounts as may be necessary to
compensate any such Syndication Party for any fines, fees, charges, penalties
or other costs incurred or payable by such Syndication Party as a result
thereof and which are attributable to any Libor Loan made available to
Borrowers hereunder, and any reasonable allocation made by any such Syndication
Party among its operations shall be conclusive and binding upon Borrowers
absent manifest error.
4.7.3 If any Change in Law or compliance by any
Syndication Party with any request or directive (whether or not having the
force of law) from any central bank or other governmental authority shall:
(a) subject such Syndication Party to any tax,
duty or other charge with respect to any Libor Loan, or change the basis of
taxation of payments to such Syndication Party of principal, interest, fees or
any other amount payable hereunder (except for changes in the rate of tax on
the overall net income of such Syndication Party); or
5
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(b) impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances or
loans by, or any other acquisition of funds by any office of any Syndication
Party; or
(c) impose on any Syndication Party any other
condition;
and the result of any of the foregoing is to increase the cost to such
Syndication Party of making, renewing or maintaining its Syndication Share of
any Libor Loan hereunder and/or to reduce any amount receivable by such
Syndication Party in connection therewith, then in any such case, Borrowers
shall pay to Agent for the account of such Syndication Party, within five
Business Days after receipt of written notice from Agent, such amounts as may
be necessary to compensate such Syndication Party for any additional costs
incurred by such Syndication Party and/or reductions in amounts received by
such Syndication Party which are attributable to such Libor Loans. In
determining which costs incurred by such Syndication Party and/or reductions in
amounts received by such Syndication Party are attributable to the Libor Rate
option made available to Borrowers hereunder, any reasonable allocation made by
such Syndication Party among its operations shall be conclusive and binding
upon Borrowers absent manifest error.
4.8 Agent Fee; Arrangement Fee. Borrowers shall pay
Agent the Arrangement Fee and Agent's Fee set forth in the Fee Letter.
4.9 Unused Line Fee. Borrowers shall pay to Agent, for
the account of the Syndication Parties according to their respective
Syndication Shares, for the period from the Closing Date to the Termination
Date ("Unused Line Fee") an amount equal to the average of the difference,
calculated daily during the measurement Fiscal Quarter, between (a) the
Aggregate Commitment Amount and (b) the outstanding principal owed on the Notes
plus the undrawn amount of all Letters of Credit, multiplied by the rate per
Fiscal Quarter determined to be the Commitment Fee based on Borrowers' Leverage
Ratio in accordance with the following table:
Leverage Ratio Commitment Fee
less than or equal to 1.25 22.5 basis points
less than or equal to 1.50 greater than 1.25 27.5 basis points
less than or equal to 2.00 greater than 1.50 32.5 basis points
greater than 2.00 37.5 basis points
The Commitment Fee will be set as of August 1, 1996 based on the Leverage Ratio
calculated from Borrowers' financial statements for its Fiscal Quarter ending
April 30, 1996, and, thereafter, will be re-set, effective on the first day of
the month commencing after the month in which Agent receives Borrowers'
financial statements for Borrowers' most recently completed Fiscal Quarter
(each an "Unused Commitment Fee Reset Date") based upon the Leverage Ratio for
such most recently completed Fiscal Quarter. The Unused Line Fee shall be
calculated on the basis of a 360-day year and the actual number of days
elapsed, and shall be payable in arrears on each of August 5, November 5,
February 5, and May 5 for the preceding Fiscal Quarter and on the Maturity
Date.
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5. Payments.
5.1 Notes. Each Syndication Party's Syndication Interest
in the Loan is evidenced by a promissory note, executed in connection with the
Original Credit Agreement and dated August 1, 1996, payable to the order of
such Syndication Party in the face amount equal to such Syndication Party's
Maximum Syndication Amount in the form attached hereto as Exhibit 5.1
(collectively, such promissory notes shall be referred to as the "Notes").
5.2 Interest Payments. Interest on Variable Rate Loans
shall be payable quarterly in arrears on the last day of each Fiscal Quarter.
Interest on Libor Loans shall be payable in arrears upon the maturity of the
applicable Interest Period; provided, however, that with respect to each Libor
Loan where the Interest Period is equal to six months, interest shall also be
payable on the date which is three months after the Interest Period
Commencement Date for such Libor Loan (the "Three Month Anniversary Date");
provided, however, that if the Three Month Anniversary Date would occur on a
day which is not a Business Day, then such Three Month Anniversary Date shall
be deemed to be the next succeeding Business Day so long as such Business Day
does not extend into the next calendar month in which case such Three Month
Anniversary Date shall be deemed to be the next preceding Business Day.
5.3 Principal Payments. Borrowers agree that the entire
outstanding principal balance on the Notes, together with accrued interest
thereon, shall be due and payable on the earlier of (a) the Termination Date,
or (b) such earlier date on which the Loan becomes due and payable as a result
of acceleration of the payment of the Notes on account of the occurrence of an
Event of Default ("Maturity Date").
5.4 Voluntary Prepayments. Borrowers shall have the
option to make the following prepayments:
5.4.1 Voluntary Prepayment of Variable Rate Loans.
Subject to the requirements of Subsection 5.4.3, Borrowers shall have the right
to prepay without penalty at any time all or any part of the outstanding
principal balance under the Variable Rate Loans.
5.4.2 Voluntary Prepayment of Libor Loans. Subject
to the requirements of Subsection 5.4.3, Borrowers shall have the right to
prepay all or any part of the outstanding principal balance of any Libor Loan,
provided that (a) Borrowers shall, at least two (2) Business Days prior to
making any such prepayment, deliver to Agent a written notice which sets forth
the amount of the prepayment, the date on which the prepayment will be made,
and the Libor Loan (or portion thereof) being prepaid; (b) Borrowers shall pay
all accrued and unpaid interest relating to the amount prepaid to the date of
prepayment; and (c) on the prepayment date, Borrowers shall pay the Funding
Losses, if any, resulting from the prepayment. Any written notice by Borrowers
of their election to prepay under this Subsection 5.4.2 shall be irrevocable.
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5.4.3 Minimum Amount of Voluntary Prepayments. All
voluntary prepayments (a) of Variable Rate Loans, must be in amounts no less
than $50,000.00 ("Minimum Variable Prepayment"), and (b) of Libor Loans, must
be in amounts no less than $1,000,000.00 and must be a multiple of $100,000.00
("Minimum Libor Prepayment"), (the Minimum Variable Prepayment and the Minimum
Libor Prepayment shall be collectively referred to as the "Minimum Prepayment
Requirement"); provided, however, that the Minimum Prepayment Requirement shall
not apply if the Principal Amount is less than $1,000,000.00.
5.5 Mandatory Prepayment on Account of Commitment Amount.
If at any time the amount of principal owing on the Notes exceeds the Aggregate
Commitment Amount, Borrowers shall pay the amount of such excess within one (1)
Business Day.
5.6 Funding Losses. In the event of:
(a) payment or prepayment by Borrowers of all or
any portion of any Libor Loan on a date other than the last day of the Interest
Period for such Libor Loan for any reason;
(b) conversion of all or any portion of any Libor
Loan to a Variable Rate Loan on a day other than the last day of the Interest
Period applicable to such Libor Loan for any reason; or
(c) any failure by Borrowers to borrow a Libor
Loan on the date specified in any Libor Rate Request;
Borrowers shall, upon Agent's request, pay directly to Agent for the account of
the Syndication Parties the amount of the Funding Losses resulting from the
occurrence of an event described above in (a), (b) or (c) of this Section.
"Funding Losses" shall be equal to the product of: (i) the excess, if any, of
the Libor Rate for the applicable Libor Loan over the then current interest
rate on a comparable principal amount of United States Treasury obligations
which have an unexpired term comparable to period of time between the date of
prepayment of, or failure to borrow, such Libor Loan and the expiration of the
Interest Period for the Libor Loan which is being prepaid or which Borrowers
fail to borrow, as applicable, (ii) the amount of such prepayment or the amount
which Borrowers fail to borrow, as applicable, and (iii) the number of years,
including any fractional portion of a year, constituting the remaining term of
the Interest Period for such Libor Loan.
5.7 Prepaid Principal May Be Reborrowed. Prepayments of
principal may be reborrowed in accordance with the provisions of this
Agreement.
5.8 Reduction of Aggregate Commitment Amount by
Borrowers. Borrowers shall have the right, from time to time, to reduce the
Aggregate Commitment Amount upon five (5) Business Days prior written notice to
Agent, provided that the requested reduction in such Aggregate Commitment
Amount (a) must be at least $5,000,000.00 and (b) shall not cause the Aggregate
Commitment Amount to be less
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than the amount of outstanding principal under the Notes plus the aggregate
undrawn face amount of all Letters of Credit then outstanding. Any reduction
of the Aggregate Commitment Amount pursuant to this Section shall be
irrevocable and shall result in a ratable reduction of each Syndication Party's
Maximum Syndication Amount.
5.9 Payments on Business Days; Date That Payments and
Prepayments Are Deemed Received. In the event any payment of principal or
interest is due on a date other than a Business Day, such payment shall be due
on the succeeding Business Day. Payments or prepayments received after 11:00
a.m. Pacific time on any Business Day will be deemed received on the next
succeeding Business Day.
5.10 Payments Free and Clear of Taxes. All payments by
Borrowers will be made free and clear of present and future taxes, withholding
or deductions (except for taxes imposed on the overall net income of each
Syndication Party).
5.11 Payments to be Made United States Dollars. Payments
on the Principal Amount shall be made in United States Dollars.
6. Conditions Precedent.
6.1 Conditions to Initial Advance. The Syndication
Parties' obligation to make the initial Advance under the Original Credit
Agreement was subject to satisfaction, in Agent's sole discretion, of the
following conditions precedent, that:
6.1.1 Representations and Warranties. The
representations and warranties of Borrowers contained in the Original Credit
Agreement were true and correct in all material respects on and as of the
Closing Date as though made on and as of such date.
6.1.2 No Event of Default. No Event of Default had
occurred and no event had occurred that with notice or lapse of time or both
would constitute an Event of Default ("Potential Default"), and no Event of
Default or Potential Default would result from the making of the Advance.
6.1.3 Receipt of Loan Documents. Agent received
duly executed originals of the Original Credit Agreement and the Notes.
6.1.4 Advance Request. Agent received a written
request for an Advance in the form attached to the Original Credit Agreement as
Exhibit 6.1.4 thereto signed by an Authorized Representative and containing the
certification of an Authorized Representative of each of Borrowers stating
that, after giving effect to the requested Advance, the amount of the Loan used
to fund the Phase I Construction did not exceed the Phase I Construction
Commitment Amount ("Phase I Construction Commitment Amount Certification").
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6.1.5 Legal Opinion. Agent received the opinion of
counsel for Borrowers in form and content reasonably acceptable to Agent and
addressed to the Syndication Parties.
6.1.6 Organizational Documents. Agent received:
(a) a certificate of good standing dated no more than thirty (30) days prior to
the Closing Date, for each of Borrowers, issued by the Secretary of State for
the state of such Borrower's incorporation and for each state where such
Borrower's operations require qualification or authorization to transact
business; (b) a copy of the articles of incorporation, and any amendments
thereto, of each Borrower certified by the Secretary of State of such
Borrower's state of incorporation; and (c) a copy of the bylaws, and any
amendments thereto, of each Borrower certified as true and complete by the
Secretary of such Borrower.
6.1.7 Evidence of Corporate Action. Agent
received: a copy of the documents evidencing all corporate action taken by each
Borrower to authorize the execution, delivery and performance of the Original
Credit Agreement and the Notes and naming the officer(s) of each Borrower who
are authorized to execute the Original Credit Agreement and the Notes on behalf
of such Borrower, certified to be true and correct by the Secretary of such
Borrower.
6.1.8 Authorized Representatives. Each Borrower
furnished Agent with a current list, and a specimen signature, of all officers
or other employees of such Borrower authorized to request an Advance or the
issuance of a Letter of Credit ("Authorized Representatives"), the names and
signatures of which were certified by the Secretary of such Borrower
("Certificate of Authorized Representatives"). Agent and the Syndication
Parties may conclusively rely on such Certificate of Authorized Representatives
until Agent shall have received a further Certificate of Authorized
Representatives from a Borrower amending or canceling the previous Certificate
of Authorized Representatives from such Borrower.
6.1.9 Officer's Certificate. Agent received a
certificate of the President, Chief Executive Officer or Chief Financial
Officer of each Borrower dated as of the Closing Date certifying that:
(a) the representations and warranties set forth
in Section 7 of the Original Credit Agreement were correct on and as of the
Closing Date as though made on and as of such date; and
(b) no Event of Default or Potential Default had
occurred and was continuing or would result from the making of the Loan.
6.1.10 Evidence of Insurance. Agent received
insurance certificates and such other evidence, in form and substance
satisfactory to Agent, of all insurance required to be maintained by Borrowers
under the Original Credit Agreement.
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6.1.11 Evidence of Consents. Agent received
evidence that all consents and approvals of governmental authorities and third
parties which were necessary for the execution, delivery and performance of the
Original Credit Agreement and the Notes and the transactions contemplated
thereby had been obtained and were in full force and effect.
6.1.12 Fees and Expenses. Agent received payment
from Borrowers of the fees specified in the Original Credit Agreement or the
Fee Letter as being payable on the Closing Date and all out-of-pocket costs and
expenses incurred by Agent (including, without limitation, the reasonable fees
and expenses of counsel retained by Agent) and the allocated costs of internal
counsel for Agent in connection with the preparation, negotiation, and
execution of the Original Credit Agreement and the Notes and the transactions
contemplated thereby, which fees and expenses Borrowers authorized Agent to pay
by disbursement from the Loan.
6.1.13 No Material Adverse Change. No material
adverse change had occurred in the condition, operations, or prospects of
Borrowers since April 30, 1996.
6.1.14 Other Documents. Borrowers provided or
caused to be provided to Agent such other documents, instruments and agreements
as Agent may have reasonably requested.
6.1.15 Appointment of The Corporation Company.
Agent have received evidence that each of Borrowers either (a) has a registered
agent for service of process in Colorado, or (b) that The Corporation Company,
located at 0000 Xxxxxxxx, Xxxxxx, Xxxxxxxx 00000, has accepted such party's
appointment to serve as its agent for service of process in accordance with
Section 12.9.2 of this Agreement.
6.2 Conditions to All Subsequent Advances. The
Syndication Parties' obligation to make all Advances after the initial Advance
is subject to satisfaction, in Agent's sole discretion, of each of the
following conditions precedent:
6.2.1 Representations and Warranties. The
representations and warranties of Borrowers contained in this Agreement shall
be true and correct in all material respects on and as of the date of such
Advance as though made on and as of such date.
6.2.2 No Event of Default. No Event of Default and
no Potential Default has occurred, and no Event of Default or Potential Default
would result from the making of the Advance.
6.2.3 No Material Adverse Change. No material
adverse change shall have occurred in the condition, operations, or prospects
of Borrowers.
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6.2.4 Advance Request. Agent shall have received
(including by facsimile transmission) a duly completed written request for an
Advance in the form attached hereto as Exhibit 6.2.4 ("Advance Request") signed
by an Authorized Representative and containing: (a) until such time as the
Phase I Construction is completed, a Phase I Construction Commitment Amount
Certification, and (b) upon commencement of the Phase II Construction, a
certification that the amount of the Loan used to fund the Phase II
Construction does not exceed the Phase II Construction Commitment Amount
("Phase II Construction Commitment Amount Certification"). With respect to
Variable Rate Loans, the Advance Request shall be effective on the Business Day
received if actually received by Agent before 10:00 a.m. Pacific time, and as
of the next Business Day if received by Agent after such time. With respect to
Libor Loans, the Advance Request shall be effective on second Business Day
after the Advance Request is received if actually received by Agent before
10:00 a.m. Pacific time, and as of the third Business Day if received by Agent
after such time. If the Advance Request is submitted by facsimile
transmission, the Borrower submitting such Advance Request shall deliver to
Agent, no later than the next Business Day, the originally executed Advance
Request. All Advance Requests submitted by a Borrower shall be irrevocable.
6.3 Conditions to Issuance of Letters of Credit. The
Syndication Parties' obligation to cause Agent to issue the Letters of Credit
and to fund and maintain their respective Syndication Shares of all draws under
the Letters of Credit, and Agent's obligation to issue any Letter of Credit, is
conditioned upon Borrowers' satisfaction of the following conditions in
addition to the other conditions set forth in Sections 6.1 and 6.2 hereof
(except for the conditions relating to the submission of Advance Requests set
forth in Sections 6.1.4 and 6.2.4):
6.3.1 Application and Reimbursement Agreement.
Borrowers must deliver to Agent, not later than three (3) Business Days
preceding the requested issue date for each Letter of Credit, Agent's standard
form of application and reimbursement agreement for standby letters of credit
which has been duly completed and signed by an Authorized Representative.
6.3.2 Fees. Borrowers shall have paid the Letter
of Credit Fee and any other fees payable to Agent pursuant to its Letter of
Credit Fee Policy.
6.3.3 Agent. Agent shall have approved in its sole
discretion the form of Letter of Credit.
6.4 Additional Disbursement Conditions. At no time and
in no event shall the Syndication Parties be obligated to make Advances or to
cause Agent to issue the Letters of Credit and to fund and maintain their
respective Syndication Shares of all draws under the Letters of Credit, as the
case may be:
6.4.1 Aggregate Commitment Amount; LC Commitment
Amount. In excess of an amount, which: (a) when added to all prior Advances
would exceed the
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Aggregate Commitment Amount, or (b) when added to the undrawn face amount of
all other outstanding Letters of Credit, would exceed the LC Commitment Amount.
6.4.2 Construction Commitment Amounts. If the
Advance is to be used for the purpose of funding the Phase I Construction, in
excess of an amount which, when added to all prior Advances made for the
purpose of funding the Phase I Construction, would exceed the Phase I
Construction Commitment Amount, unless Borrowers have obtained, and the
Required Lenders have approved in their reasonable discretion, either a
commitment for the permanent financing of all Advances disbursed and to be
disbursed for the Phase I Construction or an agreement between Borrowers and a
third party which is not an affiliate of Borrowers for the purchase of the
Phase I Headquarters Building from Borrowers. If the Advance is to be used for
the purpose of funding the Phase II Construction, in excess of an amount which,
when added to all prior Advances made for the purpose of funding the Phase II
Construction, would exceed the Phase II Construction Commitment Amount, unless
Borrowers have obtained, and the Required Lenders have approved in their
reasonable discretion, either a commitment for the permanent financing of all
Advances disbursed and to be disbursed for the Phase II Construction or an
agreement between Borrowers and a third party which is not an affiliate of
Borrowers for the purchase of the Phase II Headquarters Building from
Borrowers.
6.4.3 Disbursement Period. After the Termination
Date.
6.4.4 Illegality of Loan. After the enactment of
any law by any governmental authority having jurisdiction over any Syndication
Party which would make it unlawful in any respect for such Syndication Party to
make the Advance.
6.5 Conditions to Performance Under This Agreement. The
Syndication Parties' obligation to make the first Advance requested by a
Borrower after the date of this Agreement shall be subject to the fulfillment
of the following conditions:
6.5.1 Receipt of Executed Agreement. Agent shall
have received duly executed originals of this Agreement from all parties
hereto.
6.5.2 Organizational Documents. Agent shall have
received a certificate of the Secretary of each of Borrowers stating that no
amendments have been made to the articles of incorporation or bylaws of such
Borrower since August 1, 1996.
6.5.3 Evidence of Corporate Action. Agent shall
have received: a copy of the documents evidencing all corporate action taken by
each Borrower to authorize the execution, delivery and performance of this
Agreement and naming the officer(s) of each Borrower who are authorized to
execute this Agreement on behalf of such Borrower, certified to be true and
correct by the Secretary of such Borrower.
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7. Borrowers' Representations and Warranties.
Borrowers, to induce the Syndication Parties to make the Loan and to
enter into this Agreement, hereby represent and warrant as follows:
7.1 Organization and Existence. Each Borrower is a
corporation, duly organized, validly existing and in good standing under the
laws of the state of its incorporation and is duly qualified to do business and
is in good standing in each jurisdiction in which the transaction of its
business makes such qualification necessary.
7.2 Corporate Authority, Due Authorization; Consents.
Each Borrower has full power and authority to execute, deliver and perform the
Loan Documents, all of which have been duly authorized by all necessary
corporate action of such Borrower. All consents or approvals of any Person
which are necessary for, or are required as a condition of, the execution,
delivery and performance of the Loan Documents have been obtained.
7.3 Title to Properties. Each Borrower has good and
marketable title to all of its properties and assets, free and clear of all
liens, pledges, security interests, restrictions, encumbrances and defects in
title, except as set forth on Exhibit 7.3 hereto ("Permitted Encumbrances") and
except as otherwise permitted hereunder. Except as set forth on Exhibit 7.3,
all of the material properties and assets used in the conduct of the business
of each Borrower are in good repair, working order and condition (reasonable
wear and tear excepted) and suitable for use in the operation of the business
of such Borrower.
7.4 Litigation. Except for those matters set forth on
Exhibit 7.4, there are no pending legal or governmental actions, proceedings or
investigations to which any Borrower is a party or to which any property of any
Borrower is subject and, to the best of the knowledge of each Borrower, no such
actions or proceedings are threatened or contemplated by governmental
authorities or any other Person.
7.5 No Violations. The execution, delivery and
performance of the Loan Documents will not (a) violate any provision of the
articles of incorporation or bylaws of any Borrower, or any law, rule,
regulation, judgment, order or ruling of any court or governmental agency, or
(b) violate, conflict with, result in a breach of, constitute a default under,
or with the giving of notice or the expiration of time or both, constitute a
default under, any existing mortgage, indenture, lease, security agreement,
contract, note, instrument or any other agreements or documents binding on any
Borrower or affecting the properties of any Borrower.
7.6 Binding Agreement. Each of the Loan Documents is the
legal, valid and binding obligation of each Borrower, enforceable in accordance
with its terms, subject only to limitations on enforceability imposed by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally and by general principles of equity.
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7.7 Compliance with Laws. Each Borrower is in compliance
in all material respects with all federal, state, and local laws, rules,
regulations, ordinances, codes and orders, including without limitation all
laws relating to environmental matters.
7.8 Material Agreements. Exhibit 7.8 hereto accurately
and completely lists all agreements to which any Borrower is a party, the
breach or termination of which would have a Material Adverse Effect ("Material
Agreements"). All Material Agreements are legally valid and binding on the
parties thereto and are in full force and effect and neither Borrowers, nor, to
the knowledge of Borrowers, any other party thereto, is in default thereunder,
and no facts exist which with the giving of notice or the passage of time, or
both, would constitute such a default.
7.9 Financial Statements; No Material Adverse Change.
All consolidated financial statements, schedules, and other written documents
relating to the financial condition and results of operations of Borrowers
submitted by Borrowers to Agent prior to the execution of this Agreement,
including without limitation those as of April 30, 1996, fairly presented, as
of the date thereof, the financial condition and results of operations of
Borrowers for the period indicated, and were prepared in accordance with GAAP.
Since April 30, 1996, there has been no material adverse change in the
financial condition, results of operations, business or prospects of Borrowers.
7.10 Payment of Taxes. Borrowers have filed all required
federal, state and local tax returns and have paid all taxes shown thereon to
be due and no such tax returns are being audited as of the date of this
Agreement. Each Borrower has paid when due all other taxes, assessments or
impositions levied or assessed against such Borrower or the business or
properties of such Borrower.
7.11 Licenses and Approvals. Each Borrower has all
material governmental approvals, licenses and permits necessary or desirable to
enable each of them to conduct their respective business as presently being
conducted, and all such approvals, licenses and permits are in full force and
effect.
7.12 Employee Benefit Plans.
7.12.1 Employee Benefit Plans; Multiemployer
Plans. Exhibit 7.12 sets forth: (a) a true and complete list of each
"employee benefit plan," as such term is defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, and the
regulations thereunder ("ERISA"), that is or was maintained or contributed to
by any Borrower or any predecessor to any Borrower, or in which any Borrower or
any predecessor to any Borrower participates or participated (each a "Borrower
Benefit Plan"); and (b) a true and complete list of each employee stock
ownership plan ("ESOP") that is maintained by any Borrower under ERISA and the
Internal Revenue Code of 1986, as amended from time to time (the "Code"). No
Borrower, no predecessor to any Borrower and no member of any Borrower's
"controlled group" (as that term is defined in Section 414 of the Code) has, or
at any
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time has had, an obligation to contribute to any "multiemployer plans," as
defined in Section 3(37) of ERISA (each a "Multiemployer Plan") prior to the
Closing Date.
7.12.2 Pension Benefit Plans. To the knowledge of
Borrowers, each Borrower Benefit Plan that is an employee pension benefit plan
as defined in Section 3(2) of ERISA, and not exempted under Section 4(b) or
Section 201 of ERISA (each a "Borrower Pension Plan"), and the trust, if any,
forming a part thereof, meets, and since its inception has met, the
requirements for qualification under Section 401(a) of the Code, and is, and
since its inception has been, exempt from taxation under Section 501(a) of the
Code. Except as set forth in Exhibit 7.12, the Internal Revenue Service (the
"IRS") has issued a favorable determination letter with respect to the
qualification of each Borrower Pension Plan and the trust, if any, relating
thereto, and the IRS has not taken any action to revoke any such letter.
7.12.3 Compliance by Administrator. To the
knowledge of Borrowers, the administrator of each Borrower Benefit Plan has
complied in all material respects with the disclosure and reporting
requirements of Part I of Subtitle B of Title I of ERISA.
7.12.4 Annual Reports. To the knowledge of
Borrowers, those sections of all annual reports heretofore filed with the IRS,
the Department of Labor or the Pension Benefit Guaranty Corporation on behalf
of each Borrower Benefit Plan which were required to be certified were duly
certified without qualification by the accountants or actuaries of such plan.
7.12.5 Prohibited Transactions. To the knowledge
of Borrowers, with respect to each Borrower Benefit Plan, neither Borrowers nor
any Borrower Benefit Plan or a fiduciary thereof, is engaged or has engaged in
any transaction which is prohibited by Part 4 of Subtitle B of Title I of ERISA
or which might subject any such plan or related trust, or any trustee or
administrator thereof, to a tax or penalty imposed by Section 4975 of the Code
or Section 502(i) of ERISA or to liability under Section 409 of ERISA, any of
which would have a Material Adverse Effect.
7.12.6 Bonding. To the knowledge of Borrowers,
every fiduciary and every "plan official" (as defined in Section 412 of ERISA)
of each Borrower Benefit Plan is bonded to the extent required by Section 412
of ERISA.
7.12.7 Civil/Criminal Action. To the knowledge of
Borrowers, no civil or criminal action brought pursuant to Part V of Subtitle B
of Title I of ERISA is pending, or, to the knowledge of Borrowers, is
threatened against Borrowers, any Borrower Benefit Plan or any fiduciary
thereof with respect to any Borrower Benefit Plan.
7.12.8 Funding. (a) Each of the Borrower Pension
Plans is in compliance with the minimum funding standards of Section 412 of the
Code and Part 3 of Subtitle B of Title I of ERISA, to the extent applicable,
and (b) for each Borrower
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Pension Plan, no waivers of the minimum funding standards have been requested,
and no Borrower Pension Plan has any "accumulated funding deficiency" within
the meaning of Section 412 of the Code.
7.12.9 Compliance With Law. Borrowers are in
compliance in all material respects with, and each Borrower Benefit Plan has
been operated in all material respects in accordance with, the provisions of
such plan and in compliance in all material respects with, ERISA, the Code and
all other applicable law governing each such Borrower Benefit Plan, including
but not limited to rules and regulations promulgated by the Department of
Labor, the Pension Benefit Guaranty Corporation, and the Department of the
Treasury pursuant to the provisions of ERISA and the Code, except to the extent
any such failure would not have a Material Adverse Effect.
7.12.10 Multiple Employer Plan. Borrowers do not
participate in any "multiple employer plan" within the meaning of Section 413
of the Code.
7.12.11 Plan Termination Liability. Borrowers have
not incurred any liability under Title IV of ERISA arising in connection with
the termination of, or complete or partial withdrawal from, any Borrower
Benefit Plan, covered or previously covered by Title IV of ERISA, which
liability, or any portion thereof, could constitute a liability of Borrowers at
or after the Closing Date.
7.12.12 Pension Plan Termination. No proceedings
to terminate any Borrower Pension Plan have been instituted under Subtitle C of
Title IV of ERISA.
7.12.13 Reportable Event. No "reportable event"
within the meaning of Section 4043 of ERISA and the regulations thereunder
other than a reportable event for which notice or penalty has been waived by
regulation or otherwise has occurred with respect to any Borrower Pension Plan
that is a defined benefit plan. With respect to any Multiemployer Pension Plan
that is a defined benefit plan, to the knowledge of Borrowers, no such
"reportable event" has occurred which would materially and adversely affect
such plan, and no such plan is in reorganization within the meaning of Part 3
of Subtitle E of Title IV of ERISA.
7.12.14 Payment of Contributions. In respect of
each Borrower Benefit Plan, each Borrower has paid or will have paid as of the
Closing Date all contributions or premiums required to be made by it for all
plan years ending on or prior to the Closing Date and, for the plan year which
includes the Closing Date, contributions or premiums for the pro rata portion
of the plan year ending on the Closing Date. Except as set forth in Exhibit
7.12, all contributions paid or accrued by Borrowers on or prior to the Closing
Date in respect of any Borrower Pension Plan that is a defined benefit plan
will be based on the actuarial assumptions and methods used for the last plan
year ended on or before the Closing Date, or if there is no prior plan year for
any such plan, contributions shall be based upon reasonable actuarial
assumptions and methods.
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7.12.15 Welfare Benefit Plans. Borrowers do not
participate in a "multiple employer welfare arrangement" within the meaning of
Section 3(40) of ERISA. Borrowers do not maintain or contribute to a
"voluntary employees' beneficiary association" within the meaning of Section
501(a)(9) of the Code or a "welfare benefit fund" within the meaning of Section
419 of the Code, nor do Borrowers maintain or contribute to any employee
welfare benefit plan within the meaning of Section 3(1) of ERISA for the
benefit of retired or former employees (other than as required by Section 4980B
of the Code and Sections 601 through 608 of ERISA ("COBRA")). Borrowers have
complied in all material respects with the provisions of COBRA.
7.12.16 ESOP. In respect of each ESOP, each
Borrower has paid or will have paid as of the Closing Date all contributions or
premiums required to be made by it on or prior to the Closing Date. Except as
set forth on Exhibit 7.12, no ESOP has any indebtedness for borrowed money
("ESOP Indebtedness"). The estimated repurchase liability of Holding Company,
based on reasonable actuarial assumptions and methods, under any ESOP during
the Loan Period is set forth on Exhibit 7.12. Assuming that each Borrower
makes all required contributions in accordance with the terms of each ESOP,
each ESOP has or will have sufficient funds to make all scheduled payments on
its ESOP Indebtedness. Holding Company has sufficient funds to meet its
reasonably anticipated repurchase liability during the Loan Period.
7.13 Capitalization of Borrowers. The capitalization of
each of World Solutions and World Source (expressed both in terms of total
number of shares and percentage of each class of stock) is set forth on Exhibit
7.13. All of the issued and outstanding shares of capital stock of each of
World Solutions and World Source have been duly authorized and validly issued
and are fully paid and nonassessable. No authorized but unissued shares and no
treasury shares of World Solutions or World Source are subject to any option,
warrant, right to call or commitment of any kind or character except those
arising pursuant to the Plans. All of the issued and outstanding shares of
capital stock of Holding Company have been duly authorized and validly issued
and are fully paid and nonassessable.
7.14 Subsidiaries. All of the Subsidiaries, the
capitalization of each Subsidiary, and any Borrower's stock ownership therein
are set forth on Exhibit 7.14. All of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly issued
and are fully paid and nonassessable. No authorized but unissued shares and no
treasury shares of any Subsidiary are subject to any option, warrant, right to
call or commitment of any kind or character.
7.15 Environmental Compliance. Except as set forth on
Exhibit 7.15 hereto:
7.15.1 no Hazardous Substances are now located on
any real property owned or leased by any Borrower ("Premises"), and neither
Borrowers, nor, to the best of the knowledge of Borrowers, any other Person has
ever caused or permitted any Hazardous Substances to be placed, held, located,
or disposed of on, under, or at the
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Premises or any part thereof except in compliance at all times with the
Environmental Laws and the Environmental Regulations;
7.15.2 no part of the Premises or any improvements
located thereon is being used nor, to the best of the knowledge of Borrowers
after due inquiry, has been used at any previous time for the disposal,
storage, treatment, processing, or other handling of Hazardous Substances
except in compliance at all times with the Environmental Laws and the
Environmental Regulations, nor is any part of the Premises or any improvements
located thereon affected by any contamination from Hazardous Substances;
7.15.3 to the best of the knowledge of Borrowers,
no property adjoining the Premises is being used, nor has ever been used at any
previous time, for the disposal, storage, treatment, processing, or other
handling of Hazardous Substances except in compliance at all times with all
Environmental Laws and Environmental Regulations, nor is any other property
adjoining the Premises affected by contamination from Hazardous Substances;
7.15.4 to the best of the knowledge of Borrowers,
no investigation, administrative order, consent order and agreement,
litigation, or settlement with respect to Hazardous Substances or contamination
from Hazardous Substances is proposed, threatened, anticipated or in existence
with respect to the Premises; and
7.15.5 to the best of the knowledge of Borrowers,
the Premises are not currently on and have never been on any federal or state
"Superfund" or "Superlien" list.
7.16 Intellectual Property. Except as set forth in
Exhibit 7.16, each Borrower owns or has licenses to use all the patents,
trademarks, service marks, trade names, copyrights and non-governmental
licenses, and all rights with respect to the foregoing, necessary for the
conduct of their respective businesses as now conducted.
7.17 Regulations U and X. No portion of any Advance will
be used for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
7.18 Fiscal Year. Each fiscal year of each Borrower
begins on November 1 of each calendar year and ends on October 31 of each
calendar year.
7.19 Disclosure. None of Borrowers' representations or
warranties set forth in this Agreement or in any document or certificate
furnished pursuant to this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not misleading.
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7.20 Continuing Nature. All warranties and
representations of Borrowers herein are now and will continue to be true and
correct (except to the extent that any such warranty or representation states
that it relates to a particular date) until the Notes are repaid in full, all
covenants and agreements herein contained are observed and performed by
Borrowers, all Letters of Credit have expired, and the Syndication Parties have
no further obligation to make Advances or to cause Agent to issue Letters of
Credit.
8. Borrowers' Affirmative Covenants and Agreements.
Borrowers, to induce the Syndication Parties to make the Loan, hereby
covenant and agree as follows:
8.1 Books and Records. Borrowers shall at all times keep
proper books of record and account, in which correct and complete entries shall
be made of all its dealings, in accordance with GAAP.
8.2 Reports and Notices. Borrowers shall provide to
Agent the following reports, information and notices, and, upon receipt, Agent
shall promptly send a copy thereof to each Syndication Party:
8.2.1 Annual Financial Statements. As soon as
available, but in no event later than one hundred twenty (120) days after the
end of any fiscal year of Borrowers occurring during the term hereof, annual
financial statements of Borrowers on a consolidated basis, prepared in
accordance with GAAP consistently applied which shall: (a) be audited by
independent certified public accountants selected by Borrowers which are
reasonably acceptable to Agent; (b) be accompanied by a report of such
accountants containing an unqualified opinion reasonably acceptable to Agent;
(c) be accompanied by a Compliance Certificate; (d) be prepared in reasonable
detail and in comparative form; and (e) include a balance sheet, an income
statement, a statement of cash flows, and all notes and schedules relating
thereto.
8.2.2 Quarterly Financial Statements. As soon as
available but in no event more than forty- five (45) days after the end of each
of Borrowers' first three Fiscal Quarters in Borrowers' fiscal year, the
following financial statements of Borrowers, on a consolidated basis, prepared
in accordance with GAAP consistently applied: a balance sheet, an income
statement, and a statement of cash flows, which quarterly statements shall
include any and all notes and schedules thereto. Such quarterly financial
statements shall be accompanied by a Compliance Certificate.
8.2.3 Additional Information. With reasonable
promptness, such additional financial information or documentation as Agent or
any Syndication Party may reasonably request.
8.2.4 Annual Projections. As soon as available,
but in no event later than sixty (60) days after the end of any fiscal year of
Borrowers occurring during
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the term hereof, written projections of Borrowers' consolidated financial
statements for the following fiscal year, setting forth all material
assumptions utilized (and the basis therefor).
8.2.5 Notice of Default under Other Financing.
Notice in writing promptly after Borrowers, or any of them, obtain knowledge
thereof, of any default under any indenture, agreement or instrument to which
any Borrower is a party or by which it may be bound (limited, with respect to
agreements in connection with borrowed money, to those in which the principal
amount owing is $5,000,000.00 or more) and of any acceleration of indebtedness
caused thereby.
8.2.6 Notice of Default. As soon as the existence
of any Event of Default or Potential Default becomes known to any officer of
any of Borrowers, written notice of such Event of Default or Potential Default,
the nature and status thereof, and the action being taken or proposed to be
taken with respect thereto.
8.2.7 Notice of Actions. Notice in writing
promptly after Borrowers, or any of them, obtain knowledge thereof, of all
actions, suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
concerning Borrowers or any of them, which is material to the financial
condition, results of operation, business or prospects of Borrowers or any of
them.
8.2.8 Notice of Material Change. Promptly after
Borrowers, or any of them, obtain knowledge thereof, notice of any matter which
has resulted or would result in a Material Adverse Effect.
8.2.9 Notification of Claims by Contractors and
Materialmen. Borrowers shall immediately advise Agent in writing of any notice
received by Borrowers or any of them from any laborer, contractor,
subcontractor or materialman to the effect that such laborer, contractor,
subcontractor or materialman has not been paid when due for any labor or
materials furnished with respect to the Premises.
8.2.10 ERISA. Each Borrower shall immediately
provide Agent with a copy of (a) any notice received by such Borrower relating
to any violation of the provisions of the Code or ERISA asserted by the
Department of Labor, the Pension Benefit Guaranty Corporation or the Department
of the Treasury with respect to any Borrower Benefit Plan or ESOP; and (b) a
material amendment to any Plan.
8.2.11 Change of Control. Each Borrower shall
immediately advise Agent in writing of any planned or consummated Change of
Control.
8.2.12 SEC Statements. Each Borrower shall
promptly furnish to Agent copies of all material (excluding exhibits) which it
sends or will send its shareholders and which it files or will file with the
Securities and Exchange Commission ("SEC") or any national securities exchange,
including but not limited to, all registration
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statements, reports on Form 10Q, reports on Form 10-K, reports on Form 8K,
proxy material and annual reports to shareholders and any and all amendments
thereof or supplements thereto. Each Borrower shall promptly furnish to Agent
copies of all exhibits to the materials furnished to Agent pursuant to the
previous sentence of this Subsection 8.2.12 which are requested by Agent.
8.2.13 Hazardous Materials. Each Borrower shall
immediately advise Agent in writing of (a) any and all enforcement, cleanup,
remedial, removal, or other governmental or regulatory actions of which such
Borrower has knowledge which are instituted, completed, or threatened against
any Borrower pursuant to the Environmental Laws or Environmental Regulations;
and (b) all claims made or, to such Borrower's knowledge, threatened by any
third party against any Borrower relating to damage, contribution, cost
recovery compensation, loss, or injury resulting from any Hazardous Substances
(the matters set forth in clauses (a) and (b) above are hereinafter referred to
as "Hazardous Substances Claims").
8.3 Maintenance of Existence. Borrowers shall preserve
and maintain in full force and effect their respective legal existence in the
jurisdiction of its organization and shall qualify or remain qualified as a
foreign corporation in each jurisdiction in which the transaction of their
business makes such qualification necessary.
8.4 Compliance with Legal Requirements and Agreements.
Each Borrower shall comply with: (a) all laws, rules, regulations and orders
applicable to such Borrower or their respective businesses; and (b) all
agreements, indentures, mortgages, and other instruments to which such Borrower
is a party or by which such Borrower or any of their respective property is
bound; provided, however, that the failure of any Borrower to comply with this
Section in any instance shall not be a default hereunder unless such failure
would result in a Material Adverse Effect.
8.5 Compliance with Environmental Laws. Without limiting
the provisions of Section 8.4 of this Agreement, Borrowers shall comply in all
material respects with, and cause all Persons occupying or present on the
Premises to comply with, all Environmental Laws and Environmental Regulations.
8.6 Insurance. Borrowers shall keep their assets insured
at all times by an insurance carrier or carriers approved by Agent which have
an A rating by the current BEST Key Rating Guide, against all risks covered by
a special form policy (and including flood, earthquake and windstorm coverage)
in the amount of the full replacement cost (other than with respect to motor
vehicles) of the assets as well as liability, worker's compensation, business
interruption, boiler and machinery and such other insurance as Agent may
reasonably require, in amounts and with deductibles or maximum payouts
customarily carried by entities in similar lines of business. Borrowers shall
also maintain fidelity coverage (including employee dishonesty) on such
officers and employees and in such amounts as customarily carried by
corporations engaged in comparable businesses and comparably situated.
Certificates of such insurance satisfactory to Agent shall be delivered to and
held by Agent. All such insurance policies shall contain a provision
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requiring at least ten (10) days' notice to Agent prior to any cancellation for
non-payment of premiums and at least forty-five (45) days' notice to Agent of
cancellation for any other reason or of modification or non-renewal. Borrowers
agree to pay all premiums on such insurance as they become due, and will not
permit any condition to exist on or with respect to the insured assets which
would wholly or partially invalidate any insurance thereon. Borrowers shall
provide Agent with such evidence as Agent may request from time to time as to
the maintenance of all insurance required pursuant to this Section.
8.7 Taxes. Each Borrower shall cause to be paid when due
all taxes, assessments, and other governmental charges upon it, its income, its
sales, its properties, and federal and state taxes withheld from its employees'
earnings, unless such taxes, assessments, or other governmental charges shall
be contested in good faith by appropriate actions or legal proceedings and each
Borrower shall establish adequate reserves therefor in accordance with GAAP.
8.8 Title to Assets and Maintenance. Borrowers shall
defend and maintain title to all their respective material properties and
assets, free and clear of all liens, pledges, security interests, restrictions,
encumbrances and defects in title other than the Permitted Encumbrances and
those allowed pursuant to the terms of this Agreement. Borrowers shall keep
their respective assets, both real and personal, in good order and condition
consistent with industry practice and as required to maintain all equipment
warranties in full force and effect and shall make all necessary repairs,
replacements and improvements.
8.9 Payment of Liabilities. Each Borrower shall pay all
its liabilities as they become due unless (with the exception of the Loan) they
are contested in good faith by appropriate actions or legal proceedings and
such Borrower establishes reserves therefor in form and amount satisfactory to
Agent.
8.10 Inspection. Each Borrower shall permit Agent and the
Syndication Parties, and their respective agents, during normal business hours
or at such other times as the parties may agree, to examine such Borrower's
properties, books, and records, and to discuss such Borrower's affairs,
finances, operations, and accounts with its respective officers, directors,
employees, and independent certified public accountants.
8.11 Management. Each Borrower shall maintain its present
management or shall obtain management of comparable experience and expertise.
8.12 Licenses. Each Borrower shall preserve and maintain
in full force and effect all material rights, franchises, licenses, and
governmental approvals owned or possessed by it which are necessary or
desirable in view of its business and operations or the ownership of its
properties.
8.13 Financial Covenants. Borrowers shall maintain the
following financial covenants, measured on a consolidated basis, until the Loan
is indefeasibly paid
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in full, all Letters of Credit have expired, and the Syndication Parties have
no obligation to make Advances or to cause Agent to issue Letters of Credit:
8.13.1 Quick Ratio. Maintain at all times a Quick
Ratio of not less than 1.2 to 1.
8.13.2 Leverage Ratio. Maintain at all times a
Leverage Ratio of not more than 2.5 to 1.0.
8.13.3 Coverage Ratio. Maintain, for the twelve
(12) month period ending on the last day of each Fiscal Quarter, a Coverage
Ratio of not less than 1.75 to 1.0.
8.14 ERISA. Each Borrower shall: (a) comply in all
material respects with the Code and ERISA; (b) cause any Borrower Pension Plan
to initially qualify and continue to qualify under ERISA and the Code,
including, but not limited to obtaining a favorable determination letter with
respect to each Borrower Pension Plan; (c) prepare and deliver each material
report, statement or other document required by ERISA and the Code within the
period specified therein and conforming in form and substance to the provisions
thereof; (d) administer each Borrower Benefit Plan in all material respects in
accordance with the terms of such plan and with ERISA, the Code, and any other
applicable law; (e) make all contributions or premiums required to be made by
it in connection with any Borrower Benefit Plan or ESOP during the Loan Period,
and (f) upon Agent's request, promptly deliver to Agent a true, correct and
complete copy of all documents and agreements relating to the establishment of
each Borrower Pension Plan, Borrower Benefit Plan and ESOP, as well as the
latest available custodian or trustee reports, annual reports and the latest
actuarial reports for each Borrower Pension Plan, Borrower Benefit Plan and
ESOP.
8.15 Additional Costs of Maintaining Loan. Borrowers
shall pay to Agent from time to time such amounts as Agent may determine to be
necessary to compensate any Syndication Party for any costs incurred by it
which Agent determines, based on information presented to it by such
Syndication Party, are attributable to such Syndication Party's making or
maintaining any Advances hereunder or its obligation to make any such Advances,
or any reduction in any amount receivable by such Syndication Party under this
Agreement or the Note payable to it in respect to any such Advances or such
obligation (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), resulting from any change after the date of
this Agreement in United States federal, state, municipal, or foreign laws or
regulations (including Regulation D), or the adoption or making after such date
of any interpretations, directives, or requirements applying to a class of
banks including such Syndication Party of or under any United States federal,
state, municipal, or foreign laws or regulations (whether or not having the
force of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof ("Regulatory Change"), which: (a)
changes the basis of taxation of any amounts payable to such Syndication Party
under this Agreement or the Note payable to such Syndication
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Party in respect of any of such Advances (other than taxes imposed on the
overall net income of such Syndication Party); or (b) imposes or modifies any
reserve, special deposit, or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, such
Syndication Party; or (c) imposes any other condition affecting this Agreement
or the Note payable to such Syndication Party (or any of such extensions of
credit or liabilities). Agent will notify Borrowers of any event occurring
after the date of this Agreement which will entitle such Syndication Party to
compensation pursuant to this Section as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation. Agent
shall include with such notice, a certificate from such Syndication Party
setting forth in reasonable detail the calculation of the amount of such
compensation. Determinations by Agent for purposes of this Section of the
effect of any Regulatory Change on the costs of such Syndication Party of
making or maintaining Advances or on amounts receivable by such Syndication
Party in respect of Advances, and of the additional amounts required to
compensate such Syndication Party in respect of any Additional Costs, shall be
conclusive absent manifest error, provided that such determinations are made on
a reasonable basis.
8.16 Reimbursement for Additional Capital Requirements.
In the event that the introduction of or any change in (a) any law or
regulation, or (b) the judicial, administrative, or other governmental
interpretation of any law or regulation, or (c) compliance by any Syndication
Party or any corporation controlling any such Syndication Party with any
guideline or request from any governmental authority (whether or not having the
force of law) has the effect of requiring an increase in the amount of capital
required or expected to be maintained by such Syndication Party or any
corporation controlling such Syndication Party, and such Syndication Party
certifies that such increase is based in any part upon such Syndication Party's
obligations hereunder, and other similar obligations, Borrowers shall pay to
such Syndication Party such additional amount as shall be certified by such
Syndication Party to Agent and to Borrowers to be the net present value
(discounted at the Variable Rate) of (a) the amount by which such increase in
capital reduces the rate of return on capital which such Syndication Party
could have achieved over the period remaining until the Maturity Date but for
such introduction or change, (b) multiplied by such Syndication Party's
Syndication Share of the Aggregate Commitment. Agent will notify Borrowers of
any event occurring after the date of this Agreement that will entitle any such
Syndication Party to compensation pursuant to this Section as promptly as
practicable after it obtains knowledge thereof and of such Syndication Party's
determination to request such compensation. Agent shall include with such
notice, a certificate from such Syndication Party setting forth in reasonable
detail the calculation of the amount of such compensation. Determinations by
any Syndication Party for purposes of this Section of the effect of any
increase in the amount of capital required to be maintained by any such
Syndication Party and of the amount of compensation owed to any such
Syndication Party under this Section shall be conclusive absent manifest error,
provided that such determinations are made on a reasonable basis.
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8.17 Hazardous Substances Indemnifications. Borrowers
shall be solely responsible for and shall indemnify and hold harmless Agent and
the Syndication Parties, their respective directors, officers, employees,
agents, successors, and assigns, from and against any loss, damage, cost,
expense, or liability directly or indirectly arising out of or attributable to
the subject of any Hazardous Substances Claims.
8.18 Indemnification. Borrowers shall indemnify and hold
Agent and each Syndication Party and their respective directors, officers,
employees, agents, professional advisers and representatives, harmless from and
against any and all losses, claims, damages, liabilities, costs or expenses
imposed on, incurred by or asserted against any of them in connection with any
litigation, investigation, claim or proceeding commenced or threatened related
to the negotiation, preparation, execution, delivery, enforcement, performance
or administration of this Agreement, any other Credit Document, or any
undertaking or proceeding related to any of the transactions contemplated
hereby or any act, omission, event or transaction related or attendant thereto,
including without limitation, amounts paid in settlement, court costs, and the
fees and expenses of counsel. The foregoing indemnity shall survive the
repayment of the Loan and the termination of this Agreement.
8.19 Good Standing Certificates. Borrowers shall provide
to Agent, (a) on or before August 25, 1997, a certificate of good standing
dated no more than thirty (30) days prior to July 25, 1997, for each of
Borrowers, issued by the Secretary of State for the state of such Borrower's
incorporation, and (b) on or before September 30, 1997, a certificate of an
officer acceptable to Agent listing the locations of the offices of each
Borrower and a certificate of good standing from each state in which a Borrower
has an office stating that such Borrower is in good standing in such state.
8.20 Further Assurances. Each Borrower shall execute and
deliver such other and further instruments and shall perform such other and
further acts as in the opinion of Agent may be necessary or desirable to carry
out more effectively the purposes of this Agreement.
9. Borrowers' Negative Covenants and Agreements. Until the Notes
and all other amounts owing to the Syndication Parties under the Loan Documents
are indefeasibly paid in full and all Letters of Credit have expired or been
terminated and the Syndication Parties have no further obligation to make
Advances or to cause Agent to issue any further Letters of Credit hereunder,
Borrowers shall not:
9.1 Change in Business. Make any material changes to
their business as presently conducted or in any other way materially disrupt
the continuity of their existing operations.
9.2 Change in Business Form. Change their business form
from a corporation organized under Subchapter C of the Internal Revenue Code.
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9.3 Acquisitions. Acquire all or substantially all of
the assets or stock of any Person, except to the extent that: (a) the fair
market value of all such assets or stock acquired by Borrowers during the Loan
Period, when taken together with the fair market value of the assets acquired
by Borrowers as a result of all mergers and other combinations by Borrowers
pursuant to Subsection 9.4 of this Agreement and with the amount of all
investments made by Borrowers pursuant to Subsection 9.11.3 of this Agreement
occurring during the Loan Period, does not exceed that amount which is equal to
20% of Total Net Worth, (b) taking into account each such acquisition,
Borrowers remain in compliance with all of the financial covenants set forth in
Section 8.13 hereof, and (c) after giving effect to such acquisition, no Event
of Default would exist. For purposes of subparagraph (a) of this Subsection,
with respect to each such acquisition, Total Net Worth shall be calculated as
of the last day of the Fiscal Quarter ending immediately prior to the
anticipated closing date of such acquisition.
9.4 Mergers. Enter into any merger, consolidation, joint
venture, or other combination, except:
9.4.1 Holding Company shall be permitted to merge
into a Delaware corporation which, prior to the merger with Holding Company,
has no assets or liabilities, so long as: (a) such Delaware corporation is the
surviving corporation after such merger, (b) such surviving Delaware
corporation ("Survivor") assumes Holding Company's exact corporate name as a
result of such merger, (c) upon the consummation of such merger, Survivor
promptly delivers to Agent a true, correct and complete copy of all merger
documents and any amendments to Holding Company's articles of incorporation and
bylaws, (d) after the consummation of such merger, Survivor promptly informs
Agent of its federal taxpayer identification number and provides evidence of
its qualification to do business, under the name of Holding Company, in all
states in which Holding Company is so qualified immediately prior to such
merger; and
9.4.2 for mergers or consolidations in which a
Borrower is the surviving corporation where the following tests are or would be
met: (a) after giving effect to such merger or consolidation, no Event of
Default would exist, (b) based on pro forma financial statements for the
applicable Fiscal Quarter assuming the prior consolidation during such period
of Borrowers and the entity with which the merger or consolidation is proposed,
the financial covenants set forth in Section 8.13 hereof will all be met, and
(c) the fair market value of the assets acquired as a result of any such
merger, consolidation, joint venture or other combination, when viewed as an
asset acquisition, and, when taken together with all acquisitions by Borrowers
pursuant to Subsection 9.3 of this Agreement and with the amount of all
investments made by Borrowers pursuant to Subsection 9.11.3 of this Agreement
occurring during the Loan Period, does not exceed that amount which is equal to
20% of Total Net Worth. For purposes of subparagraph (c) of this Subsection,
with respect to each such merger, consolidation, joint venture, or other
combination, Total Net Worth shall be calculated as of the last day of the
Fiscal Quarter ending immediately prior to the anticipated closing date of such
transaction.
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9.5 Recapitalization. With respect to World Source and
World Solutions, redeem (and including any issuance of stock which has the
effect of a redemption), purchase, or retire any of its capital stock or grant
or issue any warrant, right, or option pertaining thereto, or other security
convertible into any of the foregoing, except that World Source and World
Solutions may redeem, purchase or retire their capital stock as required under
the terms of the Plans.
9.6 Dividends and Distributions. With respect to World
Source and World Solutions, declare or pay or set side for payment any
dividends upon any shares of their capital stock (except dividends payable in
shares of such stock) or purchase, redeem or retire, or make any other
distribution on any shares of their capital stock, except pursuant to the
Plans.
9.7 Sale of Assets. Dissolve or liquidate, sell, assign,
lease or transfer all or any material part of their assets or business;
provided, however, this prohibition shall not prevent each Borrower from taking
the following action:
9.7.1 sales of inventory in the ordinary course of
its business;
9.7.2 sales of surplus, damaged, worn out or
obsolete equipment or inventory for not less than fair market value;
9.7.3 sales or other dispositions of investments
permitted hereunder for not less than fair market value;
9.7.4 granting licenses of its patents, copyrights,
trademarks, trade names and service marks in the ordinary course of its
business;
9.7.5 sales or other dispositions of office
furnishings or office equipment in the ordinary course of business; or
9.7.6 other sales, leases, transfers and disposals
of assets, provided that the aggregate value of all such assets (based upon the
greater of the fair market or book value of such assets) so sold, leased,
transferred or otherwise disposed of in any twelve (12) month period does not
exceed five percent (5%) of such Borrower's assets measured immediately prior
to any such disposition.
9.8 Indebtedness. Incur additional indebtedness, except
that Borrowers may incur additional indebtedness (a) not to exceed
$10,000,000.00 in the aggregate during the Loan Period in the ordinary course
of Borrowers' business ("Permitted Indebtedness"), and (b) as a result of their
stock repurchase obligations under the Plans ("ESOP Repurchase Indebtedness").
9.9 Encumbrances. Create, incur, assume, or suffer to
exist, any pledge, mortgage, lien, charge, lien charge or other encumbrance on,
or any security interest in, any of their assets, except:
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9.9.1 liens for taxes or other governmental charges
which are not due or remain payable without penalty, or are being contested in
good faith by appropriate actions or proceedings; provided that such reserves
or other appropriate provisions satisfactory to Agent in its sole discretion
shall have been made for such taxes or other governmental charges;
9.9.2 deposits or pledges to secure workmen's
compensation, unemployment insurance, old age benefits or other social security
obligations or in connection with or to secure the performance of bids,
tenders, trade contracts or leases or to secure statutory obligations or surety
or appeal bonds securing liabilities not in excess of $5,000,000 in the
aggregate or other pledges or deposits of like nature and all in the ordinary
course of business;
9.9.3 mechanics', carriers', workmen's, repairmen's
or other like liens arising in the ordinary course of business in respect of
obligations not yet due or which are being contested in good faith and by
appropriate proceedings (except that no such liens are permitted with respect
to construction of the Phase I Headquarters Building and the Phase II
Headquarters Building in excess of $1,000,000.00 in the aggregate outstanding
at any one time);
9.9.4 easements, rights-of-way, restrictions and
other similar matters incidental to the ownership of property which do not in
the aggregate materially detract from the value of such property or assets or
materially impair their use in the operation of the business of any Borrower;
9.9.5 purchase money security interests in office
furnishings and office equipment acquired in the ordinary course of business,
provided that such security interests shall attach only to the furnishings and
equipment so purchased;
9.9.6 liens securing the Permitted Indebtedness
which are granted in the ordinary course of business; and
9.9.7 liens on the treasury shares of the capital
stock of Holding Company securing the ESOP Repurchase Indebtedness.
9.10 Loans, Advances and Guarantees. Make any loans or
advances to, or guarantee, endorse, or become a surety or otherwise become
liable, directly or contingently, upon the obligation of, any other Person
except for:
9.10.1 the endorsement of checks and other
instruments in the ordinary course of business;
9.10.2 extensions of trade credit made in the
ordinary course of business consistent with past customs and practice;
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9.10.3 loans to any Person in the ordinary course
of business of the lending Borrower, provided that the aggregate of all such
loans outstanding at any time during the Loan Period may not exceed $5,000,000;
9.10.4 guarantee by any Borrower of the
obligations of any other Borrower or of the wholly- owned Subsidiary of any
Borrower which guarantee is entered into in the ordinary course of business of
the guaranteeing Borrower; and
9.10.5 guarantees by any Borrower of the
obligations of any Person other than a Borrower or a wholly-owned Subsidiary of
any Borrower which guarantee is entered into in the ordinary course of business
of the guaranteeing Borrower, provided that the aggregate of all such amounts
guaranteed at any time during the Loan Period may not exceed $5,000,000.
9.11 Investment. Own, purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any Person, except that Borrowers may own, purchase or
acquire:
9.11.1 investments described in the Investment
Policy set forth on Exhibit 9.11.1;
9.11.2 investments existing on the date hereof
which are described on Exhibit 9.11.2; and
9.11.3 investments by any Borrower in entities
engaged in similar lines of business as Borrowers in an aggregate amount which,
when taken together with all acquisitions by Borrowers pursuant to Subsection
9.3 of this Agreement and all mergers, consolidations, joint ventures or other
combinations entered into by Borrowers pursuant to Subsection 9.4 of this
Agreement during the Loan Period, does not exceed that amount which is equal to
20% of Total Net Worth. For purposes of this Subsection 9.11.3, with respect
to each investment by a Borrower in an entity engaged in a similar line of
business as Borrowers, Total Net Worth shall be calculated as of the last day
of the Fiscal Quarter ending immediately prior to the making of such
investment.
9.12 Use of Proceeds. Use the proceeds of the Loan for
any purpose other than those authorized in Section 2.2 hereof.
9.13 ERISA. (a) Engage in or permit any transaction which
could result in a "prohibited transaction" (as such term is defined in Section
406 or Section 2003(a) of ERISA) or in the imposition of an excise tax pursuant
to Section 4975 of the Code; (b) engage in or permit any transaction or other
event which could result in a "reportable event" as such term is defined in
Section 4043 of ERISA for any Borrower Pension Plan; (c) fail to make full
payment when due of all amounts which, under the provisions of any Borrower
Benefit Plan or ESOP, a Borrower is required to pay as contributions thereto;
(d) permit to exist any "accumulated funding deficiency" (as such term is
defined in Section 302 of ERISA), whether or not waived, with respect to any
Borrower Pension
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Plan; (e) fail to make any payments to any "multiemployer plan" that a Borrower
may be required to make under any agreement relating to such "multiemployer
plan" or any law pertaining thereto; or (f) terminate any Borrower Pension Plan
or Borrower Benefit Plan in a manner which could result in the imposition of a
lien on any property of any Borrower pursuant to Section 4068 of ERISA.
Borrowers shall not permit the "present value" of vested and nonvested "accrued
benefits" under any Borrower Pension Plan to exceed the "current value" of the
assets of such Borrower Pension Plan allocable to such "accrued benefits". All
actuarial assumptions and methods used to make each determination required by
the preceding sentence shall be reasonable and shall comply with all
requirements of law. Borrowers shall not terminate any Borrower Pension Plan
so as to result in any liability to the Pension Benefit Guaranty Corporation.
As used in this Section, all terms enclosed in quotation marks shall have the
meanings set forth in ERISA.
9.14 Capital Expenditures. Incur Capital Expenditures,
for the period consisting of the most recently completed four Fiscal Quarters,
in excess of 70% of Free Cash Flow.
9.15 Profitability. On a consolidated basis for Borrowers
and the Subsidiaries, sustain (a) a net loss (as determined in accordance with
GAAP) for any two consecutive Fiscal Quarters, or (b) a net loss (as determined
in accordance with GAAP) for any fiscal year.
10. Events of Default/Remedies. The occurrence of any of the
followings events shall be deemed to constitute an "Event of Default" under
this Agreement:
10.1 Failure to Pay. Borrowers' failure to pay in full
when due, any payment or other amount required under the Notes, this Agreement
or any reimbursement agreement executed in connection with the issuance of a
Letter of Credit under this Agreement (collectively, the "Credit Documents")
when the same is due and payable.
10.2 Failure to Perform Certain Covenants. The failure of
Borrowers to fully perform any and all covenants and agreements set forth in
Sections 8.3, 8.13, 9.1 - 9.15 of this Agreement.
10.3 Failure to Perform Other Covenants. The failure of
Borrowers to fully perform any and all covenants and agreements contained in
this Agreement or in any of the other Credit Documents, other than a covenant
or agreement referred to referred to in any other subsection of this Section
10, and such failure continues unremedied for five (5) Business Days after the
occurrence thereof.
10.4 Bankruptcy/Insolvency. Borrowers or any of them
becomes insolvent or bankrupt, or files for bankruptcy, or shall makes an
assignment for the benefit of or a composition with creditors, or is unable, or
admits in writing its inability, to pay its debts as they mature; or a
bankruptcy, reorganization, arrangement, insolvency
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or similar proceeding for relief of financially distressed debtors is
instituted against any Borrower, and is not dismissed on appeal, within sixty
(60) days of such institution, or an order for relief is entered in any such
involuntary proceeding; or any Borrower petitions for, or there is appointed
for a substantial part of the assets or properties of any Borrower, a trustee,
receiver or liquidator, or any Borrower takes any action for the purposes of
effecting any of the foregoing.
10.5 False Representations or Warranties. If any
representation or warranty of Borrower or any of them contained herein, or in
any of the other Credit Documents, or in any financial statement or other
document provided to Agent or any Syndication Party in connection with the Loan
or pursuant to terms of any Credit Document, proves to have been false or
misleading in any material respect when made or furnished.
10.6 Default Under Other Indebtedness. Any Borrower is in
default with respect to any indebtedness for borrowed money, other than the
indebtedness of such Borrower under the Credit Documents, in the principal
amount of $5,000,000.00 or more incurred, assumed or guaranteed by it which
results in the acceleration of such indebtedness or which permits, or with the
giving of notice and/or the passage of time would permit, any holder or holders
of such indebtedness to accelerate the stated maturity thereof.
10.7 Judgment. The entry of one or more judgments in an
aggregate amount of $5,000,000.00 or greater against Borrowers which is not
stayed, discharged or paid within thirty (30) days after entry.
10.8 Dissolution. The dissolution, liquidation or
termination of existence of any Borrower.
10.9 Material Adverse Change. The occurrence of a
Material Adverse Effect with respect to any Borrower.
10.10 Remedies. Upon the occurrence of any Event of
Default as defined herein, Agent shall be entitled to exercise (and must
exercise if the Required Lenders so direct) the following remedies and all such
remedies are deemed to be cumulative and may be exercised individually or in
combination as appropriate: (a) to declare all amounts owing under the Notes
and any other Credit Documents to be immediately due and payable in full
(provided such declaration shall be deemed to have occurred automatically with
respect to any Event of Default under Subsection 10.4 hereof); (b) to pursue
all rights and remedies provided for in the Credit Documents, or by any
applicable law; (c) whether or not it exercises its rights under clause (a) or
(b) in this Subsection 10.10, to cease making Advances or issuing Letters of
Credit; and (d) to have a receiver appointed by a court of competent
jurisdiction, in order to manage, protect, and preserve the business of
Borrowers and to continue the operations of Borrowers. The exercise of any one
or more rights or remedies shall not be deemed a waiver of any other rights or
remedies.
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11. Agency Agreement.
11.1 Purchase and Sale of Syndication Interest. (a) Each
Syndication Party, severally but not jointly, hereby irrevocably agrees to fund
its Syndication Share of all Advances from time to time up to the Maturity Date
pursuant to the terms and conditions contained herein; provided that no
Syndication Party shall be required to fund an Advance in an amount such that
the aggregate principal balance owing to such Syndication Party after such
funding would be in excess of such Syndication Party's Maximum Syndication
Amount. Each Syndication Party's interest in the Advances ("Syndication
Interest") hereunder shall be without recourse to Agent or any other
Syndication Party and shall not be construed as a loan from any Syndication
Party to Agent or any other Syndication Party. Each Syndication Party
acknowledges that the Loan is a revolving credit until the Maturity Date, and
that, as a result, the amount of its Syndication Interest will fluctuate as
Borrowers repay and reborrow amounts under the Loan.
11.2 Syndication Parties' Obligations to Remit Funds.
Each Syndication Party agrees to remit the following amounts at the time and in
the manner provided in Section 11.3 hereof:
11.2.1 The amount of the Advance to be made by
Agent to Borrower on the Closing Date multiplied by its Syndication Share
("Initial Payment").
11.2.2 The Advance Amount as set forth in each
Notice of Advance multiplied by its Syndication Share ("Advance Payment") as
such Notices of Advance may be sent, in the manner provided in Section 11.3
hereof, from time to time for Advances to be made under the Loan on or prior to
the Termination Date, or draws made or to be made on a Letter of Credit on or
prior to July 31, 2000.
Provided however, the amount of any Advance Payment which a Syndication Party
would otherwise be required to tender hereunder shall be reduced as necessary
so that the aggregate principal owing to such Syndication Party at such time
(including such Advance Payment) does not exceed that Syndication Party's
Maximum Syndication Amount.
11.3 Notice and Timing of Initial Payment and Each Advance
Payment.
11.3.1 On the date on which Borrowers submit the
Advance Request required pursuant to Section 6.1.4 hereof, Agent shall provide
each Syndication Party with a notice in substantially the form attached hereto
as Exhibit 11.3.1 ("Initial Payment Notice") indicating, among other things,
the amount of the Advance to be made by Agent to Borrower on the Closing Date,
and the amount of the Syndication Party's Initial Payment. The amount of its
Initial Payment shall be remitted by each Syndication Party directly to Agent
on the Closing Date.
11.3.2 Prior to making an Advance to Borrower
under the Loan, Agent shall provide each Syndication Party with a notice in
substantially the form
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attached hereto as Exhibit 11.3.2 ("Loan Notice of Advance"), indicating, among
other things, the amount ("Loan Advance Amount") and Advance Date of the
Advance and the amount of the Syndication Party's Advance Payment. Each Loan
Notice of Advance shall be provided to the Syndication Parties on the same
Business Day that Agent receives an Advance Request from a Borrower. Each
Syndication Party shall remit its Advance Payment directly to Borrower, or, at
Agent's sole discretion, directly to Agent, on the date specified in the Loan
Notice of Advance which shall not be later than the Advance Date ("Syndication
Party Loan Payment Date").
11.3.3 Prior to, or promptly after, honoring a
draw under any Letter of Credit, Agent shall provide each Syndication Party
with a notice in substantially the form attached hereto as Exhibit 11.3.3 ("LC
Notice of Advance"), indicating, among other things, the amount of the draw
("LC Advance Amount"), the Letter of Credit number under which the draw is
being made, and the amount of the Syndication Party's Advance Payment. (The
Loan Notice of Advance and the LC Notice of Advance shall be referred to
collectively as "Notice of Advance," and the Loan Advance Amount and the LC
Advance Amount shall be referred to collectively as the "Advance Amount".)
Each Syndication Party shall remit such payment directly to Agent, on the date
specified in the LC Notice of Advance ("Syndication Party LC Payment Date")
(the Syndication Party Loan Payment Date and the Syndication Party LC Payment
Date shall be referred to collectively as the "Syndication Party Payment
Date").
11.4 Syndication Party's Failure to Remit Funds. If a
Syndication Party ("Delinquent Syndication Party") fails to remit its Initial
Payment as required in Sections 11.2 and 11.3 hereof, or fails to remit any
Advance Payment in full by 11:00 a.m. Pacific time on the Syndication Party
Payment Date (the unpaid amount of any such payment being hereinafter referred
to as the "Delinquent Amount"), in addition to any other remedies available
hereunder, any other Syndication Party or Syndication Parties may, but shall
not be obligated to, pay the Delinquent Amount (the Syndication Party or
Syndication Parties which advance such Delinquent Amount are referred to as the
"Contributing Syndication Parties"), in which case (a) the Delinquent Amount
which any Contributing Syndication Party pays shall not count as an Advance
Payment against the Maximum Syndication Amount of the Contributing Syndication
Party, and (b) the Delinquent Syndication Party shall be obligated to pay to
Agent, for the account of the Contributing Syndication Parties, interest on the
Delinquent Amount at a rate of interest equal to the rate of interest which
Borrowers are obligated to pay on the Delinquent Amount ("Delinquency
Interest") until the Delinquent Syndication Party remits the full Delinquent
Amount and remits all Delinquency Interest to Agent, which will distribute such
payments to the Contributing Syndication Parties (pro rata based on the amount
of the Delinquent Amount which each of them (if more than one) paid) on the
same Business Day as such payments are received by Agent if received no later
than 11:00 a.m. Pacific time or the next Business Day if received by Agent
thereafter. In addition, the Contributing Syndication Parties shall be
entitled to share, on the same pro rata basis, and Agent shall pay over to
them, for application against Delinquency Interest and the Delinquent Amount,
the Delinquent Syndication Party's Payment Distribution
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and any fee distributions made under Section 11.11 hereof until the Delinquent
Amount and all Delinquency Interest have been paid in full. In the event no
Syndication Party elects to pay the Delinquent Amount with respect to any
Advance Amount but Borrowers elect to receive such Advance Amount (less the
Delinquent Amount), the proportionate share of Payment Distributions to which
the Delinquent Syndication Party is entitled shall be adjusted to reflect its
failure to pay the Delinquent Amount. As between the Delinquent Syndication
Party and the Contributing Syndication Parties, the Delinquent Syndication
Party's interest in its Note shall be deemed to have been partially assigned to
the Contributing Syndication Parties in the amount of the Delinquent Amount and
Delinquency Interest owing from time to time.
11.5 Agency Appointment. Each of the Syndication Parties
hereby designates and appoints Xxxxx Fargo to act as Agent to service and
collect the Loan and its respective Note and to take such action on behalf of
such Syndication Party with respect to the Loan and such Note, and to execute
such powers and to perform such duties, as specifically delegated or required
herein, as well as to exercise such powers and to perform such duties as are
reasonably incident thereto, and to receive and benefit from such fees and
indemnifications as are provided for or set forth herein, until such time as a
successor is appointed and qualified to act as Agent.
11.6 Power and Authority of Agent. Without limiting the
generality of the power and authority vested in Agent pursuant to Section 11.5
hereof, the power and authority vested in Agent includes, but is not limited
to, the following:
11.6.1 To solicit the advice and assistance of
each of the Syndication Parties concerning the administration of the Loan and
the exercise by Agent of its various rights, remedies, powers, and discretions
with respect thereto.
11.6.2 To execute, seal, acknowledge, and deliver
as Agent, all such instruments as may be appropriate in connection with the
administration of the Loan and the exercise by Agent of its various rights with
respect thereto.
11.6.3 To initiate, prosecute, defend, and to
participate in, actions and proceedings in its name as Agent for the ratable
benefit of the Syndication Parties.
11.6.4 To retain attorneys, accountants, and other
professionals to provide advice and professional services to Agent, with their
fees and expenses reimbursable to Agent by Syndication Parties pursuant to
Section 11.18 hereof.
11.6.5 To exercise powers reasonably incident to
Agent's discharge of its duties enumerated in Section 11.7 hereof.
11.6.6 To determine the purposes other than those
set forth in Section 2.2 of this Agreement for which a Letter of Credit may be
issued.
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11.7 Duties of Agent. The duties of Agent hereunder shall
consist of the following:
11.7.1 To safekeep one original of each of the
Loan Documents other than the Notes (which will be in the possession of the
Syndication Party named as payee therein).
11.7.2 To receive and distribute to the
Syndication Parties payments made by Borrowers pursuant to the Loan Documents.
11.7.3 Subject to the provisions of Section 11.9
hereof, to, on behalf of and for the ratable benefit of all Syndication
Parties, in accordance with customary banking practices, exercise all rights,
remedies, powers, privileges, and discretion to which Agent is entitled to
collect amounts owing under the Loan and the Notes.
11.8 Agent's Resignation or Removal. Agent may resign at
any time by giving at least sixty (60) days' prior written notice of its
intention to do so to each of the Syndication Parties. After the receipt of
such notice, the Syndication Parties holding in the aggregate at least 66 2/3%
of the Syndication Shares of the Loan ("Required Lenders") shall appoint a
Successor Agent. If no Successor Agent shall have been so appointed and shall
have accepted such appointment within forty-five (45) days after the retiring
Agent's giving of such notice of resignation, then the retiring Agent may
appoint a Successor Agent which shall be a bank or a trust company organized
under the laws of the United States of America or any state thereof and having
a combined capital, surplus and undivided profit of at least $250,000,000. Any
Agent may be removed upon the written demand of the Required Lenders, which
demand shall also appoint a Successor Agent. Upon the appointment of a new
Agent hereunder, the term "Agent" shall for all purposes of this Agreement
thereafter mean such successor. After any retiring Agent's resignation
hereunder as Agent, or the removal hereunder of any Agent, the provisions of
this Agreement shall continue to inure to the benefit of such Agent as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
11.9 Consent Required for Certain Actions. Agent may not
take any of the following actions (nor may the Syndication Parties take the
action described in Subsection 11.9.1(c)) without the prior written consent,
given after notification by Agent of its intention to take any such action (or
notification by such Syndication Parties as are proposing the action described
in Subsection 11.9.1(c) of their intention to do so), of Syndication Parties
holding in the aggregate, at the time of such notification:
11.9.1 One hundred percent (100%) of the
Syndication Shares before:
(a) Agreeing to an increase in the Aggregate
Commitment Amount, the Phase I Construction Commitment Amount, the Phase II
Construction Commitment Amount, the LC Commitment Amount or an extension of the
Termination Date;
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(b) Agreeing to a reduction in the amount, or to
a delay in the due date, of any payment by Borrowers of interest, principal, or
fees; provided, however, this restriction shall not apply to a delay in payment
granted by Agent in the ordinary course of administration of the Loan and the
exercise of reasonable judgment (so long as such payment delay does not exceed
five (5) days); or
(c) Reducing the voting rights percentage set
forth in this Subsection 11.9.1; or
11.9.2 Sixty-six and two thirds percent (66 2/3%)
before:
(a) Agreeing to any action, amendment, or waiver
not covered in Subsection 11.9.1;
(b) Agreeing to amend Section 11 of this
Agreement; or
(c) Determining the purposes other than those set
forth in Section 2.2 of this Agreement for which a Letter of Credit may be
issued.
If no written consent or denial is received from a Syndication Party within
five (5) Business Days after written notice of any proposed action as described
in this Section is delivered to such Syndication Party by Agent, such
Syndication Party shall be conclusively deemed to have consented thereto for
the purposes of this Section.
11.10 Distribution of Principal and Interest. Agent will
receive and accept all payments (including prepayments) of principal and
interest made by Borrowers on the Loan and the Notes and will hold all such
payments in trust for the benefit of all present and future Syndication
Parties, in an account segregated from Agent's other funds and accounts
("Payment Account"). After the receipt by Agent of any payment representing
interest or principal on the Loan, Agent shall remit to each Syndication Party
an amount equal to such payment, multiplied by the Syndication Party's
Syndication Share ("Payment Distribution") no later than the same Business Day
as such payment is received by Agent if received no later than 11:00 a.m.
Pacific time or the next Business Day if received by Agent thereafter. Any
Syndication Party's rights to its Payment Distribution shall be subject to the
rights of any Contributing Syndication Parties to such amounts as set forth in
Section 11.4 hereof.
11.11 Distribution of Certain Fees and Amounts. Agent
shall (a) receive and hold in trust for the benefit of all present and future
Syndication Parties, in the Payment Account and segregated from Agent's other
funds and accounts and (b) shall remit to the Syndication Parties, as
indicated, the fees and other amounts described below:
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11.11.1 The quarterly Unused Line Fee paid by
Borrowers to Agent in connection with the Loan shall be distributed to
Syndication Parties in accordance with their respective Syndication Shares no
later than the same Business Day that payment of such fee is received by Agent,
if received no later than 11:00 a.m. Pacific time, or the next Business Day if
received by Agent thereafter.
11.11.2 The amount of any Funding Losses paid by
Borrowers to Agent in connection with a prepayment of any portion of a Libor
Loan shall be distributed to the Syndication Parties in accordance with their
respective Syndication Shares no later than the same Business Day that payment
of such Funding Losses is received by Agent, if received no later than 11:00
Pacific time, or the next Business Day if received by Agent thereafter.
11.12 Loan Documents. The Loan Documents (other than the
Notes) shall be held by Agent in its name, for the ratable benefit of itself
and the other Syndication Parties without preference or priority.
11.13 Collateral Application. Syndication Parties shall
have no interest in any other loans made to Borrowers, or any of them, by any
other Syndication Party other than the Loan, or in any property taken as
security for any other loan or loans made to Borrowers, or any of them, by any
other Syndication Party, or in any property now or hereinafter in the
possession or control of any other Syndication Party, which may be or become
security for the Loan solely by reason of the provisions of a security
instrument that would cause such security instrument and the property covered
thereby to secure generally all indebtedness owing to such other Syndication
Party. Notwithstanding the foregoing, to the extent such other Syndication
Party applies such funds or the proceeds of such property to reduction of the
Loan, such other Syndication Party shall share such funds or proceeds with all
Syndication Parties according to their respective Syndication Shares. In the
event that any Syndication Party shall obtain payment, whether partial or full,
from any source in respect of the Loan, including without limitation payment by
reason of the exercise of a right of offset, banker's lien, general lien, or
counterclaim, reducing such Syndication Party's outstanding balance in the Loan
to below its Syndication Share, such Syndication Party will promptly make such
adjustments (which may include payment in cash or the purchase of further
syndications or participations in the Loan) to the end that such excess payment
shall be shared with all other Syndication Parties in accordance with their
respective Syndication Shares.
11.14 Amounts Required to be Returned. If Agent makes any
payment to a Syndication Party in anticipation of the receipt of final funds
from Borrowers, and such funds are not received from Borrowers, or if excess
funds are paid by Agent to any Syndication Party as the result of a
miscalculation by Agent, then Syndication Party shall, on demand of Agent,
forthwith return to Agent any such amounts, plus interest thereon (from the day
such amounts were transferred by Agent to the Syndication Party to, but not
including, the day such amounts are returned by Syndication Party) at a rate
per annum equal to the Federal Funds Rate in effect on the date of such demand.
If Agent is required at any time to return to Borrowers, or any of them, or a
trustee,
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receiver, liquidator, custodian, or similar official any portion of the
payments made by Borrowers, or any of them, to Agent, whether pursuant to any
bankruptcy or insolvency law or otherwise, then Syndication Party shall, on
demand of Agent, forthwith return to Agent any such payments transferred to
Syndication Party by Agent but without interest or penalty (unless Agent is
required to pay interest or penalty on such amounts to the person recovering
such payments).
11.15 Reports and Information to Syndication Parties.
Agent shall use reasonable efforts to provide to Syndication Parties, as soon
as practicable after actual knowledge thereof is acquired by an officer thereof
primarily responsible for Agent's duties as such with respect to the Loan or
primarily responsible for the credit relationship between Xxxxx Fargo and
Borrowers: (a) notice of the existence of any Event of Default or Potential
Default under the Loan Documents, and (b) any material factual information
which has a material adverse effect on the creditworthiness of Borrowers, or
any of them and Borrowers hereby authorize such disclosure by Agent to the
Syndication Parties. Failure of Agent to provide the information referred to
in this Section shall not result in any liability upon, or right to make a
claim against, Agent except where a court of competent jurisdiction renders a
final non- appealable determination that such failure is a result of the
willful misconduct or gross negligence of Agent. Syndication Parties
acknowledge and agree that all information and reports received pursuant to
this Agreement will be received in confidence in connection with their
Syndication Interest, and that such information and reports constitute
confidential information and shall not be disclosed to any third party, except
pursuant to appropriate legal or regulatory process, (or used by the
Syndication Party except in connection with the Loan and its Syndication
Interest) without the prior written consent of Agent or Borrowers, as
applicable.
11.16 Standard of Care. Agent shall not be liable to
Syndication Parties for any error in judgment or for any action taken or not
taken by Agent or its agents, except for its gross negligence or willful
misconduct. Subject to the preceding sentence, Agent will exercise the same
care in administering the Loan and the Loan Documents as it exercises for
similar loans which it holds for its own account and risk, and Agent shall not
have any further responsibility to the Syndication Parties. Without limiting
the foregoing, Agent may rely on the advice of counsel concerning legal matters
and on any written document it believes to be genuine and correct and to have
been signed or sent by the proper Person or Persons.
11.17 No Trust Relationship. Neither the execution of this
Agreement, nor the sharing in the Loan, nor the holding of the Loan Documents
in its name by Agent, nor the management and administration of the Loan and
Loan Documents by Agent (including the obligation to hold certain payments and
proceeds in the Payment Account in trust for the Syndication Parties), nor any
other right, duty or obligation of Agent under or pursuant to this Agreement is
intended to be or create, and none of the foregoing shall be construed to be or
create, any express, implied or constructive trust relationship between Agent
and any Syndication Party. Each Syndication Party hereby
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agrees and stipulates that Agent is not acting as trustee for such Syndication
Party with respect to the Loan, this Agreement, or any aspect of either, or in
any other respect.
11.18 Sharing of Costs and Expenses. To the extent not
paid by Borrowers, each Syndication Party will promptly upon demand reimburse
Agent, ratably according to their respective Syndication Shares, for all
reasonable costs, disbursements, and expenses incurred by Agent on or after the
date of this Agreement for legal, accounting, consulting, and other services
rendered to Agent in its role as Agent in the administration of the Loan,
interpreting the Credit Documents, and protecting, enforcing, or otherwise
exercising any rights, both before and after default by Borrowers, or any of
them, under the Credit Documents; provided, however, that the costs and
expenses to be shared in accordance with this Section shall not include any
costs or expenses incurred by Xxxxx Fargo solely as a Syndication Party in
connection with the Loan, nor to Agent's internal costs and expenses.
11.19 Syndication Parties' Indemnification of Agent. Each
of the Syndication Parties agree to indemnify Agent, including any Successor
Agent, and its directors, officers, employees, agents, professional advisers
and representatives ("Indemnified Parties"), (to the extent not reimbursed by
Borrowers, and without in any way limiting the obligation of Borrowers to do
so), ratably according to their respective Syndication Shares, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Loan and/or the expiration or termination of the Syndication
Interests or this Agreement) be imposed on, incurred by or asserted against
Agent (or any of the Indemnified Parties while acting for Agent or for any
Successor Agent) in any way relating to or arising out of this Agreement or the
Loan Documents, or the performance of the duties of Agent hereunder or
thereunder or any action taken or omitted while acting in the capacity of Agent
under or in connection with any of the foregoing; provided that the Syndication
Parties shall not be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of an Indemnified Party to the extent that any of the
forgoing result from the gross negligence or willful misconduct of that
Indemnified Party as determined by a court of competent jurisdiction. The
agreements and obligations in this Section shall survive the payment of the
Loan, the Syndication Interests, and the expiration or termination of this
Agreement.
11.20 Books and Records. Agent shall maintain such books
of account and records relating to the Loan as it maintains with respect to
other loans of similar type and amount, and which shall clearly and accurately
reflect the Syndication Interest of each Syndication Party. Syndication
Parties, or their agents, may inspect such books of account and records at all
reasonable times during Agent's regular business hours.
11.21 Agent Fee. Xxxxx Fargo shall not be entitled to any
fee or compensation other than as expressly provided in the Fee Letter for
acting as Agent ("Agent Fee"). In the event the Successor Agent is
contractually entitled to an
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additional fee, each Syndication Party will be responsible for the amount
thereof multiplied by their Syndication Share.
11.22 Representations and Warranties of All Parties. Agent
and each Syndication Party represents and warrants that (a) the making and
performance of this Agreement is within its power and has been duly authorized
by all necessary corporate and other action by it, (b) this Agreement is in
compliance with all applicable laws and regulations promulgated under such laws
and does not conflict with nor constitute a breach of its charter or by-laws
nor any agreements by which it is bound, and does not violate any judgment,
decree or governmental or administrative order, rule or regulation applicable
to it, (c) no approval, authorization or other action by, or declaration to or
filing with, any governmental or administrative authority or any other Person
is required to be obtained or made by it in connection with the execution,
delivery and performance of its duties under this Agreement, and (d) this
Agreement has been duly executed by it, and constitutes the legal, valid, and
binding obligation of such Person, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally and general equitable principles (regardless of
whether such enforceability is considered in a proceeding at law or in equity).
Each Syndication Party that is a state or national bank represents and warrants
that the act of entering into and performing its obligations under this
Agreement has been approved by its board of directors or its loan committee and
such action was duly noted in the written minutes of the meeting of such board
or committee, and that it will furnish Agent with a certified copy of such
minutes or an excerpt therefrom reflecting such approval.
11.23 Representations and Warranties of Xxxxx Fargo. Xxxxx
Fargo, in its role as Syndication Party and as Agent, makes no express or
implied representation or warranty and assumes no responsibilities with respect
to the due authorization, execution, or delivery of the Loan Documents; the
accuracy of any information, statements, or certificates provided by Borrowers,
or any of them; the legality, validity, or enforceability of the Loan
Documents; the filing or recording of any document; the collectibility of the
Loan; the performance by any Borrower of any of its obligations under the Loan
Documents; or the financial condition or solvency of any Borrower or any other
party obligated with respect to the Loan.
11.24 Syndication Parties' Independent Credit Analysis.
Each Syndication Party acknowledges receipt of true and correct copies of all
Loan Documents (other than any Note payable to another Syndication Party) from
Agent. Each Syndication Party agrees and represents that it has relied upon
its independent review (a) of the Loan Documents, and (b) any information
independently acquired by such Syndication Party from Borrowers or otherwise in
making its decision to acquire an interest in the Loan independently and
without reliance on Xxxxx Fargo or Agent. Each Syndication Party represents
and warrants that it has obtained such information as it deems necessary
(including any information such Syndication Party independently obtained from
Borrowers or others) prior to making its decision to acquire an interest in
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the Loan. Each Syndication Party further agrees and represents that it has
made its own independent analysis and appraisal of and investigation into each
Borrower's authority, business, operations, financial and other condition,
creditworthiness, and ability to perform its obligations under the Loan
Documents and has relied on such review in making its decision to acquire an
interest in the Loan. Each Syndication Party agrees that it will continue to
rely solely upon its independent review of the facts and circumstances related
to Borrowers, and without reliance upon Xxxxx Fargo or Agent, in making future
decisions with respect to all matters under or in connection with the Loan
Documents and its participation in the Loan. Xxxxx Fargo and Agent assume no
responsibility for the financial condition of Borrowers or for the performance
of each Borrower's obligations under the Loan Documents. Except as otherwise
expressly provided herein, neither Xxxxx Fargo nor any other Syndication Party
shall have any duty or responsibility to furnish to any other Syndication
Parties any credit or other information concerning Borrowers which may come
into its possession.
11.25 No Joint Venture or Partnership. Neither the
execution of this Agreement, the sharing in the Loan, nor any agreement to
share in payments or losses arising as a result of this transaction is intended
to be or to create, and the foregoing shall not be construed to be, any
partnership, joint venture or other joint enterprise between Agent and any
Syndication Party, nor between any of the Syndication Parties.
11.26 Purchase for Own Account/Restrictions on Transfer.
Each Syndication Party represents that it has acquired and is retaining its
Syndication Interest in the Loan for its own account in the ordinary course of
its banking or financing business and not with a view toward the sale,
distribution, further participation, or transfer thereof. Each Syndication
Party agrees that it will not sell, assign, convey or otherwise dispose of
("Transfer"), other than to a commonly-owned affiliate bank, or create or
permit to exist any lien or security interest on all or any part of its
Syndication Interest in the Loan without the prior written consent of the
Required Lenders (which consent will not be unreasonably withheld); provided
that (a) any such Transfer (except a Transfer to another Syndication Party)
must be in a minimum amount of the lesser of (i) $5,000,000.00 or (ii) the full
amount of the Syndication Interest, (b) the transferee must assume all of the
transferor's obligations hereunder and execute such documents as Agent may
reasonably require, and (c) the Syndication Party making such Transfer must pay
Agent an assignment fee of $2,500.00. Any Syndication Party may participate
any part of its Syndication Interest in the Loan to any Person, and each
Syndication Party understands and agrees that in the event of any such
participation, (x) its Syndication Share and Maximum Syndication Amount will
not change on account of such participation, (y) the participant will have no
rights under this Agreement, including, without limitation, voting rights or
the right to receive payments or distributions, and (z) Agent shall continue to
deal directly with the Syndication Party with respect to the Loan and the
Syndication Party's Syndication Interest as though no participation had been
granted and will not be obligated to deal directly with any participant.
Notwithstanding any provision contained herein to the contrary, any Syndication
Party
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may at any time pledge or assign all or any portion of its Syndication Interest
to any Federal Reserve Bank in accordance with applicable law.
11.27 Method of Making Payments. Payment and transfer of
all amounts owing or to be paid or remitted hereunder, including, without
limitation, payment of the Initial Payment and each Advance Payment by
Syndication Parties, and distribution of principal or interest payments or fees
or other amounts by Agent, shall be by wire transfer in accordance with the
instructions contained on Exhibit 11.27 hereto ("Wire Instructions").
11.28 Events of Syndication Default/Remedies.
11.28.1 Any of the following occurrences, failures
or acts, with respect to any of the Syndication Parties shall constitute an
Event of Syndication Default hereunder by such party: (a) if any representation
or warranty made by such party in this Agreement shall be found to have been
untrue in any material respect, (b) if such party fails to make any
distributions or payments required under this Agreement within five (5) days of
the date required, (c) if such party breaches any other covenant, agreement, or
provision of this Agreement which breach shall have continued uncured for a
period of thirty (30) consecutive days after such breach first occurs, unless a
shorter period is required to avoid prejudicing the rights and position of the
other Syndication Parties, (d) if any agency having supervisory authority over
such party, or any creditors thereof, shall file a petition to reorganize or
liquidate such party pursuant to any applicable federal or state law or
regulation and such petition shall not be discharged or denied within fifteen
(15) days after the date on which it is filed, (e) if by the order of a court
of competent jurisdiction or by any appropriate supervisory agency, a receiver,
trustee or liquidator shall be appointed for such party or for all or any
material part of its property or if such party shall be declared insolvent, or
(f) if such party shall be dissolved, or shall make an assignment for the
benefit of its creditors, or shall file a petition seeking to take advantage of
any debtors' act, including the bankruptcy act, or shall admit in writing its
inability to pay its debts generally as they become due, or shall consent to
the appointment of a receiver or liquidator of all or any material part of its
property.
11.28.2 Upon the occurrence of an Event of
Syndication Default, the non-defaulting parties, acting by, or through the
direction of, a majority of the non-defaulting parties, may, in addition to any
other remedy specifically set forth in this Agreement, have and exercise any
and all remedies available generally at law or equity, including the right to
damages and to specific performance.
11.29 Further Assurances. Agent and each Syndication Party
agree to take whatever steps and execute such documents may be reasonable and
necessary to implement this Section 11 and to carry out fully the intent
thereof.
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12. Miscellaneous Provisions.
12.1 Definitions. The following terms shall have the
definitions set forth below:
"Advance" shall mean (a) an advance of funds pursuant to an Advance
Request to or for the account of Borrowers or any of them, or (b) payment by
Agent of a draw under a Letter of Credit.
"Advance Date" shall mean the requested disbursement date of the
Advance set forth in the applicable Advance Request.
"Base Libor Rate" shall mean the rate per annum for United States
dollar deposits quoted by Xxxxx Fargo as the Inter-Bank Market Offered Rate
determined as of 11:00 a.m. London time 2 Business Days prior to the requested
Interest Period Commencement Date set forth in the applicable Libor Rate
Request, with the understanding that such rate is quoted by Xxxxx Fargo for the
purpose of calculating effective rates of interest for loans making reference
thereto, on the first day of an Interest Period for delivery of funds on such
date for a period of time approximately equal to the number of days in such
Interest Period and in an amount approximately equal to the principal amount of
the Libor Loan to which such Interest Period applies. Borrowers understand and
agree that Xxxxx Fargo may base its quotation of the Inter-Bank Market Offered
Rate upon such offers or other market indicators of the Inter-Bank Market as
Xxxxx Fargo in its discretion deems appropriate including, but not limited to,
the rated offered for United States dollar deposits on the London Inter-Bank
Market.
"Business Day" shall mean any day (a) other than a Saturday or Sunday
and other than a day which is a Federal legal holiday or a legal holiday for
banks in the State of Colorado, the State of California or the State of
Illinois, or (b) if such day relates to a borrowing of, a payment or prepayment
of principal of or interest on, a continuation of or conversion into, or an
Interest Period for, a Libor Loan or a notice by a Borrower with respect to any
such borrowing, payment, prepayment, continuation, conversion, or Interest
Period, on which dealings in U.S. Dollar deposits are carried out in the London
interbank market.
"Capital Expenditures" shall mean all expenditures paid or incurred,
on a consolidated basis for Borrowers and the Subsidiaries, in respect of (a)
the acquisition, construction, improvement or replacement of land, buildings,
machinery, equipment, any other fixed assets or leaseholds and (b) to the
extent related to and not included in (a) above, materials, contract labor and
direct labor, which expenditures have been or should be, in accordance with
GAAP, capitalized on the books of any such Borrower, except for (i) the
expenditure by Borrowers not to exceed $20,000,000 to purchase the Headquarters
Land, and (ii) the expenditure by Borrowers not to exceed $29,000,000 in
connection with the construction of the Phase II Headquarters Building.
"Closing Date" shall mean the date on which the initial Advance is
made to or on behalf of Borrowers hereunder.
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"Compliance Certificate" shall mean a certificate of the chief
financial officer of each Borrower in the form attached hereto as Exhibit 12.1,
setting forth in reasonable detail the data and calculations showing compliance
with the financial covenants set forth in Section 8.13 hereof.
"Coverage Ratio" shall mean for any measurement period: (a) for the
four most recently completed Fiscal Quarters, the aggregate of the consolidated
net income of Borrowers and the Subsidiaries (as determined in accordance with
GAAP), plus, on a consolidated basis for Borrowers and the Subsidiaries,
depreciation and amortization, plus interest expense; divided by (b) on a
consolidated basis for Borrowers and the Subsidiaries, the aggregate of
scheduled principal reductions in the following twelve (12) month period, plus
interest expense paid in the four most recently completed Fiscal Quarters, plus
the current portion of payments on capitalized leases.
"Current Liabilities" shall mean all of the current liabilities of
Borrowers as determined in accordance with GAAP.
"Default Interest Rate" shall mean a rate of interest equal to 200
basis points plus the greater of (a) the Variable Rate, or (b) the highest
Libor Rate being charged on any Libor Loan.
"Environmental Laws" shall mean the provisions of C.R.S. Section
00-00-000, C.R.S. Section 25-5-502, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 as amended, 42 U.S.C. 9601-9657
("CERCLA") and the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
6901-6987 ("RCRA"), the Hazardous Materials Transportation Act of 1975
("HMTA"), 49 U.S.C. 1801-1821.
"Environmental Regulations" shall mean any federal, state or local
code, ordinance, regulation, requirement or rule relating to the Environmental
Laws or the subject of the Environmental Laws.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the ask rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day. If the day for which the Federal Funds Rate is to be
determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day and, if such rate is not so
published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to Agent on such day on such transactions as
determined by Agent.
"Fee Letter" shall mean the letter dated July 2, 1996 signed by Agent
and Borrowers setting forth the amount and terms of payment of certain fees
payable by Borrower to Agent in connection with the Loan.
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"Fiscal Quarter" shall mean the three month period commencing as of
each November 1, February 1, May 1, and August 1 and ending on the last day of
each October, January, April, and July, respectively.
"Free Cash Flow" shall mean for the four (4) most recent Fiscal
Quarters: the aggregate of the consolidated net income of Borrowers and the
Subsidiaries (as determined in accordance with GAAP), plus, on a consolidated
basis for Borrowers and the Subsidiaries, depreciation and amortization, plus
interest expense.
"GAAP" shall mean generally accepted accounting principles in the
United States of America, applied consistently, as in effect from time to time.
"Hazardous Substances" shall mean dangerous, toxic or hazardous
pollutants, contaminants, chemicals, wastes, materials or substances, as
defined in or governed by the Environmental Laws or the Environmental
Regulations, and also including urea formaldehyde, polychlorinated biphenyls,
asbestos, asbestos- containing materials, nuclear fuel or waste, and petroleum
products, or any other waste, material, substances, pollutant or contaminant
which would subject an owner of property to any damages, penalties or
liabilities under any applicable Environmental Laws or Environmental
Regulations.
"Headquarters Land" the real property described on Exhibit 12.1(a)
hereto.
"Interest Period" shall mean the period of time commencing on a
Business Day and continuing for one, two, three or six months, as, designated
by Borrowers in accordance with Section 4.2 of this Agreement; provided,
however, that no Interest Period shall extend beyond the Maturity Date, and,
provided further, that if any Interest Period would otherwise end on a day
which is not a Business Day, then such Interest Period shall be extended to the
next succeeding Business Day so long as such Business Day does not extend
beyond the Maturity Date (except that if such next succeeding Business Day
would fall in the next calendar month, such Interest Period shall end on the
next preceding Business Day), and provided further, that if there is no
numerically corresponding day in the month in which such an Interest Period is
to end or if such an Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last Business Day of
the calendar month in which such Interest Period is to end.
"Leverage Ratio" shall mean, on a consolidated basis for Borrowers and
the Subsidiaries, the ratio of Total Liabilities less unearned revenue and
customer deposits, as determined in accordance with GAAP, to Total Net Worth.
"Libor Loan" shall mean any portion of the Loan bearing interest at
the Libor Rate.
"Loan Documents" shall mean this Agreement and the Notes.
"Loan Period" the period commencing on the Closing Date and ending on
the Termination Date.
"Marketable Securities" shall mean securities that are traded on a
public stock exchange.
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"Material Adverse Effect" shall mean (a) a material adverse effect on
the financial condition, results of operation, business or property of
Borrowers, or any of them, (b) an adverse effect on the ability of Borrowers,
or any of them, to perform its or their obligations under the Loan Documents.
"Maximum Syndication Amount" shall mean:
For Xxxxx Fargo - $ 25,000,000.00
For Syndication Party #1 - $ 12,500,000.00
For Syndication Party #2 - $ 12,500,000.00
"Net Trade Receivables" shall mean the net trade receivables of
Borrowers as determined in accordance with GAAP.
"Person" shall mean any individual, corporation, association,
partnership, limited liability company, limited liability partnership, trust,
organization, government, governmental agency, or other entity.
"Phase I Headquarters Building" shall mean the office building and
related facilities, located on a portion of the Headquarters Land, with respect
to which construction was completed in 1997.
"Phase II Headquarters Building" shall mean the office building and
related facilities, to be located on a portion of the Headquarters Land, with
respect to which construction was commenced after completion of the Phase I
Headquarters Building.
"Plans" shall mean the following Borrower Benefit Plans set forth on
Exhibit 7.12: each ESOP, Borrowers' Restricted Stock Grant Plan, Borrowers'
Stock Option Plans and Borrowers' Employee Stock Purchase Plans.
"Principal Amount" shall mean the outstanding amount of principal
under the Notes.
"Prime Rate" shall mean the rate of interest most recently announced
within Well Fargo as its Prime Rate, with the understanding that Xxxxx Fargo's
Prime Rate is one of its base rates and serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto, and is evidenced by the recording thereof after its announcement in
such internal publication or publications as Xxxxx Fargo may designate. Each
change in the Prime Rate will be effective on the day the change is announced
within Xxxxx Fargo.
"Quick Ratio" shall mean, on a consolidated basis for Borrowers and
the Subsidiaries, the following ratio:
CASH + MARKETABLE SECURITIES + TERM DEPOSITS + NET TRADE RECEIVABLES
-----------------------------------------------------------------------
CURRENT LIABILITIES - CURRENT PORTION OF UNEARNED REVENUES AND CUSTOMER
DEPOSITS - PRINCIPAL AMOUNT
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"Subsidiary" shall mean any corporation or entity other than a
Borrower of which more than 50% of the outstanding capital stock or voting
interests or rights having ordinary voting power to elect a majority of the
board of directors or other managers of such entity is at the time directly or
indirectly owned by a Borrower or by a Borrower and/or one or more Subsidiaries
or the management of which corporation or entity is under control of a Borrower
and/or any other Subsidiary, directly or indirectly through one or more Persons
and any other Person which, under GAAP, should at any time for financial
reporting purposes be consolidated or combined with a Borrower and/or any other
Subsidiary.
"Successor Agent" shall mean such Person as may be appointed as
successor to the rights and duties of Agent as provided in Section 11.8 of this
Agreement.
"Syndication Parties" shall mean:
Xxxxx Fargo in its role as such, but not in its role
as Agent hereunder.
Syndication Party #1: Xxxxxx Bank
Syndication Party #2: Key Bank
"Syndication Share" shall mean
For Xxxxx Fargo - 50%
(subject to adjustment for sale of further
Syndication Interests)
For Syndication Party #1 - 25%
For Syndication Party #2 - 25%
subject to adjustment as provided in Section 11.4 hereof.
"Term Deposits" shall mean all cash on deposit in banks which cannot
be withdrawn on demand.
"Total Liabilities" shall mean all of the liabilities of Borrowers as
determined in accordance with GAAP.
"Total Net Worth" shall mean all of the assets of Borrowers as
determined in accordance with GAAP, less Total Liabilities.
"Variable Rate Loan" shall mean any portion of the Loan bearing
interest at the Variable Rate.
The following terms are defined in the Sections of the Agreement
referenced below:
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Term Section
"Additional Costs" Section 8.15
"Administrator" Section 12.10.2
"Advance Amount" Section 11.3.3
"Advance Payment" Section 11.2.2
"Advance Request" Section 6.2.4
"Agent Fee" Section 11.21
"Aggregate Commitment Amount" Section 2.1
"Arbitration Panel" Section 12.10.4
"Authorized Representatives" Section 6.1.8
"Base Rate" Section 4.1
"Base Rate Margin" Section 4.3
"Borrower Benefit Plan" Section 7.12.1
"Borrower Pension Plan" Section 7.12.2
"Certificate of Authorized Representatives" Section 6.1.8
"Change in Law" Section 4.7.2
"COBRA" Section 7.12.15
"Code" Section 7.12.1
"Contributing Syndication Parties" Section 11.4
"Credit Documents" Section 10.1
"Delinquency Interest" Section 11.4
"Delinquent Amount" Section 11.4
"Delinquent Syndication Party" Section 11.4
"Designating Party" Section 12.9.2
"Dispute" Section 12.10.1
"Documents" Section 12.10.1
"ERISA" Section 7.12.1
"ESOP" Section 7.12.1
"ESOP Indebtedness" Section 7.12.16
"ESOP Repurchase Indebtedness" Section 9.8
"Event of Default" Section 10
"Funding Losses" Section 5.6
"Hazardous Substances Claims" Section 8.2.13
"Indemnified Parties" Section 11.19
"Initial Payment" Section 11.2.1
"Initial Payment Notice" Section 11.3.1
"Interest Period Commencement Date" Section 4.2
"IRS" Section 7.12.2
"LC Advance Amount" Section 11.3.3
"LC Commitment Amount" Section 3.1
"LC Notice of Advance" Section 11.3.3
"Letter of Credit" Section 3
"Letter of Credit Fee" Section 3.7
"Letter of Credit Fee Policy" Section 3.7
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Term Section
"Libor Margin" Section 4.3
"Libor Rate" Section 4.2
"Libor Rate Request" Section 4.2
"Loan" Section 2
"Loan Advance Amount" Section 11.3.2
"Loan Notice of Advance" Section 11.3.2
"Material Agreement" Section 7.8
"Maturity Date" Section 5.3
"Minimum Libor Prepayment" Section 5.4.3
"Minimum Prepayment Requirement" Section 5.4.3
"Minimum Variable Prepayment" Section 5.4.3
"Multiemployer Plan" Section 7.12.1
"Notes" Section 5.1
"Notice of Advance" Section 11.3.3
"Payment Account" Section 11.10
"Payment Distribution" Section 11.10
"Permitted Encumbrances" Section 7.3
"Permitted Indebtedness" Section 9.8
"Phase I Construction" Section 2.2
"Phase II Construction" Section 2.2
"Phase I Construction Commitment Amount" Section 2.2
"Phase II Construction Commitment Amount" Section 2.2
"Phase I Construction Commitment Amount Section 6.1.4
Certification"
"Phase II Construction Commitment Amount Section 6.2.4
Certification"
"Potential Default" Section 6.1.2
"Premises Section 7.15.1
"Regulatory Change" Section 8.15
"Required Lenders" Section 11.8
"Revolving Loan" Section 2.1
"SEC" Section 8.2.12
"Syndication Interest" Section 11.1
"Syndication Party LC Payment Date" Section 11.3.3
"Syndication Party Loan Payment Date" Section 11.3.2
"Syndication Party Payment Date" Section 11.3.3
"Termination Date" Section 2.1
"Three Month Anniversary Date" Section 5.2
"Transfer" Section 11.26
"Unused Commitment Fee Reset Date" Section 4.9
"Unused Line Fee" Section 4.9
"Variable Rate" Section 4.1
"Wire Instructions" Section 11.27
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12.2 No Waiver. No waiver of any Event of Default shall
be implied from any omission by Agent or any Syndication Party to take action
on account of such default, and no express waiver shall affect any default
other than the defaults specified in the waiver and shall be operative only for
the time and to the extent therein stated.
12.3 Notices. All notices, requests and demands hereunder
shall be in writing and (a) made to the address set forth below, or to such
other address as either party may designate by written notice to the other in
accordance with this provision, and (b) deemed to have been given or made: if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with
instructions to deliver the next Business Day, one (1) Business Day after
sending; and if by certified mail, return receipt requested, five (5) days
after mailing.
12.3.1 Borrowers:
X.X. XXXXXXX & COMPANY
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxx
X.X. XXXXXXX WORLD SOLUTIONS COMPANY
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxx
X.X. XXXXXXX WORLD SOURCE COMPANY
0000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxx
12.3.2 Syndication Parties:
XXXXX FARGO: XXXXX FARGO BANK, N.A.
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxxxxx
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with a copy to:
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxxxxx
XXX0000-000
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
FAX: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
XXXXXX: Xxxxxx Trust and Savings Bank
000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
FAX: (000) 000-0000
Attention: Emerging Majors West -
Xxxxx X. Xxxxxx
KEY BANK: KeyBank National Association
000 Xxxxxx Xxxxxx.
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxxxxxxxx
with a copy to:
Key Bank
Mail Code: WA-31-10-4812
000 Xxxxx Xxxxxx, 00xx Xxxxx
X.X. Xxx 00
Xxxxxxx, XX 00000-0000
FAX: (000) 000-0000
Attention: Xxxx Xxxxx
12.3.3 Agent:
AGENT: XXXXX FARGO BANK, N.A.
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxxxxx
Xxxxx Xxxxx Xxxx Xxxxxx Xxxxxxxxxx
XXX0000-000
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
FAX: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
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12.4 Entire Agreement. This Agreement is the entire,
final and complete agreement regarding the subject matter hereof between the
parties hereto and supersedes and replaces all prior or existing oral or
written agreements between them or their representatives relating to the Loan
and the Syndication Interests.
12.5 Colorado Law. This Agreement is being executed in
the state of Colorado and is to be governed by and construed in accordance with
the laws of said state.
12.6 Amendment. No amendment to this Agreement shall be
effective unless in writing and signed by Borrower and the Required Lenders,
except that (a) all Syndication Parties must sign any amendment hereto that
would change any provision herein requiring the consent or approval of 100% of
the Syndication Parties, and (b) no Syndication Party's Syndication Share or
Maximum Syndication Amount may be changed without its written consent.
12.7 Severability/Titles. In case any one or more of the
provisions of any of the Loan Documents shall be held to be invalid, illegal or
unenforceable in any respect by any Court or other entity having the authority
to do so, the validity of the remaining provisions shall in no way be affected,
prejudiced or disturbed. Titles and headings herein are for reference purposes
only and do not constitute a part of this Agreement.
12.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one agreement.
12.9 Waiver of Jurisdiction, Service of Process, and Jury
Trial. Agent, Borrower, and each Syndication Party:
12.9.1 Irrevocably consents and submits to the
non-exclusive jurisdiction of the courts of the State of Colorado and the
United States District Court for the District of Colorado and waives any
objection based on venue or forum non conveniens with respect to any action
instituted therein arising under this Agreement or in any way connected with or
related or incidental to the dealings of the parties hereto in respect of this
Agreement or the transactions related hereto, in each case whether now existing
or hereafter arising, and whether in contract, tort, equity or otherwise, and
agrees that any dispute with respect to any such matters shall be heard only in
the courts described above.
12.9.2 With respect to litigation concerning this
Agreement within the jurisdiction of the courts of the State of Colorado or the
United States District Court for the District of Colorado, Borrower, each
Syndication Party, and Agent, unless they have an office located in Colorado
where service of process may be made) ("Designating
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Party") hereby irrevocably appoints CT Corporation Systems, 0000 Xxxxxxxx,
Xxxxxx, Xxxxxxxx 00000, as its agent to receive for and on its behalf, service
of process, which service may be made by mailing a copy of any summons or other
legal process to such party in care of such agent. Each Designating Party
agrees that it shall maintain a duly appointed agent for service of summons and
other legal process as long as it remains obligated under this Agreement and
shall keep Agent advised in writing of the identity and location of such agent.
The receipt by such agent and/or by such Designating Party of such summons or
other legal process in any such litigation shall be deemed personal service and
acceptance by such Designating Party for all purposes of such litigation. In
the event any Designating Party shall fail to maintain a duly appointed agent
for service of summons as required by this Subsection 12.9.2, such Designating
Party hereby waives personal service of any and all process upon it and
consents that all such service or process may be made by certified mail (return
receipt requested) directed to its address set forth in Section 12.3 hereof and
service so made shall be deemed to be completed five (5) days after the same
shall have been so deposited in the U.S. mails, or, at the option of the party
making such service, by service in any other manner provided under the rules of
any such courts. Within thirty (30) days after such service, the party so
served shall appear in answer to such process, failing which such party shall
be deemed in default and judgment may be entered against it for the amount of
the claim and other relief requested.
12.9.3 HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AGREEMENT
OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR THE TRANSACTIONS RELATED
HERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN
CONTRACT, TORT, EQUITY OR OTHERWISE. BORROWER, AGENT, AND EACH SYNDICATION
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT BORROWER,
AGENT, OR ANY SYNDICATION PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
12.10 Arbitration.
12.10.1 Binding Arbitration. Upon the demand of
Borrower, the Agent, or the Required Lenders (collectively the "parties"),
whether made before the institution of any judicial proceeding or not more than
60 days after service of a complaint, third party complaint, cross-claim or
counterclaim or any answer thereto or any amendment to any of the above, any
Dispute (as defined below) shall be resolved by binding arbitration in
accordance with the terms of this arbitration clause. A "Dispute" shall
include any action, dispute, claim, or controversy of any kind, whether founded
in
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contract, tort, statutory or common law, equity, or otherwise, not existing or
hereafter occurring between the parties arising out of, pertaining to or in
connection with this Agreement, the Notes, or any related agreements,
documents, or instruments (the "Documents"). THE PARTIES UNDERSTAND THAT BY
THIS AGREEMENT THEY HAVE DECIDED THAT THE DISPUTES MAY BE SUBMITTED TO
ARBITRATION RATHER THAN BEING DECIDED THROUGH LITIGATION IN COURT AND THAT ONCE
DECIDED BY AN ARBITRATOR THE CLAIMS INVOLVED CANNOT LATER BE BROUGHT, FILED, OR
PURSUED IN COURT.
12.10.2 Governing Rules. Arbitrations conducted
pursuant to this Agreement, including selection of arbitrators, shall be
administered by the American Arbitration Association ("Administrator") pursuant
to the Commercial Arbitration rules of the Administrator. Arbitrations
conducted pursuant to the terms hereof shall be governed by the laws of the
State of Colorado, including the provisions of CRS 00-00-000 et seq., and CRS
13- 21-102(5). Judgment upon any award rendered hereunder may be entered in
any court having jurisdiction; provided, however, that nothing contained herein
shall be deemed to be a waiver by any party that is a bank of the protections
afforded to it under 12 U.S.C. Section 91 or similar governing state law. Any
party who fails to submit to binding arbitration following a lawful demand by
the opposing party shall bear all costs and expenses, including reasonable
attorney's fees, incurred by the opposing party in compelling arbitration of
any Dispute.
12.10.3 No Waiver, Preservation of Remedies,
Multiple Parties. No provision of, nor the exercise of any rights under, this
Section 12.10 shall limit the right of any party to (1) foreclose against any
real or personal property collateral or other security, (2) exercise self-help
remedies (including repossession and setoff rights), or (3) obtain provisional
or ancillary remedies such as injunctive relief, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver from a court having
jurisdiction. Such rights can be exercised at any time except to the extent,
and until, such action is contrary to a final award or decision in any
arbitration proceeding. The institution and maintenance of an action as
described above shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the Dispute to arbitration, nor render
inapplicable the compulsory arbitration provisions hereof. Any claim or
dispute related to exercise of any self-help, auxiliary or other exercise of
rights under this Subsection 12.10.3 shall be a Dispute hereunder.
12.10.4 Arbitration Powers and Qualifications;
Awards. Arbitrator(s) shall resolve all Disputes in accordance with the
applicable substantive law. The arbitrator(s) may make an award of attorneys'
fees and expenses if permitted by law or the agreement of the parties. All
statutes of limitation applicable to any Dispute shall apply to any proceeding
in accordance with this arbitration clause. Any arbitrator selected to act as
the only arbitrator in a Dispute shall be required to be a practicing attorney
with not less than 10 years practice in commercial law in the State of
Colorado. With respect to a Dispute in which the claim or amounts in
controversy do not exceed five hundred thousand dollars ($500,000.00), a single
arbitrator shall be chosen and shall resolve the Dispute. In such case the
arbitrator shall have authority to render an award
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up to but not to exceed five hundred thousand dollars ($500,000.00) including
all damages of any kind whatsoever, costs, fees and expenses. Submission to a
single arbitrator shall be a waiver of the claims of each party to recover more
than five hundred thousand dollars ($500,000.00). A Dispute involving claims
or amounts in controversy exceeding five hundred thousand dollars ($500,000.00)
shall be decided by a majority vote of a panel of three arbitrators
("Arbitration Panel"). An Arbitration Panel shall be composed of one
arbitrator who would be qualified to sit as the single arbitrator in a Dispute
decided by one arbitrator, one who has at least ten years experience in
commercial lending and one who has at least ten years experience in the
Borrowers' industry. Arbitrator(s) may, in the exercise of their discretion,
at the written request of a party in any Dispute, (1) consolidate in a single
proceeding any multiple party claims that are substantially identical and all
claims arising out of a single loan or series of loans including claims by or
against Borrowers, guarantors, sureties and or owners of collateral if
different from the Borrower, and (2) administer multiple arbitration claims as
class actions in accordance with Rule 23 of the Federal Rules of Civil
Procedure. The arbitrator(s) shall be empowered to resolve any dispute
regarding the terms of this Agreement or the arbitrability of any dispute or
any claim that all or any part (including this provision) is void or voidable
but shall have no power to change or alter the terms of this Agreement. The
award of the arbitrator(s) shall be in writing and shall specify the factual
and legal basis for the award.
12.10.5 Miscellaneous. To the maximum extent
practicable, the Administrator, the arbitrator(s), and the parties shall take
any action necessary to require that an arbitration proceeding hereunder be
concluded within one-hundred eighty (180) days of the filing of the Dispute
with the Administrator. The arbitrator(s) shall be empowered to impose
sanctions for any party's failure to proceed within the times established
herein. Arbitration proceedings hereunder shall be conducted in Denver,
Colorado, at a location determined by the Administrator. In any such
proceeding a party shall state as a counterclaim any claim which arises out of
the transaction or occurrence or is in any way related to the Documents which
does not require the presence of a third party which could not be joined as a
party in the proceeding. The provisions of this arbitration clause shall
survive any termination, amendment, or expiration of the Documents and
repayment in full of sums owed by Borrower hereunder and under the Notes unless
the parties otherwise expressly agree in writing. Each party agrees to keep
all disputes and arbitration proceedings strictly confidential, except for
disclosures of information required in the ordinary course of business of the
parties or as required by applicable law or regulation.
12.11 Successors and Assigns. Without limiting any
prohibition on assignment contained herein, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
12.12 Termination and Mutual Release. Upon full payment
and satisfaction of the Notes and the obligations contained in this Agreement
and the other Loan Documents and after the expiration date of all Letters of
Credit issued hereunder,
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this Agreement, except for any obligations under Sections 3.8, 8.17, 8.18,
11.14 and 11.19, shall terminate and the parties shall, thereupon automatically
each be fully, finally, and forever released and discharged from any further
claim, liability, or obligation in connection with the Loan.
12.13 Costs and Expenses. To the extent permitted by law,
Borrowers agree to pay to Agent and the Syndication Parties, on demand, all
out-of-pocket costs and expenses (a) incurred by Agent in connection with the
preparation, negotiation, and execution of the Credit Documents or any
amendments thereto and the transactions contemplated thereby, and (b) incurred
by Agent or any Syndication Party (including, without limitation, the
reasonable fees and expenses of counsel retained by Agent and the Syndication
Parties) in connection with the enforcement or protection of the Syndication
Parties' rights under the Credit Documents upon the occurrence of an Event of
Default or upon the commencement of an action by any Borrower against Agent or
any Syndication Party (except that if the court or the arbitrator(s), as
applicable, make a specific finding that such Borrower(s) have prevailed on all
or substantially all of their claims in such action brought by such
Borrower(s), such Borrower(s) shall not be obligated to pay the out- of-pocket
costs and expenses of Agent and the Syndication Parties in connection with such
action), including without limitation collection of the Loan (regardless of
whether such enforcement or collection is by court action or otherwise). If
Agent does not receive payment from Borrowers for the out-of-pocket costs and
expenses described in subparagraph (a) of this Subsection within thirty (30)
days of the date of Agent's demand therefor, Borrowers hereby authorize the
Syndication Parties to make an Advance in the amount of such out-of-pocket
costs and expenses, and the amount of such Advance shall bear interest at the
Variable Rate.
12.14 Amendment to Notes. The parties hereto agree that:
(a) any reference to the term "Credit Agreement" in the Notes shall be deemed a
reference to this Agreement, (b) any reference in the Notes to "Xxxxx Fargo
Bank (Colorado), N.A." shall be deemed a reference to "Xxxxx Fargo Bank, N.A.",
successor by merger to Xxxxx Fargo Bank (Colorado), N.A., and (c) any reference
in the Notes to "Key Bank of Colorado" shall be deemed a reference to "KeyBank
National Association", successor by merger to Key Bank of Colorado.
12.15 Replacement Notes. Upon receipt by Borrower of
evidence satisfactory to it of (a) the loss, theft, destruction or mutilation
of any Note, and (in case of loss, theft or destruction) of such Syndication
Party's agreement to indemnify Borrower, and upon surrender and cancellation of
such Note, if mutilated, or (b) the assignment of any Syndication Interest or
any portion thereof pursuant to this Agreement, then Borrower will pay any
unpaid principal and interest (and Funding Losses, if applicable) then or
previously due and payable on such Note and will deliver in lieu of such Note a
new Note or, in the case of an assignment of a portion of a Syndication
Interest, Notes for any remaining balance.
12.16 Notice to Syndication Parties and Agent. No action
shall be commenced by Borrower for any claim against Agent or any Syndication
Party on
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account of any act or failure to act by such Person unless a notice
specifically setting forth the claim of Borrower shall have been given to such
Person within sixty (60) calendar days after Borrower has knowledge or should
reasonably have acquired knowledge of the act or omission which Borrower
alleges gave rise to such claim, and failure to give such notice shall
constitute a waiver of any such claim.
12.17 Joint and Several Liability. The liability of the
Borrowers hereunder and under the Notes shall be joint and several.
IN WITNESS WHEREOF the parties have caused this Agreement to be
executed as of the date set forth above.
BORROWERS:
X.X. XXXXXXX & COMPANY, a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Chief Financial Officer
----------------------------------
X.X. XXXXXXX WORLD SOLUTIONS COMPANY, a Colorado
corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Chief Financial Officer
----------------------------------
X.X. XXXXXXX WORLD SOURCE COMPANY, a Colorado
corporation
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: Chief Financial Officer
----------------------------------
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SYNDICATION PARTIES:
XXXXX FARGO BANK, N.A., successor by merger to
Xxxxx Fargo Bank (Colorado), N.A.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Title: Relationship Manager
----------------------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
----------------------------------
Title: Vice President
----------------------------------
KEYBANK NATIONAL ASSOCIATION, successor by
merger to Key Bank of Colorado
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxx
----------------------------------
Title: Vice President
----------------------------------
AGENT:
XXXXX FARGO BANK, N.A., successor by merger to
Xxxxx Fargo Bank (Colorado), N.A.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Title: Relationship Manager
----------------------------------
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