EXHIBIT 10.11
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CH2M HILL COMPANIES, LTD.
CH2M HILL, INC.
OPERATIONS MANAGEMENT INTERNATIONAL, INC.
CH2M HILL INDUSTRIAL DESIGN CORPORATION
$100,000,000 SENIOR UNSECURED REVOLVING CREDIT AGREEMENT
dated as of June 18, 1999
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, Agent
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Table of Contents
Page
1. Definitions; Certain Rules of Construction ......................................................1
2. The Credits ....................................................................................19
2.1 Revolving Credit ..........................................................................19
2.2 Swing Line ................................................................................22
2.3 Currency Equivalents for Multicurrency LIBOR Loans ........................................23
2.4 Letters of Credit .........................................................................24
2.5 Application of Proceeds ...................................................................26
2.6 Option to Extend Final Maturity Date ......................................................26
2.7 Option to Increase Maximum Amount of Credit ...............................................27
3. Interest; LIBOR Pricing Options; Fees; Changes in Circumstance, Yield Protection ...............27
3.1 Interest ..................................................................................27
3.2 LIBOR Pricing Options .....................................................................28
3.3 Fees ......................................................................................30
3.4 Computations of Interest and Fees .........................................................31
3.5 Changes in Circumstances; Yield Protection ................................................31
4. Payment ........................................................................................36
4.1 Payment at Maturity .......................................................................36
4.2 Voluntary Payments ........................................................................36
4.3 Mandatory Prepayments .....................................................................37
4.4 Letters of Credit .........................................................................37
4.5 Reborrowing; Application of Payments, Etc .................................................38
4.6 Sharing of Payments, Etc ..................................................................38
5. Appointment of the Parent; Authorized Representatives ..................39
6. Subsidiary Guarantees ..................................................40
7. Joint and Several Liability; Rights of Contribution ....................40
7.1 Acknowledgements ..................................................40
7.2 Joint and Several Liability .......................................40
7.3 Absolute and Unconditional Obligations ............................40
7.4 Continuation ......................................................41
7.5 Rights of Contribution ............................................42
8. Conditions to Extending Credit .........................................42
8.1 Conditions on Initial Closing Date ................................42
8.2 Conditions to Each Extension of Credit ............................43
9. Covenants ..............................................................44
9.1 Conduct of Business, etc ..........................................44
9.2 Insurance .........................................................44
9.3 Fiscal Year; Financial Statements, Etc ............................44
9.4 Consolidated Net Worth ............................................47
9.5 Current Ratio .....................................................47
9.6 Interest Coverage Ratio ...........................................47
9.7 Leverage Ratio ....................................................47
9.8 Profitable Operations .............................................47
9.9 Year 2000 Compliance ..............................................47
9.10 Indebtedness .....................................................47
9.11 Liens ............................................................48
9.12 Transactions with Affiliates .....................................50
9.13 Environmental Laws ...............................................50
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9.14 Bonuses and Profit Sharing ..........................................50
9.15 Payment of Taxes, Etc ...............................................50
9.16 Preservation of Existence, Etc ......................................51
9.17 Compliance with Terms of Leaseholds .................................51
9.18 Material Subsidiaries ...............................................51
9.19 Mergers, Etc ........................................................51
9.20 Sales, Etc of Assets. ...............................................51
9.21 Investments .........................................................52
9.22 Distributions, Etc ..................................................52
9.23 Limits on Capital Expenditures ......................................53
9.24 Charter and By-laws Amendments ......................................53
9.25 Prepayments, Etc. of Indebtedness ...................................53
9.26 Preservation of Rights and Properties ...............................53
9.27 Payment of Obligations ..............................................53
9.28 Maintenance of Properties ...........................................53
9.29 ERISA ...............................................................53
9.30 Ownership of the Borrowers ..........................................54
9.31 Pari Passu ..........................................................54
10. Representations and Warranties ...........................................54
10.1 Organization and Business ...........................................54
10.2 Financial Statements and Other Information ..........................55
10.3 No Material Adverse Effect ..........................................55
10.4 Operations in Conformity with Law, Etc ..............................55
10.5 Litigation ..........................................................56
10.6 Authorization and Enforceability ....................................56
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10.7 No Legal Obstacle to Agreements ....................................56
10.8 Tax Returns ........................................................57
10.9 Environmental Regulations ..........................................57
10.10 Plans .............................................................58
10.11 Consents or Approvals .............................................58
10.12 No Liens ..........................................................58
10.13 Business Authorizations ...........................................58
10.14 Year 2000 Compliance ..............................................58
10.15 Disclosure ........................................................58
10.16 Solvency ..........................................................59
11. Defaults ................................................................59
11.1 Events of Default ..................................................59
11.2 Certain Actions Following an Event of Default ......................62
11.3 Annulment of Defaults ..............................................63
11.4 Waivers ............................................................63
12. Expenses; Indemnity .....................................................63
12.1 Expenses ...........................................................63
12.2 General Indemnity ..................................................64
13. The Agent ...............................................................65
13.1 Authorization and Action ...........................................65
13.2 Agent's Reliance, Etc ..............................................65
13.3 Lender Credit Decision; Agent in its Individual Capacity ...........66
13.4 Indemnification ....................................................67
13.5 Successor Agents ...................................................67
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14. Successors and Assigns; Lender Assignments and Participations ..........68
14.1 Assignments by Lenders ............................................68
14.2 Credit Participants ...............................................71
15. Confidentiality ........................................................72
16. Notices ................................................................72
17. Course of Dealing; Amendments and Waivers ..............................73
18. Defeasance .............................................................74
19. Venue: Service of Process ..............................................74
20. WAIVER OF JURY TRIAL ...................................................75
21. Arbitration ............................................................75
21.1 Arbitration .......................................................75
21.2 Governing Rules ...................................................75
21.3 No Waiver; Provisional Remedies; Self-Help and Foreclosure ........76
21.4 Arbitrator Qualifications and Powers; Awards ......................76
21.5 Judicial Review ...................................................76
21.6 Miscellaneous Arbitration Provisions ..............................77
22. Judgment Currency ......................................................77
22.1 Conversion Requirements ...........................................77
22.2 Change in Rate of Exchange ........................................77
23. Setoff .................................................................78
24. No Third Party Beneficiaries ...........................................78
25. General ................................................................78
Schedule I List of Bankers
Exhibit 2.1.4 Form of Revolving Credit Note
Exhibit 2.2.2 Form of Swing Line Note
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Exhibit 2.4.2 Form of Letter of Credit Request
Exhibit 5 Designation of Authorized Representatives
Exhibit 6 Form of Subsidiary Guarantee
Exhibit 8.2.1 Form of Notice of Revolving Credit Advance
Exhibit 9.10 Existing Indebtedness
Exhibit 9.21 Existing Investments
Exhibit 9.22 Proposed Bylaws
Exhibit 10.1 Material Subsidiaries
Exhibit 10.10 Plans
Exhibit 14.1.1 Form of Assignment and Acceptance
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$100,000,000 SENIOR UNSECURED REVOLVING CREDIT AGREEMENT
This Agreement, dated as of June 18, 1999, is entered into among CH2M
HILL Companies, Ltd., an Oregon corporation, CH2M HILL, Inc., a Florida
corporation, Operations Management International, Inc., a California
corporation, and CH2M Hill Industrial Design Corporation, an Oregon corporation
(each a "Borrower," and collectively, the "Borrowers"), the Lenders from time to
time party hereto and ▇▇▇▇▇ Fargo Bank, National Association, in its capacity as
a Lender and in its capacity as the Issuing Bank and in its capacity as agent
for itself and the other Lenders. The parties agree as follows:
1. Definitions; Certain Rules of Construction. Certain capitalized terms are
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used in this Agreement and in the other Credit Documents with the specific
meanings defined below in this Section 1. Except as otherwise explicitly
specified to the contrary or unless the context clearly requires otherwise, (a)
the capitalized term "Section" refers to sections of this Agreement, (b) the
capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section include all subsections thereof, (d) the word
"including" shall be construed as "including without limitation", (e) accounting
terms not otherwise defined herein have the meaning provided under GAAP, (f)
references to a particular statute or regulation include all rules and
regulations thereunder and any successor statute, regulation or rules, in each
case as from time to time in effect, and (g) references to a particular Person
include such Person's successors and assigns to the extent not prohibited by
this Agreement and the other Credit Documents. References to "the date hereof"
mean the date first set forth above.
"AAA" is defined in Section 21.2.
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"Acquisition" means the acquisition of a Person (by merger,
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consolidation or stock purchase), or the acquisition of all or substantially all
of the assets of a Person, or the acquisition of any division or similar
operating unit of a Person, or the acquisition of the business of a Person or of
the assets comprising such division, unit or business.
"Affiliate" means, with respect to any Person, any other Person
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directly or indirectly controlling (including but not limited to all directors,
officers and general partners of such Person), controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation, or (ii) to direct or cause direction of the
management and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Agent" means ▇▇▇▇▇ Fargo in its capacity as agent for the Lenders
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hereunder, as well as its successors in such capacity pursuant to Section 13.5.
"Agreement" means this Credit Agreement, as from time to time amended,
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modified and in effect.
"Applicable LIBOR Margin" means, on any date, a margin determined by
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(i) the Pricing Ratio as of the Initial Closing Date and (ii) thereafter,
effective on the first day of the month commencing after the month in which the
Agent receives the Parent's financial statements for the Parent's most recently
completed fiscal quarter, the Pricing Ratio for the most recently completed
fiscal quarter, determined in accordance with the following table:
Applicable
Pricing Ratio LIBOR Margin
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(more than) 3.50 2.000%
(more than) 3.00 (less than
or equal to) 3.50 1.750%
(more than) 2.50 (less than
or equal to) 3.00 1.500%
(more than) 1.50 (less than
or equal to) 2.50 1.250%
(less than or equal to) 1.50 1.000%
"Applicable Rate" means, at any date, the sum of:
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(a) (i) with respect to each LIBOR Loan, the sum of the
Applicable LIBOR Margin plus the LIBOR Rate;
(ii) with respect to each Base Rate Loan, the Base
Rate; and
(iii) with respect to each Swing Line Loan, the Base
Rate.
plus (b) an additional 2% effective on the day the Agent
notifies the Borrowers that the interest rates hereunder are
increasing as a result of the occurrence and continuance of an
Event of Default under Section 11.1.1 until the earlier of
such time as (i) such Event of Default is no longer
continuing, or (ii) such Event of Default is deemed no longer
to exist, in each case pursuant to Section 11.3.
"Assignee" is defined in Section 14.1.1.
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"Assignment and Acceptance" is defined in Section 14.1.1.
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"Auditors" is defined in Section 9.3.2 (a).
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"Authorized Representative" means each officer of the Parent designated
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by the Parent in the most recent Notice of Authorized Representatives delivered
by the Parent to the Agent as being authorized to request any borrowing or make
any interest rate selection on behalf of the Borrowers, or to give the Agent any
other notice hereunder
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which is required by the terms of this Agreement to be made through an
Authorized Representative.
"Available Credit" means, at any time, the amount by which (a) the
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Total Commitment is greater than (b) the aggregate of (i) the outstanding
principal amount of the Loans at such time, and (ii) the Letter of Credit
Exposure at such time.
"Banking Day" means (a) for all purposes other than as covered by
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clause (b), any day other than Saturday, Sunday or a day on which commercial
banks in Denver, Colorado are authorized or required by law or other
governmental action to close and (b) if such term is used with reference to a
LIBOR Loan, such day is also a day on which (i) in the case of Dollar LIBOR
Loans, dealings between bank are carried on in United States Dollar deposits,
and (ii) in the case of Multicurrency LIBOR Loans, dealings are carried on
between banks in the applicable Foreign Currency.
"Bankruptcy Code" means Title 11 of the United States Code.
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"Bankruptcy Default" means an Event of Default referred to in Section
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11.1.10.
"Base Rate" means, on any date, the greater of (a) the rate of interest
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most recently announced within ▇▇▇▇▇ Fargo at the San Francisco Office as its
prime rate, as evidenced by the recording thereof in such internal publication
or publications as ▇▇▇▇▇ Fargo may designate, with any change in the prime rate
to be effective as of the day such change is announced within ▇▇▇▇▇ Fargo, and
with the understanding that the prime rate is one of Well Fargo's base rates and
serves as the basis upon which effective rates of interest are calculated for
those loans making reference thereto, and may not be the lowest rate at which
▇▇▇▇▇ Fargo makes any loan, or (b) the sum of 0.5% p1us the Federal Funds Rate.
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"Base Rate Loan" means a Loan that bears interest with reference to the
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Base Rate.
"Bylaws" means all written bylaws, rules, regulations and all other
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documents relating to the management, governance or internal regulation of any
Person other than an individual, or interpretive of the Charter of such Person,
all as from time to time in effect.
"Capital Expenditures" means, for any Person, for any period, the sum
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of (a) all expenditures made, directly or indirectly, by such Person or any of
its Subsidiaries during such period for equipment, fixed assets, real property
or improvements, or for replacements or substitutions therefor or additions
thereto, that have been or are expected to be reflected as additions to
property, plant or equipment on a Consolidated balance sheet of such Person,
plus (b) without duplication of amounts included under clause (a), the aggregate
principal amount of all Indebtedness (including obligations under Capitalized
Leases) assumed or incurred during such period in connection with such
expenditures.
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"Capitalized Leases" means, in the case of any Person, (a) all leases
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that have been, should be or are expected to be recorded as capital leases on a
balance sheet of such Person in accordance with GAAP, and (b) the principal
balance outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing transaction where
such transaction is considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP.
"Cash Equivalents" means cash equivalents determined in accordance with
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GAAP.
"CERCLA" means the federal Comprehensive Environmental Response,
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Compensation and Liability Act of 1980.
"CERCLIS" means the federal Comprehensive Environmental Response
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Compensation Liability Information System List (or any successor document)
issued under CERCLA.
"Change of Control" means any of the following events: (a) any "person"
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or any syndicate or group deemed a "person" within the meaning of Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") other than the Trustees of the CH2M HILL Employee Stock Plan, has become,
directly or indirectly, the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), of 30% or more of the voting power of the voting stock of the Parent
on a fully-diluted basis, after giving effect to the conversion and exercise of
all outstanding warrants, options and other securities of the Parent (whether or
not such securities are then currently convertible or exercisable), or (b)
during any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the board of directors of the Parent cease
for any reason (other than death, disability or expiration of term) to
constitute a majority of the directors of the Parent then in office unless such
new directors were elected by the directors of the Parent who constituted the
board of directors of the Parent at the beginning of such period.
"Charter" means the articles of organization, certificate of
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incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other charter
document of any Person other than an individual, each as from time to time in
effect.
"Closing Date" means the Initial Closing Date and each other date on
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which any extension of credit is made or any Letter of Credit is issued pursuant
to Sections 2.1, 2.2 or 2.4.
"Code" means the Federal Internal Revenue Code of 1986.
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"Commitment" means, with respect to any Lender, such Lender's
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obligations to extend the credits contemplated by Section 2, in the maximum
amount as set forth on Schedule I and as adjusted under Sections 3.5.7, 4.2.1 or
14.
"Commercial Paper Documents" means: (1) the Commercial Paper Dealer
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Agreement [3(a)3 Program] to be entered into in June 1999 or shortly thereafter
by and between the Parent, as Issuer, and U.S. Bancorp Investments, Inc., as
Dealer (as amended, modified or supplemented from time to time); (2) the Issuing
and Paying Agency Agreement to be entered into in June 1999 or shortly
thereafter by and between the Parent and U.S. Bank Trust National Association
(as amended, modified, or supplemented from time to time); (3) the Corporate
Commercial Paper - Master Note executed by the Parent (as amended, modified, or
supplemented from time to time); (4) the Letter of Representations addressed to
The Depository Trust Company to be entered into in June 1999 or shortly
thereafter and executed by the Parent, the Issuing Agent and the Paying Agent
(as amended, modified or supplemented from time to time); and (5) any other
document or agreement executed by the Parent pursuant to any of the foregoing.
"Commercial Paper Facility" means the $25,000,000 Senior Unsecured
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Revolving Credit Agreement to be entered into in June 1999 or shortly
thereafter, between the Parent and U.S. Bank National Association.
"Consolidated" means, with respect to any Person's accounts, the
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accounts of the Person and all of its Subsidiaries, or such of its Subsidiaries
as may be specified, consolidated (or combined) in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income (or
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loss) after taxes for such period of the Parent and its Subsidiaries on a
Consolidated basis, determined in accordance with GAAP.
"Consolidated Net Worth" means, at any reporting date, stockholder's
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equity (minus the aggregate value of any treasury stock) of the Parent and its
Subsidiaries on a Consolidated basis, determined in accordance with GAAP.
"Converted Principal Amount" is defined in Section 2.3.1.
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"Credit Documents" means:
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(a) this Agreement, the Revolving Credit Notes, the Swing Line Note,
each Letter of Credit, each draft presented or accepted under a Letter of Credit
and the Subsidiary Guarantees and the Fee Letter, each as from time in effect;
(b) all financial statements, reports, notices and certificates
delivered to the Agent or any of the Lenders by any Obligor; and
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(c) any other present or future agreement or instrument from time to
time entered into among the Borrowers, any of their Subsidiaries or any other
Obligor, on one hand, and the Agent or all the Lenders, on the other hand,
relating to, amending or modifying this Agreement or any other Credit Document
referred to above or which is stated to be a Credit Document, each as from time
to time in effect.
"Credit Obligations" means all present and future liabilities,
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obligations and Indebtedness of the Borrowers, any of their Subsidiaries or any
other Obligor owing to the Agent or any Lender (or any Affiliate of a Lender and
including the Issuing Bank) under or in connection with this Agreement or any
other Credit Document, including obligations in respect of principal, interest,
reimbursement obligations under Letters of Credit, fees, Letter of Credit fees,
amounts provided for in Sections 3.2.4, 3.4, 3.5 and 12 and other fees, charges,
indemnities and expenses from time to time owing hereunder or under any other
Credit Document (whether accruing before or after a Bankruptcy Default).
"Credit Participant" is defined in Section 14.2.
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"Current Ratio" means, at any reporting date, total current assets of
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the Parent and its Subsidiaries divided by total current liabilities of the
Parent and its Subsidiaries on a Consolidated Basis, determined in accordance
with GAAP.
"Default" means any Event of Default and any event or condition which
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with the passage of time or giving of notice, or both, would become an Event of
Default and the filing against any Obligor of a petition commencing an
involuntary case under the Bankruptcy Code.
"Denver Office" means the principal banking office of ▇▇▇▇▇ Fargo in
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Denver, Colorado.
"Dispute" is defined in Section 21.1.
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"Distributions" means, as to any Person, any dividend or distribution
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to its stockholders, partners or members as such.
"Dollar LIBOR Loan" means a Loan that bears interest with reference to
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the LIBOR Base Rate for United States Dollar deposits.
"EBIT" means, for any period, the sum of (a) Consolidated Net Income
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for such period (excluding the effect of any extraordinary or non-recurring
gains (including any gain from the sale of property)), plus (b) an amount which,
in the determination of Consolidated Net Income for such period, has been
deducted for (i) Interest Expense for such period, and (ii) total federal,
state, foreign and other income taxes for such period, all as determined in
accordance with GAAP.
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"EBITDA" means, for any period, the sum of (a) Consolidated Net Income
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for such period (excluding the effect of any extraordinary or non-recurring
gains (including any gain from the sale of property)), plus (b) an amount which,
in the determination of Consolidated Net Income for such period, has been
deducted for (i) Interest Expense for such period, and (ii) total federal,
state, foreign and other income taxes for such period, and (iii) all
depreciation and amortization for such period, all as determined in accordance
with GAAP. In addition, if (i) the Parent or its Subsidiary makes a Permitted
Acquisition during any fiscal quarter, (ii) the Target becomes a Material
Subsidiary as a result of such Permitted Acquisition, and (iii) the Target's
financial statements for the four fiscal quarters ending at the quarter during
which the Permitted Acquisition occurs (the "Determination Period") are audited
by independent certified public accountants of recognized national standing
reasonably satisfactory to the Agent, then the reported financial results of the
Target for the Determination Period may, at the option of the Borrowers by
notice to the Agent, be included in determining EBITDA for such Determination
Period.
"EMU" means the economic and monetary union as contemplated in the
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Treaty on European Union.
"EMU Commencement" means January 1, 1999 (the date of commencement of
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the third stage of EMU).
"EMU Legislation" means legislative measures of the European Council
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for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the "euro", "euros" or otherwise), being in
part the implementation of the third stage of EMU.
"Environmental Laws" means all applicable federal, state or local
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statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment, including OSHA.
"ERISA" means the federal Employee Retirement Income Security Act of
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1974.
"ERISA Group Person" means the Parent, any Subsidiary of the Parent and
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any Person which is a member of the controlled group or under common control
with the Parent or any Subsidiary within the meaning of Section 414 of the Code
or section 4001(a)(14) of ERISA.
"ERISA Event" means (a) a Reportable Event with respect to a Plan, (b)
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a withdrawal by an ERISA Group Person from a Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by an ERISA Group Person from a Multiemployer Plan or notification
that a Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate under Section 4041(c) of
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ERISA, the treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon an ERISA
Group Person.
"Euro" means the single currency of Euro Members of the European Union.
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"Euro Member" mean each state described as a "participating member
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state" in any EMU Legislation.
"Euro Unit" means the currency unit of Euros.
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"Event of Default" is defined in Section 11.1.
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"Federal Funds Rate" means, for any day, the rate (rounded upward to
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the nearest 1/8%) set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal Reserve Bank
of New York (including any such successor, "H.15(519)") on the preceding Banking
Day opposite the caption "Federal Funds (Effective"); or, if for any relevant
day such rate is not so published on any such preceding Banking Day, the rate
for such day will be the arithmetic mean as determined by the Agent of the rates
for the last transaction in overnight federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of federal
funds transactions in New York City selected by the Agent.
"Fee Letter" means the letter agreement relating to fees among the
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Borrowers and the Agent executed in connection with this Agreement.
"Final Maturity Date" means June 17, 2002 (the day before the third
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anniversary of Initial Closing Date), or such later date to which the Final
Maturity Date has been extended in accordance with Section 2.6.
"Financial Officer" means the Parent's chief executive officer, chief
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financial officer, chief operating officer, chairman, president, treasurer or
any of its vice presidents whose primary responsibility is for its financial
affairs, all of whose incumbency and signatures have been certified to the Agent
by the secretary or other appropriate attesting officer of the Parent.
"Foreign Currency" means such currencies other than United States
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Dollars as may be approved by the Lenders in their sole discretion. Each Foreign
Currency must be one (a) that is freely transferable and convertible into United
States Dollars, and (b) in which deposits are generally available to all the
Lenders in the London interbank market.
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"Funding Liability" means (a) any deposit which was used (or deemed by
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Section 3.2.6 to have been used) to fund any portion of the Loan subject to a
LIBOR Pricing Option, and (b) any portion of the Loan subject to a LIBOR Pricing
Option funded (or deemed by Section 3.2.6 to have been funded) with the proceeds
of any such deposit.
"GAAP" means generally accepted accounting principles as from time to
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time in effect, including the statements and interpretations of the United
States Financial Accounting Standards Board.
"Governmental Authority" means any federal, state, local, provincial or
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foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" means, with respect to a specified Person:
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(a) any guarantee by the specified Person of the payment or
performance of, or any contingent obligation by the specified Person in respect
of, any Indebtedness or other obligation of any primary obligor;
(b) any other arrangement whereby credit is extended to a primary
obligor on the basis of any obligation of the specified Person to a creditor or
prospective creditor of such primary obligor, to (i) pay the Indebtedness of
such primary obligor, (ii) purchase an obligation owed by such primary obligor,
(iii) pay for the purchase or lease of assets or services regardless of the
actual delivery thereof or (iv) maintain the capital, working capital, solvency
or general financial condition of such primary obligor;
(c) any liability of the specified Person as a joint venturer whether
imposed as a matter of law or by contract, of a Joint Venture in respect of
Indebtedness of such Joint Venture other than liabilities that are not
classified as liabilities on the Consolidated balance sheet of the Parent and
that are incurred in connection with Joint Ventures entered into by the
Borrowers or their Subsidiaries in the ordinary course of the Borrowers'
business and in a manner consistent with the Borrowers' past practices; and
(d) reimbursement obligations, whether contingent or matured, of the
specified Person with respect to letters of credit, bankers acceptances, other
financial guarantees and interest rate protection agreements;
in each case whether or not any of the foregoing are reflected on the balance
sheet of the specified Person or in a footnote thereto.
"Hazardous Material" means any pollutant, toxic or hazardous material
------------------
or waste, including any "hazardous substance" or "pollutant" or "contaminant" as
defined in section 101(14) of CERCLA or any other Environmental Law or regulated
as toxic or hazardous under RCRA or any other Environmental Law.
-9-
"Indebtedness" means any of the following items:
------------
(a) borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments;
(c) Capitalized Lease obligations;
(d) the deferred purchase price of assets or securities, including
related noncompetition and consulting obligations (other than ordinary trade
accounts payable within six months after the incurrence thereof in the ordinary
course of business);
(e) mandatory redemption or dividend rights on capital stock (or
other equity);
(f) reimbursement obligations, whether contingent or matured, with
respect to letters of credit, bankers acceptances, other financial guarantees
and interest rate protection agreements (without duplication of other
Indebtedness supported or guaranteed thereby); and
(g) all Guarantees in respect of Indebtedness of others.
"Indemnified Party" is defined in Section 12.2.
-----------------
"Initial Closing Date" means such date prior to the Final Maturity Date
--------------------
agreed to by the Borrowers and the Agent as the first Closing Date hereunder.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
-------------
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Expense" means, for any period, total interest expense
----------------
(including the interest component of any Capitalized Leases) of the Parent and
its Subsidiaries, on a Consolidated basis, determined in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans, the last day
---------------------
of each calendar quarter and the Final Maturity Date, and (b) as to LIBOR Loans,
the last day of each applicable Interest Period and the Final Maturity Date and
in addition where the applicable Interest Period for a LIBOR Loan is greater
than three months, then also the date three months from the beginning of the
Interest Period and each three months thereafter.
"Interest Period" means, as to LIBOR Loans, a period of one, two, three
---------------
or six months, as the Borrowers may elect, commencing, in each case, on the date
of the borrowing (including continuations and conversions thereof); provided,
--------
however, (a) if any Interest Period would end on a day which is not a Banking
-------
Day, such Interest Period will be extended to the next succeeding Banking Day
and such extension of time will be included in the computation of interest and
fees (except that where the next succeeding
-10-
Banking Day falls in the next succeeding calendar month, then on the next
preceding Banking Day), (b) no Interest Period will extend beyond the Final
Maturity Date, and (c) where an Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month in which the Interest
Period is to end, such Interest Period will end on the last Banking Day of such
calendar month.
"Investment" means, with respect to a specified Person:
----------
(a) any share of capital stock, partnership or other equity interest,
evidence of Indebtedness or other security issued by any other Person;
(b) any loan, advance or extension of credit to, or contribution to
the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other Person; and
(d) any Acquisition.
The investments described in the foregoing clauses (a) through (d) are
included in the term "Investment" whether they are made or acquired by purchase,
exchange, issuance of stock or other securities, merger, reorganization or any
other method; provided, however, that the term "Investment" does not include (i)
--------- --------
current trade and customer accounts receivable for property leased, goods
furnished or services rendered in the ordinary course of business and payable in
accordance with customary trade terms, (ii) deposits, advances or prepayments to
suppliers for property leased or licensed, goods furnished and services rendered
in the ordinary course of business, (iii) advances to employees for relocation
and travel expenses, drawing accounts and similar expenditures, (iv) stock or
other securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claims due to the specified Person or as security for any such
Indebtedness or claim, or (v) demand deposits in banks or similar financial
institutions.
"Issuing Bank" means ▇▇▇▇▇ Fargo or any successor Agent, in each case
------------
in its capacity as the issuer of a Letter of Credit.
"Joint Venture" means a corporation, partnership, limited liability
-------------
company, joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity) now or hereafter formed
by a Borrower or any of its Subsidiaries with another Person in order to conduct
a common venture or enterprise with such Person.
"Judgment Currency" is defined in Section 22.1.
-----------------
"Judgment Currency Conversion Date" is defined in Section 22.1.
---------------------------------
-11-
"Key Employee Notes" means (a) notes issued to former employees for the
------------------
purchase price of stock redeemed by the Parent in accordance with the stock
repurchase requirements set forth in the Parent's Bylaws in effect as of the
date of this Agreement, (b) notes issued in the purchase by the Parent of shares
of its common stock under the repurchase rights set forth in the Parent's Bylaws
as proposed to be in effect and attached as Exhibit 9.22, (c) notes issued in
------------
the purchase by the Parent of shares of its common stock on the internal market
to balance the supply and demand for common stock between sellers and buyers,
and (d) notes issued to employees or former employees upon the exercise of (or
in satisfaction of) stock appreciation rights or to pay or satisfy rights under
a phantom stock plan.
"Legal Requirement" means any present or future requirement imposed
-----------------
upon any of the Lenders or any of the Borrowers and their Subsidiaries by any
law, statute, rule, regulation, directive, order, decree, guideline (or any
interpretation thereof by courts or of administrative bodies) of the United
States of America, or any jurisdiction in which any LIBOR Office is located or
any state or political subdivision of any of the foregoing, or by any board,
governmental or administrative agency, central bank or monetary authority of the
United States of America, any jurisdiction in which any LIBOR Office is located,
or any political subdivision of any of the foregoing. Any such requirement
imposed on any of the Lenders not having the force of law will be deemed to be a
Legal Requirement for purposes of Section 3 if such Lender reasonably believes
that compliance therewith is in the best interest of such Lender.
"Lender" means each of the Persons listed as lenders on the signature
------
page hereto, including ▇▇▇▇▇ Fargo in its capacity as a Lender and such other
Persons who may from time to time own a Percentage Interest in the Credit
Obligations, but the term "Lender" will not include any Credit Participant.
"Lending Officer" means such individuals whom the Agent may designate
---------------
by notice to the Parent from time to time as an officer who may receive
telephone requests for borrowings under Section 2.1.3 or 2.2.1.
"Letter of Credit" is defined in Section 2.4.1.
----------------
"Letter of Credit Agreement" means the Issuing Bank's standard letter
--------------------------
of credit application and documentation modified to such extent, if any, as the
Issuing Bank deems necessary.
"LC Available Credit" means the lesser of (i) $60,000,000, or (ii) the
-------------------
Available Credit.
"Letter of Credit Exposure" means, at any date, the sum of (a) the
-------------------------
aggregate face amount of all drafts that may then or thereafter be presented by
beneficiaries under all Letters of Credit then outstanding, plus (b) the
----
aggregate face amount of all drafts that the Issuing Bank has previously
accepted under Letters of Credit but that the Borrowers have not paid to the
Issuing Bank.
-12-
"LIBOR Base Rate" means, for any Interest Period, the rate of interest
---------------
at which United States Dollar deposits (in the case of Dollar LIBOR Loans) or
the applicable Foreign Currency deposits (in the case of Multicurrency LIBOR
Loans) in an amount comparable to the portion of the Loan as to which a LIBOR
Pricing Option has been elected and which have a term corresponding to such
Interest Period are offered to the Agent in the London interbank market for
delivery in immediately available funds at a LIBOR Office selected by the Agent
on the first day of such Interest Period as determined by the Agent at
approximately 11:00 a.m. (London time) two Banking Days prior to the date upon
which such Interest Period is to commence (which determination by the Agent
shall, in the absence of manifest error, be conclusive).
"LIBOR Loan" means a Dollar LIBOR Loan or a Multicurrency LIBOR Loan.
----------
"LIBOR Office" means such non-United States office or international
------------
banking facility of any Lender as the Lender may from time to time select.
"LIBOR Pricing Options" means the options granted pursuant to Section
---------------------
3.2.1 to have the interest on any portion of the Loan computed on the basis of a
LIBOR Rate.
"LIBOR Rate" for any Interest Period means the rate, rounded upward to
----------
the next highest 1/16%, obtained by dividing (a) the LIBOR Base Rate for such
Interest Period by (b) an amount equal to 1 minus the LIBOR Reserve Rate;
-----
provided, however, that if at any time during such Interest Period the LIBOR
-------- -------
Reserve Rate applicable to any outstanding LIBOR Pricing Option changes, the
LIBOR Rate for such Interest Period will automatically be adjusted to reflect
such change, effective as of the date of such change to the extent required by
the Legal Requirement implementing such change.
"LIBOR Reserve Rate" means the stated maximum rate (expressed as a
------------------
decimal) of all reserves (including any basic, supplemental, marginal or
emergency reserve or any reserve asset), if any, as from time to time in effect,
required by any Legal Requirement to be maintained by any Lender against (a)
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System applicable to LIBOR Pricing Options, (b)
any other category of liabilities that includes deposits by reference to which
the interest rate on portions of the Loan subject to LIBOR Pricing Options is
determined, (c) the principal amount of or interest on any portion of the Loan
subject to a LIBOR Pricing Option or (d) any other category of extensions of
credit, or other assets, that includes loans subject to a LIBOR Pricing Option
by a non-United States office of any of the Lenders to United States residents,
in each case without the benefits of credits for prorations, exceptions or
offsets that may be available to a Lender.
"Lien" means, with respect to any specified Person:
----
(a) any lien, encumbrance, mortgage, pledge, charge or security
interest of any kind upon any property or assets of the specified Person,
whether now owned or hereafter acquired, or upon the income or profits
therefrom;
-13-
(b) the purchase of, or the agreement to purchase, any property or
asset upon conditional sale or subject to any other title retention agreement,
device or arrangement (including a Capitalized Lease); and
(c) the sale, assignment, pledge or transfer for security of any
accounts, general intangibles or chattel paper of the specified Person, with or
without recourse.
"Loan" means the aggregate principal amount of all Base Rate Loans,
----
LIBOR Loans and Swing Line Loans outstanding from time to time.
"MLA Cost" means an addition to the interest rate on a Multicurrency
--------
LIBOR Loan to compensate a Lender for the cost imputed to a Lender in respect of
any Multicurrency LIBOR Loan made during the term of any Multicurrency LIBOR
Loan resulting from the imposition from time to time under or pursuant to the
Bank of England Act 1998 (the "Act") and/or by the Bank of England and/or the
Financial Services Authority (the "FSA") (or other United Kingdom governmental
authorities or agencies) of a requirement to place non-interest-bearing deposits
or special deposits (whether interest-bearing or not) with the Bank of England
to meet cash ratio requirements and/or pay fees to the FSA calculated by
reference to liabilities used to fund the Multicurrency LIBOR Loan.
"Margin Stock" means "margin stock" within the meaning of Regulation U
------------
of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, financial condition, income or prospects of any Borrower (on
an individual or collective basis) or the Parent and its Subsidiaries (on a
Consolidated basis), or (b) the ability of the Obligors collectively to perform
their obligations under the Credit Documents, or (c) the rights and remedies of
the Agent and the Lenders under the Credit Documents.
"Material Subsidiary" means each direct or indirect wholly-owned
-------------------
Subsidiary of the Parent whose gross revenues account for greater than 5% of the
Consolidated annual revenues of the Parent.
"Maximum Amount of Credit" is defined in Section 2.1.2.
------------------------
"Multicurrency Available Credit" means the lesser of (i) the U.S.
------------------------------
Dollar Equivalent of $10,000,000, or (ii) the Available Credit.
"Multicurrency LIBOR Loan" means a Loan made in a Foreign Currency that
------------------------
bears interest with reference to the LIBOR Base Rate for deposits in that
Foreign Currency.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
------------------
4001(a)(3) of ERISA, to which any ERISA Group Person is making or accruing an
-14-
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Net Funded Debt" means all Indebtedness of the Parent and its
---------------
Subsidiaries (excluding Key Employee Notes).
"Notes" means the Revolving Credit Notes and the Swing Line Note.
-----
"Notice of Authorized Representatives" is defined in Section 5.
------------------------------------
"Notice of Revolving Credit Advance" is defined in Section 2.1.3.
----------------------------------
"Obligation Currency" is defined in Section 22.1.
-------------------
"Obligor" means each Borrower, each Material Subsidiary and each other
-------
Person guaranteeing or providing collateral for the Credit Obligations.
"OSHA" means the federal Occupational Health and Safety Act.
----
"Parent" means CH2M Hill Companies, Ltd., an Oregon corporation.
------
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
entity.
"Percentage Interest" means (a) at all times when no Event of Default
-------------------
under Section 11.1.1 and no Bankruptcy Default exists, the ratio that the
respective Commitments of the Lenders bears to the total Commitments of all
Lenders as from time to time in effect and reflected in the Register, and (b) at
all other times, the ratio that the respective amounts of the outstanding Credit
Obligations (including Letter of Credit Exposure) owing to the Lenders in
respect of extensions of credit under Section 2 bear to the total outstanding
Credit Obligations owing to all Lenders.
"Permitted Acquisition" means an Acquisition that meets the following
---------------------
conditions:
(a) The Agent shall receive at least 10 days prior written notice of
any such proposed Permitted Acquisition for which the cash consideration exceeds
$15,000,000;
(b) Such Permitted Acquisition shall only involve assets or businesses
comprising a business, or those assets of a business, substantially of the type
engaged in by the Borrowers as of the date of this Agreement;
(c) Such Permitted Acquisition shall be consensual and shall have been
approved by the Target's board of directors (and stockholders to the extent
required by applicable law);
-15-
(d) No additional Indebtedness shall be incurred, assumed or otherwise
reflected on the Consolidated balance sheet of the Parent and its Subsidiaries
after giving effect to the Permitted Acquisition, except (i) ordinary course
trade payables and accrued expenses and (ii) other assumed Indebtedness not
incurred in anticipation of the proposed Acquisition, provided that upon the
--------
assumption of such Indebtedness the Borrowers would be in compliance with the
financial covenants set forth in Section 9.4 through 9.7 on a pro forma basis,
and, provided, further, that (A) any purchase money Indebtedness or Capitalized
-------- -------
Leases assumed are secured only by the assets of the Target acquired with the
proceeds of such purchase money Indebtedness or Capitalized Leases, (B) any
Indebtedness secured by Liens on real property is in an outstanding principal
amount not in excess of the fair market value of the real property (except this
restriction shall not apply if the aggregate amount of such Indebtedness secured
by Liens on real property for all Permitted Acquisitions does not exceed
$2,500,000), and (C) no Indebtedness secured by accounts receivable shall be
assumed;
(e) The business and assets of the Target shall be free of Liens,
except Liens permitted in connection with Indebtedness permitted to be assumed
by paragraph (d) of this definition;
(f) All necessary or appropriate third party and government waivers
and consents relating to the Permitted Acquisition have been received; and
(g) Prior to becoming contractually committed to make such Acquisition
for which cash consideration exceeds $15,000,000, the Borrowers shall deliver to
the Agent, pro forma Consolidated financial statements for the Parent and its
Subsidiaries, including the Target, for the four fiscal quarters preceding the
date of the Acquisition, in form satisfactory to the Agent, accompanied by a
certificate of a Financial Officer certifying that after giving effect to such
Acquisition, the Borrowers will be in compliance with the financial covenants
set forth in Section 9.4 through 9.8, and no Default or Event of Default will
exist.
"Person" means any present or future natural person or any corporation,
------
association, partnership, joint venture, limited liability, joint stock or other
company, business trust, trust, organization, business or government or any
governmental agency or political subdivision thereof.
"Plan" means, at any date, any pension benefit plan subject to Title IV
----
of ERISA maintained, or to which contributions have been made or are required to
be made, by any ERISA Group Person within six years prior to such date.
"Pricing Ratio" means, for any period of four consecutive fiscal
-------------
quarters, the ratio of Net Funded Debt as of the last day of such period to
EBITDA for the four fiscal quarters then ended.
"RCRA" means the federal Resource Conservation and Recovery Act, 42
----
U.S.C. (S) 690, et seq.
-- ---
-16-
"Register" is defined in Section 14.1.3.
--------
"Reportable Event" means an event that is reportable under Section
----------------
4043(c)(1), (2), (3), (4), (5), (6), (7), (10), (11), (12) or (13) of ERISA and
for which a waiver is not available.
"Required Lenders" means, with respect to any approval, consent,
----------------
modification, waiver or other action to be taken by the Agent or the Lenders
under the Credit Documents which require action by the Required Lenders, two or
more Lenders owning together at least 66 2/3% of the Percentage Interests.
"Revolving Credit Loan" means a Loan made by a Lender to the Borrowers
---------------------
pursuant to Section 2.1.
"Revolving Credit Notes" is defined in Section 2.1.4.
----------------------
"San Francisco Office" means the principal banking office of ▇▇▇▇▇
--------------------
Fargo in San Francisco, California.
"Significant Subsidiary" means each direct or indirect Subsidiary of
----------------------
the Parent (a) of which the Parent owns or controls 80% or more of the issued
and outstanding stock or other ownership interests and (b) which has total
assets as shown on its balance sheet, determined in accordance with GAAP,
exceeding $750,000.
"Solvent" means, with respect to any Person as of a particular date,
-------
that on such date (a) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (b) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature in their ordinary course, (c) such
Person is not engaged in a business or a transaction, and is not about to engage
in a business or a transaction, for which such Person's assets would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage, (d)
the fair value of the assets of such Person is greater than the total amount of
liabilities including, without limitation, contingent liabilities, of such
Person, and (e) the present saleable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and mature. In computing the amount
of contingent liabilities at any time, it is intended that such liabilities are
to be computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"Subsidiary" means any subsidiary required by GAAP to be included in
----------
the consolidated financial reporting of the Parent (or other specified Person).
"Subsidiary Guarantees" is defined in Section 6.
---------------------
-17-
"Swing Line Available Credit" means the lesser of (i) $10,000,000, or
---------------------------
(ii) the Swingline Lender's Percentage Interest of the Available Credit.
"Swing Line Commitment" means the Swing Line Lender's obligations to
---------------------
extend the Swing Line Loan.
"Swing Line Lender" means ▇▇▇▇▇ Fargo.
-----------------
"Swing Line Loan" means a Loan made by the Swing Line Lender pursuant
---------------
to Section 2.2.
"Swing Line Note" is defined in Section 2.2.2.
---------------
"Target" means any Person that a Borrower proposes to acquire by
------
merger, stock purchase or by the purchase of all or substantially all of its
assets.
"Tax" means any present or future tax, levy, duty, impost, deduction,
---
withholding or other charges of whatever nature at any time required by any
Legal Requirement (a) to be paid by any Lender or (b) to be withheld or deducted
from any payment otherwise required hereby to be made to any Lender, in each
case on or with respect to its obligations hereunder, the Loan, any payment in
respect of the Credit Obligations or any Funding Liability not included in the
foregoing; provided, however, that the term "Tax" shall not include taxes
-------- -------
imposed upon or measured by the net income of such Lender (other than
withholding taxes).
"Total Commitment" means the total of all Commitments.
----------------
"Total Funded Debt" means all Indebtedness of the Parent and its
-----------------
Subsidiaries, including Key Employee Notes.
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
------------------------
a amended by the Single European Act of 1986 and the Maastricht Treaty (which
was signed at Maastricht on February 7, 1992, and came into force on November 1,
1993, as amended from time to time).
"United States Dollars" means lawful currency of the United States of
---------------------
America.
"Unused Line Percentage" means a percentage per annum determined by the
----------------------
Pricing Ratio for the preceding fiscal quarter, determined in accordance with
the following table:
-18-
Pricing Ratio Unused Line Fee
------------- ---------------
Greater than 3.50 .400%
Greater than 3.00 less than or equal to 3.50 .350%
Greater than 2.50 less than or equal to 3.00 .300%
Greater than 1.50 less than or equal to 2.50 .250%
Less than or equal to 1.50 .250%
"U.S. Dollar Equivalent" means the amount of Dollars that would be
----------------------
realized by converting a Foreign Currency into United States Dollars at
approximately 11:00 a.m. (London time), at the conversion rate or exchange rate
as set forth on the applicable Telerate Screen, on the date of determination;
provided that if more than one rate is listed then the applicable conversion
rate shall be the arithmetic average of such rates. If for any reason such
conversion rates are not available, the U.S. Dollar Equivalent shall be
calculated using the arithmetic average of the spot buying rates for such
Foreign Currency in United States Dollars as quoted to the Agent by three
foreign exchange dealers of recognized standing in the United States selected by
the Agent at approximately 11:00 a.m. (London time) on any date of
determination.
"▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank, National Association (or any
-----------
successor thereto).
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
--------------------
E of Title IV of ERISA.
"Year 2000 Compliance" means that all material computer systems and
--------------------
programs (a) are designed to be used prior to, during and after the calendar
year 2000 AD without error relating to date data; (b) are capable of operating
without error relating to the production of date data which represents or refers
to different centuries or more than one century; and (c) are designed so that
all data fields, date-related user interfaces, and other interfaces include the
indication of century, and "Year 2000 Compliant" will have a corresponding
meaning.
2. The Credits.
-----------
2.1 Revolving Credit.
----------------
2.1.1 Revolving Credit Loans. Subject to all terms and
----------------------
conditions of this Agreement and so long as no Default exists, from
time to time on and after the Initial Closing Date and prior to the
Final Maturity Date, the Lenders will, severally in accordance with
their respective Commitments, make Revolving Credit Loans to the
Borrowers, in United States Dollars or a Foreign Currency, as
applicable, in such amounts as may be requested by the Parent in
accordance with Section 2.1.3. The sum of (a) the aggregate outstanding
principal amount of the Revolving Credit Loans plus (b) the outstanding
----
principal amount of all Swing Line Loans plus (c) the Letter of Credit
Exposure, will not exceed the Maximum Amount of Credit. The outstanding
principal amount of Loans made by any
-19-
Lender will not exceed the Lender's Commitment. The aggregate
outstanding principal amount of Multicurrency LIBOR Loans will not
exceed the Multicurrency Available Credit.
2.1.2 Maximum Amount of Credit. The term "Maximum Amount of
------------------------ -----------------
Credit" means the lesser of (a) $100,000,000 (or such greater amount
------
to which the Maximum Amount of Credit has been increased in accordance
with Section 2.7), or (b) the amount to which the Total Commitment has
been permanently reduced pursuant to Section 4.2.1.
2.1.3 Borrowing Requests. The Parent, on behalf of the
------------------
applicable Borrower, may from time to time request a Revolving Credit
Loan under
Section 2.1.1 by providing to the Agent a notice (which may be given
by a telephone call from an Authorized Representative received by a
Lending Officer if promptly confirmed in writing) ("Notice of
Revolving Credit Advance"). Such Notice of Revolving Credit Advance
must be not later than 11:00 a.m. (Denver time) on the first Banking
Day (third Banking Day if any portion of such Revolving Credit Loan
shall be a Dollar LIBOR Loan and the fourth Banking Day if any portion
of such Revolving Credit Loan shall be a Multicurrency LIBOR Loan)
prior to the requested Closing Date for such Revolving Credit Loan.
The notice must specify (a) the amount of the requested Revolving
Credit Loan, (b) the name of the applicable Borrower, (c) whether the
requested Revolving Credit Loan will be a Dollar LIBOR Loan, a
Multicurrency LIBOR Loan (and the applicable Foreign Currency) or a
Base Rate Loan, (d) with respect to LIBOR Loans, the Interest Period,
and (e) the requested Closing Date therefor (which will be a Banking
Day). Each Base Rate Loan will be at least $500,000 and an integral
multiple of $100,000. Each Dollar LIBOR Loan will be at least
$3,000,000 and an integral multiple of $1,000,000. Each Multicurrency
LIBOR will be at least the U.S. Dollar Equivalent of $500,000 and an
integral multiple of the U.S. Dollar Equivalent of $100,000. Upon
receipt of such Notice of Revolving Credit Advance, the Agent will
promptly inform each other Lender (by telephoning or otherwise). In
connection with each Revolving Credit Loan, the Parent will furnish to
the Agent a certificate in substantially the form of Exhibit 8.2.1.
-------------
2.1.4 Revolving Credit Notes. The Agent will keep a record of
----------------------
the Revolving Credit Loan. Each Revolving Credit Loan will be deemed
owed to each Lender severally in accordance with such Lender's
Percentage Interest, and all payments will be for the account of each
Lender in accordance with its Percentage Interest. The Borrower's
obligations to pay each Lender's Percentage Interest in the Revolving
Credit Loan will be evidenced by a separate note of the Borrowers in
substantially the form of Exhibit 2.1.4 (the "Revolving Credit Notes"),
------------- ----------------------
payable to each Lender in accordance with such Lender's Percentage
Interest in the Revolving Credit Loan.
-20-
2.1.5 Lender Funding and Disbursement. Each Lender will, before
-------------------------------
10:00 a.m. (Denver time) on the date of each borrowing under Section
2.1.1. make available to the Agent at the Denver Office (or, at the
request of the Agent, in the case of a Multicurrency LIBOR Loan
advance, at such bank as the Agent may designate to the Lenders) by
deposit, in United States Dollars or the applicable Foreign Currency,
in same day or immediately available funds, such Lender's Percentage
Interest thereof. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Section 8, the
Agent will promptly disburse such funds in same day or immediately
available funds in the applicable Foreign Currency in the case of
Multicurrency LIBOR Loans, and in United States Dollars in the case of
all other Loans, to the Borrowers. Each Revolving Credit Loan will be
made at the Denver Office by depositing the amount thereof to the
general account of the Parent with the Agent.
2.1.6 Continuations and Conversions. The Borrowers will have
-----------------------------
the option, on any Banking Day, to continue existing LIBOR Loans for a
subsequent Interest Period, to convert Base Rate Loans into LIBOR
Loans or to convert LIBOR Loans into Base Rate Loans; provided,
however, that (i) LIBOR Loans may only be continued or converted into
Base Rate Loans on the last day of the applicable Interest Period,
(ii) LIBOR Loans may not be continued nor may Base Rate Loans be
converted into LIBOR Loans during the existence of a Default, and
(iii) any request to continue a LIBOR Loan that fails to comply with
the terms hereof including the time periods in 2.1.3 or any failure to
request a continuation of a LIBOR Loan at the end of an Interest
Period shall constitute a conversion to a Base Rate Loan on the last
day of the Interest Period.
2.1.7 Lenders' Obligations to Fund. Unless the Agent has
----------------------------
received notice from a Lender prior to the date of any Revolving Credit
Loan that such Lender will not make available to the Agent the Lender's
Percentage Interest of the Revolving Credit Loan, the Agent may assume
that the Lender has made its Percentage Interest available to the Agent
on the date of the Revolving Credit Loan n accordance with Section
2.1.5, and the Agent may, in reliance upon such assumption, make
available to the Borrowers a corresponding amount. If and to the extent
that a Lender has not made its Percentage Interest available to the
Agent, such Lender and the Borrowers severally agree to repay or pay to
the Agent forthwith upon demand the corresponding amount and to pay
interest thereon, for each day from the date the amount is made
available to the Borrowers until the date such amount is repaid or paid
to the Agent, at (i) in the case of the Borrowers, the interest rate
applicable at such time under Section 3.1 to such Revolving Credit
Loan, and (ii) in the case of the Lender, the Federal Funds Rate for
the first two Banking Days and the Base Rate thereafter.
2.1.8 Lenders' Obligations Several. The obligation of each
----------------------------
Lender hereunder is several. The failure of any Lender to make
available its Percentage Interest of any borrowing will not relieve any
other Lender of its obligation
-21-
hereunder to do so on the date requested, but no Lender will be
responsible for the failure of any other Lender to make available the
Percentage Interest to be funded by such other Lender.
2.2 Swing Line.
----------
2.2.1 Swing Line Loans. In lieu of making Revolving Credit
----------------
Loans, the Swingline Lender may, in its sole discretion, on the terms
and subject to the conditions of this Agreement, make available to the
Borrowers, from time to time until the Final Maturity Date, Swing Line
Loans. The aggregate outstanding principal amount of all Swing Line
Loans will not exceed the Swing Line Available Credit. Until the Final
Maturity Date, the Borrowers may from time to time borrow, repay and
reborrow under this Section 2.2.1. Each Swing Line Loan will be made
upon telephonic notice from the Parent to the Swing Line Lender on the
date of receipt of such telephonic notice if such day is a Banking Day
and if such notice is received before 11:00 a.m. (Denver time), or if
received after 11:00 a.m. (Denver time), such Swing Line Loan shall be
made on the next Banking Day. Notwithstanding any other provision of
this Agreement or the other Credit Documents, each Swing Line Loan will
constitute a Base Rate Loan. The Borrowers will repay the aggregate
outstanding principal amount of the Swing Line Loan upon demand by the
Agent. Each Swing Line Loan will be made at the Denver Office by
depositing the amount thereof in United States Dollars to the general
account of the Parent with the Agent. In connection with each such
Loan, the Parent will furnish to the Agent a certificate in
substantially the form of Exhibit 8.2.1.
-------------
2.2.2 Swing Line Note. The Swing Line Commitment will be
---------------
evidenced by a single master promissory note, in the principal amount
of $10,000,000, dated the Initial Closing Date and substantially in
the form of Exhibit 2.2.2 (the "Swing Line Note"). Each Borrower shall
------------- ---------------
execute the Swing Line Note and deliver the same to the Agent on
behalf of the Swing Line Lender. The Swing Line Note will represent
the obligation of each Borrower to pay the amount of the aggregate
unpaid principal amount of all Swing Line Loans made to the Borrowers
together with interest thereon as provided in Section 2.2.1. The
entire unpaid balance of the Swing Line Loan and all other
non-contingent Credit Obligations shall be immediately due and payable
in full in immediately available funds on the Final Maturity Date if
not sooner paid in full.
2.2.3 Refunding of Swing Line Loans. The Swing Line Lender, at
-----------------------------
any time and from time to time in its sole and absolute discretion
will, but not less frequently than weekly, on behalf of any Borrower
(and each Borrower hereby irrevocably authorizes the Swing Line Lender
to so act on its behalf), request each Lender (including the Swing
Line Lender) to make a Revolving Credit Loan to such Borrower (which
shall be a Base Rate Loan) in an amount equal to such Lender's
Percentage Interest of the principal amount of such Borrower's Swing
-22-
Line Loan (the "Refunded Swing Line Loan") outstanding on the date such notice
is given. Unless a Bankruptcy Default exists (in which event the procedures of
Section 2.2.4 will apply) and regardless of whether the conditions precedent set
forth in this Agreement to the making of a Revolving Credit Loan are then
satisfied, each Lender will disburse directly to the Agent, its Percentage
Interest of the Revolving Credit Loan, prior to 12:00 noon (Denver time), in
immediately available funds on the Banking Day next succeeding the date such
notice is given. The proceeds of such Revolving Credit Loans shall be
immediately paid to the Swing Line Lender and applied to repay the Refunded
Swing Line Loan of the applicable Borrower, as requested by the Swing Line
Lender.
2.2.4 Participation in Swing Line Loans. If, prior to refunding a Swing
---------------------------------
Line Loan with a Revolving Credit Loan pursuant to Section 2.2.3, a Bankruptcy
Default exists, then each Lender shall, on the date such Revolving Credit Loan
was to have been made for the benefit of the applicable Borrower, purchase from
the Swing Line Lender an undivided participation interest in the Swing Line
Loan. Upon request, each Lender shall promptly transfer to the Swing Line
Lender, in immediately available funds, the amount of its participation.
2.2.5 Lender's Funding Obligations. Each Lender's obligation to make
----------------------------
Revolving Credit Loans in accordance with Section 2.2.3 and to purchase
participating interests in accordance with Section 2.2.4 shall not be affected
by any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the Agent, the Swing Line Lender, any Borrower or any
other Person for any reason whatsoever. If any Lender does not make available to
the Swing Line Lender the amount required pursuant to Section 2.2.3 or 2.2.4, as
the case may be, the Swing Line Lender shall be entitled to recover such amount
on demand from such Lender, together with interest thereon for each day from the
date of nonpayment until such amount is paid in full at the Federal Funds Rate
for the first two Banking Days and at the Base Rate thereafter.
2.3 Currency Equivalents for Multicurrency LIBOR Loans.
--------------------------------------------------
2.3.1 Conversion Rate for Multicurrency LIBOR Loans. The principal amount
---------------------------------------------
of each Multicurrency LIBOR Loan which is denominated in a Foreign Currency (a)
will be converted into its U.S. Dollar Equivalent on the date of the funding of
such Multicurrency LIBOR Loan (the "Converted Principal Amount"), and the
Converted Principal Amount will be added to the principal balance outstanding
under the Revolving Credit Notes on the date of the funding of such
Multicurrency LIBOR Loan, and (b) from and after any such date, will be deemed
to remain equivalent to the Converted Principal Amount until the end of the
applicable Interest Period notwithstanding any fluctuation in exchange rates
occurring thereafter.
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2.3.2 Revaluation. If at the expiration of an Interest Period for a
-----------
Multicurrency LIBOR Loan, the Multicurrency LIBOR Loan will remain denominated
in the same Foreign Currency for a succeeding Interest Period, then the
principal amount of such Multicurrency LIBOR Loan will be revalued based on the
U.S. Dollar Equivalent as of the Banking Day preceding the next Interest Period.
2.4 Letters of Credit.
-----------------
2.4.1 Issuance of Letters of Credit. Subject to all terms and conditions
-----------------------------
of this Agreement and so long as no Default exists, from time to time on and
after the Initial Closing Date and prior to the Final Maturity Date, the Issuing
Bank will issue for the account of the Borrowers standby and documentary letters
of credit (the "Letters of Credit"). The Letter of Credit Exposure plus the Loan
-----------------
will not exceed the Maximum Amount of Credit. The Letter of Credit Exposure will
not exceed the LC Available Credit.
2.4.2 Requests for Letters of Credit. The Parent, on behalf of the
------------------------------
applicable Borrower, may from time to time request a Letter of Credit to be
issued by providing a notice from an Authorized Representative to the Issuing
Bank which is actually received not less than one Banking Day prior to the
requested Closing Date for such Letter of Credit specifying (a) the amount of
the requested Letter of Credit, (b) the applicable Borrower, (c) the beneficiary
thereof, (d) the requested Closing Date, and (e) the principal terms of the text
for such Letter of Credit. Each Letter of Credit will be issued by forwarding it
to the applicable Borrower or to such other Person as directed in writing by an
Authorized Representative of the Parent. In connection with the issuance of any
Letter of Credit, the Parent shall deliver to the Issuing Bank a certificate in
substantially the form of Exhibit 2.4.2 and a Letter of Credit Agreement signed
-------------
by the applicable Borrower, and such other documents or items as the Issuing
Bank may require pursuant to the terms thereof.
2.4.3 Form and Expiration of Letters of Credit. Each Letter of Credit
----------------------------------------
issued under this Section 2.4 and each draft accepted or paid under such a
Letter of Credit will be issued, accepted or paid, as the case may be, by the
Issuing Bank at its principal office. No Letter of Credit will provide for the
payment of drafts drawn thereunder, and no draft will be payable, at a date
which is later than the earlier of (a) the date one year after the date of
issuance, or (b) the Final Maturity Date. Each Letter of Credit and each draft
accepted under a Letter of Credit will be in such form and minimum amount, and
will contain such terms, as the Issuing Bank and the applicable Borrower may
agree upon at the time such Letter of Credit is issued, including a requirement
of not less than three Banking Days after presentation of a draft before payment
must be made thereunder.
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2.4.4 Lenders' Participation in Letters of Credit. Upon the issuance of
-------------------------------------------
any Letter of Credit, a participation therein, in an amount equal to each
Lender's Percentage Interest in the Loan, will automatically be deemed granted
by the Issuing Bank to each Lender on the date of such issuance and the Lenders
will automatically be obligated, as set forth in Section 13.4, to reimburse the
Issuing Bank to the extent of their respective Percentage Interests in the Loan
for all obligations incurred by the Issuing Bank to third parties in respect of
such Letter of Credit not reimbursed by the Borrowers. The Agent will send to
each Lender a confirmation regarding the participations in Letters of Credit
outstanding during each month.
2.4.5 Presentation. The Issuing Bank may accept or pay any draft presented
------------
to it, regardless of when drawn, if such draft, the other required documents and
any transmittal advice are presented to the Issuing Bank and dated on or before
the expiration date of the Letter of Credit under which such draft is drawn.
Except insofar as written instructions actually received are given by the
applicable Borrower expressly to the contrary with regard to, and prior to, the
Issuing Bank's issuance of any Letter of Credit for the account of the
applicable Borrower and such contrary instructions are reflected in such Letter
of Credit, the Issuing Bank may honor as complying with the terms of the Letter
of Credit and with this Agreement any drafts or other documents otherwise in
order signed or issued by an administrator, executor, conservator, trustee in
bankruptcy, debtor in possession, assignee for benefit of creditors, liquidator,
receiver or other legal representative of the party authorized under such Letter
of Credit to draw or issue such drafts or other documents.
2.4.6 Payment of Drafts. At such time as the Issuing Bank makes any
-----------------
payment on a draft presented or accepted under a Letter of Credit, the Borrowers
shall on demand pay to the Issuing Bank in immediately available funds the
amount of such payment. Unless the Borrowers otherwise pay to the Issuing Bank
the amount required by the foregoing sentence, such amount shall be considered a
Revolving Credit Loan under Section 2.1.1 and part of the Loan as if the
Borrowers had paid in full the amount required with respect to the Letter of
Credit by borrowing such amount under Section 2.1.1. In that event, the Issuing
Bank shall notify each other Lender that the Lender is to make a Revolving
Credit Loan to the Borrowers (which shall be a Base Rate Loan) in an amount
equal to the Lender's Percentage Interest of the principal amount of such
Revolving Credit Loan; and, regardless of whether the conditions precedent set
forth in this Agreement to the making of a Revolving Credit Loan are then
satisfied, each Lender (other than the Issuing Bank) will disburse directly to
the Issuing Bank, its Percentage Interest of the Revolving Credit Loan, prior to
12:00 noon (Denver time), in immediately available funds on the Banking Day next
succeeding the date such notice is given. The proceeds of such Revolving Credit
Loan shall be applied to repay the amount required by the first sentence of this
Section.
-25-
2.4.7 Subrogation. Upon any payment by the Issuing Bank under any
-----------
Letter of Credit and until the reimbursement of the Issuing Bank by the
Borrowers with respect to such payment, the Issuing Bank will be entitled
to be subrogated to, and to acquire and retain, the rights which the Person
to whom such payment is made may have against the Borrowers, all for the
benefit of the Lenders. The Borrowers will take such action as the Issuing
Bank may reasonably request, including requiring the beneficiary of any
Letter of Credit to execute such documents as the Issuing Bank may
reasonably request, to assure and confirm to the Issuing Bank such
subrogation and such rights, including the rights, if any, of the
beneficiary to whom such payment is made in accounts receivable, inventory
and other properties and assets of any Obligor.
2.4.8 Modification, Consent, Etc. If the Borrowers request or
--------------------------
consent in writing to any modification or extension of any Letter of
Credit, or waive any failure of any draft, certificate or other document to
comply with the terms of such Letter of Credit, and if the Issuing Bank
consents thereto, the Issuing Bank will be entitled to rely on such
request, consent or waiver. This Agreement will be binding upon the
Borrowers with respect to such Letter of Credit as so modified or extended,
and with respect to any action taken or omitted by the Agent or the Issuing
Bank pursuant to any such request, consent or waiver.
2.5 Application of Proceeds.
-----------------------
2.5.1 Loan. The Borrowers will apply the proceeds of the Loan for
----
general corporate purposes and Permitted Acquisitions.
2.5.2 Letters of Credit. Letters of Credit will be issued only for
-----------------
such lawful corporate purposes in the Borrowers' ordinary course of
business as the Parent has requested in writing.
2.5.3 Specifically Prohibited Applications. The Borrowers will not,
------------------------------------
directly or indirectly, apply any part of the proceeds of any extension of
credit made pursuant to the Credit Documents (a) to purchase or to carry
Margin Stock or (b) to any transaction prohibited by Legal Requirements or
by the Credit Documents.
2.6 Option to Extend Final Maturity Date. So long as no Default exists,
------------------------------------
the Borrowers may request, by notice to the Lenders on either the first or
second anniversary of the date of this Agreement, that the Final Maturity Date
be extended for an additional one year period. The Lenders will provide a
written response to the Borrowers not later than 60 days after receipt of such
request. In no event will the Final Maturity Date be extended without the
consent of each of the Lenders, and any Lender which fails to respond is deemed
to have denied the request for extension of the Final Maturity Date. In the
event the Lenders offer to extend the Final Maturity Date pursuant to this
Section 2.6, the Borrowers may accept such offer by written notice
-26-
received by the Agent not later than 30 days after receipt by the Borrowers of
such offer.
2.7 Option to Increase Maximum Amount of Credit. So long as no Default
-------------------------------------------
exists, if the Commercial Paper Facility is terminated at the request of the
Borrowers, the Borrowers may request, by notice to the Lenders, at least one
year prior to the Final Maturity Date, that the Maximum Amount of Credit be
increased by $25,000,000. The Lenders will provide a written response to the
Borrowers not later than 30 days after receipt of such request and may condition
their agreement to such request upon the Agent's ability to find an additional
Lender or Lenders for the amount of the increase in the Maximum Amount of
Credit. In no event will the Maximum Amount of Credit be increased without the
consent of each of the Lenders, and no Lender shall be required to increase such
Lender's Commitment, whether or not such Lender consents to the increase of the
Maximum Amount of Credit. The effectiveness of any such increase in the Maximum
Amount of Credit shall be subject to the execution of such additional promissory
notes and other Credit Documents or amendments to existing Credit Documents and
payment of such additional fees, including without limitation, amendment fees
provided for in the Fee Letter as the Agent may reasonably request.
3. Interest; LIBOR Pricing Options; Fees; Changes in Circumstance, Yield
---------------------------------------------------------------------
Protection.
----------
3.1 Interest. The Loan will accrue and bear interest at a rate per
--------
annum which will at all times equal the Applicable Rate. Any Multicurrency LIBOR
Loan will have added to such Loan the MLA Cost associated with such Loan. Prior
to any stated or accelerated maturity of the Loan, the Borrowers will, on each
Interest Payment Date applicable to Base Rate Loans, pay the accrued and unpaid
interest on all Base Rate Loans. On each Interest Payment Date applicable to a
LIBOR Loan, or on any earlier termination of any LIBOR Pricing Option applicable
to such LIBOR Loan, the Borrowers will pay the accrued and unpaid interest on
the portion of the Loan which was subject to the applicable LIBOR Pricing
Option. On the conversion of a LIBOR Loan to a Base Rate Loan or the conversion
of a Base Rate Loan to a LIBOR Loan, the Borrowers will pay the accrued and
unpaid interest on the portion of the Loan which is being converted. On the
stated or any accelerated maturity of the Loan, the Borrowers will pay all
accrued and unpaid interest on the Loan, including any accrued and unpaid
interest on any portion of the Loan which is subject to a LIBOR Pricing Option.
All payments of interest will be made in the applicable Foreign Currency, in the
case of Multicurrency LIBOR Loans, and in United States Dollars, in the case of
all other Loans, in same day or immediately available funds, not later than
12:00 noon (Denver time) on the due date to the Agent at the Denver Office for
the account of each Lender in accordance with such Lender's Percentage Interest;
provided, however, that at the request of the Agent, payments of interest on
-------- -------
Multicurrency LIBOR Loans will be made in the applicable Foreign Currency in
immediately available funds to such account at such bank as the Agent may
designate to the Parent, no later than 12:00 noon (local time in the place where
such bank is located) on the due date.
-27-
3.2 LIBOR Pricing Options.
---------------------
3.2.1 Election of LIBOR Pricing Options. Subject to all of the terms and
---------------------------------
conditions hereof and so long as no Default exists, the Borrowers may from time
to time, by irrevocable notice given by an Authorized Representative to the
Agent actually received not less than three Banking Days prior to the
commencement of the Interest Period selected in such notice, elect to have such
portion of the Loan as the Parent may specify in such notice accrue and bear
interest during the Interest Period so selected at the Applicable Rate computed
on the basis of the LIBOR Rate. In the event the Borrowers at any time fail to
elect a LIBOR Pricing Option under this Section 3.2.1 for any portion of the
Loan, then such portion of the Loan will accrue and bear interest at the Base
Rate. No election of a LIBOR Pricing Option will become effective:
(a) if, prior to the commencement of any such Interest Period, the
Agent determines that (i) as a result of the adoption of or change in any Legal
Requirement or in the interpretation or application thereof after the Initial
Closing Date, the electing or granting of the LIBOR Pricing Option in question
would be illegal, (ii) LIBOR deposits in an amount comparable to the principal
amount of the Loan as to which such LIBOR Pricing Option has been elected and
which have a term corresponding to the proposed Interest Period are not readily
available in the London interbank market, (iii) by reason of circumstances
affecting the London interbank market, adequate and reasonable methods do not
exist for ascertaining the interest rate applicable to such deposits for the
proposed Interest Period, or (iv) Loans cannot be made in the applicable Foreign
Currency; or
(b) if any Lender has advised the Agent by telephone or otherwise
at or prior to 11:00 a.m. (Denver time) on the second Banking Day prior to the
commencement of such proposed Interest Period (and has subsequently confirmed in
writing) that, after reasonable efforts to determine the availability of such
LIBOR deposits, such Lender reasonably anticipates that LIBOR deposits in an
amount equal to the Percentage Interest of such Lender in the portion of the
Loan as to which such LIBOR Pricing Option has been elected and which have a
term corresponding to the Interest Period in question will not be offered in the
London interbank market to such Lender at a rate of interest that does not
exceed the anticipated LIBOR Base Rate (unless the foregoing results from a
deterioration subsequent to the date hereof in the creditworthiness of such
Lender or a change in the availability of LIBOR markets to such Lender pursuant
to legal or regulatory restrictions).
If such notice is given in connection with (a) or (b) above, (i) any LIBOR
Loans requested to be made on the first day of such Interest Period shall
be made as Base Rate Loans, (ii) any Loans that were to have been converted
on the first day of such Interest Period to or continued as LIBOR Loans
shall be
-28-
converted to or continued as Base Rate Loans, and (iii) any outstanding LIBOR
Loans shall be converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the Agent, no further LIBOR Loans
shall be made or continued as such, nor shall the Borrowers have the right to
convert Base Rate Loans to LIBOR Loans. If such notice is given in connection
with any request for a Multicurrency LIBOR Loan, the requested Loan shall be
made in United States Dollars.
3.2.2 Notice to Lenders and Borrowers. The Agent will promptly inform each
-------------------------------
Lender (by telephone or otherwise) of each notice received by it from the Parent
pursuant to Section 3.2.1 and of the Interest Period specified in such notice.
Upon determination by the Agent of the LIBOR Rate for such Interest Period or in
the event such election will not become effective, the Agent will promptly
notify the Parent and each Lender (by telephone or otherwise) of the LIBOR Rate
so determined or why such election did not become effective, as the case may be.
3.2.3 Selection of Interest Periods for LIBOR Loans. Interest Periods will
---------------------------------------------
be selected so that:
(a) no more than 12 LIBOR Pricing Options will be outstanding at
any time;
(b) no more than three Multicurrency LIBOR Loans will be
outstanding at any time; and
(c) no Interest Period will expire later than the Final Maturity
Date.
3.2.4 Additional Interest. If any LIBOR Loan is repaid, or any LIBOR
-------------------
Pricing Option is terminated for any reason (including acceleration of
maturity), on a date which is prior to the last Banking Day of the Interest
Period applicable to such LIBOR Pricing Option, the Borrowers will pay to the
Agent for the account of each Lender in accordance with such Lender's Percentage
Interest, in addition to any interest otherwise payable hereunder, an amount
equal to the present value (calculated in accordance with this Section 3.2.4) of
interest for the unexpired portion of such Interest Period on the portion of the
Loan so repaid, or as to which a LIBOR Pricing Option was so terminated, at a
per annum rate equal to the excess, if any, of (a) the rate applicable to such
LIBOR Pricing Option minus (b) the rate of interest obtainable by the Agent upon
-----
the purchase of debt securities customarily issued by the Treasury of the United
States of America which have a maturity date approximating the last Banking Day
of such Interest Period. The present value of such additional interest will be
calculated by discounting the amount of such interest for each day in the
unexpired portion of such Interest Period from such day to the date of such
repayment or termination at a per annum interest rate equal to the interest rate
determined pursuant to
-29-
clause (b) of the preceding sentence, and by adding all such amounts for all
such days during such period. The determination by the Agent of such amount of
interest will, in the absence of manifest error, be conclusive. For purposes of
this Section 3.2.4, if any portion of the Loan which was to have been subject to
a LIBOR Pricing Option is not outstanding on the first day of the Interest
Period applicable to such LIBOR Pricing Option other than for reasons described
in Section 3.2.1, the Borrowers will be deemed to have terminated such LIBOR
Pricing Option.
3.2.5 Violation of Legal Requirements. If the adoption of or change in any
-------------------------------
Legal Requirement or in the interpretation or application thereof applicable to
any Lender after the Initial Closing Date prevents any Lender from funding or
maintaining through the purchase of deposits in the London interbank market any
portion of the Loan subject to a LIBOR Pricing Option or otherwise from giving
effect to such Lender's obligations as contemplated by Section 3.2, (a) the
Agent may by notice to the Borrowers terminate all of the affected LIBOR Pricing
Options, (b) the portion of the Loan subject to such terminated LIBOR Pricing
Options shall immediately bear interest thereafter at the Applicable Rate
computed on the basis of the Base Rate, and (c) the Borrowers shall make any
payment required by Section 3.2.4.
3.2.6 Funding Procedure. The Lenders may fund any portion of the Loan
-----------------
subject to a LIBOR Pricing Option out of any funds available to the Lenders.
Regardless of the source of the funds actually used by any of the Lenders to
fund any portion of the Loan subject to a LIBOR Pricing Option, however, all
amounts payable hereunder, including the interest rate applicable to any such
portion of the Loan and the amounts payable under Sections 3.2.4 and 3.5, will
be computed as if each Lender had actually funded such Lender's Percentage
Interest in such portion of the Loan through the purchase of deposits in such
amount of the type by which the LIBOR Base Rate was determined, with a maturity
the same as the applicable Interest Period relating thereto and through the
transfer of such deposits from an office of the Lender having the same location
as the applicable LIBOR Office to one of such Lender's offices in the United
States of America.
3.3 Fees.
----
3.3.1 Unused Line Fee. In consideration of the Lenders' Commitments to
---------------
make the extensions of credit provided for in Section 2, while such Commitments
are outstanding, the Borrowers shall pay the Agent for the account of the
Lenders in accordance with the Lenders' respective Commitments, in arrears on
the last Banking Day of each calendar quarter, for the period from the date of
this Agreement to the Final Maturity Date, an unused line fee equal to the
Unused Line Percentage of the average Available Credit, calculated daily, during
such calendar quarter or portion thereof. Payment shall be made by automatic
-30-
deduction from the Parent's general account with the Agent, and the Agent
will notify the Parent of the amount of the fee.
3.3.2 Letter of Credit Fees. The Borrowers shall pay to the Agent
---------------------
for the benefit of the Lenders a Letter of Credit issuance fee (which shall
be non-refundable even if any Letter of Credit is terminated or canceled
before its stated expiration date) equal to (i) the face amount of each
standby Letter of Credit multiplied by 1.0% per annum applied for a period
equal to the term of such Letter of Credit, and (ii) the face amount of
each documentary Letter of Credit multiplied by .25% per annum applied for
a period equal to the term of such Letter of Credit. The issuance fees
shall be payable in advance upon issuance of each Letter of Credit and on
each anniversary of the issuance. The Borrowers will pay to the Issuing
Bank, for its own account, fees upon the occurrence of certain activity
with respect to any Letter of Credit, including, without limitation, the
transfer, cancellation or amendment of any Letter of Credit, determined in
accordance with the Issuing Bank's standard fees and charges then in
effect.
3.3.3 Administrative Fees. The Borrowers agree to pay to the Agent,
-------------------
for its own account, the fees in accordance with the terms of the Fee
Letter.
3.4 Computations of Interest and Fees. For purposes of this Agreement,
---------------------------------
interest (except interest on Multicurrency LIBOR Loans), commitment fees and
Letter of Credit fees (and any other amount expressed as interest or such fees)
will be computed on the basis of a 360-day year for actual days elapsed. For
purposes of this Agreement, interest on Multicurrency LIBOR Loans will be
computed on the basis of a 365- or 366-day year for actual days elapsed. Except
as provided in the definition of Interest Period with respect to LIBOR Loans, if
any payment required by this Agreement is due on a day that is not a Banking
Day, such payment will be made on the next succeeding Banking Day and such
extension of time will be included in the computation of interest and fees.
3.5 Changes in Circumstances; Yield Protection.
------------------------------------------
3.5.1 Reserve Requirements, Etc. If the adoption or change in any
-------------------------
Legal Requirement or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Initial Closing Date, shall (a)
impose, modify, increase or deem applicable any insurance assessment, reserve,
special deposit or similar requirement against any Funding Liability or the
Letters of Credit, (b) impose, modify, increase or deem applicable any other
requirement or condition with respect to any Funding Liability or the Letters of
Credit, or (c) change the basis of taxation of Funding Liabilities or payments
in respect of any Letter of Credit (other than changes in the rate of Taxes
measured by the overall net income of such Lender) and the effect of any of the
foregoing
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shall be to increase the cost to any Lender of issuing, making, funding or
maintaining its respective Percentage Interest in any portion of the Loan
subject to a LIBOR Pricing Option or any Letter of Credit, to reduce the amounts
received or receivable by such Lender under this Agreement or to require such
Lender to make any payment or forego any amounts otherwise payable to such
Lender under this Agreement (other than any Tax or any reserves that are
included in computing the LIBOR Reserve Rate), then such Lender may claim
compensation from the Borrowers under Section 3.5.5.
3.5.2 Taxes. All payments of the Credit Obligations will be made without
-----
set-off or counterclaim and free and clear of any deductions, including
deductions for Taxes, unless the Borrowers are required by law to make such
deductions. If (a) any Lender is subject to any Tax with respect to any payment
of the Credit Obligations or its obligations hereunder, or (b) the Borrowers are
required to withhold or deduct any Tax on any payment on the Credit Obligations,
then such Lender may claim compensation from the Borrowers under Section 3.5.5.
Whenever Taxes must be withheld by the Borrowers with respect to any payments of
the Credit Obligations, the Borrowers will promptly furnish to the Agent for the
account of the applicable Lender official receipts (to the extent that the
relevant governmental authority delivers such receipts) evidencing payment of
any Taxes so paid. If the Borrowers fail to pay any such Taxes when due or fails
to remit to the Agent for the account of the applicable Lender the required
receipts evidencing payment of any such Taxes so withheld or deducted, the
Borrowers shall indemnify the affected Lender for any incremental Taxes and
interest or penalties that may become payable by such Lender as a result of any
such failure. If any Lender receives a refund of any Taxes for which it has
received payment from the Borrowers under this Section 3.5.2, such Lender shall
promptly pay the amount to the Borrowers, together with any interest thereon
actually earned by such Lender. Each Lender agrees that it will deliver to the
Parent and the Agent, upon the reasonable request of the Parent or the Agent,
either (i) a statement that it is incorporated under the laws of the United
States of America or a state thereof, or (ii) if it is not so incorporated, two
duly completed copies of United States Internal Revenue Section Form 1001 or
4224 or successor applicable form, certifying that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes.
3.5.3 Capital Adequacy. If any Lender determines that the adoption or
----------------
becoming effective of, or any change in, or any change by any central bank or
other Governmental Authority in the interpretation or administration of any
Legal Requirement regarding capital adequacy of banks or bank holding companies,
or the compliance by such Lender or its parent corporation, with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such central bank or Governmental Authority, has or would have the effect of
reducing the rate of return on the capital of such Lender and its Affiliates as
a
-32-
consequence of such Lender's commitment to make the extensions of credit
contemplated hereby, or such Lender's maintenance of the extensions of credit
contemplated hereby, to a level below that which such Lender could have achieved
but for such compliance (taking into consideration the policies of such Lender
and its Affiliates with respect to capital adequacy immediately before such
compliance and assuming that the capital of such Lender and its Affiliates was
fully utilized prior to such compliance) by an amount deemed by such Lender to
be material, then such Lender may claim compensation from the Borrowers under
Section 3.5.5.
3.5.4 Regulatory Change. If any Lender determines that (a) any change in
-----------------
any Legal Requirement (including any new Legal Requirement) after the date
hereof will directly or indirectly (i) reduce the amount of any sum receivable
by such Lender with respect to the Loan or the Letters of Credit or the return
to be earned by such Lender on the Loan or the Letters of Credit, (ii) impose a
cost on such Lender or any Affiliate of such Lender that is attributable to the
making or maintain of or such Lender's commitment to make, its portion of the
Loan or the Letters of Credit, or (iii) require any Lender or any Affiliate of
such Lender to make any payment on, or calculated by reference to, the gross
amount of any amount received by such Lender under any Credit Document (other
than Taxes or income or franchise taxes), and (b) such increased cost or payment
will not be fully compensated for by an adjustment in the Applicable Rate or the
Letter of Credit fees, then such Lender may claim compensation from the
Borrowers under Section 3.5.5.
3.5.5 Compensation Claim. Within 15 days after the receipt by the Parent
------------------
of a certificate from any Lender setting forth why it is claiming compensation
under Section 3.5 and computations (in reasonable detail) of the amount thereof
and a description of such Lender's efforts to mitigate such amounts as required
by Section 3.5.6, the Borrowers will pay to such Lender such additional amounts
as such Lender sets forth in such certificate as sufficient fully to compensate
it on account of the foregoing provisions of Section 3.5 together with interest
on such amount from the 15th day after receipt of such certificate until payment
in full thereof at the Base Rate. The determination by such Lender of the amount
to be paid to it and the basis for computation will, in the absence of manifest
error, be conclusive. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. The Borrowers will be entitled to
replace any such Lender in accordance with Section 3.5.7.
3.5.6 Mitigation. Each Lender will take such commercially reasonable steps
----------
as it may determine are not materially disadvantageous to it, including changing
lending offices to the extent feasible, in order to reduce amounts otherwise
payable by the Borrowers to such Lender pursuant to Sections 3.2.4 and 3.5 or to
make LIBOR Pricing Options available under Sections 3.2.1 and 3.2.5. In
addition, the Borrowers will not be responsible for costs (a) under
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Section 3.5, arising more than 90 days prior to receipt by the Parent of the
certificate from the affected Lender pursuant to such Section 3.5.5 or (b) under
Section 3.2.4, arising from the termination of LIBOR Pricing Options more than
90 days prior to the demand by the Agent for payment under Section 3.2.4.
3.5.7 Replacement of Lenders. On each occasion that a Lender either makes a
----------------------
demand for compensation pursuant to Section 3.5.5 in an amount in excess of the
amount that the Borrowers would have had to pay pursuant to such Section if such
Lender's Commitment were held by ▇▇▇▇▇ Fargo or is unable to fund or maintain
LIBOR Loans pursuant to Section 3.2.1, the Borrowers may, upon at least 10
Banking Days' prior written notice to each of such Lender and the Agent, in
whole permanently replace the Commitment of such Lender; provided, however, that
-------- -------
the Borrowers will replace such Commitment with the commitment of a commercial
bank which is reasonably satisfactory to the remaining Lenders (a "Replacement
-----------
Lender"). Such Replacement Lender will upon the effective date of replacement
------
purchase the Credit Obligations owed to such replaced Lender for the aggregate
amount thereof and will thereupon for all purposes become a "Lender" hereunder.
Such notice from the Borrowers will specify an effective date for the
replacement of such Lender's Commitment, which date will not be earlier than the
tenth day after the day such notice is given. On the effective date of any
replacement of such Lender's Loan Commitment pursuant to this Section 3.5.7, the
Borrowers will pay to the Agent for the account of such Lender (i) any amounts
due to such Lender to the date of such replacement, (ii) accrued interest on the
principal amount of outstanding Loans held by such Lender to the date of such
replacement, and (iii) the amounts payable to such Lender pursuant to Sections
3.2.4 and 3.5, as applicable. The Borrower will be liable to such replaced
Lender for costs that such Lender may sustain or incur pursuant to Section 3.5.2
as a direct consequence of repayment of such Lender's Loans. Upon the effective
date of repayment of any Lender's Commitment pursuant to this Section 3.5.7,
such Lender will cease to be a "Lender" hereunder. No such termination of any
such Lender's Commitment and the purchase of such Lender's Loans pursuant to
this Section 3.5.7 will affect (x) any liability or obligation of the Borrowers
or any other Lender to such terminated Lender which accrued on or prior to the
date of such termination, or (y) such terminated Lender's rights hereunder in
respect of any such liability or obligation.
3.6 European Monetary Union.
-----------------------
3.6.1 Euro. If, as a result of the EMU Commencement, (i) any Foreign
----
Currency ceases to be lawful currency of the state issuing the same and is
replaced by Euros or (ii) any Foreign Currency and Euros are at the same time
both recognized by the central bank or comparable governmental authority of the
state issuing such currency as lawful currency of such state, then any amount
payable hereunder by any party (including without limitation the funding of a
-34-
Multicurrency LIBOR Loan) in such Foreign Currency shall instead be payable in
Euros and the amount so payable shall be determined by redenominating or
converting such amount into Euros; provided, that to the extent any EMU
Legislation provides that an amount denominated either in Euros or in the
applicable Foreign Currency can be paid either in Euros or in the applicable
Foreign Currency, each party to this Agreement shall be entitled to pay or repay
such amount in Euros or in the applicable Foreign Currency.
3.6.2 Increased Cost or Reduction in Return. The Borrowers shall, at the
-------------------------------------
request of the Agent, pay to the Agent for the account of each Lender the amount
of any cost or increased cost incurred by, or of any reduction in any amount
payable to or in the effective return on its capital to, or of interest or other
return foregone by, such Lender or any holding company of such Lender as a
result of the introduction of, changeover to or operation of Euros in any
applicable state to the extent reasonably attributable to such Lender's
obligations hereunder or for the credit which is the subject matter hereof;
provided, however, that such Lender shall promptly notify the Borrowers of an
event which might cause it to seek compensation. Each Lender that determines to
seek compensation under this Section shall notify the Borrowers and the Agent of
the circumstances that entitle the Lender to such compensation pursuant to this
Section by issuing a certificate setting forth (a) the amount or amounts
necessary to compensate such Lender, (b) describing the nature of the cost or
reduction incurred by such Lender as a consequence thereof and (c) setting forth
a reasonably detailed explanation of the calculation thereof; and this
certificate shall be conclusive absent manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution methods.
The Borrower shall pay to such Lender or the Agent for credit to the account of
the Lender, the amount shown as due on any such certificate within 10 days after
receipt thereof. The protection of this Section shall be available to each
Lender regardless of any possible contention of the invalidity or
inapplicability of any law, regulation or other condition which shall give rise
to any demand by such Lender for compensation.
3.6.3 Delay. With respect to the payment of any amount denominated in
-----
Euros or in any Foreign Currency, the Agent shall not be liable to the Borrowers
or any of the Lenders in any way whatsoever for any delay, or the consequences
of any delay, in the crediting to any account of any amount required by this
Agreement to be paid by the Agent if the Agent shall have taken all relevant
steps to achieve, on the date required by this Agreement, the payment of such
amount in immediately available, freely transferable, cleared funds (in the Euro
Unit or, as the case may be, in any Foreign Currency) to the appropriate account
or party. In this paragraph, "all relevant steps" mean all such steps as may be
prescribed from time to time by the regulations or operating procedures of such
clearing or settlement system as the Agent may from time to time determine for
the purpose of clearing or settling payments of Euros.
-35-
3.6.4 Inconsistent Convention or Practice. If the basis of accrual
-----------------------------------
of interest or fees expressed in this Agreement with respect to the
currency of any state that becomes a Euro Member shall be inconsistent
with any convention or practice in the London interbank market for the
basis of accrual of interest or fees in respect of Euros, such convention
or practice shall replace such expressed basis effective as of and from
the date on which such state becomes a Euro Member; provided, that if any
Loan in the currency of such state is outstanding immediately prior to
such date, such replacement shall take effect, with respect to such Loan,
at the end of the then current Interest Period.
3.6.5 Amendment Regarding Changes in Currency. In addition, the
---------------------------------------
Borrowers and the Agent shall enter into negotiations in good faith, if
and to the extent necessary, to amend this Agreement to reflect changes in
currency resulting from the implementation of the EMU and to put the
Lenders and the Borrowers in the same position, so far as possible, that
they would have been in if such implementation and change had not
occurred. The parties hereto acknowledge and agree that if, within sixty
(60) days of the commencement of such negotiations, the Borrowers and the
Agent fail to reach agreement regarding any such amendments, then the
provisions of this Section 3.6 shall be deemed operative and, until such
an agreement is reached, the obligations of the Lenders to make
Multicurrency LIBOR Loans in Euros or any other Foreign Currency issued by
a Euro Member shall be suspended. Except as provided in the foregoing
provisions of this Section, no such implementation or change in currency
nor any economic consequences resulting therefrom shall (a) give rise to
any right to terminate prematurely, contest, cancel, rescind, alter,
modify or renegotiate the provisions of this Agreement or (b) discharge,
excuse or otherwise affect the performance of any obligations of the
Borrowers under this Agreement, any Notes or any other Loan Documents.
4. Payment.
-------
4.1 Payment at Maturity. On the Final Maturity Date or any accelerated
-------------------
maturity of the Loan, the Borrowers will pay to the Agent for the account of the
Lenders an amount equal to the Loan then due, together with all accrued and
unpaid interest and fees with respect thereto and all other Credit Obligations
then outstanding.
4.2 Voluntary Payments.
------------------
4.2.1 Voluntary Permanent Reduction or Termination. The Borrowers
--------------------------------------------
may, through an Authorized Representative and upon at least five Banking Days'
prior written notice to the Agent, terminate in whole or permanently reduce in
part, as of the date specified in the notice, any then unused portion of the
Total Commitment, provided that each partial reduction shall be in the minimum
principal amount of $5,000,000 (and an integral multiple of $1,000,000). Any
partial reduction shall ratably reduce each Lender's Commitment.
-36-
4.2.2 Voluntary Prepayments. The Borrowers may from time to time
---------------------
prepay all or any portion of the Loan, together with accrued interest
thereon, in a minimum amount of $5,000,000 and an integral multiple of
$1,000,000, or such lesser amount as is then outstanding, or in the case of
Multicurrency LIBOR Loans, the U.S. Dollar Equivalents thereof, without
premium or penalty of any type (except as provided in Section 3.2.4 with
respect to the early termination of LIBOR Pricing Options). The Parent will
give the Agent at least one Banking Day prior notice of the Borrowers'
intention to prepay a Base Rate Loan and at least three Banking Days prior
notice of its intention to prepay a LIBOR Loan, specifying the date of
payment, the total amount of the Loan to be paid on such date and the
amount of interest to be paid with such prepayment.
4.3 Mandatory Prepayments. If at any time the amount of the Loan plus
---------------------
the Letter of Credit Exposure exceeds the Maximum Amount of Credit, the
Borrowers shall immediately make a principal payment to the Agent for the
account of the Lenders in an amount sufficient to reduce the aggregate amount of
the Loan plus the Letter of Credit Exposure to less than or equal to the Maximum
Amount of Credit. If at any time the aggregate outstanding Converted Principal
Amount of the Multicurrency LIBOR Loans exceeds the Multicurrency Available
Credit, the Borrowers shall immediately make a principal payment to the Agent
for the account of the Lenders, in the applicable Foreign Currency, in an amount
sufficient to reduce the Multicurrency LIBOR Loans to less than or equal to the
Multicurrency Available Credit. If at any time the aggregate outstanding
principal amount of the Swing Line Loans exceeds the Swing Line Available
Credit, the Borrowers shall immediately make a principal payment to the Agent
for the account of the Lenders in an amount sufficient to reduce the Swing Line
Loans to less than or equal to the Swing Line Available Credit.
4.4 Letters of Credit. If, on the Final Maturity Date or any accelerated
-----------------
maturity of the Credit Obligations, the Lenders will be obligated in respect of
a Letter of Credit or a draft accepted under a Letter of Credit, the Borrowers
will either:
(a) prepay such obligation by depositing with the Issuing
Bank an amount of cash; or
(b) deliver to the Issuing Bank a standby letter of credit
(designating the Issuing Bank as beneficiary and issued by a bank and on
terms reasonably acceptable to the Agent and the Issuing Bank); or
(c) deliver to the Issuing Bank such other collateral as is
acceptable to the Issuing Bank and the Required Lenders;
in each case in an amount equal to the portion of the Letter of Credit Exposure
issued and outstanding for the account of the Borrowers at such date. Any such
cash so deposited and the cash proceeds of any draw under any letter of credit
so furnished, including any interest thereon, will be returned by the Issuing
Bank to the Borrowers only when, and to the extent that, the amount of such cash
held by the Issuing Bank
-37-
exceeds the Letter of Credit Exposure at such time and no Default then exists;
provided, however, that if an Event of Default occurs and the Credit Obligations
-------- -------
become or are declared immediately due and payable, the Issuing Bank may apply
such cash, including any interest thereon, to the payment of any of the Credit
Obligations as the Agent specifies.
4.5 Reborrowing; Application of Payments, Etc.
-----------------------------------------
4.5.1 Reborrowing. The amounts of the Loan prepaid pursuant to
-----------
Section 4.2.2 may be reborrowed from time to time prior to the Final
Maturity Date in accordance with Section 2, subject to the limits set forth
therein.
4.5.2 Order of Application. Any prepayment of the Loan will be applied
--------------------
first to the portion of the Loan not then subject to LIBOR Pricing Options,
then the balance of any such prepayment will be applied to the portion of
the Loan then subject to LIBOR Pricing Options, in the chronological order
of the respective maturities thereof (or as an Authorized Representative may
otherwise specify in writing), together with any payments required by
Section 3.2.4.
4.5.3 Principal Payments. All payments of principal hereunder will be
------------------
made to the Agent at the Denver Office for the account of the Lenders in
accordance with the Lenders' respective Percentage Interests, in the
applicable Foreign Currency, in the case of Multicurrency LIBOR Loans, or in
United States Dollars, in the case of all other Loans, in same day or
immediately available funds not later than 12:00 noon (Denver time) on the
date due; provided, however, that at the request of the Agent, payments of
-------- -------
principal on Multicurrency LIBOR Loans will be made in the applicable
Foreign Currency in immediately available funds to such account at such bank
as the Agent may designate to the Parent from time to time, no later than
12:00 noon local time in the place where such bank is located on the due
date.
4.6 Sharing of Payments, Etc. If any Lender obtains at any time any payment
------------------------
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) (a) on account of Credit Obligations due and payable to such
Lender hereunder and under the Revolving Credit Notes at such time in excess of
its ratable share (according to the proportion of (i) the amount of such Credit
Obligations due and payable to such Lender at such time to (ii) the aggregate
amount of the Credit Obligations due and payable to all Lenders hereunder and
under the Revolving Credit Notes at such time) of payments on account of the
Credit Obligations due and payable to all Lenders hereunder and under the
Revolving Credit Notes at such time obtained by all the Lenders at such time or
(b) on account of Credit Obligations owing (but not due and payable) to such
Lender hereunder and under the Revolving Credit Notes at such time in excess of
its ratable share (according to the proportion of (i) the amount of such Credit
Obligations owing (but not due and payable) to such Lender at such time to (ii)
the
-38-
aggregate amount of the Credit Obligations owing (but not due and payable)
to all Lenders hereunder and under the Revolving Credit Notes at such time) of
payments on account of the Obligations owing (but not due and payable) to all
Lenders hereunder and under the Revolving Credit Notes at such time obtained by
all of the Lenders at such time, such Lender will forthwith purchase from the
other Lenders such participations in the Credit Obligations due and payable or
owing to them, as the case may be, as will be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
-------- -------
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each other Lender will be rescinded
and such other Lender will repay to the purchasing Lender the purchase price to
the extent of such Lender's ratable share (according to the proportion of (i)
the purchase price paid to such Lender to (ii) the aggregate purchase price paid
to all Lenders) of such recovery together with an amount equal to such Lender's
ratable share (according to the proportion of (i) the amount of such other
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrowers
agree that any Lender so purchasing a participation from another Lender pursuant
to this Section 4.6 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation.
5. Appointment of the Parent; Authorized Representatives.
-----------------------------------------------------
In order to facilitate and ensure prompt and accurate communication between
the Borrowers and the Lenders, the Borrowers hereby appoint the Parent as the
Borrowers' agent for purposes of communicating to and receiving communications
from the Agent and the Lenders. On the Initial Closing Date, and from time to
time subsequent thereto at the Parent's option, the Parent will deliver to the
Agent a written notice in the form of Exhibit 5, which designates by name each
---------
Authorized Representative and includes each of their respective specimen
signatures (each, a "Notice of Authorized Representatives"). The Agent will be
entitled to rely conclusively on the authority of each officer or employee
designated as an Authorized Representative in the most current Notice of
Authorized Representatives delivered by the Parent to request borrowings and
select interest rate options hereunder, and to give to the Agent such other
notices as are specified herein as being made through an Authorized
Representative, until such time as the Parent has delivered to the Agent, and
the Agent has actual receipt of, a new written Notice of Authorized
Representatives. The Agent will have no duty or obligation to the Borrowers to
verify the authenticity of any signature appearing on any written notice from an
Authorized Representative or to verify the authenticity of any Person purporting
to be an Authorized Representative giving any telephone notice permitted
hereby.
-39-
6. Subsidiary Guarantees.
---------------------
All of the Borrowers' obligations under the Credit Documents will be
guaranteed by the Material Subsidiaries pursuant to a Subsidiary Guarantee
substantially identical to the form of Subsidiary Guarantee attached as Exhibit
-------
6.
-
7. Joint and Several Liability; Rights of Contribution.
---------------------------------------------------
7.1 Acknowledgements. Each Borrower states and acknowledges that: (i)
----------------
pursuant to this Agreement, the Borrowers desire to utilize their borrowing
potential on a consolidated basis to the same extent possible if they were
merged into a single corporate entity; (ii) it has determined that it will
benefit specifically and materially from the advances of credit contemplated by
this Agreement; (iii) it is both a condition precedent to the obligations of the
Lenders hereunder and a desire of the Borrowers that each Borrower execute and
deliver to the Lenders this Agreement; and (iv) the Borrowers have requested and
bargained for the structure and terms of the credit contemplated by this
Agreement.
7.2 Joint and Several Liability. Each Borrower hereby irrevocably and
---------------------------
unconditionally: (i) agrees that it is jointly and severally liable to the
Lenders for the full and prompt payment of the Credit Obligations and the
performance by each Borrower of its obligations hereunder in accordance with the
terms of the Credit Documents; (ii) agrees to fully and promptly perform all of
its obligations under the Credit Documents with respect to each advance of
credit hereunder as if such advance had been made directly to it; and (iii)
agrees as a primary obligation to indemnify the Lenders on demand for and
against any loss incurred by the Lenders as a result of any of the obligations
of any one or more of the Borrowers under the Credit Documents being or becoming
void, voidable, unenforceable or ineffective for any reason whatsoever, whether
or not known to the Lenders or any Person, the amount of such loss being the
amount which the Lenders would otherwise have been entitled to recover from any
one or more of the Borrowers. Each Borrower hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint
and several liability with each other Borrower with respect to the payment and
performance of all of the Credit Obligations. If and to the extent that any
Borrower fails to make any payment with respect to Credit Obligations as and
when due or to perform any of its obligations in accordance with the terms of
the Credit Obligations, then in each such event the other Borrowers will make
such payment with respect to, or perform, such obligations.
7.3 Absolute and Unconditional Obligations. The joint and several
--------------------------------------
liability of each Borrower for the Credit Obligations is absolute and
unconditional irrespective of and is not subject to any reduction, limitation,
impairment or termination for any reason, including, without limitation, any
claim of waiver, release, surrender, alteration or compromise, and is not
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of any of
the Credit Obligations. Without limiting the generality of the foregoing, the
-40-
obligations of each Borrower will not be discharged or impaired or otherwise
affected by:
(a) any change in the manner, place or terms of payment or
performance and/or any change or extension of the time of payment or
performance of, renewal or alteration of, any Credit Obligation, any
security therefor, or any liability incurred directly or indirectly in
respect thereof, or any rescission of, or amendment, waiver or other
modification of, or any consent to departure from any Credit Document,
including any increase in the Credit Obligations resulting from the
extension of additional credit to any of the Borrowers;
(b) any sale, exchange, release, surrender, realization upon any
property at any time pledged or mortgaged to secure any of the Credit
Obligations, and/or any offset, or failure to perfect, or continue the
perfection of, any Lien, or any amendment or waiver of or consent to
departure from any Guarantee for any of the Credit Obligations;
(c) the failure of the Agent or any other Lender to assert any
claim or demand or to enforce any right or remedy against any Borrower or
any other Person under the provisions of any Credit Document;
(d) any settlement or compromise of any Credit Obligation, any
security therefor or any liability incurred directly or indirectly in
respect thereof, and any subordination of the payment of any part thereof
to the payment of any obligation (whether due or not) of any other Borrower
to creditors of such other Borrower;
(e) any manner of application of any collateral for the Credit
Obligations or proceeds thereof, to any of the Credit Obligations, or any
manner of sale or other disposition of any such collateral for all or any
of the Credit Obligations or any other assets of any Borrower;
(f) any change, restructuring or termination of the existence of
any Borrower; or
(g) any other agreement or circumstance of any nature whatsoever
that might in any manner or to any extent vary the risk of any Borrower, or
that might otherwise at law or in equity constitute a defense available to,
or a discharge of, the obligations of any Borrower, or a defense to, or
discharge of, any Borrower or any other Person relating to any of the
Credit Obligations.
7.4 Continuation. The joint and several liability of the Borrowers will
------------
continue in full force and effect notwithstanding any consolidation, merger,
dissolution
-41-
or any other change whatsoever in the name, membership, constitution or place of
formation of any Borrower.
7.5 Rights of Contribution. It is the intent of each Borrower that the
----------------------
indebtedness, obligations and liability hereunder of each one of them shall not
be subject to challenge on any basis. Accordingly, as of the date hereof, the
liability of each Borrower under the Credit Documents, together with all of its
other liabilities to all Persons as of the date hereof and as of any other date
on which a transfer is deemed to occur by virtue of this Agreement, calculated
in an amount sufficient to pay its probable net liabilities (including
contingent liabilities) as the same become absolute and matured ("Dated
Liabilities") is, and is to be, less than the amount of the aggregate of a fair
valuation of its property as of such corresponding date ("Dated Assets"). To
this end, each Borrower hereby (i) grants to and recognizes in each other
Borrower, ratably, rights of subrogation and contribution in the amount, if any,
by which the Dated Assets of such Borrower, but for the aggregate of subrogation
and contribution in its favor recognized herein, would exceed the Dated
Liabilities of such Borrower or, as the case may be (ii) acknowledges receipt of
and recognizes its right to subrogation and contribution ratably from each of
the other Borrowers in the amount, if any, by which the Dated Liabilities of
such Borrower, but for the aggregate of subrogation and contribution in its
favor recognized herein, would exceed the Dated Assets of such Borrower. In
recognizing the value of the Dated Assets and the Dated Liabilities, it is
understood that the Borrowers will recognize, to at least the same extent of
their aggregate recognition of liabilities hereunder, their rights to
subrogation and contribution hereunder. It is a material objective of this
Section 7.5 that each Borrower recognizes rights to subrogation and contribution
rather than be deemed to be insolvent (or in contemplation thereof) by reason of
its joint and several obligations hereunder.
8. Conditions to Extending Credit.
------------------------------
8.1 Conditions on Initial Closing Date. The obligations of the Lenders to
----------------------------------
make any extension of credit pursuant to Section 2 shall be subject to the
satisfaction, on or before the Initial Closing Date, of the conditions set forth
in this Section 8.1, as well as the further conditions in Section 8.2.
8.1.1 Executed Credit Documents. The Borrowers shall have duly executed
-------------------------
and delivered to the Agent (i) this Agreement, (ii) a Revolving Credit Note for
each Lender, (iii) a Swing Line Note for the Swing Line Lender, and (iv) all
other Credit Documents, each in form and substance reasonably acceptable to the
Agent.
8.1.2 Legal Opinion. On the Initial Closing Date, the Lenders shall
-------------
have received from counsel for the Borrowers, counsel's opinion with respect to
the transactions contemplated by the Credit Documents, which opinion shall be in
form and substance satisfactory to the Agent.
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8.1.3 Subsidiary Guarantees. Each Material Subsidiary shall have duly
---------------------
authorized, executed and delivered to the Agent a Subsidiary Guarantee in
substantially the form of Exhibit 6.
---------
8.1.4 Due Diligence. The Agent shall be reasonably satisfied with the
-------------
results of its due diligence review of the Borrowers and each of the
Obligors, including three year financial projections and corporate legal
structure.
8.1.5 Financial Statements. Each of the Lenders shall have received
--------------------
the Parent's consolidated financial statements for the quarter ending March
31, 1999, certified by a Financial Officer, and each of the Lenders shall
be reasonably satisfied with the results and financial condition shown in
such financial statements.
8.1.6 Proper Proceedings. This Agreement, each other Credit Document
------------------
and the transactions contemplated hereby and thereby shall have been
authorized by all necessary corporate or other proceedings. All necessary
consents, approvals and authorizations of any governmental or
administrative agency or any other Person of the transactions contemplated
hereby or by any other Credit Document shall have been obtained and shall
be in full force and effect.
8.1.7 General. All legal and corporate proceedings in connection with
-------
the transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Agent and the Agent shall have received copies of
all documents, including certified copies of the Charter and Bylaws of each
Borrower and the other Obligors, records of corporate proceedings,
certificates as to signatures and incumbency of officers and opinions of
counsel, which the Agent may have reasonably requested in connection
therewith, such documents where appropriate to be certified by proper
corporate or governmental authorities.
8.1.8 Commercial Paper Facility. The Agent has approved the principal
-------------------------
terms of the Commercial Paper Facility.
8.2 Conditions to Each Extension of Credit. The obligations of the
--------------------------------------
Lenders to make any extension of credit pursuant to Section 2 shall be subject
to the satisfaction, on or before the Closing Date for such extension of credit,
of the following conditions:
8.2.1 Officer's Certificate. The representations and warranties
---------------------
contained in Section 10 shall be true and correct on and as of such Closing
Date with the same force and effect as though made on and as of such date
(except as to any representation or warranty which refers to a specific
earlier date); no Default shall exist on such Closing Date prior to or
immediately after giving effect to the requested extension of credit; no
event or circumstance exists which can be reasonably expected to have a
Material Adverse Effect shall have occurred since December 31, 1998; and
the Parent shall have furnished to the Agent on the
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Closing Date a certificate to these effects, in substantially the form of
Exhibit 8.2.1 if a Revolving Credit Loan or a Swing Line Loan is requested,
-------------
and in substantially the form of Exhibit 2.4.2 if a Letter of Credit is
-------------
requested, in each case signed by a Financial Officer.
8.2.2 Legality, Etc. The making of the requested extension of credit
-------------
shall not (a) subject any Lender to any penalty or special tax (other than
a Tax for which the Borrowers are required to reimburse the Lenders under
Section 3.5.2), or (b) be prohibited by any Legal Requirement.
9. Covenants. The Borrowers covenant that, until all of the Credit
---------
Obligations have been paid in full and until the Lenders' commitments to extend
credit under this Agreement and any other Credit Document have been irrevocably
terminated, the Borrowers will comply with the following provisions:
9.1 Conduct of Business, etc.
------------------------
9.1.1 Types of Business. Each Borrower, its Subsidiaries and any
-----------------
Joint Venture in which any of such Persons participates will engage only in
the types of business activities in which the Borrowers, their Subsidiaries
and their Joint Ventures engage as of the date of this Agreement.
9.1.2 Statutory Compliance. Each Borrower will, and will cause its
--------------------
Subsidiaries to, comply in all material respects with all valid and
applicable statutes, laws, ordinances, zoning and building codes and other
rules and regulations of the United States of America, of the states and
territories thereof and their counties, municipalities and other
subdivisions and of any foreign country or other jurisdictions applicable
to such Person, unless failure to comply would not have a Material Adverse
Effect.
9.2 Insurance. Each Borrower will maintain with financially sound and
---------
reputable insurers insurance against liability for hazards, risks and liability
to persons and property, including product liability and environmental risk
insurance, to the extent, in amounts and with deductibles at least as favorable
as those generally maintained by businesses of similar size engaged in similar
activities; provided, however, that it may effect workers' compensation
-------- -------
insurance or similar insurance with respect to operations in any particular
state or other jurisdiction through an insurance fund operated by such state or
jurisdiction or by meeting the self-insurance requirements of such state or
jurisdiction, and will cause each Subsidiary to maintain such insurance unless
the Subsidiary's failure to maintain the insurance would not have a Material
Adverse Effect.
9.3 Fiscal Year; Financial Statements, Etc.
---------------------------------------
9.3.1 Date of Annual Financial Statements. The annual Consolidated
-----------------------------------
financial statements of the Parent will be dated as of December 31 in each
year.
-44-
9.3.2 Annual Financial Statements. The Parent will furnish to the Lenders
---------------------------
as soon as available, and in any event within 105 days after the end of each
fiscal year, the Consolidated balance sheets and statements of income, retained
earnings and cash flow of the Parent as at the end of such fiscal year (in
reasonable detail), setting forth in comparative form the corresponding figures
for the previous fiscal year (provided that so long as the Parent is a reporting
company under the Securities Exchange Act of 1934, as amended, it may satisfy
this requirement by furnishing to the Lenders copies of its Annual Report on
Form 10-K or successor form and all exhibits thereto), accompanied by:
(a) Reports of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or, if they cease to be auditors
of the Parent and its Subsidiaries, other independent certified public
accountants of recognized national standing reasonably satisfactory to the
Required Lenders) (the "Auditors") stating that such financial statements have
been prepared in accordance with GAAP and fairly present the Consolidated
financial position and results of operations of the Parent as at the end of and
for such fiscal year, and without an explanatory paragraph for a going concern
uncertainty, together with (i) a certificate of the Auditors to the Lenders
stating that in the course of the regular audit of the business of the Parent
and its Subsidiaries, which audit was conducted by such Auditors in accordance
with generally accepted auditing standards, such Auditors obtained no knowledge
that a Default has occurred and is continuing, or if, in the opinion of such
Auditors, a Default has occurred and is continuing, a statement as to the nature
thereof, and (ii) a schedule in form satisfactory to the Agent of the
computations used by such Auditors in determining, as of the end of such fiscal
year, compliance with the covenants contained in Sections 9.4, 9.5, 9.6 and 9.7.
(b) A certificate of the Parent signed by a Financial Officer to the
effect that the Financial Officer has caused this Agreement to be reviewed and
has no knowledge of any Default, or if such Financial Officer has such
knowledge, specifying such Default and the nature thereof, and what action the
Borrowers have taken, are taking or propose to take with respect thereto,
together with a schedule, in form satisfactory to the Agent, of the computations
used by the Parent in determining compliance with the covenants contained in
Sections 9.4, 9.5, 9.6 and 9.7.
9.3.3 Quarterly Financial Statements. The Parent will furnish to the
------------------------------
Lenders as soon as available and, in any event, within 55 days after the end of
each of the first three fiscal quarters of the Parent, the internally prepared
Consolidated balance sheets and statements of income, retained earnings and cash
flow of the Parent as of the end of such fiscal quarter, in all comparative form
(provided that so long as the Parent is a reporting company under the Securities
Exchange Act of 1934, as amended, it may satisfy this requirement by furnishing
to the Lenders copies of its Quarterly Reports on Form 10-Q or successor form
and all exhibits thereto), accompanied by a certificate of the Parent signed by
a
-45-
Financial Officer to the effect that such financial statements have been
prepared in accordance with GAAP (subject to normal year-end adjustments) such
Financial Officer has caused this Agreement to be reviewed and has no knowledge
of any Default, or if such Financial Officer has such knowledge, specifying such
Default and the nature thereof and what action the Borrowers have taken, are
taking or propose to take with respect thereto, together with a schedule in form
satisfactory to the Agent, of the computations by the Parent in determining
compliance with the covenants contained in Sections 9.4, 9.5, 9.6 and 9.7.
9.3.4 Projections. The Parent will furnish to the Lenders as soon as
-----------
available and, in any event within 105 days after the end of each fiscal year of
the Parent, projections of Consolidated financial statements for the Parent for
the next fiscal year, in a form and in sufficient detail acceptable to the
Agent.
9.3.5 Notice of Litigation, Defaults, Etc. The Borrowers will promptly
-----------------------------------
furnish to the Lenders notice of any litigation or any administrative or
arbitration proceeding (a) which creates a material risk of resulting, after
giving effect to any applicable insurance, in the payment by any Obligor of more
than $5,000,000, or (b) which has, or creates a material risk of having, a
Material Adverse Effect. Promptly upon acquiring knowledge thereof, the
Borrowers will notify the Lenders of the existence of any Default or event which
creates a material risk of a Material Adverse Effect, specifying the nature
thereof and what action the Borrowers have taken, are taking or propose to take
with respect thereto.
9.3.6 Other Information. The Parent will maintain accurate books, accounts
-----------------
and records of the financial affairs of the Parent and its Subsidiaries
sufficient to permit the preparation of financial statements therefrom in
accordance with GAAP and will prepare all financial statements required
hereunder in accordance with GAAP and in compliance with the regulations of any
Governmental Authority having jurisdiction thereof. The Parent will provide
copies to the Agent, promptly after the sending, making available or filing of
all reports and financial statements which the Parent sends or makes available
to its stockholders, and all registration statements and amendments thereto, and
all reports on Form 8-K or any similar form hereafter in use which the Parent
files with the Securities and Exchange Commission. From time to time at
reasonable intervals upon the request of any authorized officer of any Lender,
each Borrower and its Subsidiaries will furnish to the Agent such other
information regarding the business, assets, financial condition, income or
prospects of the Borrowers and their Subsidiaries as such officer may reasonably
request, including copies of all tax returns, licenses, agreements, leases and
instruments to which any Borrower or its Subsidiaries is party. The Lenders'
authorized officers and representatives will have the right during normal
business hours upon reasonable notice and at reasonable intervals to examine the
books and records of each
-46-
Borrower and its Subsidiaries, to make copies and notes therefrom for the
purpose of ascertaining compliance with or obtaining enforcement of this
Agreement or any other Credit Document.
9.4 Consolidated Net Worth. Consolidated Net Worth will at all times
----------------------
exceed $65,000,000, plus 80% of Consolidated Net Income for each fiscal quarter
after 1998, excluding any fiscal quarters in which Consolidated Net Income is
negative.
9.5 Current Ratio. The Parent will at all times maintain a Current Ratio
-------------
of not less than 1.20 to 1.00.
9.6 Interest Coverage Ratio. The Parent will maintain as of the last day
-----------------------
of each fiscal quarter a ratio of EBIT to Interest Expense for the four
consecutive fiscal quarters ended as of such day of not less than 2.00 to 1.00.
9.7 Leverage Ratio. The Parent will maintain as of the last day of each
--------------
fiscal quarter a ratio of Total Funded Debt to EBITDA for the four consecutive
fiscal quarters ended as of such day of not more than 3.75 to 1.00.
9.8 Profitable Operations. The Parent and its Subsidiaries will not
---------------------
sustain a net loss on a Consolidated basis for any four consecutive fiscal
quarter period.
9.9 Year 2000 Compliance. Each Borrower will take as part of its Year
--------------------
2000 Compliance program, all reasonable and prudent steps to ensure that its
computer systems and programs are Year 2000 Compliant as soon as practicable
and, in any event, before the later of December 31, 1999 and the date any
particular system or program is scheduled to be in operation.
9.10 Indebtedness. Neither any Borrower nor any of its Significant
------------
Subsidiaries will create, incur, assume or otherwise become or remain liable
with respect to any Indebtedness (or become contractually committed do so),
except the following:
9.10.1 Indebtedness in respect of the Credit Obligations;
9.10.2 Indebtedness outstanding and lines of credit available on the
date hereof and described in Exhibit 9.10, and all renewals and extensions
------------
thereof not in excess of the amount thereof outstanding, together with all
prepayment fees, penalties and expenses in respect of such Indebtedness,
immediately prior to such renewal or extension;
9.10.3 Key Employee Notes;
9.10.4 Contingent obligations with respect to performance guarantees
and surety bonds incurred in the ordinary course of business and of a type and
amount consistent with past practices of the Borrowers and their Subsidiaries;
-47-
9.10.5 Intercompany loans made by and between the Parent and its
Subsidiaries in connection with the internal cash management system
maintained by the Parent and its Subsidiaries substantially as in effect on
the date of this Agreement, or guarantees by the Parent of Indebtedness of
Subsidiaries to the extent necessary to support the normal operating
activities of such Subsidiaries;
9.10.6 Indebtedness of the Parent resulting from the private
placement of long-term senior unsecured notes; provided, however, the
-------- -------
Parent will be required to provide to the Lenders satisfactory evidence
that on a pro forma basis after the issuance of the senior unsecured notes,
no Default will exist and that the Borrowers would remain in compliance
with the covenants set forth in Section 9.4, 9.5, 9.6, 9.7 and 9.8, upon
the occurrence of an additional $1.00 of Indebtedness;
9.10.7 Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business;
9.10.8 Indebtedness in respect of the Commercial Paper Facility and
all renewals and extensions thereof not in excess of $30,000,000;
9.10.9 Indebtedness arising from judgments that do not cause an
Event of Default;
9.10.10 Indebtedness arising from the Parent's issuance of commercial
paper pursuant to the Commercial Paper Documents, provided that the
--------
principal amount of Indebtedness under such commercial paper issued by the
Parent shall at no time exceed the unused portion of the maximum amount of
credit under the Commercial Paper Facility;
9.10.11 Indebtedness of any Subsidiary which becomes a Significant
Subsidiary after the date of this Agreement to the extent that such
Indebtedness is outstanding or is available under a line of credit as of
the date such Subsidiary becomes a Significant Subsidiary, and all renewals
and extensions thereof not in excess of the amount thereof outstanding,
together with all prepayment fees, penalties and expenses in respect of
such Indebtedness, immediately prior to such renewal or extension;
9.10.12 Indebtedness assumed in connection with Permitted
Acquisitions to the extent permitted in the definition of Permitted
Acquisitions; and
9.10.13 Other Indebtedness in an aggregate principal amount not in
excess of $10,000,000.
9.11 Liens. Neither any Borrower nor any of its Significant Subsidiaries
-----
will create, incur or enter into, or suffer to be created or incurred or to
exist, any Lien that
-48-
secures Indebtedness or Taxes (or become contractually committed to do so),
except the following:
9.11.1 Liens that secure the Credit Obligations;
9.11.2 Liens to secure Taxes, assessments and other governmental
charges, to the extent that payment thereof will not at the time be
required or will be contested in good faith by appropriate proceedings with
appropriate reserves being taken thereafter;
9.11.3 Liens securing Indebtedness permitted by Section 9.10.2 and
9.10.11;
9.11.4 Liens securing Indebtedness permitted by Section 9.10.13;
9.11.5 Liens in effect on the date hereof and described in the
Parent's Consolidated financial statements for the quarter ending March 31,
1999, provided that no such Lien shall extend to any property other than
the property subject to such Lien on the date of this Agreement;
9.11.6 Liens in respect of property imposed by law arising in the
ordinary course of business such as materialmen's, mechanics,
warehousemen's, carrier, landlord's and other nonconsensual statutory Liens
which are not yet due and payable or which are being contested in good
faith by appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which property
subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof);
9.11.7 Pledges or deposits made in the ordinary course of business
to secure payment of workers compensation insurance, unemployment
insurance, pension or social security programs;
9.11.8 Easements, rights of way, restrictions (including zoning
restrictions, matters of plat, minor defects or irregularities in title)
and other similar charges or encumbrances not, in any material respect,
impairing the use of the encumbered property for its intended purposes;
9.11.9 Judgment Liens that would not constitute an Event of Default;
9.11.10 Liens arising by virtue of any statutory of common law
provisions relating to banker's liens, rights of setoff or similar rights
as to deposit accounts or other funds maintained with a creditor depository
institution; and
9.11.11 Liens assumed in connection with Permitted Acquisitions to
the extent permitted under the definition of Permitted Acquisitions.
-49-
9.12 Transactions with Affiliates. Neither any Borrower nor any of its
----------------------------
Subsidiaries will effect any transaction with any of their respective Affiliates
on a basis less favorable to such Borrower or its Subsidiaries than would be the
case if such transaction had been effected with a non-Affiliate; provided,
--------
however, that such restriction shall not apply to interest rates charged on
-------
intercompany obligations under the internal cash management system maintained by
the Parent and its Subsidiaries substantially as in effect on the date of this
Agreement.
9.13 Environmental Laws.
------------------
9.13.1 Compliance with Law and Permits. Each Borrower will, and will
-------------------------------
cause its Subsidiaries to (unless a failure by the Subsidiary would not
have a Material Adverse Effect) use and operate all of its facilities and
properties in material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws.
9.13.2 Notice of Claims, Etc. Each Borrower will immediately notify
---------------------
the Agent, and provide copies upon receipt, of all written material
claims, complaints, notices or inquiries from governmental authorities
relating to the condition of the facilities and properties of the
Borrowers and their Subsidiaries or compliance with Environmental Laws.
The Borrowers will promptly cure and have dismissed with prejudice to the
satisfaction of the Agent any actions and proceedings relating to material
compliance with Environmental Laws by the Borrowers, and the Borrowers
will cause each Subsidiary to cure and have dismissed such actions and
proceedings relating to material compliance with Environmental Laws by the
Subsidiaries unless the Subsidiary's failure to cure and have dismissed
such actions and proceedings would not have a Material Adverse Effect.
9.14 Bonuses and Profit Sharing. No Borrower or its Subsidiaries will
--------------------------
pay bonuses or amounts as profit sharing in any year which exceed 95% of the
Parent's Consolidated pre-tax and pre-bonus net income for the immediately
preceding fiscal year.
9.15 Payment of Taxes, Etc. Each Borrower will, and will cause each of
---------------------
its Subsidiaries to (unless a failure by the Subsidiary would not have a
Material Adverse Effect), pay and discharge, before the same become delinquent,
(i) all Taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that unless and until any
-------- -------
Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors, no payment will be
-50-
required if such Tax, assessment, charge, levy or claim is being contested in
good faith and by proper proceedings.
9.16 Preservation of Existence, Etc. Each Borrower will preserve and
------------------------------
maintain, and will cause each of its Subsidiaries to (unless a failure by the
Subsidiary would not have a Material Adverse Effect), preserve and maintain, its
existence, legal structure, state of incorporation, legal name, rights (charter
and statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that (A) a Borrower and its Subsidiaries may consummate any
-------- -------
merger or consolidation permitted Section 9.19, and (B) a Borrower and any of
its Subsidiaries may change its legal name so long as the Agent is given notice
of such change at least 30 days in advance, and such change will not otherwise
have any Material Adverse Effect.
9.17 Compliance with Terms of Leaseholds. Each Borrower will, and will
-----------------------------------
cause each of its Subsidiaries to, make all payments and otherwise perform all
obligations in respect of all leases of real property to which it is a party,
keep such leases in full force and effect and not allow such leases to lapse or
be terminated or any rights to renew such leases to be forfeited or canceled,
notify the Agent of any default by any party with respect to such leases, unless
the failure to do so would not have a Material Adverse Effect.
9.18 Material Subsidiaries. Within 30 days after the formation of any
---------------------
Material Subsidiary or the date on which any Subsidiary otherwise first becomes
a Material Subsidiary, cause such Subsidiary to execute and deliver to the Agent
a Subsidiary Guarantee (and if any Subsidiary that has been a Material
Subsidiary is no longer a Material Subsidiary for a period of 12 consecutive
months and if no Event of Default has occurred and is continuing, the Subsidiary
Guarantee of such former Material Subsidiary will be terminated).
9.19 Mergers, Etc. The Borrowers will not merge into or consolidate with
------------
any Person or permit any Person to merge into it, or consolidate, reorganize or
recapitalize, or permit any of their Significant Subsidiaries to do so, except
in connection with Permitted Acquisitions permitted under Section 9.21.6, in
connection with mergers among the Borrowers and their Subsidiaries provided that
a Borrower is the surviving entity , and in connection with mergers among
Subsidiaries of the Borrowers.
9.20 Sales, Etc of Assets. The Borrowers will not sell, lease, transfer
--------------------
or otherwise dispose of, or permit any of its Material Subsidiaries to sell,
lease, transfer or otherwise dispose of, any of its assets (including, without
limitation, any capital stock of any Subsidiary of a Borrower), or grant any
option or other right to purchase, lease or otherwise acquire any assets,
except:
------
9.20.1 Sales of inventory in the ordinary course of its business or
sales of contracts in the ordinary course of business provided that gross
revenues from those contracts sold during any fiscal year are not greater
than 5% of the Consolidated Annual Revenues of the Parent for the preceding
fiscal year;
-51-
9.20.2 The sale or other disposition of obsolete, worn out or
materially damaged or defective property or equipment in the ordinary
course of business; and
9.20.3 Sale/leasebacks of property (whether real or personal or
mixed) with an aggregate fair market value of up to $5,000,000.
9.21 Investments. The Borrowers will not make or hold, or permit any of
-----------
their Significant Subsidiaries to make or hold, any Investment in any Person
other than:
----------
9.21.1 Investments in another Obligor;
9.21.2 Cash Equivalents in the ordinary course of business pursuant
to the Parent's usual and customary cash management policies and
procedures;
9.21.3 Investments existing on the date hereof and described on
Exhibit 9.21;
------------
9.21.4 Investments permitted by Section 9.10;
9.21.5 Investments in the nature of Joint Ventures or Subsidiaries
in the ordinary course of their business and in a manner consistent with
their past practices; and
9.21.6 Permitted Acquisitions with an aggregate cash purchase price
of less than $50,000,000 in any calendar year; provided that the Lenders
--------
will not unreasonably withhold their consent to additional Permitted
Acquisitions.
9.22 Distributions, Etc. No Borrower will purchase, redeem, retire,
------------------
defease or otherwise acquire for value any of its ownership interests or any
warrants, rights or options to acquire such ownership interests, now or
hereafter outstanding, return any capital to its stockholders, partners or
members, as such, declare or make any Distribution (including, without
limitation, any Distribution of cash or other assets, certificated or
uncertificated ownership interests, warrants, rights, options, obligations or
securities), or permit any of its Subsidiaries to make any Distributions or to
purchase, redeem, retire, defease or otherwise acquire for value any ownership
interests of a Borrower or any other Subsidiary of a Borrower or any warrants,
rights or options to acquire such ownership interests; provided, however, that
-------- -------
(i) any Subsidiary of a Borrower may make a Distribution to such Borrower, (ii)
any Joint Venture may make a Distribution to any Borrower; (iii) any Subsidiary
or Joint Venture may make a Distribution to its stockholders and partners on a
pro rata basis; (iv) the Parent may repurchase its common stock in accordance
with the stock repurchase provisions set forth in the Parent's Bylaws as those
Bylaws are in effect as of the date of this Agreement or, after their adoption,
in the Parent's proposed Bylaws attached as Exhibit 9.22; and (v) the Parent may
------------
repurchase its common stock on the internal market to balance the supply and
demand for common stock between buyers and sellers.
-52-
9.23 Limits on Capital Expenditures. The Borrowers will not make,
------------------------------
or permit any of their Subsidiaries to make, any Capital Expenditures that
would cause the aggregate of all such Capital Expenditures made by the
Borrowers and their Subsidiaries in any fiscal year to exceed $15,000,000.
9.24 Charter and Bylaws Amendments. No Borrower will amend, or
-----------------------------
permit any of its Subsidiaries to amend, its Charter or Bylaws in any way that
would have a Material Adverse Effect.
9.25 Prepayments, Etc. of Indebtedness. No Borrower will prepay,
---------------------------------
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner any Indebtedness in excess of $3,000,000 in the aggregate
in any fiscal year; provided, however, that the provisions of this Section 9.25
-------- -------
will not apply to (i) the prepayment of the Loans in accordance with the terms
of this Agreement, (ii) to the prepayment of the Indebtedness in respect of the
Commercial Paper Facility permitted under Section 9.10.8 in accordance with the
terms of the Commercial Paper Facility, or (iii) the prepayment of obligations
under the Borrowers' internal cash management system substantially similar to
the system in effect on the date of this Agreement.
9.26 Preservation of Rights and Properties. Each Borrower will, and
-------------------------------------
will cause its Subsidiaries to (unless a failure by a Subsidiary would not have
a Material Adverse Effect), maintain and preserve the existence of the Borrowers
and their Subsidiaries and all material public rights, privileges and franchises
now enjoyed, and conduct their business in an orderly, efficient and customary
manner.
9.27 Payment of Obligations. Each Borrower will, and will cause its
----------------------
Subsidiaries to (unless a failure by a Subsidiary would not have a Material
Adverse Effect), pay all material obligations at maturity, except such as may be
contested in good faith or as to which a bona fide dispute may exist.
9.28 Maintenance of Properties. Each Borrower will, and will cause
-------------------------
its Subsidiaries to, maintain its properties in good repair, working order and
condition and from time to time make repairs, renewals, replacements, additions
and improvements thereto, except to the extent failure to maintain such
properties would not have a Material Adverse Effect. Each Borrower will, and
will cause its Subsidiaries to (unless a failure by a Subsidiary would not have
a Material Adverse Effect), comply at all times in all material respects with
the provisions of all material licenses, leases and other material agreements to
which it is a party so as to prevent any loss or forfeiture thereof or
thereunder unless compliance therewith is being at the time contested in good
faith by appropriate proceedings.
9.29 ERISA. As soon as possible and in any event within 30 days
-----
after any Borrower knows or has reason to know that any ERISA Event (as defined
in Title IV of ERISA) with respect to any Plan has occurred, the Borrowers will
deliver to the Agent a statement of the Parent's Financial Officer setting forth
details as to such ERISA Event and the action which it proposes to take with
respect thereto, together with a copy of the
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notice of such ERISA Event to the Pension Benefit Guaranty Corporation. As soon
as possible and in event within 30 days after receipt thereof by any Borrower
or, to the extent a Borrower has knowledge thereof, by any ERISA Group Person,
the Borrowers will deliver to the Agent copies of each notice from the PBGC
stating its intention to terminate any Plan or to have a trustee appointed to
administer a Plan. As soon as possible and in event within 30 days after receipt
thereof by any Borrower or, to the extent a Borrower has knowledge thereof, by
any ERISA Group Person from the sponsor of a Multiemployer Plan, copies of each
notice concerning (i) the imposition of withdrawal liability by any such
Multiemployer Plan, (ii) the reorganization or termination, within the meaning
of Title IV of ERISA, of any such Multiemployer Plan, or (iii) the amount of
liability incurred, or that may be incurred, by such Borrower or ERISA Group
Person in connection with any event described in clause (i) or (ii).
9.30 Ownership of the Borrowers. The Parent, or a direct Material
--------------------------
Subsidiary of the Parent, will at all times own at least 80% of the outstanding
equity of each Borrower (other than the Parent).
9.31 Pari Passu. The Credit Obligations of the Borrowers under the
----------
Credit Documents shall at all times rank at least pari passu with all other
Indebtedness of the Borrowers, except to the extent permitted by Section 9.11.
10. Representations and Warranties. In order to induce the Lenders to
------------------------------
extend credit to the Borrowers hereunder, each Borrower jointly and severally
represents and warrants as follows:
10.1 Organization and Business.
-------------------------
10.1.1 Legal Status. Each Borrower is a duly organized and
------------
validly existing corporation, in good standing (except in jurisdictions
that do not recognize good standing) under the laws of the jurisdiction
in which it is organized, with all power and authority, corporate or
otherwise, necessary to (a) enter into and perform this Agreement and
each other Credit Document to which it is party and (b) own its
properties and carry on the business now conducted or proposed to be
conducted by it. Certified copies of the Charters and Bylaws of each
Borrower have been previously delivered to the Agent and are correct
and complete;
10.1.2 Material Subsidiaries. Each Material Subsidiary of the
---------------------
Borrowers is duly organized, validly existing and in good standing
(except in jurisdictions that do not recognize good standing) under the
laws of the jurisdiction in which it is organized, with all power and
authority, corporate or otherwise, necessary to (a) enter into and may
perform each Credit Document to which it is party and (b) own its
properties and carry on the business now conducted or proposed to be
conducted by it. Certified copies of the Charter and Bylaws of each
Material Subsidiary of the Borrowers have been previously delivered to
the Agent and are correct and complete. Exhibit 10.1, as from time
------------
-54-
to time hereafter supplemented, sets forth, as of the later of the date
hereof or the end of the most recent fiscal quarter for which financial
statements are required to be furnished in accordance with Section 9.3,
(i) the name, address of the chief executive office, and jurisdiction
of organization of each Material Subsidiary of the Borrowers, and (ii)
the name of each Material Subsidiary.
10.1.3 Qualification. Each Borrower and each Material
-------------
Subsidiary is duly and legally qualified to do business as a foreign
corporation or other entity and is in good standing (except in
jurisdictions that do not recognize good standing) in each state or
jurisdiction in which such qualification is required and is duly
authorized, qualified and licensed under all laws, regulations,
ordinances or orders of public authorities, or otherwise, to carry on
its business in the places and in the manner in which it is conducted,
except for failures to be so qualified, authorized or licensed would
not in the aggregate have a Material Adverse Effect.
10.2 Financial Statements and Other Information. The Borrowers have
------------------------------------------
previously furnished to the Lenders copies of the Consolidated financial
statements of the Parent as at December 31, 1998. Such financial statements
were prepared in accordance with GAAP and fairly present the Consolidated
financial position of the Parent at the date thereof.
10.3 No Material Adverse Effect. Since December 31, 1998, no event
--------------------------
has occurred which can be reasonably expected to have a Material Adverse Effect.
Since December 31, 1998, (a) neither the Parent nor any of its Subsidiaries has
incurred any obligations, contingent or non-contingent liabilities, long-term
leases or unusual forward or long-term commitments (other than the Credit
Obligations) which, alone or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, (b) no contract, lease or other agreement or
instrument has been entered into by the Parent or any of its Subsidiaries or has
become binding upon the Parent's or any of its Subsidiaries' assets and no law
or regulation applicable to the Parent or any of its Subsidiaries has been
adopted which has had or could reasonably be expected to have a Material Adverse
Effect, and (c) neither the Parent nor any of its Subsidiaries is in default
and, to the best of the Borrowers' knowledge, no third party is in default,
under any material contract, lease or agreement, which alone or in the aggregate
could reasonably be expected to have a Material Adverse Effect.
10.4 Operations in Conformity with Law, Etc. The operations of each
--------------------------------------
Borrower and its Subsidiaries as now conducted or proposed to be conducted are
not in violation of, nor is any Borrower or its Subsidiaries in default under,
any Legal Requirement presently in effect, except for such violations and
defaults as do not and will not, in the aggregate, result, or create a material
risk of a Material Adverse Effect. The Borrowers have received no notice of any
such violation or default and have no knowledge of any basis on which the
operations of the Borrowers or their Subsidiaries, as now conducted and as
currently proposed to be conducted after the date hereof, would be held to
violate or to give rise to any such violation or default.
-55-
10.5 Litigation. No litigation, at law or in equity, or any
----------
proceeding before any court, board or other governmental or administrative
agency or any arbitrator is pending or, to the knowledge of the Borrowers,
threatened which involves any material risk of any final judgment, order or
liability which, after giving effect to any applicable insurance, has resulted,
or creates a material risk of resulting, in any Material Adverse Effect or which
seeks to enjoin the consummation, or which questions the validity, of any of the
transactions contemplated by this Agreement or any other Credit Document. No
judgment, decree or order of any court, board or other governmental or
administrative agency or any arbitrator has been issued against or binds any
Borrower or any of its Subsidiaries which has resulted, or creates a material
risk of resulting, in any Material Adverse Effect.
10.6 Authorization and Enforceability. Each Obligor has taken all
--------------------------------
corporate action required to execute, deliver and perform this Agreement and
each other Credit Document to which it is party. No consent of stockholders of
any Obligor is necessary in order to authorize the execution, delivery or
performance of this Agreement or any other Credit Document to which any Obligor
is party. Each of this Agreement and each other Credit Document constitutes the
legal, valid and binding obligation of each Obligor party thereto and is
enforceable against such Obligor in accordance with its terms, except as
enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) general principles of equity.
10.7 No Legal Obstacle to Agreements. Neither the execution and
-------------------------------
delivery of this Agreement or any other Credit Document, nor the making of any
borrowings hereunder, nor the guaranteeing of the Credit Obligations, nor the
consummation of any transaction referred to in or contemplated by this Agreement
or any other Credit Document, nor the fulfillment of the terms hereof or thereof
or of any other agreement or instrument contemplated by this Agreement or any
other Credit Document, has constituted or resulted in or shall constitute or
result in:
(a) any breach or termination of the provisions of any
agreement, instrument, deed or lease to which any Borrower, any of its
Subsidiaries or any other Obligor is a party or by which it is bound,
or of the Charter or Bylaws of any Borrower, any of its Subsidiaries or
any other Obligor;
(b) the violation of any law, statute, judgment,
decree or governmental order, rule or regulation applicable to any
Borrower, any of its Subsidiaries or any other Obligor;
(c) the creation under any agreement, instrument, deed
or lease of any Lien upon any of the assets of any Borrower, any of its
Subsidiaries or any other Obligor; or
(d) any redemption, retirement or other repurchase
obligation of any Borrower, any of its Subsidiaries or any other
Obligor under any Charter,
-56-
By-law, agreement, instrument, deed or lease. No approval,
authorization or other action by, or declaration to or filing with, any
governmental or administrative authority or any other Person is
required to be obtained or made by any Borrower, any of its
Subsidiaries or any other Obligor in connection with the execution,
delivery and performance of this Agreement or any other Credit
Document, the transactions contemplated hereby or thereby, the making
of any borrowing hereunder or the guaranteeing of the Credit
Obligations.
10.8 Tax Returns. Each Borrower (and, to the extent failure would
-----------
have a Material Adverse Effect, its Subsidiaries) has filed all material tax and
information returns which are required to be filed by it and has paid, or made
adequate provision for the payment of, all Taxes which have or may become due
pursuant to such returns or to any assessment received by it, other than Taxes
and assessments being contested in good faith by appropriate proceedings and for
which adequate reserves have been established in accordance with GAAP.
10.9 Environmental Regulations.
-------------------------
10.9.1 Environmental Compliance. Each Borrower and its
------------------------
Subsidiaries is in compliance in all material respects with the Clean
Air Act, the Federal Water Pollution Control Act, the Marine Protection
Research and Sanctuaries Act, RCRA, CERCLA and any other Environmental
Law in effect in any jurisdiction in which any properties of any
Borrower or any of its Subsidiaries are located or where any of them
conducts its business, and with all applicable published rules and
regulations (and applicable standards and requirements) of the federal
Environmental Protection Agency and of any similar agencies in states
or foreign countries in which any Borrower or its Subsidiaries conducts
its business other than those which in the aggregate have not resulted,
and do not create a material risk of resulting, in a Material Adverse
Effect.
10.9.2 Environmental Litigation. No suit, claim, action or
------------------------
proceeding of which any Borrower or any of its Subsidiaries has been
given notice or otherwise has knowledge is now pending before any
court, governmental agency or board or other forum, or to a Borrower's
or any of its Subsidiaries' knowledge, threatened by any Person (nor to
the knowledge of each Borrower and its Subsidiaries, does any factual
basis exist therefor) for, and neither any Borrower nor any of its
Subsidiaries have received written correspondence from any federal,
state or local governmental authority with respect to:
(a) noncompliance by any Borrower or any of its
Subsidiaries with any Environmental Law;
(b) personal injury, wrongful death or other tortious
conduct relating tomaterials, commodities or products used,
generated, sold, transferred or manufactured by any Borrower or
any of its Subsidiaries (including products
-57-
made of, containing or incorporating asbestos, lead or other
hazardous materials, commodities or toxic substances); or
(c) the release into the environment by Borrower or
any of its Subsidiaries of any: Hazardous Material generated by a
Borrower or any of its Subsidiaries whether or not occurring at
or on a site owned, leased or operated by any Borrower or any of
its Subsidiaries.
10.10 Plans. Each Plan (other than a Multiemployer Plan) and,
-----
to the knowledge of each Borrower and its Subsidiaries, each Multiemployer Plan
is in material compliance with the applicable provisions of ERISA and the Code.
Each Multiemployer Plan and each Plan that constitutes a "defined benefit plan"
(as defined in ERISA) are set forth in Exhibit 10.10. Each ERISA Group Person
has met all of the funding standards applicable to all Plans that are not
Multiemployer Plans, and no condition exists which would permit the institution
of proceedings to terminate any Plan that is not a Multiemployer Plan under
section 4042 of ERISA. To the knowledge of the Borrowers and their Subsidiaries,
no Plan that is a Multiemployer Plan is currently insolvent or in reorganization
or has been terminated within the meaning of ERISA.
10.11 Consents or Approvals. No consent or approval of any
---------------------
trustee, issuer or holder of any Indebtedness or obligations of any Borrower or
its Subsidiaries, and no consent, permission, authorization, order or license of
any Governmental Authority, is necessary in connection with the execution and
delivery of the Credit Documents or any transaction contemplated by the Credit
Documents.
10.12 No Liens. Each Borrower and its Significant
--------
Subsidiaries owns its property free and clear of Liens, except Liens permitted
by Section 9.11.
10.13 Business Authorizations. Each Borrower and its Material
-----------------------
Subsidiaries possesses all patents, patent rights or licenses, trademarks,
trademark rights, trade names or trade name rights and copyrights required to
conduct its business in all material respects as now conducted without material
conflict with the rights or privileges of others.
10.14 Year 2000 Compliance. Each Borrower and its Material
--------------------
Subsidiaries has taken as part of its Year 2000 Compliance program, or will take
by the scheduled date as part of its Year 2000 Compliance Program as in effect
as of the date of this Agreement, all reasonable and prudent steps to ensure
that its computer systems and programs are Year 2000 Compliant.
10.15 Disclosure. Neither this Agreement nor any other Credit
----------
Document to be furnished to the Lenders by or on behalf of the Borrowers and
their Subsidiaries in connection with the transactions contemplated hereby or by
such Credit Document contains any untrue statement of material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made.
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10.16 Solvency. Each Borrower is Solvent, and, after consummation of
--------
the transactions contemplated by this Agreement, will be Solvent.
11. Defaults.
--------
11.1 Events of Default. The following events are referred to as
-----------------
"Events of Default":
-----------------
11.1.1 Payment. The Borrowers fail to make any payment in
-------
respect of: (a) interest or any fee on or in respect of any of the
Credit Obligations owed by it as the same becomes due and payable, and
such failure continues for a period of three Banking Days, or (b) any
Credit Obligation with respect to payments made by the Issuing Bank
under any Letter of Credit or any draft drawn thereunder within three
Banking Days after demand therefor by the Agent or (c) principal of any
of the Credit Obligations owed by it as the same becomes due, whether
at maturity or by acceleration or otherwise.
11.1.2 Specified Covenants. Any Borrower fails to perform or
-------------------
observe any of the provisions of Section 2.5, 9.4, 9.5, 9.6, 9.7, 9.8,
9.10, 9.11, 9.14, 9.16, 9.19, 9.20 through 9.30 or 9.31, or a Material
Subsidiary fails to perform or observe any of the provisions of Section
2.1 of a Subsidiary Guarantee.
11.1.3 Other Covenants. Any Borrower or any other Obligor
---------------
fails to perform or observe any other covenant, agreement or provision
to be performed or observed by it under this Agreement, any Subsidiary
Guarantee, or any other Credit Document, and such failure is not cured
to the written satisfaction of the Required Lenders within 30 days
after notice thereof by the Agent to the Parent.
11.1.4 Representations and Warranties. Any representation or
------------------------------
warranty of or with respect to any Borrower or any other Obligor made
to the Lenders or the Agent in, pursuant to or in connection with this
Agreement, any Subsidiary Guarantee or any other Credit Document is
materially false on the date as of which it was made.
11.1.5 Cross Default, Etc.
------------------
(a) Any Borrower or any of its Material Subsidiaries
fails to make any payment when due (after giving effect to any
applicable grace periods) in respect of any Indebtedness (other than
the Credit Obligations) outstanding in an aggregate amount of principal
(whether or not due) and accrued interest exceeding $5,000,000
(including without limitation aggregate Indebtedness arising under all
commercial paper issued by the Parent pursuant to the Commercial Paper
Documents);
(b) Any Borrower or any of its Material Subsidiaries
fails to perform or observe the terms of any agreement or instrument
relating to such
-59-
Indebtedness and such failure continues, without having been duly
cured, waived or consented to, beyond the period of grace, if any,
specified in such agreement or instrument, and such failure permits the
acceleration of such Indebtedness;
(c) All or any part of such Indebtedness of any
Borrower or any of its Material Subsidiaries is accelerated or becomes
due or payable prior to its stated maturity (except with respect to
voluntary prepayments thereof) for any reason whatsoever;
(d) Any Lien on any property of any Borrower or any of
its Material Subsidiaries securing any such Indebtedness is enforced by
foreclosure or similar action; or
(e) Any holder of any such Indebtedness exercises any
respect to the issuance thereof or any put or repurchase rights against
any Obligor with respect to such Indebtedness (other than any such
rights that may be satisfied with "payment in kind" notes or other
similar securities).
11.1.6 Final Judgment. Any one or more final judgments, orders
--------------
or decrees for the payment of money in excess of $10,000,000 (whether
singly or in the aggregate) to the extent not covered by insurance is
rendered against any Borrowers or their Material Subsidiaries and the
Borrowers and their Material Subsidiaries do not discharge the same or
provide for its discharge in accordance with its terms, or procure a
stay of execution thereof pending appeal, within forty-five (45) days
after the date of entry thereof.
11.1.7 Change of Control. A Change of Control occurs.
-----------------
11.1.8 Enforceability, Etc. Any Credit Document, including
-------------------
without limitation any Subsidiary Guarantee, ceases for any reason
(other than the scheduled termination thereof in accordance with its
terms) to be in full force and effect and enforceable in accordance
with its terms; or any party to any Credit Document shall so assert in
a judicial or similar proceeding; or any Material Subsidiary or other
party to a Credit Document shall revoke any Subsidiary Guarantee or
other Credit Document or shall deny any further liability or obligation
thereunder; or any security interests hereafter created by this
Agreement or any other Credit Documents shall cease to be enforceable
and of the same effect and priority purported to be created thereby.
11.1.9 ERISA Events.
------------
(a) Any ERISA Event occurs with respect to a Plan and
the sum of the Insufficiency of such Plan and the Insufficiency of all
other Plans with respect to which an ERISA Event exists exceeds
$5,000,000;
-60-
(b) any ERISA Group Person shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by
the ERISA Group Person as Withdrawal Liability (determined as of the
date of such notification), exceeds $5,000,000 or requires payments
exceeding $1,000,000 per annum; or
(c) any ERISA Group Person shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the ERISA Group Person to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $5,000,000;
provided, however, that an ERISA Event or a Withdrawal Liability described in
clauses (a) and (b) shall not be deemed an Event of Default if a bona fide
dispute exists as to such matter, the dispute is contested in good faith by
appropriate proceedings and the Borrowers have established on their financial
statements an adequate reserve for the amount in dispute in accordance with
GAAP.
11.1.10 Bankruptcy, Etc. Any Borrower or any other Obligor
---------------
shall:
(a) Commence a voluntary case under the Bankruptcy
Code or authorize, by appropriate proceedings of its board of directors
or other governing body, the commencement of such a voluntary case;
(b) (i) Have filed against it a petition commencing
an involuntary case under the Bankruptcy Code that shall not have been
dismissed within 60 days after the date on which such petition is
filed, or (ii) file an answer or other pleading within such 60-day
period admitting or failing to deny the material allegations of such a
petition or seeking, consenting to or acquiescing in the relief therein
provided, or (iii) have entered against it an order for relief in any
involuntary case commenced under the Bankruptcy Code;
(c) Seek relief as a debtor under any applicable law,
other than the Bankruptcy Code, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(d) Have entered against it an order by a court of
competent jurisdiction (i) finding it to be bankrupt or insolvent, (ii)
ordering or approving its liquidation or reorganization as a debtor or
any modification or alteration of
-61-
the rights of its creditors or (iii) assuming custody of, or appointing
a receiver or other custodian for, all or a substantial portion of its
property; or
(e) Make an assignment for the benefit of, or enter
into a composition with, its creditors, or appoint, or consent to the
appointment of, or suffer to exist a receiver or other custodian for,
all or a substantial portion of its property.
11.2 Certain Actions Following an Event of Default. If any one or
---------------------------------------------
more Events of Default occurs, then in each and every such case:
11.2.1 Terminate Obligation to Extend Credit. The Agent on
-------------------------------------
behalf of the Lenders may (and upon written request of the Required
Lenders the Agent shall) terminate the obligations of the Lenders to
make any further extensions of credit under the Credit Documents by
furnishing notice of such termination to the Parent.
11.2.2 Specific Performance; Exercise of Rights. The Agent on
----------------------------------------
behalf of the Lenders may (and upon written request of the Required
Lenders the Agent shall) proceed to protect and enforce the Lenders'
rights by suit in equity, action at law and/or other appropriate
proceeding, either for specific performance of any covenant or
condition contained in this Agreement or any other Credit Document or
in any instrument or assignment delivered to the Lenders pursuant to
this Agreement or any other Credit Document, or in aid of the exercise
of any power granted in this Agreement or any other Credit Document or
any such instrument or assignment.
11.2.3 Acceleration. The Agent on behalf of the Lenders may
------------
(and upon written request of the Required Lenders the Agent shall) by
notice in writing to the Parent (a) declare all or any part of the
unpaid balance of the Credit Obligations then outstanding to be
immediately due and payable, and (b) require the Borrowers immediately
to deposit with the Agent in cash or cash equivalents an amount equal
to the then Letter of Credit Exposure, and thereupon such unpaid
balance or part thereof and such amount equal to the Letter of Credit
Exposure shall become so due and payable without presentation, protest
or further demand or notice of any kind, all of which are hereby
expressly waived; provided, however, that if a Bankruptcy Default has
-------- -------
occurred, the unpaid balance of the Credit Obligations shall
automatically become immediately due and payable.
11.2.4 Enforcement of Payment; Credit Security; Setoff. The
-----------------------------------------------
Agent on behalf of the Lenders may (and upon written request of the
Required Lenders the Agent shall) proceed to enforce payment of the
Credit Obligations in such manner as it may elect, to cancel any
outstanding Letters of Credit which permit the cancellation thereof and
to realize upon any and all rights in any collateral securing the
Credit Obligations. The Lenders may offset and apply toward the payment
of the Credit Obligations (and/or toward the curing of any Event of
-62-
Default) any Indebtedness from the Lenders to the respective Obligors,
including any Indebtedness represented by deposits in any account
maintained with the Lenders, regardless of the adequacy of any security
for the Credit Obligations. The Lenders shall have no duty to determine
the adequacy of any such security in connection with any such offset.
11.2.5 Cumulative Remedies. To the extent not prohibited by
-------------------
applicable law which cannot be waived, all of the Lenders' rights
hereunder and under each other Credit Document shall be cumulative.
11.3 Annulment of Defaults. Once an Event of Default has occurred,
---------------------
such Event of Default shall be deemed to exist and be continuing for all
purposes of the Credit Documents until the Required Lenders or the Agent (with
the consent of the Required Lenders) shall have waived such Event of Default in
writing, stated in writing that the same has been cured to such Lenders'
reasonable satisfaction or entered into an amendment to this Agreement which by
its express terms cures or waives such Event of Default, at which time such
Event of Default shall no longer be deemed to exist or to have continued. No
such action by the Lenders or the Agent shall extend to or affect any subsequent
Event of Default or impair any rights of the Lenders upon the occurrence
thereof. The making of any extension of credit during the existence of any
Default or Event of Default shall not constitute a waiver thereof.
11.4 Waivers. To the extent that such waiver is not prohibited by the
-------
provisions of applicable law that cannot be waived, each of the Borrowers and
the other Obligors waives:
(a) all presentments, demands for performance, notices
of nonperformance (except to the extent required by this Agreement or
any other Credit Document), protests, notices of protest and notices of
dishonor;
(b) any requirement of diligence or promptness on the
part of any Lender in the enforcement of its rights under this
Agreement or any other Credit Document;
(c) any and all notices of every kind and description
which may be required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in
full) which it may now or hereafter have with respect to its liability
under this Agreement or any other Credit Document or with respect to
the Credit Obligations.
12. Expenses; Indemnity.
-------------------
12.1 Expenses. Whether or not the transactions contemplated hereby
--------
are consummated, the Borrowers shall pay:
-63-
(a) all reasonable expenses of the Agent (including
the out-of-pocket expenses related to forming the group of Lenders and
reasonable fees and disbursements of the counsel to the Agent) in
connection with the preparation and duplication of this Agreement and
each other Credit Document, the transactions contemplated hereby and
thereby and amendments, waivers, consents and other operations
hereunder and thereunder;
(b) all recording and filing fees and transfer and
documentary stamp and similar taxes at any time payable in respect of
this Agreement, any other Credit Document; and
(c) all other reasonable expenses incurred by the
Lenders or the holder of any Credit Obligation in connection with the
enforcement of any rights hereunder or under any other Credit Document,
including costs of collection and reasonable attorneys' fees (including
a reasonable allowance for the hourly cost of attorneys employed by any
Lender on a salaried basis) and expenses.
12.2 General Indemnity. The Borrowers shall indemnify the Lenders
-----------------
and the Agent and hold them harmless from any liability, loss or damage
resulting from the violation by the Borrowers of Section 2.5 and from and
against all losses, costs and expenses, incurred in liquidating or employing
deposits from third parties acquired or arranged, and/or in terminating or
unwinding any contact entered into, or order to effect or fund the whole or any
part of any drawing or any overdue amount hereunder incurred by any Lender as a
consequence of any Default or Event of Default and/or the repayment of any
amount due hereunder other than at the expiration of an Interest Period. In
addition, the Borrowers shall indemnify each Lender, the Agent, each of the
Lenders' or the Agent's directors, officers and employees, and each Person, if
any, who controls any Lender or the Agent (each Lender, the Agent and each of
such directors, officers, employees and control Persons is referred to as an
"Indemnified Party") and hold each of them harmless from and against any and all
-----------------
claims, damages, liabilities and reasonable expenses (including reasonable fees
and disbursements of counsel with whom any Indemnified Party may consult in
connection therewith and all reasonable expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party in connection with (a) the Indemnified Party's compliance
with or contest of any subpoena or other process issued against it in any
proceeding involving the Borrowers or any of its Subsidiaries, or their
Affiliates, (b) any litigation or investigation involving the Borrowers, any of
its Subsidiaries or their Affiliates, or any officer, director or employee
thereof, (c) the existence or exercise of any security rights with respect to
any collateral for the Credit Obligations in accordance with the Credit
Documents, or (d) this Agreement, any other Credit Document or any transaction
contemplated hereby or thereby; provided, however, that the foregoing indemnity
-------- -------
shall not apply to litigation commenced by the Borrowers against the Lenders or
the Agent which seeks enforcement of any of the rights of the Borrowers
hereunder or under any other Credit Document and is determined adversely
-64-
to the Lenders or the Agent in a final nonappealable judgment or to the extent
such claims, damages, liabilities and expenses result from a Lender's or the
Agent's gross negligence or willful misconduct.
13. The Agent.
---------
13.1 Authorization and Action. Each Lender hereby appoints and
------------------------
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Credit Documents
as are delegated to the Agent by the terms hereof and thereof, together with
such powers and discretion as are reasonably incidental thereto. The Agent shall
be fully justified in failing or refusing to take any action under this Credit
Agreement or under any of the other Credit Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder or under any
of the other Credit Documents in accordance with the instructions of the
Required Lenders, and such instructions shall be binding upon all Lenders and
all holders of Notes; provided, however, that the Agent shall not be required to
-------- ------
take any action that is contrary to this Agreement or applicable law. The Agent
shall not be deemed to have knowledge or notice of the occurrence of a Default
(other than the nonpayment of principal or interest on the Loan or of fees
payable hereunder) unless the Agent has received notice from a Lender or a
Borrower specifying such Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give prompt notice thereof to the Lenders. The Agent shall take such action with
respect to such Default as shall be reasonably directed by the Required Lenders
and as is permitted by the Credit Documents; provided, that unless and until the
Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders
except to the extent that this Agreement expressly requires that such action be
taken, or not be taken, only with the consent or upon the authorization of the
Required Lenders or of all Lenders.
13.2 Agent's Reliance, Etc. Neither the Agent nor any of its
---------------------
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Credit
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Assignee, as assignee, as provided in Section
14.1.1; (b) may consult with legal counsel (including counsel for any Lender),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation
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to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made by any Borrower or
Material Subsidiary in or in connection with the Credit Documents or in any
certificate, report, document, financial statement or other written or oral
statement referred to or provided for in, or received by Agent under or in
connection herewith or in connection with the other Credit Documents; (d) shall
not have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of any Credit Document or as to the
use of the proceeds of the Loan or the use of the Letters of Credit on the part
of any Lender; (e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Credit Document or any other
instrument or document furnished pursuant thereto or for the failure of any
Borrower or Material Subsidiary to perform their respective obligations under
the Credit Documents; and (f) is entitled to rely, and shall be fully protected
in relying, upon any notice, consent, certificate, letter, resolution or other
instrument or writing (which may be by telegram, telecopy or telex) or
conversation believed by it to be genuine and signed, sent or made by the proper
party or parties. Each Lender acknowledges and agrees that the Agent shall not
have, by reason of this Agreement, a fiduciary relationship in respect of any
Lender; and nothing in this Agreement, expressed or implied, is intended to or
shall be so construed as to create any express, implied or constructive trust
relationship between the Agent and any Lender and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any of the other Credit Documents or shall otherwise
exist against Agent.
13.3 Lender Credit Decision; Agent in its Individual Capacity. Each
--------------------------------------------------------
Lender acknowledges that it has, independently and without reliance upon the
Agent or any other Lender and based on the financial statements referred to in
Section 10.2 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement or any
other Credit Document. Except as expressly provided in this Agreement, the Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information concerning the
affairs, financial condition or business of the Borrowers (or any Affiliate
thereof) which may come into the possession of Agent, whether coming into its
possession before the making of any Loan or the issuance of any Letter of Credit
or at any time or times thereafter, or to inspect the properties or books of any
Borrower or any Material Subsidiary. The Agent and its Affiliates may (without
having to account for the same to any Lender) make loans to, accept deposits
from, and generally engage in any kind of business with any Borrower and any
Material Subsidiary as though the Agent were not the Agent hereunder. With
respect to its Commitment and the Loans made by it and all obligations owing to
it, the Agent shall have the same rights and powers under this
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Credit Agreement and the other Credit Documents as any Lender and may exercise
the same as though it were not the Agent, and the terms "Lender" and "Lenders"
shall include the Agent in its individual capacity.
13.4 Indemnification. Each Lender severally agrees to indemnify the
---------------
Agent (as Agent and as Issuing Bank) (to the extent not promptly reimbursed by
the Borrowers) to the extent of such Lender's Percentage Interest from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of the Credit Documents or any
action taken or omitted by the Agent under the Credit Documents; provided,
--------
however, that no Lender shall be liable for any portion of such liabilities,
-------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its Percentage Interest of any costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrowers under Section 12.1 or 12.2, to the extent that
the Agent is not promptly reimbursed for such costs and expenses by the
Borrower. The failure of any Lender to reimburse the Agent promptly upon demand
for its Percentage Interest of any amount required to be paid by the Lender to
the Agent as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Agent for its Percentage Interest of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse the Agent for such other Lender's Percentage Interest of such
amount. Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 13.4 will survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Credit Documents.
13.5 Successor Agents. The Agent may resign at any time by giving
----------------
written notice thereof to the Lenders and the Borrowers and may be removed at
any time with or without cause by the Required Lenders or, so long as no Default
exists, by the Borrowers. Upon any such resignation or removal, the Required
Lenders shall have the right, upon five (5) days' notice and approval by the
Borrowers (which approval shall not be unreasonably withheld), to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within thirty (30)
days after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then, upon five (5) days' notice and
approval by the Borrowers (which approval shall not be unreasonably withheld),
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
which shall be a bank which maintains an office in the United States or a
commercial bank organized under the laws of the United States of America or of
any State thereof having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent and upon the execution and filing or recording of such
instruments or notices as may be necessary or desirable, or as
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the Required Lenders may request, such successor Agent will succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Agent, and the retiring Agent will be discharged from its duties
and obligations under the Credit Documents. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Section 13
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
14. Successors and Assigns; Lender Assignments and Participations. Any
-------------------------------------------------------------
reference in this Agreement or any other Credit Document to any of the parties
hereto shall be deemed to include the successors and assigns of such party, and
all covenants and agreements by or on behalf of the Borrowers, the Obligors, the
Agent or the Lenders that are contained in this Agreement or any other Credit
Document shall bind and inure to the benefit of their respective successors and
assigns; provided, however, that (a) the Borrowers and their Subsidiaries may
-------- -------
not assign their rights or obligations under this Agreement or any other Credit
Document, and (b) the Lenders will be not entitled to assign their respective
Percentage Interests in the credits extended hereunder or their Commitments
except as set forth below in this Section 14.
14.1 Assignments by Lenders.
----------------------
14.1.1 Assignees and Assignment Procedures. Each Lender may
-----------------------------------
(a) without the consent of the Agent or the Borrowers if the proposed
assignee is already a Lender hereunder or a wholly owned subsidiary of
the same corporate parent of which the assigning Lender is a
subsidiary, or (b) otherwise with the consents of the Agent and (so
long as no Event of Default exists) the Parent (which consents shall
not be unreasonably withheld), in compliance with applicable laws in
connection with such assignment, assign to one or more commercial banks
or other financial institutions (each, an "Assignee") all or a portion
--------
of its interests, rights and obligations under this Agreement and the
other Credit Documents, including all or a portion of its Commitment,
the portion of the Loan at the time owing to it and the Notes held by
it; provided, however, that:
-------- -------
(i) no such assignment shall be for less than
$5,000,000 of the assigning Lender's Commitment,
and the remaining Commitment of the assigning
Lender after giving effect to such assignment shall
not be less than $5,000,000; and
(ii) the parties to each such assignment will
execute and deliver to the Agent an Assignment and
Acceptance (the "Assignment and Acceptance")
substantially in the form of Exhibit 14.1.1,
--------------
together with the Note subject to such assignment
and a processing and recordation fee of $3,500
payable to the Agent by the assigning Lender or the
Assignee.
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Upon acceptance and recording pursuant to Section 14.1.4, from and
after the effective date specified in each Assignment and Acceptance
(which effective date will be at least five Banking Days after the
execution thereof unless waived by. the Agent):
(A) the Assignee will be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement
and
(B) the assigning Lender will, to the extent provided in
such assignment, be released from its obligations under
this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this
Agreement, such Lender will cease to be a party hereto
but will continue to be entitled to the benefits of
Sections 3.2.4, 3.5 and 12, as well as to any fees
accrued for its account hereunder and not yet paid).
14.1.2 Terms of Assignment and Acceptance. By executing and
----------------------------------
delivering an Assignment and Acceptance, the assigning Lender and
Assignee will be deemed to confirm to and agree with each other and the
other parties hereto as follows:
(a) other than the representation and warranty that it
is the legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document furnished
pursuant hereto;
(b) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Borrowers and their Subsidiaries or the performance or
observance by the Borrowers or any of their Subsidiaries of any of its
obligations under this Agreement, any other Credit Document or any
other instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy
of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 9.3 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
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(d) such Assignee will independently and without
reliance upon the Agent, such assigning Lender or any other Lender, and
based on such documents and information as it deems appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement;
(e) such Assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and
(f) such Assignee agrees that it will perform in
accordance with the terms of this Agreement all the obligations which
are required to be performed by it as a Lender.
14.1.3 Register. The Agent will maintain at the Denver Office
--------
a register (the "Register") for the recordation of (a) the names and
--------
addresses of the Lenders and the Assignees which assume rights and
obligations pursuant to an assignment under Section 14.1.1, (b) the
Percentage Interest of each such Lender and (c) the amount of the Loan
owing to each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name
is registered therein for all purposes as a party to this Agreement.
The Register will be available for inspection by the Borrowers or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
14.1.4 Acceptance of Assignment and Assumption. Upon its
---------------------------------------
receipt of a completed Assignment and Acceptance executed by an
assigning Lender and an Assignee together with the Note subject to such
assignment, and the processing and recordation fee referred to in
Section 14.1.1, the Agent will (a) accept such Assignment and
Acceptance, (b) record the information contained therein in the
Register and (c) give prompt notice thereof to the Borrowers. Within
five Banking Days after receipt of notice, the Borrowers, at their own
expense, will execute and deliver to the Agent, in exchange for the
surrendered Note, a new Note to the order of such Assignee in a
principal amount equal to the applicable Commitment and Loan assumed by
it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment and Loan, a new Note to the order of
such assigning Lender in a principal amount equal to the applicable
Commitment and Loan retained by it. Subject to the foregoing, such new
Note will be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note, and will be dated the date
of the surrendered Revolving Credit Note which it replaces.
14.1.5 Federal Reserve Bank. Notwithstanding the foregoing
--------------------
provisions of this Section 14, any Lender may at any time pledge or
assign all or any portion of such Lender's rights under this Agreement
and the other Credit Documents to
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a Federal Reserve Bank; provided, however, that no such pledge or
-------- -------
assignment will release such Lender from such Lender's obligations
hereunder or under any other Credit Document.
14.1.6 Further Assurances. The Borrowers and the other
------------------
Obligors shall sign such documents and take such other actions from
time to time reasonably requested by an Assignee to enable it to share
in the benefits of the rights created by the Credit Documents.
14.2 Credit Participants. Each Lender may, without the consent of the
-------------------
Borrowers or the Agent, in compliance with applicable laws in connection with
such participation, sell to one or more commercial banks or other financial
institutions (each a "Credit Participant") participations in all or a portion of
------------------
its interests, rights and obligations under this Agreement and the other Credit
Documents (including all or a portion of its Commitment, and the Loan owing to
it and the Revolving Credit Note held by it); provided, however, that:
-------- -------
(a) such Lender's obligations under this Agreement
will remain unchanged;
(b) such Lender will remain solely responsible to the
other parties hereto for the performance of such obligations;
(c) the Credit Participant will be entitled to the
benefit of the cost protection provisions contained in Sections 3.2.4,
3.5 and 12, but will not be entitled to receive any greater payment
thereunder than the selling Lender would have been entitled to receive
with respect to the interest so sold if such interest had not been
sold; and
(d) the Borrowers, the Agent and the other Lenders
will continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, and such Lender will retain the sole right as one of the
Lenders to vote with respect to the enforcement of the obligations of
the Borrowers relating to the Loan and the approval of any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications, consents or waivers that increase the
credit, reduce the interest rate or extend the stated time of payment
hereunder).
Each Obligor agrees, to the fullest extent permitted by applicable law, that any
Credit Participant and any Lender purchasing a participation from another Lender
pursuant to Section 14.2 may exercise all rights of payment (including the right
of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Obligors and a Lender
hereunder in the amount of such participation.
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15. Confidentiality. Each Lender will make no disclosure of confidential
---------------
information furnished to it by the Borrowers or any of their Subsidiaries, and
identified as such, unless such information has become public, except:
(a) in connection with operations under or the
enforcement of this Agreement or any other Credit Document, to Persons
who have a reasonable need to be furnished such confidential
information and who agree to comply with the restrictions contained in
this Section 15 with respect to such information and to the extent such
disclosure does not violate any Legal Requirement;
(b) pursuant to any statutory or regulatory
requirement or any mandatory court order, subpoena or other legal
process;
(c) to any parent or corporate Affiliate of such
Lender or to any Credit Participant, proposed Credit Participant or
proposed Assignee; provided, however, that any such Person agrees to
comply with the restrictions set forth in this Section 15 with respect
to such information and to the extent such disclosure does not violate
any Legal Requirement;
(d) to its independent counsel, auditors and other
professional advisors with an instruction to such Person to keep such
information confidential; and
(e) with the prior written consent of the Parent,
to any other Person.
16. Notices. Except as otherwise specified in this Agreement or any other
-------
Credit Document, any notice required to be given pursuant to this Agreement or
any other Credit Document shall be given in writing. Any notice, consent,
approval, demand or other communication in connection with this Agreement or any
other Credit Document shall be deemed to be given if given in writing (including
telex, telecopy or similar teletransmission) addressed as provided below (or to
the addressee at such other address as the addressee has specified by notice
actually received by the addressor) and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answer back) or (b) in the case of a letter, five days have
elapsed after the same has been deposited in the United States mails, with
first-class postage prepaid and registered or certified.
If to the Borrowers or any of their Subsidiaries, to the Parent at
CH2M Hill Companies, Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Chief Financial Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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If to any Lender or the Agent, to it at its address set forth on
Schedule I or in the Register, with a copy to the Agent.
17. Course of Dealing; Amendments and Waivers. No course of dealing
-----------------------------------------
between any Lender or the Agent, on one hand, and the Borrowers or any other
Obligor, on the other hand, will operate as a waiver of any of the Lenders' or
the Agent's rights under this Agreement or any other Credit Document or with
respect to the Credit Obligations. Each of the Borrowers and the Obligors
acknowledges that if the Lenders or the Agent, without being required to do so
by this Agreement or any other Credit Document, give any notice or information
to, or obtain any consent from, the Borrowers or any other Obligor, the Lenders
and the Agent shall not by implication have amended, waived or modified any
provision of this Agreement or any other Credit Document, or created any duty to
give any such notice or information or to obey such consent on any future
occasion. No delay or omission on the part of any Lender or the Agent in
exercising any right under this Agreement or any other Credit Document or with
respect to the Credit Obligations shall operate as a waiver of such right or any
other right hereunder or thereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
No waiver, consent or amendment with respect to this Agreement or any other
Credit Document shall be binding unless it is in writing and signed by the Agent
or the Required Lenders.
Any term, covenant, agreement or condition of any Credit Document may
be amended or waived if such amendment or waiver is in writing and is signed by
the Required Lenders (or by the Agent with written consent of the Required
Lenders), the Borrowers and any other party thereto; provided, however, that any
-------- ------
amendment, waiver or consent which affects the rights or duties of the Agent,
the Swing Line Lender or the Issuing Bank must be in writing and be signed also
by the affected Agent, Swing Line Lender or Issuing Bank; and provided further,
-------- -------
that any amendment, waiver or consent which effects any of the following changes
must be in writing and signed by all Lenders (or by the Agent with the written
consent of all Lenders):
(a) increases the Maximum Amount of Credit available;
(b) extends the Final Maturity Date;
(c) reduces the principal of, or interest on, any Loan or
any fees or other amounts payable for the account of the Lenders;
(d) postpones or conditions any date fixed for any payment
of the principal of, or interest on, any Loan or any fees or other amounts
payable for the account of the Lenders;
(e) waives or amends this Section 17;
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(f) amends the definition of Required Lenders or any
provision of this Agreement requiring approval of the Required Lenders or some
other specified amount of Lenders;
(g) increases or decreases the Commitment or the Percentage
Interest of any Lender (other than through an assignment under Section 14); or
(h) releases any Subsidiary Guarantee; or
(i) waives any of the conditions set forth in Section 8.
Unless otherwise specified in such waiver or consent, a waiver or consent given
hereunder shall be effective only in the specific instance and for the specific
purpose for which given.
18. Defeasance. When all Credit Obligations have been paid, performed and
----------
reasonably determined by the Lenders to have been indefensibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Borrowers hereunder or under any other Credit Document, this
Agreement and the other Credit Documents will terminate; provided, however, that
-------- -------
Sections 3.2.4, 3.5, 12, 13, 19, 20 and 21 will survive the termination of this
Agreement.
19. Venue: Service of Process. Each of the Borrowers and the other
-------------------------
Obligors:
(a) Irrevocably submits to the nonexclusive
jurisdiction of the state courts of the State of Colorado and to the
nonexclusive jurisdiction of the United States District Court for the
District of Colorado for the purpose of any suit, action or other
proceeding arising out of or based upon this Agreement or any other
Credit Document or the subject matter hereof or thereof, subject to the
provisions of Section 21; and
(b) Waives to the extent not prohibited by applicable
law that cannot be waived, and agrees not to assert, by way of motion,
as a defense or otherwise, in any such proceeding brought in any of the
above-named courts, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or
that this Agreement or any other Credit Document, or the subject matter
hereof or thereof, may not be enforced in or by such court, subject to
the provisions of Section 21.
Each of the Borrowers and the other Obligors consents to service of process in
any such proceeding in any manner at the time permitted by the laws of the State
of Colorado agrees that service of process by registered or certified mail,
return receipt requested, at it, address specified in or pursuant to Section 16
is reasonably calculated to give actual notice.
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20. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
--------------------
THAT CANNOT BE WAIVED, EACH OF THE BORROWERS, THE OTHER OBLIGORS, THE AGENT AND
THE LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF,
DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF
ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY CREDIT OBLIGATION OR IN
ANY WAY CONNECTED WITH THE DEALINGS OF THE LENDERS, THE AGENT, THE BORROWERS OR
ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. Each
of the Borrowers and the other Obligors acknowledges that it has been informed
by the Agent that the provisions of this Section 20 constitute a material
inducement upon which each of the Lenders has relied and will rely in entering
into this Agreement and any other Credit Document, and that it has reviewed the
provisions of this Section 20 with its counsel. Any Lender, the Agent, any
Borrower or any other Obligor may file an original counterpart or a copy of this
Section 20 with any court as written evidence of the consent of any Borrower,
the other Obligors, the Agent and the Lenders to the waiver of their rights to
trial by jury.
21. Arbitration.
-----------
21.1 Arbitration. Upon the demand of any party, any Dispute shall be
-----------
resolved by binding arbitration (except as set forth in Section 21.5 below) in
accordance with the terms of this Agreement. A "Dispute" shall mean any action,
dispute, claim or controversy of any kind, whether in contract or tort,
statutory or common law, legal or equitable, now existing or hereafter arising
under or in connection with, or in any way pertaining to, any of the Credit
Documents, or any past, present or future extensions of credit and other
activities, transactions or obligations of any kind related directly or
indirectly to any of the Credit Documents, including, without limitation, any of
the foregoing arising in connection with the exercise of any self help,
ancillary or other remedies pursuant to any of the Credit Documents. Any party
may by summary proceedings bring an action in court to compel arbitration of a
Dispute. Any party that fails or refuses to submit to arbitration following a
lawful demand by any other party shall bear all costs and expenses incurred by
such other party in compelling arbitration of any Dispute.
21.2 Governing Rules. Arbitration proceedings shall be administered
---------------
by the American Arbitration Association ("AAA") or such other administrator as
the parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the Credit
Documents. The arbitration shall be conducted at a location in Denver, Colorado
selected by the AAA or other administrator.
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If there is any inconsistency between the terms hereof and any such rules, the
terms and procedures set forth herein shall control. All statutes of limitation
applicable to any Dispute shall apply to any arbitration proceeding. All
discovery activities shall be expressly limited to matters directly relevant to
the Dispute being arbitrated. Judgment upon any award rendered in an arbitration
may be entered in any court having jurisdiction; provided, however, that nothing
-------- -------
contained herein shall be deemed to be a waiver by any party that is a bank of
the protections afforded to it under 12 U.S.C. (S)91 or any similar applicable
state law.
21.3 No Waiver; Provisional Remedies; Self-Help and Foreclosure. No
----------------------------------------------------------
provision hereof shall limit the right of the Agent or any Lender to exercise
self-help remedies such as set-off, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or ancillary
remedies, including, without limitation, injunctive relief, sequestration,
attachment, garnishment or the appointment of a receiver, from a court of
competent jurisdiction before, after or during the pendency of any arbitration
or other proceeding. The exercise of any such remedy shall not waive the right
of any party to compel arbitration hereunder.
21.4 Arbitrator Qualifications and Powers; Awards. Arbitrators must
--------------------------------------------
be active members of the Colorado State Bar or retired judges of the state or
federal judiciary of Colorado, with expertise in the substantive laws applicable
to the subject matter of the dispute. Arbitrators are empowered to resolve
Disputes by summary rulings in response to motions filed prior to the final
arbitration hearing. Arbitrators (i) shall resolve all Disputes in accordance
with the substantive law of the State of Colorado, (ii) may grant any remedy or
relief that a court of the State of Colorado could order or grant within the
scope hereof and such ancillary relief as is necessary to make effective any
award, and (iii) shall have the power to award recovery of all costs and fees,
to impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Colorado Rules of Civil Procedure and other applicable law. Any Dispute in which
the amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000 (including
damages, costs, fees and expenses). By submission to a single arbitrator, each
party expressly waives any right or claim to recover more than $5,000,000. Any
Dispute in which the amount in controversy exceeds $5,000,000 shall be decided
by majority vote of a panel of three arbitrators; provided, however, that all
-------- -------
three arbitrators must actively participate in all hearings and deliberations.
21.5 Judicial Review. Notwithstanding anything herein to the
---------------
contrary, in any arbitration in which the amount in controversy exceeds
$25,000,000, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not supported by
substantial evidence or which is based on legal error, (ii) an award shall not
be binding upon the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous under the
substantive
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law of the State of Colorado, and (iii) the parties shall have, in addition to
the grounds referred to in the Federal Arbitration Act for vacating, modifying
or correcting an award, the right to judicial review of (A) whether the findings
of fact rendered by the arbitrators are supported by substantial evidence, and
(B) whether the conclusions of law are erroneous under the substantive law of
the State of Colorado. Judgment confirming an award in such a proceeding may be
entered only if a court determines the award is supported by substantial
evidence and not based on legal error under the substantive law of the State of
Colorado.
21.6 Miscellaneous Arbitration Provisions. To the maximum extent
------------------------------------
practicable, the AAA, the arbitrators and the parties shall take all action
required to conclude any arbitration proceeding within 180 days of the filing of
the Dispute with the AAA. No arbitrator or other party to an arbitration
proceeding may disclose the existence, content or results thereof, except for
disclosures of information by a party required in the ordinary course of its
business, by applicable law or regulation, or to the extent necessary to
exercise any judicial review rights set forth herein. If more than one agreement
for arbitration by or between the parties potentially applies to a Dispute, the
arbitration provision most directly related to the Credit Documents or the
subject matter of the Dispute shall control. This arbitration provision shall
survive termination, amendment or expiration of any of the Credit Documents or
any relationship between the parties.
22. Judgment Currency.
-----------------
22.1 Conversion Requirements. Each Obligor's obligations under the
-----------------------
Credit Documents to make payments in United States Dollars or in the applicable
Foreign Currency (the "Obligation Currency") shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by the
Agent or Lender of the full amount of the Obligation Currency expressed to be
payable to the Agent or such Lender under the Credit Documents. If, for the
purpose of obtaining or enforcing judgment against any Obligor in any court or
in any jurisdiction, it becomes necessary to convert into or from any currency
other than the Obligation Currency (such other currency being hereinafter
referred to as the "Judgment Currency") an amount due in the Obligation
Currency, the conversion shall be made, at the U.S. Dollar Equivalent ,
determined in each case as of the Banking Day immediately preceding the day on
which the judgment is given (such Banking Day being hereinafter referred to as
the "Judgment Currency Conversion Date").
22.2 Change in Rate of Exchange. If there is a change in the rate of
--------------------------
exchange prevailing between the Judgment Currency Conversion Date and the date
of actual payment of the amount due, such amount payable by the applicable
Obligor shall be reduced or increased, as applicable, such that the amount paid
in the Judgment Currency, when converted at the rate of exchange prevailing on
the date of payment,
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will produce the amount of the Obligation Currency which could have been
purchased with the amount of Judgment Currency stipulated in the judgment or
judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
23. Setoff. In addition to any rights and remedies of the Lenders
------
provided by law, each Lender shall have the right, with the prior consent of the
Agent but without prior notice to the Borrowers, any such notice being expressly
waived by the Borrowers to the extent permitted by applicable law, upon the
occurrence and during the continuance of a Default, to set-off and apply against
any indebtedness, whether matured or unmatured, of the Borrowers to such Lender,
any amount owing from such Lender or Affiliate thereof to the Borrowers, at or
at any time after, the happening of any of the above mentioned events. The
aforesaid right of set-off may be exercised by such Lender against the Borrowers
or against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment or attachment creditor of
the Borrowers or against anyone else claiming through or against the Borrowers
or such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off has not been exercised by
such Lender prior to the occurrence of a Default. Each Lender agrees promptly to
notify the Parent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
24. No Third Party Beneficiaries. This Agreement is made and entered into
----------------------------
for the sole protection and benefit of the parties hereto and their respective
permitted successors and assigns, and no other person or entity shall be a third
party beneficiary of, or have any direct or indirect cause of action or claim in
connection with, any of the Credit Documents to which it is not a party.
25. General. All covenants, agreements, representations and warranties
-------
made in this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been relied on by each
Lender, notwithstanding any investigation made by any Lender on its behalf, and
shall survive the execution and delivery to the Lenders hereof and thereof. If
any provision of this Agreement is prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or any
remaining provisions of this Agreement. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the meaning
hereof. This Agreement and the other Credit Documents (including the Fee Letter
and any other related fee agreements with the Agent or the Lenders) constitute
the entire understanding of the parties with respect to the subject matter
hereof and thereof and supersede all prior and contemporaneous understandings
and agreements, whether written or oral. This Agreement may be executed in any
number of counterparts which together will constitute one instrument. This
Agreement shall be governed by and construed in accordance witch the laws (other
than the conflict of laws rules) of the State of Colorado.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
CH2M HILL COMPANIES, LTD.
By /S/ ▇. ▇▇▇▇▇▇
--------------------------------------
Title:
CH2M HILL, INC.
By /S/ ▇. ▇▇▇▇▇▇
--------------------------------------
Title:
OPERATIONS MANAGEMENT INTERNATIONAL, INC.
By /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title:
CH2M HILL INDUSTRIAL DESIGN CORPORATION
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title:
LENDERS
-------
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Vice President
Address:1740 Broadway;
▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Title:VP
U.S. BANK NATIONAL ASSOCIATION
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
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SCHEDULE I
List of Bankers
Dollar Amount of Commitment and
Percentage of Maximum Amount of Credit
Union Bank of California $20,000,000
Energy Capital Services
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇%
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VP - Environmental Services
U.S. Bank National Association $15,000,000
▇▇▇ - ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 15%
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇ Trust and Savings Bank $25,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 25%
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
VP Construction Industry/Corporate Banking
▇▇▇▇▇ Fargo Bank, National Association $40,000,000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 40%
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President