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EXHIBIT 10.2
CREDIT AGREEMENT
By and Between
XXXXX FARGO BANK (COLORADO), N.A.,
as a Lender and as Agent Bank
XXXXXX TRUST AND SAVINGS BANK,
as a Lender,
KEY BANK OF COLORADO,
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
August 1, 1996
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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 2
3.7 Letter of Credit Fees 2
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 5
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 8
5.4.1 Voluntary Prepayment of Variable Rate Loan 8
5.4.2 Voluntary Prepayment of Libor Loans 8
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 9
5.8 Reduction of Aggregate Commitment Amount by
Borrowers 9
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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 10
6. Conditions Precedent 10
6.1 Conditions to Initial Advance 10
6.1.1 Representations and Warranties 10
6.1.2 No Event of Default 10
6.1.3 Receipt of Loan Documents 10
6.1.4 Advance Request 10
6.1.5 Legal Opinion 10
6.1.6 Organizational Documents 10
6.1.7 Evidence of Corporate Action 11
6.1.8 Authorized Representatives 11
6.1.9 Officer's Certificate 11
6.1.10 Evidence of Insurance 11
6.1.11 Evidence of Consents 11
6.1.12 Fees and Expenses 11
6.1.13 No Material Adverse Change 12
6.1.14 Other Documents 12
6.1.15 Appointment of The Corporation Company 12
6.2 Conditions to All Subsequent Advances 12
6.2.1 Representations and Warranties 12
6.2.2 No Event of Default 12
6.2.3 No Material Adverse Change 12
6.2.4 Advance Request 12
6.3 Conditions to Issuance of Letters of Credit 13
6.3.1 Application and Reimbursement Agreement 13
6.3.2 Fees 13
6.3.3 Agent 13
6.4 Additional Disbursement Conditions 13
6.4.1 Aggregate Commitment Amount; LC Commitment
Amount 13
6.4.2 Construction Commitment Amount 13
6.4.3 Disbursement Period 14
6.4.4 Illegality of Loan 14
6.5 Closing 14
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 15
7.6 Binding Agreement 15
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 16
7.12 Employee Benefit Plans 16
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7.12.1 Employee Benefit Plans; Multiemployer
Plans 16
7.12.2 Pension Benefits 16
7.12.3 Compliance by Administrator 16
7.12.4 Annual Reports 17
7.12.5 Prohibited Transactions 17
7.12.6 Bonding 17
7.12.7 Civil/Criminal Action 17
7.12.8 Funding 17
` 7.12.9 Compliance With Law 17
7.12.10 Multiple Employer Plan 18
7.12.11 Plan Termination Liability 18
7.12.12 Pension Plan Termination 18
7.12.13 Reportable Event 18
7.12.14 Payment of Contributions 18
7,12.15 Welfare Benefit Plans 18
7.12.16 ESOP 19
7.13 Capitalization of Borrower 19
7.14 Subsidiaries 19
7.15 Environmental Compliance 19
7.16 Intellectual Property 20
7.17 Regulations U and X 20
7.18 Fiscal Year 20
7.19 Disclosure 20
7.20 Continuing Nature 20
8. Borrowers' Affirmative Covenants and Agreements 21
8.1 Books and Records 21
8.2 Reports and Notices 21
8.2.1 Annual Financial Statements 21
8.2.2 Quarterly Financial Statements 21
8.2.3 Additional Information 21
8.2.4 Annual Projections 22
8.2.5 Notice of Default under Other Financing 22
8.2.6 Notice of Default 22
8.2.7 Notice of Actions 22
8.2.8 Notice of Material Change 22
8.2.9 Notification of Claims by Contractors and
Materialmen 22
8.2.10 ERISA 22
8.2.11 Change of Control 23
8.2.12 SEC Statements 23
8.2.13 Hazardous Materials 23
8.3 Maintenance of Existence 23
8.4 Compliance with Legal Requirements and Agreements 23
8.5 Compliance with Environmental Laws 23
8.6 Insurance 24
8.7 Taxes 24
8.8 Title to Assets and Maintenance 24
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8.9 Payment of Liabilities 24
8.10 Inspection 25
8.11 Management 25
8.12 Licenses 25
8.13 Financial Covenants 25
8.13.1 Quick Ratio 25
8.13.2 Leverage Ratio 25
8.13.3 Coverage Ratio 25
8.14 ERISA 25
8.15 Additional Costs of Maintaining Loan 26
8.16 Reimbursement for Additional Capital
Requirements 27
8.17 Hazardous Substances Indemnifications 27
8.18 Indemnification 27
8.19 Further Assurances 28
9. Borrowers' Negative Covenants and Agreements 28
9.1 Change in Business 28
9.2 Change in Business Form 28
9.3 Acquisitions 28
9.4 Mergers 28
9.5 Recapitalization 29
9.6 Dividends and Distributions 29
9.7 Sale of Assets 29
9.8 Indebtedness 30
9.9 Encumbrances 30
9.10 Loans, Advances and Guarantees 31
9.11 Investment 31
9.12 Use of Proceeds 32
9.13 ERISA 32
9.14 Capital Expenditures 32
9.15 Profitability 32
10. Events of Default/Remedies 32
10.1 Failure to Pay 32
10.2 Failure to Perform Certain Covenants 33
10.3 Failure to Perform Other Covenants 33
10.4 Bankruptcy/Insolvency 33
10.5 False Representations or Warranties 33
10.6 Default Under Other Indebtedness 33
10.7 Judgment 33
10.8 Dissolution 34
10.9 Change of Control 34
10.10 Material Adverse Change 34
10.11 Remedies 34
11. Agency Agreement 34
11.1 Purchase and Sale of Syndication Interest 34
11.2 Syndication Parties' Obligations to Remit Funds 35
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11.3 Notice and Timing of Initial Payment and Each
Advance Payment 35
11.4 Syndication Party's Failure to Remit Funds 36
11.5 Agency Appointment 37
11.6 Power and Authority of Agent 37
11.7 Duties of Agent 38
11.8 Agent's Resignation or Removal 38
11.9 Consent Required for Certain Actions 38
11.10 Distribution of Principal and Interest 39
11.11 Distribution of Certain Fees and Amounts 40
11.12 Loan Documents 40
11.13 Collateral Application 40
11.14 Amounts Required to be Returned 41
11.15 Reports and Information to Syndication Parties 41
11.16 Standard of Care 42
11.17 No Trust Relationship 42
11.18 Sharing of Costs and Expenses 42
11.19 Syndication Parties' Indemnification of Agent 42
11.20 Books and Records 43
11.21 Agent Fee 43
11.22 Representations and Warranties of All Parties 43
11.23 Representations and Warranties of Xxxxx Fargo 44
11.24 Syndication Parties' Independent Credit
Analysis 44
11.25 No Joint Venture or Partnership 45
11.26 Purchase for Own Account/Restrictions on
Transfer 45
11.27 Method of Making Payments 46
11.28 Events of Syndication Default/Remedies 46
11.29 Further Assurances 47
12. Miscellaneous Provisions 47
12.1 Definitions 47
12.2 No Waiver 54
12.3 Notices 54
12.3.1 Borrowers 54
12.3.2 Syndication Parties 55
12.3.3 Agent 55
12.4 Entire Agreement 56
12.5 Colorado Law 56
12.6 Amendment 56
12.7 Severability/Titles 56
12.8 Counterparts 56
12.9 Waiver of Jurisdiction, Service of Process, and
Jury Trial 56
12-10 Arbitration 58
12.11 Successors and Assigns 60
12.12 Termination and Mutual Release 60
12-13 Costs and Expenses 60
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12.14 Replacement Notes 61
12.15 Notice to Syndication Parties and Agent 61
12.16 Joint and Several Liability 61
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EXHIBITS
Exhibit 5.1 Form of Note
Exhibit 6.1.4 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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CREDIT AGREEMENT
This Credit Agreement ("Agreement") is entered into as of the 1st day of
August, 1996, by and between 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, 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").
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 Headquarters
Building ("Construction"); provided, however that the aggregate amount of Loan
proceeds used to fund the Construction shall not exceed $5,000,000.00
("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
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for the Construction or an agreement between Borrowers and a third party which
is not an affiliate of Borrowers for the purchase of the 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
$10,000,000.00 ("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
Borrower 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.
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
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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 Fee.
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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 from the Closing Date at
the Base Rate as it may change from time to time plus 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, Xxxxx Fargo, N.A.
at its principal office in San Francisco, California ("Xxxxx Fargo California").
The Prime Rate is not necessarily the best rate which Xxxxx Fargo California
charges to its customers, and Xxxxx Fargo California 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 Rate"). A Libor Rate Request must be submitted
each time that a Borrower
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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 set at the Closing 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, 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
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less than or equal to 1.25 100 basis points 0 basis points
less than or equal to 1.50 more than 1.25 125 basis points 0 basis points
less than or equal to 2.00 more than 1.50 150 basis points 25 basis points
more 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.
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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.
4.7 Additional Provisions for Libor Loans.
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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 cancelled, 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.
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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
(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
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on Borrowers' Leverage Ratio in accordance with the following table:
Leverage Ratio Commitment Fee
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less than or equal to 1.25 22.5 basis points
less than or equal to 1.50 more than 1.25 27.5 basis points
less than or equal to 2.00 more than 1.50 32.5 basis points
more than 2.00 37.5 basis points
The Commitment Fee will be set at the Closing 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.
5. Payments.
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5.1 Notes. Each Syndication Party's Syndication Interest in the Loan shall
be evidenced by a promissory note 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)
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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.
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;
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(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
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
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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 is subject to satisfaction, in Agent's sole discretion,
of each of the following conditions precedent:
6.1.1 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 Closing Date as though made on and as of
such date.
6.1.2 No Event of Default. No Event of Default has occurred and no
event has 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 shall have received duly
executed originals of this Agreement and the Notes (collectively, the "Loan
Documents").
6.1.4 Advance Request. Agent shall have received a written request
for an Advance in the form attached hereto as Exhibit 6.1.4 ("Advance Request")
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 Construction
does not exceed the Construction Commitment Amount ("Construction Commitment
Amount Certification").
6.1.5 Legal opinion. Agent shall have 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 shall have 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
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certified as true and complete by the Secretary of such Borrower.
6.1.7 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 the Loan Documents and
naming the officer(s) of each Borrower who are authorized to execute the Loan
Documents on behalf of such Borrower, certified to be true and correct by the
Secretary of such Borrower.
6.1.8 Authorized Representatives. Each Borrower shall have 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 shall be 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 shall have 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
are 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 has occurred and
is continuing or would result from the making of the Loan.
6.1.10 Evidence of Insurance. Agent shall have received insurance
certificates and such other evidence, in form and substance satisfactory to
Agent, of all insurance required to be maintained by Borrowers under this
Agreement.
6.1.11 Evidence of Consents. Agent shall have received evidence that
all consents and approvals of governmental authorities and third parties which
are necessary for the execution, delivery and performance of the Loan Documents
and the transactions contemplated thereby have been obtained and are in full
force and effect.
6.1.12 Fees and Expenses. Agent shall have received payment from
Borrowers of the fees specified in this Agreement or the Fee Letter as being
payable on the Closing Date and all out-of-pocket costs and expenses incurred by
Agent (including,
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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 Loan Documents and the
transactions contemplated thereby, which fees and expenses Borrowers hereby
authorize Agent to pay by disbursement from the Loan.
6.1.13 No Material Adverse Change. No material adverse change shall
have occurred in the condition, operations, or prospects of Borrowers since
April 30, 1996.
6.1.14 Other Documents. Borrowers shall have provided or caused to
be provided to Agent such other documents, instruments and agreements as Agent
may reasonably request.
6.1.15 Appointment of The Corporation Company. Agent shall 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.
6.2.4 Advance Request. Agent shall have received (including by
facsimile transmission) a duly completed Advance Request signed by an Authorized
Representative and containing a 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
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Agent before 10:00 am, 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, Borrower 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 Agents 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
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 Amount. If the Advance is to be used
for the purpose of funding the Construction, in excess of an amount which, when
added to all prior Advances made for the purpose of funding the Construction,
would exceed the 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 Construction
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or an agreement between Borrowers and a third party which is not an affiliate of
Borrowers for the purchase of the 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 Closing. The execution and delivery of the Loan Documents shall take
place July 30, 1996 ("Signing Date") at 3:30 p.m. Mountain Time at the offices
of Holland & Xxxx LLP located at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000,
7. Borrowers' Representations and Warranties.
Borrowers, to induce the Syndication Parties to make the Loan, 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
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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.
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
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shown thereon to be due and no such tax returns are being audited as of the
Closing Date. 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 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.
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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 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.
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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.
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
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("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 Borrower
(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 Borrower have been duly authorized and validly issued
and are fully paid and nonassessable. No authorized but unissued shares and no
treasury shares of any Borrower are subject to any option, warrant, right to
call or commitment of any kind or character except those arising pursuant to the
Plans.
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 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
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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.
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
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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.
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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 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 either: (a) involves an amount of $100,000 or more, singly or in the
aggregate at any time, or (b) 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
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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 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
statements, annual reports on Form 10Q. reports on Form 8K, proxy material and
annual reports to shareholders and any and all amendments thereof or supplements
thereto.
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 Agreement. 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,
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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 requiring at least ten (10) days' notice to Agent
prior to any cancellation for nonpayment 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
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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 Borrowers properties,
books, and records, and to discuss such Borrowers 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 indefeasible paid
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 Agents
request, promptly deliver to Agent a
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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 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
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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.
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,
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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 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.
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 occurring (i) in any twelve (12) month
period does not exceed $4,000,000 as of the end of such twelve (12) month period
or (ii) during the Loan Period does not exceed $10,000,000, and (b) taking into
account each such acquisition, Borrowers remain in compliance with all of the
financial covenants set forth in Section 8.13 hereof,
9.4 Mergers. Enter into any merger, consolidation, joint venture, or other
combination, except 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
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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 Section 9.3 of this Agreement occurring
(i) in any twelve (12) month period does not exceed $4,000,000 as of the end of
such twelve (12) month period or (ii) during the Loan Period does not exceed
$10,000,000 as of the end of the Loan Period.
9.5 Recapitalization. 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 Borrowers may
redeem, purchase or retire their capital stock as required under the terms of
the Plans and may otherwise redeem, purchase or retire their capital stock up to
$5,000,000 in the aggregate of their capital stock during the Loan Period.
9.6 Dividends and Distributions. Declare or pay or set aside for payment
any dividends upon any shares of the capital stock of any Borrower (except
dividends payable in shares of such stock) or purchase, redeem or retire, or
make any other distribution on any shares of capital stock of any Borrower,
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
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(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:
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 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;
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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;
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 $2,000,000;
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 $2,000,000,
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;
9.11.3 investments by any Borrower in an aggregate amount not to
exceed $1,000,000 at any time during the Loan Period in entities engaged in
similar lines of business as Borrowers.
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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 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 Q) 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 consol idated 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
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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 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,
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10.8 Dissolution. The dissolution, liquidation or termination of existence
of any Borrower.
10.9 Change of Control. (a) C, Xxxxxx XxXxxxx, Xxxx X. Xxxxxxxx and Xxxxxx
X. Xxxxxx shall cease to beneficially own and control the majority of the shares
of common stock of Holding Company, or (b) Holding Company shall cease to
beneficially own and control the majority of the shares of common stock of World
Solutions and World Source (each of the events set forth in (a) and (b) above, a
"Change of Control"),
10.10 Material Adverse Change. The occurrence of a Material Adverse Effect
with respect to any Borrower.
10.11 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 10.11, 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.
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.
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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
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 Agents 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
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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, 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
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
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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:
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11.9.1 One hundred percent (100%) of the Syndication Shares before:
(a) Agreeing to an increase in the Aggregate Commitment
Amount, the Construction Commitment Amount, the LC Commitment Amount or an
extension of the Termination Date;
(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
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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:
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
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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, 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
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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 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
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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 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
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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 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
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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, (y) 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,
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any Syndication Party 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.
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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.
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 California 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
California 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 California 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 California 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,
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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 $27,000,000 in connection with the construction of
the Headquarters Building.
"Closing Date" shall mean the date on which the initial Advance is made to
or on behalf of Borrowers hereunder.
"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, 25-15-101f 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%)
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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.
"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 Building" shall mean the office building and related
facilities to be constructed on the Headquarters Land.
"Headquarters Land" the real property described on Exhibit 12.1 (a)
hereto.
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"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 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.
"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
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liability partnership, trust, organization, government, governmental agency, or
other entity.
"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 California as its Prime Rate, with the understanding that
Xxxxx Fargo California'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
California may designate. Each change in the Prime Rate will be effective on the
day the change is announced within Xxxxx Fargo California.
"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
"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.
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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:
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 6.1.4
"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
"Change of Control" Section 10.9
"Closing Date" Section 6.5
"COBRA" Section 7.12.15
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"Code" Section 7.12.1
"Construction" Section 2.2
"Construction Commitment Amount" Section 2.2
"Construction Commitment
Amount Certification" Section 6.1.4
"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 11.3.2
"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
"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 Documents" Section 6.1.3
"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
"Potential Default" Section 6.1.2
"Premises Section 7.15.1
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"Regulatory Change" Section 8.15
"Required Lenders" Section 11.8
"Revolving Loan" Section 2.1
"SEC" Section 8.2.12
"Signing Date" Section 6.5
"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
"Xxxxx Fargo California" Section 4.1
"Wire Instructions" Section 11.27
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
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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 (COLORADO), N.A.
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxx
with a copy to:
Xxxxx Fargo Bank Corporate Banking Group
MAC0101-091
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
FAX: (000) 000-0000
Attention: Xxxxxxx 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: Key Bank of Colorado
000 Xxxxxx Xxxxxx.
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
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: Xxxxx Xxxxxx
12.3.3 Agent:
Agent: XXXXX FARGO BANK (COLORADO), N.A.,
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000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxx Xxxx
Xxxxx Fargo Bank Corporate Banking Group
MAC0101-091
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
FAX: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
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 nonexclusive
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 convenient with
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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 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
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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 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 X.XX,
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
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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 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 arbitrators) 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 arbitrators) shall be in writing and
shall specify the factual and legal basis for the award.
59
68
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 arbitrators) 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, 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 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 arbitrators), as applicable, make a specific finding that such
Borrower(s) have
60
69
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).
12.14 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.
12.15 Notice to Syndication Parties and Agent. No action shall be
commenced by Borrower for any claim against Agent or any Syndication Party on
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.
12.16 Joint and Several Liability. The liability of the Borrowers
hereunder and under the Notes shall be joint and several.
61
70
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
SYNDICATION PARTIES:
--------------------
XXXXX FARGO (COLORADO), N.A.
By: _____________________________
Name: _____________________
Title: ____________________
XXXXXX TRUST AND SAVINGS BANK
By: _____________________________
Name: _____________________
Title: ____________________
62
71
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: _____________________________
Name:
Title:
X.X. XXXXXXX WORLD SOLUTIONS COMPANY, a
Colorado corporation
By: _____________________________
Name:
Title:
X.X. XXXXXXX WORLD SOURCE COMPANY, a
Colorado corporation
By: _____________________________
Name:
Title:
SYNDICATION PARTIES:
--------------------
XXXXX FARGO (COLORADO), N.A.
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: _____________________________
Name: _____________________
Title: ____________________
62
72
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: _____________________________
Name:
Title:
X.X. XXXXXXX WORLD SOLUTIONS COMPANY, a
Colorado corporation
By: _____________________________
Name:
Title:
X.X. XXXXXXX WORLD SOURCE COMPANY, a
Colorado corporation
By: _____________________________
Name:
Title:
SYNDICATION PARTIES:
--------------------
XXXXX FARGO (COLORADO), N.A.
By: _____________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
62
00
XXX XXXX XX XXXXXXXX
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Closin
Title: Executive Vice President
AGENT:
-----
XXXXX FARGO BANK (COLORADO), N.A.
By: _____________________________
Name: _____________________
Title: ____________________
63
74
KEY BANK OF COLORADO
By: _____________________________
Name: _____________________
Title: ____________________
AGENT:
-----
XXXXX FARGO BANK (COLORADO), N.A.
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
63
75
Exhibit 5. 1
to Credit Agreement
FORM OF PROMISSORY NOTE
$XXX,000,000 Date: August 1, 1996
Xxxxx Fargo Bank (Colorado), N.A. ("Xxxxx Fargo"), as a Syndication Party
and as Agent, the other Syndication Parties and Makers entered into that certain
Credit Agreement dated as of August 1, 1996 ("Credit Agreement") pursuant to the
terms of which Makers agreed to deliver a series of promissory notes in the
aggregate principal amount of $50,000,000.00 payable individually to Xxxxx Fargo
and the other Syndication Parties named therein (collectively the "Notes"),
Capitalized terms used but not defined herein shall have the meaning set forth
in the Credit Agreement if defined therein.
TERMS OF NOTE
--------------
FOR VALUE RECEIVED, X.X., XXXXXXX & COMPANY, a Colorado corporation, X.X.,
XXXXXXX WORLD SOLUTIONS COMPANY, a Colorado corporation, and X.X. XXXXXXX WORLD
SOURCE COMPANY, a Colorado corporation (collectively, "Makers"), jointly and
severally promise to pay to the order of [XXXXX FARGO] OR
[_____________________________]("Payee") at the office of Xxxxx Fargo at 000
00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, or such other place as the Agent shall
direct in writing, the principal sum of______________________________Dollars
($XXX,000,000.00) or, if less, the amount outstanding under this Note for
Advances pursuant to the Credit Agreement, together with such interest thereon
and such fees as are provided for in the Credit Agreement. This Note is issued
and delivered to Payee pursuant to the Credit Agreement.
The unpaid balance of this Note from time to time outstanding shall bear
interest at the Variable Rate or the Libor Rate ("Interest Rate"), determined as
provided in the Credit Agreement. The Interest Rate shall be converted from an
annual rate to a daily rate based on a 360-day year and applied to the actual
days elapsed. At maturity, including acceleration of maturity upon Makers,
default, the entire amount of unpaid principal and accrued interest shall bear
interest at a rate equal to two hundred (200) basis points in excess of the
highest applicable Interest Rate then applicable to any of the principal
outstanding hereunder, as such Interest Rate may change from time to time
("Default Interest Rate"). Interest on Variable Rate
76
Loans shall be payable quarterly in arrears no later than the last day of each
Fiscal Quarter during the term of this Note, and 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 Three Month
Anniversary Date for such Libor Loan; provided, however that if the Three Month
Anniversary Date for such Libor Loan 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. If there shall occur an Event
of Default or a Potential Default, at the option of Agent, interest shall be
payable upon Agents demand. Payment in full of the entire outstanding principal
balance on this Note, together with accrued interest thereon, shall be due and
payable on the earlier of (a) July 31, 1999 ("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 Note on account of the occurrence of an Event
of Default ("Maturity Date"). If the due date for any payment of principal or
interest under this Note shall fall on other than a Business Day, such payment
shall be due on the next day which is a Business Day, Payments received after
11:00 a.m. Pacific time on any Business Day will be deemed received on the next
succeeding Business Day.
This Note has been issued by Makers to Payee pursuant to the Credit
Agreement and reference is made thereto for specific terms and conditions under
which this Note is made and to which this Note is subject.
The indebtedness evidenced by this Note may be repaid and reborrowed prior
to the Termination Date in accordance with, and subject to the limitations of,
Section 2.1 of the Credit Agreement. This Note is subject to voluntary and
mandatory prepayments ("Prepayments") as set forth in Sections 5.4 and 5.5 of
the Credit Agreement; provided that Makers shall be required to pay any Funding
Losses owing on account of any such Prepayment, Principal may be reborrowed up
to the Termination Date subject to the conditions set forth in the Credit
Agreement. Upon the occurrence of an Event of Default, Makers agree that Agent
shall have all rights and remedies set forth in the Credit Agreement, including
without limitation the rights of acceleration set forth in Section 10.11 of the
Credit Agreement, In addition, Agent shall have the right to recover all costs
of collection and enforcement of this Note as provided in Section 12.13 of the
Credit Agreement.
Makers and any endorser, guarantor, surety or assignor hereby waives
presentment for payment, demand, protest, notice of
-2-
77
protest, and notice of dishonor and nonpayment of this Note, and all defenses on
the ground of delay, suretyship, impairment of collateral or of extension of
time at or after maturity for the payment of this Note.
This Note shall be governed in all respects by the law of the State of
Colorado.
Makers:
X.X. XXXXXXX & COMPANY,
a Colorado corporation
By: _______________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
X.X. XXXXXXX WORLD SOLUTIONS
COMPANY, a Colorado corporation
By: __________________________
Name: Xxxxxxx E, Xxxxx
Title: Chief Financial Officer
X.X. XXXXXXX WORLD SOURCE
COMPANY, a Colorado corporation
By: ___________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
-3-
78
Exhibit 6.1.4
to Credit Agreement
FORM OF
ADVANCE REQUEST
---------------
XXXXX FARGO BANK (COLORADO), N.A.
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Reference is made to that certain Credit Agreement dated as of August 1,
1996 (as amended, modified or supplemented from time to time, the "Credit
Agreement") among X.X. Xxxxxxx & Company, X.X. Xxxxxxx World Solutions Company
and X.X. Xxxxxxx World Source Company (each, a "Borrower" and, collectively,
"Borrowers"), Xxxxx Fargo Bank (Colorado), N.A. ("Xxxxx Fargo"), Xxxxxx Trust
and Savings Bank ("Xxxxxx Bank"), and Key Bank of Colorado ("Key Bank") (Xxxxx
Fargo, Xxxxxx Bank, Key Bank and any future Syndication Parties under the Credit
Agreement shall be collectively referred to herein as, the "Lenders"), and Xxxxx
Fargo, as agent for the Lenders (in such capacity, "Agent"). Capitalized terms
used herein shall have the respective meanings assigned to them in the Credit
Agreement if defined therein.
1. Pursuant to the Credit Agreement, Borrower hereby requests an Advance
upon the following terms:
(a) The principal amount of the requested Advance is $___________.
(b) The date of the requested Advance is to be ______, 199___.
(c) The aggregate amount of the Advance for which a Variable Rate
interest selection is made is $_________.
(d) The aggregate amount of the Advance for which a Libor Rate
interest selection is made, and each requested Interest Period, are:
Amount Interest Period
------ ---------------
$_____________ _______ months
$_____________ _______ months
2. Borrower hereby certifies to Agent and the Lenders that, on the date of
this Advance Request and after giving effect to the requested Advance (including
the use of the proceeds thereof):
79
July 26, 1996
Page 2
(a) The representations and warranties set forth in the Credit
Agreement are true and correct in all material respects as if made on such date;
(b) No Event of Default or Potential Default has occurred;
(c) Each of the Loan Documents remains in full force and effect;
(d) No material adverse change has occurred in the condition,
operations, or prospects of any Borrower; and
(e) After giving effect to the Advance requested in this Advance
Request, the amount of the Loan used by any Borrower to fund the Construction
does not exceed the Construction Commitment Amount.
IN WITNESS WHEREOF, the undersigned is an Authorized Representative of the
Borrower executing this Advance Request and has caused this Advance Request to
be duly executed on behalf of such Borrower as of ________________, 199____.
-----------------------
By: ___________________
Title: ________________
80
Exhibit 7.3
to Credit Agreement
PERMITTED ENCUMBRANCES AND CONDITIONS OF ASSETS
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 (a) real property liens related to the
Headquarters Building which are attached hereto, and (b) as otherwise permitted
under the Credit Agreement.
81
Attachment to Exhibit 7.3
to Credit Agreement
1. EASEMENT AND RIGHT OF WAY FOR COMMUNICATION FACILITIES AS GRANTED TO THE
MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY BY DENVER TECHNOLOGICAL
CENTER, INC., IN INSTRUMENT RECORDED JUNE 11, 1975 IN BOOK 1060 AT PAGE
183.
(AFFECTS PARCELS A-1 AND A-5-B)
2. RESERVATIONS MADE BY THE UNION PACIFIC RAILWAY COMPANY IN DEED RECORDED
APRIL 3, 1896 IN BOOK 1122 AT PAGE 78, OLD ARAPAHOE COUNTY RECORDS.
THE ABOVE MINERAL RESERVATION WAS LATER LIMITED BY THE UNION PACIFIC
RAILROAD COMPANY, SUCCESSOR TO THE UNION PACIFIC RAILWAY COMPANY IN WHICH
SAID DAMAGE THE SURFACE OF THE LAND SO RELINQUISHMENTS WERE EXECUTED: a)
AS EVIDENCED BY INSTRUMENT RECORDED JANUARY 5, 1960 IN BOOK 1169 AT PAGE
403 (ARAPAHOE COUNTY RECORDS):
b) AS EVIDENCED BY INSTRUMENT RECORDED JUNE 6, 1969 IN BOOK 1816 AT PAGE 4
(ARAPAHOE COUNTY RECORDS) :
c) AS EVIDENCED BY INSTRUMENT RECORDED DECEMBER 31, 1962 IN BOOK 9973 AT
PAGE 514.
(AFFECTS ALL THAT PORTION OF SUBJECT PROPERTY LYING IN SECTION 9)
3. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE
UNITED STATES, AS RESERVED IN UNITED STATES PATENT RECORDED JANUARY 26,
1891 IN BOOK 647 AT PAGE 632. (AFFECTS THAT PORTION OF PARCELS A-1, A-2
AND A-3 LYING IN SECTION 8)
4. RIGHT OF WAY TO AMERICAN TELEPHONE AND TELEGRAPH COMPANY AS CONTAINED IN
INSTRUMENT RECORDED JULY 19, 1950 IN BOOK 683 AT PAGE 502. (AFFECTS
PARCELS X-0, X-0 AND A-5-3)
5. UTILITY EASEMENT AS GRANTED TO AMERICAN TELEPHONE AND TELEGRAPH COMPANY IN
INSTRUMENT RECORDED JULY 19, 1950, IN BOOK 683 AT PAGE 496 (ARAPAHOE
COUNTY RECORDS) (AFFECTS PARCELS A-2 AND A-3).
6. EACH AND EVERY RIGHT OR RIGHTS OF ACCESS TO AND FROM ANY PART OF THE RIGHT
OF WAY, FROM AND TO ANY PART OF THE SUBJECT PROPERTY ABUTTING UPON
HIGHWAYS, AS GRANTED TO THE DEPARTMENT OF HIGHWAYS, STATE OF COLORADO, BY
THE FOLLOWING INSTRUMENTS: a) DEED RECORDED NOVEMBER 29, 1973 IN BOOK 801
AT PAGE 664 (RECORDED MARCH 23, 1971 IN BOOK 1915 AT PAGE 406 OF ARAPAHOE
COUNTY RECORDS); b) DEED RECORDED JULY l2,1974 IN BOOK 911 AT PAGE 622; c)
DEED RECORDED JANUARY 21, 1975 IN BOOK 1001 AT PAGE 252.
7. RESTRICTIONS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT
OMITTING RESTRICTIONS, IF ANY, BASED ON RACE, RELIGION, COLOR OR NATIONAL
ORIGIN AS CONTAINED IN INSTRUMENT RECORDED JULY 13, 1976 IN BOOK 1982 AT
PAGE 381 AS AMENDED AND RESTATED BY INSTRUMENT RECORDED MARCH 15, 1982 IN
BOOK 2550 AT PAGE 82.
8. EASEMENT AND RIGHT OF WAY FOR UTILITY LINES AS GRANTED TO PUBLIC SERVICE
COMPANY OF COLORADO BY D.T.C. ASSOCIATES IN THE INSTRUMENT RECORDED JUNE
8, 1982 IN BOOK 2597 AT PACE 676.
(AFFECTS PARCELS A-1 AND A-6)
82
Attachment to Exhibit 7.3
to Credit Agreement
9. COVENANTS, CONDITIONS AND RESTRICTIONS, WHICH DO NOT CONTAIN A FORFEITURE
OR REVERTER CLAUSE, BUT OMITTING RESTRICTIONS, IF ANY, BASED ON RACE,
COLOR, RELIGION OR NATIONAL ORIGIN AS CONTAINED IN INSTRUMENT RECORDED
MARCH 30, 1978 IN BOOK 1529 AT PAGE 401 AND RE-RECORDED MAY 30, 1978 IN
BOOK 1573 AT PAGE 108.
THE TERM OF THIS RESTRICTION IS FOR THE PERIOD DESCRIBED IN LEASE AGREEMENT
SHORT FORM OF LEASE RECORDED MARCH 22, 1977 IN BOOK 1407 AT PAGE 253, SAID
DOCUMENT DISCLOSES A TERM OF 75 YEARS COMMENCING ON JANUARY 1, 1977,
(AFFECTS PARCELS A-2, A-5-3 AND A-6)
10. UTILITY EASEMENT OVER A PORTION OF SUBJECT PROPERTY AS GRANTED BY DTC
SHOPPING CENTER TO PUBLIC SERVICE COMPANY OF COLORADO BY INSTRUMENT
RECORDED FEBRUARY 1, 1982 IN BOOK 2527 A7 PAGE 513.
CORRECTION THERETO RECORDED JULY 20, 1989 UNDER RECEPTION NO. 065750.
(AFFECTS PARCEL A-1)
11. UTILITY EASEMENT GRANTED BY DTC SHOPPING CENTER, A COLORADO GENERAL
PARTNERSHIP TO PUBLIC SERVICE COMPANY OF COLORADO BY INSTRUMENT RECORDED
FEBRUARY 1, 1982 IN BOOK 3527 AT PAGE 516. (AFFECTS PARCELS A-1 AND A-4)
12. EASEMENT AND RIGHT OF WAY FOR PIPELINES PURPOSES GRANTED TO CITY AND COUNTY
OF DENVER, ACTING BY AND THROUGH ITS BOARD OF WATER COMMISSIONERS BY DTC
SHOPPING CENTER, A COLORADO GENERAL PARTNERSHIP BY INSTRUMENT RECORDED
APRIL 2, 1984 IN BOOK 3059 AT PAGE 423. (AFFECTS PARCEL A-1)
13. EASEMENT AND RIGHT OF WAY FOR ACCESS PURPOSES GRANTED TO DTC HOTEL LTD., A
TEXAS LIMITED PARTNERSHIP BY DTC SHOPPING CENTER, A COLORADO GENERAL
PARTNERSHIP AND DENVER TECH CENTER ASSOCIATES, A COLORADO GENERAL
PARTNERSHIP BY INSTRUMENT RECORDED JUNE 20, 1984 IN BOOK 3128 AT PAGE 98.
(AFFECTS PARCELS A-1 AND A-6)
14. EASEMENT AND RIGHT OF WAY FOR EMERGENCY FIRE AND PEDESTRIAN PURPOSES
GRANTED IN INSTRUMENT BY AND BETWEEN DTC SHOPPING CENTER, A COLORADO
GENERAL PARTNERSHIP AND DTC HOTEL, LTD., A TEXAS LIMITED PARTNERSHIP
RECORDED JUNE 20, 1984 IN BOOK 3128 AT PAGE 104. (AFFECTS PARCEL A-1)
15. TERMS, AGREEMENTS, PROVISIONS, CONDITIONS AND OBLIGATIONS AS CONTAINED IN
DETENTION POND EASEMENT AGREEMENT BY AND AMONG DTC SH0PPING CENTER, DENVER
TECH CENTER ASSOCIATES AND XXXX X. XXXXXXX, RECORDED JULY 2, 1981 IN B00K
2404 AT PAGE 432 FOR THE BENEFIT OF SUBJECT PROPERTY.
AMENDMENT THERETO RECORDED FEBRUARY 3, 1988 UNDER RECEPTION NO. 232730.
(AFFECTS PARCELS A-1. X-0, X-0, X-0-0 AND A-6).
16. RIGHT OF WAY AS GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH
COMPANY IN INSTRUMENT RECORDED APRIL 30, l985 UNDER RECEPTION XX. 000000
AND JUNE 11, 1985 UNDER RECEPTION NO. 025637. (AFFECTS PARCEL A-1)
17. UTILITY EASEMENT AS GRANTED TO PUBLIC SERVICE COMPANY OF COLORADO IN
INSTRUMENT RECORDED JUNE 17, 1985, UNDER RECEPTION NO. 027882.
(AFFECTS PARCEL A-1)
18. TERMS, CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED DECEMBER
31, 1985 AT RECEPTION NO. 010768 (AFFECTS PARCEL A-1).
Attachment to Exhibit 7.3
to Credit Agreement
19 TERMS, CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED DECEMBER
31, 1985 AT RECEPTION NO. 010769 (AFFECTS PARCEL A-1)
20. UTILITY EASEMENT AS GRANTED TO PUBLIC SERVICE COMPANY OF COLORADO IN
INSTRUMENT RECORDED JANUARY 27, 1986, UNDER RECEPTION NO. 021015 (AFFECTS
PARCEL A-3).
21. TERMS, CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED March 17,
1987 AT RECEPTION NO. 105026 (AFFECTS PARCEL A-1).
22. COSTS AND ASSESSMENTS FOR THE BENEFIT OF SUBJECT PROPERTY AS SET FORTH IN
ORDINANCE NO. 239, SERIES OF 1990 CREATING A BUSINESS IMPROVEMENT DISTRICT
RECORDED MAY 7, 1990 UNDER RECEPTION NO. 039892. (AFFECTS ALL PARCELS)
23. TERMS, CONDITIONS AND PROVISIONS OF ACCESS EASEMENT RECORDED February 19,
1986 AT RECEPTION NO. 030288
SUBORDINATION THERETO RECORDED JULY 10, 1986 UNDER RECEPTION N0. 093334.
(AFFECTS PARCEL A-1).
24. UTILITY EASEMENT AS GRANTED TO PUBLIC SERVICE COMPANY OF COLORADO IN
INSTRUMENT RECORDED June 17, 1985, UNDER RECEPTION NO. 27877.
25. TERMS, CONDITIONS AND PROVISIONS OF ACCESS EASEMENT AGREEMENT RECORDED
December 15, 1992 AT RECEPTION NO. 0149017.
26. UTILITY EASEMENT AS GRANTED TO PUBLIC SERVICE COMPANY OF COLORADO IN
INSTRUMENT RECORDED June 23, 1994, UNDER RECEPTION NO. 9400101665.
27. UTILITY EASEMENT AS GRANTED TO PUBLIC SERVICE COMPANY OF COLORADO IN
INSTRUMENT RECORDED March 21, 1995, UNDER RECEPTION NO. 9500031922.
28. STORM SEWER, GAS AND ELECTRIC LINES, TELEPHONE LINES NOT WITHIN AN EASEMENT
AS EVIDENCED BY VARIOUS ENTRIES ON SURVEY BY XXXXXXXXX X. XXXXX DATED
AUGUST 15, 1995, REVISED SEPTEMBER 13, 1995, NOVEMBER 8, 1995, NOVEMBER 12,
1995 AND NOVEMBER 14, 1995 JOB NO. 58-95
THE FOLLOWING LEASES AND TENANCIES:
LICENSE AGREEMENT EXECUTED FEBRUARY 12, 0000 XXXXXXX XXX XXXX XXXX VENTURE
AND XXXXXXXXX METROPOLITAN DISTRICT
PARKING LICENSE AGREEMENT DATED OCTOBER 3, 0000 XXXXXXX XXX XXXX XXXX
VENTURE AND MOUNTAIN VIEW ASSOCIATES, LTD.
83
Exhibit 7.4
to Credit Agreement
LITIGATION
X.X. XXXXXXX & COMPANY V. XXXXX XXXXXX AND XXXXXX MANAGEMENT CONSULTING, U.S.
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, CASE NO. 94-C-04865.
X.X. Xxxxxxx filed its Complaint in the referenced lawsuit in August 1994. X.X.
Xxxxxxx seeks recovery from Xxxxxx and Xxxxxx for their interference with
contracts and prospective business advantage in connection with the failure of
SNE to make its payments due on license, service and maintenance agreements.
X.X. Xxxxxxx filed an action in arbitration against SNE under the rules of the
American Arbitration Association and successfully recovered approximately
$890,000 from SNE. Xxxxxx and Xxxxxx were consultants hired by SNE who convinced
SNE not to pay X.X. Xxxxxxx monies owed pursuant to contract. X.X. Xxxxxxx will
pursue this case vigorously.
This matter has been scheduled for trial on January 15, 1997.
SSA (CHINA) LIMITED V. J.D. XXXXXXX, ET AL, THE SECOND INTERMEDIATE COURT,
BEIJING, PEOPLES REPUBLIC OF CHINA.
SSA (China) Limited, a subsidiary of Systems Software Associates a Chicago based
competitor of X.X. Xxxxxxx, filed suit in Beijing, China against "X.X. Xxxxxxx"
(the correct name of the X. X. Xxxxxxx' Wholly-Owned Foreign Entity in China is
X.X. Xxxxxxx Shanghai Co., Ltd.) and three employees of X.X. Xxxxxxx China, who
were former employees of various SSA entities. SSA claims that the hiring of the
former SSA employees constitutes unfair competition causing it to "suffer in its
trade reputation and economic losses." SSA seeks recovery from X.X. Xxxxxxx and
the individual employee defendants of 1,500,000 RMB (approximately US $180,000),
the payment of the Plaintiff s solicitors' fees and court costs, and the
termination of the three individual defendant employees. Settlement discussions
are currently proceeding between the parties.
X.X. XXXXXXX & COMPANY V. MODEL IMPERIAL SUPPLY CO., INC., AMERICAN ARBITRATION
ASSOCIATION, CASE NO. 77-117-0096-96.
X.X Xxxxxxx submitted its Demand For Arbitration on April 22, 1996. The dispute
arises out of Model Imperial failure to pay X-X. Xxxxxxx for software it
licensed and for related services and Updates. J X. Xxxxxxx claims that Model
Imperial breached the Software License Agreement, the Software Services
Agreement and the Software Updates Agreement. X.X. Xxxxxxx alleges Model
Imperial induced X.X. Xxxxxxx to enter into the three agreements by fraud and
misrepresentation. X.X. Xxxxxxx seeks $438,975.00 plus other damages to be
proven, costs, attorneys' fees and interest. X.X. Xxxxxxx has been informed that
Model Imperial has filed for protection under Chapter 11 of the Bankruptcy Act,
but has not yet received confirmation officially of that fact. The arbitrators
to hear the dispute has been selected, subject to the impact of the bankruptcy
filing, and the hearing is scheduled for September 4, 1996.
84
Exhibit 7.8
To Credit Agreement
LIST OF MATERIAL AGREEMENTS
REAL ESTATE LEASES
Location Owner/Lessor Expiration Remaining
--------- ------------ ---------- ---------
Date Xxx.Xxxx as
---- ----------
of August
----------
1996
-----
Stanford Place I Public Employees' September 30, 1998, $6,789,156
0000 X. Xxxxx Xxxxxx Retirement Association with the exception
Xxxxxx, Xxxxxxxx 00000 of Colorado of three floors that
will extend until 2001
Denver Corporate Center III Equity Office June 30, 1997 $1,425,495
0000 X. Xxxxx Xxxxxx Properties, L.L.C.
Xxxxxx, Xxxxxxxx 00000
Denver Corporate Center III Equity Office September 29, 2000 $2,631,524
0000 X. Xxxxx Xxxxxx Xxxxxxxxxx, X.X.X.
Xxxxxx, Xxxxxxxx 00000
(Sublease)
Comerica Bank Building Two Town Center December 6, 2000 $2,862,667
000 Xxxxx Xxxxxxxxx Associates
Suke 000
Xxxxx Xxxx, XX 00000
Xxx Xxxxx International American National Bank & December 31, 1999 $2,470,340
Center Trust Company of Chicago,
0000 Xxxxxxxxxxx Xxxx as Trustee
Xxx Xxxxx, XX 00000
Riverwood 100 Cheval Limited Partnership February 29, 2000 $2,520,758
0000 Xxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxx, XX 00000
85
Exhibit 7. 8
To Credit Agreement
Real Estate Owner/Lessor Expiration Remaining
----------- ------------ ---------- ---------
Location Date Xxx.Xxxx as
--------- ---- -----------
of August
---------
1996
----
Merritview Fairfield Merritt View October 31, 2005 $4,752,641
000 Xxxx Xxxxxx, 0xx Xxxxx Limited Partnership
Xxxxxxx, XX 00000
Stokenchurch House Umberslade Securities June 1995/15 years $8,697,917
Oxford Road Limited
Stokenchurch,
Buckinghamshire
Vendor Contracts
----------------
Name Execution Date/Term Type of Service
---- ------------------- ---------------
ICG Access Services, Inc. July 19, 1995/5 years Telecommunications
MCI January 4, 1995/3 years Telecommunications/
Concert Virtual Network
Services
MCI August 11, 1993/6 years Telecommunications/
Interstate and
International
Services
US West Communications January 30, 1996/3 years Telecommunications/
Fiber Optics
IBM October 25, 1995 to Equipment and Program
April 30, 1997 Loan
IBM May 7, 1992 Developer Discount
IBM May 7, 1992 to Software Vendor Loan
April 30,1997
86
Exhibit 7.8
To Credit Agreement
VENDOR CONTRACTS
-----------------
Name Execution Date/Term Type of Service
---- ------------------ ----------------
Sun Microsystems Computer May 7, 1992/2 years Software
Corporation
IBM June 28, 1996/varying International Leasing and
term depending upon Financing the
Transaction Documents
IBM Credit Corporation August 4, 1988/ terminated Equipment Lease
upon one month's written
notice
87
Exhibit 7.12
to Credit Agreement
EMPLOYEE BENEFIT PLANS
Cafeteria Plan - Health, Dental, Vision, etc.
Retirement Savings Plan - 401 (k)
Employee Stock Ownership Plan - ESOP
Employee Stock Purchase Plan - 1983 Plan
Employee Stock Purchase Plan - 1984 Plan
Incentive Stock Option Plan - ISO
Nonqualified Stock Option Plan - NSO
Restricted Stock Grant Plan
88
Exhibit 7.13
to Credit Agreement
CAPITALIZATION OF BORROWERS
X.X. Xxxxxxx & Company
Company Ownership
As of June 30, 1996
X.X. Xxxxxxx & Company's capitalization, expressed both in terms of total number
of shares and percentages, is provided herein as of June 30, 1996.
All issued and outstanding shares of capital stock of each Borrower are
classified Common shares of stock
X.X. XXXXXXX & COMPANY
Common Stock
Number of Shares Percentage
X. Xxxxxxx XxXxxxx* 554,455 49%
Xxxx X. Xxxxxxxx* 191,783 17%
Xxxxxx X. Xxxxxx* 161,129 14%
--------------------------------
Subtotal: 907,367 80%
ESOP 124,636 11%
Individual Employees / Others 97,140 9%
--------------------------------
TOTAL 1,129,143 100%
---------------------------------
* Owned or Controlled
X.X. Xxxxxxx & Company, parent company, owns 100% of X.X. Xxxxxxx World
Solutions Company and X.X. Xxxxxxx World Source Company.
X.X. XXXXXXX WORLD SOLUTIONS COMPANY 100 100%
X.X. XXXXXXX WORLD SOURCE COMPANY 100 100%
89
Exhibit 7.14
to Credit Agreement
X.X. XXXXXXX & COMPANY SUBSIDIARIES
Subsidiary Name Shares % Owned
Owned
X.X. Xxxxxxx World Solutions Company 100 100%
X.X. Xxxxxxx World Source Company 100 100%
X.X. Xxxxxxx Brasil Limitada 17,971,201 100%*
*1 SHARE OWNED BY X.X. XXXXXXX EUROPE N.V./X.X.
X.X. XXXXXXX WORLD SOLUTION SUBSIDIARIES
-----------------------------------------
Subsidiary Name Shares Percentage
Owned of
Ownership
X.X. Xxxxxxx Europe N.V./S.A. 100 100%
X.X. Xxxxxxx Deutschland GmbH 100 100%
Nippon X.X. Xxxxxxx* 8 100%
X.X. Xxxxxxx (U.K.) Ltd. 2,000,000 100%
X.X. Xxxxxxx (Hong Kong) Limited** 100 100%
AD. Xxxxxxx & CM. Foreign Sales, Inc. 1,000 100%
X.X. Xxxxxxx Shanghai Co., Ltd. 1 100%
ID. Xxxxxxx Italia S.p.A. 2 100%
X.X. Xxxxxxx France SA 1,000 100%
* Name changed from X.X. Xxxxxxx Japan, K.K.
** Formedy Laney Park Limited. Name change effective July 19, 1994.
Canada, Netherlands and Mexico are currently in the process of incorporation.
90
Exhibit 7.15
to Credit Agreement
ENVIRONMENTAL MATTERS
None.
91
Exhibit 7.16
to Credit Agreement
INTELLECTUAL PROPERTY
None.
92
Exhibit 9.11.1
to Credit Agreement
INVESTMENT POLICY
For US Dollar Investments
--------------------------
1. Marketable securities issued by or directly and unconditionally guaranteed
by the United States Government or issued by any agency thereof and backed
by the full faith and credit of the United States of America;
2. Marketable direct obligations issued by any state of the United States of
America or by any political subdivision of any such state or by any public
instrumentality of such state provided such obligations have been rated "A"
or better by either Xxxxx'x Investor's Service, Inc. or Standard & Poor's
Corporation;
3. Marketable Preferred Shares issued by any US or foreign corporation
provided such shares have been rated "A" or better by either Xxxxx'x
Investor's Service, Inc. or Standard & Poor's Corporation;
4. Certificates of Deposit or Repurchase Agreements issued by any commercial
bank organized under the laws of the United States, any state thereof or
the District of Columbia provided the bank has unimpaired Capital and
surplus of not less than $250 million;
5. Eurodollar time deposits purchased directly from any commercial bank
organized under the laws of the United States, any state thereof or the
District of Columbia provided the bank has unimpaired Capital and surplus
of not less than $250 million;
and subject to both of the following limitations:
o The maximum permitted maturity for any investment shall be one year from
the date of acquisition of the investment;
o and, the Company's investment in any single issue shall not exceed 10% of
the total outstandings of that issue.
93
For Non US Dollar Investments
-----------------------------
1. Marketable securities issued by the governments of the OECD countries
provided such securities have been rated as A-1/P-1.
2. Certificates of Deposit, time deposits or Bankers' Acceptances issued by
any commercial bank whose short-term debt shall have been rated A-1/P-1.
and subject to both of the following limitations:
o The maximum permitted maturity for any investment shall be six months from
the date of acquisition of the investment;
o and, the Company's investment in any single issue shall not exceed 10% of
the total outstandings of that issue.
2
94
Exhibit 9.11.2
to Credit Agreement
EXISTING INVESTMENTS
X.X. Xxxxxxx New Zealand Limited - Investment value of $150,000
System Software Associates Inc. - One share of Common Stock
American Software, Inc. - One share of Common Stock
Tri-R Systems Corporation - 250 shares of Preferred Stock
95
Exhibit 11.3.1
to Credit Agreement
Form of Initial Payment Notice
-------------------------------
XXXXX FARGO BANK
000 XXXXX XXXXXX
XXX XXXXXXXXX, XX 00000
[DATE OF NOTICE]
XXXXX FARGO BANK
000 XXXXX XXXXXX
XXXXXX XXXXX
XXX XXXXXXXXX, XX 00000
ATTENTION: [INSERT XXXXX FARGO OPERATIONAL CONTACT]
RE: X.X. XXXXXXX & COMPANY
X.X. XXXXXXX WORLD SOLUTIONS COMPANY
X.X. XXXXXXX WORLD SOURCE COMPANY
CREDIT AGREEMENT DATED 08/01/96
TRANSACTION: ADVANCE ON [VARIABLE RATE] [LIBOR] LOAN
A BORROWER HAS NOTIFIED US OF THE FOLLOWING ADVANCE
[VARIABLE RATE] [LIBOR] LOAN : $ [AMOUNT OF ADVANCE]
VALUE DATE : [ ]
YOUR SHARE : $ [ ]
PLEASE WIRE THE FUNDS TO
XXXXX FARGO BANK, N.A.
BNF=SYNDIC=WFBCORP XX XXXXXXX\AC 4518-151576
OBI=X.X.XXXXXXX & COMPANY
NEXT INTEREST PAYMENT DATE : [DATE]
CURRENT APPLICABLE RATE : [RATE]
REGARDS,
AGENCY DEPARTMENT
XXXXX FARGO BANK
96
Exhibit 11.3.2
to Credit Agreement
Form of Loan Notice of Advance
-------------------------------
XXXXX FARGO BANK
000 XXXXX XXXXXX
XXX XXXXXXXXX, XX 00000
[DATE OF NOTICE]
XXXXX FARGO BANK
000 XXXXX XXXXXX
XXXXXX XXXXX
XXX XXXXXXXXX, XX 00000
ATTENTION: [INSERT XXXXX FARGO OPERATIONAL CONTACT]
RE: X.X. XXXXXXX & COMPANY
X.X. XXXXXXX WORLD SOLUTIONS COMPANY
X.X. XXXXXXX WORLD SOURCE COMPANY CREDIT AGREEMENT DATED 08/01/96
TRANSACTION: ADVANCE ON [VARIABLE RATE] [LIBOR] LOAN
A BORROWER HAS NOTIFIED US OF THE FOLLOWING ADVANCE
[VARIABLE RATE] [LIBOR] LOAN : $ [AMOUNT OF ADVANCE]
VALUE DATE : [ ]
YOUR SHARE : $ [ ]
PLEASE WIRE THE FUNDS TO
XXXXX FARGO BANK, N.A.
BNF=SYNDIC=WFBCORP XX XXXXXXX\AC 4518-151576
OBI=X.X.XXXXXXX & COMPANY
NEXT INTEREST PAYMENT DATE : [DATE]
CURRENT APPLICABLE RATE : [RATE]
REGARDS,
AGENCY DEPARTMENT
XXXXX FARGO BANK
97
Exhibit 11.3.3
to Credit Agreement
Form of LC Notice of Advance
---------------------------
XXXXX FARGO BANK
000 XXXXX XXXXXX
XXX XXXXXXXXX, XX 00000
[DATE OF NOTICE]
XXXXX FARGO BANK
000 XXXXX XXXXXX
XXXXXX XXXXX
XXX XXXXXXXXX, XX 00000
ATTENTION: [INSERT XXXXX FARGO OPERATIONAL CONTACT]
RE: X.X. XXXXXXX & COMPANY
X.X. XXXXXXX WORLD SOLUTIONS COMPANY
X.X. XXXXXXX WORLD SOURCE COMPANY
CREDIT AGREEMENT DATED 08/01/96
TRANSACTION: ADVANCE ON [VARIABLE RATE] [LIBOR] LOAN
A BORROWER HAS NOTIFIED US OF THE FOLLOWING ADVANCE
[VARIABLE RATE] [LIBOR] LOAN $ [AMOUNT OF ADVANCE]
VALUE DATE [ ]
YOUR SHARE $ [ ]
PLEASE WIRE THE FUNDS TO
XXXXX FARGO BANK, N.A.
BNF=SYNDIC=WFBCORP XX XXXXXXX\AC 4518-151576
OBI=X.X.XXXXXXX & COMPANY
NEXT INTEREST PAYMENT DATE : [DATE]
CURRENT APPLICABLE RATE : [RATE]
REGARDS,
AGENCY DEPARTMENT
XXXXX FARGO BANK
98
Exhibit 11.27
to Credit Agreement
Wire Transfer Instructions
-------------------------
1. For wire transfers to Agent:
XXXXX FARGO BANK, N.A.
BNF=SYNDIC=WFBCORP XX XXXXXXX\AC 4518-151576
OBI=X.X.XXXXXXX & COMPANY
2. For wire transfers to Xxxxxx Bank:
Xxxxxx Trust and Savings Bank
Xxxxxxx, XX. 00000
ABA# 000-000-000
Attn: Loan Accounting A/C #000-000-0
FBO: X.X. Xxxxxxx & Company
3. For wire transfers to Key Bank:
Key Bank of Colorado
ABA#000000000
BNF:XX Xxxxxxx
Contact Xxxxx Brekks at
(000) 000-0000 or Xx-Xxxx
ACCTA 152000018 Xxxxxxx (000) 000-0000
Special Instructions: when wire is received.
99
EXHIBIT 12.1
to Loan Agreement
COMPLIANCE CERTIFICATE
X.X. XXXXXXX & COMPANY
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
XXXXX FARGO BANK (COLORADO), N.A.
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
ATTN:
As required by Section 8.2 of the Credit Agreement ("Credit Agreement")
dated as of August 1, 1996, by and between X.X. Xxxxxxx & Company ("Holding
Company"), X.X. Xxxxxxx World Solutions Company ("World Solutions") and X.X.
Xxxxxxx World Source Company ("World Source") (collectively, Holding Company,
World Solutions and World Source shall be referred to as "Borrowers"), Xxxxx
Fargo Bank (Colorado), N.A., Xxxxxx Trust and Savings Bank, and Key Bank of
Colorado, a review of the activities of the Company for the [quarterly period
ending ________________, 199_] or [fiscal year ending October 31, 199_] (the
"Fiscal Period") has been made under my supervision with a view to determine
whether Borrowers have kept, observed, performed and fulfilled all of their
obligations under the Credit Agreement and all other agreements and undertakings
contemplated thereby, and to the best of my knowledge, and based upon such
review, no Event of Default or a Potential Default has occurred.
I further certify that the amounts set forth below, with abbreviated
descriptions, to the best of my knowledge accurately present amounts required to
be calculated by financial covenants of the Credit Agreement as of the last day
of the Fiscal Period (unless expressly specified herein) on a consolidated basis
for Borrowers. Capitalized terms used herein and in the attachment hereto and
not defined herein or in such attachment, but defined in the Credit Agreement,
shall have the definitions set forth in the Credit Agreement.
Very truly yours,
By: __________________________
Title: Chief Financial Officer
100
--------------------------------------------------------------------------------
SUBSECTION 8.13.1: QUICK RATIO
Test: The ratio of (a) cash plus Marketable Securities plus Term Deposits plus
Net Trade Receivables, to (b) Current Liabilities minus the current
portion of unearned revenues and customer deposits minus the Principal
Amount.
Target: At all times: Not less than 1.2 to 1.
Quick Ratio
for Fiscal Period ended ____/____/____ _____ to 1.0
--------------------------------------------------------------------------------
SUBSECTION 8.13.2: LEVERAGE RATIO
Test: The ratio of Total Liabilities less unearned revenue and customer
deposits, as determined in accordance with GAAP, to Total Net Worth,
Target: At all times: Not more than 2.5 to 1.
------
Leverage Ratio
for Fiscal Period ended ____/____/____ _____ to 1.0
--------------------------------------------------------------------------------
SUBSECTION 8.13.3: COVERAGE RATIO
Test: For any measurement period: (a) for the most recently completed four
Fiscal Quarters, the aggregate of the consolidated net income of
Borrowers and the Subsidiaries (as determined in accordance with GAAP),
plus depreciation and amortization (as each is determined in accordance
with GAAP), plus interest expense (as determined in accordance with
GAAP); divided by (b) the aggregate of scheduled principal reductions in
the following twelve (12) month period, plus interest expense paid (as
determined in accordance with GAAP) in the most recently completed four
Fiscal Quarters, plus the current portion of payments on capitalized
leases.
Target: For the 12 month period ending on the last day of each Fiscal
Quarter:
Not less than 1.75 to 1.0.
Coverage Ratio
For Fiscal Period ended ____/____/____ _____ to 1.0
2
101
--------------------------------------------------------------------------------
SUBSECTION 9.15: CAPITAL EXPENDITURES
Test: Capital Expenditures
Targets: for the period consisting of the most recently completed four
Fiscal
Quarters: Not more than 70% of Free Cash Flow.
Capital Expenditures
for the most recently completed
four Fiscal Quarters ended ____/____/____ $_________________
Free Cash Flow
for the most recently completed
four Fiscal Quarters ended ____/____/____ $_________________
Capital Expenditures as a percentage
of Free Cash Flow for the most recently
completed four
Fiscal Quarters ended ____/____/____ _______%
--------------------------------------------------------------------------------
SUBSECTION 9.16: PROFITABILITY
Test: Net loss (as determined in accordance with GAAP)
Target: In any two consecutive Fiscal Quarters and for any fiscal year of
Borrower: $0.
in the most recently completed
Fiscal Quarter ended ____/____/____ $________________
in the Fiscal Quarter preceding
the most recently completed
Fiscal Quarter ended ____/____/____/ $________________
for Borrower's most recently completed
fiscal year ended ____/____/____ $_________________
3
102
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
PARCEL A-1:
A PARCEL OF LAND LOCATED IN THE EAST 1/2 OF SECTION 8 AND IN THE WEST 1/2 OF
SECTION 9, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY
AND COUNTY OF DENVER, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2 OF SECTION 9:
THENCE NORTH 0 DEGREES 19 MINUTES 13 SECONDS EAST 1296.94 FEET TO A POINT OF
CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1273.24 FEET AND A CENTRAL
ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AN ARC DISTANCE OF 566.36 FEET TO A
POINT OF TANGENCY; THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST 60.00
FEET;
THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST 313.16 FEET TO A POINT OF
CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1577.02 FEET AND A CENTRAL
ANGLE OF 26 DEGREES 41 MINUTES 20 SECONDS
AN ARC DISTANCE OF 734.59 FEET TO THE TRUE POINT OF BEGINNING;
THENCE SOUTH 36 DEGREES 19 MINUTES 12 SECONDS WEST NON-
RADICALLY TO THE LAST MENTIONED COURSE 49.21 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 80.00 FEET AND A CENTRAL
ANGLE OF 85 DEGREES 30 MINUTES 24 SECONDS AN ARC DISTANCE OF 119.39 FEET TO A
POINT OF TANCENCY; THENCE SOUTH 49 DEGREES 11 MINUTES 12 SECONDS EAST AND ALONG
THE TANGENT TO THE AFORESAID CURVE 16.57 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 100.00 FEET AND A CENTRAL
ANGLE OF 59 DEGREES 00 MINUTES 42 SECONDS AN ARC DISTANCE OF 102.99 FEET TO A
POINT OF TANGENCY; THENCE SOUTH 9 DEGREES 49 MINUTES 30 SECONDS WEST AND ALONG
THE TANGENT TO THE AFORESAID CURVE 521.70 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 100.00 FEET AND A CENTRAL
ANGLE OF 55 DEGREES 00 MINUTES 00 SECONDS AN ARC DISTANCE OF 95.99 FEET TO A
POINT OF TANGENCY;
THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST AND ALONG THE TANGENT TO THE
AFORESAID CURVE 100.00 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 80.00 FEET AND A CENTRAL
ANGLE OF 90 DEGREES AN ARC DISTANCE OF 125.66 FEET TO A POINT OF TANGENCY;
THENCE SOUTH 25 DEGREES 10 MINUTES 30 SECONDS EAST AND ALONG THE TANGENT TO THE
AFORESAID CURVE 40.00 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 30.00 FEET AND A CENTRAL
ANGLE OF 90 DEGREES AN ARC DISTANCE OF 47.12 FEET TO A POINT OF TANGENCY; THENCE
REVERSING DIRECTION 180 DEGREES AND SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST
160.00 FEET TO A POINT OF CURVATURE; THENCE REVERSING DIRECTION 180 DEGREES AND
ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 30.00 FEET AND A CENTRAL ANGLE OF
90 DEGREES AN ARC DISTANCE OF 47.12 FEET TO A POINT OF TANGENCY; THENCE NORTH 25
DEGREES 10 MINUTES 30 SECONDS WEST AND ALONG THE TANGENT To THE AFORESAID CURVE
S4.26 FEET TO A POINT OF CURVATURE;
103
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
THENCE ALONG A CURVE TO THE LEFT RAVING A RADIUS OF 80.00 FEET AND A CENTRAL
ANGLE OF 78 DEGREES 48 MINUTES 22 SECONDS AN ARC DISTANCE OF 110.03 FEET TO A
POINT OF TANGENCY; THENCE SOUTH 76 DEGREES 01 MINUTES 08 SECONDS WEST AND ALONG
THE TANGENT TO THE AFORESAID CURVE 940.40 FEET; THENCE NORTH 24 DEGREES 02
MINUTES 39 SECONDS WEST 1206.62 FEET; THENCE NORTH 20 DEGREES 41 MINUTES 26
SECONDS EAST 360.05 FEET; THENCE NORTH 99 DEGREES 18 MINUTES 34 SECONDS WEST
270.00 FEET TO A POINT ON TILE RIGHT-OF-WAY LINE OF INTERSTATE HIGHWAY 1-225;
THENCE THE FOLLOWING SIX COURSES ALONG SAID RIGHT-OF-WAY OF I-225;
1) NORTH 20 DEGREES 41 MINUTES 26 SECONDS EAST 133.00 FEET; 2) THENCE NORTH 29
DEGREES 32 MINUTES 18 SECONDS EAST 203.68 FEET; 3) THENCE NORTH 57 DEGREES 49
MINUTES 07 SECONDS EAST 366.03 FEET; 4) THENCE NORTH 84 DEGREES 52 MINUTES 22
SECONDS EAST 290.00 FEET; 5) THENCE SOUTH 39 DEGREES 39 MINUTES U2 SECONDS EAST
275.85 FEET; 6) THENCE NORTH 41 DEGREES 29 MINUTES 36 SECONDS EAST 14.51 FEET TO
A POINT OF CURVE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 810.00
FEET AND A CENTRAL ANGLE OF 21 DEGREES 19 MINUTES 11 SECONDS AN ARC DISTANCE OF
301.40 FEET TO A POINT OF TANGENCY, THE LONG CHORD OF WHICH REARS SOUTH 50
DEGREES 31 MINUTES 46 SECONDS EAST A DISTANCE OF 299.66 FEET; THENCE SOUTH 61
DEGREES 11 MINUTES 21 SECONDS EAST AND ALONG THE TANGENT TO THE AFORESAID CURVE
668-90 FEET TO A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE RIGHT HAVING A
RADIUS OF 1577.02 FEET AND A CENTRAL ANGLE OF 9 DECREES 19 MINUTES 31 SECONDS AN
ARC DISTANCE OF 256.67 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPT THOSE PARCELS OF LAND DESCRIBED AS FOLLOWS:
(1)
A PARCEL OF LAND LOCATED IN THE NORTHWEST 1/4 OF SECTION 9. TOWNSHIP 5 SOUTH,
RANGE 67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2 OF SAID
SECTION 9;
THENCE NORTH 0 DEGREES 19 MINUTES 13 SECONDS EAST ALONG THE NORTH-SOUTH
CENTERLINE OF SAID SECTION 9 AND THE CENTERLINE Or SOUTH ULSTER STREET, A
DISTANCE OF 1296.94 FEET TO A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE
LEFT HAVING A RADIUS OF 1273.24 FEET AND A CENTRAL ANGLE OF 25 DEGREES 29
MINUTES 43 SECONDS AN ARC DISTANCE OF 566.56 FEET TO A POINT OF TANGENCY; THENCE
NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST ALONG SAID CENTERLINE, A DISTANCE OF
313.16 FEET TO A POINT OF CURVATURE;
-2-
104
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
THENCE ON A CURVE TO THE LEFT HAVING A RADIUS OF 1577.02 FEET AND A CENTRAL
ANGLE OF 36 DEGREES 00 MINUTES 51 SECONDS AN ARC DISTANCE OF 991.26 FEET TO A
POINT OF TANGENCY; THENCE NORTH 61 DEGREES 11 MINUTES 21 SECONDS WEST AND ALONG
SAID PREVIOUS TANGENCY A DISTANCE OF 668.90 FEET; THENCE SOUTH 28 DEGREES 48
MINUTES 39 SECONDS WEST, A DISTANCE OF 60.00 FEET TO A POINT ON THE
SOUTHWESTERLY R.O.W. XX XXXXX XXXXXX XXXXXX; THENCE ON A CURVE TO THE RIGHT
WHOSE TANGENT BEARS NORTH 61 DEGREES 11 MINUTES 21 SECONDS WEST AND HAVING A
RADIUS OF 810.00 FEET AND A CENTRAL ANGLE OF 21 DEGREES 23 MINUTES 53 SECONDS AN
ARC DISTANCE OF 302.51 FEET TO A POINT ON THE SOUTHERLY R.O.W. OF COLORADO
HIGHWAY I-225 AS RECORDED IN BOOK 1001 ON PAGE 258 IN THE CITY AND COUNTY OF
DENVER CLERK AND RECORDER'S OFFICE; THENCE SOUTH 41 DEGREES 29 MINUTES 02
SECONDS WEST ALONG SAID SOUTHERLY R.O.W. A DISTANCE OF 19.68 FEET; THENCE NORTH
39 DECREES 39 MINUTES 43 SECONDS WEST ALONG SAID SOUTHERLY R.O.W. A DISTANCE OF
227.19 FEET TO THE TRUE POINT OF THE BEGINNING; THENCE CONTINUING ALONG SAID
SOUTHERLY R.O.W. NORTH 39 DEGREES 39 MINUTES 43 SECONDS WEST A DISTANCE THENCE
OF 44.11 FEET; SOUTH 84 DEGREES 51 MINUTES 47 SECONDS WEST ALONG SAID SOUTHERLY
R.O.W. A DISTANCE OF 290 FEET; THENCE SOUTH 05 DEGREES 08 MINUTES 13 SECONDS
EAST A DISTANCE OF 270.00 FEET; THENCE NORTH 64 DEGREES 51 MINUTES 47 SECONDS
EAST A DISTANCE OF 315.00 FEET; THENCE NORTH 05 DECREES 08 MINUTES 13 SECONDS
WEST A DISTANCE OF 233.66 FEET TO THE TRUE POINT OF BEGINNING. (PUBLIC SERVICE
COMPANY PARCEL,
(2)
A PARCEL OF LAND LOCATED IN THE WEST 1/2 OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE
67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2; THENCE NORTH 00 DEGREES 19
MINUTES 13 SECONDS EAST ALONG THE EAST LINE OF SAID WEST 1/2 A DISTANCE OF
1296.94 FEET TO A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A
RADIUS OF 1273.24 FEET AND A CENTRAL ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS
AN ARC DISTANCE OF 566.56 FEET TO A POINT OF TANGENCY; THENCE NORTH 25 DEGREES
10 MINUTES 30 SECONDS WEST AND ALONG THE TANGENT OF THE AFOREMENTIONED CURVE A
DISTANCE OF 101.95 FEET; THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST A
DISTANCE OF 970.00 FEET; THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST A
DISTANCE OF 210.00 FEET; THENCE SOUTH 76 DEGREES 01 MINUTES 08 SECONDS WEST A
DISTANCE OF 903.11 FEET TO A POINT ON THE NORTHERLY BOUNDARY OF A PARCEL OF LAND
DESCRIBED IN BOOK 1690 AT PAGE 501 IN THE RECORDS OF THE CLERK AND RECORDER'S
OFFICE OF THE CITY AND COUNTY OF DENVER; THENCE CONTINUING SOUTH 76 DEGREES 01
MINUTES 08 SECONDS WEST ALONG SAID NORTHERLY BOUNDARY A DISTANCE OF 98.45 FEET
TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 76 DEGREES 01 MINUTES 08
SECONDS WEST ALONG SAID NORTHERLY BOUNDARY A DISTANCE OF 4.55 FEET; THENCE NORTH
24 DEGREES 02 MINUTES 39 SECONDS WEST A DISTANCE OF 2.00 FEET; THENCE SOUTH 82
DEGREES 05 MINUTES 06 SECONDS EAST A DISTANCE OF 5.29 FEET TO THE TRUE POINT OF
BEGINNING. (SHERATON DTC PARCEL)
105
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
(3)
A PARCEL OF LAND LOCATED IN THE WEST 1/2 OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE
67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST 1/4 OF SAID SECTION 9;
THENCE NORTHERLY ALONG THE EAST LINE OF SAID SOUTHWEST 1/4
NORTH 00 DEGREES 19 MINUTES 13 SECONDS EAST, A DISTANCE OF
1296.94 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE
LEFT;
THENCE DEPARTING SAID EAST LINE ALONG THE ARC OF SAID CURVE HAVING A CENTRAL
ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AND A RADIUS OF 1273.24 FEET, A
DISTANCE OF 566.56 FEET TO A POINT OF TANGENCY; THENCE ALONG SAID TANGENT NORTH
25 DEGREES 10 MINUTES 30 SECONDS WEST A DISTANCE OF 101.95 FEET; THENCE SOUTH 64
DEGREES 49 MINUTES 30 SECONDS WEST A DISTANCE OF 1319.72 FEET;
THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST A DISTANCE
OF 60.00 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF DTC PARKWAY;
THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE NORTH
64 DEGREES 49 MINUTES 30 SECONDS EAST, A DISTANCE OF 88.82
FEET;
THENCE DEPARTING FROM SAID NORTHERLY RIGHT-OF-WAY LINE NORTH
00 DEGREES 14 MINUTES 25 SECONDS EAST, A DISTANCE OF 506.55
FEET
THENCE NORTH 89 DEGREES 45 MINUTES 35 SECONDS WEST A DISTANCE OF 173.33 FEET TO
THE TRUE POINT OF BEGINNING;
THENCE NORTH 00 DEGREES 14 MINUTES 25 SECONDS EAST A DISTANCE OF 488.00 FEET;
THENCE SOUTH 89 DEGREES 45 MINUTES 35 SECONDS EAST A DISTANCE OF 363.54 FEET TO
A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF
16 DECREES 09 MINUTES 17 SECONDS AND A RADIUS OF 244.00 FEET,
AN ARC LENGTH OF 68.80 FEET;
THENCE SOUTH 57 DEGREES 08 MINUTES 41 SECONDS EAST A DISTANCE OF 138.28 FEET TO
A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 130 DEGREES 55
MINUTES 29 SECONDS AND A RADIUS OF 244.00 FEET, AN ARC LENGTH OF 557.56 FEET TO
A POINT OF TANGENCY, THE CHORD OF SAID CURVE BEARS SOUTH 24 DEGREES 46 MINUTES
40 SECONDS WEST 443.93 FEET; THENCE NORTH 89 DECREES 45 MINUTES 35 SECONDS WEST
A DISTANCE OF 363.54 FEET, MORE OR LESS, TO THE TRUE POINT OF BEGINNING. (HYATT
REGENCY PARCEL)
(4)
A PARCEL OF LAND LOCATED IN THE WEST ONE-HALF OF SECTION 9, TOWNSHIP 5 SOUTH,
RANGE 67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
-4-
106
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST ONE-QUARTER OF SAID SECTION
9;
THENCE NORTHERLY ALONG THE EAST LINE OF SAID SOUTHWEST ONE-QUARTER NORTH 00
DEGREES 19 MINUTES 13 SECONDS EAST, A DISTANCE OF 1296.94 FEET TO THE BEGINNING
OF A TANGENT CURVE TO THE LEFT;
THENCE DEPARTING SAID EAST LINE ALONG THE ARC OF SAID CURVE HAVING A CENTRAL
ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS
AND A RADIUS OF 1273.24 FEET, A DISTANCE OF 566.56 FEET TO A POINT OF TANGENCY;
THENCE ALONG SAID TANGENT NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST, A
DISTANCE OF 101.95 FEET; THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST, A
DISTANCE OF 1319.72 FEET;
THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST, A DISTANCE OF 60.00 FEET TO
A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF UNION AVENUE PARKWAY AS PLATTED BY
DENVER TECHNOLOGICAL CENTER, NORTH, FILING NO. ONE;
THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE NORTH 64 DEGREES 49
MINUTES 30 SECONDS EAST, A DISTANCE OF 88.82 FEET;
THENCE DEPARTING FROM SAID NORTHERLY RIGHT-OF-WAY LINE NORTH 00 DEGREES 14
MINUTES 25 SECONDS EAST, A DISTANCE OF 506.55 FEET; THENCE SOUTH 89 DEGREES 45
MINUTES 35 SECONDS EAST, A DISTANCE OF 190.21 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A CENTRAL ANGLE OF 84 DEGREES 17 MINUTES
55 SECONDS AND A RADIUS OF 244.00 FEET, AN ARC OF 343.98 FEET TO THE TRUE POINT
OF BEGINNING; THENCE CONTINUING ALONG THE AFOREMENTIONED CURVE TO THE LEFT
HAVING A CENTRAL ANGLE OF 46 DEGREES 37 MINUTES 34 SECONDS AND A RADIUS OF
244.00 FEET, AN ARC DISTANCE OF 198.56 FEET TO A NON-TANGENT POINT; THENCE NORTH
57 DEGREES 08 MINUTES 41 SECONDS WEST, A DISTANCE OF 19.14 FEET; THENCE NORTH 32
DEGREES 51 MINUTES 19 SECONDS EAST, A DISTANCE OF 222.71 FEET TO A POINT OF
CURVATURE; THENCE ALONG A CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 13
DEGREES 03 MINUTES 30 SECONDS AND A RADIUS OF l00.00 FEET, AN ARC DISTANCE OF
22.79 FEET TO A POINT ON A NON-TANGENT CURVE; THENCE ALONG A CURVE TO THE LEFT
WHOSE CHORD BEARS SOUTH 22 DEGREES l8 MINUTES 07 SECONDS EAST, HAVING A CENTRAL
ANGLE OF 53 DEGREES 46 MINUETS 10 SECONDS AND A RADIUS OF 80.00 FEET, AN ARC
DISTANCE OF 75.08 FEET TO A POINT OF TANGENCY; THENCE SOUTH 49 DEGREES 11
MINUTES 12 SECONDS EAST, A DISTANCE OF 16.57 FEET TO A POINT OF CURVATURE THENCE
ALONG A CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 59 DEGREES 00 MINUTES 42
SECONDS AND A RADIUS OF 100.00 FEET, AND ARC DISTANCE OF 102.99 FEET TO A POINT
OF TANGENCY; THENCE SOUTH 09 DEGREES 49 MINUTES 30 SECONDS WEST A DISTANCE OF
242.11 FEET; THENCE NORTH 84 DEGREES 03 MINUTES 30 SECONDS WEST A DISTANCE OF
93.87 FEET TO THE TRUE POINT OF BEGINNING.
(PORTION OF REGENCY PLAZA PARCEL WITHIN PARCEL A-1)
(5)
EXCEPT THAT PORTION LYING WITHIN UNION AVENUE PARKWAY AS ESTABLISHED BY
ORDINANCE 560, SERIES OF 1992.
-5-
107
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
PARCEL A-2:
A PARCEL OF LAND LOCATED IN THE EAST 1/2 OF SECTION 8 AND IN THE WEST 1/2 OF
SECTION 9, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY
AND COUNTY OF DENVER, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2 OF SECTION 9;
THENCE NORTH 0 DEGREES 19 MINUTES 13 SECONDS EAST 1296.94 FEET TO A POINT OF
CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1273.24 FEET AND
A CENTRAL ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AN ARC DISTANCE OF 566.56
FEET TO A POINT OF TANGENCY; THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST
AND ALONG THE TANGENT TO THE AFORESAID CURVE 101.95 FEET; THENCE SOUTH 64
DEGREES 49 MINUTES 30 SECONDS WEST 970.00 FEET; THENCE NORTH 25 DEGREES 10
MINUTES 30 SECONDS WEST 210.00 FEET; THENCE SOUTH 76 DEGREES 01 MINUTES 08
SECONDS WEST 1006.12 FEET; THENCE NORTH 24 DEGREES 02 MINUTES 39 SECONDS WEST
1206.62 FEET TO THE TRUE POINT OP BEGINNING THENCE NORTH 20 DEGREES 41 MINUTES
26 SECONDS EAST 45.05 FEET; THENCE NORTH 69 DEGREES 18 MINUTES 34 SECONDS WEST
260.65 FEET TO A POINT ON THE RIGHT XX XXX XXXX XX XXXXXXXXXX XXXXXXX X-000;
THENCE SOUTH 0 DEGREES 11 MINUTES 03 SECONDS WEST AND ALONG SAID RIGHT-OF-WAY
LINE 340.91 FEET; THENCE NORTH 47 DEGREES 56 MINUTES 11 SECONDS EAST 308.48 FEET
TO THE TRUE POINT OF BEGINNING.
PARCEL A-3
A PARCEL OF LAND LOCATED IN THE EAST 1/2 OF SECTION 8 AND IN THE WEST 1/2 OF
SECTION 9, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH PRINCIPAL XXXXXXXX XXXX
XXX XXXXXX XX XXXXXX, XXXXX OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2 OF
SECTION 9;
THENCE NORTH 0 DEGREES 19 MINUTES 13 SECONDS EAST 1296,94 FEET TO A POINT OF
CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1273.24 FEET AND
A CENTRAL ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AN ARC DISTANCE OF 566.56
FEET TO A POINT OF TANGENCY, THENCE NORTH 25 DEGREES 10. MINUTES 30 SECONDS WEST
AND ALONG THE TANGENT TO THE AFORESAID CURVE 101.95 FEET; THENCE SOUTH 64
DEGREES 49 MINUTES 30 SECONDS WEST 970.00 FEET; THENCE NORTH 25 DEGREES 10
MINUTES 30 SECONDS WEST 210.00 FEET; THENCE SOUTH 76 DEGREES 01 MINUTES 08
SECONDS WEST 1006.12 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 24
DEGREES 02 MINUTES 39 SECONDS WEST 1206.62 FEET; THENCE SOUTH 47 DEGREES 56
MINUTES 11 SECONDS WEST 308.48 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE
OF HIGHWAY I-25:
108
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
THENCE THE FOLLOWING 5 COURSES ALONG SAID RIGHT-OF-WAY LINE:
1) SOUTH 0 DEGREES 11 MINUTES 03 SECONDS WEST 220.00 FEET;
2) THENCE SOUTH 14 DEGREES 22 MINUTES 57 SECONDS EAST 189.10 FEET;
3) THENCE SOUTH 24 DEGREES 02 MINUTES 39 SECONDS EAST 247.98 FEET;
4) THENCE SOUTH 62 DEGREES 39 MINUTES 42 SECONDS EAST 67.46 FEET;
5) THENCE SOUTH 24 DEGREES 02 MINUTES 39 SECONDS EAST 430.83 FEET;
THENCE NORTH 64 DEGREES 49 MINUTES 30 SECONDS EAST 373.34 FEET TO THE TRUE POINT
OF BEGINNING.
EXCEPT THAT PORTION OF PARCEL A-3 DESCRIBED AS FOLLOWS
A PARCEL OF LAND LOCATED IN THE WEST 1/2 OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE
67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2; THENCE NORTH 00 DEGREES 19
MINUTES 13 SECONDS EAST ALONG THE EAST LINE OF SAID WEST 1/2 A DISTANCE OF
1296.94 FEET TO A POINT OF CURVATURE, THENCE ALONG A CURVE TO THE LEFT HAVING A
RADIUS OF 1273.24 FEET AND A CENTRAL ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS
AN ARC DISTANCE OF 566.56 FEET TO A POINT OF TANGENCY; THENCE NORTH 25 DEGREES
10 MINUTES 30 SECONDS WEST AND ALONG THE TANGENT OF THE AFOREMENTIONED CURVE A
DISTANCE OF 101.95 FEET; THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST A
DISTANCE OF 970.00 FEET; THENCE NORTH 25 DEGREES 01 MINUTES 08 SECONDS WEST A
DISTANCE OF 210.00 FEET; THENCE SOUTH 76 DEGREES 01 MINUTES 08 SECONDS WEST A
DISTANCE OF 1006.12 FEET TO A POINT ON THE NORTHERLY BOUNDARY OF A PARCEL OF
LAND DESCRIBED IN BOOK 1690 AT PAGE 501 IN THE RECORDS OF THE CLERK AND
RECORDER'S OFFICE OF THE CITY AND COUNTY OF DENVER, SAID POINT BEING THE TRUE
POINT OF BEGINNING; THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST ALONG
SAID NORTHERLY BOUNDARY A DISTANCE OF 373.16 FEET TO A POINT ON THE EASTERLY
RIGHT-OF-WAY LINE OF INTERSTATE HIGHWAY I-25; THENCE NORTH 24 DEGREES 01 MINUTES
59 SECONDS WEST ALONG SAID EASTERLY RIGHT-OF-WAY LINE A DISTANCE OF 228.87 FEET
TO A POINT ON A NON-TANGENT CURVE; THENCE ALONG A CURVE TO THE RIGHT HAVING A
RADIUS OF 2804.79 FEET AND A CENTRAL ANGLE OF 05 DEGREES 07 MINUTES 40 SECONDS
THE CHORD OF WHICH BEARS SOUTH 84 DEGREES 38 MINUTES 56 SECONDS EAST, AN ARC
DISTANCE OF 251.02 FEET TO A POINT OF TANGENCY;
THENCE SOUTH 82 DEGREES 05 MINUTES 06 SECONDS EAST ALONG THE TANGENT OF THE
AFOREMENTIONED CURVE A DISTANCE OF 182.00 FEET;
THENCE SOUTH 24 DEGREES 02 MINUTES 39 SECONDS EAST A DISTANCE OF 2.00 FEET TO
THE TRUE POINT OF BEGINNING.
(PARCEL 1 CONVEYANCE TO DTC SHERATON RE: UNION AVENUE REALIGNMENT)
EXCEPT THAT PORTION LYING WITHIN UNION AVENUE PARKWAY AS ESTABLISHED BY
ORDINANCE 560, SERIES OF 1992.
-7-
109
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
PARCEL A-4:
A PARCEL OF LAND LOCATED PARTLY IN THE WEST 1/2 OF SECTION 9 AND PARTLY IN THE
EAST 1/2 OF SECTION 8 TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH PRINCIPAL
MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF COLORADO, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2 OF SECTION 9;
THENCE NORTH 0 DEGREES 19 MINUTES 13 SECONDS EAST AND ALONG THE EAST LINE OF
SAID WEST 1/2 OF SECTION 9 A DISTANCE OF 1296.94 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1273.24 FEET AND A CENTRAL
ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AN ARC DISTANCE OF 566.56 FEET TO A
POINT OF TANGENCY THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST AND ALONG
THE TANGENT TO THE AFORESAID CURVE 101.95 FEET; THENCE SOUTH 64 DEGREES 49
MINUTES 30 SECONDS WEST A DISTANCE OF 970.00 FEET;
THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST A DISTANCE OF 210.00 FEET;
THENCE SOUTH 76 DEGREES 01 MINUTES 08 SECONDS WEST A DISTANCE OF 1006.12 FEET;
THENCE NORTH 24 DEGREES 02 MINUTES 39 SECONDS WEST A DISTANCE OF 1206.62 FEET;
THENCE NORTH 20 DEGREES 41 MINUTES 26 SECONDS EAST A DISTANCE OF 45.05 FEET TO
THE TRUE POINT OF BEGINNING; THENCE CONTINUING AMONG THE LAST MENTIONED COURSE
AN ADDITIONAL DISTANCE OF 315.00 FEET; THENCE NORTH 69 DEGREES 18 MINUTES 34
SECONDS WEST A DISTANCE OF 270.00 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY
LINE OF INTERSTATE HIGHWAY I-225; THENCE THE FOLLOWING 2 COURSES ALONG SAID
RIGHT-OP-WAY LINE; 1) SOUTH 20 DEGREES 41 MINUTES 26 SECONDS WEST A DISTANCE OF
290.00 FEET; 2) THENCE SOUTH 0 DEGREES 11 MINUTES 03 SECONDS WEST A DISTANCE OF
26.69 FEET; THENCE SOUTH 69 DEGREES 18 MINUTES 34 SECONDS EAST A DISTANCE OF
260.65 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL A-5-B:
A PARCEL OF AND IN THE XXXXXXXXX 0/0 XX XXXXXXX 0, XXXXXXXX 0 XXXXX, XXXXX 67
WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID SOUTHWEST 1/4 OF SECTION 9; THENCE
NORTH ALONG THE EAST LINE OF SAID SOUTHWEST 1/4 A DISTANCE OF 1296.94 FEET TO A
POINT OF CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1273.24
FEET AND A CENTRAL ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AN ARC DISTANCE OF
566.56 FEET TO A POINT OF TANGENCY; THENCE ALONG THE TANGENT TO THE AFORESAID
CURVE 101.95 FEET; THENCE ON AN ANGLE TO THE LEFT OF 90 DEGREES A DISTANCE OF
1319.72 FEET;
110
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
THENCE ON AN ANGLE TO THE RIGHT OF 90 DEGREES A DISTANCE OF 60.00 FEET TO THE
TRUE POINT OF BEGINNING;
THENCE ALONG A CURVE TO THE LEFT WHOSE TANGENT MAKES AN ANGLE TO THE LEFT OF 90
DEGREES FROM THE PRECEDING COURSE AND HAVING A RADIUS OF 378.31 FEET AND A
CENTRAL ANGLE OF 47 DEGREES 07 MINUTES 11 SECONDS AN ARC DISTANCE OF 311.12
FEET; THENCE ON AN ANGLE TO THE RIGHT OF 77 DEGREES 0 MINUTES 00 SECONDS FROM
THE TANGENT TO THE AFORESAID CURVE 278.75 FEET; THENCE ON AN ANGLE TO THE RIGHT
OF 45 DEGREES 36 MINUTES 48 SECONDS A DISTANCE OF 176.69 FEET; THENCE ON AN
ANGLE TO THE RIGHT OF 25 DEGREES 42 MINUTES 06 SECONDS A DISTANCE OF 138.89
FEET; THENCE ON AN ANGLE TO THE RIGHT OF 90 DEGREES A DISTANCE OF 837.40 FEET TO
A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 80.00
FEET AND A CENTRAL ANGLE OF 78 DEGREES 48 MINUTES 22 SECONDS AN ARC DISTANCE OF
110.03 FEET TO A POINT OF TANGENCY; THENCE ALONG A TANGENT TO THE AFORESAID
CURVE 54.26 FEET TO A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE RIGHT
HAVING A RADIUS OF 30.00 FEET AND A CENTRAL ANGLE OF 90 DEGREES AN ARC DISTANCE
OF 47.12 FEET TO A POINT OF TANGENCY; THENCE ALONG THE TANGENT TO THE AFORESAID
CURVE 319.72 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPT THAT PORTION OF PARCEL A-5-B DESCRIBED AS FOLLOWS:
A PARCEL OF LAND LOCATED IN THE WEST 1/2 OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE
67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2; THENCE NORTH 00 DEGREES 19
MINUTES 13 SECONDS EAST ALONG THE EAST LINE OF SAID WEST 1/2 A DISTANCE OF
1296.94 FEET TO A POINT
OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1273.24 FEET AND A CENTRAL
ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AN ARC DISTANCE OF 566.56 FEET TO A
POINT OF TANGENCY; THENCE NORTH 2S DEGREES l0 MINUTES 30 SECONDS WEST AND ALONG
THE TANGENT OF THE AFOREMENTIONED CURVE A DISTANCE OF 101.95 FEET; THENCE SOUTH
64 DEGREES 49 MINUTES 30 SECONDS WEST A DISTANCE OF 970.00 FEET; THENCE NORTH 25
DEGREES 10 MINUTES 30 SECONDS WEST A DISTANCE OF 210.00 FEET; THENCE SOUTH 76
DEGREES 01 MINUTES 08 SECONDS WEST A DISTANCE OF 903.11 FEET TO A POINT ON THE
NORTHERLY AND EASTERLY BOUNDARY OF A PARCEL OF LAND DESCRIBED IN BOOK 1690 AT
PAGE 501 IN THE RECORDS OF THE CLERK AND RECORDER'S OFFICE OF THE CITY AND
COUNTY OF DENVER; THENCE ALONG SAID EASTERLY BOUNDARY OF SAID PARCEL THE
FOLLOWING 4 COURSES: 1) SOUTH 13 DEGREES 58 MINUTES 52 SECONDS EAST A DISTANCE
OF 39.57 FEET TO THE TRUE POINT OF BEGINNING; 2) THENCE CONTINUING SOUTH 13
DEGREES 58 MINUTES 52 SECONDS EAST A DISTANCE OF 99.32 FEET; 3) THENCE SOUTH 39
DEGREES 40 MINUTES 53 SECONDS EAST A DISTANCE OF 176.69 FEET; 4) THENCE SOUTH 85
DEGREES 17 MINUTES 41 SECONDS EAST A DISTANCE OF 278.75 FEET; THENCE NORTH 17
DEGREES 42 MINUTES 19 SECONDS EAST A DISTANCE OF 103.61 FEET TO A POINT OF
CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 80.00 FEET AND A
CENTRAL ANGLE OF 99 DEGREES 47 MINUTES 25 SECONDS AN ARC DISTANCE OF 139.33 FEET
TO A POINT OF TANGENCY; THENCE NORTH 82 DECREES 05 MINUTES 06 SECONDS WEST A
DISTANCE OF 384.61 FEET TO THE TRUE POINT OF BEGINNING.
111
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
(PARCEL IV CONVEYANCE To DTC SHERATON RE: UNION AVENUE REALIGNMENT)
EXCEPT THAT PORTION LYING WITHIN UNION AVENUE PARKWAY AS ESTABLISHED BY
ORDINANCE 560, SERIES OF 1992.
PARCEL A-6:
A PARCEL OF LAND LOCATED IN THE WEST 1/2 OF SECTION 9, TOWNSHIP 5 SOUTH, RANGE
67 WEST OF THE 6TH PRINCIPAL
MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF COLORADO, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF SAID WEST 1/2 OF
SECTION 9;
THENCE NORTH 0 DEGREES 19 MINUTES 13 SECONDS EAST 1296.94
FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1273.24 FEET AND A CENTRAL
ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AN ARC DISTANCE OF 566.56 FEET TO A
POINT OF TANGENCY; THENCE ALONG THE TANGENT TO THE AFOREMENTIONED CURVE NORTH 25
DEGREES 10 MINUTES 30 SECONDS WEST 263.45 FEET; THENCE SOUTH 64 DEGREES 49
MINUTES 30 SECONDS WEST 70.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH
25 DEGREES 10 MINUTES 30 SECONDS WEST 49.71 FEET
TO A POINT OF CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 1567.02 FEET AND A CENTRAL
ANGLE OF 4 DEGREES 34 MINUTES 47 SECONDS AN ARC DISTANCE OP 125.25 FEET; THENCE
NORTH 60 DEGREES 14 MINUTES 43 SECONDS EAST AND CORADIALLY BETWEEN TWO
CONCENTRIC CURVES A DISTANCE OF 10.00 FEET;
THENCE ALONG A CURVE TO THE LEFT WHOSE TANGENT BEARS NORTH 29 DEGREES 45 MINUTES
17 SECONDS WEST AND HAVING A RADIUS OF 1577.02 FEET AND A CENTRAL ANGLE OF 22
DECREES 06 MINUTES 33 SECONDS AN ARC DISTANCE OF 608.54 FEET; THENCE SOUTH 36
DEGREES 19 MINUTES 12 SECONDS WEST 49.21 FEET TO A POINT OF CURVATURE; THENCE
ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 80.00 FEET AND A CENTRAL ANGLE OF
85 DECREES 30 MINUTES 24 SECONDS AN ARC DISTANCE OF 119.39 FEET TO A POINT OF
TANGENCY; THENCE SOUTH 49 DEGREES 11 MINUTES 12 SECONDS EAST AND ALONG THE
TANGENT TO THE AFORESAID CURVE A DISTANCE OF 16.57 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE, TO THE RIGHT HAVING A RADIUS OF 100.00 FEET AND A CENTRAL
ANGLE OF 59 DEGREES 00 MINUTES 42 SECONDS AN ARC DISTANCE OF 102.99 FEET TO A
POINT OF TANGENCY; THENCE SOUTH 9 DEGREES 49 MINUTES 30 SECONDS WEST AND ALONG
THE TANGENT TO THE AFORESAID CURVE A DISTANCE OF 521.70 FEET TO A POINT OF
CURVATURE;
THENCE ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 100.00 FEET AND A CENTRAL
ANGLE OF 55 DEGREES 00 MINUTES 00 SECONDS AN ARC DISTANCE OF 95.99 FEET TO A
POINT OF TANGENCY; THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST ALONG THE
TANGENT TO THE AFORESAID CURVE A DISTANCE OF 100.00 FEET TO A POINT OF
CURVATURE;
THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 80.00 FEET AND A CENTRAL
ANGLE OF 90 DEGREES AN ARC DISTANCE OF 125.66 FEET TO A POINT OF TANGENCY;
THENCE SOUTH 25 DRGREES 10 MINUTES 30 SECONDS EAST AND ALONG THE TANGENT TO THE
AFORESAID CURVE A DISTANCE OF 40.00 FEET
TO A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF
30.00 FEET AND A CENTRAL ANGLE OF 90 DEGREES AN ARC DISTANCE OF
112
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
THENCE NORTH 64 DEGREES 49 MINUTES 30 SECONDS EAST AND ALONG THE TANGENT TO THE
AFORESAID CURVE A DISTANCE OF 668.50 FEET TO A POINT OF CURVATURE; THENCE ALONG
A CURVE TO THE LEFT HAVING A RADIUS OF 101.50 FEET AND A CENTRAL ANGLE OF 90
DEGREES AN ARC DISTANCE OF 159.44 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPT FOR:
A PARCEL OF LAND LOCATED IN THE WEST ONE-HALF OF SECTION 9, TOWNSHIP 5 SOUTH,
RANGE 67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER, STATE OF
COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST ONE-QUARTER OF SAID SECTION
9; THENCE NORTHERLY ALONG THE EAST LINE OF SAID SOUTHWEST ONE-QUARTER NORTH 00
DEGREES 19 MINUTES 13 SECONDS EAST, A DISTANCE OF 1296.94 FEET TO THE BEGINNING
OF A TANGENT CURVE TO THE LEFT; THENCE DEPARTING SAID EAST LINE ALONG THE ARC OF
SAID CURVE HAVING A CENTRAL ANGLE OF 25 DEGREES 29 MINUTES 43 SECONDS AND A
RADIUS OF 1273.24 FEET, A DISTANCE OF 566.56 FEET TO A POINT OF TANGENCY; THENCE
ALONG SAID TANGENT NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST, A DISTANCE OF
101.95 FEET; THENCE SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST, A DISTANCE OF
1319.72 FEET; THENCE NORTH 25 DEGREES 10 MINUTES 30 SECONDS WEST, A DISTANCE OF
60.00 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF UNION AVENUE PARKWAY
AS PLATTED BY DENVER TECHNOLOGICAL CENTER, NORTH, FILING NO. ONE; THENCE
EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE NORTH 64 DEGREES 49 MINUTES 30
SECONDS EAST, A DISTANCE OF 88.82 FEET; THENCE DEPARTING FROM SAID NORTHERLY
RIGHT-OF-WAY LINE NORTH 00 DECREES 14 MINUTES 25 SECONDS EAST, A DISTANCE OF
506.55 FEET; THENCE SOUTH 89 DEGREES 49 MINUTES 35 SECONDS EAST A DISTANCE OF
190.21 FEET TO A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A
CENTRAL ANGLE OF 84 DEGREES 17 MINUTES 55 SECONDS AND A RADIUS OF 244.00 FEET,
AN ARC OF 343.98 FEET TO A POINT OF NON-TANGENCY THENCE SOUTH 84 DEGREES 03
MINUTES 30 SECONDS EAST, A DISTANCE OF 93.87 FEET TO THE TRUE POINT OF
BEGINNING; THENCE NORTH 09 DEGREES 49 MINUTES 30 SECONDS EAST, A DISTANCE OF
242.11 FEET TO A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE LEFT HAVING A
CENTRAL ANGLE OF 59 DECREES 00 MINUTES 42 SECONDS AND A RADIUS OF 100.00 FEET,
AN ARC DISTANCE OF 102.99 FEET TO A POINT OF TANGENCY; THENCE NORTH 49 DEGREES
11 MINUTES 12 SECONDS WEST A DISTANCE OF 16.57 FEET TO A POINT OF CURVATURE;
THENCE ALONG A CURVE To THE RIGHT HAVING A CENTRAL ANGLE OF 53 DEGREES 46
MINUTES 10 SECONDS AND A RADIUS OF 80.00 FEET, AN ARC DISTANCE OF 75.08 FEET TO
A POINT OF CURVATURE; THENCE ALONG A CURVE TO THE RIGHT WHOSE CHORD BEARS NORTH
89 DEGREES 14 MINUTES 12 SECONDS EAST, HAVING A CENTRAL ANGLE OF 86 DEGREES 38
MINUTES 48 SECONDS AND A RADIUS OF 100.00 FEET, AN ARC DISTANCE OF 151.23 FEET
TO A POINT OF COMPOUND CURVATURE ON THE SOUTHWESTERLY RIGHT-OF-WAY OF SOUTH
ULSTER PARKWAY, AS PLATTED BY SAID DENVER TECHNOLOGICAL CENTER, NORTH, FILING
NO. ONE; THENCE SOUTHEASTERLY ALONG SAID RIGHT-OF-WAY OF SOUTH ULSTER PARKWAY
THE FOLLOWING 3 COURSES;
113
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
(1) ALONG A CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 17 DEGREES 41 MINUTES
07 SECONDS AIM A RADIUS OF 1577.02 FEET, AN ARC DISTANCE OF 486.77 FEET TO A
POINT OF NON-TANGENCY;
(2) THENCE SOUTH 60 DEGREES 14 MINUTES 43 SECONDS WEST, ALONG A RADIAL LINE FROM
THE AFOREMENTIONED CURVE, A DISTANCE OF 10.00 FEET TO A POINT ON A NON TANGENT
CURVE;
(3) THENCE ALONG A CURVE TO THE RIGHT WHOSE CHORD BEARS SOUTH 28 DEGREES 14
MINUTES 51 SECONDS EAST, HAVING A CENTRAL ANGLE OF 3 DEGREES 00 MINUTES 52
SECONDS AND A RADIUS OF 1567.02 FEET, AN ARC DISTANCE OF 82.44 FEET TO A POINT
OF NON-TANGENCY;
THENCE NORTH 84 DEGREES 03 MINUTES 30 SECONDS WEST, A DISTANCE OF 440.52 FEET TO
THE TRUE POINT OF BEGINNING.
(PORTION OF REGENCY PLAZA PARCEL WITHIN PARCEL A-6)
THOSE PARCELS ABOVE ARE THE SAME PROPERTY SHOWN ON SURVEY PREPARED BY XXXXXXXXX
X. XXXXX, JOB NO. 58-95 DATED AUGUST 12, 1995, REVISED SEPTEMBER 13, 1995,
UPDATED NOVEMBER 8, 1995, AND REVISED NOVEMBER 12, 1995 AND NOVEMBER 14, 1995
DESCRIBED AS FOLLOWS:
A PARCEL OF LAND SITUATED IN THE EAST HALF OF SECTION 8 AND THE WEST HALF OF
SECTION 9, TOWNSHIP 5 SOUTH, RANGE 67 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY
AND COUNTY OF DENVER, STATE OF COLORADO, DESCRIBED AS FOLLOWS (THE DOCUMENT
REFERENCES IDENTIFIED BELOW ARE RECORDED IN THE CITY AND COUNTY OF DENVER CLERK
AND RECORDER'S OFFICE, UNLESS NOTED OTHERWISE, AND BEARINGS ARE BASED ON THE
ASSUMED BEARING OF NORTH 89 DEGREES 52 MINUTES 59 SECONDS EAST ALONG THE SOUTH
LINE OF THE SOUTHWEST QUARTER OF SECTION 9):
BEGINNING AT THE MOST EASTERLY CORNER OF "PARCEL 1" In AS DESCRIBED AT RECEPTION
NO. 00-0000000, SAID POINT OF BEGINNING BEING ON THE NORTHERLY RIGHT-OF-WAY LINE
OF UNION AVENUE PARKWAY AS PLATTED BY DENVER TECHNOLOGICAL CENTER NORTH, FILING
NO. ONE RECORDED IN PLAT BOOK 29 AT PAGE 56; THENCE WESTERLY ALONG THE NORTHERLY
LINE OF SAID "PARCEL
1" ALONG A CURVE TO THE RIGHT, SAID CURVE BEING TANGENT TO THE SOUTH 64 DEGREES
49 MINUTES 30 SECONDS WEST ALONG THE NORTHERLY RIGHT-OF-WAY OF UNION AVENUE
PARKWAY PLATTED BY SAID DENVER TECHNOLOGICAL CENTER NORTH, FILING NO. ONE,
HAVING A CENTRAL ANGLE OF 19 DEGREES 24 MINUTES 24 SECONDS AND A RADIUS OF
894.93 FEET, AN ARC LENGTH OF 303.12 FEET TO A POINT OF COMPOUND CURVATURE BEING
THE MOST EASTERLY CORNER OF "PARCEL 2": DESCRIBED AT RECEPTION NO. 00-0000000;
THENCE ALONG THE NORTHERLY LINES OF SAID "PARCEL 21" THE FOLLOWING THREE (3)
COURSES;
1. THENCE NORTHWESTERLY ALONG SAID COMPOUND CURVE TO THE RIGHT, HAVING A CENTRAL
ANGLE OF 61 DEGREES 58 MINUTES 06 SECONDS AND A RADIUS OF 90.00 FEET, AN ARC
LENGTH OF 97.34 FEET; 2. THENCE SOUTH 67 DEGREES 15 MINUTES 05 SECONDS WEST,
128.56 FEET TO A POINT OF NONTANGENT CURVATURE; 3. THENCE ALONG A CURVE TO THE
RIGHT, HAVING A CENTRAL ANGLE OF 54 DEGREES 18 MINUTES 59 SECONDS AND A RADIUS
OF 70.00 FEET, THE CHORD OF WHICH BEARS SOUTH 70 DEGREES 45 MINUTES 25 SECONDS
WEST AND MEASURES 63.90 FEET, AN ARC LENGTH OF 66.36 FEET TO A POINT OF TANGENCY
ON THE NORTHERLY LINE OF SAID "PARCEL 1";
114
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
THENCE ALONG SAID NORTHERLY LINE NORTH 82 DEGREES 05 MINUTES 06 SECONDS WEST,
676.46 FEET TO A POINT OF CURVATURE; THENCE CONTINUING ALONG SAID NORTHERLY LINE
ALONG A CURVE TO THE LEFT, HAVING A CENTRAL ANGLE OF 06 DEGREES 18 MINUTES 36
SECONDS AND A RADIUS OF 2924.79 FEET AN ARC LENGTH OF 322.11 FEET TO A POINT ON
THE NORTHEASTERLY RIGHT-OF-WAY LINE OF INTERSTATE HIGHWAY I-25; THENCE ALONG THE
EASTERLY AND SOUTHERLY RIGHT-OF-WAY LINES OF INTERSTATE HIGHWAY I-25 AND I-225
AS RECORDED IN BOOK 289 AT PAGE 497, BOOK 1915 AT PAGE 403 (ARAPAHOE COUNTY),
AND BOOK 1001 AT PAGE 258, THE FOLLOWING EIGHT (8) COURSES:
1. NORTH 24 DEGREES 01 MINUTES 59 SECONDS WEST, 67.63 FEET; 2. NORTH 64 DEGREES
19 MINUTES 50 SECONDS WEST, 66.49 FEET; 3. NORTH 24 DEGREES 01 MINUTES 59
SECONDS WEST, 250.60 FEET; 4. NORTH 14 DEGREES 24 MINUTES 55 SECONDS WEST,
188.21 FEET; 5. NORTH 00 DEGREES 09 MINUTES 46 SECONDS EAST 587.51 FEET; 6.
NORTH 20 DEGREES 51 MINUTES 56 SECONDS EAST 423.00 FEET; 7. NORTH 30 DEGREES 01
MINUTES 48 SECONDS EAST, 200 54 FEET; 8. NORTH 57 DEGREES 51 MINUTES 41 SECONDS
EAST 363.79 FEET TO THE NORTHWEST CORNER OF A PARCEL OF LAND DESCRIBED IN BOOK
2527 AT PAGE 528;
THENCE ALONG THE BOUNDARY OF SAID PARCEL, THE FOLLOWING THREE (3) COURSES:
1 SOUTH 05 DEGREES 08 MINUTES 13 SECONDS EAST, 270.00 FEET;
2. NORTH 84 DEGREES 51 MINUTES 47 SECONDS EAST, 315.00 FEET;
3. NORTH 05 DEGREES 08 MINUTES 13 SECONDS WEST, 233.66 FEET
TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF SAID INTERSTATE HIGHWAY I-225
RECORDED IN BOOK 1001 AT PAGE 258;
THENCE SOUTH 39 DEGREES 39 MINUTES 43 SECONDS EAST ALONG SAID SOUTHERLY
RIGHT-OF-WAY LINE, 227.19 FEET; THENCE NORTH 41 DEGREES 29 MINUTES 02 SECONDS
EAST AND CONTINUING ALONG SAID
SOUTHERLY RIGHT-OF-WAY LINES 19.68 FEET TO A POINT OF NONTANGENT CURVATURE ON
THE SOUTHWESTERLY RIGHT-OF-WAY
SOUTH ULSTER STREET PARKWAY AS PLATTED BY SAID DENVER TECHNOLOGICAL CENTER NORTH
FILING NO. ONE; THENCE ALONG SAID SOUTHWESTERLY RIGHT-OF-WAY LINES THE FOLLOWING
THREE (3)
COURSES:
1. ALONG SAID NONTANGENT CURVE TO THE LEFT, THE CHORD OF
WHICH BEARS SOUTH 50 DEGREES 29 MINUTES 25 SECONDS EAST AND
MEASURES 300.75 FEET, HAVING A CENTRAL ANGLE OF 21 DEGREES 23
MINUTES 53 SECONDS AND A RADIUS OF 810.00 FEET, AN ARC LENGTH OF 302.51 FEET;
2. SOUTH 61 DEGREES 11 MINUTES 21 SECONDS EAST, 668.90 FEET TO A POINT OF
CURVATURE; 13 3. ALONG A CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 13
DEGREES 44 MINUTES 57 SECONDS AND A RADIUS OF 1577.02 FEET, AN ARC LENGTH OF
378.43 FEET TO A POINT OF CUSP WITH THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF THE
100 FOOT WIDE ACCESS EASEMENT RECORDED AT BOOK 3128 AT PAGE 98;
THENCE ALONG SAID SOUTHEASTERLY RIGHT-OF-WAY LINE ALONG A CURVE TO THE LEFT, THE
CHORD OF WHICH BEARS SOUTH 82 DEGREES 42 MINUTES 28 SECONDS WEST AND MEASURES
152.88 FEET HAVING A CENTRAL ANGLE OF 99 DEGREES 42 MINUTES 17 SECONDS AND A
RADIUS OF 100.00 FEET, AN ARC LENGTH OF 174.02 FEET; THENCE SOUTH 32 DEGREES 51
MINUTES 19 SECONDS WEST AND CONTINUING ALONG SAID SOUTHEASTERLY RIGHT-OF-WAY
LINE, 222.71 FEET TO A POINT ON THE NORTHEASTERLY LINE OF THAT PARCEL OF LAND.
RECORDED AT RECEPTION NO. 086484; THENCE ALONG THE BOUNDARY OF SAID PARCEL, THE
FOLLOWING SIX (6) COURSES:
115
EXHIBIT 12.1(A) TO
CREDIT AGREEMENT
Legal Description of
Headquarters Land
1. NORTH 57 DEGREES 08 MINUTES 41 SECONDS WEST, 119.14 FEET
TO A POINT OF NONTANGENT CURVATURE;
2. ALONG A CURVE TO THE LEFT, THE CHORD OF WHICH BEARS NORTH
81 DEGREES 40 MINUTES 56 SECONDS WEST AND MEASURES 68.57
FEET, HAVING A CENTRAL ANGLE OF 16 DEGREES 09 MINUTES 17 SECONDS AND A RADIUS OF
244.00 FEET, AN ARC LENGTH OF 68.80 FEET; 3. NORTH 89 DEGREES 45 MINUTES 35
SECONDS WEST, 363.54 FEET; 4. SOUTH 00 DEGREES 14 MINUTES 25 SECONDS WEST,
488.00 FEET; 5. SOUTH 89 DEGREES 45 MINUTES 35 SECONDS EAST, 363.54 FEET TO A
POINT OF CURVATURE; 6. THENCE ALONG A CURVE TO THE LEFT, HAVING A CENTRAL ANGLE
OF 84 DEGREES 17 MINUTES 55 SECONDS AND A RADIUS OF 244.00 FEET AN ARC LENGTH OF
358.99 FEET TO A POINT ON THE SOUTHERLY LINE OF THAT PARCEL OF LAND RECORDED AT
RECEPTION NO. 056318;
THENCE ALONG SAID SOUTHERLY LINE SOUTH 84 DEGREES 03 MINUTES 30 SECONDS EAST AND
RADIAL FROM THE PREVIOUS CURVE, 534.39 FEET TO A POINT OF NONTANGENT CURVATURE
ON THE SOUTHWESTERLY
RIGHT-OF-WAY LINE OF SOUTH ULSTER STREET PARKWAY; THENCE ALONG SAID
SOUTHWESTERLY RIGHT-OF-WAY LINE OF UNION AVENUE PARKWAY, THE FOLLOWING FOUR (4)
COURSES:
1. ALONG SAID NONTANGENT CURVE TO THE RIGHT, THE CHORD OF WHICH BEARS SOUTH 25
DEGREES 57 MINUTES 28 SECONDS EAST AT A DISTANCE OF 42.81 FEET, HAVING A CENTRAL
ANGLE OF 01 DEGREES 33 MINUTES 56 SECONDS AND A RADIUS OF 1567.02, AN ARC LENGTH
OF 42.81 FEET; 2. SOUTH 25 DEGREES 10 MINUTES 30 SECONDS EAST 49.71 FEET TO A
POINT OF CURVATURE; 3. ALONG A CURVE TO THE RIGHT HAVING A CENTRAL ANGLE OF 90
DEGREES 00 MINUTES 00 SECONDS AND A RADIUS OF 101.50 FEET, AN ARC LENGTH OF
159.44 FEET; 4. SOUTH 64 DEGREES 49 MINUTES 30 SECONDS WEST, 766.82 FEET TO XXX
XXXXX XX XXXXXXXXX, XXXX XXX XXXXXX XX XXXXXX, XXXXX OF COLORADO.
