SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 10, 1996
URS CORPORATION
(Exact name of registrant as specified in its charter)
1-7567 94-1381538
(Commission File Number) (I.R.S. Employer
Identification Number)
Delaware
(State or other jurisdiction of incorporation)
100 California Street, Suite 500
San Francisco, California 94111-4529
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
(415) 774-2700
Exhibit Index on Page 4
Page 1 of 424 <PAGE>
Item 5. Other Events.
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On January 10, 1996, URS Corporation ("URS") and
Greiner Engineering, Inc. ("Greiner") executed an Agreement and
Plan of Merger, dated as of January 10, 1996, pursuant to which
URS Acquisition Corporation, a wholly-owned subsidiary of URS,
will be merged with and into Greiner and each outstanding share
of the Common Stock of Greiner will be converted into the right
to receive (i) 0.298 shares of the Common Stock of URS, and
(ii) $13.50 in cash, for an aggregate acquisition price of
approximately $63.5 million and 1.4 million shares of URS
common stock (the "Acquisition"). As a result of the
Acquisition, Greiner will become a wholly-owned subsidiary of
URS. The transaction remains subject to Greiner stockholder
approval and other closing conditions.
URS also executed a Credit Agreement, dated as of
January 10, 1996, by and among URS, as Borrower, the Financial
Institutions listed therein as Lenders, and Wells Fargo Bank,
National Association, as Administrative Agent for the Lenders,
pursuant to which the Lenders will make secured term loans
aggregating $50 million which will mature in 2002 and 2003 and
provide a secured $20 million revolving credit facility
expiring in 1999 to finance the Acquisition and to provide for
the working capital needs of URS thereafter.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
-----------------------------------------
(c) The following exhibits are furnished in
accordance with the provisions of Item 601 of Regulation S-K:
Exhibit Number Exhibit
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2(a) Agreement and Plan of Merger,
dated as of January 10, 1996,
between URS Corporation, URS
Acquisition Corporation Greiner
Engineering, Inc., a Nevada
corporation
20(a) Press Release issued January 11,
1996
99(a) Credit Agreement, dated as of
January 10, 1996, by and among
URS Corporation, the Financial
Institutions listed therein as
Lenders, and Wells Fargo Bank,
National Association, as
Administrative Agent for the
Lenders
Page 2 of 424 <PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated: January 12, 1996
URS CORPORATION
By: /s/ Kent P. Ainsworth
--------------------------
Kent P. Ainsworth
Vice President and
Chief Financial Officer
(Principal Accounting Officer)
Page 3 of 424 <PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Sequentially
Number Exhibit Numbered Page
---------------------------------------------------------------
2(a) Agreement and Plan of Merger, 5
dated as of January 10, 1996,
between URS Corporation, URS
Acquisition Corporation Greiner
Engineering, Inc., a Nevada
corporation
20(a) Press Release issued 59
January 11, 1996
99(a) Credit Agreement, dated as of 61
January 10, 1996, by and among
URS Corporation, the Financial
Institutions listed therein as
Lenders, and Wells Fargo Bank,
National Association, as
Administrative Agent for the
Lenders
Page 4 of 424 <PAGE>
Exhibit 2(a)
------------
AGREEMENT AND PLAN OF MERGER
AMONG
GREINER ENGINEERING, INC.,
URS CORPORATION,
AND
URS ACQUISITION CORPORATION
January 10, 1996
Page 5 of 424 <PAGE>
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 1. THE MERGER . . . . . . . . . . . . . . . . . 2
1.1 Merger of the Subsidiary into Greiner . . . 2
1.2 Effective Time of the Merger . . . . . . . . 2
1.3 Effects of the Merger . . . . . . . . . . . 2
ARTICLE 2. EFFECT OF MERGER ON CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS . . . . . . 4
2.1 Conversion of the Greiner Common Stock. . . 4
2.2 Conversion of the Subsidiary Common Stock . 7
2.3 Cancellation of Treasury Shares . . . . . . 7
2.4 Withholding Tax . . . . . . . . . . . . . . 8
ARTICLE 3. CLOSING . . . . . . . . . . . . . . . . . . 8
3.1 Closing; Closing Date . . . . . . . . . . . 8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF GREINER . 8
4.1 Organization . . . . . . . . . . . . . . . . 8
4.2 Capitalization . . . . . . . . . . . . . . . 9
4.3 Subsidiaries . . . . . . . . . . . . . . . . 9
4.4 Material Investments . . . . . . . . . . . 10
4.5 Authority Relative to this Agreement . . . . 11
4.6 Consents and Approvals; No Violations . . . 11
4.7 Greiner SEC Reports and Financial
Statements . . . . . . . . . . . . . . . . . 12
4.8 Information Supplied . . . . . . . . . . . . 13
4.9 Absence of Material Adverse and Other
Changes . . . . . . . . . . . . . . . . . . 14
4.10 Litigation . . . . . . . . . . . . . . . . . 14
4.11 Absence of Undisclosed Liabilities . . . . . 15
4.12 No Default . . . . . . . . . . . . . . . . . 15
4.13 Properties, Liens, Etc. . . . . . . . . . . 16
4.14 Taxes . . . . . . . . . . . . . . . . . . . 16
4.15 Benefit Plans . . . . . . . . . . . . . . . 17
4.16 Employment Matters; Labor Relations . . . . 21
4.17 Intellectual Property . . . . . . . . . . . 22
4.18 Insurance . . . . . . . . . . . . . . . . . 24
4.19 Compliance with Applicable Law . . . . . . . 24
4.20 Certain Contracts and Arrangements . . . . . 24
4.21 Prohibited Payments . . . . . . . . . . . . 25
4.22 Powers of Attorney . . . . . . . . . . . . . 26
4.23 Environmental Matters . . . . . . . . . . . 26
4.24 Regulatory Matters . . . . . . . . . . . . . 27
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Page 6 of 424 <PAGE>
4.25 Immigration Reform and Control Act . . . . . 27
4.26 Board Approvals; Opinion of Financial
Advisor . . . . . . . . . . . . . . . . . . 28
4.27 Brokers . . . . . . . . . . . . . . . . . . 28
4.28 Disclosure . . . . . . . . . . . . . . . . . 28
4.29 Reliance . . . . . . . . . . . . . . . . . . 28
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF URS . . . 28
5.1 Organization . . . . . . . . . . . . . . . . 28
5.2 Capitalization . . . . . . . . . . . . . . . 29
5.3 Authority Relative to this Agreement . . . . 30
5.4 Consents and Approvals; No Violations . . . 30
5.5 URS SEC Reports and Financial Statements . . 31
5.6 Information Supplied . . . . . . . . . . . . 32
5.7 Board Approvals; Opinion of Financial
Advisor . . . . . . . . . . . . . . . . . . 32
5.8 Brokers . . . . . . . . . . . . . . . . . . 32
5.9 Disclosure . . . . . . . . . . . . . . . . . 33
ARTICLE 6. PRE-CLOSING COVENANTS . . . . . . . . . . . 33
6.1 Covenants of All Parties . . . . . . . . . . 33
6.1.1 Advice of Changes . . . . . . . . 33
6.1.2 Regulatory Approvals . . . . . . . 33
6.1.3 Confidentiality . . . . . . . . . 33
6.1.4 Best Efforts . . . . . . . . . . . 34
6.1.5 Credit Agreement . . . . . . . . . 34
6.2 Covenants of Greiner . . . . . . . . . . . . 34
6.2.1 Conduct of Business Pending
Merger . . . . . . . . . . . . . . 34
6.2.2 Stockholders' Meeting; Proxy
Statement . . . . . . . . . . . . 37
6.2.3 Acquisition Proposals . . . . . . 37
6.2.4 Maintenance of Business . . . . . 38
6.2.5 Access . . . . . . . . . . . . . . 38
6.2.6 Liability Insurance . . . . . . . 39
6.3 Covenants of URS . . . . . . . . . . . . . . 39
6.3.1 Registration Statement . . . . . . 39
6.3.2 Listing Agreement . . . . . . . . 39
ARTICLE 7. CONDITIONS TO CONSUMMATION OF THE MERGER . . 40
7.1 Conditions to Obligations of Greiner . . . . 40
7.1.1 Representations and
Warranties True at Closing . . . . 40
7.1.2 Covenants Performed . . . . . . . 40
7.1.3 Certificate . . . . . . . . . . . 40
7.1.4 Approval of Stockholders . . . . . 40
7.1.5 Opinion of Counsel . . . . . . . . 40
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Page 7 of 424 <PAGE>
7.1.6 Form S-4 . . . . . . . . . . . . . 41
7.1.7 Merger Documents . . . . . . . . . 41
7.1.8 Material Adverse Changes . . . . . 41
7.1.9 HSR Filing . . . . . . . . . . . . 41
7.2 Conditions to Obligations of URS and
the Subsidiary . . . . . . . . . . . . . . . 41
7.2.1 Representations and
Warranties True at Closing . . . . 42
7.2.2 Covenants Performed . . . . . . . 42
7.2.3 Certificate . . . . . . . . . . . 42
7.2.4 Approval of Stockholders . . . . . 42
7.2.5 Opinion of Counsel . . . . . . . . 42
7.2.6 Form S-4 . . . . . . . . . . . . . 43
7.2.7 Merger Documents . . . . . . . . . 43
7.2.8 Material Adverse Changes . . . . . 43
7.2.9 HSR Filing . . . . . . . . . . . . 43
7.2.10 Consents . . . . . . . . . . . . . 43
7.2.11 No Litigation . . . . . . . . . . 43
7.2.12 Credit Agreement . . . . . . . . . 43
ARTICLE 8. ADDITIONAL AGREEMENTS . . . . . . . . . . . 44
8.1 Public Announcements . . . . . . . . . . . . 44
8.2 Confidentiality . . . . . . . . . . . . . . 44
8.3 Additional Agreements . . . . . . . . . . . 44
8.4 Use of Name . . . . . . . . . . . . . . . . 44
8.5 Employee Matters . . . . . . . . . . . . . 44
8.6 Non-Liability of Agents and Stockholders . . 45
8.7 Greiner Engineering, Inc. Performance Plan
and Employee Stock Ownership Plan . . . . . 45
ARTICLE 9. TERMINATION . . . . . . . . . . . . . . . . 46
9.1 Termination . . . . . . . . . . . . . . . . 46
9.2 Effect of Termination and Abandonment . . . 47
9.3 Amendment . . . . . . . . . . . . . . . . . 47
9.4 Extension; Waiver . . . . . . . . . . . . . 47
ARTICLE 10. MISCELLANEOUS . . . . . . . . . . . . . . . 48
10.1 Survival of Representations and Warranties . 48
10.2 Entire Agreement; Modification; Waiver . . . 48
10.3 Counterparts . . . . . . . . . . . . . . . . 48
10.4 Assignment . . . . . . . . . . . . . . . . . 48
10.5 Fees and Expenses . . . . . . . . . . . . . 48
10.6 Notices . . . . . . . . . . . . . . . . . . 49
10.7 Governing Law . . . . . . . . . . . . . . . 50
10.8 Further Action . . . . . . . . . . . . . . . 50
10.9 No Third Party Beneficiary . . . . . . . . . 50
10.10 Effect of Headings . . . . . . . . . . . . . 50
10.11 Severability . . . . . . . . . . . . . . . . 50
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Page 8 of 424 <PAGE>
Agreement and Plan of Merger
----------------------------
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"),
is entered into as of January 10, 1996, by and among GREINER
ENGINEERING, INC., a Nevada corporation ("Greiner"), URS
CORPORATION, a Delaware corporation ("URS"), and URS
ACQUISITION CORPORATION, a Nevada corporation (the
"Subsidiary"). Greiner is sometimes referred to herein as the
"Surviving Corporation" and Greiner and the Subsidiary are
sometimes collectively referred to herein as the "Constituent
Corporations."
RECITALS
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A. Greiner is a corporation duly organized and existing
under the laws of the State of Nevada, having as of the date
hereof authorized capital stock consisting of (i) 20,000,000
shares of common stock, par value $0.50 per share (the "Greiner
Common Stock"), of which as of the date hereof, 4,704,642 are
issued and outstanding, 121,092 are issued and held in
treasury, and 15,174,266 are reserved for issuance, and
(ii) 1,000,000 shares of preferred stock, par value $1.00 per
share, of which no shares are issued and outstanding.
B. URS is a corporation duly organized and existing
under the laws of the State of Delaware, having as of the date
hereof authorized capital stock consisting of (i) 20,000,000
shares of common stock, par value $0.01 per share (the "URS
Common Stock"), of which as of the date hereof, 7,167,591 are
issued and outstanding, 287,000 are issued and held in
treasury, and 12,545,409 are reserved for issuance, and
(ii) 1,000,000 shares of preferred stock, par value $1.00 per
share, of which no shares are issued and outstanding.
C. The Subsidiary is a corporation duly organized and
existing under the laws of the State of Nevada, having as of
the date hereof authorized capital stock consisting of 100
shares of common stock, par value $1.00 per share (the
"Subsidiary Common Stock"), all of which have been issued to,
and are owned by, URS.
D. URS, Greiner and the Subsidiary have determined that
it is advisable that the Subsidiary be merged with and into
Greiner on the terms and conditions set forth herein and
pursuant to the applicable statutes and regulations (the
"Merger").
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Page 9 of 424 <PAGE>
E. The respective boards of directors of Greiner, URS
and the Subsidiary have authorized and approved the execution,
delivery and the performance of this Agreement and the
transactions contemplated hereby, and the board of directors of
Greiner has directed that this Agreement be submitted to the
stockholders of Greiner for consideration of and vote upon the
approval of this Agreement.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained herein, and
subject to the terms and conditions hereof, and intending to be
legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE 1.
THE MERGER
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Section 1.1 MERGER OF THE SUBSIDIARY INTO GREINER.
Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the Nevada Business
Corporation Law set forth in Title 7 of the Nevada Revised
Statues (the "Nevada Law"), at the Effective Time of the Merger
(as defined in Section 1.2 below), the Subsidiary shall be
merged with and into Greiner, and the separate existence of the
Subsidiary shall thereupon cease, and Greiner shall continue
its corporate existence as the surviving corporation of the
Merger under the laws of the State of Nevada under the name of
Greiner Engineering, Inc., and Greiner shall succeed to and
assume all the rights and obligations of the Subsidiary in
accordance with the Nevada Law.
Section 1.2 EFFECTIVE TIME OF THE MERGER. Subject to the
provisions of this Agreement, as soon as practicable after the
Closing Date, the parties shall file articles of merger,
certificate of merger or other appropriate documents (in any
such case, the "Merger Documents"), executed in accordance with
the relevant provisions of the Nevada Law and shall make all
other filings or recordings required under the Nevada Law. The
Merger shall become effective at such time as the Merger
Documents are duly filed with the Secretary of State of the
State of Nevada, or at such other time as the parties hereto
shall agree should be specified in the Merger Documents (the
"Effective Time of the Merger").
Section 1.3 EFFECTS OF THE MERGER. At the Effective Time
of the Merger:
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Page 10 of 424 <PAGE>
(a) the separate corporate existence of the
Subsidiary shall cease and the Subsidiary shall be merged with
and into Greiner, which shall be the Surviving Corporation, and
all of the assets of the Subsidiary shall become the property
of Greiner as the Surviving Corporation of the Merger, subject
to the liabilities of the Subsidiary as of the Effective Time
of the Merger;
(b) the Articles of Incorporation of Greiner, as in
effect immediately prior to the Effective Time of the Merger,
shall be the Articles of Incorporation of the Surviving
Corporation, and may be amended thereafter as provided by law;
(c) the by-laws of Greiner, as in effect immediately
prior to the Effective Time of the Merger, shall be the by-
laws of the Surviving Corporation; such by-laws may be amended
thereafter in accordance with their terms and as provided by
law;
(d) the directors of the Subsidiary immediately
prior to the Effective Time of the Merger shall be the
directors of the Surviving Corporation, each of such directors
to hold office, subject to the applicable provisions of the
Articles of Incorporation and by-laws of the Surviving
Corporation, until the next annual stockholders' meeting of the
Surviving Corporation and until their successors are elected
and duly qualified; if at the Effective Time of the Merger, any
of the foregoing persons shall for any reason be unwilling or
unable to serve, the resulting vacancy shall be filled as
provided in such by-laws;
(e) the officers of Greiner immediately prior to the
Effective Time of the Merger shall be the officers of the
Surviving Corporation, each of such officers to hold office,
subject to the applicable provisions of the Articles of
Incorporation and by-laws of the Surviving Corporation, at the
pleasure of the board of directors of the Surviving Corporation
and until their successors are elected and duly qualified; and
(f) the Surviving Corporation shall possess all the
rights, privileges, immunities, powers and purposes of each of
the Constituent Corporations; and all the property, real,
personal or mixed, including causes of action and every other
asset of each of the Constituent Corporations, shall vest in
the Surviving Corporation without further act or deed. The
Surviving Corporation shall be responsible and liable for all
liabilities and obligations of each of the Constituent
Corporations. No liability or obligation due or to become due,
claim or demand for any cause existing against either of the
Constituent Corporations, or any stockholder, officer or
director thereof, shall be released or impaired by the Merger.
No action or proceeding, whether civil or criminal, then
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Page 11 of 424 <PAGE>
pending by or against the Constituent Corporations, or any
stockholder, officer or director thereof, shall abate or be
discontinued by the Merger, but may be enforced, prosecuted,
settled or compromised as if the Merger had not occurred, or
the Surviving Corporation may be substituted in such action or
special proceeding in place of the Constituent Corporations.
ARTICLE 2.
EFFECT OF MERGER ON CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
-------------------------------
Section 2.1 CONVERSION OF THE GREINER COMMON STOCK.
(a) CONVERSION; MERGER CONSIDERATION. At the
Effective Time of the Merger, each share of the Greiner Common
Stock issued and outstanding immediately prior to the Effective
Time of the Merger shall, by virtue of the Merger, and without
any action on the part of the holder thereof, be converted into
the right to receive (i) 0.298 shares of the URS Common Stock,
and (ii) $13.50 in cash, all of which shall be payable upon the
surrender of the certificate(s) formerly representing such
shares of Greiner Common Stock. The cash and the URS Common
Stock so deliverable is hereinafter collectively referred to as
the "Merger Consideration."
(b) FRACTIONAL SHARES. No fractional shares of the
URS Common Stock will be issued as a result of the Merger. In
lieu of the issuance of any fractional shares of the URS Common
Stock, holders of shares of the Greiner Common Stock who would
otherwise have been entitled to receive a fraction of a share
of the URS Common Stock shall be entitled to receive, from URS,
an amount of cash, without interest, equal to the closing price
of the URS Common Stock as reported on the New York Stock
Exchange on the trading day immediately preceding the Closing
Date as listed in The Wall Street Journal, multiplied by the
-----------------------
fraction of a share of the URS Common Stock to which such
holder would otherwise have been entitled.
(c) OPTIONS. At the Effective Time of the Merger,
all options to purchase Greiner Common Stock (the "Greiner
Options") issued under the 1981 Stock Option Plan of Greiner
Engineering, Inc. (the "1981 Greiner Plan") or under the 1991
Stock Option Plan of Greiner Engineering, Inc. (the "1991
Greiner Plan") which remain outstanding at that time (whether
or not previously exercisable or vested) shall, by virtue of
the Merger, and without any further action on the part of
Greiner or any holder of said Greiner Options, be cancelled.
If, at the Effective Time of the Merger, the Exercise Price per
share with respect to any Greiner Option (whether or not
previously exercisable or vested) so cancelled (the "Exercise
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Page 12 of 424 <PAGE>
Price") is less than the sum of (x) $13.50 per share, plus
(y) 0.298 multiplied by the closing price per share of the URS
Common Stock as reported on the New York Stock Exchange on the
trading day immediately preceding the Closing Date as listed in
The Wall Street Journal (the "Merger Value"), then the holder
-----------------------
of such Greiner Option shall be paid as soon as practicable
following the Closing Date cash in an amount per each share of
Greiner Common Stock subject to such option equal to the
excess, if any, of the Merger Value over the Exercise Price.
Notwithstanding anything to the contrary in this Section
2.1(c), pursuant to the terms of Section 6(b) of the 1981
Greiner Plan and Section 6(b) of the 1991 Greiner Plan,
promptly following execution of this Agreement, Greiner shall
give each holder of the Greiner Options (whether or not
previously exercisable or vested) written notice that such
Greiner Options will be cancelled in connection with the Merger
and, shall permit said holders to exercise their Greiner
Options and purchase Greiner Common Stock pursuant to the terms
of the 1981 Greiner Plan and/or the 1991 Greiner Plan, as the
case may be.
(d) SURRENDER OF CERTIFICATES AND RECEIPT OF
CONSIDERATION.
(1) APPOINTMENT OF EXCHANGE AGENT; EXCHANGE
FUND. As of the Effective Time of the Merger, URS shall
deposit, or shall cause to be deposited with an exchange agent
selected by URS and reasonably satisfactory to Greiner (the
"Exchange Agent"), for the benefit of holders of the Greiner
Common Stock, for exchange in accordance with this Article 2,
(i) certificates representing the number of shares of the URS
Common Stock issuable as part of the Merger Consideration, and
(ii) cash in an amount equal to the aggregate cash component of
the Merger Consideration, and (iii) cash to be paid in lieu of
the issuance of fractional shares (such cash and certificates
for the shares of URS Common Stock are hereinafter referred to
collectively as the "Exchange Fund").
(2) NOTICE TO GREINER STOCKHOLDERS. As soon
as reasonably practicable after the Effective Time of the
Merger, URS shall cause the Exchange Agent to mail to each
holder of record of a certificate or certificates representing
the Greiner Common Stock (A) a letter of transmittal which
shall specify that delivery shall be effected, and risk of loss
and title to the certificates for shares of the Greiner Common
Stock shall pass, only upon delivery of the certificates for
the shares of the Greiner Common Stock to the Exchange Agent,
and shall be in such form and have such other provisions as URS
may reasonably specify, and (B) instructions for use in
effecting the surrender of the certificates for the shares of
the Greiner Common Stock in exchange for the Merger
Consideration.
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Page 13 of 424 <PAGE>
(3) SURRENDER OF GREINER STOCK CERTIFICATES.
Upon surrender of a certificate for shares of the Greiner
Common Stock (a "Greiner Stock Certificate") for cancellation
to the Exchange Agent or to such other agent or agents as may
be appointed by URS, together with such letter of transmittal,
duly executed and completed in accordance with the instructions
thereto, the holder thereof shall be entitled to receive in
exchange therefor the number of whole shares of the URS Common
Stock to which the holder of the Greiner Common Stock is
entitled pursuant to this Article 2 plus that portion of the
Exchange Fund which such holder has the right to receive
pursuant to the provisions of this Section 2.1, after giving
effect to any required withholding tax, and the Greiner Stock
Certificate for the shares of the Greiner Common Stock so
surrendered shall forthwith be cancelled.
(4) LIMITATIONS. Notwithstanding any other
provision of this Agreement, until holders of Greiner Stock
Certificates representing shares of the Greiner Common Stock
have surrendered them for exchange as provided herein, (1) no
dividends or other distributions shall be paid with respect to
any shares represented by such Certificates and no payment for
fractional shares shall be made, and (2) without regard to when
such Greiner Stock Certificates are surrendered for exchange as
provided herein, no interest shall be paid on any dividends or
other distributions or any payment for fractional shares. Upon
surrender of a Greiner Stock Certificate, there shall be paid
to the holder of such Greiner Stock Certificate the amount of
any dividends or other distributions which theretofore became
payable, but which were not paid by reason of the preceding
sentence, with respect to the number of whole shares of URS
Common Stock represented by the Greiner Stock Certificate or
Certificates issued upon such surrender. If any certificate
for URS Common Stock is to be issued in a name other than in
which the Greiner Stock Certificate surrendered in exchange
therefore is registered, it shall be a condition of such
exchange that the person requesting such exchange pay any
transfer or other taxes required by reason of the issuance of
certificates for such shares of URS Common Stock in a name
other than that of the registered holder of the Greiner Stock
Certificate surrendered, or establish to the satisfaction of
Greiner that such tax has been paid or is not applicable.
Certificates of URS Common Stock issued to holders of Greiner
Common Stock issued under a Greiner restricted stock plan shall
bear legends substantially similar to the legends presently on
the Greiner Common Stock Certificates and as required by
applicable law.
(5) PAYMENT. The Exchange Agent shall within
15 business days of receipt of such Greiner Stock Certificate
pay the holder of such Certificate, in immediately available
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Page 14 of 424 <PAGE>
funds, the amount of cash into which the shares theretofore
represented by such Certificate shall have been converted
pursuant to Section 2.1, and the Greiner Stock Certificate so
surrendered shall be cancelled. In the event of a transfer of
ownership of shares of Greiner Common Stock that is not
registered in the transfer records of Greiner, payment may be
made to a person other than the person in whose name the
Certificate so surrendered is registered, if such Certificate
shall be properly endorsed or otherwise be in proper form for
transfer and the person requesting such payment shall pay any
transfer or other taxes required by reason of the payment to a
person other than the registered holder of such Greiner Stock
Certificate or establish to the satisfaction of the Greiner
that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.1, each Greiner
Stock Certificate shall be deemed at any time after the
Effective Time of the Merger to represent only the right to
receive upon such surrender the amount of the Merger
Consideration, without interest, into which the shares
theretofore represented by such Greiner Stock Certificate shall
be converted pursuant to Section 2.1. No interest will be paid
or will accrue on the cash payable upon the surrender of any
Greiner Stock Certificate.
(e) CANCELLATION OF THE GREINER COMMON STOCK. At
the Effective Time of the Merger, all of the authorized and
outstanding shares of the Greiner Common Stock shall be
cancelled and cease to represent any interest in Greiner and
such holders shall cease to have any rights of a stockholder of
Greiner. From and after the Effective Time of the Merger, the
holders of shares of the Greiner Common Stock outstanding
immediately prior to the Effective Time of the Merger as such
holders shall be entitled to receive only the Merger
Consideration. From the Effective Time of the Merger, the
holders of the shares of the Greiner Common Stock which shall
be converted into the URS Common Stock pursuant to Section
2.1(a) shall have all of the rights of holders of the number of
shares of the URS Common Stock into which such Greiner Common
Stock has been converted.
Section 2.2 CONVERSION OF THE SUBSIDIARY COMMON STOCK.
At the Effective Time of the Merger, each share of the
Subsidiary Common Stock outstanding immediately prior to the
Effective Time of the Merger shall be converted into one (1)
share of a newly-created class of $1.00 par value common stock
of the Surviving Corporation.
Section 2.3 CANCELLATION OF TREASURY SHARES. Any share
of the Greiner Common Stock held in the treasury of Greiner at
the Effective Time of the Merger shall be cancelled and retired
at the Effective Time of the Merger and no shares shall be
issuable with respect thereto.
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Section 2.4 WITHHOLDING TAX. The right of any
shareholder to receive the Merger Consideration shall be
subject to and reduced by the amount of any required tax
withholding obligation.
ARTICLE 3.
CLOSING
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Section 3.1 CLOSING; CLOSING DATE. Unless this Merger
Agreement shall have been terminated and the Merger abandoned
pursuant to the provisions of Article 9, a closing ("Closing")
shall take place at the offices of Messrs. Sheppard, Mullin,
Richter & Hampton, Four Embarcadero Center, Suite 1700, San
Francisco, CA 94111, at 10:00 A.M., California time, on the
business day following approval of the Greiner stockholders as
contemplated by Section 6.2.2, or at such other time and place
as may be agreed upon in writing by the parties hereto (the
"Closing Date").
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF GREINER
-----------------------------------------
Except as otherwise disclosed to URS in a letter delivered
to it prior to the execution hereof (which letter shall contain
appropriate references to identify the representations and
warranties herein to which the information in such letter
relates) (the "Greiner Disclosure Letter"), Greiner represents
and warrants to URS and the Subsidiary as follows:
Section 4.1 ORGANIZATION. Each of Greiner and the
Greiner Subsidiaries (as hereinafter defined) is a corporation
duly organized, validly existing, and in good standing under
the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease, and
operate its properties, and to carry on its business as now
being conducted, except where the failure to be so organized,
existing, and in good standing or to have such power and
authority would not have a Greiner Material Adverse Effect (as
defined below). Each of Greiner and the Greiner Subsidiaries
is duly qualified or licensed and in good standing to do
business in each jurisdiction in which the property owned,
leased, or operated by it or the nature of the business
conducted by it makes such qualification necessary, except in
any such jurisdictions where the failure to be so duly
qualified or licensed and in good standing would not have a
Greiner Material Adverse Effect (defined below) on the Business
Condition (defined below) of Greiner. For purposes of this
Agreement: (a) "Greiner Material Adverse Effect" means, when
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used in connection with Greiner, any change or effect that is
materially adverse to the Business Condition of Greiner, other
than changes or effects resulting from (i) changes attributable
to conditions affecting the engineering business generally,
(ii) changes in general economic conditions, or (iii) changes
attributable to the announcement or pendency of the Merger; and
(b) "Business Condition" with respect to an entity shall mean
the business, financial condition, results of operations, or
assets (without giving effect to the consequences of the
transactions contemplated by this Agreement) of such entity and
its Subsidiaries taken as a whole.
Section 4.2 CAPITALIZATION. The authorized capital stock
of Greiner consists of 20,000,000 shares of Greiner Common
Stock, par value $0.50 per share, and 1,000,000 shares of
preferred stock, par value $1.00 per share (the "Greiner
Preferred Stock"). As of the date hereof, (i) 4,704,642 shares
of Greiner Common Stock are issued and outstanding,
(ii) options to acquire 377,650 shares of Greiner Common Stock
are outstanding under all stock option plans and agreements of
Greiner, (iii) 737,300 shares of Greiner Common Stock
(including shares of Greiner Common Stock issuable upon
exercise of the options identified in clause (ii) above) are
reserved for issuance pursuant to all employee plans of
Greiner, and (iv) there are no shares of Greiner Preferred
Stock outstanding. All of the issued and outstanding shares of
Greiner Common Stock are validly issued, fully paid and
nonassessable and free of preemptive rights. Except as set
forth above or as specified in Section 4.2 of the Greiner
Disclosure Letter, as of the date of this Agreement there are
no shares of capital stock of Greiner issued or outstanding or
any options, warrants, subscriptions, calls, rights,
convertible securities or other agreements or commitments
obligating Greiner to issue, transfer, sell, redeem, repurchase
or otherwise acquire any shares of its capital stock or
securities. Except as provided in this Agreement or as set
forth in Section 4.2 of the Greiner Disclosure Letter, after
the Effective Time of the Merger, Greiner will have no
obligation to issue, transfer or sell any shares of its capital
stock pursuant to any employee benefit plan or otherwise.
Section 4.3 SUBSIDIARIES. Section 4.3 of the Greiner
Disclosure Letter identifies each corporation or other entity
of which Greiner, directly or indirectly, owns or controls
voting securities or other interests which are sufficient to
elect a majority of the board of directors or others performing
similar functions of such corporation or other entity (a
"Greiner Subsidiary") and sets forth for each Greiner
Subsidiary: (i) its name and jurisdiction of incorporation or
organization; (ii) its authorized capital stock; and (iii) the
number of issued and outstanding shares of capital stock.
Greiner owns directly or indirectly each of the outstanding
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shares of capital stock (or other ownership interests having by
their terms ordinary voting power to elect a majority of
directors or others performing similar functions with respect
to such Greiner Subsidiary) of each of the Greiner
Subsidiaries. Each of the outstanding shares of capital stock
of each of the Greiner Subsidiaries is duly authorized, validly
issued, fully paid and nonassessable. Each of the outstanding
shares of capital stock of each Greiner Subsidiary is owned,
directly or indirectly, by Greiner, free and clear of all
liens, pledges, security interests, claims, or other
encumbrances of any nature whatsoever ("Liens"). There are not
now, and at Closing there will not be, (a) any issued or
outstanding securities convertible into or exchangeable for, or
any options, warrants, calls, subscriptions or other rights
(preemptive or otherwise) to acquire, any shares of capital
stock of any of the Greiner Subsidiaries; or (b) any
agreements or contractual commitments obligating Greiner, or
restricting Greiner's rights, to transfer, sell, or vote, the
capital stock of the Greiner Subsidiaries owned by it,
directly or indirectly.
Section 4.4 MATERIAL INVESTMENTS. Except as set forth in
Section 4.4 of the Greiner Disclosure Letter, Greiner does not
directly or indirectly own any equity or similar interest in,
or any interest convertible into or exchangeable or exercisable
for any equity or similar interest in, any corporation (other
than a Greiner Subsidiary), partnership, joint venture or other
business association or entity that is material to Greiner.
With respect to those entities indicated on Section 4.4 of the
Greiner Disclosure Letter, Greiner has heretofore delivered to
URS financial statements (audited to the extent available) and
interim unaudited financial statements of each of such entities
(through the most recently concluded fiscal quarter for each of
such persons) and, to the best knowledge of Greiner, such
financial statements fairly present, in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis (except as may be indicated in the notes
thereto or in Section 4.4 of the Greiner Disclosure Letter),
the financial condition of each thereof as at and the results
of operations for the periods so indicated (subject to normal
year-end adjustments in the case of the interim unaudited
financial statements), and Greiner's disclosures with respect
to its investment in each such entities otherwise included in
the Greiner SEC Reports (as defined below) do not contain any
untrue statements of material fact or omit to state any
material fact required to be stated therein or which are
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Except as set forth in Section 4.4 of the Greiner Disclosure
Letter, Greiner (or, as indicated thereon, a Greiner
Subsidiary) has good and marketable title to the securities
evidencing its investment in the entities indicated in Section
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4.4 of the Greiner Disclosure Letter, which have been validly
issued and are fully paid and nonassessable and are held by
Greiner or a Greiner Subsidiary free and clear of any Lien,
restraint on alienation, or any other restriction with respect
of the transferability or assignability thereof (other than
restrictions on transfer imposed by Federal or state securities
laws).
Section 4.5 AUTHORITY RELATIVE TO THIS AGREEMENT.
Greiner has all requisite corporate power and authority to
enter into this Agreement and subject, in the case of this
Agreement, to approval of this Agreement by the stockholders of
Greiner and to the consents and approvals set forth in Section
4.6 below, to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement by
Greiner and the consummation by Greiner of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of Greiner, including the
unanimous approval of the Board of Directors of Greiner, and no
other corporate proceedings on the part of Greiner are
necessary to authorize this Agreement or the transactions
contemplated hereby (except for approval by the stockholders of
Greiner). This Agreement has been duly and validly executed
and delivered by Greiner and constitutes a valid and binding
agreement of Greiner, enforceable against Greiner in accordance
with its terms, except that such enforceability may be subject
to (i) bankruptcy, insolvency, reorganization or other similar
laws relating to enforcement of creditors' rights generally,
and (ii) general equitable principles.
Section 4.6 CONSENTS AND APPROVALS; NO VIOLATIONS.
Except for applicable requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"),
the Securities Act of 1933, as amended (the "Securities Act"),
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (the HSR Act, Securities Act and Exchange Act,
collectively, the "Governmental Requirements"), state or
foreign laws relating to takeovers, if applicable, state
securities or blue sky laws, state and local laws and
regulations relating to licensing, and the filing of the
Documents of Merger as required by the Nevada Law, no filing
with, and no permit, authorization, consent or approval of, any
court or tribunal or administrative, governmental or regulatory
body, agency or authority ("Government Entity") is necessary
for the execution, delivery and performance of this Agreement
by Greiner or the transactions contemplated by this Agreement.
Neither the execution, delivery nor performance of this
Agreement by Greiner, nor the consummation by Greiner of the
transactions contemplated hereby, nor compliance by Greiner
with any of the provisions hereof, will (i) conflict with or
result in any breach of any provisions of the Articles of
Incorporation or By-Laws of Greiner or the Articles or
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Certificate of Incorporation, as the case may be, or By-Laws of
any of the Greiner Subsidiaries, (ii) except as set forth in
Section 4.6(ii) of the Greiner Disclosure Letter, result in a
violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, acceleration, vesting,
payment, exercise, suspension or revocation) under, any of the
terms, conditions or provisions of any note, bond, mortgage,
deed of trust, security interest, indenture, license, contract,
agreement, plan or other instrument or obligation to which
Greiner or any of the Greiner Subsidiaries is a party or by
which any of them or any of their properties or assets may be
bound or affected, (iii) except as set forth in Section
4.6(iii) of the Greiner Disclosure Letter, violate any order,
writ, injunction, decree, statute, rule or regulation
applicable to Greiner, any Greiner Subsidiary or any of their
properties or assets, (iv) except as set forth in Schedule
4.6(iv) of the Greiner Disclosure Letter, result in the
creation or imposition of any Lien on any asset of Greiner or
any Greiner Subsidiary, or (v) except as set forth in Section
4.6(v) of the Greiner Disclosure Letter, cause the suspension
or revocation of any certificates of need, accreditation,
registrations, licenses, permits and other consents or
approvals of governmental agencies or accreditation
organizations, except in the case of clauses (ii), (iii), (iv)
and (v) for violations, breaches, defaults, terminations,
cancellations, accelerations, creations, impositions,
suspensions or revocations which would not individually or in
the aggregate have a Greiner Material Adverse Effect.
Section 4.7 GREINER SEC REPORTS AND FINANCIAL STATEMENTS.
Greiner has delivered or made available to URS true and
complete copies of each registration statement, report and
proxy or information statement, including, without limitation,
its Annual Reports to Stockholders incorporated in material
part by reference in certain of such reports, in the form
(including exhibits and any amendments thereto) required to be
filed with the Securities and Exchange Commission ("SEC") since
January 1, 1992 (collectively, the "Greiner SEC Reports").
Except as set forth in Section 4.7 of the Greiner Disclosure
Letter, as of the respective dates such Greiner SEC Reports
were filed or, if any such Greiner SEC Reports were amended, as
of the date such amendment was filed, each of the Greiner SEC
Reports (i) complied in all material respects with all
applicable requirements of the Securities Act and the Exchange
Act, and the rules and regulations promulgated thereunder, and
(ii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Each of the audited consolidated financial statements and
unaudited consolidated interim financial statements of Greiner
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(including any related notes and schedules) included (or
incorporated by reference) in its Annual Reports on Form 10-K
for each of the three fiscal years ended December 31, 1992,
1993 and 1994 and Quarterly Reports on Form 10-Q for all
interim periods subsequent thereto (the "Greiner Financial
Statements") fairly present, in conformity with GAAP applied on
a consistent basis (except as may be indicated in the notes
thereto), the consolidated financial position of Greiner and
the Greiner Subsidiaries as of its date and the consolidated
results of operations and cash flows for the period then ended
(subject to normal year-end adjustments in the case of any
unaudited interim financial statements). There has been no
change in Greiner's accounting policies or the methods of
making accounting estimates or changes in estimates that are
material to the Greiner Financial Statements, except as
described in the notes thereto.
Section 4.8 INFORMATION SUPPLIED. None of the
information supplied or to be supplied by Greiner or the
Greiner Subsidiaries, auditors, attorneys, financial advisors,
or other consultants or advisors for inclusion in (a) the
registration statement on Form S-4, and any amendment thereto,
to be filed under Securities Act with the SEC by URS in
connection with the issuance of the URS Common Stock in or as a
result of the Merger (the "Form S-4"), or (b) the proxy
statement and any amendment or supplement thereto to be
distributed in connection with Greiner's meeting of
stockholders to vote upon this Agreement and the transactions
contemplated hereby (the "Proxy Statement" and, together with
the Form S-4, the "Proxy Statement/Form S-4"), will: (i) in the
case of the Proxy Statement and any amendment or supplement
thereto, (1) at the time of the mailing of the Proxy Statement
and any amendments or supplements thereto, and (2) at the time
of Greiner's meeting of stockholders, and (ii) in the case of
the Form S-4, as amended or supplemented, (x) at the time it
becomes effective, (y) at the time of any post-effective
amendment thereto, and (z) at the time of the meeting of the
stockholders of Greiner, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. Greiner agrees to correct as promptly as
practicable any such information provided by it that shall have
become false or misleading in any material respect and to take
all steps necessary to file with the SEC and have declared
effective or cleared by the SEC any amendment or supplement to
the Proxy Statement so as to correct the same and to cause the
Proxy Statement as so corrected to be disseminated to Greiner's
stockholders to the extent required by applicable law. The
Proxy Statement/Form S-4 shall comply as to form in all
material respects with the provisions of all applicable laws,
including the provisions of the Exchange Act and the rules and
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regulations of the SEC thereunder, except that no
representation is made by Greiner with respect to information
supplied by URS specifically for inclusion therein.
Section 4.9 ABSENCE OF MATERIAL ADVERSE AND OTHER
CHANGES. Except as contemplated by this Agreement, and except
as set forth in Section 4.9 of the Greiner Disclosure Letter,
since September 30, 1995, Greiner and the Greiner Subsidiaries
have conducted their business in the ordinary course,
consistent with past practices, and there has not been:
(a) any event or occurrence that has resulted in a Greiner
Material Adverse Effect, or any development or combination of
developments of which Greiner has knowledge that is reasonably
likely, in Greiner's commercially reasonable judgment, to
result in a Greiner Material Adverse Effect, (b) any
declaration, setting aside or payment of any dividend or other
capital distributions in respect of any of its capital stock,
except for regular cash dividends to holders of Greiner Common
Stock in amounts and at times consistent with prior practice,
or any redemption or repurchase or other acquisition of any
shares of its capital stock, (c) any increase in the regular
compensation of any of the officers or employees of Greiner or
the Greiner Subsidiaries, except such increases as have been
granted in the ordinary course of business in accordance with
its customary practices (which shall include normal periodic
performance reviews, promotions and related compensation
increases), (d) any incurrence, assumption or guarantee by
Greiner or any of the Greiner Subsidiaries of any indebtedness
for borrowed money other than in the ordinary course of
business consistent with past practices, (e) any transaction or
commitment made, or any contract or agreement entered into, by
Greiner or any of the Greiner Subsidiaries (including the
acquisition or disposition of any assets) or any relinquishment
by Greiner or any of the Greiner Subsidiaries of any contract
or other right, in either case, material to Greiner's business
taken as a whole, other than transactions and commitments in
the ordinary course of business consistent with past practices
and those contemplated by this Agreement, (f) any change in any
method of accounting or accounting practice by Greiner or any
of the Greiner Subsidiaries, except for any such change after
the date hereof required by reason of a mandatory concurrent
change in GAAP, (g) any loss or damage to the properties or
assets of Greiner or the Greiner Subsidiaries which has
resulted or is reasonably likely to result in a Greiner
Material Adverse Effect, or (h) any agreement or any commitment
to take any of the actions described in this Section 4.9.
Section 4.10 LITIGATION. Except for litigation disclosed
in the notes to the financial statements included in the
Greiner SEC Reports or as set forth in Section 4.10 of the
Greiner Disclosure Letter, there is no suit, action or
proceeding (whether at law or equity, before or by any Federal,
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state or foreign court, tribunal, commission, board, agency or
instrumentality, or before any arbitrator) pending or, to the
best knowledge of Greiner, threatened against or affecting
Greiner or any of the Greiner Subsidiaries, the outcome of
which, in the reasonable judgment of Greiner, is likely
individually or in the aggregate to have a Greiner Material
Adverse Effect, or which challenges the validity of this
Agreement or seeks to prevent, enjoin, materially alter or
materially delay the transactions contemplated hereby, nor is
there any judgment, decree, injunction, rule or order of any
court, governmental department, commission, agency,
instrumentality or arbitrator outstanding against Greiner or
any of the Greiner Subsidiaries having, or which, insofar as
can reasonably be foreseen, in the future may have, any such
effect.
Section 4.11 ABSENCE OF UNDISCLOSED LIABILITIES. Except
for liabilities or obligations which are accrued or reserved
against in the Greiner Financial Statements (or reflected in
the notes thereto) or which were incurred after September 30,
1995 in the ordinary course of business and consistent with
past practices or in connection with the transactions
contemplated by this Agreement, Greiner and the Greiner
Subsidiaries do not have any liabilities or obligations
(whether absolute, accrued, contingent or otherwise) of a
nature required by GAAP to be reflected in a consolidated
balance sheet (or reflected in the notes thereto).
Section 4.12 NO DEFAULT. Except as set forth in
Section 4.12 of the Greiner Disclosure Letter, neither Greiner
nor any of the Greiner Subsidiaries is in violation or breach
of, or default under (and no event has occurred which with
notice or the lapse of time or both would constitute a
violation or breach of, or default under) any term, condition
or provision of (a) its Articles or Certificate of
Incorporation, as the case may be, or By-Laws, (b) any note,
bond, mortgage, deed of trust, security interest, indenture,
license, contract, agreement, plan, lease, commitment or other
instrument or obligation to which Greiner or any of the Greiner
Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound or affected, (c) any order,
writ, injunction, decree, statute, rule or regulation
applicable to Greiner or any of the Greiner Subsidiaries or any
of their properties or assets, or (d) any certificate of need,
accreditation, registration, license, permit and other consent
or approval of governmental agencies or accreditation
organization, except in the case of clauses (b), (c) and (d)
above for violations, breaches or defaults which would not
individually or in the aggregate have a Greiner Material
Adverse Effect.
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Section 4.13 PROPERTIES, LIENS, ETC. Greiner and the
Greiner Subsidiaries own all of their tangible and intangible
property, real and personal, free and clear of any Liens,
except for statutory mechanics' and materialmens' liens, liens
for current taxes not yet delinquent, and liens and
encumbrances which do not confer upon the secured parties
rights to property which, if exercised upon default, would have
a Greiner Material Adverse Effect. All plants, structures and
material equipment owned or leased by Greiner or the Greiner
Subsidiaries and used in the operation of their business are in
satisfactory condition and repair for the requirements of such
business as presently conducted. Neither Greiner nor any of
the Greiner Subsidiaries have received notice, or have
knowledge of, any pending, threatened or contemplated
condemnation proceeding, or of any sale or other disposition in
lieu of condemnation, affecting any real property owned or
leased by Greiner or any of the Greiner Subsidiaries.
Section 4.14 TAXES. Except as set forth in Section 4.14
of the Greiner Disclosure Letter:
(a) Greiner and each of the Greiner Subsidiaries has
(i) timely filed (or has had timely filed on its behalf) or
will cause to be timely filed all material Tax Returns (as
defined below) required by applicable law to be filed by any of
them for tax years ended prior to the date of this Agreement
and all such Tax Returns and amendments thereto are or will be
true, complete, and correct in all material respects, (ii) has
paid (or has had paid on its behalf) all Taxes due or has
properly accrued or reserved for all such Taxes for such
periods, and (iii) has accrued for all Taxes for periods
subsequent to the periods covered by such Tax Returns.
(b) There are no material liens for Taxes upon the
assets of Greiner or any of the Greiner Subsidiaries, except
liens for Taxes not yet due.
(c) There are no material deficiencies or
adjustments for Taxes that have been proposed or assessed by
any Tax Authority (as defined below) against Greiner or any of
the Greiner Subsidiaries and which remain unpaid.
(d) The Federal income tax returns of Greiner and
each of the Greiner Subsidiaries have been examined by the
Internal Revenue Service for all past taxable years and periods
to and including the years set forth in Section 4.14 of the
Greiner Disclosure Letter, and all material deficiencies
finally assessed as a result of such examinations have been
paid. Section 4.14 of the Greiner Disclosure Letter sets forth
(i) all taxable years and periods of Greiner and the Greiner
Subsidiaries that are presently under Audit (as defined below)
or in respect of which Greiner or any of the Greiner
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Subsidiaries has been notified in writing by the relevant Tax
Authority that it will be Audited, (ii) the taxable years of
Greiner and the Greiner Subsidiaries in respect of which the
statutory period of limitations for the assessment of Federal,
state and local income or franchise Taxes has expired, and
(iii) all waivers extending the statutory period of limitation
applicable to any material Tax Return filed by Greiner or any
of the Greiner Subsidiaries for any taxable period ending prior
to the date of this Agreement.
(e) Prior to the date hereof, Greiner and the
Greiner Subsidiaries have disclosed all material Tax sharing,
Tax indemnity, or similar agreements to which Greiner or any of
the Greiner Subsidiaries is a party to, is bound by, or has any
obligation or liability for Taxes.
(f) As used in this Agreement, (i) "Audit" shall
mean any audit, assessment of Taxes, other examination by any
Tax Authority, proceeding or appeal of such proceeding relating
to Taxes, (ii) "Taxes" shall mean all Federal, state, local and
foreign taxes, and other assessments of a similar nature
(whether imposed directly or through withholding), including
any interest, additions to tax, or penalties applicable
thereto, (iii) "Tax Authority" shall mean the Internal Revenue
Service and any other domestic or foreign governmental
authority responsible for the administration of any Taxes, and
(iv) "Tax Returns" shall mean all Federal, state, local and
foreign tax returns, declarations, statements, reports,
schedules, forms and information returns and any amended Tax
Return relating to Taxes.
Section 4.15 BENEFIT PLANS.
(a) Section 4.15 of the Greiner Disclosure Letter lists
each Greiner Plan. With respect to each of the Greiner Plans,
Greiner has heretofore delivered or made available to URS true
and complete copies of each of the following documents: (i) a
copy of each written plan (including all amendments thereto) or
a description of each unwritten plan; (ii) a copy of the annual
report, if required under ERISA, with respect to each Greiner
Plan for the last three years; (iii) a copy of the actuarial
report, if required under ERISA, with respect to each Greiner
Plan for the last three years and any interim actuarial reports
or calculations provided by the actuary since the date of the
most recent annual actuarial report; (iv) the most recent
summary plan description and all succeeding summaries of
material modifications for each Greiner Plan for which a
summary plan description is required; (v) if the Greiner Plan
is funded through a trust or any third party funding vehicle, a
copy of the trust or other funding agreement (including all
amendments thereto) and the latest financial statements
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thereof; and (vi) the most recent determination letter issued
with respect to each Qualified Greiner Plan. Each of the
Greiner Plans has been operated and administered in all
material respects in accordance with their terms and with all
applicable laws, including Federal and state securities laws.
Each Greiner Plan intended to be qualified under Section 401(a)
of the Code is so qualified and has received a favorable
determination letter from the Internal Revenue Service with
respect to such qualification, its related trust has been
determined to be exempt from taxation under Section 501(a) of
the Code and nothing has occurred since the date of such letter
that would adversely affect such qualification or exemption.
(b) Section 4.15 of the Greiner Disclosure Letter lists
each Greiner Benefit Arrangement. With respect to each of the
Greiner Benefit Arrangements, Greiner has heretofore delivered
to or made available to URS true and complete copies of each
written plan (including all amendments thereto) or a
description of each unwritten plan. Each Greiner Benefit
Arrangement has been maintained in substantial compliance with
its terms and with the requirements prescribed by any and all
statutes, orders, rules, and regulations, including, without
limitation, ERISA and the Code, that are applicable to such
Greiner Benefit Arrangement, including Federal and state
securities laws.
(c) Neither Greiner nor the Greiner Subsidiaries nor any
of their ERISA Affiliates has been involved in any transaction,
taken any action, or failed to take any action that could cause
Greiner or the Greiner Subsidiaries to be subject to any
liability that would likely cause a Greiner Material Adverse
Effect. No fiduciary of any Greiner Plan or Greiner Benefit
Arrangement has taken any action that would result in such
fiduciary being liable for the payment of damages under ERISA
Section 409 and that would result in any material liability for
Greiner, the Greiner Subsidiaries or URS.
(d) Except with respect to contributions to Greiner Plans
under Section 412 that are current and not past due, neither
Greiner nor the Greiner Subsidiaries has incurred (directly or
indirectly) prior to the Closing any current obligation to pay
(i) any liability under Title IV of ERISA or (ii) any liability
under Section 412 of the Code that remains unpaid at the date
of signing of this Agreement. There is no "unfunded pension
liability," i.e., excess of the value of benefits earned to
date over assets, with respect to Employee Benefit Plans
subject to Title IV of ERISA. All premiums owed to the Pension
Benefit Guaranty Corporation with respect to any Employee
Benefit Plan subject to Title IV have been paid.
(e) None of Greiner, the Greiner Subsidiaries, or their
ERISA Affiliates is making or accruing an obligation to make
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contributions or has, on or after January 1, 1980, made or
accrued an obligation to make contributions to a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA.
(f) Full payment has been made of all amounts that
Greiner and the Greiner Subsidiaries are required to pay as
contributions to the Employee Benefit Plans as of the last day
of the most recent fiscal year of each of the plans ended prior
to the date of this Agreement.
(g) No Greiner Plan or Greiner Benefit Arrangement
provides or ever provided benefits, including without
limitation, death or medical benefits (whether or not insured
and whether or not funded), with respect to current or former
employees of Greiner and the Greiner Subsidiaries beyond their
retirement or other termination of service (other than
(i) coverage mandated by applicable law, (ii) death benefits or
retirement benefits under any "employee pension benefit plan,"
as that term is defined in Section 3(2) of ERISA,
(iii) deferred compensation benefits accrued as liabilities on
the books of Greiner and disclosed heretofore to URS, or
(iv) benefits the full cost of which are borne by the current
or former employee (or his or her beneficiary)). The
consummation of the transactions contemplated hereby will not
(i) entitle any current or former employee of Greiner or the
Greiner Subsidiaries to severance pay, unemployment
compensation or any similar payment, or (ii) accelerate the
time of payment or vesting, or increase the amount of any
compensation due to any such employee or former employee.
(h) With respect to Greiner Plans and Greiner Benefit
Arrangements, all reports, forms, and other documents required
to be filed with any governmental authority or distributed to
plan participants (including, without limitation, summary plan
descriptions, Forms 5500, and summary annual reports) have been
timely filed (if applicable) and distributed (if applicable)
and were accurate.
(i) There are no pending, threatened, or anticipated
claims (other than routine claims for benefits) by, on behalf
of, or against any Greiner Plans or Greiner Benefit
Arrangements. No Greiner Plans or Greiner Benefit Arrangements
are presently under audit or examination (nor has notice been
received of a potential audit) by the Internal Revenue Service,
the Department of Labor, or PBGC, nor are there any matters
pending with respect to any Greiner Plan with the Internal
Revenue Service under its Voluntary Compliance Resolution
program, its Closing Agreement Program, or other similar
programs.
(j) No "prohibited transaction," as such term is defined
in Code Section 4975 and ERISA Section 406, has occurred with
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respect to any Greiner Plan or Greiner Benefit Arrangement that
could subject such plan, any fiduciary thereof, Greiner, the
Greiner Subsidiaries or URS to a material penalty for such
prohibited transaction imposed by ERISA Section 502 or a
material tax imposed by Code Section 4975.
(k) Any bonding required by applicable provisions of
ERISA with respect to any Greiner Plan or Greiner Benefit
Arrangement has been obtained and is in full force and effect.
(l) For purposes of this Section 4.15:
(1) "Greiner Benefit Arrangement" means each
employment, severance, or other similar contract, arrangement,
or policy and each plan or arrangement (written or oral, formal
or informal) providing for insurance coverage (including any
self-insured arrangements), cafeteria benefits under Section
125 of the Code, fringe benefits (including but not limited to
paid holidays, personal leave, employee discount, educational
benefit, or similar programs), workers' benefits, vacation
benefits, severance benefits, disability benefits, death
benefits, retirement benefits, deferred compensation,
profit-sharing, bonuses, stock options, stock purchase, phantom
stock, stock appreciation or other forms of incentive
compensation or postretirement insurance or health benefits,
compensation or benefits that (i) is not a Greiner Plan, (ii)
is or has been entered into, maintained, or contributed to by
Greiner or its ERISA Affiliates, and (iii) covers, or within
the last five years covered and has further or continuing
obligations, any employee of Greiner or any Greiner Subsidiary.
(2) "Greiner Plan" means any Employee Benefit
Plan or "multiemployer plan" as defined in Section 4001(a)(3)
of ERISA (a) maintained or contributed to by or on behalf of
Greiner or any Greiner Subsidiary, whether currently or within
the six years prior to the Closing Date, or (b) in which any
employee of Greiner or any Greiner Subsidiary has participated,
as an employee of Greiner or any Greiner Subsidiary, within the
six years prior to the Closing Date, or under which any such
employee has accrued and remains entitled to any benefit.
(3) "Employee Benefit Plan" means any deferred
compensation, retirement, severance, health, or other plan or
program constituting an "employee benefit plan" as defined in
Section 3(3) of ERISA maintained or previously maintained for
current or former employees of Greiner or the Greiner
Subsidiaries, or any ERISA Affiliate of Greiner or the Greiner
Subsidiaries or in which any such employees participate or
participated, other than a Multiemployer Plan.
(4) "ERISA" means the Employee Retirement
Income Security Act of 1974, as amended, and all regulations
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and published interpretations promulgated thereunder, as in
effect from time to time.
(5) "ERISA Affiliate" means each person (as
defined in Section 3(9) of ERISA) that, together with Greiner
or a Greiner Subsidiary, would be treated as a single employer
under Section 4001(b) of ERISA or that would be deemed to be a
member of the same "controlled group" within the meaning of
Section 414(b), (c), (m), and (o) of the Code (provided,
however, that when the subject of the provision is a
Multiemployer Plan only subsections (b) and (c) of Section 414
shall be taken into account).
Section 4.16 EMPLOYMENT MATTERS; LABOR RELATIONS.
(a) Section 4.16 of the Greiner Disclosure Letter
sets forth a true and complete list of the names,
classifications, dates of hire and base compensation for the
year ending December 31, 1995, of each employee of Greiner and
the Greiner Subsidiaries whose base compensation exceeds
$75,000 per annum.
(b) With respect to current or former employees of
Greiner and the Greiner Subsidiaries,
(i) Each of Greiner and the Greiner
Subsidiaries is in substantial compliance with all applicable
laws respecting employment and employment practices, and
occupational safety and health, except for such violations, if
any, that in the aggregate have not had and would not have a
Greiner Material Adverse Effect. There is no charge or
compliance action pending or threatened against or with respect
to Greiner or any of the Greiner Subsidiaries before the Equal
Employment Opportunity Commission or any state, local, or
foreign agency responsible for the prevention of unlawful
employment practices as to which there is a reasonable
likelihood of adverse determination. None of Greiner nor any
of the Greiner Subsidiaries has received notice of the intent
of any Federal, state, local or foreign agency responsible for
the enforcement of labor or employment laws to conduct an
investigation, and, to Greiner's knowledge, no such
investigation is in progress.
(ii) The employees of Greiner and the Greiner
Subsidiaries are not represented by any labor union, nor are
there any collective bargaining agreements or any other types
of agreements with labor unions otherwise in effect with
respect to such employees, nor are any collective bargaining
agreements currently being negotiated, and, to Greiner's
knowledge, no union organizational campaign is in progress.
None of Greiner or the Greiner Subsidiaries is engaged in any
unfair labor practices as defined in the National Labor
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Relations Act or other applicable law, ordinance, or
regulation. There is no unfair labor practice charge or
complaint against any of Greiner or the Greiner Subsidiaries
pending or, to Greiner's knowledge, threatened before the
National Labor Relations Board. There is no labor strike,
lockout, slow-down or work stoppage pending or threatened
against Greiner or any of the Greiner Subsidiaries. None of
Greiner and the Greiner Subsidiaries has experienced any
significant work stoppage or been party to any proceedings
before the National Labor Relations Board for the past three
years.
Section 4.17 INTELLECTUAL PROPERTY.
(a) Except as set forth in Section 4.17 of the
Greiner Disclosure Letter, and except to the extent that the
inaccuracy of any of the following (or the circumstances giving
rise to such inaccuracy), individually and in the aggregate,
would not have a Greiner Material Adverse Effect:
(i) Greiner and the Greiner Subsidiaries own,
or are licensed or otherwise have the right to use (in each
case, clear of any lien or encumbrance of any kind) all
Intellectual Property (as defined below) that in any material
respect is used or proposed to be used in the business of
Greiner and the Greiner Subsidiaries.
(ii) No claims are pending, or to the knowledge
of Greiner, threatened that Greiner or any of the Greiner
Subsidiaries is infringing on or otherwise violating the rights
of any person with regard to any Intellectual Property owned by
and/or licensed to Greiner or the Greiner Subsidiaries.
(iii) To the knowledge of Greiner, no person is
infringing on or otherwise violating any right of Greiner or
any Greiner Subsidiary with respect to any Intellectual
Property owned by and/or licensed to Greiner or the Greiner
Subsidiaries, PROVIDED, that the foregoing representation is
qualified to the extent of publicly known problems of general
applicability with respect to software piracy and copyright
protection.
(iv) None of the former or current members of
management or key personnel of Greiner or any Greiner
Subsidiary, including all former and current employees, agents,
consultants and contractors who have contributed to or
participated in the conception and development of designs,
computer software or other Intellectual Property of Greiner or
the Greiner Subsidiaries, has asserted in writing any claim
against Greiner or any of the Greiner Subsidiaries in
connection with the involvement of such persons in the
conception and development of any design, computer software or
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other Intellectual Property, and no such claim, to the
knowledge of Greiner, has been threatened.
(v) The execution and delivery of this
Agreement, compliance with its terms and the consummation of
the transactions contemplated hereby do not and will not
conflict with or result in any violation or default (with or
without notice or the lapse of time) or give rise to any right,
license or encumbrance relating to the Intellectual Property,
or any right of termination, cancellation, or acceleration of
any material Intellectual Property right or obligation.
(b) For purposes of this Agreement, "Intellectual
Property" means (a) trademarks (registered on unregistered),
service marks, brand names, certification marks, trade dress,
assumed names, trade names and other indications of origin, the
goodwill associated with the foregoing and registrations in any
jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification
or renewal of any such registration or application;
(b) inventions, discoveries and ideas, whether patented,
patentable or not in any jurisdiction; (c) nonpublic
information, trade secrets and confidential information and
rights in any jurisdiction to limit the use or disclosure
thereof by any person; (d) writings and other works, whether
copyrighted, copyrightable or not in any jurisdiction;
(e) registration or applications for registration of copyrights
in any jurisdiction, and any renewals or extensions thereof;
(f) any similar intellectual property or proprietary rights and
computer programs and software (including source code, object
code and data); (g) licenses, immunities, covenants not to sue
and the like relating to the foregoing; and (h) any claims or
causes of action arising out of or related to any infringement
or misappropriation of any of the foregoing.
(c) Except for the name "Greiner" and the Greiner
logo, there are no (i) material domestic and foreign registered
trademarks, registered copyrights and patents, and applications
for registration of any of the foregoing; (ii) material trade
names, service marks, service names, logos and assumed names
which are owned by Greiner or any of the Greiner Subsidiaries,
as the case may be, and that are used or proposed to be used in
the business of Greiner and the Greiner Subsidiaries as
currently conducted; or (iii) material licenses and other
agreements to which Greiner or any Greiner Subsidiary is a
party and pursuant to which Greiner is authorized to use any
Intellectual Property. To the knowledge of Greiner, all
registered Intellectual Property has been validly issued or
registered and is subsisting. Neither Greiner nor the Greiner
Subsidiaries have taken or omitted to take any act which act or
omission might have the effect of waiving or impairing any of
the rights of Greiner to practice and enforce any patent, or to
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use and enforce any trademark or copyright listed on
Section 4.17 of the Greiner Disclosure Letter.
Section 4.18 INSURANCE. Section 4.18 of the Greiner
Disclosure Letter contains a complete and correct list and
accurate summary description of all insurance policies and
material completion bonds (including, without limitation,
professional liability coverage) maintained by or on behalf of
or covering Greiner and the Greiner Subsidiaries, their assets
or operations, or the conduct of their business. Greiner has
made available to URS complete and correct copies of all the
declaration sheets or binders (if declaration sheets are not
yet issued) relating to such policies and bonds. Except as
noted on Section 4.18 of the Greiner Disclosure Letter, all
such policies and bonds are in full force and effect, no
notices of cancellation or nonrenewal have been received with
respect thereto, and all premiums due thereon have been paid.
Greiner and the Greiner Subsidiaries have complied in all
material respects with the provisions of such policies and
bonds. Such policies and bonds are of the type and in amounts
customarily carried by persons conducting businesses similar to
the business conducted by Greiner and the Greiner Subsidiaries.
Section 4.19. COMPLIANCE WITH APPLICABLE LAW. Greiner
and the Greiner Subsidiaries are not in violation of, or to
Greiner's knowledge, are neither under investigation with
respect to nor have been threatened to be charged with or given
notice of any violation of, any applicable laws, ordinances,
rules and regulations of any court, administrative agency or
commission or other governmental authority or instrumentality,
whether domestic or foreign (each a "Governmental Entity")
applicable to Greiner or any Greiner Subsidiary, except for
such violations, if any, that, in the aggregate, have not had
and would not, in the reasonable judgment of Greiner, be likely
to have a Greiner Material Adverse Effect.
Section 4.20. CERTAIN CONTRACTS AND ARRANGEMENTS.
Section 4.20 of the Greiner Disclosure Letter lists all of the
following agreements to which Greiner or any of the Greiner
Subsidiaries is a party ("Material Agreements"):
(a) Each partnership, joint venture or other similar
agreement or arrangement to which Greiner or any Greiner
Subsidiary is a party that has involved or is expected to
involve an annual sharing of revenues of $5,000,000 or more to
other persons;
(b) Each lease for real or personal property in
which the amount of payments which Greiner or a Greiner
Subsidiary is required to make on an annual basis is $500,000
or more;
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(c) Each agreement of Greiner and the Greiner
Subsidiaries relating to indebtedness for borrowed money
(whether incurred, assumed, guaranteed or secured by any asset)
in an aggregate outstanding principal amount of $1,000,000 or
more;
(d) Each other agreement, license or franchise which
has not been terminated or performed in its entirety and not
renewed which may be, by its terms, terminated, impaired or
adversely affected by reason of the execution of this
Agreement, the closing of the Merger, or the consummation of
the transactions contemplated hereby or thereby, and the loss
of which would, individually or in the aggregate with other
such agreements, licenses, or franchises, have a Greiner
Material Adverse Effect;
(e) Each agreement of Greiner or the Greiner
Subsidiaries with or for the benefit of any affiliate of
Greiner with annual payments of $50,000 or more;
(f) Each contract containing covenants purporting
to materially limit the freedom of Greiner or any Greiner
Subsidiary to compete in any line of business or in any
geographic area; and
All Material Agreements are valid, binding and enforceable in
accordance with their terms and none of Greiner or the Greiner
Subsidiaries nor, to the knowledge of Greiner, any other party
thereto, is in default under any of such agreements, nor, to
the knowledge of Greiner, has any event or circumstance
occurred that, with notice or lapse of time or both, would
constitute any event of default by Greiner or the Greiner
Subsidiaries or any other party thereto other than with respect
to any of the foregoing such defaults, if any, that would not,
individually or in the aggregate, have a Greiner Material
Adverse Effect. To Greiner's knowledge, none of the parties to
the contracts identified in this Section have terminated, or
have expressed an intent to reduce materially or terminate
presently or in the future, such contracts.
Section 4.21 PROHIBITED PAYMENTS. Greiner has not, with
respect to the opportunities, business or operation of Greiner,
(a) entered into any understanding agreement or arrangement,
written or oral, under or pursuant to which bribes, kickbacks,
rebates, payoffs or other forms of illegal payments have been
or will be made, provided for or suffered, either directly or
indirectly, through agents, brokers or other intermediaries,
(b) made any illegal payment or contribution of moneys,
services or property to any political party, candidate or
elected official, directly or indirectly, for any purpose or
(c) directly or indirectly engaged in any activity prohibited
by the Foreign Corrupt Practices Act of 1977.
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Section 4.22 POWERS OF ATTORNEY. Greiner has not given a
power of attorney, except for revocable powers of attorney
routinely granted in the ordinary course of business which
related to routine representations before governmental agencies
or given in connection with the qualification to conduct
business in other jurisdictions.
Section 4.23 ENVIRONMENTAL MATTERS.
(a) (i) Greiner and each of the Greiner
Subsidiaries hold, and are in substantial compliance with, all
Environmental Permits, and with all applicable Environmental
Laws, except where the failure to hold such permits or to be in
compliance would not have a Greiner Material Adverse Effect.
(ii) Neither Greiner nor any of the Greiner
Subsidiaries has received any written request for information,
or has been notified that it is a potentially responsible
party, under the Federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, or any
similar state law with respect to any on-site or off-site
location.
(iii) No notice, notification, demand,
request for information, citation, summons, complaint or order
has been issued, no complaint has been filed, no penalty has
been assessed and no investigation or review (collectively,
"Environmental Notices") is pending, or to Greiner's knowledge,
threatened by any governmental entity or other person with
respect to any (1) alleged violation by Greiner or any of the
Greiner Subsidiaries of any Environmental Law or liability
thereunder or (2) alleged failure by Greiner or any of the
Greiner Subsidiaries to have any Environmental Permit, except,
in each case, for Environmental Notices that would not have a
Greiner Material Adverse Effect.
(iv) To Greiner's knowledge, there have
been no discharges, emissions or releases of Hazardous
Substances by Greiner which are or were reportable under
Environmental Laws, other than such discharges, emissions or
releases that would not have a Greiner Material Adverse Effect.
(b) There has been no material environmental
investigation of Greiner, study, audit, test, review or other
analysis (including any Phase I environmental assessments)
conducted of which Greiner has knowledge in relation to any
real property or lease which has not been delivered to URS
prior to the date hereof. Neither Greiner nor any of the
Greiner Subsidiaries is subject to any judgment, decree or
order relating to compliance with, or the cleanup of regulated
substances under, any applicable Environmental Law.
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(c) For purposes of this Agreement: (i) the term
"Environmental Laws" means any and all applicable Federal,
state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, judicial orders,
decrees, codes, injunctions, permits, consent decrees, consent
orders and governmental restrictions, now in effect, relating
to human health, the environment or to emissions, discharges or
releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment, including without limitation
ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof; (ii) the term
"Environmental Permits" means all permits licenses,
authorizations, certificates and approvals of governmental
authorities relating to or required by Environmental Laws and
necessary or proper for the business of Greiner and the Greiner
Subsidiaries as currently conducted; and (iii) "Hazardous
Substance" means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-
products and other hydrocarbons, or any substance having any
constituent elements displaying any of the foregoing
characteristics, including, without limitation, any substance
regulated under Environmental Laws.
Section 4.24 REGULATORY MATTERS. Greiner has filed or
otherwise provided all reports, data, other information and
applications which are required to be filed with or otherwise
provided to the U.S. Environmental Protection Agency (the
"EPA"), the U.S. Occupational Safety and Health Administration
("OSHA"), and any other Federal, state, local or foreign
governmental authorities with jurisdiction and all regulatory
approvals in respect thereof are in full force and effect on
the date hereof, the failure to file or provide which or obtain
which would, in the aggregate, result in a Greiner Material
Adverse Effect.
Section 4.25 IMMIGRATION REFORM AND CONTROL ACT.
(a) Greiner has fully complied with the verification
requirements and the recordkeeping requirements of the
Immigration Reform and Control Act of 1986 ("IRCA").
(b) To the best knowledge and belief of Greiner and
the Greiner Subsidiaries, the information and documents on
which Greiner relied in complying with IRCA are true and
correct.
(c) There have not been any discrimination
complaints filed against Greiner pursuant to IRCA.
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Section 4.26 BOARD APPROVALS; OPINION OF FINANCIAL
ADVISOR. The Board of Directors of Greiner (at a meeting duly
called and held or pursuant to valid written consent) has
unanimously determined that the transactions contemplated
hereby are fair to and in the best interests of Greiner and its
stockholders. Greiner has received the opinion of Houlihan,
Lokey, Howard & Zukin, Inc. ("HL"), Greiner's financial
advisor, or another financial advisor selected by Greiner and
reasonably acceptable to URS, substantially to the effect that
the Merger consideration to be paid to holders of the Greiner
Common Stock in the Merger is fair to such stockholders from a
financial point of view.
Section 4.27 BROKERS. No broker, finder or investment
banker is entitled to any brokerage, finder's fee or commission
payable by Greiner in connection with the transactions
contemplated by this Agreement based upon arrangements made by
or on behalf of Greiner.
Section 4.28 DISCLOSURE. No representation or warranty
by Greiner in this Agreement, the schedules hereto or any
certificates delivered pursuant to the terms hereof, contains
or will contain an untrue statement of material fact, or omits
or will omit to state a material fact necessary to make the
statements contained herein or therein, in light of the
circumstances in which they were made, not misleading.
Section 4.29 RELIANCE. The foregoing representations
and warranties are made by Greiner with the knowledge and
expectation that URS is placing reliance thereon.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF URS
-------------------------------------
Except as otherwise disclosed to Greiner in a letter
delivered to it prior to the execution hereof (which letter
shall contain appropriate references to identify the
representations and warranties herein to which the information
in such letter relates) (the "URS Disclosure Letter"), URS and
the Subsidiary represent and warrant to Greiner as follows:
Section 5.1 ORGANIZATION. Each of URS and the Subsidiary
is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and
authority to own, lease, and operate its properties, and to
carry on its business as now being conducted, except where the
failure to be so organized, existing, and in good standing or
to have such power and authority would not have a URS Material
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Adverse Effect. Each of URS and the Subsidiary is duly
qualified or licensed and in good standing to do business in
each jurisdiction in which the property owned, leased, or
operated by it or the nature of the business conducted by it
makes such qualification necessary, except in any such
jurisdictions where the failure to be so duly qualified or
licensed and in good standing would not have a URS Material
Adverse Effect on the Business Condition of URS. For purposes
of this Agreement, "URS Material Adverse Effect" means, when
used in connection with URS, any change or effect that is
materially adverse to the Business Condition of URS, other than
changes or effects resulting from (i) changes attributable to
conditions affecting the engineering business generally, (ii)
changes in general economic conditions, or (iii) changes
attributable to the announcement or pendency of the Merger.
Section 5.2 CAPITALIZATION. The authorized capital stock
of URS consists of 20,000,000 shares of URS Common Stock, par
value $0.01 per share, and 1,000,000 shares of preferred stock,
par value $1.00 per share (the "URS Preferred Stock"). As of
the date hereof, (i) 7,167,591 shares of URS Common Stock are
issued and outstanding, (ii) options to acquire 1,166,324
shares of URS Common Stock are outstanding under all stock
option plans and agreements of URS, (iii) 1,559,665 shares of
URS Common Stock (including shares of URS Common Stock issuable
upon exercise of the options identified in clause (ii) above)
are reserved for issuance pursuant to all employee plans of
URS, and (iv) there are no shares of URS Preferred Stock
outstanding. All of the issued and outstanding shares of URS
Common Stock are validly issued, fully paid and nonassessable
and free of preemptive rights. All of the URS Common Stock
reserved for issuance in exchange for the shares of the Greiner
Common Stock at the Effective Time of the Merger in accordance
with this Agreement will be, when so issued, duly authorized,
validly issued, fully paid and nonassessable and free of
preemptive rights. The authorized capital stock of the
Subsidiary consists of 100 shares of the Subsidiary Common
Stock, par value $1.00 per share, all of which shares are
validly issued and outstanding, fully paid and nonassessable
and are owned by URS. Except as set forth above or as
specified in Section 5.2 of the URS Disclosure Letter, as of
the date of this Agreement there are no shares of capital stock
of URS issued or outstanding or any options, warrants,
subscriptions, calls, rights, convertible securities or other
agreements or commitments obligating URS to issue, transfer,
sell, redeem, repurchase or otherwise acquire any shares of its
capital stock or securities. Except as provided in this
Agreement or as set forth in Section 5.2 of the URS Disclosure
Letter, after the Effective Time of the Merger, URS will have
no obligation to issue, transfer or sell any shares of its
capital stock pursuant to any employee benefit plan or
otherwise.
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Section 5.3 AUTHORITY RELATIVE TO THIS AGREEMENT. Each
of URS and the Subsidiary has all requisite corporate power and
authority to enter into this Agreement and subject, in the case
of this Agreement, to the consents and approvals set forth in
Section 5.4 below, to consummate the transactions contemplated
hereby. The execution, delivery and performance of this
Agreement by URS and the Subsidiary and the consummation by URS
and the Subsidiary of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the
part of URS and the Subsidiary, including the unanimous
approval of their respective Boards of Directors, and no other
corporate proceedings on the part of URS or the Subsidiary are
necessary to authorize this Agreement or the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by URS and the Subsidiary and consti-
tutes a valid and binding agreement of each of them,
enforceable against each of them in accordance with its terms,
except that such enforceability may be subject to (i) bank-
ruptcy, insolvency, reorganization or other similar laws
relating to enforcement of creditors' rights generally, and
(ii) general equitable principles.
Section 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS.
Except for the applicable requirements of the Governmental
Requirements, state or foreign laws relating to takeovers, if
applicable, state securities or blue sky laws, state and local
laws and regulations relating to licensing, and the filing of
the Documents of Merger as required by the Nevada Law, no
filing with, and no permit, authorization, consent or approval
of, any Government Entity is necessary for the execution,
delivery and performance of this Agreement by URS and the
Subsidiary of the transactions contemplated by this Agreement.
Neither the execution, delivery nor performance of this
Agreement by URS and the Subsidiary, nor the consummation by
URS and the Subsidiary of the transactions contemplated hereby,
nor compliance by URS and the Subsidiary with any of the
provisions hereof, will (i) conflict with or result in any
breach of any provisions of the Certificate of Incorporation or
By-Laws of URS or the Subsidiary or the Articles or Certificate
of Incorporation, as the case may be, or By-Laws of any of the
URS Subsidiaries, (ii) except as set forth in Section 5.4(ii)
of the URS Disclosure Letter, result in a violation or breach
of, or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination,
cancellation, acceleration, vesting, payment, exercise,
suspension or revocation) under, any of the terms, conditions
or provisions of any note, bond, mortgage, deed of trust,
security interest, indenture, license, contract, agreement,
plan or other instrument or obligation to which URS or any of
the URS Subsidiaries is a party or by which any of them or any
of their properties or assets may be bound or affected,
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(iii) except as set forth in Section 5.4(iii) of the URS
Disclosure Letter, violate any order, writ, injunction, decree,
statute, rule or regulation applicable to URS, any URS
Subsidiary or any of their properties or assets, (iv) except as
set forth in Section 5.4(iv) of the URS Disclosure Letter,
result in the creation or imposition of any Lien on any asset
of URS or any URS Subsidiary, or (v) except as set forth in
Section 5.4(v) of the URS Disclosure Letter, cause the
suspension or revocation of any certificates of need,
accreditation, registrations, licenses, permits and other
consents or approvals of governmental agencies or accreditation
organizations, except in the case of clauses (ii), (iii), (iv)
and (v) for violations, breaches, defaults, terminations,
cancellations, accelerations, creations, impositions,
suspensions or revocations which would not individually or in
the aggregate have a URS Material Adverse Effect.
Section 5.5 URS SEC REPORTS AND FINANCIAL STATEMENTS.
URS has delivered to Greiner true and complete copies of each
registration statement, report and proxy or information
statement, including, without limitation, its Annual Reports to
Stockholders incorporated in material part by reference in
certain of such reports, in the form (including exhibits and
any amendments thereto) required to be filed with SEC since
January 1, 1992 (collectively, the "URS SEC Reports"). Except
as set forth in Section 5.5 of the URS Disclosure Letter, as of
the respective dates such URS SEC Reports were filed or, if any
such URS SEC Reports were amended, as of the date such
amendment was filed, each of the URS SEC Reports (i) complied
in all material respects with all applicable requirements of
the Securities Act and the Exchange Act, and the rules and
regulations promulgated thereunder, and (ii) did not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each
of the audited consolidated financial statements and unaudited
consolidated interim financial statements of URS (including any
related notes and schedules) included (or incorporated by
reference) in its Annual Reports on Form 10-K for each of the
three fiscal years ended October 31, 1992, 1993 and 1994, and
to be included on Form 10-K for the fiscal year ended
October 31, 1995, when filed, and Quarterly Reports on
Form 10-Q for all interim periods subsequent thereto (the "URS
Financial Statements") fairly present, in conformity with GAAP
applied on a consistent basis (except as may be indicated in
the notes thereto), the consolidated financial position of URS
and the URS Subsidiaries as of its date and the consolidated
results of operations and cash flows for the period then ended
(subject to normal year-end adjustments in the case of any
unaudited interim financial statements). There has been no
change in URS's accounting policies or methods of making
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accounting estimates or changes in estimates that are material
to the URS Financial Statements, except as described in the
notes thereto.
Section 5.6 INFORMATION SUPPLIED. None of the
information supplied or to be supplied by URS, the URS
Subsidiaries, auditors, attorneys, financial advisors, other
consultants or advisors or the Subsidiary for inclusion in the
Form S-4 or the Proxy Statement/Form S-4, will, in the case of
the Proxy Statement and any amendment or supplement thereto, at
the time of the mailing of the Proxy Statement and any
amendment or supplement thereto, and at the time of any meeting
of stockholders of Greiner to vote upon this Agreement and the
transactions contemplated hereby, or in the case of the Form
S-4, as amended or supplemented, at the time it becomes
effective and at the time of any post-effective amendment
thereto contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they are made, not misleading or
necessary to correct any statement in any earlier filing with
the SEC of such Proxy Statement/Form S-4 or any amendment or
supplement thereto or any earlier communication (including the
Proxy Statement/Form S-4) to stockholders of Greiner with
respect to the transactions contemplated by this Agreement.
The Form S-4 and the Proxy Statement/Form S-4 will comply as to
form in all material respects with the provisions of all
applicable laws including the provisions of the Securities Act
and the Exchange Act and the rules and regulations of the SEC
thereunder, except that no representation is made by URS with
respect to information supplied by Greiner specifically for
inclusion therein.
Section 5.7 BOARD APPROVALS; OPINION OF FINANCIAL
ADVISOR. The Boards of Directors of URS and the Subsidiary (at
meetings duly called and held or pursuant to valid written
consents) have unanimously determined that the transactions
contemplated hereby are fair to and in the best interests of
URS and the Subsidiary and the stockholders of URS. URS has
received the opinion of Morgan Stanley & Co. Incorporated
("MS"), URS's financial advisor, substantially to the effect
that the Merger consideration to be paid to holders of the
Greiner Common Stock in the Merger is fair to URS from a
financial point of view.
Section 5.8 BROKERS. No broker, finder or investment
banker (other than MS) is entitled to any brokerage, finder's
fee or commission payable by URS in connection with the
transactions contemplated by this Agreement based upon
arrangements made by or on behalf of URS.
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Section 5.9 DISCLOSURE. No representation or warranty
by URS in this Agreement, the schedules hereto or any
certificates delivered pursuant to the terms hereof, contains
or will contain an untrue statement of material fact, or omits
or will omit to state a material fact necessary to make the
statements contained herein or therein, in light of the
circumstances in which they were made, not misleading.
ARTICLE 6.
PRE-CLOSING COVENANTS
---------------------
Section 6.1 COVENANTS OF ALL PARTIES. During the period
from the date of this Agreement until the earlier of the
termination of this Agreement or the Effective Time of the
Merger, each of the parties hereto covenants and agrees as
follows;
6.1.1 ADVICE OF CHANGES. Each party shall
promptly advise each of the other parties in writing (i) of any
event occurring subsequent to the date of this Agreement that
would render any representation or warranty of such party
contained in this Agreement, if made on or as of the date of
such event or the Closing Date, untrue or inaccurate in any
material respect.
6.1.2 REGULATORY APPROVALS. Each party shall
execute and file, or join in the execution and filing, of any
application or other document that may be necessary in order
to obtain the authorization, approval or consent of any
governmental body, Federal, state or local or foreign, which
may be reasonably required, or which the other party may
reasonably request, in connection with the consummation of the
transactions contemplated by this Agreement, including, without
limitation, filings under the HSR Act. Each party shall use
its best efforts to obtain all such authorizations, approvals
and consents.
6.1.3 CONFIDENTIALITY. Each party shall hold
in confidence all nonpublic information until such time as such
information is otherwise publicly available and, if this
Agreement is terminated, each party will deliver to the other
all documents, work papers and other materials (including
copies) obtained by such party or on its behalf from the other
party as a result of this Agreement or in connection herewith,
whether so obtained before or after the execution hereof. Each
party shall continue to abide by the terms of the
confidentiality agreement between URS and Greiner in effect as
of the date hereof.
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6.1.4 BEST EFFORTS. Upon the terms and subject
to the conditions herein provided, each of the parties hereto
agrees to use its best efforts to take or cause to be taken all
actions, to do or cause to be done, and to assist and cooperate
with the other party hereto in doing, all things necessary,
proper or advisable under applicable laws and regulations, to
consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement,
including (i) using all reasonable efforts to obtain all
necessary waivers, consents and approvals from third parties,
(ii) defending any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby and
thereby, and (iii) executing and delivering such instruments,
and taking such other actions as the other party hereto may
reasonably require in order to carry out the intent of this
Agreement.
6.1.5 CREDIT AGREEMENT. The parties hereto
shall take all actions as may be reasonably necessary to
fulfill the covenants and conditions set forth in that certain
Credit Agreement dated as of January 10, 1996 (the "Credit
Agreement"), by and among URS, as Borrower, the lenders listed
therein as Lenders, and Wells Fargo Bank, National Association,
as Administrative Agent.
Section 6.2 COVENANTS OF GREINER. During the period from
the date of this Agreement until the earlier of the termination
of this Agreement or the Effective Time of the Merger, Greiner
agrees (except as expressly contemplated by this Agreement or
with the prior written consent of URS) that:
6.2.1 CONDUCT OF BUSINESS PENDING MERGER.
(a) ORDINARY COURSE. Greiner and the Greiner
Subsidiaries shall carry on their respective businesses in the
usual, regular and ordinary course in substantially the same
manner as heretofore conducted and, to the extent consistent
with such businesses, use all reasonable efforts to preserve
intact their present business organizations, keep available the
services of their present officers and employees, and preserve
their relationships with customers, suppliers and others having
business dealings with Greiner and the Greiner Subsidiaries.
Greiner shall promptly notify URS of any event or occurrence or
emergency not in the ordinary course of business, of Greiner or
the Greiner Subsidiaries, and material and adverse to the
Business Condition of Greiner. Neither Greiner nor any of the
Greiner Subsidiaries shall (except with the prior written
consent of URS):
(i) accelerate, amend or change the period of
exercisability or vesting of options granted under any stock
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option plans or restricted stock, stock bonus or other awards
(including any discretionary acceleration of the exercise
periods by Greiner's Board of Directors permitted under such
plans) or authorize cash payments in exchange for any options,
restricted stock, stock bonus or other awards granted under any
of such plans;
(ii) grant any severance or termination pay to
any officer or director or, except in the ordinary course of
business consistent with past practices, to any employee of
Greiner or any Greiner Subsidiary;
(iii) except in the ordinary course of business
consistent with past practices and other than transfers between
or among Greiner and any Greiner Subsidiary, transfer to any
person or entity any rights to the Greiner Intellectual
Property Rights;
(iv) commence a lawsuit other than: (1) for the
routine collection of bills; (2) in such cases where Greiner in
good faith determines that failure to commence suit would
result in a material impairment of a valuable aspect of
Greiner's business, provided Greiner consults with URS prior to
filing such suit; or (3) for a breach of this Agreement; and
(v) enter into one or more leases which extend
for a period of two years beyond the date of this Agreement and
which obligate the Company to pay aggregate gross rent in
excess of $500,000.
(b) DIVIDENDS; CHANGES IN STOCK. Greiner shall not,
and it shall not permit any of the Greiner Subsidiaries to,
(i) declare or pay any dividends on or make other capital
distributions in respect of any of its capital stock, except
for intercompany dividends or regular quarterly cash dividends
in an amount which shall not exceed $0.075 per share to holders
of Greiner Common Stock and at times consistent with prior
practice, (ii) split, combine or reclassify any of its capital
stock or issue or authorize or propose the issuance of any
other securities in respect of, in lieu of or in substitution
for shares of its capital stock, or (iii) repurchase, redeem or
otherwise acquire, any shares of its capital stock.
(c) ISSUANCES OF SECURITIES. Greiner shall not, and
it shall not permit any of the Greiner Subsidiaries to, issue,
deliver or sell, or authorize or propose the issuance, delivery
or sale of, any shares of its capital stock or any securities
convertible into such shares, or any rights, warrants, calls,
subscriptions or options to acquire, any such shares or
convertible securities, or any other ownership interests in
such capital stock.
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(d) GOVERNING DOCUMENTS. Greiner shall not, nor
shall it cause or permit any of the Greiner Subsidiaries to,
amend its articles or certificate of incorporation or by-laws.
(e) NO ACQUISITIONS. Greiner shall not, and it
shall not permit any of the Greiner Subsidiaries to acquire, or
agree to acquire by merging or consolidating with, or by
purchasing a substantial equity interest in or substantial
portion of the assets of, or by any other manner, any business
or any corporation, partnership, association or other business
organization or division thereof.
(f) NO DISPOSITIONS. Other than sales or licenses
of products or technology in the ordinary course of business
consistent with prior practice, Greiner shall not, and it shall
not permit any of the Greiner Subsidiaries to, sell, lease,
license, encumber or otherwise dispose of, any of its assets,
except for such dispositions in the ordinary course of business
or in amounts which are not material, in the aggregate, to the
business of Greiner.
(g) INDEBTEDNESS. Greiner shall not, and shall not
permit any of the Greiner Subsidiaries to, incur any
indebtedness for borrowed money or guarantee any such
indebtedness or sell any debt securities or warrants or rights
to acquire any debt securities of Greiner or any of the Greiner
Subsidiaries or guarantee any debt securities of others, except
in the ordinary course of business consistent with past
practices.
(h) PLANS; COMPENSATION. Except as otherwise
provided in this Agreement, Greiner shall not, and shall not
permit any of the Greiner Subsidiaries to, adopt or amend in
any material respect any Greiner Plan or pay any pension or
retirement allowance not required by any existing Greiner Plan.
Greiner shall not and shall not permit any Greiner Subsidiary
to, enter into any employment contracts, pay any special
bonuses or special remuneration to officers, directors or
employees, or increase the salaries, wage rates or fringe
benefits of (i) any of its officers or employees whose
compensation exceeded $150,000 during the fiscal year ending
December 31, 1995, or (ii) any of its other officers and
employees other than pursuant to scheduled reviews under
Greiner's or the Greiner Subsidiary's normal compensation
review cycle, in all cases consistent with existing policies
and past practice.
(i) TAX MATTERS. Greiner shall not make any tax
election that would have a Greiner Material Adverse Effect or
settle or compromise any income tax liability of Greiner or any
of the Greiner Subsidiaries that would have a Greiner Material
Adverse Effect.
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(j) DISCHARGE OF LIABILITIES. Greiner shall not,
and it shall not permit any of the Greiner Subsidiaries to,
pay, discharge, settle or satisfy any claims, liabilities or
obligations, except in the ordinary course of business or in
amounts which are not material, individually or in the
aggregate, to the business of Greiner.
(k) MATERIAL AGREEMENTS. Except in the ordinary
course of business, neither Greiner nor any of the Greiner
Subsidiaries shall modify, amend, or terminate any Material
Agreement or waive, release or assign any material rights or
claims under such Material Agreement.
(l) AGREEMENT. Neither Greiner nor any of the
Greiner Subsidiaries shall agree or commit to do any of the
actions described in this Section 6.2.1.
6.2.2 STOCKHOLDERS' MEETING; PROXY STATEMENT.
Greiner shall hold a meeting of its stockholders at the
earliest practicable date to submit this Agreement and related
matters for their consideration and approval, which approval
shall be recommended by Greiner's Board of Directors (subject
to the fiduciary obligations of its directors and officers).
Greiner shall send to its stockholders, for the purpose of
considering and voting upon the Merger, a Proxy Statement
satisfying all requirements of applicable state and Federal
laws, and Greiner shall be solely responsible for any
statement, information or omission in said Proxy Statement
relating to it or its affiliates.
6.2.3 ACQUISITION PROPOSALS. From the date hereof
until the earlier of the termination of this Agreement or the
consummation of the Merger, Greiner and the Greiner
Subsidiaries will not, and will cause their respective
officers, directors, employees, agents and representatives not
to, directly or indirectly, encourage, solicit, accept,
initiate or conduct discussions or negotiations with, provide
any information to, or enter into any agreement with, any
corporation, partnership, limited liability company, person or
other entity or group concerning the acquisition of all or a
substantial part of the assets, business or capital stock of
Greiner, whether through purchase, merger, consolidation,
exchange or any other business combination (each of the
foregoing, an "Acquisition Proposal"). Notwithstanding
anything to the contrary in the preceding sentence, nothing
herein shall prevent Greiner and its officers and directors,
from responding to and considering unsolicited firm offers for
any such transaction from persons other than URS if and to the
extent that, in the written opinion of Greiner's outside
counsel, failure to do so would be reasonably likely to
constitute a violation of applicable law or a breach of the
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fiduciary duties of Greiner's directors to Greiner's
stockholders. Greiner shall immediately provide written notice
to URS of the terms and other details of any such unsolicited
inquiry or proposal relating to an Acquisition Proposal. In
the event that Greiner or any of its officers or directors
enters into any such negotiations or discussions for any reason
which thereby constitute a breach of this Section 6.2.3,
Greiner shall immediately reimburse URS for all expenses and
costs incurred by URS in connection with the transactions
contemplated by this Agreement. In the event that Greiner or
any of its officers or directors shall enter into any letter of
intent, understanding or other agreement with a party other
than URS relating to the acquisition of all or a substantial
part of the assets, business or capital stock of Greiner,
whether through purchase, merger, consolidation, exchange or
any other business combination, either in violation of the no-
shop agreement set forth in this Section or within nine (9)
months after termination of this Agreement for any reason, then
immediately upon entering into such letter of intent,
understanding or other agreement, Greiner shall pay to URS a
termination fee in the amount of $5.0 million (the "Termination
Fee"); provided, however, that such Termination Fee shall not
be payable if, prior to the entry by Greiner into such letter
of intent, understanding or other agreement, URS has
unilaterally declined to close the Merger. The parties
acknowledge and agree that the expense reimbursement obligation
and Termination Fee described in this Section shall not be the
exclusive remedy to URS in the event of a breach by Greiner of
this Agreement, and, in any such event, URS shall be entitled,
in addition to receiving such payments, to equitable remedies,
including, without limitation, specific performance and
enjoining of any actions determined to be in breach of this
Agreement.
6.2.4 MAINTENANCE OF BUSINESS. Greiner will use
its best efforts to carry on and preserve its business and its
relationships with clients, customers, suppliers, employees and
others in substantially the same manner as it has prior to the
date hereof. If Greiner becomes aware of a deterioration in
the relationship with any client, customer, supplier or key
employee, it will promptly bring such information to the
attention of URS in writing and, if requested by URS, will use
its best efforts to restore the relationship.
6.2.5 ACCESS. Greiner shall afford to URS and to
URS's financial advisors, legal counsel, accountants, financing
sources and other authorized representatives access during
normal business hours to all of its books, records, properties,
offices and personnel.
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6.2.6 LIABILITY INSURANCE.
(a) On or before the Closing Date, Greiner
shall procure (subject to the approval of URS) continuing
directors' and officers' liability coverage (tail coverage) for
directors and officers of Greiner who have served as directors
and officers of Greiner or its affiliates (the "Greiner D & O
Policy"), prior to the Effective Time of the Merger, with
respect to acts or failures to act prior to the Effective Time
of the Merger. Said policy shall have a term of not less than
three (3) years after the Closing Date.
(b) On or before the Closing Date, Greiner
shall procure (subject to the approval of URS) continuing
fiduciary liability coverage (tail coverage) for employees of
Greiner who have served as fiduciaries under any Greiner Plan
(the "Greiner Fiduciary Policy") prior to the Effective Time of
the Merger, with respect to acts or failures to act prior to
the Effective Time of the Merger. Said policy shall have a
term that shall expire not less than one (1) year after the
expiration of the term of the ESOP portion of The Performance
Plan and Stock Ownership Plan of Greiner Engineering, Inc.
Section 6.3 COVENANTS OF URS. During the period from the
date of this Agreement until the earlier of the termination of
this Agreement or the Effective Time of the Merger, URS and the
Subsidiary agree (except as expressly contemplated by this
Agreement or with the prior written consent of Greiner) that:
6.3.1 REGISTRATION STATEMENT. The URS Common Stock
to be issued in the Merger shall be registered under the 1933
Act on Form S-4. As promptly as practicable after the date
hereof, URS shall prepare and file with the SEC the Form S-4
and any other documents required by the 1933 Act in connection
with the Merger. URS shall use its best efforts to have the
Form S-4 declared effective as promptly as practicable after
such filing. URS shall also take any action required to be
taken under any applicable state securities or "blue sky" laws
in connection with the issuance of the URS Common Stock in
connection with the Merger.
6.3.2 LISTING AGREEMENT. As promptly as practicable
after the date hereof, URS shall prepare and submit to each of
the New York Stock Exchange and the Pacific Stock Exchange a
listing application covering the shares of the URS Common Stock
to be issued in connection with the Merger. URS shall use its
best efforts to obtain, prior to the Effective Time of the
Merger, approval for the listing of such URS Common Stock,
subject to official notice of issuance.
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ARTICLE 7.
CONDITIONS TO CONSUMMATION OF THE MERGER
----------------------------------------
Section 7.1 CONDITIONS TO OBLIGATIONS OF GREINER. The
obligations of Greiner to effect the Merger shall be subject to
the satisfaction at or prior to the Effective Time of the
Merger of the following conditions:
7.1.1 REPRESENTATIONS AND WARRANTIES TRUE AT
CLOSING. The representations and warranties contained in this
Agreement of URS and the Subsidiary shall be deemed to have
been made again at and as of the Closing with respect to the
stated facts then existing and shall be true in all material
respects.
7.1.2 COVENANTS PERFORMED. All of the
obligations of URS and the Subsidiary to be performed at or
before the Closing pursuant to the terms of this Agreement
shall be been duly performed.
7.1.3 CERTIFICATE. At the Closing, Greiner
shall have received a Certificate signed by the President of
each of URS and the Subsidiary to the effect that each of the
conditions set forth in Section 7.1.1 and 7.1.2 have been
satisfied.
7.1.4 APPROVAL OF STOCKHOLDERS. This Agreement
and the Merger shall have been approved by the stockholders of
Greiner.
7.1.5 OPINION OF COUNSEL. Sheppard, Mullin,
Richter & Hampton, counsel to URS, shall have issued an opinion
of counsel to Greiner, dated the Effective Time of the Merger,
in form and substance reasonably satisfactory to Greiner, to
the effect that:
(i) URS is a corporation validly existing
and in good standing under the laws of the State of
Delaware and has all requisite corporate power to own,
operate and lease its properties and to carry on its
business as it is now being conducted;
(ii) URS has full corporate power to enter
into this Agreement and to carry out the transactions
provided for herein;
(iii) All corporate action required to be
taken on the part of URS to authorize it to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby have been duly and validly taken.
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(iv) This Agreement has been duly and
validly authorized, executed and delivered by URS and,
assuming due authorization, execution, delivery and
performance by each of the other parties hereto,
constitutes the valid and binding obligation of URS,
enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy or other laws
relating to or affecting creditors' rights generally and
by equitable principles; and
(v) The shares of URS Common Stock
issuable in connection with the Merger have been duly and
validly authorized and, upon issuance, such shares will be
fully paid and nonassessable.
In giving such opinions, such counsel shall be
entitled to rely upon certificates of officers of URS or any of
its subsidiaries and public officials with respect to factual
matters upon which their opinions may be based, provided that
the extent of such reliance is set forth in such opinion and
such opinion states that it is reasonable for Greiner to rely
thereon.
7.1.6 FORM S-4. The Form S-4 pertaining to the
URS Common Stock to be issued in connection with the Merger
shall have become effective under the 1933 Act and shall not be
the subject of any stop order or proceedings seeking a stop
order.
7.1.7 MERGER DOCUMENTS. The Merger Documents
shall have been filed with the Secretary of State of the State
of Nevada, as required by law.
7.1.8 MATERIAL ADVERSE CHANGES. There shall
have been no URS Material Adverse Effect between the date of
this Agreement and the date of the Closing.
7.1.9 HSR FILING. Any waiting period
applicable to the consummation of the Merger under the HSR Act
shall have expired or been terminated, and no action shall have
been instituted by the Department of Justice or Federal Trade
Commission challenging or seeking to enjoin the consummation of
the transaction contemplated by this Agreement, which action
shall not have been withdrawn or terminated.
Section 7.2 CONDITIONS TO OBLIGATIONS OF URS AND THE
SUBSIDIARY. The obligations of URS and the Subsidiary to
effect the Merger shall be subject to the satisfaction at or
prior to the Effective Time of the Merger of the following
conditions:
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7.2.1 REPRESENTATIONS AND WARRANTIES TRUE AT
CLOSING. The representations and warranties contained in this
Agreement of Greiner shall be deemed to have been made again at
and as of the Closing with respect to the stated facts then
existing and shall be true in all material respects.
7.2.2 COVENANTS PERFORMED. All of the
obligations of URS and the Subsidiary to be performed at or
before the Closing pursuant to the terms of this Agreement
shall be been duly performed.
7.2.3 CERTIFICATE. At the Closing, URS and the
Subsidiary shall have received a Certificate signed by the
President of Greiner to the effect that each of the conditions
set forth in Section 7.2.1 and 7.2.2 have been satisfied.
7.2.4 APPROVAL OF STOCKHOLDERS. This Agreement
and the Merger shall have been approved by the stockholders of
Greiner.
7.2.5 OPINION OF COUNSEL. Nossaman, Guthner,
Knox & Elliott, counsel to Greiner, shall have issued an
opinion of counsel to URS, dated the Effective Time of the
Merger, in form and substance reasonably satisfactory to URS,
to the effect that:
(i) Greiner is a corporation validly
existing and in good standing under the laws of the State
of Nevada and has all requisite corporate power to own,
operate and lease its properties and to carry on its
business as it is now being conducted;
(ii) Greiner has full corporate power to
enter into this Agreement and to carry out the
transactions provided for herein;
(iii) All corporate action required to be
taken on the part of Greiner to authorize it to execute
and deliver this Agreement and to consummate the
transactions contemplated hereby have been duly and
validly taken; and
(iv) This Agreement has been duly and
validly authorized, executed and delivered by Greiner and,
assuming due authorization, execution, delivery and
performance by each of the other parties hereto,
constitutes the valid and binding obligation of Greiner,
enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy or other laws
relating to or affecting creditors' rights generally and
by equitable principles.
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In giving such opinions, such counsel shall be
entitled to rely upon certificates of officers of Greiner or
any of its subsidiaries and public officials with respect to
factual matters upon which their opinions may be based,
provided that the extent of such reliance is set forth in such
opinion and such opinion states that it is reasonable for URS
to rely thereon.
7.2.6 FORM S-4. The Form S-4 pertaining to the
URS Common Stock to be issued in connection with the Merger
shall have become effective under the 1933 Act and shall not be
the subject of any stop order or proceedings seeking a stop
order.
7.2.7 MERGER DOCUMENTS. The Merger Documents
shall have been filed with the Secretary of State of the State
of Nevada, as required by law.
7.2.8 MATERIAL ADVERSE CHANGES. There shall
have been no Greiner Material Adverse Effect between the date
of this Agreement and the date of the Closing.
7.2.9 HSR FILING. Any waiting period
applicable to the consummation of the Merger under the HSR Act
shall have expired or been terminated, and no action shall have
been instituted by the Department of Justice or Federal Trade
Commission challenging or seeking to enjoin the consummation of
the transaction contemplated by this Agreement, which action
shall not have been withdrawn or terminated.
7.2.10 CONSENTS. Other than the filing of the
Merger Documents as contemplated in Section 1.2, the parties
shall have made such filings, and obtained all consents of
Governmental Entities, required to consummate the transactions
contemplated hereby.
7.2.11 NO LITIGATION. There shall not be
pending any action, proceeding or other application before any
court or Government Entity brought by any Government Entity (i)
challenging or seeking to restrain or prohibit the consummation
of the transactions contemplated by this AGreement, or seeking
to obtain any material damages, or (ii) seeking to prohibit or
impose any material limitations on URS's ownership or operation
of all or any portion of the combined business of URS and
Greiner.
7.2.12 CREDIT AGREEMENT. The conditions set
forth in Sections 4.2, 4.3 and 4.4 of the Credit Agreement
shall have been satisfied.
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ARTICLE 8.
ADDITIONAL AGREEMENTS
---------------------
Section 8.1 PUBLIC ANNOUNCEMENTS. URS, the Subsidiary
and Greiner agree that they will not issue any press release or
otherwise make any public statement or respond to any press
inquiry with respect to this Agreement or the transactions
contemplated hereby without the prior approval of the other
party (which approval will not be unreasonably withheld),
except as may be required by applicable law.
Section 8.2 CONFIDENTIALITY. No party to this Agreement
shall use or disclose any non-public information obtained from
another party for any purpose unrelated to the Merger, and, if
this Agreement is terminated for any reason whatsoever, each
party shall return to the other all originals and copies of all
documents and papers containing all information furnished to
such party pursuant to this Agreement, or during the
negotiations which preceded this Agreement, and shall neither
use nor disclose any such information except to the extent that
such information is available to the public, is rightfully
obtained from third parties, or is independently developed.
Section 8.3. ADDITIONAL AGREEMENTS. In case at any time
after the Effective Time of the Merger any further action is
reasonably necessary or desirable to vest the Surviving
Corporation with full title to all properties, assets, rights,
approvals, immunities and franchises of either of the
constituent corporations, the proper officers and directors of
each corporation which is a party to this Agreement shall take
all such necessary corporate action.
Section 8.4. USE OF NAME. Without limiting the right of
URS to conduct its business in such manner as it deems
appropriate, URS intends, following the Closing Date, and for
the foreseeable period thereafter, to maintain Greiner as a
separate subsidiary operating under its own existing name.
Section 8.5. EMPLOYEE MATTERS. After the Closing Date,
URS will use reasonable efforts to maintain the business of
Greiner and, in particular, without limitation, URS will use
best efforts to maintain health, medical, dental and other
benefits for Greiner employees for a reasonable period after
the Closing Date which, in the aggregate, are reasonably
comparable to benefits provided to Greiner employees prior to
the Closing Date, subject to reasonable business practices and
changing conditions.
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Section 8.6. NON-LIABILITY OF AGENTS AND STOCKHOLDERS.
No stockholder, director, officer or employee of any party
hereto shall be individually liable for any breach of the
representations, warranties or covenants of any party hereto
contained herein in the absence of fraud or willful misconduct
on the part of such stockholder, director, officer or employee.
Section 8.7 THE PERFORMANCE PLAN AND STOCK OWNERSHIP PLAN
OF GREINER ENGINEERING, INC. URS, the Greiner Subsidiaries
and Greiner agree that as soon as practical following the
execution of this Agreement, effective as of the Closing Date
and contingent on closing the Merger, The Performance Plan and
Employees Stock Ownership Plan of Greiner Engineering, Inc.
(the "Plan") will be amended to cease to be an employee stock
ownership plan within the meaning of Section 4975(e)(7) of the
Code ("ESOP"), but will be continued as a profit sharing plan,
subject to the terms of the Plan document regarding amendment
and/or termination. Such Plan amendment will provide that the
cash proceeds received by the Plan pursuant to this Agreement
will not be reinvested in URS or Greiner stock, but shall be
reinvested in the various investment options available under
the non-ESOP portion of the Plan, as directed by Plan
Participants, and that employer stock will no longer be one of
the investment options offered under the Plan. URS stock
received pursuant to this Agreement shall continue to be held
by the Plan, subject to the investment discretion of the Plan's
trustee, but no additional investments in URS stock shall be
permitted, and, unless URS agrees otherwise, Plan Participants
shall not have investment discretion with respect to the URS
stock so held. In addition, in the event that as of the
Closing Date, the aggregate value of the unvested ESOP portion
of the Plan accounts shall be less than $1,000,000 (for
purposes of this Section 8.7, unvested shares of Greiner stock
shall be valued at an amount equal to the closing price of the
Greiner stock as reported on the New York Stock Exchange on the
trading day immediately preceding the Closing Date, as listed
in The Wall Street Journal), URS, the Greiner Subsidiaries and
-----------------------
Greiner agree that as soon as practical following the execution
of this Agreement, effective as of the Closing Date and
contingent on the closing of the Merger, the Plan will be
amended so that Plan Participants will be fully vested in the
ESOP portion of their accounts as of the Closing Date. The
parties shall cooperate and take all steps as may be reasonably
necessary to effect the foregoing.
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ARTICLE 9.
TERMINATION
-----------
Section 9.1. TERMINATION. This Agreement may be
terminated at any time prior to the Effective Time, whether
before or after the approval by the stockholders of Greiner
(the "Stockholder Approval") has been obtained:
9.1.1 by mutual written consent of URS and Greiner;
9.1.2 by either Greiner or URS if (i) the
Stockholder Approval shall not be obtained by reason of
stockholders holding a majority of the Greiner Common Stock
failing to vote in favor of approval of this Agreement at a
meeting of stockholders or any adjournment thereof; (ii) a
Governmental Entity of competent jurisdiction shall have issued
an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order,
decree, ruling or other action shall have become final and
nonappealable; or (iii) the Merger shall not have been
consummated before September 30, 1996 (provided that the
terminating party is not then in material breach of any
representation, warranty, covenant or agreement contained in
this Agreement);
9.1.3 By URS if there has been a breach by
Greiner of any representation, warranty, covenant or other
agreement in this Agreement which has a Greiner Material
Adverse Effect, and such breach has not been cured, or Greiner
has not commenced reasonable efforts to cure such breach,
within thirty (30) days after written notice of such breach is
given by URS to Greiner;
9.1.4 By URS if Greiner shall enter into any
discussions, negotiations or any letter of intent,
understanding or other agreement relating to an Acquisition
Proposal, provided that no such termination shall effect the
rights of URS to reimbursement of expenses and the Termination
Fee as provided in Section 6.2.3; or
9.1.5 By Greiner if there has been a breach by
URS or the Subsidiary of any material representation, warranty,
covenant or other agreement, and such breach has not been
cured, or URS and the Subsidiary have not commenced reasonable
efforts to cure such breach, within thirty (30) days after
written notice of such breach is given by Greiner to URS.
9.1.6 By Greiner if any of the conditions set
forth in Section 7.1 hereof shall not have been fulfilled on or
prior to the date specified for fulfillment thereof, or shall
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Page 54 of 424 <PAGE>
have become impossible to fulfill for reasons beyond the
control of Greiner, and such condition shall not have been
waived.
9.1.7 By URS if any of the conditions set forth
in Section 7.2 hereof shall not have been fulfilled on or prior
to the date specified for fulfillment thereof, or shall have
become impossible to fulfill for reasons beyond the control of
URS, and such condition shall not have been waived.
Where action is taken to terminate this Agreement pursuant to
this Section 9.1, it shall be sufficient for such action to be
authorized by the Board of Directors of the party taking such
action without any requirement to submit such action to the
stockholders of such party.
Section 9.2. EFFECT OF TERMINATION AND ABANDONMENT. In
the event of termination of the Agreement by either Greiner or
URS as provided in Section 9.1, this Agreement shall forthwith
become void and have no effect, and there shall be no liability
or obligation on the part of Greiner, URS or the Subsidiary, or
their respective officers and directors, except that (i) the
provisions of Section 6.2.3, this Section 9.2, and the
Confidentiality Agreement shall survive any such termination,
and (ii) no party whose breach of its representations,
warranties, covenants or agreements set forth in this Agreement
was the basis of the other party's termination of this
Agreement shall be relieved from liability for damages
occasioned by such breach, including any expenses incurred by
the other party in connection with this Agreement and the
transactions contemplated hereby; provided, however, that in
the event such breach is the result of negligence, such damages
shall not exceed the sum of $500,000; but, provided, further,
that in the event that such breach is the result of
recklessness or willful conduct, the amount of damages shall
not be limited hereby.
Section 9.3. AMENDMENT. This Agreement may be amended by
the parties hereto, by action taken by their respective Boards
of Directors at any time before or after the approval of the
stockholders of Greiner (the "Stockholder Approval"), but after
the Stockholder Approval, no amendment shall be made which by
law requires the further approval of stockholders without
obtaining such approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of
the parties hereto.
Section 9.4. EXTENSION; WAIVER. At any time prior to the
Effective Time of the Merger, any party hereto, by action taken
by its Board of Directors may, to the extent legally allowed,
(a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto,
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(b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the
agreements, covenants, or conditions for the benefit of such
party contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert
any of its rights under this Agreement shall not constitute a
waiver of these rights.
ARTICLE 10.
MISCELLANEOUS
-------------
Section 10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
No representations or warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive
beyond the Effective Time of the Merger. This Section 10.1
shall not limit any covenant or agreement after the Effective
Time of the Merger.
Section 10.2 ENTIRE AGREEMENT; MODIFICATION; WAIVER.
This Agreement constitutes the entire agreement among the
parties pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous agreements,
representations and undertakings of the parties. No
supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by all the parties. No
waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed
in writing by any party making the waiver.
Section 10.3 COUNTERPARTS. This Agreement may be
executed simultaneously in one or more counterparts, each of
which shall be deemed in original, but all of which together
shall constitute one and the same instrument.
Section 10.4 ASSIGNMENT. This Agreement shall be binding
on, and shall inure to the benefit of, the parties to it and
their respective heirs, legal representatives, successors and
assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the
other parties hereto.
Section 10.5 FEES AND EXPENSES. Each of the parties
shall pay their own fees, costs and expenses (including,
without limitation, legal and accounting expenses) incurred, or
to be incurred, by them in negotiating and preparing this
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Agreement and in closing and carrying out the transactions
contemplated by this Agreement.
Section 10.6 NOTICES. All notices, requests, demands and
other communications under this Agreement shall be in writing
and shall be deemed to have been duly given on the date of
service if served personally or by facsimile on the party to
whom notice is to be given, or on the fifth day after mailing,
if mailed to the party on whom notice is to be given, by
registered or certified mail, postage prepaid, and properly
addressed as follows:
If to URS and the Subsidiary:
URS Corporation
100 California Street, Suite 500
San Francisco, CA 94111-5239
Attn: Kent P. Ainsworth
Facsimile: (415) 398-1905
Confirmation: (415) 774-2700
with a copy to:
Sheppard, Mullin, Richter & Hampton
Four Embarcadero Center, Suite 1700
San Francisco, CA 94111
Attn: Samuel M. Livermore, Esq.
Facsimile: (415) 434-3947
Confirmation: (415) 434-9100
If to Greiner:
Greiner Engineering, Inc.
909 E. Las Colinas Blvd.,
Suite 1900, LB 44
Irving, TX 75039-3907
Attn: Patrick J. McColpin
Facsimile: (214) 869-3111
Confirmation: (214) 869-1001
with a copy to:
Nossaman, Guthner, Knox & Elliott
445 S. Figueroa Street, 31st Floor
Los Angeles, CA 90071-1602
Attn: William E. Guthner
Facsimile: (213) 612-7814
Confirmation: (213) 612-7800
Any party may change its address for purposes of this Section
by giving the other party written notice of the new address in
the manner set forth above.
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Section 10.7 GOVERNING LAW. This Agreement shall be
construed in accordance with, and governed by, the laws of the
State of California, United States of America, without giving
effect to provisions thereof relating to conflicts of law.
Section 10.8 FURTHER ACTION. Each of the parties hereto
shall use such party's best efforts to take such action as may
be necessary or reasonably requested by the other party hereto
to carry out and consummate the transactions contemplated by
this Agreement.
Section 10.9 NO THIRD PARTY BENEFICIARY. Nothing herein
is intended to create rights in any third party.
Section 10.10 EFFECT OF HEADINGS. The subject headings
of the Articles and Sections of this Agreement are included for
purposes of convenience only, and shall not affect the
construction or interpretation of any of its provisions.
Section 10.11 SEVERABILITY. If any term of this
Agreement or application thereof shall be invalid or
unenforceable, the remainder of this Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties to this Agreement
have duly executed it on the day and year first above written.
GREINER: GREINER ENGINEERING, INC.
By: /s/ ROBERT COSTELLO
-------------------------
Title: President and Chief
Executive Officer
URS: URS CORPORATION
By: /s/ KENT AINSWORTH
--------------------------
Title: Vice President and
Chief Financial Officer
THE SUBSIDIARY: URS ACQUISITION CORPORATION
By: /s/ KENT AINSWORTH
--------------------------
Title: Vice President and
Chief Financial Officer
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Exhibit 20(a)
-------------
URS CORPORATION NEWS RELEASE
---------------
For further information contact: For immediate release
Morgen-Walke Associates, Inc. January 11, 1996
Douglas Sherk/Chris Danne/Todd Friedman
(415) 296-7383
Jill Ruja/Elissa Grabowski
(212) 850-5600
URS Corporation Greiner Engineering, Inc.
Kent P. Ainsworth Robert L. Costello
Vice President and President & CEO
Chief Financial Officer (214) 869-1001
(415) 774-2700
URS CORPORATION SIGNS DEFINITIVE AGREEMENT TO ACQUIRE
GREINER ENGINEERING, INC.
URS Obtains Acquisition Financing
SAN FRANCISCO, CA & IRVING, TX / JANUARY 11, 1996 - URS
Corporation (NYSE: URS) and Greiner Engineering, Inc.
(NYSE: GII) today jointly announced that they have signed a
Definitive Agreement for URS to acquire all of the outstanding
shares of Greiner's common stock. The transaction remains
subject to Greiner stockholder approval and other closing
conditions. The combined Company will be the 20th largest
design engineering company and it will be among the top five
transportation engineering firms in the nation.
Terms of the transaction are unchanged from the letter of
intent announced on December 4, 1995. As a result of the
acquisition, Greiner will become a wholly-owned subsidiary of
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Page 59 of 424 <PAGE>
URS. Greiner stockholders will receive $13.50 per share in
cash plus .298 share of URS common stock for every common share
of Greiner. Based on Greiner's 4,704,642 outstanding shares of
common stock, the aggregate consideration will be approximately
$63.5 million in cash and 1.4 million shares of URS common
stock.
URS also announced today that to finance the acquisition
and to provide for working capital needs, it has entered into a
new $70 million secured credit facility with Wells Fargo Bank,
N.A. The credit facility consists of $50 million in term loans
maturing in 2002 and 2003, and a $20 million revolving line of
credit.
Headquartered in San Francisco, URS offers a broad range
of services to public and private sector clients in two
principal markets: infrastructure projects involving
transportation systems, institutional and commercial
facilities, pollution control and water resources; and
environmental projects involving hazardous waste management.
Headquartered in Irving, Texas, Greiner is a professional
services firm which provides engineering, planning,
architectural, environmental, program management and other
services to public and private sector clients throughout the
U.S. and in foreign countries, including Malaysia and Hong
Kong.
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Page 60 of 424 <PAGE>
Exhibit 99(a)
-------------
EXECUTION COPY
===============================================================
CREDIT AGREEMENT
DATED AS OF JANUARY 10, 1996
AMONG
URS CORPORATION,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
===============================================================
Page 61 of 424 <PAGE>
URS CORPORATION
CREDIT AGREEMENT
TABLE OF CONTENTS
-----------------
Page
----
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . i
EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . v
SCHEDULES . . . . . . . . . . . . . . . . . . . . . . . . . vi
Section 1. DEFINITIONS . . . . . . . . . . . . . . . . 2
1.1 Certain Defined Terms . . . . . . . . . . . 2
1.2 Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement . . 40
1.3 Other Definitional Provisions and Rules of
Construction . . . . . . . . . . . . . . . . 40
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS . 41
2.1 Commitments; Making of Loans; Notes . . . . 41
2.2 Interest on the Loans . . . . . . . . . . . 46
2.3 Fees . . . . . . . . . . . . . . . . . . . . 52
2.4 Repayments, Prepayments and Reductions in
Revolving Loan Commitments; General
Provisions Regarding Payments . . . . . . . 53
2.5 Use of Proceeds . . . . . . . . . . . . . . 63
2.6 Special Provisions Governing Eurodollar
Rate Loans . . . . . . . . . . . . . . . . . 63
2.7 Increased Costs; Taxes; Capital Adequacy . . 66
2.8 Obligation of Lenders and Issuing Lenders
to Mitigate . . . . . . . . . . . . . . . . 71
Section 3. LETTERS OF CREDIT . . . . . . . . . . . . . 72
3.1 Issuance of Letters of Credit and Lenders'
Purchase of Participations Therein . . . . . 72
3.2 Letter of Credit Fees . . . . . . . . . . . 75
3.3 Drawings and Reimbursement of Amounts Paid
Under Letters of Credit. . . . . . . . . . . 76
3.4 Obligations Absolute . . . . . . . . . . . . 79
3.5 Indemnification; Nature of Issuing Lenders'
Duties . . . . . . . . . . . . . . . . . . . 81
3.6 Increased Costs and Taxes Relating to
Letters of Credit . . . . . . . . . . . . . 82
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Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT . 83
4.1 Conditions to Signing Date. . . . . . . . . 83
4.2 Conditions to Term Loans and Initial
Revolving Loans . . . . . . . . . . . . . . 87
4.3 Conditions to All Loans. . . . . . . . . . . 97
4.4 Conditions to Letters of Credit . . . . . . 98
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES . . 99
5.1 Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries . . . . 99
5.2 Authorization of Borrowing, etc. . . . . . . 101
5.3 Financial Condition . . . . . . . . . . . . 102
5.4 No Material Adverse Change; No Restricted
Junior Payments; No Deterioration in
Quality of Accounts Receivable . . . . . . . 103
5.5 Title to Properties; Liens; Real Property;
Licenses, Trademarks; etc. . . . . . . . . . 103
5.6 Litigation; Adverse Facts . . . . . . . . . 104
5.7 Payment of Taxes . . . . . . . . . . . . . . 105
5.8 Performance of Agreements; Materially
Adverse Agreements; Material Contracts . . . 105
5.9 Governmental Regulation . . . . . . . . . . 106
5.10 Securities Activities . . . . . . . . . . . 106
5.11 Employee Benefit Plans . . . . . . . . . . . 106
5.12 Certain Fees . . . . . . . . . . . . . . . . 107
5.13 Environmental Protection . . . . . . . . . . 107
5.14 Employee Matters . . . . . . . . . . . . . . 108
5.15 Solvency . . . . . . . . . . . . . . . . . . 108
5.16 Matters Relating to Collateral . . . . . . . 109
5.17 Merger Agreement . . . . . . . . . . . . . . 110
5.18 Disclosure . . . . . . . . . . . . . . . . . 110
Section 6. COMPANY'S AFFIRMATIVE COVENANTS . . . . . . 111
6.1 Financial Statements and Other Reports . . . 111
6.2 Corporate Existence, etc. . . . . . . . . . 120
6.3 Payment of Taxes and Claims; Tax
Consolidation . . . . . . . . . . . . . . . 120
6.4 Maintenance of Properties; Insurance;
Application of Net Insurance/ Condemnation
Proceeds . . . . . . . . . . . . . . . . . . 121
6.5 Inspection Rights . . . . . . . . . . . . . 122
6.6 Compliance with Laws, etc. . . . . . . . . . 122
6.7 Execution of Subsidiary Guaranty and
Personal Property Collateral Documents by
Certain Subsidiaries and Future
Subsidiaries . . . . . . . . . . . . . . . . 122
6.8 Interest Rate Protection . . . . . . . . . . 123
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Section 7. COMPANY'S NEGATIVE COVENANTS . . . . . . . . 123
7.1 Indebtedness . . . . . . . . . . . . . . . . 124
7.2 Liens and Related Matters . . . . . . . . . 125
7.3 Investments; Joint Ventures . . . . . . . . 126
7.4 Contingent Obligations . . . . . . . . . . . 127
7.5 Restricted Junior Payments . . . . . . . . . 128
7.6 Financial Covenants . . . . . . . . . . . . 129
7.7 Restriction on Fundamental Changes; Asset
Sales and Acquisitions . . . . . . . . . . . 131
7.8 Sale or Discount of Receivables . . . . . . 132
7.9 Transactions with Shareholders and
Affiliates . . . . . . . . . . . . . . . . . 132
7.10 Disposal of Subsidiary Stock . . . . . . . . 132
7.11 Conduct of Business . . . . . . . . . . . . 133
7.12 Foreign Subsidiaries. . . . . . . . . . . . 133
7.13 Prepayments . . . . . . . . . . . . . . . . 133
7.14 Amendments or Waivers of Merger Agreement;
Amendments of Documents Relating to
Subordinated Indebtedness . . . . . . . . . 134
7.15 Fiscal Year . . . . . . . . . . . . . . . . 134
Section 8. EVENTS OF DEFAULT . . . . . . . . . . . . . 134
8.1 Failure to Make Payments When Due . . . . . 134
8.2 Default in Other Agreements . . . . . . . . 134
8.3 Breach of Certain Covenants . . . . . . . . 135
8.4 Breach of Warranty . . . . . . . . . . . . . 135
8.5 Other Defaults Under Loan Documents . . . . 135
8.6 Involuntary Bankruptcy; Appointment of
Receiver, etc. . . . . . . . . . . . . . . . 135
8.7 Voluntary Bankruptcy; Appointment of
Receiver, etc. . . . . . . . . . . . . . . . 136
8.8 Judgments and Attachments . . . . . . . . . 136
8.9 Dissolution . . . . . . . . . . . . . . . . 137
8.10 Employee Benefit Plans . . . . . . . . . . . 137
8.11 Material Adverse Effect . . . . . . . . . . 137
8.12 Change in Control . . . . . . . . . . . . . 137
8.13 Invalidity of Subsidiary Guaranty; Failure
of Security; Repudiation of Obligations . . 137
8.14 Failure to Consummate Merger . . . . . . . . 138
8.15 Failure to Comply with Subordination
Provisions. . . . . . . . . . . . . . . . . 138
Section 9. ADMINISTRATIVE AGENT . . . . . . . . . . . . 139
9.1 Appointment . . . . . . . . . . . . . . . . 139
9.2 Powers and Duties; General Immunity . . . . 141
9.3 Representations and Warranties; No
Responsibility For Appraisal of
Creditworthiness . . . . . . . . . . . . . . 143
9.4 Right to Indemnity . . . . . . . . . . . . . 143
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9.5 Successor Administrative Agent . . . . . . . 144
9.6 Collateral Documents and Guaranties . . . . 144
Section 10. MISCELLANEOUS . . . . . . . . . . . . . . . 145
10.1 Assignments and Participations in Loans and
Letters of Credit . . . . . . . . . . . . . 145
10.2 Expenses . . . . . . . . . . . . . . . . . . 149
10.3 Indemnity . . . . . . . . . . . . . . . . . 150
10.4 Set-Off . . . . . . . . . . . . . . . . . . 151
10.5 Ratable Sharing . . . . . . . . . . . . . . 151
10.6 Amendments and Waivers . . . . . . . . . . . 152
10.7 Independence of Covenants . . . . . . . . . 154
10.8 Notices . . . . . . . . . . . . . . . . . . 154
10.9 Survival of Representations, Warranties and
Agreements . . . . . . . . . . . . . . . . . 154
10.10 Failure or Indulgence Not Waiver; Remedies
Cumulative . . . . . . . . . . . . . . . . . 155
10.11 Marshalling; Payments Set Aside . . . . . . 155
10.12 Severability . . . . . . . . . . . . . . . . 155
10.13 Obligations Several; Independent Nature of
Lenders' Rights . . . . . . . . . . . . . . 155
10.14 Headings . . . . . . . . . . . . . . . . . . 156
10.15 Applicable Law . . . . . . . . . . . . . . . 156
10.16 Successors and Assigns . . . . . . . . . . . 156
10.17 Waiver of Jury Trial . . . . . . . . . . . . 156
10.18 Confidentiality . . . . . . . . . . . . . . 157
10.19 Counterparts; Effectiveness . . . . . . . . 157
Signatures . . . . . . . . . . . . . . . . . . . . . . . . S-1
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EXHIBITS
--------
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV-A FORM OF TRANCHE A TERM NOTE
IV-B FORM OF TRANCHE B TERM NOTE
V FORM OF REVOLVING NOTE
VI FORM OF COMPLIANCE CERTIFICATE
VII-A FORM OF OPINION OF COMPANY COUNSEL
VII-B FORM OF OPINION OF COMPANY COUNSEL
VIII FORM OF OPINION OF ADMINISTRATIVE AGENT COUNSEL
IX FORM OF ASSIGNMENT AGREEMENT
X-A FORM OF AUDITOR'S LETTER (Coopers & Lybrand, LLP)
X-B FORM OF AUDITOR'S LETTER (Price Waterhouse, LLP)
XI FORM OF CERTIFICATE RE NON-U.S. BANK STATUS
XII FORM OF COLLATERAL ACCOUNT AGREEMENT
XIII FORM OF COMPANY PLEDGE AGREEMENT
XIV FORM OF COMPANY SECURITY AGREEMENT
XV FORM OF SUBSIDIARY GUARANTY
XVI FORM OF SUBSIDIARY PLEDGE AGREEMENT
XVII FORM OF SUBSIDIARY SECURITY AGREEMENT
XVIII FORM OF FINANCIAL CONDITION CERTIFICATE
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Page 66 of 424 <PAGE>
SCHEDULES
---------
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
-vi-
Page 67 of 424 <PAGE>
URS CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of January 10, 1996 and
entered into by and among URS CORPORATION, a Delaware
corporation ("Company"), THE FINANCIAL INSTITUTIONS LISTED ON
THE SIGNATURE PAGES HEREOF (each individually referred to
herein as a "Lender" and collectively as "Lenders"), and WELLS
FARGO BANK, NATIONAL ASSOCIATION ("Wells Fargo"), as agent for
Lenders (in such capacity, "Administrative Agent").
R E C I T A L S
- - - - - - - -
WHEREAS, Merger Sub (this and other capitalized terms
used in these recitals without definition being used as defined
in subsection 1.1) has been formed by Company for the purpose
of acquiring all of the outstanding shares of capital stock of
Greiner;
WHEREAS, on the Initial Funding Date, (i) Company will
acquire all of the outstanding shares of capital stock of
Greiner pursuant to the Merger Agreement and (ii) immediately
upon the consummation of the Acquisition, Merger Sub will be
merged with and into Greiner pursuant to the Merger Agreement,
with Greiner being the surviving corporation in such merger and
becoming a wholly-owned Domestic Subsidiary of Company;
WHEREAS, Lenders have agreed to extend certain credit
facilities to Company, a portion of the proceeds of which will
be used to fund the Acquisition Financing Requirements and the
remainder of which will be used to provide financing for
working capital and other general corporate purposes of Company
and its Subsidiaries following the Merger;
WHEREAS, Company desires to secure all of the Obligations
hereunder and under the other Loan Documents by granting to
Administrative Agent, on behalf of Lenders, a first priority
Lien on its accounts receivable and certain other collateral
and pledging to Administrative Agent, on behalf of Lenders,
100% of the capital stock held by Company of each of its
Domestic Subsidiaries with assets or revenues in excess of
$100,000 and the lesser of (i) 100% of the capital stock held
by Company of each of its Foreign Subsidiaries with assets or
revenues in excess of $100,000 or (ii) 65% of the capital stock
of any such Foreign Subsidiary; and
WHEREAS, all of the Domestic Subsidiaries of Company with
assets or revenues in excess of $100,000 have agreed to
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guarantee the Obligations hereunder and under the other Loan
Documents and to secure their guaranties by granting to
Administrative Agent, on behalf of Lenders, a first priority
Lien on their accounts receivable and certain other collateral
and pledging to Administrative Agent, on behalf of Lenders,
100% of the capital stock held by such Domestic Subsidiaries of
each of their respective Domestic Subsidiaries with assets or
revenues in excess of $100,000 and the lesser of (i) 100% of
the capital stock held by such Domestic Subsidiaries of each of
their respective Foreign Subsidiaries with assets or revenues
in excess of $100,000 or (ii) 65% of the capital stock of any
such Foreign Subsidiary:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, Company,
Lenders and Administrative Agent agree as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
---------------------
The following terms used in this Agreement shall have the
following meanings:
"Account Receivable" means any right to payment for goods
sold or leased or for services rendered.
"Acquisition" means the purchase of all of the
outstanding shares of capital stock of Greiner contemplated by
the Merger Agreement.
"Acquisition Consideration" means the Cash portion of the
aggregate consideration paid to the shareholders of Greiner in
exchange for all of the outstanding shares of capital stock of
Greiner.
"Acquisition Financing Requirements" means the aggregate
of all amounts necessary (i) to pay the Acquisition
Consideration and (ii) to pay Transaction Costs.
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date with respect to an Interest Period for a
Eurodollar Rate Loan, the rate per annum obtained by DIVIDING
(i) the offered quotation (rounded upward to the nearest 1/16
of 1%) by first class banks in the London interbank market to
Wells Fargo for U.S. dollar deposits of amounts in same day
funds comparable to the principal amount of the Eurodollar Rate
Loan of Wells Fargo for which the Adjusted Eurodollar Rate is
then being determined (which principal amount shall be deemed
to be $1,000,000 in the event Wells Fargo is not making,
converting to or continuing such a Eurodollar Rate Loan) with
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maturities comparable to such Interest Period as of
approximately 9:00 A.M. (San Francisco time) on such Interest
Rate Determination Date BY (ii) a percentage equal to 100%
MINUS the stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable on such
Interest Rate Determination Date to any member bank of the
Federal Reserve System in respect of "Eurocurrency liabilities"
as defined in Regulation D (or any successor category of
liabilities under Regulation D).
"Administrative Agent" has the meaning assigned to that
term in the introduction to this Agreement and also means and
includes any successor Administrative Agent appointed pursuant
to subsection 9.5.
"Affected Class" has the meaning assigned to that term in
subsection 10.6.
"Affected Lender" has the meaning assigned to that term
in subsection 2.6C.
"Affiliate", as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or
under common control with, that Person. For the purposes of
this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under
common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or
by contract or otherwise. Any Person, other than a Lender, who
owns beneficially or of record Securities representing more
than 5% of the total outstanding Securities of Company shall be
an Affiliate of Company.
"Aggregate Amounts Due" has the meaning assigned to that
term in subsection 10.5.
"Agreement" means this Credit Agreement dated as of
January 10, 1996, as it may be amended, supplemented or
otherwise modified from time to time.
"Applicable Base Rate Margin" means, as at any date of
determination, the percentage per annum set forth below
opposite the applicable Leverage Ratio, as determined in
accordance with subsection 2.2A:
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Leverage Ratio Applicable Base Rate Margin
---------------------------------------------------------------
Greater than or equal to 3.50 to 1.00 1.375%
Less than 3.50 to 1.00 1.125%
but greater than or equal to
3.00 to 1.00
Less than 3.00 to 1.00 0.875%
but greater than or equal to
2.75 to 1.00
Less than 2.75 to 1.00
but greater than or equal to 0.625%
2.50 to 1.00
Less than 2.50 to 1.00
but greater than or equal to 0.375%
2.00 to 1.00
Less than 2.00 to 1.00 0.000%
"Applicable Commitment Fee Percentage" means, as at
any date of determination, the percentage per annum set forth
below opposite the applicable Leverage Ratio, as determined in
accordance with subsection 2.3:
Leverage Ratio Applicable Commitment
Fee Percentage
---------------------------------------------------------------
Greater than or equal to 3.50 to 1.00 0.500%
Less than 3.50 to 1.00 0.500%
but greater than or equal to
3.00 to 1.00
Less than 3.00 to 1.00 0.375%
but greater than or equal to
2.75 to 1.00
Less than 2.75 to 1.00 0.375%
but greater than or equal to
2.50 to 1.00
Less than 2.50 to 1.00 0.375%
but greater than or equal to
2.00 to 1.00
Less than 2.00 to 1.00 0.250%
"Applicable Eurodollar Rate Margin" means, as at any
date of determination, the percentage per annum set forth below
opposite the applicable Leverage Ratio, as determined in
accordance with subsection 2.2A:
-4-
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Leverage Ratio Applicable Eurodollar Rate Margin
---------------------------------------------------------------
Greater than or equal to 3.50 to 1.00 2.625%
Less than 3.50 to 1.00 2.375%
but greater than or equal to
3.00 to 1.00
Less than 3.00 to 1.00 2.125%
but greater than or equal to
2.75 to 1.00
Less than 2.75 to 1.00 1.875%
but greater than or equal to
2.50 to 1.00
Less than 2.50 to 1.00 1.625%
but greater than or equal to
2.00 to 1.00
Less than 2.00 to 1.00 1.375%
"Applied Amount" has the meaning assigned to that
term in subsection 2.4B(iv)(b).
"Asset Sale", as applied to any Person, means the
sale by such Person or any of its Subsidiaries to any other
Person (other than such Person or any of its wholly-owned
Subsidiaries) of (i) any of the stock of any Subsidiary of such
Person (other than any stock sold to licensed professionals
employed by such Person or its Subsidiaries in order to comply
with state licensing laws), (ii) substantially all of the
assets of any division or line of business of such Person or
any of its Subsidiaries (other than the assets of any division
or line of business to the extent that the aggregate value of
such assets is equal to $100,000 or less), or (iii) any other
assets (whether tangible or intangible) of such Person or any
of its Subsidiaries (other than any assets to the extent that
the aggregate value of such assets sold in any single
transaction during any fiscal year or related series of
transactions is equal to $100,000 or less).
"Assignment Agreement" means an Assignment Agreement
substantially in the form of Exhibit IX annexed hereto.
----------
"Auditor's Letters" means (i) a letter, substantially
in the form of Exhibit X-A annexed hereto, to Company from
-----------
Coopers & Lybrand, LLP and delivered to Administrative Agent
pursuant to subsection 4.1I and (ii) a letter, substantially in
the form of Exhibit X-B annexed hereto, to Greiner from Price
-----------
Waterhouse, LLP and delivered to Administrative Agent pursuant
to subsection 4.2R.
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Page 72 of 424 <PAGE>
"Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy", as now and hereafter in effect, or
any successor statute.
"Base Rate" means, at any time, the higher of (i) the
Prime Rate or (ii) the rate which is 1/2 of 1% in excess of the
Federal Funds Effective Rate.
"Base Rate Loans" means Loans bearing interest at
rates determined by reference to the Base Rate as provided in
subsection 2.2A.
"Business Day" means (i) for all purposes other than
as covered by clause (ii) below, any day excluding Saturday,
Sunday and any day which is a legal holiday under the laws of
the State of California or is a day on which banking institu-
tions located in such state are authorized or required by law
or other governmental action to close, and (ii) with respect to
all notices, determinations, fundings and payments in
connection with the Adjusted Eurodollar Rate or any Eurodollar
Rate Loans, any day that is a Business Day described in
clause (i) above and that is also a day for trading by and
between banks in Dollar deposits in the London interbank
market.
"Capital Lease", as applied to any Person, means any
lease of any property (whether real, personal or mixed) by that
Person as lessee that, in conformity with GAAP, is accounted
for as a capital lease on the balance sheet of that Person.
"Cash" means money, currency or a credit balance in a
Deposit Account.
"Cash Equivalents" means, as at any date of
determination, (i) marketable securities (a) issued or directly
and unconditionally guaranteed as to interest and principal by
the United States Government or (b) issued by any agency of the
United States of America the obligations of which are backed by
the full faith and credit of the United States of America, in
each case maturing within one year after such date; (ii)
marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such
state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the
time of the acquisition thereof, the highest rating obtainable
from either Standard & Poor's Ratings Group ("S&P") or Moody's
Investors Service, Inc. ("Moody's"); (iii) commercial paper
maturing no more than one year from the date of creation
thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody's;
(iv) certificates of deposit or bankers' acceptances maturing
within one year after such date and issued or accepted by any
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Lender or by any commercial bank organized under the laws of
the United States of America or any state thereof or the
District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary
Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; and
(v) shares of any money market mutual fund that (a) has at
least 95% of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has
net assets of not less than $500,000,000, and (c) has the
highest rating obtainable from either S&P or Moody's.
"Certificate re Non-Bank Status" means a certificate
substantially in the form of Exhibit XI annexed hereto
----------
delivered by a Lender to Administrative Agent pursuant to
subsection 2.7B(iii).
"Class" as applied to Lenders, means each of the
following two classes of Lenders: (i) Lenders having Tranche A
Term Loan Exposure and/or Revolving Loan Exposure (taken
together as a single class) and (ii) Lenders having Tranche B
Term Loan Exposure.
"Collateral" means, collectively, all Accounts
Receivable, other collateral and capital stock in which Liens
are purported to be granted pursuant to the Collateral
Documents as security for the Obligations.
"Collateral Account" has the meaning assigned to that
term in the Collateral Account Agreement.
"Collateral Account Agreement" means the Collateral
Account Agreement executed and delivered by Company and
Administrative Agent on the Signing Date, substantially in the
form of Exhibit XII annexed hereto, as such Collateral Account
-----------
Agreement may hereafter be amended, supplemented or otherwise
modified from time to time.
"Collateral Documents" means the Company Pledge
Agreement, the Company Security Agreement, the Collateral
Account Agreement, the Subsidiary Pledge Agreements, the
Subsidiary Security Agreements, and all other instruments or
documents delivered by any Loan Party pursuant to this
Agreement or any of the other Loan Documents in order to grant
to Administrative Agent, on behalf of Lenders, a Lien on any
property of that Loan Party as security for the Obligations.
"Commitments" means the commitments of Lenders to
make Loans as set forth in subsection 2.1A.
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"Company" has the meaning assigned to that term in
the introduction to this Agreement.
"Company Pledge Agreement" means the Company Pledge
Agreement executed and delivered by Company on the Signing
Date, substantially in the form of Exhibit XIII annexed hereto,
------------
as such Company Pledge Agreement may thereafter be amended,
supplemented or otherwise modified from time to time.
"Company Security Agreement" means the Company
Security Agreement executed and delivered by Company on the
Signing Date, substantially in the form of Exhibit XIV annexed
-----------
hereto, as such Company Security Agreement may thereafter be
amended, supplemented or otherwise modified from time to time.
"Compliance Certificate" means a certificate substan-
tially in the form of Exhibit VI annexed hereto delivered to
----------
Administrative Agent and Lenders by Company pursuant to
subsection 6.1(vii).
"Consolidated Capital Expenditures" means, for any
period following consummation of the Merger, the sum of (i) the
aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that
portion of Capital Leases which is capitalized on the
consolidated balance sheet of Company and its Subsidiaries) by
Company and its Subsidiaries during that period for fixed
assets and leasehold improvements of Company and its
Subsidiaries PLUS (ii) to the extent not covered by clause (i)
of this definition, the aggregate of all expenditures by
Company and its Subsidiaries during that period (a) to purchase
or develop computer software or systems (but only to the extent
such expenditures are capitalized on the consolidated balance
sheet of Company and its Subsidiaries in conformity with GAAP)
or (b) to acquire (by purchase or otherwise) the business,
property or fixed assets of any other Person, or the stock or
other evidence of beneficial ownership of any other Person
that, as a result of such acquisition, becomes a Subsidiary of
Company (other than the portion of the Acquisition
Consideration allocated to the net fixed assets of Greiner and
its Subsidiaries in an amount not to exceed $12,000,000).
"Consolidated Cash Interest Expense" means, for any
period following consummation of the Merger, Consolidated
Interest Expense for such period, excluding, however, any
interest expense not payable in Cash (including amortization of
discount and amortization of debt issuance costs).
-8-
Page 75 of 424 <PAGE>
"Consolidated Current Liabilities" means, as at any
date of determination following consummation of the Merger, the
total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current
liabilities in conformity with GAAP, including the aggregate
principal amount of all outstanding Revolving Loans and the
maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then
outstanding and the current portion of the aggregate principal
amount of all outstanding Term Loans.
"Consolidated EBITDA" means, for any period following
consummation of the Merger, the sum of the amounts for such
period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense, (iii) provisions for taxes based on income,
(iv) total depreciation expense, (v) total amortization
expense, and (vi) other non-cash items reducing Consolidated
Net Income LESS other non-cash items increasing Consolidated
Net Income, all of the foregoing as determined on a
consolidated basis for Company and its Subsidiaries in
conformity with GAAP.
"Consolidated Excess Cash" means, as at the last day
of the first Fiscal Quarter following the Initial Funding Date,
(i) the sum as at such date of Cash, Cash Equivalents and other
items constituting "cash" on the balance sheet of Company and
its Subsidiaries consistent with historical practices MINUS
(ii) $5,000,000.
"Consolidated Excess Cash Flow" means, for any
period, an amount (if positive) equal to (i) Consolidated
EBITDA for such period MINUS (ii) the sum, without duplication,
of (a) Consolidated Principal Payments for such period, (b)
Consolidated Capital Expenditures (net of any proceeds of any
related financings with respect to such expenditures) for such
period, (c) Consolidated Cash Interest Expense for such period,
(d) the provision for current taxes based on income of Company
and its Subsidiaries on a consolidated basis and payable in
Cash during such period, and (e) $1,000,000; PROVIDED, HOWEVER,
that in the event that any such period includes any period
prior to consummation of the Merger, (1) "Consolidated EBITDA"
for any such period prior to consummation of the Merger shall
mean the sum of Pre Merger URS Consolidated EBITDA for such
period PLUS Pre Merger Greiner Consolidated EBITDA for such
period; (2) "Consolidated Principal Payments" for any such
period prior to consummation of the Merger shall mean the sum
of Pre Merger URS Consolidated Principal Payments for such
period PLUS Pre Merger Greiner Consolidated Principal Payments
for such period (in each case excluding repayments of revolving
loans); (3) "Consolidated Capital Expenditures" for any such
period prior to consummation of the Merger shall mean the sum
of Pre Merger URS Consolidated Capital Expenditures for such
-9-
Page 76 of 424 <PAGE>
period PLUS Pre Merger Greiner Consolidated Capital
Expenditures for such period (in each case net of any proceeds
of any related financings with respect to such expenditures);
(4) "Consolidated Cash Interest Expense" for any such period
prior to consummation of the Merger shall mean the sum of Pre
Merger URS Consolidated Cash Interest Expense for such period
PLUS Pre Merger Greiner Consolidated Cash Interest Expense for
such period; and (5) the provision for current taxes based on
income of Company and its Subsidiaries for any such period
prior to consummation of the Merger shall mean the sum of
(A) the provision for current taxes based on income of URS and
its Subsidiaries on a consolidated basis and payable in Cash
during such period PLUS (B) the provision for current taxes
based on income of Greiner and its Subsidiaries on a
consolidated basis and payable in Cash during such period.
"Consolidated Fixed Charges" means, for any period
following consummation of the Merger, the sum (without
duplication) of the amounts for such period of (i) Consolidated
Interest Expense, (ii) provisions for taxes based on income and
payable in Cash, and (iii) Consolidated Scheduled Principal
Payments, all of the foregoing as determined on a consolidated
basis for Company and its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, for any period
following consummation of the Merger, total interest expense
(including that portion attributable to Capital Leases in
accordance with GAAP and capitalized interest) of Company and
its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of Company and its Subsidiaries during
such period, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net
costs under Interest Rate Agreements to which Company or any of
its Subsidiaries is a party, but excluding, however, any
amounts referred to in subsection 2.3 payable to Administrative
Agent and Lenders on or before the Signing Date.
"Consolidated Net Income" means, for any period
following consummation of the Merger, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in
conformity with GAAP; PROVIDED that there shall be excluded
(i) the income (or loss) of any Person (other than a Subsidiary
of Company or a Joint Venture) in which any other Person (other
than Company or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other
distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income
(or loss) of any Person accrued prior to the date it becomes a
Subsidiary of Company or is merged into or consolidated with
Company or any of its Subsidiaries or that Person's assets are
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Page 77 of 424 <PAGE>
acquired by Company or any of its Subsidiaries, (iii) the
income of any Subsidiary of Company to the extent that the
declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (iv) any
after-tax gains or losses attributable to Asset Sales by
Company or any of its Subsidiaries or returned surplus assets
of any Pension Plan of Company or any of its Subsidiaries, and
(v) (to the extent not included in clauses (i) through (iv)
above) any net extraordinary gains or net non-cash
extraordinary losses.
"Consolidated Principal Payments" means, for any
period following consummation of the Merger, the aggregate
amount of all voluntary and scheduled repayments of principal
by Company and its Subsidiaries on a consolidated basis during
such period under all Indebtedness of Company or any of its
Subsidiaries (including the principal component of Capital
Leases), other than any repayment of the Existing Blum
Subordinated Convertible Note solely through the issuance of
shares of Company's common stock.
"Consolidated Quick Assets" means, as at any date of
determination following consummation of the Merger, all Cash,
Cash Equivalents and Eligible Accounts Receivable of Company
and its Subsidiaries on a consolidated basis which may properly
be classified as current assets in conformity with GAAP.
"Consolidated Scheduled Principal Payments" means,
for any period following consummation of the Merger, the
aggregate amount of all scheduled repayments of principal by
Company and its Subsidiaries on a consolidated basis during
such period under all Indebtedness of Company or any of its
Subsidiaries (including the principal component of Capital
Leases), other than any repayment of the Existing Blum
Subordinated Convertible Note solely through the issuance of
shares of Company's common stock.
"Consolidated Tangible Net Worth" means, as at any
date of determination, the sum of the capital stock and
additional paid-in capital plus retained earnings (or minus
accumulated deficits) of Company and its Subsidiaries LESS
(i) the aggregate amount of all treasury stock, (ii) any
goodwill or other intangible assets and (iii) the aggregate
amount of all obligations owing to Company or any of its
Subsidiaries from any employee or Affiliate of Company, all of
the foregoing as determined on a consolidated basis for Company
and its Subsidiaries in conformity with GAAP.
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"Consolidated Total Funded Debt" means, as at any
date of determination following consummation of the Merger, the
sum of (i) the aggregate principal amount of all outstanding
Term Loans, (ii) the maximum aggregate amount which is or at
any time thereafter may become available for drawing under all
Letters of Credit then outstanding, (iii) the aggregate amount
of that portion of obligations with respect to Capital Leases
of Company or any of its Subsidiaries that is properly
classified as a liability on a balance sheet in conformity with
GAAP, (iv) all Indebtedness of Company or any of its
Subsidiaries for borrowed money evidenced by a note or similar
written instrument, and (v) the average aggregate principal
amount of all Revolving Loans outstanding during the 12-month
period immediately preceding the date of determination.
"Contingent Obligation", as applied to any Person,
means any direct or indirect liability, contingent or
otherwise, of that Person (i) with respect to any Indebted-
ness, lease, dividend or other obligation of another if the
primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of
such obligation of another that such obligation of another will
be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect
thereof, (ii) with respect to any letter of credit issued for
the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings, or (iii) under
Hedge Agreements. Contingent Obligations shall include,
without limitation, (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation
of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other
party or parties to an agreement, and (c) any liability of such
Person for the obligation of another through any agreement
(contingent or otherwise) (1) to purchase, repurchase or other-
wise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases,
capital contributions or otherwise) or (2) to maintain the
solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement
described under subclauses (1) or (2) of this sentence, the
primary purpose or intent thereof is as described in the
preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or
otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
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"Contractual Obligation", as applied to any Person,
means any provision of any Security issued by that Person or of
any material indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement, futures contract, option
contract, synthetic cap or other similar agreement or
arrangement.
"Deposit Account" means a demand, time, savings,
passbook or like account with a bank, savings and loan
association, credit union or like organization, other than an
account evidenced by a negotiable certificate of deposit.
"Dollars" and the sign "$" mean the lawful money of
the United States of America.
"Domestic Subsidiary" means any Subsidiary organized
or incorporated under the laws of a state of the United States
of America.
"Domestic Subsidiary Guarantor" means any Domestic
Subsidiary of Company that executes and delivers a Subsidiary
Guaranty on the Signing Date, the Initial Funding Date or from
time to time thereafter pursuant to subsection 6.7.
"Eligible Accounts Receivable", as applied to any
Person, means all billed Accounts Receivable of such Person and
its Subsidiaries.
"Eligible Assignee" means (i) (a) a commercial bank
organized under the laws of the United States of America or any
state thereof and having a combined capital and surplus of at
least $100,000,000; (b) a savings and loan association or
savings bank organized under the laws of the United States of
America or any state thereof and having a combined capital and
surplus of at least $100,000,000; (c) a commercial bank
organized under the laws of any other country or a political
subdivision thereof and having a combined capital and surplus
of at least $100,000,000; PROVIDED that (1) such bank is acting
through a branch or agency located in the United States of
America or (2) such bank is organized under the laws of a
country that is a member of the Organization for Economic
Cooperation and Development or a political subdivision of such
country; and (d) any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses
including, but not limited to, insurance companies, mutual
funds and lease financing companies; and (ii) any Lender and
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any Affiliate of any Lender; PROVIDED that no Affiliate of
Company shall be an Eligible Assignee.
"Employee Benefit Plan", as applied to any Person,
means any "employee benefit plan" as defined in Section 3(3) of
ERISA which is or was maintained or contributed to by such
Person, any of its Subsidiaries or any of their respective
ERISA Affiliates.
"Environmental Claim" means any investigation,
notice, notice of violation, claim, action, suit, proceeding,
demand, abatement order or other order or directive
(conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law,
(ii) in connection with any Hazardous Materials or any actual
or alleged Hazardous Materials Activity, or (iii) in connection
with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"Environmental Laws" means any and all current or
future statutes, ordinances, orders, rules, regulations,
guidance documents, judgments, Governmental Authorizations, or
any other requirements of governmental authorities relating to
(i) environmental matters, including those relating to any
Hazardous Materials Activity, (ii) the generation, use,
storage, transportation or disposal of Hazardous Materials, or
(iii) occupational safety and health, industrial hygiene, land
use or the protection of human, plant or animal health or
welfare, in any manner applicable to Company or any of its
Subsidiaries or any Facility, including the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. sec. 9601 et seq.), the Hazardous Materials Transportation
Act (49 U.S.C. sec. 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. sec. 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. sec. 1251 et seq.), the Clean Air
Act (42 U.S.C. sec. 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C. sec. 2601 et seq.), the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. sec. 136 et seq.), the
Occupational Safety and Health Act (29 U.S.C. sec. 651 et seq.),
the Oil Pollution Act (33 U.S.C. sec. 2701 et seq) and the
Emergency Planning and Community Right-to-Know Act (42 U.S.C.
sec. 11001 et seq.), each as amended or supplemented, any
analogous present or future state or local statutes or laws,
and any regulations promulgated pursuant to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and any successor
thereto.
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"ERISA Affiliate," as applied to any Person, means
(i) any corporation which is a member of a controlled group of
corporations within the meaning of Section 414(b) of the
Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which
is a member of a group of trades or businesses under common
control within the meaning of Section 414(c) of the Internal
Revenue Code of which that Person is a member; and (iii) any
member of an affiliated service group within the meaning of
Section 414(m) or (o) of the Internal Revenue Code of which
that Person, any corporation described in clause (i) above or
any trade or business described in clause (ii) above is a
member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate
of Company or such Subsidiary within the meaning of this
definition with respect to the period such entity was an ERISA
Affiliate of Company or such Subsidiary and with respect to
liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or
ERISA.
"ERISA Event" means (i) a "reportable event" within
the meaning of Section 4043 of ERISA and the regulations issued
thereunder with respect to any Pension Plan of Company or any
of its Subsidiaries (excluding those for which the provision
for 30-day notice to the PBGC has been waived by regulation);
(ii) the failure to meet the minimum funding standard of
Section 412 of the Internal Revenue Code with respect to any
Pension Plan of Company or any of its Subsidiaries (whether or
not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure by Company or any of its
Subsidiaries to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect
to any Pension Plan or the failure by Company or any of its
Subsidiaries to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of
any Pension Plan of Company or any of its Subsidiaries pursuant
to Section 4041(a)(2) of ERISA of a notice of intent to
terminate such plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the withdrawal by Company, any
of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or
the termination of any such Pension Plan resulting in liability
pursuant to Section 4063 or 4064 of ERISA; (v) the institution
by the PBGC of proceedings to terminate any Pension Plan of
Company or any of its Subsidiaries, or the occurrence of any
event or condition which might constitute grounds under ERISA
for the termination of, or the appointment of a trustee to
administer, any Pension Plan of Company or any of its
Subsidiaries; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of
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the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability
therefor, or the receipt by Company, any of its Subsidiaries or
any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends
to terminate or has terminated under Section 4041A or 4042 of
ERISA; (viii) the occurrence of an act or omission which could
give rise to the imposition on Company, any of its Subsidiaries
or any of their respective ERISA Affiliates of fines,
penalties, taxes or related charges under Chapter 43 of the
Internal Revenue Code or under Section 409, Section 502(c), (i)
or (l), or Section 4071 of ERISA in respect of any Employee
Benefit Plan; (ix) the assertion of a material claim (other
than routine claims for benefits) against any Employee Benefit
Plan of Company or any of its Subsidiaries other than a
Multiemployer Plan or the assets thereof, or against Company,
any of its Subsidiaries or any of their respective ERISA
Affiliates in connection with any Employee Benefit Plan;
(x) receipt from the Internal Revenue Service of notice of the
failure of any Pension Plan of Company or any of its
Subsidiaries (or any other Employee Benefit Plan of Company or
any of its Subsidiaries intended to be qualified under Section
401(a) of the Internal Revenue Code) to qualify under Section
401(a) of the Internal Revenue Code, or the failure of any
trust forming part of any Pension Plan of Company or any of its
Subsidiaries to qualify for exemption from taxation under
Section 501(a) of the Internal Revenue Code; or (xi) the
imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Internal Revenue Code or pursuant to ERISA with respect
to any Pension Plan of Company or any of its Subsidiaries.
"Eurodollar Rate Loans" means Loans bearing interest
at rates determined by reference to the Adjusted Eurodollar
Rate as provided in subsection 2.2A.
"Event of Default" means each of the events set forth
in Section 8.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and any successor statute.
"Exchange Rate" means, on any date when an amount
expressed in a currency other than Dollars is to be determined
with respect to any Letter of Credit, the nominal rate of
exchange of the Issuing Lender in the New York foreign exchange
market for the purchase by the Issuing Lender (by cable
transfer) of such currency in exchange for Dollars at 12:00
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noon (New York time) one Business Day prior to such date,
expressed as a number of units of such currency per one Dollar.
"Existing Blum Subordinated Credit Agreement" means
the Credit and Security Agreement, dated January 30, 1989, as
amended through the date hereof, pursuant to which the Existing
Blum Subordinated Convertible Note was issued, as such
agreement may be further amended from time to time to the
extent permitted under subsection 7.14B.
"Existing Blum Subordinated Convertible Note" means
the promissory note executed by Company dated January 30, 1989
and due November 1, 2000 in the principal amount of $4,000,000.
"Existing Blum Subordination Agreement" means the
Subordination Agreement, dated October 19, 1992, between Wells
Fargo, Richard C. Blum & Associates, Inc., BK Capital Partners,
BK Capital Partners II and BK Capital Partners III, Company,
Thortec Environmental Systems, Inc., Mitchell Management
Systems, Inc. and URS Consultants, Inc.
"Existing Company Letters of Credit" means those
letters of credit issued for the account of Company and
identified on Schedule 1.1 of the Initial Funding Date Company
Disclosure Letter.
"Existing Credit Agreements" means (i) that certain
Third Restated Credit Agreement dated as of May 12, 1995
between Company, URS Consultants, Inc. and Wells Fargo and
(ii) that certain Line of Credit Agreement dated as of May 31,
1993 among Greiner and Sanwa Bank, in each case as amended
prior to the Initial Funding Date.
"Existing Greiner Letters of Credit" means those
letters of credit issued for the account of Greiner and
identified on Schedule 1.1 of the Initial Funding Date Company
Disclosure Letter.
"Existing Public Debt" means, collectively, the
Existing Senior Subordinated Notes and the Existing
Subordinated Notes.
"Existing Senior Subordinated Note Indenture" means
the Indenture, dated as of March 16, 1989, between Thortec
International, Inc. and MTrust Corp, National Association, as
amended by Amendment Number 1 and Amendment Number 2, as such
indenture may be further amended from time to time to the
extent permitted under subsection 7.14B.
"Existing Senior Subordinated Notes" means Company's
8 % Senior Subordinated Notes due 2004 in the original
aggregate principal amount of $36,814,500 and the remaining
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aggregate principal amount of $6,454,750 as of the Signing
Date.
"Existing Subordinated Agreements" means,
collectively, the Existing Blum Subordinated Credit Agreement,
the Existing Senior Subordinated Note Indenture and the
Existing Subordinated Note Indenture.
"Existing Subordinated Indebtedness" means,
collectively, the Existing Public Debt and the Existing Blum
Subordinated Convertible Note.
"Existing Subordinated Note Indenture" means the
Indenture, dated as of February 15, 1987, between Company and
First Interstate Bank of California, as amended by Amendment
Number 1, as such indenture may be further amended from time to
time to the extent permitted under subsection 7.14B.
"Existing Subordinated Notes" means Company's 6-1/2%
Convertible Subordinated Notes due 2012 in the original
aggregate principal amount of $57,500,000 and the remaining
aggregate principal amount of $2,145,000 as of the Signing
Date.
"Facilities" means any and all real property
(including, without limitation, all buildings, fixtures or
other improvements located thereon) now, hereafter or
heretofore owned, leased, operated or used by Company or any of
its Subsidiaries or any of their respective predecessors or
Affiliates.
"Federal Funds Effective Rate" means, for any period,
a fluctuating interest rate equal for each day during such
period to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day on
such transactions received by Administrative Agent from three
Federal funds brokers of recognized standing selected by
Administrative Agent.
"Financial Plan" has the meaning assigned to that
term in subsection 6.1(xvi).
"First Priority" means, with respect to any Lien
purported to be created in any Collateral pursuant to any
Collateral Document, that (i) such Lien has priority over any
other Lien on such Collateral and (ii) such Lien is the only
Lien to which such Collateral is subject.
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"Fiscal Quarter" means a fiscal quarter of any Fiscal
Year.
"Fiscal Year" means the fiscal year of Company and
its Subsidiaries ending on October 31 of each calendar year.
For purposes of this Agreement, any particular Fiscal Year
shall be designated by reference to the calendar year in which
such Fiscal Year ends.
"Foreign Subsidiary" means any Subsidiary formed or
organized under the laws of a jurisdiction other than a state
of the United States of America.
"Funding and Payment Office" means (i) the office of
Administrative Agent located at 420 Montgomery Street,
San Francisco, California 94163 or (ii) such other office of
Administrative Agent as may from time to time hereafter be
designated as such in a written notice delivered by
Administrative Agent to Company and each Lender.
"Funding Date" means the date of the funding of a
Loan.
"GAAP" means, subject to the limitations on the
application thereof set forth in subsection 1.2, generally
accepted accounting principles set forth in opinions and pro-
nouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as may be
approved by a significant segment of the accounting profession,
in each case as the same are applicable to the circumstances as
of the date of determination.
"Governmental Acts" has the meaning assigned to that
term in subsection 3.5A.
"Governmental Authorization" means any permit,
license, authorization, plan, directive, consent order or
consent decree of or from any federal, state or local
governmental authority, agency or court.
"Greiner" means Greiner Engineering, Inc., a Nevada
corporation.
"Greiner Fiscal Quarter" means, prior to consummation
of the Merger, a fiscal quarter of any Greiner Fiscal Year.
"Greiner Fiscal Year" means, prior to consummation of
the Merger, the fiscal year of Greiner and its Subsidiaries
ending on December 31 of each calendar year.
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"Hazardous Materials" means (i) any chemical,
material or substance at any time defined as or included in the
definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous waste", acutely
hazardous waste", "radioactive waste", "biohazardous waste",
"pollutant", "toxic pollutant", "contaminant", "restricted
hazardous waste", "infectious waste", "toxic substances", or
any other term or expression intended to define, list or
classify substances by reason of properties harmful to health,
safety or the indoor or outdoor environment (including harmful
properties such as ignitability, corrosivity, reactivity,
carcinogenicity, toxicity, reproductive toxicity, "TCLP
toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum,
petroleum fraction or petroleum derived substance; (iii) any
drilling fluids, produced waters and other wastes associated
with the exploration, development or production of crude oil,
natural gas or geothermal resources; (iv) any flammable
substances or explosives; (v) any radioactive materials;
(vi) any asbestos-containing materials; (vii) urea formaldehyde
foam insulation; (viii) electrical equipment which contains any
oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or
substance, exposure to which is prohibited, limited or
regulated by any governmental authority or which may or could
pose a hazard to the health and safety of the owners, occupants
or any Persons in the vicinity of any Facility or to the indoor
or outdoor environment.
"Hazardous Materials Activity" means any past,
current, proposed or threatened activity, event or occurrence
involving any Hazardous Materials, including the use,
manufacture, possession, storage, holding, presence, existence,
location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction,
treatment, abatement, removal, remediation, disposal,
disposition or handling of any Hazardous Materials, and any
corrective action or response action with respect to any of the
foregoing.
"Hedge Agreement" means an Interest Rate Agreement or
a Currency Agreement designed to hedge against fluctuations in
interest rates or currency values, respectively.
"Inactive Subsidiary" has the meaning assigned to
that term in subsection 5.1E.
"Indebtedness", as applied to any Person, means
(i) all indebtedness for borrowed money, (ii) that portion of
obligations with respect to Capital Leases that is properly
classified as a liability on a balance sheet in conformity with
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GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations
for borrowed money, (iv) any obligation owed for all or any
part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which
purchase price is (a) due more than six months from the date of
incurrence of the obligation in respect thereof or (b)
evidenced by a note or similar written instrument, and (v) all
indebtedness secured by any Lien on any property or asset owned
or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person. Obligations under
Interest Rate Agreements and Currency Agreements constitute
(1) in the case of Hedge Agreements, Contingent Obligations,
and (2) in all other cases, Investments, and in neither case
constitute Indebtedness.
"Indemnified Liabilities" has the meaning assigned to
that term in subsection 10.3.
"Indemnitee" has the meaning assigned to that term in
subsection 10.3.
"Initial Funding Date" means the date, on or before
May 31, 1996, or such later date as may be established pursuant
to subsection 2.1E, on which the initial Loans are made.
"Initial Funding Date Company Disclosure Letter"
means the letter dated the Initial Funding Date delivered to
Administrative Agent by Company containing information with
respect to Company and its Subsidiaries and Greiner and its
Subsidiaries.
"Initial Revolving Loans" has the meaning assigned to
that term in subsection 2.5A.
"Interest Payment Date" means (i) with respect to any
Base Rate Loan, each January 31, April 30, July 31 and
October 31 of each year, commencing on the first such date to
occur after the Initial Funding Date, and (ii) with respect to
any Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; PROVIDED that in the case of each
Interest Period of six months "Interest Payment Date" shall
also include the date that is three months after the
commencement of such Interest Period.
"Interest Period" has the meaning assigned to that
term in subsection 2.2B.
"Interest Rate Agreement" means any interest rate
swap agreement, interest rate cap agreement, interest rate
collar agreement or other similar agreement or arrangement.
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"Interest Rate Determination Date" means, with
respect to any Interest Period, the second Business Day prior
to the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended to the date hereof and from time to
time hereafter, and any successor statute.
"Investment" means (i) any direct or indirect
purchase or other acquisition by Company or any of its
Subsidiaries of, or of a beneficial interest in, any Securities
of any other Person (including any Subsidiary of Company),
(ii) any direct or indirect redemption, retirement, purchase or
other acquisition for value, by any Subsidiary of Company from
any Person other than Company or any of its Subsidiaries, of
any equity Securities of such Subsidiary, (iii) any direct or
indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Subsidiaries to
any other Person, including all indebtedness and accounts
receivable from that other Person that are not current assets
or did not arise from sales to that other Person in the ordi-
nary course of business, or (iv) Interest Rate Agreements or
Currency Agreements not constituting Hedge Agreements. The
amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment.
"Issuing Lender" means, with respect to any Letter of
Credit, Wells Fargo.
"Joint Venture" means a joint venture, partnership or
other similar arrangement, whether in corporate, partnership or
other legal form; PROVIDED that in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to
which such Person is a party.
"Lender" and "Lenders" means the persons identified
as "Lenders" and listed on the signature pages of this Agree-
ment, together with their successors and permitted assigns
pursuant to subsection 10.1.
"Letter of Credit" or "Letters of Credit" means
(i) any letter of credit or similar instrument issued or to be
issued by the Issuing Lender for the account of Company
pursuant to subsection 3.1 for the purpose of supporting
(a) Indebtedness of Company or any of its Subsidiaries in
respect of industrial revenue or development bonds or
financings, (b) workers' compensation liabilities of Company or
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any of its Subsidiaries, (c) the obligations of third party
insurers of Company or any of its Subsidiaries arising by
virtue of the laws of any jurisdiction requiring third party
insurers, (d) obligations with respect to Capital Leases or
Operating Leases of Company or any of its Subsidiaries, and
(e) performance, payment, deposit or surety obligations of
Company or any of its Subsidiaries, in any case if required by
law or governmental rule or regulation or in accordance with
custom and practice in the industry; PROVIDED that Letters of
Credit may not be issued for the purpose of supporting any
Indebtedness constituting "antecedent debt" (as that term is
used in Section 547 of the Bankruptcy Code), and (ii) the
Existing Company Letters of Credit.
"Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate amount
which is or at any time thereafter may become available for
drawing under all Letters of Credit then outstanding PLUS
(ii) the aggregate amount of all drawings under Letters of
Credit honored by the Issuing Lender and not theretofore
reimbursed by Company (including any such reimbursement out of
the proceeds of Revolving Loans pursuant to subsection 3.3B).
For purposes of this definition, any amount described in clause
(i) or (ii) of the preceding sentence which is denominated in a
currency other than Dollars shall be valued based on the
applicable Exchange Rate for such currency as of the applicable
date of determination.
"Leverage Ratio" has the meaning assigned to that
term in subsection 7.6C.
"Lien" means any lien, mortgage, pledge, assignment,
security interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any
security interest) and any option, trust or other preferential
arrangement having the practical effect of any of the
foregoing.
"Loan" or "Loans" means one or more of the Tranche A
Term Loans, Tranche B Term Loans or Revolving Loans or any
combination thereof.
"Loan Documents" means this Agreement, the Notes, the
Letters of Credit (and any applications for, or reimbursement
agreements or other documents or certificates executed by
Company in favor of the Issuing Lender relating to, the Letters
of Credit) and the Collateral Documents.
"Loan Party" means each of Company and any of
Company's Subsidiaries from time to time executing a Loan
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Document, and "Loan Parties" means all such Persons,
collectively.
"Margin Stock" has the meaning assigned to that term
in Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Material Adverse Effect", as applied to any Person,
means (i) a material adverse effect upon the business,
operations, properties, assets, condition (financial or
otherwise) or prospects of such Person or any of its
Subsidiaries or (ii) the material impairment of the ability of
any Loan Party to perform, or of Administrative Agent or
Lenders to enforce, the Obligations.
"Material Contract", as applied to any Person, means
any contract or other arrangement to which such Person or any
of its Subsidiaries is a party (other than the Loan Documents)
for which breach, nonperformance, cancellation or failure to
renew could have a Material Adverse Effect on such Person.
"Merger" means the merger of Merger Sub with and into
Greiner in accordance with the terms of the Merger Agreement,
with Greiner being the surviving corporation in such Merger.
"Merger Agreement" means that certain Agreement and
Plan of Merger by and among Greiner, Company and Merger Sub
dated as of January 9, 1996, in the form delivered to
Administrative Agent and Lenders prior to their execution of
this Agreement and as such agreement may be amended from time
to time thereafter to the extent permitted under
subsection 7.14A.
"Merger Sub" means URS Acquisition Corporation, a
Nevada corporation and a wholly-owned Subsidiary of Company.
"Multiemployer Plan" means any Employee Benefit Plan
which is a "multiemployer plan" as defined in Section 3(37) of
ERISA.
"Net Asset Sale Proceeds" means, with respect to any
Asset Sale by Company or any of its Subsidiaries, Cash payments
(including any Cash received by way of deferred payment
pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) received from such
Asset Sale, net of any bona fide direct costs incurred in
connection with such Asset Sale, including, without limitation,
(i) income taxes reasonably estimated to be actually payable
within two years of the date of such Asset Sale as a result of
any gain recognized in connection with such Asset Sale and
(ii) payment of the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than
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the Loans) that is secured by a Lien on the stock or assets in
question and that is required to be repaid under the terms
thereof as a result of such Asset Sale.
"Net Pension Proceeds" has the meaning assigned to
that term in subsection 2.4B(iii)(b).
"Net Proceeds Amount" has the meaning assigned to
that term in subsection 2.4B(iii)(g).
"Net Securities Proceeds" has the meaning assigned to
that term in subsection 2.4B(iii)(c).
"Non-US Lender" has the meaning assigned to that term
in subsection 2.7B(iii)(a).
"Notes" means one or more of the Tranche A Term
Notes, Tranche B Term Notes or Revolving Notes or any
combination thereof.
"Notice of Borrowing" means a notice substantially in
the form of Exhibit I annexed hereto delivered by Company to
---------
Administrative Agent pursuant to subsection 2.1B with respect
to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice
substantially in the form of Exhibit II annexed hereto
----------
delivered by Company to Administrative Agent pursuant to
subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the
interest rate with respect to the Loans specified therein.
"Notice of Issuance of Letter of Credit" means a
notice substantially in the form of Exhibit III annexed hereto
-----------
delivered by Company to Administrative Agent pursuant to
subsection 3.1B(i) with respect to the proposed issuance of a
Letter of Credit.
"Obligations" means all obligations of every nature
of each Loan Party from time to time owed to Administrative
Agent, Lenders or any of them under the Loan Documents, whether
for principal, interest, reimbursement of amounts drawn under
Letters of Credit, fees, expenses, indemnification or
otherwise.
"Officer's Certificate" means, as applied to any
corporation, a certificate executed on behalf of such
corporation by its president or by its chief financial officer;
PROVIDED that every Officer's Certificate with respect to the
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compliance with a condition precedent to the making of any
Loans hereunder shall include (i) a statement that the officer
making or giving such Officer's Certificate has read such
condition and any definitions or other provisions contained in
this Agreement relating thereto, (ii) a statement that, in the
opinion of the signer, he or she has made or has caused to be
made such examination or investigation as is necessary to
enable such signer to express an informed opinion as to whether
or not such condition has been complied with, and (iii) a
statement as to whether, in the opinion of the signer, such
condition has been complied with.
"Operating Lease" as applied to any Person, means any
lease (including, without limitation, leases that may be
terminated by the lessee at any time) of any property (whether
real, personal or mixed) that is not a Capital Lease other than
any such lease under which that Person is the lessor.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereto.
"Pension Plan" means any Employee Benefit Plan, other
than a Multiemployer Plan, which is subject to Section 412 of
the Internal Revenue Code or Section 302 of ERISA.
"Permitted Encumbrances" means the following types of
Liens (excluding any such Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA,
any such Lien relating to or imposed in connection with any
Environmental Claim, and any such Lien expressly prohibited by
any applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the
time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of
banks and rights of set-off, statutory Liens of carriers,
warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law, in each case
incurred in the ordinary course of business (a) for
amounts not yet overdue or (b) for amounts that are
overdue and that (in the case of any such amounts overdue
for a period in excess of five days) are being contested
in good faith by appropriate proceedings, so long as such
reserves or other appropriate provisions, if any, as shall
be required by GAAP shall have been made for any such
contested amounts;
(iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers'
compensation, unemployment insurance and other types of
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social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids,
leases, government contracts, trade contracts, performance
and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed
money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any
property of Company or any of its Subsidiaries on account
thereof;
(iv) any attachment or judgment Lien not consti-
tuting an Event of Default under subsection 8.8;
(v) leases or subleases granted to third parties and
not interfering in any material respect with the ordinary
conduct of the business of Company or any of its
Subsidiaries;
(vi) any (a) interest or title of a lessor or
sublessor under any lease, (b) restriction or encumbrance
that the interest or title of such lessor or sublessor may
be subject to, or (c) subordination of the interest of the
lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b), so
long as the holder of such restriction or encumbrance
agrees to recognize the rights of such lessee or sublessee
under such lease; and
(vii) Liens arising from filing UCC financing
statements relating solely to leases permitted by this
Agreement.
"Person" means and includes natural persons,
corporations, limited partnerships, general partnerships,
limited liability companies, limited liability partnerships,
joint stock companies, Joint Ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or
other organizations, whether or not legal entities, and
governments (whether federal, state or local, domestic or
foreign, and including political subdivisions thereof) and
agencies or other administrative or regulatory bodies thereof.
"Pledged Collateral" means, collectively, the
"Pledged Collateral" as defined in the Company Pledge Agreement
and the Subsidiary Pledge Agreements.
"Potential Event of Default" means a condition or
event that, after notice or lapse of time or both, would
constitute an Event of Default.
"Pre Closing Date" means the date which is two weeks
in advance of the Initial Funding Date.
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"Pre Merger Greiner Consolidated Capital
Expenditures" means, for any period prior to consummation of
the Merger, the sum of (i) the aggregate of all expenditures
(whether paid in cash or other consideration or accrued as a
liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Greiner and
its Subsidiaries) by Greiner and its Subsidiaries during that
period for fixed assets and leasehold improvements of Greiner
and its Subsidiaries PLUS (ii) to the extent not covered by
clause (i) of this definition, the aggregate of all
expenditures by Greiner and its Subsidiaries during that period
(a) to purchase or develop computer software or systems (but
only to the extent such expenditures are capitalized on the
consolidated balance sheet of Greiner and its Subsidiaries in
conformity with GAAP) or (b) to acquire (by purchase or
otherwise) the business, property or fixed assets of any other
Person, or the stock or other evidence of beneficial ownership
of any other Person that, as a result of such acquisition,
becomes a Subsidiary of Greiner.
"Pre Merger Greiner Consolidated Cash Interest
Expense" means, for any period prior to consummation of the
Merger, Pre Merger Greiner Consolidated Interest Expense for
such period, excluding, however, any interest expense not
payable in Cash (including amortization of discount and
amortization of debt issuance costs).
"Pre Merger Greiner Consolidated EBITDA" means
(i) for the Fiscal Quarter ended January 31, 1995, the Fiscal
Quarter ended April 30, 1995, the Fiscal Quarter ended July 31,
1995, the Fiscal Quarter ended October 31, 1995 and the Fiscal
Quarter ended January 31, 1996, $1,100,000 and (ii) for any
period thereafter prior to consummation of the Merger, the sum
of the amounts for such period of (a) Pre Merger Greiner
Consolidated Net Income, (b) Pre Merger Greiner Consolidated
Interest Expense, (c) provisions for taxes based on income,
(d) total depreciation expense, (e) total amortization expense,
and (f) other non-cash items reducing Pre Merger Greiner
Consolidated Net Income LESS other non-cash items increasing
Pre Merger Greiner Consolidated Net Income, all of the
foregoing as determined on a consolidated basis for Greiner and
its Subsidiaries in conformity with GAAP.
"Pre Merger Greiner Consolidated Fixed Charges"
means, for any period prior to consummation of the Merger, the
sum (without duplication) of the amounts for such period of
(i) Pre Merger Greiner Consolidated Interest Expense,
(ii) provisions for taxes based on income and payable in Cash,
and (iii) Pre Merger Greiner Consolidated Scheduled Principal
Payments, all of the foregoing as determined on a consolidated
basis for Greiner and its Subsidiaries in conformity with GAAP.
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"Pre Merger Greiner Consolidated Interest Expense"
means, for any period prior to consummation of the Merger,
total interest expense (including that portion attributable to
Capital Leases in accordance with GAAP and capitalized
interest) of Greiner and its Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of Greiner
and its Subsidiaries during such period, including, without
limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Interest Rate
Agreements to which Greiner or any of its Subsidiaries is a
party.
"Pre Merger Greiner Consolidated Net Income" means,
for any period prior to consummation of the Merger, the net
income (or loss) of Greiner and its Subsidiaries on a
consolidated basis for such period taken as a single accounting
period determined in conformity with GAAP; PROVIDED that there
shall be excluded (i) the income (or loss) of any Person (other
than a Subsidiary of Greiner or a Joint Venture) in which any
other Person (other than Greiner or any of its Subsidiaries)
has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Greiner or
any of its Subsidiaries by such Person during such period,
(ii) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of Greiner or is merged into or
consolidated with Greiner or any of its Subsidiaries or that
Person's assets are acquired by Greiner or any of its
Subsidiaries, (iii) the income of any Subsidiary of Greiner to
the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not
at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary,
(iv) any after-tax gains or losses attributable to Asset Sales
by Greiner or any of its Subsidiaries or returned surplus
assets of any Pension Plan of Greiner or any of its
Subsidiaries, and (v) (to the extent not included in clauses
(i) through (iv) above) any net extraordinary gains or net non-
cash extraordinary losses.
"Pre Merger Greiner Consolidated Principal Payments"
means, for any period prior to consummation of the Merger, the
aggregate amount of all voluntary and scheduled repayments of
principal by Greiner and its Subsidiaries on a consolidated
basis during such period under all Indebtedness of Greiner or
any of its Subsidiaries (including the principal component of
Capital Leases).
"Pre Merger Greiner Consolidated Scheduled Principal
Payments" means, for any period prior to consummation of the
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Merger, the aggregate amount of all scheduled repayments of
principal by Greiner and its Subsidiaries on a consolidated
basis during such period under all Indebtedness of Greiner or
any of its Subsidiaries (including the principal component of
Capital Leases).
"Pre Merger Greiner Consolidated Total Funded Debt"
means, as at any date of determination prior to consummation of
the Merger, the sum of (i) the aggregate principal amount of
all outstanding term loans, (ii) the maximum aggregate amount
which is or at any time thereafter may become available for
drawing under all letters of credit then outstanding, (iii) the
aggregate amount of that portion of obligations with respect to
Capital Leases of Greiner or any of its Subsidiaries that is
properly classified as a liability on a balance sheet in
conformity with GAAP, (iv) all Indebtedness of Greiner or any
of its Subsidiaries for borrowed money evidenced by a note or
similar written instrument, and (v) the average aggregate
principal amount of all revolving loans outstanding during the
12-month period immediately preceding the date of
determination.
"Pre Merger URS Consolidated Capital Expenditures"
means, for any period prior to consummation of the Merger, the
sum of (i) the aggregate of all expenditures (whether paid in
cash or other consideration or accrued as a liability and
including that portion of Capital Leases which is capitalized
on the consolidated balance sheet of URS and its Subsidiaries)
by URS and its Subsidiaries during that period for fixed assets
and leasehold improvements of URS and its Subsidiaries PLUS
(ii) to the extent not covered by clause (i) of this
definition, the aggregate of all expenditures by URS and its
Subsidiaries during that period (a) to purchase or develop
computer software or systems (but only to the extent such
expenditures are capitalized on the consolidated balance sheet
of URS and its Subsidiaries in conformity with GAAP) or (b) to
acquire (by purchase or otherwise) the business, property or
fixed assets of any other Person, or the stock or other
evidence of beneficial ownership of any other Person that, as a
result of such acquisition, becomes a Subsidiary of URS.
"Pre Merger URS Consolidated Cash Interest Expense"
means, for any period prior to consummation of the Merger, Pre
Merger URS Consolidated Interest Expense for such period,
excluding, however, any interest expense not payable in Cash
(including amortization of discount and amortization of debt
issuance costs).
"Pre Merger URS Consolidated EBITDA" means, for any
period prior to consummation of the Merger, the sum of the
amounts for such period of (i) Pre Merger URS Consolidated Net
Income, (ii) Pre Merger URS Consolidated Interest Expense,
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(iii) provisions for taxes based on income, (iv) total
depreciation expense, (v) total amortization expense, and
(vi) other non-cash items reducing Pre Merger URS Consolidated
Net Income LESS other non-cash items increasing Pre Merger URS
Consolidated Net Income, all of the foregoing as determined on
a consolidated basis for URS and its Subsidiaries in conformi-
ty with GAAP.
"Pre Merger URS Consolidated Fixed Charges" means,
for any period prior to consummation of the Merger, the sum
(without duplication) of the amounts for such period of (i) Pre
Merger URS Consolidated Interest Expense, (ii) provisions for
taxes based on income and payable in Cash, and (iii) Pre Merger
URS Consolidated Scheduled Principal Payments, all of the
foregoing as determined on a consolidated basis for URS and its
Subsidiaries in conformity with GAAP.
"Pre Merger URS Consolidated Interest Expense" means,
for any period prior to consummation of the Merger, total
interest expense (including that portion attributable to
Capital Leases in accordance with GAAP and capitalized
interest) of URS and its Subsidiaries on a consolidated basis
with respect to all outstanding Indebtedness of URS and its
Subsidiaries during such period, including, without limitation,
all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Agreements to which URS or
any of its Subsidiaries is a party, but excluding, however, any
amounts referred to in subsection 2.3 payable to Administrative
Agent and Lenders on or before the Signing Date.
"Pre Merger URS Consolidated Net Income" means, for
any period prior to consummation of the Merger, the net income
(or loss) of URS and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined
in conformity with GAAP; PROVIDED that there shall be excluded
(i) the income (or loss) of any Person (other than a Subsidiary
of URS or a Joint Venture) in which any other Person (other
than URS or any of its Subsidiaries) has a joint interest,
except to the extent of the amount of dividends or other
distributions actually paid to URS or any of its Subsidiaries
by such Person during such period, (ii) the income (or loss) of
any Person accrued prior to the date it becomes a Subsidiary of
URS or is merged into or consolidated with URS or any of its
Subsidiaries or that Person's assets are acquired by URS or any
of its Subsidiaries, (iii) the income of any Subsidiary of URS
to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that income is not
at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to that Subsidiary,
(iv) any after-tax gains or losses attributable to Asset Sales
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by URS or any of its Subsidiaries or returned surplus assets of
any Pension Plan of URS or any of its Subsidiaries, and (v) (to
the extent not included in clauses (i) through (iv) above) any
net extraordinary gains or net non-cash extraordinary losses.
"Pre Merger URS Consolidated Principal Payments"
means, for any period prior to consummation of the Merger, the
aggregate amount of all voluntary and scheduled repayments of
principal by URS and its Subsidiaries on a consolidated basis
during such period under all Indebtedness of URS or any of its
Subsidiaries (including the principal component of Capital
Leases).
"Pre Merger URS Consolidated Scheduled Principal
Payments" means, for any period prior to consummation of the
Merger, the aggregate amount of all scheduled repayments of
principal by URS and its Subsidiaries on a consolidated basis
during such period under all Indebtedness of URS or any of its
Subsidiaries (including the principal component of Capital
Leases).
"Pre Merger URS Consolidated Total Funded Debt"
means, as at any date of determination prior to consummation of
the Merger, the sum of (i) the aggregate principal amount of
all outstanding term loans, (ii) the maximum aggregate amount
which is or at any time thereafter may become available for
drawing under all letters of credit then outstanding, (iii) the
aggregate amount of that portion of obligations with respect to
Capital Leases of URS or any of its Subsidiaries that is
properly classified as a liability on a balance sheet in
conformity with GAAP, (iv) all Indebtedness of URS or any of
its Subsidiaries for borrowed money evidenced by a note or
similar written instrument, and (v) the average aggregate
principal amount of all revolving loans outstanding during the
12-month period immediately preceding the date of
determination.
"Prime Rate" means the rate most recently announced
by Wells Fargo at its principal office in San Francisco from
time to time as its "Prime Rate." The Prime Rate is one of
Wells Fargo's base rates and serves as the basis upon which
effective rates of interest are calculated for those loans
making reference thereto, and is evidenced by the recording
thereof after its announcement in such internal publication or
publications as Wells Fargo may designate. Wells Fargo or any
other Lender may make commercial loans or other loans at rates
of interest at, above or below the Prime Rate. Any change in
the interest rate resulting from a change in such Prime Rate
shall become effective as of 12:01 a.m. of the Business Day on
which each change in Prime Rate is announced by Wells Fargo.
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"Pro Rata Share" means (i) with respect to all
payments, computations and other matters relating to the
Tranche A Term Loan Commitment or the Tranche A Term Loan of
any Lender, the percentage obtained by DIVIDING (a) the Tranche
A Term Loan Exposure of that Lender BY (b) the aggregate
Tranche A Term Loan Exposure of all Lenders, (ii) with respect
to all payments, computations and other matters relating to the
Tranche B Term Loan Commitment or the Tranche B Term Loan of
any Lender, the percentage obtained by DIVIDING (a) the Tranche
B Term Loan Exposure of that Lender BY (b) the aggregate
Tranche B Term Loan Exposure of all Lenders, (iii) with respect
to all payments, computations and other matters relating to the
Revolving Loan Commitment or the Revolving Loans of any Lender
or any Letters of Credit issued or participations therein
purchased by any Lender, the percentage obtained by DIVIDING
(a) the Revolving Loan Exposure of that Lender BY (b) the
aggregate Revolving Loan Exposure of all Lenders, and (iv) for
all other purposes with respect to each Lender, the percentage
obtained by dividing (a) the sum of the Tranche A Term Loan
Exposure of that Lender plus the Tranche B Term Loan Exposure
of that Lender plus the Revolving Loan Exposure of that Lender
by (b) the sum of the aggregate Tranche A Term Loan Exposure of
all Lenders PLUS the aggregate Tranche B Term Loan Exposure of
all Lenders PLUS the aggregate Revolving Loan Exposure of all
Lenders, in any such case as the applicable percentage may be
adjusted by assignments permitted pursuant to subsection 10.1.
The initial Pro Rata Share of each Lender for purposes of each
of clauses (i), (ii), (iii) and (iv) of the preceding sentence
is set forth opposite the name of that Lender in Schedule 2.1
------------
annexed hereto.
"Proceedings" has the meaning assigned to that term
in subsection 6.1(xiii).
"Projections" means (i) the consolidated projected
balance sheets and consolidated projected statements of income
and cash flows of Company and its Subsidiaries, prepared by
Company, for each month during the period from and including
January 1, 1996 to and including August 31, 1996, (ii) the
consolidated projected balance sheets and consolidated
projected statements of income and cash flows of Greiner and
its Subsidiaries, prepared by Company for each month during the
period from and including January 1, 1996 to and including
August 31, 1996, (iii) the consolidated projected balance
sheets and consolidated projected statements of income and cash
flows of Company and its Subsidiaries, prepared by Company
assuming the Acquisition and the Merger have been consummated,
for each Fiscal Quarter during the period from and including
January 1, 1996 to and including October 31, 1996, and (iv) the
consolidated projected balance sheets and consolidated
projected statements of income and cash flows of Company and
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its Subsidiaries, prepared by Company assuming the Acquisition
and the Merger have been consummated, for each of Fiscal Years
1996 through 2003 delivered to Administrative Agent by Company
under cover of a letter dated the Signing Date.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time
to time.
"Reimbursement Date" has the meaning assigned to that
term in subsection 3.3B.
"Release" means any release, spill, emission,
leaking, pumping, pouring, injection, escaping, deposit,
disposal, discharge, dispersal, dumping, leaching or migration
of Hazardous Materials into the indoor or outdoor environment
(including, without limitation, the abandonment or disposal of
any barrels, containers or other closed receptacles containing
any Hazardous Materials), including the movement of any
Hazardous Materials through the air, soil, surface water or
groundwater.
"Requisite Class Lenders" means (i) for the Class of
Lenders having Tranche A Term Loan Exposure and/or Revolving
Loan Exposure, two or more Lenders having or holding 51% of the
sum of (a) the aggregate Tranche A Term Loan Exposure of all
Lenders PLUS (b) the aggregate Revolving Loan Exposure of all
Lenders and (ii) for the Class of Lenders having Tranche B Term
Loan Exposure, two or more Lenders having or holding at least
51% of the aggregate Tranche B Term Loan Exposure of all
Lenders; PROVIDED, HOWEVER, that if as of any date of
determination there is only one Lender with respect to any
Class, then such Lender shall constitute Requisite Class
Lenders with respect to such Class.
"Requisite Lenders" means two or more Lenders having
or holding at least 51% of the sum of (i) the aggregate
Tranche A Term Loan Exposure of all Lenders PLUS (ii) the
aggregate Tranche B Term Loan Exposure of all Lenders PLUS
(iii) the aggregate Revolving Loan Exposure of all Lenders;
PROVIDED, HOWEVER, that if as of any date of determination
there is only one Lender, then such Lender shall constitute
Requisite Lenders.
"Restricted Junior Payment" means (i) any dividend or
other distribution, direct or indirect, on account of any
shares of any class of stock of Company now or hereafter
outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of
any shares of any class of stock of Company now or hereafter
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outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of stock of Company now or
hereafter outstanding, and (iv) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or
legal defeasance), sinking fund or similar payment with respect
to, any Subordinated Indebtedness.
"Revolving Loan Commitment" means the commitment of a
Lender to make Revolving Loans to Company pursuant to
subsection 2.1A(iii), and "Revolving Loan Commitments" means
such commitments of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means
April 30, 1999.
"Revolving Loan Exposure" means, with respect to any
Lender as of any date of determination (i) prior to the
termination of the Revolving Loan Commitments, that Lender's
Revolving Loan Commitment and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that
Lender PLUS (b) in the event that Lender is the Issuing Lender,
the aggregate Letter of Credit Usage in respect of all Letters
of Credit issued by that Lender (in each case net of any
participations purchased by other Lenders in such Letters of
Credit or any unreimbursed drawings thereunder) PLUS (c) the
aggregate amount of all participations purchased by that Lender
in any outstanding Letters of Credit or any unreimbursed
drawings under any Letters of Credit.
"Revolving Loans" means the Loans made by Lenders to
Company pursuant to subsection 2.1A(iii).
"Revolving Notes" means (i) the promissory notes of
Company issued pursuant to subsection 2.1D(i)(c) on the Signing
Date and (ii) any promissory notes issued by Company pursuant
to the last sentence of subsection 10.1B(i) in connection with
assignments of the Revolving Loan Commitments and Revolving
Loans of any Lenders, in each case substantially in the form of
Exhibit V annexed hereto, as they may be amended, supplemented
---------
or otherwise modified from time to time.
"Securities" means any stock, shares, partnership
interests, voting trust certificates, certificates of interest
or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes, or
other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates
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of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right
to subscribe to, purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, and any successor statute.
"Signing Date" means the date on which the conditions
set forth in subsection 4.1 are satisfied.
"Signing Date Company Disclosure Letter" means the
letter dated the Signing Date delivered to Administrative Agent
by Company containing information with respect to Company and
its Subsidiaries and Greiner and its Subsidiaries.
"Solvent" means, with respect to any Person, that as
of the date of determination both (i) (a) the then fair
saleable value of the property of such Person is (1) greater
than the total amount of liabilities (including contingent
liabilities) of such Person and (2) not less than the amount
that will be required to pay the probable liabilities on such
Person's then existing debts as they become absolute and
matured considering all financing alternatives and potential
asset sales reasonably available to such Person; (b) such
Person's capital is not unreasonably small in relation to its
business or any contemplated or undertaken transaction; and
(c) such Person does not intend to incur, or believe (nor
should it reasonably believe) that it will incur, debts beyond
its ability to pay such debts as they become due; and (ii) such
Person is "solvent" within the meaning given that term and
similar terms under applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition,
the amount of any contingent liability at any time shall be
computed as the amount that, in light of all of the facts and
circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured
liability.
"Subordinated Indebtedness" means (i) the Existing
Subordinated Indebtedness and (ii) any other Indebtedness of
Company subordinated in right of payment to the Obligations
pursuant to documentation containing maturities, amortization
schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance
satisfactory to Administrative Agent and Requisite Lenders.
"Subsequent Acquisition" has the meaning assigned to
that term in subsection 7.7(vi).
"Subsidiary" means, with respect to any Person, any
corporation, partnership, limited liability company,
association, or other business entity of which more than 50% of
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Page 103 of 424 <PAGE>
the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is
at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; PROVIDED that in no event
shall any Joint Venture be considered to be a Subsidiary of any
Person. Upon consummation of the Merger, Greiner shall be a
Subsidiary of Company.
"Subsidiary Guarantor" means any Subsidiary of
Company, Greiner and any Subsidiary of Greiner that executes
and delivers a Subsidiary Guaranty on the Signing Date, the
Initial Funding Date or from time to time thereafter pursuant
to subsection 6.7.
"Subsidiary Guaranty" means each Subsidiary Guaranty
executed and delivered by existing Subsidiaries of Company on
the Signing Date or the Initial Funding Date and to be executed
and delivered by additional Subsidiaries of Company from time
to time thereafter in accordance with subsection 6.7,
substantially in the form of Exhibit XV annexed hereto, as such
----------
Subsidiary Guaranty may hereafter be amended, supplemented or
otherwise modified from time to time, and "Subsidiary
Guaranties" means all such Subsidiary Guaranties, collectively.
"Subsidiary Pledge Agreement" means each Subsidiary
Pledge Agreement executed and delivered by existing Subsidiary
Guarantors on the Signing Date or the Initial Funding Date and
to be executed and delivered by additional Subsidiary
Guarantors from time to time thereafter in accordance with
subsection 6.7, substantially in the form of Exhibit XVI
-----------
annexed hereto, as such Subsidiary Pledge Agreement may
hereafter be amended, supplemented or otherwise modified from
time to time, and "Subsidiary Pledge Agreements" means all such
Subsidiary Pledge Agreements, collectively.
"Subsidiary Security Agreement" means each Subsidiary
Security Agreement executed and delivered by existing
Subsidiary Guarantors on the Signing Date or the Initial
Funding Date and to be executed and delivered by additional
Subsidiary Guarantors from time to time thereafter in
accordance with subsection 6.7, substantially in the form of
Exhibit XVII annexed hereto, as such Subsidiary Security
------------
Agreement may hereafter be amended, supplemented or otherwise
modified from time to time, and "Subsidiary Security
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Agreements" means all such Subsidiary Security Agreements,
collectively.
"Supplemental Collateral Agent" has the meaning
assigned to that term in subsection 9.1B.
"Tax" or "Taxes" means any present or future tax,
levy, impost, duty, charge, fee, deduction or withholding of
any nature and whatever called, by whomsoever, on whomsoever
and wherever imposed, levied, collected, withheld or assessed;
PROVIDED that "Tax on the overall net income" of a Person shall
be construed as a reference to a tax imposed by the
jurisdiction in which that Person is organized or in which that
Person's principal office (and/or, in the case of a Lender, its
lending office) is located or in which that Person (and/or, in
the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains
(whether worldwide, or only insofar as such income, profits or
gains are considered to arise in or to relate to a particular
jurisdiction, or otherwise) of that Person (and/or, in the case
of a Lender, its lending office).
"Term Loans" means, collectively, the Tranche A Term
Loans and the Tranche B Term Loans.
"Total Purchase Price" means, with respect to any
Subsequent Acquisition, (i) the sum of (a) the aggregate amount
of all consideration payable by or on behalf of Company or any
of its Subsidiaries in connection with such Subsequent
Acquisition in Cash, property (including Securities of
Company), services, notes, bonds, debentures or other debt
instruments, (b) the aggregate principal amount of all
Indebtedness assumed by Company or any or its Subsidiaries in
connection with such Subsequent Acquisition, (c) the reasonable
estimate of the amount of any Contingent Obligation of Company
or any of its Subsidiaries incurred in connection with such
Subsequent Acquisition, and (d) the aggregate amount of any
Indebtedness incurred by Company or any Subsidiary in
connection with such Subsequent Acquisition MINUS (ii) all Cash
and Cash Equivalents acquired by Company or any of its
Subsidiaries as a result of such Subsequent Acquisition. For
purposes of this definition, any amount which is payable in a
currency other than Dollars shall be valued based on the
applicable Exchange Rate for such currency as of the date of
such Subsequent Acquisition.
"Total Utilization of Revolving Loan Commitments"
means, as at any date of determination, the sum of (i) the
aggregate principal amount of all outstanding Revolving Loans
(other than Revolving Loans made for the purpose of
reimbursing the Issuing Lender for any amount drawn under any
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Letter of Credit but not yet so applied) PLUS (ii) the Letter
of Credit Usage.
"Tranche A Term Loan Commitment" means the commitment
of a Lender to make a Tranche A Term Loan to Company pursuant
to subsection 2.1A(i), and "Tranche A Term Loan Commitments"
means such commitments of all Lenders in the aggregate.
"Tranche A Term Loan Exposure" means, with respect to
any Lender as of any date of determination (i) prior to the
funding of the Tranche A Term Loans, that Lender's Tranche A
Term Loan Commitment and (ii) after the funding of the Tranche
A Term Loans, the outstanding principal amount of the Tranche A
Term Loan of that Lender.
"Tranche A Term Loan Maturity Date" means October 31,
2002.
"Tranche A Term Loans" means the Loans made by
Lenders to Company pursuant to subsection 2.1A(i).
Tranche A Term Notes" means (i) the promissory notes
of Company issued pursuant to subsection 2.1D(i)(a) on the
Signing Date and (ii) any promissory notes issued by Company
pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Tranche A Term Loan
Commitments or Tranche A Term Loans of any Lenders, in each
case substantially in the form of Exhibit IV-A annexed hereto,
------------
as they may be amended, supplemented or otherwise modified from
time to time.
"Tranche B Term Loan Commitment" means the commitment
of a Lender to make a Tranche B Term Loan to Company pursuant
to subsection 2.1A(ii), and "Tranche B Term Loan Commitments"
means such commitments of all Lenders in the aggregate.
"Tranche B Term Loan Exposure" means, with respect to
any Lender as of any date of determination (i) prior to the
funding of the Tranche B Term Loans, that Lender's Tranche B
Term Loan Commitment and (ii) after the funding of the Tranche
B Term Loans, the outstanding principal amount of the Tranche B
Term Loan of that Lender.
"Tranche B Term Loan Maturity Date" means April 30,
2003.
"Tranche B Term Loans" means the Loans made by
Lenders to Company pursuant to subsection 2.1A(ii).
"Tranche B Term Notes" means (i) the promissory notes
of Company issued pursuant to subsection 2.1D(i)(b) on the
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Signing Date and (ii) any promissory notes issued by Company
pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Tranche B Term Loan
Commitments or Tranche B Term Loans of any Lenders, in each
case substantially in the form of Exhibit IV-B annexed hereto,
------------
as they may be amended, supplemented or otherwise modified from
time to time.
"Transaction Costs" means the fees, costs and
expenses payable by Company on or before the Initial Funding
Date in connection with the transactions contemplated by the
Loan Documents and the Merger Agreement.
"UCC" means the Uniform Commercial Code (or any
similar or equivalent legislation) as in effect in any
applicable jurisdiction.
"Unrestricted Subsidiary" means any Subsidiary of the
Company with assets or revenues of less than $100,000.
"URS" means URS Corporation, a Delaware corporation,
prior to consummation of the Merger.
"Wells Fargo" has the meaning assigned to that term
in the introduction to this Agreement.
1.2 Accounting Terms; Utilization of GAAP for Purposes of
Calculations Under Agreement.
-----------------------------------------------------
Except as otherwise expressly provided in this
Agreement, all accounting terms not otherwise defined herein
shall have the meanings assigned to them in conformity with
GAAP. Financial statements and other information required to
be delivered by Company to Lenders pursuant to clauses (i),
(ii), (iii), (iv), (v), (vi) and (xvi) of subsection 6.1 shall
be prepared in accordance with GAAP as in effect at the time of
such preparation (and delivered together with the reconcilia-
tion statements provided for in subsection 6.1(viii)).
Calculations in connection with the definitions, covenants and
other provisions of this Agreement shall utilize accounting
principles and policies in conformity with those used to
prepare the financial statements referred to in subsection 5.3.
1.3 Other Definitional Provisions and Rules of Construction.
-------------------------------------------------------
A. Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the
plural, depending on the reference.
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B. References to "Sections" and "subsections" shall be
to Sections and subsections, respectively, of this Agreement
unless otherwise specifically provided.
C. The use herein of the word "include" or "including",
when following any general statement, term or matter, shall not
be construed to limit such statement, term or matter to the
specific items or matters set forth immediately following such
word or to similar items or matters, whether or not nonlimiting
language (such as "without limitation" or "but not limited to"
or words of similar import) is used with reference thereto, but
rather shall be deemed to refer to all other items or matters
that fall within the broadest possible scope of such general
statement, term or matter.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; Notes.
-----------------------------------
A. COMMITMENTS. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and
warranties of Company herein set forth, each Lender hereby
severally agrees to make the Loans described in subsections
2.1A(i), 2.1A(ii) and 2.1A(iii).
(i) TRANCHE A TERM LOANS. Each Lender severally
agrees to lend to Company on the Initial Funding Date an
amount not exceeding its Pro Rata Share of the aggregate
amount of the Tranche A Term Loan Commitments to be used
for the purposes identified in subsection 2.5A. The
amount of each Lender's Tranche A Term Loan Commitment is
set forth opposite its name on Schedule 2.1 annexed hereto
------------
and the aggregate amount of the Tranche A Term Loan
Commitments is $32,500,000; PROVIDED that the Tranche A
Term Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Tranche A Term Loan
Commitments pursuant to subsection 10.1B. Each Lender's
Tranche A Term Loan Commitment shall expire immediately
and without further action on May 31, 1996, or such later
date as may be established pursuant to subsection 2.1E, if
the Tranche A Term Loans are not made on or before that
date. Company may make only one borrowing under the
Tranche A Term Loan Commitments. Amounts borrowed under
this subsection 2.1A(i) and subsequently repaid or prepaid
may not be reborrowed.
(ii) TRANCHE B TERM LOANS. Each Lender severally
agrees to lend to Company on the Initial Funding Date an
amount not exceeding its Pro Rata Share of the aggregate
amount of the Tranche B Term Loan Commitments to be used
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for the purposes identified in subsection 2.5A. The
amount of each Lender's Tranche B Term Loan Commitment is
set forth opposite its name on Schedule 2.1 annexed hereto
------------
and the aggregate amount of the Tranche B Term Loan
Commitments is $17,500,000; PROVIDED that the Tranche B
Term Loan Commitments of Lenders shall be adjusted to give
effect to any assignments of the Tranche B Term Loan
Commitments pursuant to subsection 10.1B. Each Lender's
Tranche B Term Loan Commitment shall expire immediately
and without further action on May 31, 1996, or such later
date as may be established pursuant to subsection 2.1E, if
the Tranche B Term Loans are not made on or before that
date. Company may make only one borrowing under the
Tranche B Term Loan Commitments. Amounts borrowed under
this subsection 2.1A(ii) and subsequently repaid or
prepaid may not be reborrowed.
(iii) REVOLVING LOANS. Each Lender severally agrees,
subject to the limitations set forth below with respect to
the maximum amount of Revolving Loans permitted to be
outstanding from time to time, to lend to Company from
time to time during the period from the Initial Funding
Date to but excluding the Revolving Loan Commitment
Termination Date an aggregate amount not exceeding its Pro
Rata Share of the aggregate amount of the Revolving Loan
Commitments to be used for the purposes identified in
subsection 2.5. The original amount of each Lender's
Revolving Loan Commitment is set forth opposite its name
on Schedule 2.1 annexed hereto and the aggregate original
------------
amount of the Revolving Loan Commitments is $20,000,000;
PROVIDED that the Revolving Loan Commitments of Lenders
shall be adjusted to give effect to any assignments of the
Revolving Loan Commitments pursuant to subsection 10.1B;
and PROVIDED, FURTHER that the amount of the Revolving
Loan Commitments shall be reduced from time to time by the
amount of any reductions thereto made pursuant to
subsections 2.4B(ii) and 2.4B(iii). Each Lender's
Revolving Loan Commitment shall expire on the Revolving
Loan Commitment Termination Date and all Revolving Loans
and all other amounts owed hereunder with respect to the
Revolving Loans and the Revolving Loan Commitments shall
be paid in full no later than that date; PROVIDED that
each Lender's Revolving Loan Commitment shall expire
immediately and without further action on May 31, 1996, or
such later date as may be established pursuant to
subsection 2.1E, if the Term Loans are not made on or
before that date. Amounts borrowed under this subsection
2.1A(iii) may be repaid and reborrowed to but excluding
the Revolving Loan Commitment Termination Date.
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Anything contained in this Agreement to the contrary
notwithstanding, the Revolving Loans and the Revolving
Loan Commitments shall be subject to the following
limitations in the amounts and during the periods
indicated:
(a) in no event shall the Total Utilization of
Revolving Loan Commitments at any time exceed the
Revolving Loan Commitments then in effect; and
(b) for 30 consecutive days during each Fiscal
Year, the aggregate outstanding principal amount of
all Revolving Loans shall not exceed $5,000,000.
B. BORROWING MECHANICS. Tranche A Term Loans, Tranche B
Term Loans or Revolving Loans made on any Funding Date (other
than Revolving Loans made pursuant to subsection 3.3B for the
purpose of reimbursing the Issuing Lender for the amount of a
drawing under a Letter of Credit) shall be in an aggregate
minimum amount of $500,000 and integral multiples of $10,000 in
excess of that amount; PROVIDED that Tranche A Term Loans,
Tranche B Term Loans or Revolving Loans made on any Funding
Date as Eurodollar Rate Loans with a particular Interest Period
shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $10,000 in excess of that amount.
Whenever Company desires that Lenders make Term Loans or
Revolving Loans it shall deliver to Administrative Agent a
Notice of Borrowing substantially in the form of Exhibit I
---------
annexed hereto no later than 10:00 A.M. (San Francisco time) at
least three Business Days in advance of the proposed Funding
Date (in the case of a Eurodollar Rate Loan) or at least one
Business Day in advance of the proposed Funding Date (in the
case of a Base Rate Loan). The Notice of Borrowing shall
specify (i) the proposed Funding Date (which shall be a
Business Day), (ii) the amount and type of Loans requested,
(iii) in the case of any Loans made on the Initial Funding
Date, that such Loans shall be Base Rate Loans, (iv) in the
case of Revolving Loans not made on the Initial Funding Date,
whether such Loans shall be Base Rate Loans or Eurodollar Rate
Loans, and (v) in the case of any Loans requested to be made as
Eurodollar Rate Loans, the initial Interest Period requested
therefor. Term Loans and Revolving Loans may be continued as
or converted into Base Rate Loans and Eurodollar Rate Loans in
the manner provided in subsection 2.2D. In lieu of delivering
the above-described Notice of Borrowing, Company may give
Administrative Agent telephonic notice by the required time of
any proposed borrowing under this subsection 2.1B; PROVIDED
that such notice shall be promptly confirmed in writing by
delivery of a Notice of Borrowing to Administrative Agent on or
before the applicable Funding Date.
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Neither Administrative Agent nor any Lender shall
incur any liability to Company in acting upon any telephonic
notice referred to above that Administrative Agent believes in
good faith to have been given by a duly authorized officer or
other person authorized to borrow on behalf of Company or for
otherwise acting in good faith under this subsection 2.1B, and
upon funding of Loans by Lenders in accordance with this
Agreement pursuant to any such telephonic notice Company shall
have effected Loans hereunder.
Company shall notify Administrative Agent prior to
the funding of any Loans in the event that any of the matters
to which Company is required to certify in the applicable
Notice of Borrowing is no longer true and correct in all
material respects as of the applicable Funding Date, and the
acceptance by Company of the proceeds of any Loans shall
constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to
certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B,
2.6C and 2.6G, a Notice of Borrowing for a Eurodollar Rate Loan
(or telephonic notice in lieu thereof) shall be irrevocable,
and Company shall be bound to make a borrowing in accordance
therewith.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving
Loans under this Agreement shall be made by Lenders
simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible
for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the
Commitment of any Lender to make the particular type of Loan
requested be increased or decreased as a result of a default by
any other Lender in that other Lender's obligation to make a
Loan requested hereunder. Promptly after receipt by
Administrative Agent of a Notice of Borrowing pursuant to
subsection 2.1B (or telephonic notice in lieu thereof),
Administrative Agent shall notify each Lender of the proposed
borrowing. Each Lender shall make the amount of its Loan
available to Administrative Agent not later than 10:00 A.M.
(San Francisco time) on the applicable Funding Date in same day
funds in Dollars, at the Funding and Payment Office. Except as
provided in subsection 3.3B with respect to Revolving Loans
used to reimburse the Issuing Lender for the amount of a
drawing under a Letter of Credit issued by it, upon
satisfaction or waiver of the conditions precedent specified in
subsections 4.1 and 4.2 (in the case of Loans made on the
Initial Funding Date) and 4.3 (in the case of all Loans),
Administrative Agent shall make the proceeds of such Loans
available to Company on the applicable Funding Date by causing
an amount of same day funds in Dollars equal to the proceeds of
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all such Loans received by Administrative Agent from Lenders to
be credited to the account of Company at the Funding and
Payment Office.
Unless Administrative Agent shall have been notified
by any Lender prior to the Funding Date for any Loans that such
Lender does not intend to make available to Administrative
Agent the amount of such Lender's Loan requested on such
Funding Date, Administrative Agent may assume that such Lender
has made such amount available to Administrative Agent on such
Funding Date and Administrative Agent may, in its sole
discretion, but shall not be obligated to, make available to
Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to
Administrative Agent by such Lender, Administrative Agent shall
be entitled to recover such corresponding amount on demand from
such Lender together with interest thereon, for each day from
such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by
Administrative Agent for the correction of errors among banks
for three Business Days and thereafter at the Base Rate. If
such Lender does not pay such corresponding amount forthwith
upon Administrative Agent's demand therefor, Administrative
Agent shall promptly notify Company and Company shall
immediately pay such corresponding amount to Administrative
Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to
Administrative Agent, at the rate payable under this Agreement
for Base Rate Loans. Nothing in this subsection 2.1C shall be
deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Company
may have against any Lender as a result of any default by such
Lender hereunder.
D. NOTES. Company shall execute and deliver on the
Signing Date to each Lender (or to Administrative Agent for
that Lender) (a) a Tranche A Term Note substantially in the
form of Exhibit IV-A annexed hereto to evidence that Lender's
------------
Tranche A Term Loan, in the principal amount of that Lender's
Tranche A Term Loan and with other appropriate insertions, (b)
a Tranche B Term Note substantially in the form of Exhibit IV-B
------------
annexed hereto to evidence that Lender's Tranche B Term Loan,
in the principal amount of that Lender's Tranche B Term Loan,
and (c) a Revolving Note substantially in the form of Exhibit V
---------
annexed hereto to evidence that Lender's Revolving Loans, in
the principal amount of that Lender's Revolving Loan Commitment
and with other appropriate insertions.
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Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless
and until an Assignment Agreement effecting the assignment or
transfer thereof shall have been accepted by Administrative
Agent as provided in subsection 10.1B(ii). Any request,
authority or consent of any person or entity who, at the time
of making such request or giving such authority or consent, is
the holder of any Note shall be conclusive and binding on any
subsequent holder, assignee or transferee of that Note or of
any Note or Notes issued in exchange therefor.
E. EXTENSION OF INITIAL FUNDING DATE. On the date that
is ten Business Days prior to the end of each month, commencing
May 16, 1996, Company may, at its option, deliver to
Administrative Agent a copy of an extension request requesting
an extension of the Initial Funding Date to the last day of the
next succeeding month; provided, however, that in no event
shall the Initial Funding Date be extended beyond September 30,
1996. Company's request shall be deemed approved and the
Initial Funding Date shall be so extended without further
action by the parties PROVIDED that (i) the representations and
warranties contained herein and in the other Loan Documents
shall be true, correct and complete in all material respects on
and as of the date of the extension request to the same extent
as though made on and as of that date, except to the extent
such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties
shall have been true, correct and complete in all material
respects on and as of such earlier date; (ii) no event shall
have occurred and be continuing that would constitute an Event
of Default or a Potential Event of Default; (iii) the Merger
Agreement shall be in full force and effect and no provision
thereof shall have been modified or waived in any respect
without the written consent of Administrative Agent; and
(iv) Company represents that (a) no facts have occurred since
the Signing Date that would lead Company to believe that the
Projections are inaccurate in any material respect or that the
assumptions on which the Projections are based are
unreasonable, and (b) Company will be able to make the
scheduled principal payments provided for in subsection 2.4A
and satisfy the covenants set forth in subsection 7.6
notwithstanding the change in the proposed date of consummation
of the Merger.
2.2 Interest on the Loans.
---------------------
A. RATE OF INTEREST. Subject to the provisions of
subsections 2.6 and 2.7, each Term Loan and each Revolving Loan
shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or
otherwise) at a rate determined by reference to the Base Rate
or the Adjusted Eurodollar Rate. The applicable basis for
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determining the rate of interest with respect to any Term Loan
or any Revolving Loan shall be selected by Company initially at
the time a Notice of Borrowing is given with respect to such
Loan pursuant to subsection 2.1B, and the basis for determining
the interest rate with respect to any Term Loan or any
Revolving Loan may be changed from time to time pursuant to
subsection 2.2D. If on any day a Term Loan or Revolving Loan
is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms
of this Agreement specifying the applicable basis for deter-
mining the rate of interest, then for that day that Loan shall
bear interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E
and 2.7, the Tranche A Term Loans and the Revolving Loans shall
bear interest through maturity as follows:
(a) if a Base Rate Loan, then (1) for the period
from and including the Initial Funding Date to and
excluding the date on which Administrative Agent receives
a Compliance Certificate pursuant to subsection 6.1(vii)
for the Fiscal Year ended October 31, 1996, or the Fiscal
Quarter ended April 30, 1997 in the event the Initial
Funding Date is extended pursuant to subsection 2.1E, at
the sum of the Base Rate PLUS 1.375% per annum and
(2) thereafter, at the sum of the Base Rate PLUS the
Applicable Base Rate Margin; or
(b) if a Eurodollar Rate Loan, then (1) for the
period from and including the Initial Funding Date to and
excluding the date on which Administrative Agent receives
a Compliance Certificate pursuant to subsection 6.1(vii)
for the Fiscal Year ended October 31, 1996, or the Fiscal
Quarter ended April 30, 1997 in the event the Initial
Funding Date is extended pursuant to subsection 2.1E, at
the sum of the Adjusted Eurodollar Rate PLUS 2.625% per
annum and (2) thereafter, at the sum of the Adjusted
Eurodollar Rate PLUS the Applicable Eurodollar Rate
Margin.
(ii) Subject to the provisions of subsections 2.2E
and 2.7, the Tranche B Term Loans shall bear interest through
maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate PLUS 1.75% per annum; or
(b) if a Eurodollar Rate Loan, then at the sum of
the Adjusted Eurodollar Rate PLUS 3% per annum.
The Applicable Base Rate Margin and the Applicable Eurodollar
Rate Margin shall be determined on the first day of the
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calendar month following the delivery of each Compliance
Certificate pursuant to subsection 6.1(vii), commencing with
the Compliance Certificate for the Fiscal Year ended
October 31, 1996 or the Fiscal Quarter ended April 30, 1997, as
the case may be, by reference to such Compliance Certificate
(without regard to any subsequent corrections to reflect year-
end audit adjustments). The Applicable Base Rate Margin and
the Applicable Eurodollar Rate Margin shall apply to all Base
Rate Loans for the period from and including the date of
determination to and excluding the first day of the calendar
month following the delivery of the next Compliance Certificate
and to all Eurodollar Rate Loans for any Interest Period
commencing during the period from and including the date of
determination to and excluding the first day of the calendar
month following the delivery of the next Compliance
Certificate; PROVIDED, HOWEVER, that (1) if the Company fails
to deliver any Compliance Certificate in a timely manner
pursuant to subsection 6.1(vii), or (2) upon the occurrence and
during the continuation of any Event of Default, the highest
percentage per annum set forth in the definition of Applicable
Base Rate Margin shall apply to all Base Rate Loans for the
period from and including the first day of the calendar month
following the date on which such Compliance Certificate was
required to be delivered to and excluding the date on which
Administrative Agent receives such Compliance Certificate or
during the continuation of such Event of Default, as the case
may be, and to all Eurodollar Rate Loans for any Interest
Period commencing during the period from and including the
first day of the calendar month following the date on which
such Compliance Certificate was required to be delivered to and
excluding the date on which Administrative Agent receives such
Compliance Certificate or during the continuation of such Event
of Default, as the case may be.
B. INTEREST PERIODS. In connection with each Eurodollar
Rate Loan, Company may, pursuant to the applicable Notice of
Borrowing or Notice of Conversion/Continuation, as the case may
be, select an interest period (each an "Interest Period") to be
applicable to such Loan, which Interest Period shall be, at
Company's sole option, either a one, two, three or six month
period; PROVIDED that:
(i) the initial Interest Period for any Eurodollar
Rate Loan shall commence on the Funding Date in respect of
such Loan, in the case of a Loan initially made as a
Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case
of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest
Periods applicable to a Eurodollar Rate Loan continued as
such pursuant to a Notice of Conversion/Continuation, each
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successive Interest Period shall commence on the day on
which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on
a day that is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day; PROVIDED
that, if any Interest Period would otherwise expire on a
day that is not a Business Day but is a day of the month
after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding
Business Day;
(iv) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall, subject
to clause (v) of this subsection 2.2B, end on the last
Business Day of a calendar month;
(v) no Interest Period with respect to any portion
of the Tranche A Term Loans shall extend beyond the
Tranche A Term Loan Maturity Date, no Interest Period with
respect to any portion of the Tranche B Term Loans shall
extend beyond the Tranche B Term Loan Maturity Date and no
Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Loan
Commitment Termination Date;
(vi) no Interest Period with respect to any portion
of the Tranche A Term Loans or Tranche B Term Loans shall
extend beyond a date on which Company is required to make
a scheduled payment of principal of the Tranche A Term
Loans or Tranche B Term Loans, as the case may be, unless
the sum of (a) the aggregate principal amount of Tranche A
Term Loans or Tranche B Term Loans, as the case may be,
that are Base Rate Loans PLUS (b) the aggregate principal
amount of Tranche A Term Loans or Tranche B Term Loans, as
the case may be, that are Eurodollar Rate Loans with
Interest Periods expiring on or before such date equals or
exceeds the principal amount required to be paid on the
Tranche A Term Loans or Tranche B Term Loans, as the case
may be, on such date;
(vii) there shall be no more than six Interest Periods
outstanding at any time; and
(viii) in the event Company fails to specify an Interest
Period for any Eurodollar Rate Loan in the applicable
Notice of Borrowing or Notice of Conversion/Continuation,
Company shall be deemed to have selected an Interest
Period of one month.
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C. INTEREST PAYMENTS. Subject to the provisions of
subsection 2.2E, interest on each Loan shall be payable in
arrears on and to each Interest Payment Date applicable to that
Loan, upon any prepayment of that Loan (to the extent accrued
on the amount being prepaid), upon any conversion of a Loan
from a Loan bearing interest at a rate determined by reference
to one basis to a Loan bearing interest at a rate determined by
reference to an alternative basis and at maturity (including
final maturity).
D. CONVERSION OR CONTINUATION. Subject to the
provisions of subsection 2.6, Company shall have the option
(i) to convert at any time all or any part of its outstanding
Tranche A Term Loans, Tranche B Term Loans or Revolving Loans
equal to $5,000,000 and integral multiples of $10,000 in excess
of that amount from Loans bearing interest at a rate determined
by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon
the expiration of any Interest Period applicable to a
Eurodollar Rate Loan, to continue all or any portion of such
Loan equal to $5,000,000 and integral multiples of $10,000 in
excess of that amount as a Eurodollar Rate Loan; PROVIDED,
HOWEVER, that a Eurodollar Rate Loan may only be converted into
a Base Rate Loan on the expiration date of an Interest Period
applicable thereto.
Company shall deliver a Notice of Conversion/
Continuation to Administrative Agent no later than 10:00 A.M.
(San Francisco time) at least one Business Day in advance of
the proposed conversion date (in the case of a conversion to a
Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan).
A Notice of Conversion/Continuation shall specify (i) the
proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and type of the Loan to be con-
verted/continued, (iii) the nature of the proposed conver-
sion/continuation, (iv) in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan, the requested Interest
Period, and (v) in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan, that no Potential
Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice
of Conversion/Continuation, Company may give Administrative
Agent telephonic notice by the required time of any proposed
conversion/continuation under this subsection 2.2D; PROVIDED
that such notice shall be promptly confirmed in writing by
delivery of a Notice of Conversion/Continuation to
Administrative Agent on or before the proposed conversion/
continuation date. Upon receipt of written or telephonic
notice of any proposed conversion/continuation under this
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subsection 2.2D, Administrative Agent shall promptly transmit
such notice by telefacsimile or telephone to each Lender.
Neither Administrative Agent nor any Lender shall
incur any liability to Company in acting upon any telephonic
notice referred to above that Administrative Agent believes in
good faith to have been given by a duly authorized officer or
other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and
upon conversion or continuation of the applicable basis for
determining the interest rate with respect to any Loans in
accordance with this Agreement pursuant to any such telephonic
notice Company shall have effected a conversion or
continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B,
2.6C and 2.6G, a Notice of Conversion/Continuation for
conversion to, or continuation of, a Eurodollar Rate Loan (or
telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company
shall be bound to effect a conversion or continuation in
accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the
continuation of any Event of Default, the outstanding principal
amount of all Loans and, to the extent permitted by applicable
law, any interest payments thereon not paid when due and any
fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in
any proceeding under the Bankruptcy Code or other applicable
bankruptcy laws) payable upon demand at a rate that is 2% per
annum in excess of the interest rate otherwise payable under
this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2%
per annum in excess of the interest rate otherwise payable
under this Agreement for Base Rate Loans); PROVIDED that, in
the case of Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear
interest payable upon demand at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this
Agreement for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this
subsection 2.2E is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies
of Administrative Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall
be computed on the basis of a 360-day year, in each case for
the actual number of days elapsed in the period during which it
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accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan
being converted from a Eurodollar Rate Loan, the date of
conversion of such Eurodollar Rate Loan to such Base Rate Loan,
as the case may be, shall be included, and the date of payment
of such Loan or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan
being converted to a Eurodollar Rate Loan, the date of
conversion of such Base Rate Loan to such Eurodollar Rate Loan,
as the case may be, shall be excluded; PROVIDED that if a Loan
is repaid on the same day on which it is made, one day's
interest shall be paid on that Loan.
2.3 Fees.
----
A. COMMITMENT FEES. Company agrees to pay to
Administrative Agent, for distribution to each Lender in
proportion to that Lender's Pro Rata Share, commitment fees for
the period from and including the Signing Date to and excluding
the Initial Funding Date equal to the Commitments MULTIPLIED BY
0.375 of 1% per annum, such commitment fees to be calculated on
the basis of a 360-day year and the actual number of days
elapsed and to be payable in arrears on the last day of each
month, commencing January 31, 1996, and on the Initial Funding
Date; PROVIDED, HOWEVER, that if the Initial Funding Date
occurs after May 31, 1996, Company agrees to pay to
Administrative Agent, for distribution to each Lender in
proportion to that Lender's Pro Rata Share, an additional
commitment fee for the period from and including June 1, 1996
to and excluding the Initial Funding Date equal to the
Commitments MULTIPLIED BY 0.125 of 1% per annum, such
additional commitment fees to be calculated on the basis of a
360-day year and the actual number of days elapsed and to be
payable in arrears on the last day of each month, commencing
June 30, 1996, and on the Initial Funding Date. In addition,
Company agrees to pay to Administrative Agent, for distribution
to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Initial
Funding Date to and excluding the Revolving Loan Commitment
Termination Date equal to the average of the daily excess of
the Revolving Loan Commitments over the sum of (i) the
aggregate principal amount of outstanding Revolving Loans PLUS
(ii) the Letter of Credit Usage MULTIPLIED BY (a) for the
period from and including the Initial Funding Date to and
excluding the date on which Administrative Agent receives a
Compliance Certificate pursuant to subsection 6.1(vii) for the
Fiscal Year ended October 31, 1996, or the Fiscal Quarter ended
April 30, 1997 in the event the Initial Funding Date is
extended pursuant to subsection 2.1E, 0.375 of 1% per annum and
(b) thereafter, the Applicable Commitment Fee Percentage. Such
commitment fees shall be calculated on the basis of a 360-day
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year and the actual number of days elapsed and shall be payable
quarterly in arrears on January 31, April 30, July 31 and
October 31 of each year, commencing on the first such date to
occur after the Initial Funding Date, and on the Revolving Loan
Commitment Termination Date.
The Applicable Commitment Fee Percentage shall be
determined on the first day of the calendar month following the
delivery of each Compliance Certificate pursuant to subsection
6.1(vii), commencing with the Compliance Certificate for the
Fiscal Year ended October 31, 1996 or the Fiscal Quarter ended
April 30, 1997, as the case may be, by reference to such
Compliance Certificate (without regard to any subsequent
corrections to reflect year-end audit adjustments). The
Applicable Commitment Fee Percentage shall apply for the period
from and including the date of determination to and excluding
the first day of the calendar month following the delivery of
the next Compliance Certificate; PROVIDED, HOWEVER, that (1) if
the Company fails to deliver any Compliance Certificate in a
timely manner pursuant to subsection 6.1(vii), or (2) upon the
occurrence and during the continuation of any Event of Default,
the highest percentage per annum set forth in the definition of
Applicable Commitment Fee Percentage shall apply for the period
from and including the first day of the calendar month
following the date on which such Compliance Certificate was
required to be delivered to and excluding the date on which
Administrative Agent receives such Compliance Certificate or
during the continuation of such Event of Default, as the case
may be.
B. OTHER FEES. Company agrees to pay to Administrative
Agent the fees described in the letter dated January 10, 1996
from Administrative Agent to Company, as well as any other
fees, in the amounts and at the times set forth in such letter
or separately agreed upon in writing between Company and
Administrative Agent.
2.4 Repayments, Prepayments and Reductions in Revolving Loan
Commitments; General Provisions Regarding Payments.
--------------------------------------------------------
A. SCHEDULED PAYMENTS OF TERM LOANS.
(i) SCHEDULED PAYMENTS OF TRANCHE A TERM LOANS.
Company shall make principal payments on the Tranche A
Term Loans in installments on the dates and in the amounts
set forth below:
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Scheduled Repayment
Date of Tranche A Term Loans
------ -----------------------
October 31, 1996 $ 500,000
January 31, 1997 1,000,000
April 30, 1997 1,000,000
July 31, 1997 1,000,000
October 31, 1997 1,000,000
January 31, 1998 1,150,000
April 30, 1998 1,150,000
July 31, 1998 1,150,000
October 31, 1998 1,150,000
January 31, 1999 1,250,000
April 30, 1999 1,250,000
July 31, 1999 1,250,000
October 31, 1999 1,250,000
January 31, 2000 1,350,000
April 30, 2000 1,350,000
July 31, 2000 1,350,000
October 31, 2000 1,350,000
January 31, 2001 1,500,000
April 30, 2001 1,500,000
July 31, 2001 1,500,000
October 31, 2001 1,500,000
January 31, 2002 1,750,000
April 30, 2002 1,750,000
July 31, 2002 1,750,000
October 31, 2002 1,750,000
-----------
$32,500,000
; PROVIDED that the scheduled installments of principal of
the Tranche A Term Loans set forth above shall be reduced
in connection with any voluntary or mandatory prepayments
of the Tranche A Term Loans in accordance with
subsection 2.4B(iv); and PROVIDED, FURTHER that the
Tranche A Term Loans and all other amounts owed hereunder
with respect to the Tranche A Term Loans shall be paid in
full no later than the Tranche A Term Loan Maturity Date
and the final installment payable by Company in respect of
the Tranche A Term Loans on such date shall be in an
amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company
under this Agreement with respect to the Tranche A Term
Loans.
(ii) SCHEDULED PAYMENTS OF TRANCHE B TERM LOANS.
Company shall make principal payments on the Tranche B
Term Loans in installments on the dates and in the amounts
set forth below:
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Scheduled Repayment
Date of Tranche B Term Loans
------ -----------------------
January 31, 1997 $43,750
April 30, 1997 43,750
July 31, 1997 43,750
October 31, 1997 43,750
January 31, 1998 43,750
April 30, 1998 43,750
July 31, 1998 43,750
October 31, 1998 43,750
January 31, 1999 43,750
April 30, 1999 43,750
July 31, 1999 43,750
October 31, 1999 43,750
January 31, 2000 43,750
April 30, 2000 43,750
July 31, 2000 43,750
October 31, 2000 43,750
January 31, 2001 43,750
April 30, 2001 43,750
July 31, 2001 43,750
October 31, 2001 43,750
January 31, 2002 43,750
April 30, 2002 43,750
July 31, 2002 43,750
October 31, 2002 43,750
January 31, 2003 8,225,000
April 30, 2003 8,225,000
----------
$17,500,000
; PROVIDED that the scheduled installments of principal of
the Tranche B Term Loans set forth above shall be reduced
in connection with any voluntary or mandatory prepayments
of the Tranche B Term Loans in accordance with subsection
2.4B(iv); and PROVIDED, FURTHER that the Tranche B Term
Loans and all other amounts owed hereunder with respect to
the Tranche B Term Loans shall be paid in full no later
than the Tranche B Term Loan Maturity Date and the final
installment payable by Company in respect of the Tranche B
Term Loans on such date shall be in an amount, if such
amount is different from that specified above, sufficient
to repay all amounts owing by Company under this Agreement
with respect to the Tranche B Term Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN REVOLVING
LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Company may, upon not
less than one Business Day's prior written or telephonic
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notice, in the case of Base Rate Loans, and three Business
Days' prior written or telephonic notice, in the case of
Eurodollar Rate Loans, in each case given to
Administrative Agent by 10:00 A.M. (San Francisco time) on
the date required and, if given by telephone, promptly
confirmed in writing to Administrative Agent (which
original written or telephonic notice Administrative Agent
will promptly transmit by telefacsimile or telephone to
each Lender), at any time and from time to time prepay,
without premium or penalty (except as provided in
subsection 2.6D), any Tranche A Term Loans, Tranche B Term
Loans or Revolving Loans on any Business Day in whole or
in part in an aggregate minimum amount of $5,000,000 and
integral multiples of $10,000 in excess of that amount.
Notice of prepayment having been given as aforesaid, the
principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date
specified therein. Any such voluntary prepayment shall be
applied as specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN
COMMITMENTS. Company may, upon not less than five
Business Days' prior written or telephonic notice
confirmed in writing to Administrative Agent (which
original written or telephonic notice Administrative Agent
will promptly transmit by telefacsimile or telephone to
each Lender), at any time and from time to time terminate
in whole or permanently reduce in part, without premium or
penalty, the Revolving Loan Commitments in an amount up to
the amount by which the Revolving Loan Commitments exceed
the Total Utilization of Revolving Loan Commitments at the
time of such proposed termination or reduction; PROVIDED
that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of
$2,000,000 and integral multiples of $500,000 in excess of
that amount. Company's notice to Administrative Agent
shall designate the date (which shall be a Business Day)
of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of
the Revolving Loan Commitments shall be effective on the
date specified in Company's notice and shall reduce the
Revolving Loan Commitment of each Lender proportionately
to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS
OF REVOLVING LOAN COMMITMENTS. The Loans shall be prepaid
and/or the Revolving Loan Commitments shall be permanently
reduced in the amounts and under the circumstances set
forth below, all such prepayments and/or reductions to be
applied as set forth below or as more specifically
provided in subsection 2.4B(iv):
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(a) PREPAYMENTS AND REDUCTIONS FROM NET ASSET
SALE PROCEEDS. No later than the first Business Day
following the date of receipt by Company or any of
its Subsidiaries of any Net Asset Sale Proceeds in
respect of any Asset Sale by Company or any of its
Subsidiaries, Company shall prepay the Loans and/or
the Revolving Loan Commitments shall be permanently
reduced in an aggregate amount equal to 100% of such
Net Asset Sale Proceeds.
(b) PREPAYMENTS AND REDUCTIONS DUE TO REVERSION
OF SURPLUS ASSETS OF PENSION PLANS. On the date of
return to Company or any of its Subsidiaries of any
surplus assets of any pension plan of Company or any
of its Subsidiaries, Company shall prepay the Loans
and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount (such
amount being the "Net Pension Proceeds") equal to
100% of such returned surplus assets, net of
transaction costs and expenses incurred in obtaining
such return, including incremental taxes payable as a
result thereof.
(c) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE
OF DEBT OR EQUITY SECURITIES. On the date of receipt
by Company of the Cash proceeds (any such Cash
proceeds, net of underwriting discounts and
commissions and other reasonable costs and expenses
associated therewith, including without limitation
reasonable legal fees and expenses, being "Net
Securities Proceeds") from the issuance of any debt
or equity Securities of Company or any of its
Subsidiaries after the Initial Funding Date (other
than (1) issuances of equity Securities of Company
under an employee benefit plan maintained by Company
or any of its Subsidiaries, (2) issuances of equity
Securities of Company pursuant to the exercise of
any stock options or warrants outstanding as of the
Signing Date and identified on Schedule 5.1G of the
-------------
Signing Date Company Disclosure Letter and
(3) issuances of Indebtedness permitted under
subsection 7.1), Company shall prepay the Loans
and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to
100% of such Net Securities Proceeds.
(d) PREPAYMENTS FROM CONSOLIDATED EXCESS CASH
FLOW. In the event that the Leverage Ratio as at the
end of any Fiscal Year (commencing with Fiscal Year
1996) is greater than 3.00 to 1.00, Company shall, no
later than 105 days after the end of such Fiscal
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Year, prepay the Term Loans in an aggregate amount
equal to 75% of Consolidated Excess Cash Flow, if
any, for such Fiscal Year. In the event that the
Leverage Ratio as at the end of any Fiscal Year
(commencing with Fiscal Year 1996) is less than or
equal to 3.00 to 1.00 but greater than 2.50 to 1.00,
Company shall, no later than 105 days after the end
of such Fiscal Year, prepay the Term Loans in an
aggregate amount equal to 50% of Consolidated Excess
Cash Flow, if any, for such Fiscal Year.
(e) PREPAYMENT FROM CONSOLIDATED EXCESS CASH.
Company shall, no later than 45 days after the end of
the first Fiscal Quarter following the Initial
Funding Date, prepay the Term Loans in an aggregate
amount equal to all Consolidated Excess Cash.
(f) PREPAYMENT OF INITIAL REVOLVING LOANS.
Company shall, no later than the tenth Business Day
after the Merger, prepay Revolving Loans in an
aggregate amount at least equal to the amount of the
Initial Revolving Loans.
(g) CALCULATIONS OF NET PROCEEDS AMOUNTS;
ADDITIONAL PREPAYMENTS AND REDUCTIONS BASED ON
SUBSEQUENT CALCULATIONS. Concurrently with any
prepayment of the Loans and/or reduction of the
Revolving Loan Commitments pursuant to subsec-
tions 2.4B(iii)(a)-(e), Company shall deliver to
Administrative Agent an Officer's Certificate
demonstrating the calculation of the amount (the "Net
Proceeds Amount") of the applicable Net Asset Sale
Proceeds, the applicable Net Pension Proceeds or Net
Securities Proceeds, the applicable Consolidated
Excess Cash Flow, or the applicable Consolidated
Excess Cash, as the case may be, that gave rise to
such prepayment and/or reduction. In the event that
Company shall subsequently determine that the actual
Net Proceeds Amount was greater than the amount set
forth in such Officer's Certificate, Company shall
promptly make an additional prepayment of the Loans
(and/or, if applicable, the Revolving Loan Commit-
ments shall be permanently reduced) in an amount
equal to the amount of such excess, and Company shall
concurrently therewith deliver to Administrative
Agent an Officer's Certificate demonstrating the
derivation of the additional Net Proceeds Amount
resulting in such excess.
(h) PREPAYMENTS DUE TO REDUCTIONS OR
RESTRICTIONS OF REVOLVING LOAN COMMITMENTS. Company
shall from time to time prepay the Revolving Loans to
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the extent necessary (1) so that the Total
Utilization of Revolving Loan Commitments shall not
at any time exceed the Revolving Loan Commitments
then in effect and (2) to give effect to the
limitations set forth in clause (b) of the second
paragraph of subsection 2.1A(iii).
(iv) APPLICATION OF PREPAYMENTS AND UNSCHEDULED
REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY
TYPE OF LOANS AND ORDER OF MATURITY. Any voluntary
prepayments pursuant to subsection 2.4B(i) shall be
applied as specified by Company in the applicable
notice of prepayment; PROVIDED that in the event
Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be
applied FIRST, to repay outstanding Revolving Loans
to the full extent thereof and SECOND, to repay
outstanding Term Loans to the full extent thereof.
Any voluntary prepayments of the Term Loans pursuant
to subsection 2.4B(i) shall be applied to prepay the
Tranche A Term Loans and the Tranche B Term Loans on
a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) and to reduce
the scheduled installments of principal of the
Tranche A Term Loans and the Tranche B Term Loans set
forth in subsections 2.4A(i) and 2.4A(ii) on a pro
rata basis (in accordance with the respective
outstanding principal amounts thereof) to each such
scheduled installment that is unpaid at the time of
such prepayment.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY
TYPE OF LOANS. Prior to the occurrence of a
Potential Event of Default or an Event of Default,
any amount (the "Applied Amount") required to be
applied as a mandatory prepayment of the Loans and/or
a reduction of the Revolving Loan Commitments
pursuant to subsections 2.4B(iii)(a)-(c) shall be
applied FIRST, to prepay the Term Loans to the full
extent thereof, SECOND, to the extent of any
remaining portion of the Applied Amount, to prepay
the Revolving Loans to the full extent thereof and to
permanently reduce the Revolving Loan Commitments by
the amount of such prepayment, THIRD, to the extent
of any remaining portion of the Applied Amount, to
cash collateralize the Letters of Credit to the full
extent thereof and to permanently reduce the
Revolving Loan Commitments by the amount of such
prepayment, and FOURTH, to the extent of any
remaining portion of the Applied Amount, to further
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permanently reduce the Revolving Loan Commitments to
the full extent thereof. After the occurrence of and
during the continuation of a Potential Event of
Default or an Event of Default, the Applied Amount
shall be applied FIRST, to prepay outstanding Loans
and cash collateralize the Letters of Credit to the
full extent thereof and, unless Administrative Agent,
in its sole discretion, gives notice to the Lenders
that all or any portion of such prepayment shall not
reduce the Revolving Loan Commitments, to permanently
reduce the Revolving Loan Commitments by the amount
of such prepayment and SECOND, to the extent of any
remaining portion of the Applied Amount, to further
permanently reduce the Revolving Loan Commitments to
the full extent thereof.
(c) APPLICATION OF MANDATORY PREPAYMENTS OF
LOANS PRIOR TO THE OCCURRENCE OF A DEFAULT. Any
mandatory prepayments of the Term Loans pursuant to
subsection 2.4B(iii) prior to the occurrence of a
Potential Event of Default or an Event of Default
shall be applied to prepay the Tranche A Term Loans
and the Tranche B Term Loans on a pro rata basis (in
accordance with the respective outstanding principal
amounts thereof). Any such mandatory prepayments
applied to the Tranche A Term Loans or the Tranche B
Term Loans shall be applied to reduce the scheduled
installments of principal of the Tranche A Term Loans
or the Tranche B Term Loans, as the case may be, set
forth in subsection 2.4A(i) or 2.4A(ii),
respectively, as follows:
(1) NET ASSET SALE PROCEEDS/NET PENSION
PROCEEDS/NET SECURITIES PROCEEDS/CONSOLIDATED
EXCESS CASH FLOW. Any such mandatory
prepayments pursuant to subsections
2.4B(iii)(a), (b), (c) and (d) prior to the
occurrence of a Potential Event of Default or an
Event of Default shall be applied on a pro rata
basis (in accordance with the respective
outstanding principal amounts thereof) to each
such scheduled installment that is unpaid at the
time of such prepayment.
(2) CONSOLIDATED EXCESS CASH. Any such
mandatory prepayments pursuant to subsections
2.4B(iii)(e) prior to the occurrence of a
Potential Event of Default or an Event of
Default shall be applied to reduce such
scheduled installments in inverse order of
maturity.
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(d) APPLICATION OF MANDATORY PREPAYMENTS OF
LOANS AFTER THE OCCURRENCE OF A DEFAULT. Any
mandatory prepayments of the Loans pursuant to
subsection 2.4B(iii) after the occurrence of and
during the continuation of a Potential Event of
Default or an Event of Default shall be applied to
prepay the Revolving Loans, cash collateralize the
Letters of Credit, prepay the Tranche A Term Loans
and prepay the Tranche B Term Loans on a pro rata
basis (in accordance with the respective amounts of
the Revolving Loan Commitments, the outstanding
principal amount of the Tranche A Term Loans and the
outstanding principal amount of the Tranche B Term
Loans). Any such mandatory prepayments applied to
the Tranche A Term Loans or the Tranche B Term Loans
shall be applied to reduce the scheduled installments
of principal of the Tranche A Term Loans or the
Tranche B Term Loans, as the case may be, set forth
in subsection 2.4A(i) or 2.4A(ii), respectively, as
follows:
(1) NET ASSET SALE PROCEEDS/NET PENSION
PROCEEDS/NET SECURITIES PROCEEDS/CONSOLIDATED
EXCESS CASH FLOW. Any such mandatory
prepayments pursuant to subsections
2.4B(iii)(a), (b), (c) and (d) after the
occurrence of and during the continuation of a
Potential Event of Default or an Event of
Default shall be applied on a pro rata basis (in
accordance with the respective outstanding
principal amounts thereof) to each such
scheduled installment that is unpaid at the time
of such prepayment.
(2) CONSOLIDATED EXCESS CASH. Any such
mandatory prepayments pursuant to subsections
2.4B(iii)(e) shall be applied to reduce such
scheduled installments in inverse order of
maturity.
(e) APPLICATION OF PREPAYMENTS TO BASE RATE
LOANS AND EURODOLLAR RATE LOANS. Considering Tranche
A Term Loans, Tranche B Term Loans and Revolving
Loans being prepaid separately, any prepayment
thereof shall be applied first to Base Rate Loans to
the full extent thereof before application to
Eurodollar Rate Loans, in each case in a manner which
minimizes the amount of any payments required to be
made by Company pursuant to subsection 2.6D.
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C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by
Company of principal, interest, fees and other Obligations
hereunder and under the Notes shall be made in Dollars in
same day funds, without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to
Administrative Agent not later than 10:00 A.M.
(San Francisco time) on the date due at the Funding and
Payment Office for the account of Lenders; funds received
by Administrative Agent after that time on such due date
shall be deemed to have been paid by Company on the next
succeeding Business Day. Company hereby authorizes
Administrative Agent to charge its accounts with
Administrative Agent in order to cause timely payment to
be made to Administrative Agent of all principal,
interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that
purpose).
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND
INTEREST. All payments in respect of the principal amount
of any Loan shall include payment of accrued interest on
the principal amount being repaid or prepaid, and all such
payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with
respect to such Loan) shall be applied to the payment of
interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal
and interest payments in respect of Term Loans and
Revolving Loans shall be apportioned among all out-
standing Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares.
Administrative Agent shall promptly distribute to each
Lender, at its primary address set forth below its name on
the appropriate signature page hereof or at such other
address as such Lender may request, its Pro Rata Share of
all such payments received by Administrative Agent and the
commitment fees of such Lender when received by
Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this
subsection 2.4C(iii), if, pursuant to the provisions of
subsection 2.6C, any Notice of Conversion/Continuation is
withdrawn as to any Affected Lender or if any Affected
Lender makes Base Rate Loans in lieu of its Pro Rata Share
of any Eurodollar Rate Loans, Administrative Agent shall
give effect thereto in apportioning payments received
thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment
to be made hereunder shall be stated to be due on a day
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that is not a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of
time shall be included in the computation of the payment
of interest hereunder or of the commitment fees hereunder,
as the case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that
before disposing of any Note held by it, or any part
thereof (other than by granting participations therein),
that Lender will make a notation thereon of all Loans
evidenced by that Note and all principal payments
previously made thereon and of the date to which interest
thereon has been paid; PROVIDED that the failure to make
(or any error in the making of) a notation of any Loan
made under such Note shall not limit or otherwise affect
the obligations of Company hereunder or under such Note
with respect to any Loan or any payments of principal or
interest on such Note.
2.5 Use of Proceeds.
---------------
A. TERM LOANS. The proceeds of the Term Loans, together
with up to $20,000,000 in proceeds of the initial Revolving
Loans (the "Initial Revolving Loans") shall be applied to fund
the Acquisition Financing Requirements.
B. REVOLVING LOANS. The Initial Revolving Loans shall
be applied by Company as provided in subsection 2.5A. Any
other Revolving Loans shall be applied by Company for working
capital purposes, which may include the making of intercompany
loans to certain of Company's wholly-owned Domestic
Subsidiaries, in accordance with subsection 7.1(iv), for their
own working capital purposes.
C. MARGIN REGULATIONS. No portion of the proceeds of
any borrowing under this Agreement shall be used by Company or
any of its Subsidiaries in any manner that might cause the
borrowing or the application of such proceeds to violate
Regulation G, Regulation U, Regulation T or Regulation X of the
Board of Governors of the Federal Reserve System or any other
regulation of such Board or to violate the Exchange Act, in
each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
--------------------------------------------------
Notwithstanding any other provision of this Agreement
to the contrary, the following provisions shall govern with
respect to Eurodollar Rate Loans as to the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon
as practicable after 9:00 A.M. (San Francisco time) on each
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Interest Rate Determination Date, Administrative Agent shall
determine (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) the interest
rate that shall apply to the Eurodollar Rate Loans for which an
interest rate is then being determined for the applicable
Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and
each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In
the event that Administrative Agent shall have determined
(which determination shall be final and conclusive and binding
upon all parties hereto), on any Interest Rate Determination
Date with respect to any Eurodollar Rate Loans, that by reason
of circumstances affecting the London interbank market adequate
and fair means do not exist for ascertaining the interest rate
applicable to such Loans on the basis provided for in the
definition of Adjusted Eurodollar Rate, Administrative Agent
shall on such date give notice (by telefacsimile or by
telephone confirmed in writing) to Company and each Lender of
such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Company and Lenders that the
circumstances giving rise to such notice no longer exist and
(ii) any Notice of Borrowing or Notice of Conversion/
Continuation given by Company with respect to the Loans in
respect of which such determination was made shall be deemed to
be rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE
LOANS. In the event that on any date any Lender shall have
determined (which determination shall be final and conclusive
and binding upon all parties hereto but shall be made only
after consultation with Company and Administrative Agent) that
the making, maintaining or continuation of its Eurodollar Rate
Loans (i) has become unlawful as a result of compliance by such
Lender in good faith with any law, treaty, governmental rule,
regulation, guideline or order (or would conflict with any such
treaty, governmental rule, regulation, guideline or order not
having the force of law even though the failure to comply
therewith would not be unlawful) or (ii) has become
impracticable, or would cause such Lender material hardship, as
a result of contingencies occurring after the date of this
Agreement which materially and adversely affect the London
interbank market or the position of such Lender in that market,
then, and in any such event, such Lender shall be an "Affected
Lender" and it shall on that day give notice (by telefacsimile
or by telephone confirmed in writing) to Company and
Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other
Lender). Thereafter (a) the obligation of the Affected Lender
to make Loans as, or to convert Loans to, Eurodollar Rate Loans
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shall be suspended until such notice shall be withdrawn by the
Affected Lender, (b) to the extent such determination by the
Affected Lender relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, the Affected Lender shall
make such Loan as (or convert such Loan to, as the case may be)
a Base Rate Loan, (c) the Affected Lender's obligation to
maintain its outstanding Eurodollar Rate Loans (the "Affected
Loans") shall be terminated at the earlier to occur of the
expiration of the Interest Period then in effect with respect
to the Affected Loans or when required by law, and (d) the
Affected Loans shall automatically convert into Base Rate Loans
on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Lender
as described above relates to a Eurodollar Rate Loan then being
requested by Company pursuant to a Notice of Borrowing or a
Notice of Conversion/Continuation, Company shall have the
option, subject to the provisions of subsection 2.6D, to
rescind such Notice of Borrowing or Notice of Conversion/
Continuation as to all Lenders by giving notice (by
telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which
the Affected Lender gives notice of its determination as
described above (which notice of rescission Administrative
Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this
subsection 2.6C shall affect the obligation of any Lender other
than an Affected Lender to make or maintain Loans as, or to
convert Loans to, Eurodollar Rate Loans in accordance with the
terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF
INTEREST PERIODS. Company shall compensate each Lender, upon
written request by that Lender (which request shall set forth
the basis for requesting such amounts), for all reasonable
losses, expenses and liabilities (including, without
limitation, any interest paid by that Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Rate Loans
and any reasonable loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of
such funds) which that Lender may sustain: (i) if for any
reason (other than a default by that Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified
therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar
Rate Loan does not occur on a date specified therefor in a
Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including,
without limitation, any prepayment pursuant to subsection
2.4B(i)) or other principal payment or any conversion of any of
its Eurodollar Rate Loans occurs on a date prior to the last
day of an Interest Period applicable to that Loan, (iii) if any
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prepayment of any of its Eurodollar Rate Loans is not made on
any date specified in a notice of prepayment given by Company,
or (iv) as a consequence of any other default by Company in the
repayment of its Eurodollar Rate Loans when required by the
terms of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may
make, carry or transfer Eurodollar Rate Loans at, to, or for
the account of any of its branch offices or the office of an
Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE
LOANS. Calculation of all amounts payable to a Lender under
this subsection 2.6 and under subsection 2.7A shall be made as
though that Lender had actually funded each of its relevant
Eurodollar Rate Loans through the purchase of a Eurodollar
deposit bearing interest at the rate obtained pursuant to
clause (i) of the definition of Adjusted Eurodollar Rate in an
amount equal to the amount of such Eurodollar Rate Loan and
having a maturity comparable to the relevant Interest Period
and through the transfer of such Eurodollar deposit from an
offshore office of that Lender to a domestic office of that
Lender in the United States of America; PROVIDED, HOWEVER, that
each Lender may fund each of its Eurodollar Rate Loans in any
manner it sees fit and the foregoing assumptions shall be
utilized only for the purposes of calculating amounts payable
under this subsection 2.6 and under subsection 2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the
occurrence of and during the continuation of a Potential Event
of Default or an Event of Default, (i) Company may not elect to
have a Loan be made or maintained as, or converted to, a
Eurodollar Rate Loan after the expiration of any Interest
Period then in effect for that Loan and (ii) subject to the
provisions of subsection 2.6D, any Notice of Borrowing or
Notice of Conversion/Continuation given by Company with respect
to a requested borrowing or conversion/continuation that has
not yet occurred shall be deemed to be rescinded by Company.
2.7 Increased Costs; Taxes; Capital Adequacy.
----------------------------------------
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject
to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in
the event that any Lender shall reasonably determine (which
determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any law,
treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination
of a court or governmental authority, in each case that becomes
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effective after the date hereof, or compliance by such Lender
with any guideline, request or directive issued or made after
the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force
of law):
(i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the
overall net income of such Lender) with respect to this
Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable lending office)
of principal, interest, fees or any other amount payable
hereunder;
(ii) imposes, modifies or holds applicable any
reserve (including without limitation any marginal,
emergency, supplemental, special or other reserve),
special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or
other liabilities in or for the account of, or advances or
loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other
than any such reserve or other requirements with respect
to Eurodollar Rate Loans that are reflected in the
definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting such Lender (or
its applicable lending office) or its obligations
hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost
to such Lender of agreeing to make, making or maintaining Loans
hereunder or to reduce any amount received or receivable by
such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Company shall promptly pay to
such Lender, upon receipt of the statement referred to in the
next sentence, such additional amount or amounts (in the form
of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender reasonably shall
determine) as may be necessary to compensate such Lender for
any such increased cost or reduction in amounts received or
receivable hereunder; PROVIDED, HOWEVER, that Company shall not
be obligated to pay such Lender any compensation attributable
to any period prior to the date that is 180 days prior to the
date on which such Lender gave notice to Company of the
circumstances entitling such Lender to compensation. Such
Lender shall promptly deliver to Company (with a copy to
Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 2.7A, which
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statement shall be conclusive and binding upon all parties
hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable
by Company under this Agreement and the other Loan
Documents shall (except to the extent required by law) be
paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on
the overall net income of any Lender) imposed, levied,
collected, withheld or assessed by or within the United
States of America or any political subdivision in or of
the United States of America or any other jurisdiction
from or to which a payment is made by or on behalf of
Company or by any federation or organization of which the
United States of America or any such jurisdiction is a
member at the time of payment.
(ii) GROSSING-UP OF PAYMENTS. If Company or any
other Person is required by law to make any deduction or
withholding on account of any such Tax from any sum paid
or payable by Company to Administrative Agent or any
Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent
of any such requirement or any change in any such
requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before the
date on which penalties attach thereto, such payment
to be made (if the liability to pay is imposed on
Company) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as
the case may be) on behalf of and in the name of
Administrative Agent or such Lender;
(c) the sum payable by Company in respect of
which the relevant deduction, withholding or payment
is required shall be increased to the extent
necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative
Agent or such Lender, as the case may be, receives on
the due date a net sum equal to what it would have
received had no such deduction, withholding or
payment been required or made; and
(d) within 30 days after paying any sum from
which it is required by law to make any deduction or
withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Administrative
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Agent evidence satisfactory to Administrative Agent
of such deduction, withholding or payment and of the
remittance thereof to the relevant taxing or other
authority;
PROVIDED that no such additional amount shall be required
to be paid to any Lender under clause (c) above except to
the extent that any change after the date hereof (in the
case of each Lender listed on the signature pages hereof)
or after the date of the Assignment Agreement pursuant to
which such Lender became a Lender (in the case of each
other Lender) in any such requirement for a deduction,
withholding or payment as is mentioned therein shall
result in an increase in the rate of such deduction,
withholding or payment from that in effect at the date of
this Agreement or at the date of such Assignment
Agreement, as the case may be, in respect of payments to
such Lender.
(iii) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender that is organized under the
laws of any jurisdiction other than the United States
of America or any state or other political
subdivision thereof (for purposes of this subsec-
tion 2.7B(iii), a "Non-US Lender") shall deliver to
Administrative Agent for transmission to Company, on
or prior to the Initial Funding Date (in the case of
each Lender listed on the signature pages hereof) or
on or prior to the date of the Assignment Agreement
pursuant to which it becomes a Lender (in the case of
each other Lender), and at such other times as may be
necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise
of its discretion), (1) two original copies of
Internal Revenue Service Form 1001 or 4224 (or any
successor forms), properly completed and duly
executed by such Lender, together with any other
certificate or statement of exemption required under
the Internal Revenue Code or the regulations issued
thereunder to establish that such Lender is not
subject to deduction or withholding of United States
federal income tax with respect to any payments to
such Lender of principal, interest, fees or other
amounts payable under any of the Loan Documents or
(2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal
Revenue Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause
(1) above, a Certificate re Non-Bank Status
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substantially in the form of Exhibit XI annexed
----------
hereto together with two original copies of Internal
Revenue Service Form W-8 (or any successor form),
properly completed and duly executed by such Lender,
together with any other certificate or statement of
exemption required under the Internal Revenue Code or
the regulations issued thereunder to establish that
such Lender is not subject to deduction or
withholding of United States federal income tax with
respect to any payments to such Lender of interest
payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms,
certificates or other evidence with respect to United
States federal income tax withholding matters
pursuant to subsection 2.7B(iii)(a) hereby agrees,
from time to time after the initial delivery by such
Lender of such forms, certificates or other evidence,
whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence
obsolete or inaccurate in any material respect, that
such Lender shall promptly (1) deliver to
Administrative Agent for transmission to Company two
new original copies of Internal Revenue Service Form
1001 or 4224, or a Certificate re Non-Bank Status and
two original copies of Internal Revenue Service Form
W-8, as the case may be, properly completed and duly
executed by such Lender, together with any other
certificate or statement of exemption required in
order to confirm or establish that such Lender is not
subject to deduction or withholding of United States
federal income tax with respect to payments to such
Lender under the Loan Documents or (2) notify
Administrative Agent and Company of its inability to
deliver any such forms, certificates or other
evidence.
(c) Company shall not be required to pay any
additional amount to any Non-US Lender under clause
(c) of subsection 2.7B(ii) if such Lender shall have
failed to satisfy the requirements of clause (a) or
(b)(1) of this subsection 2.7B(iii); PROVIDED that if
such Lender shall have satisfied the requirements of
subsection 2.7B(iii)(a) on the Initial Funding Date
(in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment
Agreement pursuant to which it became a Lender (in
the case of each other Lender), nothing in this
subsection 2.7B(iii)(c) shall relieve Company of its
obligation to pay any additional amounts pursuant to
clause (c) of subsection 2.7B(ii) in the event that,
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as a result of any change in any applicable law,
treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or
application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or
other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding
as described in subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall
have determined that the adoption, effectiveness, phase-in or
applicability after the date hereof of any law, rule or
regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or
administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its
applicable lending office) with any guideline, request or
directive regarding capital adequacy (whether or not having the
force of law) of any such governmental authority, central bank
or comparable agency, has or would have the effect of reducing
the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or
with reference to, such Lender's Loans or Commitments or
Letters of Credit or participations therein or other
obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such
controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or
compliance (taking into consideration the policies of such
Lender or such controlling corporation with regard to capital
adequacy), then from time to time, within five Business Days
after receipt by Company from such Lender of the statement
referred to in the next sentence, Company shall pay to such
Lender such additional amount or amounts as will compensate
such Lender or such controlling corporation on an after-tax
basis for such reduction; PROVIDED, HOWEVER, that Company shall
not be obligated to pay such Lender any compensation
attributable to any period prior to the date that is 180 days
prior to the date on which such Lender gave notice to Company
of the circumstances entitling such Lender to compensation.
Such Lender shall deliver to Company (with a copy to
Administrative Agent) a written statement, setting forth in
reasonable detail the basis of the calculation of such
additional amounts, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
2.8 Obligation of Lenders and Issuing Lenders to Mitigate.
-----------------------------------------------------
Each Lender and the Issuing Lender agrees that, as
promptly as practicable after the officer of such Lender or
Issuing Lender responsible for administering the Loans or
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Letters of Credit of such Lender or Issuing Lender, as the case
may be, becomes aware of the occurrence of an event or the
existence of a condition that would cause such Lender to become
an Affected Lender or that would entitle such Lender or Issuing
Lender to receive payments under subsection 2.7 or subsection
3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable
legal or regulatory restrictions, use reasonable efforts (i) to
make, issue, fund or maintain the Commitments of such Lender or
the affected Loans or Letters of Credit of such Lender or
Issuing Lender through another lending or letter of credit
office of such Lender or Issuing Lender, or (ii) take such
other measures as such Lender or Issuing Lender may deem
reasonable, if as a result thereof the circumstances which
would cause such Lender to be an Affected Lender would cease to
exist or the additional amounts which would otherwise be
required to be paid to such Lender or Issuing Lender pursuant
to subsection 2.7 or subsection 3.6 would be materially reduced
and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of
such Commitments or Loans or Letters of Credit through such
other lending or letter of credit office or in accordance with
such other measures, as the case may be, would not otherwise
materially adversely affect such Commitments or Loans or
Letters of Credit or the interests of such Lender or Issuing
Lender; PROVIDED that such Lender or Issuing Lender will not be
obligated to utilize such other lending or letter of credit
office pursuant to this subsection 2.8 unless Company agrees to
pay all incremental expenses incurred by such Lender or Issuing
Lender as a result of utilizing such other lending or letter of
credit office as described in clause (i) above. A certificate
as to the amount of any such expenses payable by Company
pursuant to this subsection 2.8 (setting forth in reasonable
detail the basis for requesting such amount) submitted by such
Lender or Issuing Lender to Company (with a copy to
Administrative Agent) shall be conclusive absent manifest
error.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of
Participations Therein.
------------------------------------------------------
A. LETTERS OF CREDIT. In addition to Company requesting
that Lenders make Revolving Loans pursuant to subsection
2.1A(iii), Company may request, in accordance with the
provisions of this subsection 3.1, from time to time during the
period from the Initial Funding Date to but excluding the
Revolving Loan Commitment Termination Date, that the Issuing
Lender issue Letters of Credit for the account of Company for
the purposes specified in the definition of Letters of Credit.
Subject to the terms and conditions of this Agreement and in
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reliance upon the representations and warranties of Company
herein set forth, the Issuing Lender shall issue such Letters
of Credit in accordance with the provisions of this subsec-
tion 3.1; PROVIDED that Company shall not request that the
Issuing Lender issue (and the Issuing Lender shall not issue):
(i) any Letter of Credit if, after giving effect to
such issuance, the Total Utilization of Revolving Loan
Commitments would exceed the Revolving Loan Commitments
then in effect;
(ii) any Letter of Credit if, after giving effect to
such issuance, the Letter of Credit Usage would exceed
$5,000,000;
(iii) any Letter of Credit having an expiration date
later than the earlier of (a) the Revolving Loan Commit-
ment Termination Date and (b) the date which is one year
from the date of issuance of such Letter of Credit;
PROVIDED that the immediately preceding clause (b) shall
not prevent the Issuing Lender from agreeing that a Letter
of Credit will automatically be extended for one or more
successive periods not to exceed one year each unless the
Issuing Lender elects not to extend for any such
additional period; and PROVIDED, FURTHER that the Issuing
Lender shall elect not to extend such Letter of Credit if
it has knowledge that an Event of Default has occurred and
is continuing (and has not been waived in accordance with
subsection 10.6) at the time the Issuing Lender must elect
whether or not to allow such extension; or
(iv) any Letter of Credit denominated in a foreign
currency which in the judgment of Administrative Agent is
not readily and freely available.
On and after the Initial Funding Date, the Existing
Company Letters of Credit shall be deemed for all
purposes, including for purposes of the fees to be
collected pursuant to subsection 3.2, and reimbursement of
costs and expenses to the extent provided herein, to be
Letters of Credit outstanding under this Agreement and
entitled to the benefits of this Agreement and the other
Loan Documents, and shall be governed by the applications
and agreements pertaining thereto and by this Agreement;
PROVIDED, HOWEVER, that, notwithstanding any other
provision of this Agreement, no fees with respect to the
issuance of the Existing Company Letters of Credit shall
be due hereunder.
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B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Company desires
the issuance of a Letter of Credit, it shall deliver to
Administrative Agent a Notice of Issuance of Letter of
Credit substantially in the form of Exhibit III annexed
-----------
hereto no later than 10:00 A.M. (San Francisco time) at
least three Business Days, or such shorter period as may
be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance.
The Notice of Issuance of Letter of Credit shall specify
(a) the proposed date of issuance (which shall be a
Business Day), (b) the face amount of the Letter of
Credit, (c) in the case of a Letter of Credit which
Company requests to be denominated in a currency other
than Dollars, the currency in which Company requests such
Letter of Credit to be issued, (d) the expiration date of
the Letter of Credit, (e) the name and address of the
beneficiary, and (f) the verbatim text of the proposed
Letter of Credit or the proposed terms and conditions
thereof; PROVIDED that the Issuing Lender, in its
reasonable discretion, may require changes in the text of
the proposed Letter of Credit; and PROVIDED, FURTHER that
no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same
business day (under the laws of the jurisdiction in which
the office of the Issuing Lender to which such draft is
required to be presented is located) that such draft is
presented if such presentation is made after 10:00 A.M.
(in the time zone of such office of the Issuing Lender) on
such business day.
Company shall notify the Administrative Agent
prior to the issuance of any Letter of Credit in the event
that any of the matters to which Company is required to
certify in the applicable Notice of Issuance of Letter of
Credit is no longer true and correct in all material
respects as of the proposed date of issuance of such
Letter of Credit, and upon the issuance of any Letter of
Credit Company shall be deemed to have re-certified, as of
the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of
Issuance of Letter of Credit.
(ii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction
or waiver (in accordance with subsection 10.6) of the
conditions set forth in subsection 4.4, the Issuing Lender
shall issue the requested Letter of Credit in accordance
with the Issuing Lender's standard operating procedures.
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(iii) NOTIFICATION TO LENDERS. Upon the issuance of
any Letter of Credit the Administrative Agent shall
promptly notify each other Lender of such issuance, which
notice shall be accompanied by a copy of such Letter of
Credit and shall notify each Lender of the amount of such
Lender's respective participation in such Letter of
Credit, determined in accordance with subsection 3.1C.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF
CREDIT. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby agrees to,
have irrevocably purchased from the Issuing Lender a participa-
tion in such Letter of Credit and any drawings honored
thereunder in an amount equal to such Lender's Pro Rata Share
of the maximum amount which is or at any time may become
available to be drawn thereunder.
3.2 Letter of Credit Fees.
---------------------
Company agrees to pay the following amounts with
respect to Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a
fronting fee, payable directly to the Issuing Lender for
its own account, equal to 0.25% per annum of the amount
available to be drawn under such Letter of Credit and
(b) a nonrefundable letter of credit fee, payable to
Administrative Agent for the account of Lenders, equal to
the amount available to be drawn under such Letter of
Credit MULTIPLIED by (a) for the period from and including
the Initial Funding Date to and excluding the date on
which Administrative Agent receives a Compliance
Certificate pursuant to subsection 6.1(vii) for the Fiscal
Year ended October 31, 1996 or the Fiscal Quarter ended
April 30, 1997 in the event the Initial Funding Date is
extended pursuant to subsection 2.1E, 2.625% and (b)
thereafter, the Applicable Eurodollar Rate Margin, each
such fronting fee or letter of credit fee to be payable in
advance at issuance and on each January 31, April 30,
July 31 and October 31 of each year and computed on the
basis of a 360-day year; and
(ii) with respect to the issuance, amendment,
negotiation or transfer of each Letter of Credit and each
payment of a drawing made thereunder (without duplication
of the fees payable under clause (i) above), documentary
and processing charges payable directly to the Issuing
Lender for its own account in accordance with the Issuing
Lender's standard schedule for such charges in effect at
the time of such issuance, amendment, transfer or payment,
as the case may be.
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For purposes of calculating any fees payable under this
subsection 3.2, any amount described in such clauses which is
denominated in a currency other than Dollars shall be valued
based on the applicable Exchange Rate for such currency as of
the applicable date of determination. The Applicable
Eurodollar Rate Margin shall be determined on the first day of
the calendar month following the delivery of each Compliance
Certificate pursuant to subsection 6.1(vii), commencing with
the Compliance Certificate for the Fiscal Year ended
October 31, 1996 or April 30, 1997, as the case may be, by
reference to such Compliance Certificate (without regard to any
subsequent corrections to reflect year-end audit adjustments).
The Applicable Eurodollar Rate Margin shall apply to all
Letters of Credit for the period from and including the date of
determination to and excluding the first day of the calendar
month following the delivery of the next Compliance
Certificate; PROVIDED, HOWEVER, that (1) if the Company fails
to deliver any Compliance Certificate in a timely manner
pursuant to subsection 6.1(vii), or (2) upon the occurrence and
during the continuation of any Event of Default, the highest
percentage per annum set forth in the definition of Applicable
Eurodollar Rate Margin shall apply for the period from and
including the first day of the calendar month following the
date on which such Compliance Certificate was required to be
delivered to and excluding the date on which Administrative
Agent receives such Compliance Certificate or during the
continuation of such Event of Default, as the case may be.
Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(b) of this subsection 3.2,
Administrative Agent shall distribute to each Lender its Pro
Rata Share of such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters
of Credit.
--------------------------------------------------------
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO
DRAWINGS. In determining whether to honor any drawing under
any Letter of Credit by the beneficiary thereof, the Issuing
Lender shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so
as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of
Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER
LETTERS OF CREDIT. In the event the Issuing Lender has
determined to honor a drawing under a Letter of Credit issued
by it, the Issuing Lender shall immediately notify Company, and
Company shall reimburse the Issuing Lender on or before the
Business Day immediately following the date on which such
drawing is honored (the "Reimbursement Date") in an amount in
Dollars (which amount, in the case of a drawing under a Letter
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of Credit which is denominated in a currency other than
Dollars, shall be calculated by reference to the applicable
Exchange Rate) and in same day funds equal to the amount of
such honored drawing; PROVIDED that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Company
shall have notified the Issuing Lender prior to 10:00 A.M.
(San Francisco time) on the date such drawing is honored that
Company intends to reimburse the Issuing Lender for the amount
of such honored drawing with funds other than the proceeds of
Revolving Loans, Company shall be deemed to have given a timely
Notice of Borrowing to Administrative Agent requesting Lenders
to make Revolving Loans that are Base Rate Loans on the
Reimbursement Date in an amount in Dollars (which amount, in
the case of a drawing under a Letter of Credit which is
denominated in a currency other than Dollars, shall be
calculated by reference to the applicable Exchange Rate) equal
to the amount of such honored drawing and (ii) subject to
satisfaction or waiver of the conditions specified in
subsection 4.3B, Lenders shall, on the Reimbursement Date, make
Revolving Loans that are Base Rate Loans in the amount of such
honored drawing, the proceeds of which shall be applied
directly by Administrative Agent to reimburse the Issuing
Lender for the amount of such honored drawing; and PROVIDED,
FURTHER that if for any reason proceeds of Revolving Loans are
not received by the Issuing Lender on the Reimbursement Date in
an amount equal to the amount of such honored drawing, Company
shall reimburse the Issuing Lender, on demand, in an amount in
same day funds equal to the excess of the amount of such
honored drawing over the aggregate amount of such Revolving
Loans, if any, which are so received. Nothing in this
subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions
set forth in this Agreement, and Company shall retain any and
all rights it may have against any Lender resulting from the
failure of such Lender to make such Revolving Loans under this
subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER
LETTERS OF CREDIT.
(i) PAYMENT BY LENDERS. In the event that Company
shall fail for any reason to reimburse the Issuing Lender
as provided in subsection 3.3B in an amount (calculated,
in the case of a drawing under a Letter of Credit
denominated in a currency other than Dollars, by reference
to the applicable Exchange Rate) equal to the amount of
any drawing honored by the Issuing Lender under a Letter
of Credit issued by it, the Issuing Lender shall promptly
notify each other Lender of the unreimbursed amount of
such honored drawing and of such other Lender's respective
participation therein based on such Lender's Pro Rata
Share. Each Lender shall make available to the Issuing
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Lender an amount equal to its respective participation, in
Dollars and in same day funds, at the office of the
Issuing Lender specified in such notice, not later than
10:00 A.M. (San Francisco time) on the first business day
(under the laws of the jurisdiction in which such office
of the Issuing Lender is located) after the date notified
by the Issuing Lender. In the event that any Lender fails
to make available to the Issuing Lender on such business
day the amount of such Lender's participation in such
Letter of Credit as provided in this subsection 3.3C, the
Issuing Lender shall be entitled to recover such amount on
demand from the Lender together with interest thereon at
the rate customarily used by the Issuing Lender for the
correction of errors among banks for three Business Days
and thereafter at the Base Rate. Nothing in this
subsection 3.3C shall be deemed to prejudice the right of
any Lender to recover from the Issuing Lender any amounts
made available by such Lender to the Issuing Lender
pursuant to this subsection 3.3C in the event that it is
determined by the final judgment of a court of competent
jurisdiction that the payment with respect to a Letter of
Credit by the Issuing Lender in respect of which payment
was made by such Lender constituted gross negligence or
willful misconduct on the part of the Issuing Lender.
(ii) DISTRIBUTION TO LENDERS OF REIMBURSEMENTS
RECEIVED FROM COMPANY. In the event the Issuing Lender
shall have been reimbursed by other Lenders pursuant to
subsection 3.3C(i) for all or any portion of any drawing
honored by the Issuing Lender under a Letter of Credit
issued by it, the Issuing Lender shall distribute to each
other Lender which has paid all amounts payable by it
under subsection 3.3C(i) with respect to such honored
drawing such other Lender's Pro Rata Share of all payments
subsequently received by the Issuing Lender from Company
in reimbursement of such honored drawing when such
payments are received. Any such distribution shall be
made to a Lender at its primary address set forth below
its name on the appropriate signature page hereof or at
such other address as such Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY COMPANY. Company agrees
to pay to the Issuing Lender, with respect to drawings
honored under any Letters of Credit issued by it, interest
on the amount paid by the Issuing Lender in respect of
each such honored drawing from the date such drawing is
honored to but excluding the date such amount is
reimbursed by Company (including any such reimbursement
out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period
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from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this
Agreement with respect to Revolving Loans that are Base
Rate Loans and (b) thereafter, if and to the extent not
fully reimbursed, a rate which is 2% per annum in excess
of the rate of interest otherwise payable under this
Agreement with respect to Revolving Loans that are Base
Rate Loans. Interest payable pursuant to this subsection
3.3D(i) shall be computed on the basis of a 360-day year
for the actual number of days elapsed in the period during
which it accrues and shall be payable on demand or, if no
demand is made, on the date on which the related drawing
under a Letter of Credit is reimbursed in full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING
LENDER. Promptly upon receipt by the Issuing Lender of
any payment of interest pursuant to subsection 3.3D(i)
with respect to a drawing honored under a Letter of Credit
issued by it, (a) the Issuing Lender shall distribute to
each other Lender, out of the interest received by the
Issuing Lender in respect of the period from the date such
drawing is honored to but excluding the date on which the
Issuing Lender is reimbursed for the amount of such
drawing (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B),
the amount that such other Lender would have been entitled
to receive in respect of the letter of credit fee that
would have been payable in respect of such Letter of
Credit for such period pursuant to subsection 3.2 if no
drawing had been honored under such Letter of Credit, and
(b) in the event the Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i)
for all or any portion of such honored drawing, the
Issuing Lender shall distribute to each other Lender which
has paid all amounts payable by it under subsection
3.3C(i) with respect to such honored drawing such other
Lender's Pro Rata Share of any interest received by the
Issuing Lender in respect of that portion of such honored
drawing so reimbursed by other Lenders for the period from
the date on which the Issuing Lender was so reimbursed by
other Lenders to but excluding the date on which such
portion of such honored drawing is reimbursed by Company.
Any such distribution shall be made to a Lender at its
primary address set forth below its name on the
appropriate signature page hereof or at such other address
as such Lender may request.
3.4 Obligations Absolute.
--------------------
The obligation of Company to reimburse the Issuing
Lender for drawings honored under the Letters of Credit issued
by it and to repay any Revolving Loans made by Lenders pursuant
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to subsection 3.3B and the obligations of Lenders under
subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit;
(ii) the existence of any claim, set-off, defense or
other right which Company or any Lender may have at any
time against a beneficiary or any transferee of any Letter
of Credit (or any Persons for whom any such transferee may
be acting), the Issuing Lender or other Lender or any
other Person or, in the case of a Lender, against Company,
whether in connection with this Agreement, the
transactions contemplated herein or any unrelated
transaction (including any underlying transaction between
Company or one of its Subsidiaries and the beneficiary for
which any Letter of Credit was procured);
(iii) any draft or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(iv) payment by the Issuing Lender under any Letter
of Credit against presentation of a draft or other
document which does not substantially comply with the
terms of such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other Loan
Document by any party thereto;
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential
Event of Default shall have occurred and be continuing;
PROVIDED, in each case, that payment by the Issuing Lender
under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of the
Issuing Lender under the circumstances in question (as deter-
mined by a final judgment of a court of competent
jurisdiction).
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3.5 Indemnification; Nature of Issuing Lenders' Duties.
--------------------------------------------------
A. INDEMNIFICATION. In addition to amounts payable as
provided in subsection 3.6, Company hereby agrees to protect,
indemnify, pay and save harmless the Issuing Lender from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable fees,
expenses and disbursements of counsel and allocated costs of
internal counsel) which the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit by the Issuing Lender, other
than as a result of (a) the gross negligence or willful
misconduct of the Issuing Lender as determined by a final
judgment of a court of competent jurisdiction or (b) subject to
the following clause (ii), the wrongful dishonor by the Issuing
Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of the Issuing Lender
to honor a drawing under any such Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or
governmental authority (all such acts or omissions herein
called "Governmental Acts").
B. NATURE OF ISSUING LENDERS' DUTIES. As between
Company and the Issuing Lender, Company assumes all risks of
the acts and omissions of, or misuse of the Letters of Credit
issued by the Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Lender shall not be
responsible for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted
by any party in connection with the application for and
issuance of any such Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole
or in part, which may prove to be invalid or ineffective for
any reason; (iii) failure of the beneficiary of any such Letter
of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation
of technical terms; (vi) any loss or delay in the transmission
or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any
such Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or (viii) any consequences arising from
causes beyond the control of the Issuing Lender, including,
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without limitation, any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of
the Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of
the specific provisions set forth in the first paragraph of
this subsection 3.5B, any action taken or omitted by the
Issuing Lender under or in connection with the Letters of
Credit issued by it or any documents and certificates delivered
thereunder, if taken or omitted in good faith, shall not put
the Issuing Lender under any resulting liability to Company.
Notwithstanding anything to the contrary contained in
this subsection 3.5, Company shall retain any and all rights it
may have against any Issuing Lender for any liability arising
solely out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a final judgment of a court of
competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
-------------------------------------------------------
Subject to the provisions of subsection 2.7B (which
shall be controlling with respect to the matters covered
thereby), in the event that the Issuing Lender or any Lender
shall reasonably determine (which determination shall, absent
manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule,
regulation or order, or any change therein or in the
interpretation, administration or application thereof
(including the introduction of any new law, treaty or
governmental rule, regulation or order), or any determination
of a court or governmental authority, in each case that becomes
effective after the date hereof, or compliance by the Issuing
Lender or any Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or
other governmental or quasi-governmental authority (whether or
not having the force of law):
(i) subjects the Issuing Lender or any Lender (or
its applicable lending or letter of credit office) to any
additional Tax (other than any Tax on the overall net
income of the Issuing Lender or such Lender) with respect
to the issuing or maintaining of any Letters of Credit or
the purchasing or maintaining of any participations
therein or any other obligations under this Section 3,
whether directly or by such being imposed on or suffered
by the Issuing Lender;
(ii) imposes, modifies or holds applicable any
reserve (including without limitation any marginal,
emergency, supplemental, special or other reserve),
special deposit, compulsory loan, FDIC insurance or
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similar requirement in respect of any Letters of Credit
issued by the Issuing Lender or participations therein
purchased by any Lender; or
(iii) imposes any other condition (other than with
respect to a Tax matter) on or affecting the Issuing
Lender or any Lender (or its applicable lending or letter
of credit office) regarding this Section 3 or any Letter
of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost
to the Issuing Lender or any Lender of agreeing to issue,
issuing or maintaining any Letter of Credit or agreeing to
purchase, purchasing or maintaining any participation therein
or to reduce any amount received or receivable by the Issuing
Lender or any Lender (or its applicable lending or letter of
credit office) with respect thereto; then, in any case, Company
shall promptly pay to the Issuing Lender or any Lender, upon
receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate
the Issuing Lender or any Lender for any such increased cost or
reduction in amounts received or receivable hereunder;
PROVIDED, HOWEVER, that Company shall not be obligated to pay
such Lender any compensation attributable to any period prior
to the date that is 180 days prior to the date on which such
Lender gave notice to Company of the circumstance entitling
such Lender to compensation. The Issuing Lender or any Lender
shall deliver to Company a written statement, setting forth in
reasonable detail the basis for calculating the additional
amounts owed to the Issuing Lender or any Lender under this
subsection 3.6, which statement shall be conclusive and binding
upon all parties hereto absent manifest error.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.1 Conditions to Signing Date.
--------------------------
The obligations of Lenders to execute this Agreement
and the effectiveness of this Agreement are subject to prior or
concurrent satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On the Signing Date, Company
shall, and shall cause each Subsidiary of Company (other than
Inactive Subsidiaries or Unrestricted Subsidiaries) to, deliver
to Administrative Agent (with sufficient originally executed
copies, where appropriate, for each Lender and its counsel) the
following with respect to Company or such Loan Party, as the
case may be, each, unless otherwise noted, dated the Signing
Date:
(i) Resolutions of the Board of Directors of such
Person approving and authorizing the execution, delivery
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and performance of the Loan Documents and the Merger
Agreement, if such Person is a party thereto, certified as
of the Signing Date by the corporate secretary or an
assistant secretary of such Person as being in full force
and effect without modification or amendment;
(ii) Signature and incumbency certificates of the
officers of such Person executing the Loan Documents to
which it is a party; and
(iii) Executed originals of the Loan Documents to
which such Person is a party.
B. PROJECTIONS; PROJECTED BALANCE SHEET. On or before
the Signing Date, Administrative Agent shall have received from
Company (i) the Projections, which Projections shall be in form
and substance reasonably satisfactory to Administrative Agent,
and (ii) a projected consolidated balance sheet of Company and
its Subsidiaries as at March 31, 1996 (the projected date of
the consummation of the Merger), prepared in accordance with
GAAP and reflecting the consummation of the Acquisition and the
Merger, the related financings and the other transactions
contemplated by the Loan Documents and the Merger Agreement,
which projected balance sheet shall be in form and substance
reasonably satisfactory to Administrative Agent.
C. FINANCIAL STATEMENTS. On or before the Signing Date,
Administrative Agent shall have received from Company (i)
audited consolidated financial statements of Company and its
Subsidiaries for Fiscal Years 1993, 1994 and 1995, consisting
of balance sheets and the related consolidated statements of
income, stockholders' equity and cash flows for such Fiscal
Years, (ii) an unaudited balance sheet of each Subsidiary of
Company as at October 31, 1995 and the related statement of
income for each such Subsidiary for the Fiscal Year then ended,
(iii) audited consolidated financial statements of Greiner and
its Subsidiaries for Greiner Fiscal Years 1992, 1993 and 1994,
consisting of balance sheets and the related consolidated
statements of income, stockholders' equity and cash flows for
such Greiner Fiscal Years, (iv) unaudited consolidated
financial statements of Greiner and its Subsidiaries for the
Greiner Fiscal Quarters ended March 31, 1995, June 30, 1995 and
September 30, 1995, consisting of a balance sheet and the
related consolidated statements of income, stockholders' equity
and cash flows for the three-month, six-month and nine-month
periods, respectively, ending on such dates, all in reasonable
detail, and (v) an unaudited balance sheet of each Subsidiary
of Greiner as at December 31, 1994 and the related statement of
income for each such Subsidiary for the Greiner Fiscal Year
then ended.
D. FINANCIAL PERFORMANCE. As of the Signing Date:
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(i) The ratio of (a) the sum of (1) Pre Merger URS
Consolidated Total Funded Debt as of the Signing Date PLUS
(2) Pre Merger Greiner Consolidated Total Funded Debt as
of the Signing Date PLUS (3) the aggregate amount of the
Tranche A Term Loan Commitments and the Tranche B Term
Loan Commitments to (b) the sum of Pre Merger URS
Consolidated EBITDA PLUS Pre Merger Greiner Consolidated
EBITDA for the immediately preceding four-Fiscal Quarter
period shall not exceed 4.00 to 1.00.
(ii) The sum of Pre Merger URS Consolidated EBITDA
PLUS Pre Merger Greiner Consolidated EBITDA for the
immediately preceding four-Fiscal Quarter period shall not
be less than $15,000,000.
On the Signing Date, Company shall deliver to Administrative
Agent an Officer's Certificate of Company demonstrating in
reasonable detail compliance with such restrictions.
E. CORPORATE AND CAPITAL STRUCTURE, OWNERSHIP,
MANAGEMENT; MERGER STRUCTURE, ETC.
(i) CORPORATE STRUCTURE. The corporate
organizational structure of Company, Greiner and their
respective Subsidiaries, both before and after giving
effect to the Acquisition and the Merger, shall be as set
forth on Schedule 4.1E of the Signing Date Company
Disclosure Letter.
(ii) CAPITAL STRUCTURE AND OWNERSHIP. The capital
structure and ownership of Company, Greiner and their
respective Subsidiaries, both before and after giving
effect to the Acquisition and the Merger, shall be as set
forth on Schedule 4.1E of the Signing Date Company
Disclosure Letter.
(iii) MERGER STRUCTURE. The structure to be used to
consummate the Acquisition and the Merger shall be as set
forth on Schedule 4.1E of the Signing Date Company
Disclosure Letter.
(iv) MERGER AGREEMENT. Administrative Agent shall
have received a fully executed or conformed copy of the
Merger Agreement and any documents executed in connection
therewith, and the Merger Agreement shall be in full force
and effect and no provision thereof shall have been
modified or waived in any respect without the consent of
Administrative Agent.
F. MATTERS RELATING TO EXISTING SUBORDINATED
INDEBTEDNESS. On or before the Signing Date, Company shall
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have obtained all such consents with respect to the Existing
Subordinated Indebtedness and the Existing Blum Subordination
Agreement as may be required to permit the consummation of the
Acquisition and the Merger, the related financings (including
the incurrence of the Obligations hereunder) and the other
transactions contemplated by the Loan Documents and the Merger
Agreement. The terms and conditions of such consents shall be
in form and substance satisfactory to Administrative Agent.
Company shall have delivered to Administrative Agent a fully
executed or conformed copy of the Existing Subordinated
Agreements and the Existing Blum Subordination Agreement.
G. REPORT ON ACCOUNTS RECEIVABLE. Prior to the Signing
Date, Administrative Agent shall have received a report from
KPMG Peat Marwick in form, scope and substance reasonably
satisfactory to Administrative Agent regarding the Accounts
Receivable of Company and its Subsidiaries for the 1995 Fiscal
Year. Prior to the Signing Date, Administrative Agent shall
have received a report from KPMG Peat Marwick in form, scope
and substance reasonably satisfactory to Administrative Agent
regarding the Accounts Receivable of Greiner and its
Subsidiaries for the Greiner Fiscal Year ended December 31,
1994.
H. OPINIONS OF COUNSEL TO LOAN PARTIES. Administrative
Agent shall have received sufficient originally executed copies
for each Lender and its counsel of one or more favorable
written opinions of Sheppard, Mullin, Richter & Hampton,
counsel for Company and its Subsidiaries, addressed to
Administrative Agent and Lenders and in form and substance
reasonably satisfactory to Administrative Agent and its
counsel, dated as of the Signing Date and setting forth
substantially the matters in the opinions designated in
Exhibit VII-A annexed hereto.
-------------
I. AUDITOR'S LETTER. Administrative Agent shall have
received the executed Auditor's Letter from Coopers & Lybrand,
LLP.
J. SIGNING DATE COMPANY DISCLOSURE LETTER. On or before
the Signing Date, Company shall have delivered to
Administrative Agent the Signing Date Company Disclosure Letter
containing (i) Schedules 4.1E, 5.1D, 5.1E, 5.1F, 5.1G, 5.5B,
5.5C, 5.6, 5.11, 5.13, 7.2 and 7.3, (ii) preliminary Summary of
Operations of Greiner and its Subsidiaries for the Greiner
Fiscal Year ended December 31, 1995 by division, which shall be
annexed as Schedule 4.2A, (iii) preliminary Results of
Operations of Greiner and its Subsidiaries for the Greiner
Fiscal Year ended December 31, 1995 formatted by adjustment
item, which shall be annexed as Schedule 4.2B, and (iv)
preliminary Results of Operations of Greiner and its
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Subsidiaries for the Greiner Fiscal Year ended December 31,
1995 formatted by discontinued business segments, which shall
be annexed as Schedule 4.2C.
K. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
AGREEMENTS. Company shall have delivered to Administrative
Agent an Officer's Certificate, in form and substance
satisfactory to Administrative Agent, to the effect that the
representations and warranties in Section 5 hereof are true,
correct and complete in all material respects on and as of the
Signing Date to the same extent as though made on and as of
that date (or, to the extent such representations and
warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete
in all material respects on and as of such earlier date) and
that Company shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement
provides shall be performed or satisfied by it on or before the
Signing Date except as otherwise disclosed to and agreed to in
writing by Administrative Agent. There are no amendments to
the Existing Subordinated Agreements or the Existing Blum
Subordination Agreement that have not been delivered to
Administrative Agent.
4.2 Conditions to Term Loans and Initial Revolving Loans.
----------------------------------------------------
The obligations of Lenders to make the Term Loans and
the Initial Revolving Loans are, in addition to the conditions
precedent specified in subsections 4.1 and 4.3, subject to
prior or concurrent satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Initial
Funding Date, Company shall, and shall cause each other Loan
Party to, deliver to Administrative Agent (with sufficient
originally executed copies, where appropriate, for each Lender
and its counsel) the following with respect to Company or such
Loan Party, as the case may be, each, unless otherwise noted,
dated the Initial Funding Date:
(i) Certified copies of the Certificate or Articles
of Incorporation of such Person, together with a good
standing certificate from the Secretary of State of its
jurisdiction of incorporation and each other state in
which such Person is qualified as a foreign corporation to
do business and, to the extent generally available, a
certificate or other evidence of good standing as to
payment of any applicable franchise or similar taxes from
the appropriate taxing authority of each of such
jurisdictions, each dated a recent date prior to the
Initial Funding Date;
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(ii) Copies of the Bylaws of such Person, certified
as of the Initial Funding Date by such Person's corporate
secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of such
Person approving and authorizing the execution, delivery
and performance of the Loan Documents and the Merger
Agreement, if such Person is a party thereto, certified as
of the Initial Funding Date by the corporate secretary or
an assistant secretary of such Person as being in full
force and effect without modification or amendment;
(iv) Signature and incumbency certificates of the
officers of such Person executing the Loan Documents to
which it is a party;
(v) Executed originals of the Loan Documents to
which such Person is a party; and
(vi) Such other documents as Administrative Agent may
reasonably request.
B. PROJECTIONS. On the Initial Funding Date, Company
shall deliver to Administrative Agent (with sufficient copies
for each Lender) an Officer's Certificate of Company certifying
that no facts have occurred since the Signing Date that would
lead Company to believe that the Projections are inaccurate in
any material respect or that the assumptions on which the
Projections are based are unreasonable.
C. PROJECTED BALANCE SHEET. On or prior to the Pre
Closing Date, Company shall deliver to Administrative Agent
(with sufficient copies for each Lender) a projected
consolidated balance sheet of Company and its Subsidiaries as
at the projected date of the consummation of the Merger,
prepared in accordance with GAAP and reflecting the
consummation of the Acquisition and the Merger, the related
financings and the other transactions contemplated by the Loan
Documents and the Merger Agreement, which projected balance
sheet shall be (i) in form and substance reasonably satis-
factory to Administrative Agent and (ii) consistent with the
projected consolidated balance sheet of Company and its
Subsidiaries delivered pursuant to subsection 4.1B.
D. FINANCIAL PERFORMANCE.
(i) Company shall have satisfied the covenants set
forth in subsections 7.6A, 7.6B, 7.6C, and 7.6D as if the
Merger had been consummated and the Term Loans funded on
the Signing Date for each period set forth therein from
the Signing Date to and including the Initial Funding
Date. On the Initial Funding Date, Company shall deliver
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to Administrative Agent (with sufficient originally
executed copies for each Lender) an Officer's Certificate
of Company demonstrating in reasonable detail compliance
with such restrictions.
(ii) As at the last day of each month ending prior to
consummation of the Merger:
(a) There shall be no Indebtedness outstanding
under the Existing Credit Agreements (other than
letters of credit) and the sum of Cash and Cash
Equivalents of Company and its Subsidiaries on a
consolidated basis shall not be less than $5,000,000.
(b) Pre Merger URS Consolidated EBITDA for the
period set forth below then ended shall not be less
than the correlative amount indicated below:
Period Amount
------ ------
One-month period ended January 31, 1996 $ 680,000
Two-month period ended February 28, 1996 1,360,000
Three-month period ended March 31, 1996 2,040,000
Four-month period ended April 30, 1996 2,805,000
Five-month period ended May 31, 1996 3,740,000
Six-month period ended June 30, 1996 4,675,000
Seven-month period ended July 31, 1996 5,610,000
Eight-month period ended August 31, 1996 6,780,000
(c) Pre Merger URS Consolidated Net Income for
the period set forth below then ended shall not be
less than the correlative amount indicated below:
Period Amount
------ ------
One-month period ended January 31, 1996 $ 170,000
Two-month period ended February 28, 1996 425,000
Three-month period ended March 31, 1996 680,000
Four-month period ended April 30, 1996 935,000
Five-month period ended May 31, 1996 1,275,000
Six-month period ended June 30, 1996 1,700,000
Seven-month period ended July 31, 1996 2,040,000
Eight-month period ended August 31, 1996 2,490,000
(d) The sum of Company's contract backlog PLUS
designations, in each case calculated in a manner
consistent with the method used in preparing
Company's annual and quarterly reports filed with the
Securities and Exchange Commission, shall not be less
than $350,000,000.
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(iii) As at the last day of each month ending prior to
consummation of the Merger:
(a) There shall be no Indebtedness outstanding
under the Existing Credit Agreements (other than
letters of credit) and the sum of Cash, Cash
Equivalents and U.S. Treasury securities of Greiner
and its Subsidiaries on a consolidated basis shall
not be less than $16,000,000.
(b) Pre Merger Greiner Consolidated EBITDA for
the period set forth below then ended shall not be
less than the correlative amount indicated below:
Period Amount
------ ------
One-month period ended January 31, 1996 $ 400,000
Two-month period ended February 28, 1996 880,000
Three-month period ended March 31, 1996 1,440,000
Four-month period ended April 30, 1996 2,320,000
Five-month period ended May 31, 1996 3,120,000
Six-month period ended June 30, 1996 3,920,000
Seven-month period ended July 31, 1996 4,720,000
Eight-month period ended August 31, 1996 5,530,000
(c) Pre Merger Greiner Consolidated Net Income
for the period set forth below then ended shall not
be less than the correlative amount indicated below:
Period Amount
------ ------
One-month period ended January 31, 1996 $ 80,000
Two-month period ended February 28, 1996 160,000
Three-month period ended March 31, 1996 320,000
Four-month period ended April 30, 1996 640,000
Five-month period ended May 31, 1996 880,000
Six-month period ended June 30, 1996 1,120,000
Seven-month period ended July 31, 1996 1,360,000
Eight-month period ended August 31, 1996 1,630,000
(d) The sum of Greiner's category I backlog
PLUS category II backlog, in each case calculated in
a manner consistent with the method used in preparing
Greiner's annual and quarterly reports filed with the
Securities and Exchange Commission, MULTIPLIED BY
130% shall not be less than $200,000,000.
E. NO MATERIAL ADVERSE EFFECT. Since October 31, 1995,
no Material Adverse Effect (in the sole opinion of
Administrative Agent) with respect to Company shall have
occurred. Since September 30, 1995, no Material Adverse Effect
(in the sole opinion of Administrative Agent) with respect to
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Greiner shall have occurred, including any Material Adverse
Effect with respect to Greiner resulting from audit or normal
year-end adjustments made in connection with the December 31,
1995 audited financial statements. For purposes of this
subsection 4.2E, it shall not be a Material Adverse Effect with
respect to Greiner if (i) the pretax net loss reflected on the
financial statements of Greiner and its Subsidiaries for the
Greiner Fiscal Year ended December 31, 1995 does not exceed
$7,700,000 and (ii) Schedules 4.2A, 4.2B and 4.2C of the
Company Initial Funding Date Disclosure Letter are not
materially inconsistent with Schedules 4.2A, 4.2B and 4.2C of
the Company Signing Date Disclosure Letter.
F. CONDUCT OF BUSINESS. Since the Signing Date, Company
and its Subsidiaries and Greiner and its Subsidiaries shall
have conducted their respective businesses in the usual,
regular and ordinary course in substantially the same manner as
conducted prior to December 20, 1995.
G. CORPORATE AND CAPITAL STRUCTURE, OWNERSHIP,
MANAGEMENT, ETC.
(i) CORPORATE STRUCTURE. The corporate
organizational structure of Company, Greiner and their
respective Subsidiaries, both before and after giving
effect to the Acquisition and the Merger, shall be as set
forth on Schedule 4.1E of the Signing Date Company
Disclosure Letter.
(ii) CAPITAL STRUCTURE AND OWNERSHIP. The capital
structure and ownership of Company, Greiner and their
respective Subsidiaries, both before and after giving
effect to the Acquisition and the Merger, shall be as set
forth on Schedule 4.1E of the Signing Date Company
Disclosure Letter.
(iii) MERGER STRUCTURE. The structure to be used to
consummate the Acquisition and the Merger shall be as set
forth on Schedule 4.1E of the Signing Date Company
Disclosure Letter.
(iv) MERGER AGREEMENT. The Merger Agreement shall be
in full force and effect and no provision thereof shall
have been modified or waived in any respect without the
consent of Administrative Agent.
H. TERMINATION OF EXISTING CREDIT AGREEMENTS AND RELATED
LIENS; EXISTING GREINER LETTER OF CREDIT. On the Initial
Funding Date, Company, Greiner and their respective
Subsidiaries shall have (i) terminated any commitments to lend
or make other extensions of credit under the Existing Credit
Agreements, (ii) delivered to Administrative Agent all
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documents or instruments necessary to release all Liens
securing Indebtedness or other obligations of Company and its
Subsidiaries thereunder and (iii) cash collateralized the
Existing Greiner Letters of Credit by delivering to Sanwa Bank
an amount equal to the maximum amount that may at any time be
drawn under the Existing Greiner Letters of Credit.
I. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS;
EXPIRATION OF WAITING PERIODS, ETC. Company shall have
obtained all Governmental Authorizations and all consents of
other Persons, in each case that are necessary or advisable in
connection with the Acquisition and the Merger, the other
transactions contemplated by the Loan Documents and the Merger
Agreement, and the continued operation of the business
conducted by Greiner and its Subsidiaries in substantially the
same manner as conducted prior to the consummation of the
Acquisition and the Merger, and each of the foregoing shall be
in full force and effect, in each case other than those the
failure to obtain or maintain which, either individually or in
the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Company or Greiner. All applicable
waiting periods shall have expired without any action being
taken or threatened by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the
Acquisition or the Merger or the financing thereof. No action,
request for stay, petition for review or rehearing,
reconsideration, or appeal with respect to any of the foregoing
shall be pending, and the time for any applicable agency to
take action to set aside its consent on its own motion shall
have expired.
J. CONSUMMATION OF MERGER.
(i) All conditions to the Acquisition and the Merger
set forth in Sections 7.1 and 7.2 of the Merger Agreement
shall have been satisfied or the fulfillment of any such
conditions shall have been waived with the consent of
Administrative Agent;
(ii) The Acquisition and the Merger shall become
effective concurrently with the making of the initial
Loans in accordance with the terms of the Merger
Agreement, no provision of which shall have been amended,
supplemented, waived or otherwise modified in any respect
without the prior written consent of Administrative Agent,
and the laws of the State of Nevada;
(iii) The Acquisition Consideration shall not exceed
$65,000,000;
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(iv) Transaction Costs shall not exceed $5,000,000,
and Administrative Agent shall have received evidence to
its satisfaction to such effect;
(v) Administrative Agent shall have received
evidence to its satisfaction that at least $16,000,000 in
Cash is on hand at Greiner and at least $5,000,000 in Cash
is on hand at Company; and
(vi) Effective upon consummation of the Merger, the
outstanding capital stock of Greiner shall be a class of
common stock that does not constitute Margin Stock.
K. SECURITY INTERESTS IN PERSONAL PROPERTY. On or prior
to the Pre-Closing Date, Administrative Agent shall have
received evidence satisfactory to it that Company and
Subsidiary Guarantors shall have taken or caused to be taken
all such actions, executed and delivered or caused to be
executed and delivered all such agreements, documents and
instruments, and made or caused to be made all such filings and
recordings (other than the filing of items described in clause
(iii) below) that may be necessary or, in the opinion of
Administrative Agent, desirable in order to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and
(upon such filing and recording) perfected First Priority
security interest in the entire Collateral. Such actions shall
include, without limitation, the following:
(i) SCHEDULES TO COLLATERAL DOCUMENTS. Delivery to
Administrative Agent of accurate and complete schedules to
all of the applicable Collateral Documents;
(ii) STOCK CERTIFICATES AND INSTRUMENTS. Delivery to
Administrative Agent of certificates and instruments
(which certificates and instruments shall be accompanied
by irrevocable undated stock powers, duly endorsed in
blank and otherwise satisfactory in form and substance to
Administrative Agent) representing all capital stock and
intercompany debt, if required pursuant to subsection
7.1(iv), pledged pursuant to the Company Pledge Agreement
and the Subsidiary Pledge Agreement and identified on
Schedule 4.2K of the Initial Funding Date Company
Disclosure Letter;
(iii) LIEN SEARCHES AND UCC TERMINATION STATEMENTS.
Delivery to Administrative Agent of (a) the results of a
recent search, by a Person satisfactory to Administrative
Agent, of all effective UCC financing statements and
fixture filings and all judgment and tax lien filings
which may have been made with respect to any property of
any Loan Party, together with copies of all such filings
disclosed by such search, and (b) UCC termination
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statements duly executed by all applicable Persons for
filing in all applicable jurisdictions as may be necessary
to terminate any effective UCC financing statements or
fixture filings disclosed in such search (other than any
such financing statements or fixture filings in respect of
Liens permitted to remain outstanding pursuant to the
terms of this Agreement);
(iv) UCC FINANCING STATEMENTS. Delivery to
Administrative Agent of UCC financing statements duly
executed by each applicable Loan Party with respect to all
Collateral of such Loan Party, for filing in all
jurisdictions as may be necessary or, in the opinion of
Administrative Agent, desirable to perfect the security
interests created in such Collateral pursuant to the
Collateral Documents;
(v) DEPOSIT NOTICES. Delivery to Administrative
Agent of notices with respect to the security interest of
Administrative Agent, in form and substance reasonably
satisfactory to Administrative Agent, addressed to the
financial institutions in which the Deposit Accounts
listed on Schedule I to the Company Security Agreement and
----------
Schedule I to the Subsidiary Security Agreement are
----------
maintained; and
(vi) CASH MANAGEMENT SYSTEM. Establishment of a cash
management system with Wells Fargo, satisfactory to
Administrative Agent.
L. SOLVENCY ASSURANCES. On the Initial Funding Date,
Company shall deliver to Administrative Agent (with sufficient
copies for each Lender) a Financial Condition Certificate dated
the Initial Funding Date, substantially in the form of
Exhibit XVIII annexed hereto and with appropriate attachments,
-------------
in each case demonstrating that, after giving effect to the
consummation of the Acquisition and the Merger, the related
financings and the other transactions contemplated by the Loan
Documents and the Merger Agreement, both Company and Greiner
will be Solvent.
M. EVIDENCE OF INSURANCE. Administrative Agent shall
have received a certificate from Company's insurance broker or
other evidence satisfactory to it that all insurance required
to be maintained pursuant to subsection 6.4 is in full force
and effect.
N. OPINIONS OF COUNSEL TO LOAN PARTIES. Administrative
Agent shall have received sufficient originally executed copies
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for each Lender and its counsel of one or more favorable
written opinions of Sheppard, Mullin, Richter & Hampton,
counsel for Loan Parties, addressed to Administrative Agent and
Lenders and in form and substance reasonably satisfactory to
Administrative Agent and its counsel, dated as of the Initial
Funding Date and setting forth substantially the matters in the
opinions designated in Exhibit VII-B annexed hereto and as to
-------------
such other matters as Administrative Agent may reasonably
request.
O. OPINIONS OF ADMINISTRATIVE AGENT'S COUNSEL.
Administrative Agent shall have received sufficient originally
executed copies for each Lender and its counsel of one or more
favorable written opinions of O'Melveny & Myers, counsel to
Administrative Agent, addressed to Administrative Agent and
Lenders and dated as of the Initial Funding Date, substan-
tially in the form of Exhibit VIII annexed hereto and as to
------------
such other matters as Administrative Agent may reasonably
request.
P. OPINIONS OF COUNSEL DELIVERED UNDER MERGER AGREEMENT.
Administrative Agent shall have received sufficient copies for
each Lender and its counsel of each of the opinions of counsel
delivered to the parties under the Merger Agreement, together
with a letter from each such counsel authorizing Lenders to
rely upon such opinion to the same extent as though it were
addressed to Lenders.
Q. FEES. Company shall have paid to Administrative
Agent, for distribution (as appropriate) to Administrative
Agent and Lenders, the fees payable referred to in
subsection 2.3.
R. AUDITOR'S LETTER. Administrative Agent shall have
received the executed Auditor's Letter from Price Waterhouse,
LLP with respect to the consolidated financial statements of
Greiner and its Subsidiaries for the Greiner Fiscal Year ended
December 31, 1995.
S. INITIAL FUNDING DATE COMPANY DISCLOSURE LETTER. On
or before the Initial Funding Date, Company shall have
delivered to Administrative Agent the Initial Funding Date
Company Disclosure Letter containing (i) Schedules 1.1 and 5.8,
(ii) final Summary of Operations of Greiner and its
Subsidiaries for the Greiner Fiscal Year ended December 31,
1995 by division, which shall be annexed as Schedule 4.2A,
(iii) final Results of Operations of Greiner and its
Subsidiaries for the Greiner Fiscal Year ended December 31,
1995 formatted by adjustment item, which shall be annexed as
Schedule 4.2B, and (iv) final Results of Operations of Greiner
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and its Subsidiaries for the Greiner Fiscal Year ended December
31, 1995 formatted by discontinued business segments, which
shall be annexed as Schedule 4.2C.
T. NO DISRUPTION OF FINANCIAL AND CAPITAL MARKETS.
Since December 20, 1995, there shall not have occurred and be
continuing a material disruption of or material adverse change
in the financial, banking or capital markets that would have an
adverse effect on the syndication markets for credit facilities
similar in nature to those provided for in this Agreement, as
determined by Administrative Agent in its sole discretion.
U. SYNDICATION. Company and Greiner shall have
cooperated with Administrative Agent in the syndication of the
Commitments (such cooperation to include, without limitation,
participating in meetings with the Lenders and assisting in the
preparation of a Confidential Information Memorandum and other
materials to be used in connection with such syndication) and
shall have provided and caused their respective advisors to
provide all information reasonably deemed necessary by
Administrative Agent to such syndication. Company and Greiner
shall also have coordinated any other financings by Company and
Greiner with Administrative Agent's primary syndication efforts
relating to the Commitments.
V. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
AGREEMENTS. Company shall have delivered to Administrative
Agent an Officer's Certificate, in form and substance
satisfactory to Administrative Agent, (i) to the effect that
the representations and warranties in Section 5 hereof are
true, correct and complete in all material respects on and as
of the Initial Funding Date to the same extent as though made
on and as of that date (or, to the extent such representations
and warranties specifically relate to an earlier date, that
such representations and warranties were true, correct and
complete in all material respects on and as of such earlier
date) and that Company shall have performed in all material
respects all agreements and satisfied all conditions which this
Agreement provides shall be performed or satisfied by it on or
before the Initial Funding Date except as otherwise disclosed
to and agreed to in writing by Administrative Agent and (ii) to
the effect set forth in clauses (i)-(v) of subsection 4.2J and
stating that Company will proceed to consummate the Acquisition
and the Merger concurrently with the making of the initial
Loans.
W. COMPLETION OF PROCEEDINGS. All corporate and other
proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by Administrative Agent
and its counsel shall be reasonably satisfactory in form and
substance to Administrative Agent and such counsel, and
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Administrative Agent and such counsel shall have received all
such counterpart originals or certified copies of such
documents as Administrative Agent may reasonably request.
4.3 Conditions to All Loans.
-----------------------
The obligations of Lenders to make Loans on each
Funding Date are subject to the following further conditions
precedent:
A. Administrative Agent shall have received before that
Funding Date, in accordance with the provisions of subsection
2.1B, an originally executed Notice of Borrowing, in each case
signed by the chief executive officer, the chief financial
officer or the treasurer of Company or by any executive officer
of Company designated by any of the above-described officers on
behalf of Company in a writing delivered to Administrative
Agent.
B. As of that Funding Date:
(i) The representations and warranties contained
herein and in the other Loan Documents shall be true,
correct and complete in all material respects on and as of
that Funding Date to the same extent as though made on and
as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have
been true, correct and complete in all material respects
on and as of such earlier date;
(ii) No event shall have occurred and be continuing
or would result from the consummation of the borrowing
contemplated by such Notice of Borrowing that would
constitute an Event of Default or a Potential Event of
Default;
(iii) Each Loan Party shall have performed in all
material respects all agreements and satisfied all
conditions which this Agreement provides shall be
performed or satisfied by it on or before that Funding
Date;
(iv) No order, judgment or decree of any court,
arbitrator or governmental authority shall purport to
enjoin or restrain any Lender from making the Loans to be
made by it on that Funding Date;
(v) The making of the Loans requested on such
Funding Date shall not violate any law including, without
limitation, Regulation G, Regulation T, Regulation U or
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Regulation X of the Board of Governors of the Federal
Reserve System; and
(vi) (a) There shall not be pending or, to the actual
knowledge of Company, threatened, any action, suit, pro-
ceeding, governmental investigation or arbitration against
or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that has
not been disclosed by Company in writing pursuant to
subsection 5.6 or 6.1(xiii) prior to the making of the
last preceding Loans (or, in the case of the initial
Loans, prior to the execution of this Agreement), and (b)
there shall have occurred no development not so disclosed
in any such action, suit, proceeding, governmental
investigation or arbitration so disclosed, that, in either
event, in the reasonable opinion of Administrative Agent
or of Requisite Lenders, would be expected to have a
Material Adverse Effect on Company; and no injunction or
other restraining order shall have been issued and no
hearing to cause an injunction or other restraining order
to be issued shall be pending or noticed with respect to
any action, suit or proceeding seeking to enjoin or other-
wise prevent the consummation of, or to recover any
damages or obtain relief as a result of, the transactions
contemplated by this Agreement or the making of Loans
hereunder.
4.4 Conditions to Letters of Credit.
-------------------------------
The issuance of any Letter of Credit hereunder
(whether or not the Issuing Lender is obligated to issue such
Letter of Credit) is subject to the following conditions
precedent:
A. On or before the date of issuance of the initial
Letter of Credit pursuant to this Agreement, the initial Loans
shall have been made.
B. On or before the date of issuance of such Letter of
Credit, Administrative Agent shall have received, in accordance
with the provisions of subsection 3.1B(i), an originally
executed Notice of Issuance of Letter of Credit, in each case
signed by the chief executive officer, the chief financial
officer or the treasurer of Company or by any executive officer
of Company designated by any of the above-described officers on
behalf of Company in a writing delivered to Administrative
Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as
the Issuing Lender may reasonably require in connection with
the issuance of such Letter of Credit.
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C. On the date of issuance of such Letter of Credit, all
conditions precedent described in subsection 4.3B shall be
satisfied to the same extent as if the issuance of such Letter
of Credit were the making of a Loan and the date of issuance of
such Letter of Credit were a Funding Date.
Section 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agree-
ment and to make the Loans, to induce the Issuing Lender to
issue Letters of Credit and to induce other Lenders to purchase
participations therein, Company represents and warrants to each
Lender, on the date of this Agreement, on each Funding Date and
on the date of issuance of each Letter of Credit, that the
following statements (other than the statements set forth in
subsection 5.16 on the date of this Agreement) are true,
correct and complete:
5.1 Organization, Powers, Qualification, Good Standing,
Business and Subsidiaries.
---------------------------------------------------
A. ORGANIZATION AND POWERS. Each Loan Party is a
corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation.
Each Loan Party has all requisite corporate power and authority
to own and operate its properties, to carry on its business as
now conducted and as proposed to be conducted, to enter into
the Loan Documents and the Merger Agreement if it is a party
thereto and to carry out the transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is
qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good
standing has not had and will not have a Material Adverse
Effect on such Loan Party.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries
are engaged only in the businesses permitted to be engaged in
pursuant to subsection 7.11.
D. SUBSIDIARIES. As of the Signing Date and as of the
Initial Funding Date, all of the Subsidiaries of Company,
Greiner and all of the Subsidiaries of Greiner are identified
on Schedule 5.1D of the Signing Date Company Disclosure Letter.
The capital stock of each entity identified on Schedule 5.1D of
the Signing Date Company Disclosure Letter is duly authorized,
validly issued, fully paid and nonassessable and none of such
capital stock constitutes Margin Stock. Each of the Sub-
sidiaries of Company is a corporation duly organized, validly
existing and in good standing under the laws of its respective
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jurisdiction of incorporation, has all requisite corporate
power and authority to own and operate its properties and to
carry on its business as now conducted and as proposed to be
conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, in each
case except where failure to be so qualified or in good
standing or a lack of such corporate power and authority has
not had and will not have a Material Adverse Effect on Company.
Except as set forth on Schedule 5.1D of the Signing Date
Company Disclosure Letter, Company, Greiner or a Subsidiary of
Company or Greiner has executed an agreement with respect to
the capital stock of each non-wholly owned Subsidiary of
Company or Greiner that gives Company, Greiner or a Subsidiary
of Company or Greiner the right to purchase any shares of
capital stock of such non-wholly owned Subsidiary held by any
Person other than Company, Greiner or a Subsidiary of Company
or Greiner in the event of any proposed transfer thereof unless
the failure to execute such an agreement would not have a
Material Adverse Effect on Company.
E. INACTIVE SUBSIDIARIES. None of the Subsidiaries of
Company identified on Schedule 5.1E of the Signing Date Company
Disclosure Letter under the heading "Inactive Subsidiaries"
("Inactive Subsidiaries"), as said Schedule 5.1E may be
supplemented from time to time pursuant to the provisions of
subsection 6.1(xx), is conducting business, owns any property
or is generating any revenue.
F. CAPITALIZATION. As of the Signing Date and as of the
Initial Funding Date, Schedule 5.1F of the Signing Date Company
Disclosure Letter correctly sets forth the ownership interest
of Company and each of its Subsidiaries in each of the
Subsidiaries of Company identified therein and of Greiner and
each of its Subsidiaries in each of the Subsidiaries of Greiner
identified therein. Schedule 5.1F of the Signing Date Company
Disclosure Letter correctly sets forth, as of the Signing Date
and as of the Initial Funding Date, the authorized classes of
capital stock of Company and each of its Subsidiaries and of
Greiner and each of its Subsidiaries, the par value of each
share of such class, the number of authorized shares of each
such class, and the number of outstanding shares of each such
class. As of the Signing Date and as of the Initial Funding
Date, no other class of capital stock of Company or Greiner is
outstanding. The capital stock of Company and Greiner is duly
authorized, validly issued, fully paid and nonassessable.
G. OPTIONS AND OTHER RIGHTS. As of the Signing Date and
as of the Initial Funding Date, except as set forth on Schedule
5.1G of the Signing Date Company Disclosure Letter, there are
no outstanding subscriptions, warrants, calls, options, rights
(including unsatisfied preemptive rights), commitments or
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agreements to which Company or any of its Subsidiaries or
Greiner or any of its Subsidiaries is bound that permit or
entitle any Person to purchase or otherwise to receive from or
to be issued any shares of capital stock of Company or any of
its Subsidiaries or Greiner or any of its Subsidiaries or any
security or obligation of any kind convertible into any class
of capital stock of Company or any of its Subsidiaries or
Greiner or any of its Subsidiaries. Neither Company, Greiner
nor any of their respective Subsidiaries is subject to any
obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its capital stock.
5.2 Authorization of Borrowing, etc.
--------------------------------
A. AUTHORIZATION OF BORROWING. The execution, delivery
and performance of the Loan Documents and the Merger Agreement
have been duly authorized by all necessary corporate action on
the part of each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance
by Loan Parties of the Loan Documents and the Merger Agreement
to which they are parties and the consummation of the trans-
actions contemplated by the Loan Documents and the Merger
Agreement do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to
Company or any of its Subsidiaries, the Certificate or Articles
of Incorporation or Bylaws of Company or any of its
Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of Company or any of its
Subsidiaries, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of
Company or any of its Subsidiaries (other than any Liens
created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Company or any of
its Subsidiaries, except for such approvals or consents which
will be obtained on or before the Signing Date and disclosed in
writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and
performance by Loan Parties of the Merger Agreement if they are
parties thereto and the Loan Documents to which they are
parties and the consummation of the transactions contemplated
by the Loan Documents and the Merger Agreement do not and will
not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
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D. BINDING OBLIGATION. Each of the Loan Documents and
the Merger Agreement has been duly executed and delivered by
each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable
against such Loan Party in accordance with its respective
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally or by equitable principles
relating to enforceability.
5.3 Financial Condition.
-------------------
Company has heretofore delivered to Lenders, at
Lenders' request, (i) the audited consolidated balance sheet of
Company and its Subsidiaries as at October 31, 1995 and the
related consolidated statements of income, stockholders' equity
and cash flows of Company and its Subsidiaries for the Fiscal
Year then ended, (ii) an unaudited balance sheet of each
Subsidiary of Company as at October 31, 1995 and the related
statement of income for each such Subsidiary for the Fiscal
Year then ended, and (iii) a copy of the schedules relating to
each Subsidiary of Company included in Company's consolidated
income tax return for such Fiscal Year. All such statements
were prepared in conformity with GAAP and fairly present, in
all material respects, the financial position (on a
consolidated basis) of the entities described in such financial
statements as at the respective dates thereof and the results
of operations and cash flows (on a consolidated basis) of the
entities described therein for each of the periods then ended,
subject, in the case of any such unaudited financial
statements, to changes resulting from audit and normal year-
end adjustments. Company does not (and will not following the
funding of the initial Loans) have any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or
unusual forward or long-term commitment that is not reflected
in the foregoing financial statements or the notes thereto and
which in any such case is material in relation to the business,
operations, properties, assets, condition (financial or
otherwise) or prospects of Company or any of its Subsidiaries.
Company has heretofore delivered to Lenders, at
Lenders' request, (i) the audited consolidated balance sheet of
Greiner and its Subsidiaries as at December 31, 1994 and the
related consolidated statements of income, stockholders' equity
and cash flows of Greiner and its Subsidiaries for the Greiner
Fiscal Year then ended, (ii) the unaudited consolidated balance
sheet of Greiner and its Subsidiaries as at September 30, 1995
and the related unaudited consolidated statements of income,
stockholders' equity and cash flows of Greiner and its
Subsidiaries for the nine months then ended, (iii) an unaudited
balance sheet of each Subsidiary of Greiner as at December 31,
1994 and the related statement of income for each such
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Subsidiary for the Greiner Fiscal Year then ended, and (iv) a
copy of the schedules relating to each Subsidiary of Greiner
included in Greiner's consolidated income tax return for such
Greiner Fiscal Year. All such statements were prepared in
conformity with GAAP and fairly present, in all material
respects, the financial position (on a consolidated basis) of
the entities described in such financial statements as at the
respective dates thereof and the results of operations and cash
flows (on a consolidated basis) of the entities described
therein for each of the periods then ended, subject, in the
case of any such unaudited financial statements, to changes
resulting from audit and normal year-end adjustments. Greiner
does not (and will not following the funding of the initial
Loans) have any Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or
long-term commitment that is not reflected in the foregoing
financial statements or the notes thereto and which in any such
case is material in relation to the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of Greiner or any of its Subsidiaries.
5.4 No Material Adverse Change; No Restricted Junior Payments;
No Deterioration in Quality of Accounts Receivable.
----------------------------------------------------------
Since October 31, 1995, no event or change has
occurred that has caused or evidences, either in any case or in
the aggregate, a Material Adverse Effect on Company. Neither
Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so
except as permitted by subsection 7.5.
5.5 Title to Properties; Liens; Real Property; Licenses,
Trademarks; etc.
----------------------------------------------------
A. TITLE TO PROPERTIES; LIENS. Company and its
Subsidiaries and Greiner and its Subsidiaries have (i) good,
sufficient and legal title to (in the case of fee interests in
real property), (ii) valid leasehold interests in (in the case
of leasehold interests in real or personal property), or (iii)
good title to (in the case of all other personal property), all
of their respective properties and assets reflected in the
financial statements referred to in subsection 5.3 or in the
most recent financial statements delivered pursuant to
subsection 6.1, in each case except for assets disposed of
since the date of such financial statements in the ordinary
course of business or as otherwise permitted under subsection
7.7. Except as permitted by this Agreement and except, at any
time prior to the Initial Funding Date, for Liens in favor of
Wells Fargo, all such properties and assets are free and clear
of Liens.
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B. REAL PROPERTY. As of the Signing Date and as of
the Initial Funding Date, Schedule 5.5B of the Signing Date
Company Disclosure Letter contains a true, accurate and
complete list of (i) all fee interests in real property and
(ii) all leases, subleases or assignments of leases (together
with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting any real property of
Company or any of its Subsidiaries or of Greiner or any of its
Subsidiaries, regardless of whether such entity is the landlord
or tenant (whether directly or as an assignee or successor in
interest) under such lease, sublease or assignment. Except as
specified on Schedule 5.5B of the Signing Date Company
Disclosure Letter, each agreement listed in clause (ii) of the
immediately preceding sentence is in full force and effect and
Company does not have actual knowledge of any default that has
occurred and is continuing thereunder, and each such agreement
constitutes the legally valid and binding obligation of each
entity party thereto, enforceable against such entity in
accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights
generally or by equitable principles.
C. LICENSES, TRADEMARKS, ETC. Company and its
Subsidiaries have all patents, licenses, trademarks, trademark
rights, trade names, trade name rights, copyrights, permits and
franchises which are required in order for it to conduct its
business and to operate its properties as now or proposed to be
conducted without known conflict with the rights of others,
other than as set forth on Schedule 5.6 of the Signing Date
Company Disclosure Letter. As of the Signing Date and as of
the Initial Funding Date, Schedule 5.5C of the Signing Date
Company Disclosure Letter contains a complete and correct list
of all patents, copyrights, trade marks, licenses, service
marks, trade names and other similar rights owned or used by
Company or any of its Subsidiaries or by Greiner or any of its
Subsidiaries, showing for each item the owner thereof and each
public body with which such ownership is registered.
5.6 Litigation; Adverse Facts.
-------------------------
Except as set forth on Schedule 5.6 of the Signing
Date Company Disclosure Letter, there are no actions, suits,
proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign
(including any Environmental Claims) that are pending or, to
the knowledge of Company, threatened against or affecting
Company or any of its Subsidiaries or any property of Company
or any of its Subsidiaries and that, individually or in the
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aggregate, could reasonably be expected to result in a Material
Adverse Effect on Company. Neither Company nor any of its
Subsidiaries (i) is in violation of any applicable laws
(including Environmental Laws) that, individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect on Company, or (ii) is subject to or in default
with respect to any final judgments, writs, injunctions,
decrees, rules or regulations of any court or any federal,
state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect on Company.
5.7 Payment of Taxes.
----------------
Except to the extent permitted by subsection 6.3, all
tax returns and reports of Company and its Subsidiaries
required to be filed by any of them have been timely filed, and
all taxes shown on such tax returns to be due and payable and
all assessments, fees and other governmental charges upon
Company and its Subsidiaries and upon their respective
properties, assets, income, businesses and franchises which are
due and payable have been paid when due and payable. Company
knows of no proposed tax assessment against Company or any of
its Subsidiaries which is not being actively contested by
Company or such Subsidiary in good faith and by appropriate
proceedings; PROVIDED that such reserves or other appropriate
provisions, if any, as shall be required in conformity with
GAAP shall have been made or provided therefor.
5.8 Performance of Agreements; Materially Adverse Agreements;
Material Contracts.
---------------------------------------------------------
A. Neither Company nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any of
its Contractual Obligations, and no condition exists that, with
the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences,
direct or indirect, of such default or defaults, if any, would
not have a Material Adverse Effect on Company.
B. Neither Company nor any of its Subsidiaries is a
party to or is otherwise subject to any agreements or
instruments or any charter or other internal restrictions
which, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect on Company.
C. Schedule 5.8 of the Initial Funding Date Company
Disclosure Letter contains a true, correct and complete list of
all the Material Contracts in effect on the Initial Funding
Date, including, with respect to any contracts with the
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government of the United States of America, or any department,
agency, public corporation or other instrumentality thereof,
the name of the contracting officer, disbursing officer and
contract number. Except as described on Schedule 5.8 of the
Initial Funding Date Company Disclosure Letter, all such
Material Contracts are in full force and effect and no material
defaults currently exist thereunder.
5.9 Governmental Regulation.
-----------------------
Neither Company nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act
or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all
or any portion of the Obligations unenforceable.
5.10 Securities Activities.
---------------------
A. Neither Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing
or carrying any Margin Stock.
B. Following application of the proceeds of each Loan,
not more than 25% of the value of the assets (either of Company
only or of Company and its Subsidiaries on a consolidated
basis) subject to the provisions of subsection 7.2 or 7.7 or
subject to any restriction contained in any agreement or
instrument, between Company and any Lender or any Affiliate of
any Lender, relating to Indebtedness and within the scope of
subsection 8.2, will be Margin Stock.
5.11 Employee Benefit Plans.
----------------------
A. Company, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance with all
applicable provisions and requirements of ERISA and the
regulations and published interpretations thereunder with
respect to each Employee Benefit Plan of Company and its
Subsidiaries, and have performed all their obligations under
each such Employee Benefit Plan. Each such Employee Benefit
Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code is so qualified.
B. No ERISA Event has occurred or is reasonably expected
to occur.
C. Except to the extent required under Section 4980B of
the Internal Revenue Code or except as set forth on
Schedule 5.11 of the Signing Date Company Disclosure Letter, no
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such Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any
retired or former employee of Company, any of its Subsidiaries
or any of their respective ERISA Affiliates.
D. As of the most recent valuation date for any Pension
Plan of Company and its Subsidiaries, the amount of unfunded
benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all such Pension
Plans (excluding for purposes of such computation any such
Pension Plans with respect to which assets exceed benefit
liabilities), does not exceed $500,000.
E. As of the most recent valuation date for each
Multiemployer Plan for which the actuarial report is available,
the potential liability of Company, its Subsidiaries and their
respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of
ERISA), when aggregated with such potential liability for a
complete withdrawal from all such Multiemployer Plans, based on
information available pursuant to Section 4221(e) of ERISA,
does not exceed $500,000.
5.12 Certain Fees.
------------
No broker's or finder's fee or commission will be
payable with respect to this Agreement or any of the
transactions contemplated hereby, and Company hereby
indemnifies Lenders against, and agrees that it will hold
Lenders harmless from, any claim, demand or liability for any
such broker's or finder's fees alleged to have been incurred in
connection herewith or therewith and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising
in connection with any such claim, demand or liability.
5.13 Environmental Protection.
------------------------
Except as set forth on Schedule 5.13 of the Signing
Date Company Disclosure Letter:
(i) neither Company nor any of its Subsidiaries nor
any of their respective Facilities or operations are
subject to any outstanding written order, consent decree
or settlement agreement with any Person relating to
(a) any Environmental Law, (b) any Environmental Claim, or
(c) any Hazardous Materials Activity that, individually or
in the aggregate, could reasonably be expected to have a
Material Adverse Effect on Company;
(ii) neither Company nor any of its Subsidiaries has
received any letter or request for information under
Section 104 of the Comprehensive Environmental Response,
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Compensation, and Liability Act (42 U.S.C. sec. 9604) or any
comparable state law;
(iii) there are and, to Company's knowledge, have been
no conditions, occurrences, or Hazardous Materials
Activities which could reasonably be expected to form the
basis of an Environmental Claim against Company or any of
its Subsidiaries that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse
Effect on Company;
(iv) neither Company nor any of its Subsidiaries nor,
to Company's knowledge, any predecessor of Company or any
of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of
Hazardous Materials at any Facility, and none of Company's
or any of its Subsidiaries' operations involves the
generation, transportation, treatment, storage or disposal
of hazardous waste, as defined under 40 C.F.R. Parts 260-
270 or any state equivalent; and
(v) compliance with all current or reasonably
foreseeable future requirements pursuant to or under
Environmental Laws will not, individually or in the
aggregate, have a reasonable possibility of giving rise to
a Material Adverse Effect on Company.
Notwithstanding anything in this subsection 5.13 to
the contrary, no event or condition has occurred or is
occurring with respect to Company or any of its Subsidiaries
relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity, including any
matter disclosed on Schedule 5.13 of the Signing Date Company
Disclosure Letter, which individually or in the aggregate has
had or could reasonably be expected to have a Material Adverse
Effect on Company.
5.14 Employee Matters.
----------------
There is no strike or work stoppage in existence or
threatened involving Company or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect
on Company.
5.15 Solvency.
--------
Each of Company, Greiner and URS Consultants, Inc.
(Delaware), a Delaware corporation, upon the incurrence of any
Obligations by such Loan Party on any date on which this
representation is made, will be, Solvent.
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5.16 Matters Relating to Collateral.
------------------------------
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The
execution and delivery of the Collateral Documents by Loan
Parties, together with (i) the actions taken on or prior to the
Pre Closing Date pursuant to subsections 4.2K and 6.7 and (ii)
the delivery to Administrative Agent of any Pledged Collateral
not delivered to Administrative Agent at the time of execution
and delivery of the applicable Collateral Document (all of
which Pledged Collateral has been so delivered) are effective
to create in favor of Administrative Agent for the benefit of
Lenders, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any
Collateral), a valid and perfected First Priority Lien on all
of the Collateral, and all filings and other actions necessary
or desirable to perfect and maintain the perfection and First
Priority status of such Liens have been duly made or taken and
remain in full force and effect, other than the filing of any
UCC financing statements delivered to Administrative Agent for
filing (but not yet filed) and the periodic filing of UCC
continuation statements in respect of UCC financing statements
filed by or on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization,
approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for
either (i) the pledge or grant by any Loan Party of the Liens
purported to be created in favor of Administrative Agent
pursuant to any of the Collateral Documents or (ii) the
exercise by Administrative Agent of any rights or remedies in
respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created
or provided for by applicable law), except for filings or
recordings contemplated by subsection 5.16A and except as may
be required, in connection with the disposition of any Pledged
Collateral, by laws generally affecting the offering and sale
of securities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may
have been filed in favor of Administrative Agent as
contemplated by subsection 5.16A, no effective UCC financing
statement, fixture filing or other instrument similar in effect
covering all or any part of the Collateral is on file in any
filing or recording office.
D. MARGIN REGULATIONS. The pledge of the Pledged
Collateral pursuant to the Collateral Documents does not
violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information
supplied to Administrative Agent by or on behalf of any Loan
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Party with respect to any of the Collateral (in each case taken
as a whole with respect to any particular Collateral) is
accurate and complete in all material respects.
5.17 Merger Agreement.
----------------
A. DELIVERY OF MERGER AGREEMENT. Company has delivered
to Lenders complete and correct copies of the Merger Agreement
and of all exhibits and schedules thereto.
B. GREINER'S WARRANTIES. Except to the extent otherwise
set forth herein or in the schedules hereto, each of the
representations and warranties given by Greiner to Company in
the Merger Agreement is true and correct in all material
respects as of the date hereof (or as of any earlier date to
which such representation and warranty specifically relates)
and will be true and correct in all material respects as of the
Initial Funding Date (or as of such earlier date, as the case
may be), in each case subject to the qualifications set forth
in the schedules to the Merger Agreement.
C. WARRANTIES OF COMPANY. Subject to the qualifications
set forth therein, each of the representations and warranties
given by Company to Greiner in the Merger Agreement is true and
correct in all material respects as of the date hereof and will
be true and correct in all material respects as of the Initial
Funding Date.
D. SURVIVAL. Notwithstanding anything in the Merger
Agreement to the contrary, the representations and warranties
of Company set forth in subsections 5.17B and 5.17C shall,
solely for purposes of this Agreement, survive the Initial
Funding Date for the benefit of Lenders.
5.18 Disclosure.
----------
No representation or warranty of Company or any of
its Subsidiaries contained in any Loan Document or the Merger
Agreement or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or
any of its Subsidiaries for use in connection with the
transactions contemplated by this Agreement, including, without
limitation, the Signing Date Company Disclosure Letter and the
Initial Funding Date Company Disclosure Letter, contains any
untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any document
not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the
circumstances in which the same were made. Any projections and
pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by
Company to be reasonable at the time made, it being recognized
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by Lenders that such projections as to future events are not to
be viewed as facts and that actual results during the period or
periods covered by any such projections may differ from the
projected results. There are no facts known (or which should
upon the reasonable exercise of diligence be known) to Company
(other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect on Company and that have
not been disclosed herein or in such other documents,
certificates and statements furnished to Lenders for use in
connection with the transactions contemplated hereby.
Section 6. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations and
the cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 6.
6.1 Financial Statements and Other Reports.
--------------------------------------
Company will maintain, and cause each of its
Subsidiaries to maintain, a system of accounting established
and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in
conformity with GAAP. Company will deliver to Administrative
Agent and Lenders:
(i) COMPANY MONTHLY FINANCIALS: as soon as
available and in any event within 25 days after the end of
each month during the period from the Signing Date to
consummation of the Merger, the consolidated balance sheet
of Company and its Subsidiaries as at the end of each
month and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries for such month, all in reasonable detail and
certified by the chief financial officer of Company that
they fairly present, in all material respects, the
financial condition of Company and its Subsidiaries as at
the dates indicated and the results of their operations
and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end
adjustments;
(ii) GREINER MONTHLY FINANCIALS: as soon as
available and in any event within 25 days after the end of
each month during the period from the Signing Date to
consummation of the Merger, the consolidated balance sheet
of Greiner and its Subsidiaries as at the end of such
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month and the related consolidated statements of income,
stockholders' equity and cash flows of Greiner and its
Subsidiaries for such month, all in reasonable detail and
certified by the chief financial officer of Greiner that
they fairly present, in all material respects, the
financial condition of Greiner and its Subsidiaries as at
the dates indicated and the results of their operations
and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end
adjustments;
(iii) COMPANY QUARTERLY FINANCIALS: (a) as soon as
available and in any event within 45 days after the end of
each of the first three Fiscal Quarters of each Fiscal
Year, (1) the consolidated balance sheet of Company and
its Subsidiaries as at the end of such Fiscal Quarter and
the related consolidated statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the
end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, all in
reasonable detail and certified by the chief financial
officer of Company that they fairly present, in all
material respects, the financial condition of Company and
its Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and
normal year-end adjustments, (2) a report containing the
aggregate amount of gross billings in excess of costs and
the aggregate amount of gross costs in excess of billings,
(3) a statement describing any post-Merger changes in
accounting that have been made to standardize the
accounting practices of Company and Greiner, and (4) an
office earnings report for the Fiscal Quarter then ended,
and (b) as soon as available and in any event within 90
days after the end of each Fiscal Quarter, a summary of
such consolidated statements setting forth in comparative
form the corresponding figures from the Financial Plan for
the current Fiscal Year and a narrative report describing
the operations of Company and its Subsidiaries in each
case in the form prepared for presentation to the Board of
Directors for such Fiscal Quarter and for the period from
the beginning of the then current Fiscal Year to the end
of such Fiscal Quarter;
(iv) GREINER QUARTERLY FINANCIALS: as soon as
available and in any event within 45 days after the end of
each Greiner Fiscal Quarter during the period from the
Signing Date to consummation of the Merger, (a) the
consolidated balance sheet of Greiner and its Subsidiaries
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as at the end of such Greiner Fiscal Quarter and the
related consolidated statements of income, stockholders'
equity and cash flows of Greiner and its Subsidiaries for
such Greiner Fiscal Quarter and for the period from the
beginning of the then current Greiner Fiscal Year to the
end of such Greiner Fiscal Quarter, setting forth in each
case in comparative form the corresponding figures for the
corresponding periods of the previous Greiner Fiscal Year,
all in reasonable detail and certified by the chief
financial officer of Greiner that they fairly present, in
all material respects, the financial condition of Greiner
and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit
and normal year-end adjustments, (b) a narrative report
describing the operations of Greiner and its Subsidiaries
in the form prepared for presentation to senior management
for such Greiner Fiscal Quarter and for the period from
the beginning of the then current Greiner Fiscal Year to
the end of such Fiscal Greiner Quarter, and (c) a current
earnings report for the Greiner Fiscal Quarter then ended;
(v) COMPANY YEAR-END FINANCIALS: as soon as
available and in any event within 90 days after the end of
each Fiscal Year, (a) the consolidated balance sheet of
Company and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries for such Fiscal Year, setting forth in each
case in comparative form the corresponding figures for the
previous Fiscal Year, all in reasonable detail and certi-
fied by the chief financial officer of Company that they
fairly present, in all material respects, the financial
condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their
cash flows for the periods indicated, (b) a summary of
such consolidated statements setting forth in comparative
form the corresponding figures from the Financial Plan for
the current Fiscal Year and, a narrative report describing
the operations of Company and its Subsidiaries in each
case in the form prepared for presentation to the Board of
Directors for such Fiscal Year, (c) an unaudited balance
sheet and income statement of each Subsidiary for such
Fiscal Year and the schedules to Company's consolidated
income tax return relating to each Subsidiary of Company
for such Fiscal Year, (d) a report containing the
aggregate amount of gross billings in excess of costs and
the aggregate amount of gross costs in excess of billings,
(e) a statement describing any post-Merger changes in
accounting that have been made to standardize the
accounting practices of Company and Greiner, (f) an office
earnings report for the Fiscal Year then ended, and (g) in
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the case of such consolidated financial statements, a
report thereon of Coopers & Lybrand or other independent
certified public accountants of recognized national
standing selected by Company, which report shall be
unqualified, shall express no doubts about the ability of
Company and its Subsidiaries to continue as a going
concern, and shall state that such consolidated financial
statements fairly present, in all material respects, the
consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods
indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed
in such financial statements) and that the examination by
such accountants in connection with such consolidated
financial statements has been made in accordance with
generally accepted auditing standards, together with an
executed Auditor's Letter regarding such financial
statements;
(vi) GREINER YEAR-END FINANCIALS: as soon as
available and in any event within 90 days after the end of
each Greiner Fiscal Year during the period from the
Signing Date to consummation of the Merger, (a) the
consolidated balance sheet of Greiner and its Subsidiaries
as at the end of such Greiner Fiscal Year and the related
consolidated statements of income, stockholders' equity
and cash flows of Greiner and its Subsidiaries for such
Greiner Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the
previous Greiner Fiscal Year, all in reasonable detail and
certified by the chief financial officer of Greiner that
they fairly present, in all material respects, the finan-
cial condition of Greiner and its Subsidiaries as at the
dates indicated and the results of their operations and
their cash flows for the periods indicated, and (b) an
unaudited balance sheet and income statement of each
Subsidiary of Greiner for such Greiner Fiscal Year and the
schedules to Greiner's consolidated income tax return
relating to each Subsidiary for such Greiner Fiscal Year,
(c) a narrative report describing the operations of
Greiner and its Subsidiaries in the form prepared for
presentation to senior management for such Greiner Fiscal
Year, (d) a current earnings report for the Greiner Fiscal
Year then ended, and (e) in the case of such consolidated
financial statements, a report thereon of Price Waterhouse
or other independent certified public accountants of
recognized national standing selected by Greiner, which
report shall be unqualified, shall express no doubts about
the ability of Greiner and its Subsidiaries to continue as
a going concern, and shall state that such consolidated
financial statements fairly present, in all material
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respects, the consolidated financial position of Greiner
and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the
periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the
examination by such accountants in connection with such
consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(vii) OFFICER'S AND COMPLIANCE CERTIFICATES: together
with each delivery of financial statements of Company and
its Subsidiaries pursuant to subdivisions (i), (ii),
(iii), (iv), (v) and (vi) above, (a) an Officer's Certifi-
cate of Company stating that the signers have reviewed the
terms of this Agreement and have made, or caused to be
made under their supervision, a review in reasonable
detail of the transactions and condition of Company and
its Subsidiaries during the accounting period covered by
such financial statements and that such review has not
disclosed the existence during or at the end of such
accounting period, and that the signers do not have
knowledge of the existence as at the date of such
Officer's Certificate, of any condition or event that
constitutes an Event of Default or Potential Event of
Default, or, if any such condition or event existed or
exists, specifying the nature and period of existence
thereof and what action Company has taken, is taking and
proposes to take with respect thereto; and (b) a
Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable
accounting periods with the restrictions contained in
subsection 4.2D and Section 7, in each case to the extent
compliance with such restrictions is required to be tested
at the end of the applicable accounting period;
(viii) RECONCILIATION STATEMENTS: if, as a result of
any change in accounting principles and policies from
those used in the preparation of the audited financial
statements referred to in subsection 5.3, the consolidated
financial statements delivered pursuant to subdivisions
(i), (ii), (iii), (iv), (v), (vi) or (xvi) of this
subsection 6.1 will differ in any material respect from
the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change
in accounting principles and policies been made, then
(a) together with the first delivery of financial
statements pursuant to subdivision (i), (ii), (iii), (iv),
(v), (vi) or (xvi) of this subsection 6.1 following such
change, consolidated financial statements of Company and
its Subsidiaries or Greiner and its Subsidiaries, as the
case may be, for (y) the current Fiscal Year or Greiner
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Fiscal Year, as the case may be, to the effective date of
such change and (z) the two full Fiscal Years or Greiner
Fiscal Years, as the case may be, immediately preceding
the Fiscal Year or Greiner Fiscal Year, as the case may
be, in which such change is made, in each case prepared on
a pro forma basis as if such change had been in effect
during such periods, and (b) together with each delivery
of financial statements pursuant to subdivision (i), (ii),
(iii), (iv), (v), (vi) or (xvi) of this subsection 6.1
following such change, a written statement of the chief
accounting officer or chief financial officer of Company
setting forth the differences (including, without
limitation, any differences that would affect any
calculations relating to the financial covenants set forth
in subsection 7.6) which would have resulted if such
financial statements had been prepared without giving
effect to such change;
(ix) ACCOUNTANTS' CERTIFICATION: together with each
delivery of consolidated financial statements of Company
and its Subsidiaries pursuant to subdivision (v) above, a
written statement by the independent certified public
accountants giving the report thereon (a) stating that
their audit examination has included a review of the terms
of this Agreement and the other Loan Documents as they
relate to accounting matters, (b) stating whether, in
connection with their audit examination, any condition or
event that constitutes an Event of Default or Potential
Event of Default has come to their attention and, if such
a condition or event has come to their attention,
specifying the nature and period of existence thereof;
PROVIDED that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such
Event of Default or Potential Event of Default that would
not be disclosed in the course of their audit examina-
tion, and (c) stating that based on their audit
examination nothing has come to their attention that
causes them to believe either or both that the information
contained in the certificates delivered therewith pursuant
to subdivision (vii) above is not correct or that the
matters set forth in the Compliance Certificates delivered
therewith pursuant to clause (b) of subdivision (vii)
above for the applicable Fiscal Year are not stated in
accordance with the terms of this Agreement;
(x) ACCOUNTANTS' REPORTS: promptly upon receipt
thereof (unless restricted by applicable professional
standards), copies of all reports submitted to Company by
independent certified public accountants in connection
with each annual, interim or special audit of the
financial statements of Company and its Subsidiaries made
by such accountants, including, without limitation, any
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comment letter submitted by such accountants to management
in connection with their annual audit;
(xi) SEC FILINGS AND PRESS RELEASES: promptly upon
their becoming available, copies of (a) all financial
statements, reports, notices and proxy statements sent or
made available generally by Company to its security
holders or by any Subsidiary of Company to its security
holders other than Company or another Subsidiary of
Company, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a
similar form) and prospectuses, if any, filed by Company
or any of its Subsidiaries with any securities exchange or
with the Securities and Exchange Commission or any
governmental or private regulatory authority, and (c) all
press releases and other statements made available
generally by Company or any of its Subsidiaries to the
public concerning material developments in the business of
Company or any of its Subsidiaries;
(xii) EVENTS OF DEFAULT, ETC.: promptly upon any
officer of Company obtaining knowledge (a) of any
condition or event that constitutes an Event of Default or
Potential Event of Default, or becoming aware that any
Lender has given any notice (other than to Administrative
Agent) or taken any other action with respect to a claimed
Event of Default or Potential Event of Default, (b) that
any Person has given any notice to Company or any of its
Subsidiaries or taken any other action with respect to a
claimed default or event or condition of the type referred
to in subsection 8.2, (c) of any condition or event that
would be required to be disclosed in a current report
filed by Company with the Securities and Exchange
Commission on Form 8-K (Items 1, 2, 4, 5 and 6 of such
Form as in effect on the date hereof) if Company were
required to file such reports under the Exchange Act, or
(d) of the occurrence of any event or change that has
caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect on Company, an Offi-
cer's Certificate specifying the nature and period of
existence of such condition, event or change, or
specifying the notice given or action taken by any such
Person and the nature of such claimed Event of Default,
Potential Event of Default, default, event or condition,
and what action Company has taken, is taking and proposes
to take with respect thereto;
(xiii) LITIGATION OR OTHER PROCEEDINGS: (a) promptly
upon any officer of Company obtaining knowledge of (x) the
institution of, or non-frivolous threat of, any action,
suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration
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against or affecting Company or any of its Subsidiaries or
any property of Company or any of its Subsidiaries
(collectively, "Proceedings") not previously disclosed in
writing by Company to Lenders or (y) any material
development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable
possibility of giving rise to a Material Adverse
Effect on Company; or
(2) seeks to enjoin or otherwise prevent the
consummation of, or to recover any damages or obtain
relief as a result of, the transactions contemplated
hereby;
written notice thereof together with such other
information as may be reasonably available to Company to
enable Lenders and their counsel to evaluate such matters;
and (b) within twenty days after the end of each Fiscal
Quarter, a schedule of all Proceedings involving an
alleged liability of, or claims against or affecting,
Company or any of its Subsidiaries equal to or greater
than $500,000, and promptly after request by
Administrative Agent such other information as may be
reasonably requested by Administrative Agent to enable
Administrative Agent and its counsel to evaluate any of
such Proceedings;
(xiv) ERISA EVENTS: promptly upon becoming aware of
the occurrence of or forthcoming occurrence of any ERISA
Event, a written notice specifying the nature thereof,
what action Company, any of its Subsidiaries or any of
their respective ERISA Affiliates has taken, is taking or
proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect
thereto;
(xv) ERISA NOTICES: with reasonable promptness,
copies of (a) each Schedule B (Actuarial Information) to
the annual report (Form 5500 Series) filed by Company, any
of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect
to each Pension Plan of Company or any of its
Subsidiaries; (b) all notices received by Company, any of
its Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (c) copies of such other documents or
governmental reports or filings relating to any Employee
Benefit Plan of Company or any of its Subsidiaries as
Administrative Agent shall reasonably request;
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(xvi) FINANCIAL PLANS: as soon as practicable and in
any event no later than 60 days following the end of each
Fiscal Year, a consolidated plan and financial forecast
for the current Fiscal Year (the "Financial Plan" for such
Fiscal Year), including, without limitation, (a) fore-
casted consolidated balance sheets and forecasted
consolidated statements of income and cash flows of
Company and its Subsidiaries for each such Fiscal Year,
together with a projected Compliance Certificate for each
such Fiscal Year and an explanation of the assumptions on
which such forecasts are based, (b) forecasted
consolidated statements of income and cash flows of
Company and its Subsidiaries for each Fiscal Quarter of
the first such Fiscal Year, together with an explanation
of the assumptions on which such forecasts are based, and
(c) such other information and projections as any Lender
may reasonably request;
(xvii) RECEIVABLES: as soon as practicable and in any
event no later than 60 days after the end of each Fiscal
Quarter, aging reports with respect to all billed and
unbilled Accounts Receivable, in form and substance
reasonably satisfactory to Administrative Agent;
(xviii) INSURANCE: as soon as practicable and in any
event by the last day of each Fiscal Year, a report in
form and substance reasonably satisfactory to
Administrative Agent outlining all material insurance
coverage maintained as of the date of such report by
Company and its Subsidiaries;
(xix) BOARD OF DIRECTORS: with reasonable promptness,
written notice of any change in the Board of Directors of
Company;
(xx) NEW SUBSIDIARIES OR CHANGE IN STATUS OF INACTIVE
SUBSIDIARIES: quarterly, all of the data required to be
set forth on Schedules 5.1D and 5.1E of the Signing Date
Company Disclosure Letter with respect to all Subsidiaries
of Company;
(xxi) REAL PROPERTY; LICENSES: annually, all of the
data required to be set forth on Schedule 5.5 of the
Signing Date Company Disclosure Letter with respect to all
real property, leases, subleases, assignments of leases,
patents, licenses, trademarks, trademark rights, trade
names, trade name rights, copyrights, permits and
franchises of Company and its Subsidiaries;
(xxii) MATERIAL CONTRACTS: annually, all of the data
required to be set forth on Schedule 5.8 of the Initial
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Funding Date Company Disclosure Letter with respect to all
Material Contracts;
(xxiii) UCC SEARCH REPORT: as promptly as practicable
after the date of delivery to Administrative Agent of any
UCC financing statement executed by any Loan Party
pursuant to subsection 4.1K(iv), copies of completed UCC
searches evidencing the proper filing, recording and
indexing of all such UCC financing statement and listing
all other effective financing statements that name such
Loan Party as debtor, together with copies of all such
other financing statements not previously delivered to
Administrative Agent by or on behalf of Company or such
Loan Party;
(xxiv) SUBORDINATED DEBT NOTICES: promptly upon
receipt by Company or any of its Subsidiaries of any
notice under any of the Existing Subordinated Agreements,
and promptly upon the giving of notice by Company or any
of its Subsidiaries under any of the Existing Subordinated
Agreements, a copy of such notice; and
(xxv) OTHER INFORMATION: with reasonable promptness,
such other information and data with respect to Company or
any of its Subsidiaries as from time to time may be
reasonably requested by any Lender.
6.2 Corporate Existence, etc.
-------------------------
Except as permitted under subsection 7.7, Company
will, and will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect its corporate
existence and all rights and franchises material to its
business; PROVIDED, HOWEVER that neither Company nor any of its
Subsidiaries shall be required to preserve any such right or
franchise if the Board of Directors of Company or such
Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Company or
such Subsidiary, as the case may be, and that the loss thereof
is not disadvantageous in any material respect to Company, such
Subsidiary or Lenders.
6.3 Payment of Taxes and Claims; Tax Consolidation.
----------------------------------------------
A. Company will, and will cause each of its Subsidiaries
to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in
respect of any of its income, businesses or franchises before
any penalty accrues thereon, and all claims (including, without
limitation, claims for labor, services, materials and supplies)
for sums that have become due and payable and that by law have
or may become a Lien upon any of its properties or assets,
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prior to the time when any penalty or fine shall be incurred
with respect thereto; PROVIDED that no such charge or claim
need be paid if it is being contested in good faith by
appropriate proceedings promptly instituted and diligently
conducted, so long as (i) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP
shall have been made therefor and (ii) in the case of a charge
or claim which has or may become a Lien against any of the
Collateral, such contest proceedings conclusively operate to
stay the sale of any portion of the Collateral to satisfy such
charge or claim.
B. Company will not, nor will it permit any of its
Subsidiaries to, file or consent to the filing of any
consolidated income tax return with any Person (other than
Company or any of its Subsidiaries).
6.4 Maintenance of Properties; Insurance; Application of Net
Insurance/ Condemnation Proceeds.
--------------------------------------------------------
A. MAINTENANCE OF PROPERTIES. Company will, and will
cause each of its Subsidiaries to, maintain or cause to be
maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used
or useful in the business of Company and its Subsidiaries
(including, without limitation, all Intellectual Property) and
from time to time will make or cause to be made all appropriate
repairs, renewals and replacements thereof.
B. INSURANCE. Company will maintain or cause to be
maintained, with financially sound and reputable insurers, such
public liability insurance, third party property damage
insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in
respect of the assets, properties and businesses of Company and
its Subsidiaries as may customarily be carried or maintained
under similar circumstances by corporations of established
reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such
deductibles, covering such risks and otherwise on such terms
and conditions as shall be customary for corporations similarly
situated in the industry. Without limiting the generality of
the foregoing, Company will maintain or cause to be maintained
replacement value casualty insurance on the Collateral under
such policies of insurance, with such insurance companies, in
such amounts, with such deductibles, and covering such risks as
are at all times satisfactory to Administrative Agent in its
commercially reasonable judgment.
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6.5 Inspection Rights.
-----------------
Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives
designated by any Lender to visit and inspect any of the
properties of Company or of any of its Subsidiaries, to
inspect, copy and take extracts from its and their financial
and accounting records, and to discuss its and their affairs,
finances and accounts with its and their officers and
independent public accountants (provided that Company may, if
it so chooses, be present at or participate in any such
discussion), all upon reasonable notice and at such reasonable
times during normal business hours and as often as may
reasonably be requested.
6.6 Compliance with Laws, etc.
--------------------------
Company shall comply, and shall cause each of its
Subsidiaries to comply, with the requirements of all applicable
laws, rules, regulations and orders of any governmental
authority (including all Environmental Laws), noncompliance
with which could reasonably be expected to cause, individually
or in the aggregate, a Material Adverse Effect.
6.7 Execution of Subsidiary Guaranty and Personal Property
Collateral Documents by Certain Subsidiaries and Future
Subsidiaries.
-------------------------------------------------------
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL
PROPERTY COLLATERAL DOCUMENTS. In the event that any
Subsidiary of Company (including any Inactive Subsidiary)
existing on the Initial Funding Date that has not previously
executed a Subsidiary Guaranty, or any Person that becomes a
Subsidiary of Company after the date hereof hereafter, owns or
acquires assets with an aggregate fair market value (without
netting such fair market value against any liability of such
Subsidiary) exceeding $100,000 or has gross revenues for any
Fiscal Year exceeding $100,000, Company will promptly notify
Administrative Agent of that fact and cause such Subsidiary to
execute and deliver to Administrative Agent a Subsidiary
Guaranty, a Subsidiary Pledge Agreement, and a Subsidiary
Security Agreement and to take all such further actions and
execute all such further documents and instruments (including,
without limitation, actions, documents and instruments
comparable to those described in subsection 4.2K) as may be
necessary or, in the opinion of Administrative Agent, desirable
to create in favor of Administrative Agent, for the benefit of
Lenders, a valid and perfected First Priority Lien on all of
the assets of such Subsidiary described in the applicable forms
of Collateral Documents.
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B. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC.
Company shall deliver to Administrative Agent, together with
such Loan Documents, (i) certified copies of the Certificate or
Articles of Incorporation of each Subsidiary described in
subsection 6.7A, together with a good standing certificate from
the Secretary of State of the jurisdiction of its incorporation
and each other state in which such Subsidiary is qualified as a
foreign corporation to do business and, to the extent generally
available, a certificate or other evidence of good standing as
to payment of any applicable franchise or similar taxes from
the appropriate taxing authority of each of such jurisdictions,
each to be dated a recent date prior to their delivery to
Administrative Agent, (ii) a copy of such Subsidiary's Bylaws,
certified by its corporate secretary or an assistant secretary
as of a recent date prior to their delivery to Administrative
Agent, (iii) a certificate executed by the secretary or an
assistant secretary of such Subsidiary as to (a) the fact that
the attached resolutions of the Board of Directors of such
Subsidiary approving and authorizing the execution, delivery
and performance of such Loan Documents are in full force and
effect and have not been modified or amended and (b) the
incumbency and signatures of the officers of such Subsidiary
executing such Loan Documents, and (iv) a favorable opinion of
counsel to such Subsidiary, in form and substance satisfactory
to Administrative Agent and its counsel, as to (a) the due
organization and good standing of such Subsidiary, (b) the due
authorization, execution and delivery by such Subsidiary of
such Loan Documents, (c) the enforceability of such Loan
Documents against such Subsidiary, (d) such other matters
(including without limitation matters relating to the creation
and perfection of Liens in any Collateral pursuant to such Loan
Documents) as Administrative Agent may reasonably request, all
of the foregoing to be satisfactory in form and substance to
Administrative Agent and its counsel.
6.8 Interest Rate Protection.
------------------------
At all times during the period from and including the
date which is 90 days after the Initial Funding Date to and
excluding the fourth anniversary of the Initial Funding Date,
Company shall maintain in effect one or more Interest Rate
Agreements with respect to the Term Loans, in an aggregate
notional principal amount of not less than 50% of the aggregate
principal amount of all outstanding Term Loans, each such
Interest Rate Agreement to be in form and substance reasonably
satisfactory to Administrative Agent.
Section 7. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of
the Commitments hereunder shall remain in effect and until
payment in full of all of the Loans and other Obligations and
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the cancellation or expiration of all Letters of Credit, unless
Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries
to perform, all covenants in this Section 7.
7.1 Indebtedness.
------------
Company shall not, and shall not permit any of its
Subsidiaries or any Joint Venture in which Company or any of
its Subsidiaries has any interest to, directly or indirectly,
create, incur, assume or guaranty, or otherwise become or
remain directly or indirectly liable with respect to, any
Indebtedness, except:
(i) Company may become and remain liable with
respect to the Obligations;
(ii) Company, its Subsidiaries and such Joint
Ventures may become and remain liable with respect to
Contingent Obligations permitted by subsection 7.4 and,
upon any matured obligations actually arising pursuant
thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
(iii) Company, its Subsidiaries (other than Inactive
Subsidiaries) and such Joint Ventures may become and
remain liable with respect to Indebtedness in respect of
Capital Leases for the purchase of equipment in the
ordinary course of business;
(iv) Company may become and remain liable with
respect to Indebtedness to any of its wholly-owned
Domestic Subsidiaries (other than Inactive Subsidiaries or
Unrestricted Subsidiaries), and any wholly-owned
Subsidiary of Company (other than Inactive Subsidiaries or
Unrestricted Subsidiaries) may become and remain liable
with respect to Indebtedness to Company or any other
wholly-owned Domestic Subsidiary of Company (other than
Inactive Subsidiaries or Unrestricted Subsidiaries);
PROVIDED that (a) in the event the proceeds of the Term
Loans and the Initial Revolving Loans are loaned to Merger
Sub, such loan shall be evidenced by a promissory note in
form and substance satisfactory to Administrative Agent
that is pledged to Administrative Agent on behalf of
Lenders pursuant to the Company Pledge Agreement, (b) all
intercompany Indebtedness owed by Company to any of its
Subsidiaries and by any of Company's Subsidiaries to
Company shall be subordinated in right of payment to the
payment in full of the Obligations and all trade creditors
pursuant to the terms of an intercompany subordination
agreement in form and substance satisfactory to
Administrative Agent, and (c) any payment by any
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Subsidiary of Company under any guaranty of the
Obligations shall result in a pro tanto reduction of the
amount of any intercompany Indebtedness owed by such
Subsidiary to Company or to any of its Subsidiaries for
whose benefit such payment is made;
(v) Company may remain liable with respect to
Indebtedness evidenced by the Existing Subordinated
Indebtedness in an aggregate principal amount not to
exceed $12,600,000;
(vi) such Joint Ventures may become and remain
liable with respect to Indebtedness; provided that
such Indebtedness is nonrecourse to Company, its
Subsidiaries and their respective assets; and
(vii) Company, its Subsidiaries (other than Inactive
Subsidiaries) and such Joint Ventures may become and
remain liable with respect to other Indebtedness in an
aggregate principal amount not to exceed $5,000,000 at any
time outstanding.
7.2 Liens and Related Matters.
-------------------------
A. PROHIBITION ON LIENS. Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or permit to exist any Lien on or with
respect to any property or asset of any kind (including any
document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now
owned or hereafter acquired, or any income or profits
therefrom, or file or permit the filing of, or permit to remain
in effect, any financing statement or other similar notice of
any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any State or under
any similar recording or notice statute, except:
(i) Permitted Encumbrances on any property, asset,
income or profits (other than Accounts Receivable) of
Company or any of its Subsidiaries;
(ii) Liens granted pursuant to the Collateral
Documents;
(iii) Liens described on Schedule 7.2 of the Signing
Date Company Disclosure Letter; and
(iv) Other Liens securing Indebtedness in an
aggregate amount not to exceed $5,000,000 at any time
outstanding.
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B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company or
any of its Subsidiaries shall create or assume any Lien upon
any of its properties or assets, whether now owned or here-
after acquired, other than Liens excepted by the provisions of
subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness secured
thereby as long as any such Indebtedness shall be so secured;
PROVIDED that, notwithstanding the foregoing, this covenant
shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the
provisions of subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to
specific property encumbered to secure payment of particular
Indebtedness or to be sold pursuant to an executed agreement
with respect to an Asset Sale, neither Company nor any of its
Subsidiaries shall enter into any agreement prohibiting the
creation or assumption of any Lien upon any of its properties
or assets, whether now owned or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO
COMPANY OR OTHER SUBSIDIARIES. Except as provided herein,
Company will not, and will not permit any of its Subsidiaries
to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind
on the ability of any such Subsidiary to (i) pay dividends or
make any other distributions on any of such Subsidiary's
capital stock owned by Company or any other Subsidiary of
Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company,
(iii) make loans or advances to Company or any other Subsidiary
of Company, or (iv) transfer any of its property or assets to
Company or any other Subsidiary of Company.
7.3 Investments; Joint Ventures.
---------------------------
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any
Investment in any Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Subsidiaries may make inter-
company loans to the extent permitted under subsection
7.1(iv);
(iii) Company and its Subsidiaries (other than
Inactive Subsidiaries) may make Consolidated Capital
Expenditures;
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(iv) Company and Merger Sub may consummate the
Acquisition and the Merger;
(v) Company and its Subsidiaries may continue to own
the Investments owned by them and described on Schedule
7.3 of the Signing Date Company Disclosure Letter;
(vi) Company and its Subsidiaries (other than
Inactive Subsidiaries) may make and own Investments in
Domestic Guarantor Subsidiaries following the Signing
Date;
(vii) Company and its Subsidiaries (other than
Inactive Subsidiaries) may make and own Investments in
Foreign Subsidiaries following the Signing Date in an
aggregate amount not to exceed $5,000,000 at any time;
(viii) Company and its Subsidiaries (other than
Inactive Subsidiaries) may make and own Investments in
Unrestricted Subsidiaries following the Signing Date in an
aggregate amount not to exceed $5,000,000 at any time;
(ix) Company and its Subsidiaries (other than
Inactive Subsidiaries) may make and own Investments in
Joint Ventures in an aggregate amount not to exceed
$1,000,000 at any time; and
(x) Company and its Subsidiaries (other than
Inactive Subsidiaries) may make and own other Investments
(other than Investments in Subsidiaries and Joint
Ventures) in an aggregate amount not to exceed $5,000,000
at any time.
7.4 Contingent Obligations.
----------------------
Company shall not, and shall not permit any of its
Subsidiaries or any Joint Venture in which Company or any of
its Subsidiaries has an interest to, directly or indirectly,
create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain
liable with respect to Contingent Obligations in respect
of a Subsidiary Guaranty;
(ii) Company may become and remain liable with
respect to Contingent Obligations in respect of the
Letters of Credit;
(iii) Company may become and remain liable with
respect to Contingent Obligations under Hedge Agreements
required under subsection 6.8;
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(iv) Company, its Subsidiaries (other than Inactive
Subsidiaries) and such Joint Ventures may become and
remain liable with respect to Contingent Obligations under
guarantees in the ordinary course of business of the
obligations of suppliers, customers, franchisees and
licensees of Company and its Subsidiaries in an aggregate
amount not to exceed at any time $5,000,000;
(v) Company may become and remain liable with
respect to Contingent Obligations in respect of any
Indebtedness of Company or any of its Domestic
Subsidiaries (other than Inactive Subsidiaries) permitted
by subsection 7.1;
(vi) Company may become and remain liable with
respect to any Contingent Obligations under guaranties in
the ordinary course of business of the performance by its
Subsidiaries of their obligations under agreements entered
into by such Subsidiaries with their customers in the
ordinary course of business provided such Subsidiary is
permitted to enter into such agreement;
(vii) such Joint Ventures may become and remain liable
with respect to Contingent Obligations; provided that such
Contingent Obligations are nonrecourse to Company, its
Subsidiaries and their respective assets; and
(viii) Company, its Subsidiaries (other than Inactive
Subsidiaries) and such Joint Ventures may become and
remain liable with respect to other Contingent
Obligations; PROVIDED that the maximum aggregate
liability, contingent or otherwise, of Company, its
Subsidiaries and such Joint Ventures in respect of all
such Contingent Obligations shall at no time exceed
$5,000,000.
7.5 Restricted Junior Payments.
--------------------------
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order, pay,
make or set apart any sum for any Restricted Junior Payment;
PROVIDED that (i) Company may make regularly scheduled payments
of interest in respect of any Subordinated Indebtedness in
accordance with the terms of, and only to the extent required
by, and subject to the subordination provisions contained in,
the indenture or other agreement pursuant to which such
Subordinated Indebtedness was issued, as such indenture or
other agreement may be amended from time to time to the extent
permitted under subsection 7.14B and (ii) Company may repay the
Existing Blum Subordinated Convertible Note through the
issuance of shares of Company's common stock.
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7.6 Financial Covenants.
-------------------
A. MINIMUM QUICK RATIO. Company shall not permit the
ratio of (i) Consolidated Quick Assets to (ii) Consolidated
Current Liabilities as of the last day of any Fiscal Quarter
ending after consummation of the Merger to be less than 1.25 to
1.00.
B. MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall
not permit the ratio of (i) Consolidated EBITDA for any four-
Fiscal Quarter period ending after consummation of the Merger
and during any of the periods set forth below MINUS
Consolidated Capital Expenditures for such four-Fiscal Quarter
period to (ii) Consolidated Fixed Charges for such four-Fiscal
Quarter period to be less than the correlative ratio indicated;
PROVIDED, HOWEVER, that in the event that any such period
includes any period prior to consummation of the Merger,
(a) "Consolidated EBITDA" for any such period prior to
consummation of the Merger shall mean the sum of Pre Merger URS
Consolidated EBITDA for such period PLUS Pre Merger Greiner
Consolidated EBITDA for such period; (b) "Consolidated Capital
Expenditures" for any such period prior to consummation of the
Merger shall mean the sum of Pre Merger URS Consolidated
Capital Expenditures for such period PLUS Pre Merger Greiner
Consolidated Capital Expenditures for such period; and
(c) "Consolidated Fixed Charges" for any such period prior to
consummation of the Merger shall mean the sum of Pre Merger URS
Consolidated Fixed Charges for such period PLUS Pre Merger
Greiner Consolidated Fixed Charges for such period:
Minimum Fixed
Period Charge Coverage Ratio
---------------------------------------------------------------
January 31, 1996 through October 31, 2002 1.05 to 1.00
January 31, 2003 and thereafter 0.65 to 1.00
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C. MAXIMUM LEVERAGE RATIO. As of the last day of any
Fiscal Quarter ending after consummation of the Merger and
during any of the periods set forth below, Company shall not
permit the ratio of (i) Consolidated Total Funded Debt as of
such day to (ii) Consolidated EBITDA for the four-Fiscal
Quarter period ending on such day (the "Leverage Ratio") to
exceed the correlative ratio indicated; PROVIDED, HOWEVER, that
in the event that any such period includes any period prior to
consummation of the Merger, "Consolidated EBITDA" for any such
period prior to consummation of the Merger shall mean the sum
of Pre Merger URS Consolidated EBITDA for such period PLUS Pre
Merger Greiner Consolidated EBITDA for such period:
Period Maximum Leverage Ratio
---------------------------------------------------------------
January 31, 1996 4.00 to 1.00
April 30, 1996 4.00 to 1.00
July 31, 1996 3.50 to 1.00
October 31, 1996 through July 31, 1997 3.40 to 1.00
October 31, 1997 through July 31, 1998 2.65 to 1.00
October 31, 1998 through July 31, 1999 2.50 to 1.00
October 31, 1999 through July 31, 2000 2.25 to 1.00
October 31, 2000 through July 31, 2001 2.00 to 1.00
October 31, 2001 through July 31, 2002 1.50 to 1.00
October 31, 2002 and thereafter 1.25 to 1.00
D. MINIMUM CONSOLIDATED EBITDA. Company shall not
permit Consolidated EBITDA for any four-Fiscal Quarter period
ending after consummation of the Merger and during any of the
periods set forth below to be less than the correlative amount
indicated; PROVIDED, HOWEVER, that in the event that any such
period includes any period prior to consummation of the Merger,
"Consolidated EBITDA" for any such period prior to consummation
of the Merger shall mean the sum of Pre Merger URS Consolidated
EBITDA for such period PLUS Pre Merger Greiner Consolidated
EBITDA for such period:
Minimum Consolidated
Period EBITDA
---------------------------------------------------------------
January 31, 1996 $15,000,000
April 30, 1996 16,000,000
July 31, 1996 17,500,000
October 31, 1996 through July 31, 1997 18,000,000
October 31, 1997 through July 31, 1998 19,750,000
October 31, 1998 through July 31, 1999 20,650,000
October 31, 1999 through July 31, 2000 21,450,000
October 31, 2000 through July 31, 2001 22,400,000
October 31, 2001 through July 31, 2002 23,450,000
October 31, 2002 and thereafter 24,475,000
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E. MINIMUM TANGIBLE NET WORTH. Company shall not permit
Consolidated Tangible Net Worth as of the last day of any
Fiscal Quarter ending after consummation of the Merger to be
less than the sum of (i) $8,500,000 PLUS (ii) 75% of
Consolidated Net Income for each Fiscal Quarter commencing on
or after consummation of the Merger and ending on or prior to
the date of determination; PROVIDED, HOWEVER, that for purposes
of this subsection 7.6E, in the event that Consolidated Net
Income for any period is less than $0, it shall be deemed to
be $0.
7.7 Restriction on Fundamental Changes; Asset Sales and
Acquisitions.
---------------------------------------------------
Company shall not, and shall not permit any of its
Subsidiaries to, alter the corporate, capital or legal
structure of Company or any of its Subsidiaries, or enter into
any transaction of merger or consolidation, or liquidate, wind-
up or dissolve itself (or suffer any liquidation or dissolu-
tion), or convey, sell, lease or sub-lease (as lessor or
sublessor), transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its
business, property or assets, whether now owned or hereafter
acquired, or acquire by purchase or otherwise all or sub-
stantially all the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person
or any division or line of business of any Person, except:
(i) Company and Merger Sub may consummate the
Acquisition and the Merger;
(ii) any Subsidiary of Company may be merged with or
into Company or any wholly-owned Subsidiary Guarantor, or
be liquidated, wound up or dissolved, or all or any part
of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any
wholly-owned Subsidiary Guarantor; PROVIDED that, in the
case of such a merger, Company or such wholly-owned
Subsidiary Guarantor shall be the continuing or surviving
corporation;
(iii) Company and its Subsidiaries may dispose of
obsolete, worn out or surplus property in the ordinary
course of business;
(iv) Company and its Subsidiaries may sell or
otherwise dispose of assets in transactions that do not
constitute Asset Sales; PROVIDED that the consideration
received for such assets shall be in an amount at least
equal to the fair market value thereof;
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(v) subject to subsection 7.10, Company and its
Subsidiaries may make Asset Sales of assets having a fair
market value of not in excess of $1,000,000 during any
Fiscal Year; PROVIDED that (a) the consideration received
for such assets shall be in an amount at least equal to
the fair market value thereof; (b) the sole consideration
received shall be Cash; and (c) the proceeds of such
Asset Sales shall be applied as required by subsec-
tion 2.4B(iii)(a); and
(vi) subject to subsection 6.7, Company and its
Subsidiaries may acquire by purchase or otherwise (each, a
"Subsequent Acquisition") all or substantially all the
business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person (other
than Greiner) or any division or line of business of any
Person (other than Greiner), provided that the Total
Purchase Price of any such Subsequent Acquisition does not
exceed $5,000,000 in any Fiscal Year or $15,000,000 in the
aggregate during the term of this Agreement.
7.8 Sale or Discount of Receivables.
-------------------------------
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, sell with recourse, or
discount or otherwise sell for less than the face value
thereof, any of its notes or accounts receivable.
7.9 Transactions with Shareholders and Affiliates.
---------------------------------------------
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit
to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the
rendering of any service) with any holder of 5% or more of any
class of equity Securities of Company or with any Affiliate of
Company or of any such holder, on terms that are less favorable
to Company or that Subsidiary, as the case may be, than those
that might be obtained at the time from Persons who are not
such a holder or Affiliate; PROVIDED that the foregoing
restriction shall not apply to (i) any transaction between
Company and any of its wholly-owned Subsidiaries or between any
of its wholly-owned Subsidiaries, (ii) reasonable and customary
fees paid to members of the Boards of Directors of Company and
its Subsidiaries or (iii) existing related party transactions
described in Company's Annual Report on Form 10-K for the 1995
Fiscal Year.
7.10 Disposal of Subsidiary Stock.
----------------------------
Company shall not:
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(i) directly or indirectly sell, assign, pledge or
otherwise encumber or dispose of any shares of capital
stock or other equity Securities of any of its Subsidi-
aries, except that (a) Company and its Subsidiaries may
sell 100% of the capital stock or other equity Securities
of any Subsidiary the annual gross revenues of which do
not exceed $10,000,000; PROVIDED that (a) the
consideration received for such assets shall be in an
amount at least equal to the fair market value thereof;
(b) the sole consideration received shall be Cash; and
(c) the proceeds of such Asset Sales shall be applied as
required by subsection 2.4B(iii)(a); and (b) any
Subsidiary of Company may sell capital stock or other
equity Securities to qualify directors if required by
applicable law or to licensed professionals employed by
such Subsidiary in order to comply with state licensing
laws; or
(ii) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber
or dispose of any shares of capital stock or other equity
Securities of any of its Subsidiaries (including such
Subsidiary), except to Company, another Subsidiary of
Company, or to qualify directors if required by applicable
law.
7.11 Conduct of Business.
-------------------
From and after the Signing Date, Company shall not,
and shall not permit any of its Subsidiaries to, engage in any
business other than (i) the businesses engaged in by Company,
Greiner and their respective Subsidiaries on the Signing Date
and similar or related businesses and (ii) such other lines of
business as may be consented to by Requisite Lenders.
7.12 Foreign Subsidiaries.
--------------------
The Company shall not permit the aggregate annual
gross revenues of its Foreign Subsidiaries to exceed 25% of
consolidated gross revenues of Company and its Subsidiaries.
7.13 Prepayments.
-----------
Company shall not, and shall not permit any
Subsidiary to, (i) prepay any Indebtedness for borrowed money,
Indebtedness secured by any Permitted Lien, salaries or any
other obligations of Company or any Subsidiary to any Person,
other than Capital Leases, or (ii) enter into or modify any
agreement as a result of which the terms of payment of any of
the foregoing Indebtedness are waived or modified, except
prepayments to Lenders permitted by this Agreement and payments
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in severance of employment to any employee of Company or any
Subsidiary.
7.14 Amendments or Waivers of Merger Agreement; Amendments of
Documents Relating to Subordinated Indebtedness.
--------------------------------------------------------
A. AMENDMENTS OR WAIVERS OF MERGER AGREEMENT. Neither
Company nor any of its Subsidiaries will agree to any material
amendment to, or waive any of its material rights under, the
Merger Agreement after the Signing Date without in each case
obtaining the prior written consent of Administrative Agent to
such amendment or waiver.
B. AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED
INDEBTEDNESS. Company shall not, and shall not permit any of
its Subsidiaries to, amend or otherwise change the terms of any
Subordinated Indebtedness or the Existing Subordinated
Agreements, or make any payment consistent with an amendment
thereof or change thereto.
7.15 Fiscal Year.
-----------
Company shall not change its Fiscal Year-end from
October 31.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events
of Default") shall occur:
8.1 Failure to Make Payments When Due.
---------------------------------
Failure by Company to pay any installment of
principal of any Loan when due, whether at stated maturity, by
acceleration, by notice of voluntary prepayment, by mandatory
prepayment or otherwise; failure by Company to pay when due any
amount payable to the Issuing Lender in reimbursement of any
drawing under a Letter of Credit; or failure by Company to pay
any interest on any Loan or any fee or any other amount due
under this Agreement within five days after the date due; or
8.2 Default in Other Agreements.
---------------------------
(i) Failure of Company or any of its Subsidiaries to
pay when due any principal of or interest on or any other
amount payable in respect of any Subordinated Indebtedness
or one or more items of any other Indebtedness (other than
Indebtedness referred to in subsection 8.1) or Contingent
Obligations in an individual principal amount of
$1,000,000 or more or with an aggregate principal amount
of $1,000,000 or more, in each case beyond the end of any
grace period provided therefor; or (ii) breach or default
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Page 201 of 424 <PAGE>
by Company or any of its Subsidiaries with respect to any
other material term of (a) any Subordinated Indebtedness
or one or more items of any other Indebtedness or
Contingent Obligations in the individual or aggregate
principal amounts referred to in clause (i) above or
(b) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness or
Contingent Obligation(s), if the effect of such breach or
default is to cause, or to permit the holder or holders of
that Indebtedness or Contingent Obligation(s) (or a
trustee on behalf of such holder or holders) to cause,
that Indebtedness or Contingent Obligation(s) to become or
be declared due and payable prior to its stated maturity
or the stated maturity of any underlying obligation, as
the case may be (upon the giving or receiving of notice,
lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
---------------------------
Failure of Company to perform or comply with any term
or condition contained in subsection 2.5 or 6.2 or Section 7 of
this Agreement; or
8.4 Breach of Warranty.
------------------
Any representation, warranty, certification or other
statement made by Company or any of its Subsidiaries in any
Loan Document or in any statement or certificate at any time
given by Company or any of its Subsidiaries in writing pursuant
hereto or thereto or in connection herewith or therewith shall
be false in any material respect on the date as of which made;
or
8.5 Other Defaults Under Loan Documents.
-----------------------------------
Any Loan Party shall default in the performance of or
compliance with any term contained in this Agreement or any of
the other Loan Documents, other than any such term referred to
in any other subsection of this Section 8, and such default
shall not have been remedied or waived within 30 days after the
earlier of (i) an officer of Company becoming aware of such
default or (ii) receipt by Company and such Loan Party of
notice from Administrative Agent or any Lender of such default;
or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
-----------------------------------------------------
(i) A court having jurisdiction in the premises
shall enter a decree or order for relief in respect of
Company or any of its Subsidiaries in an involuntary case
under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in
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Page 202 of 424 <PAGE>
effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable
federal or state law; or (ii) an involuntary case shall be
commenced against Company or any of its Subsidiaries under
the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdic-
tion in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other
officer having similar powers over Company or any of its
Subsidiaries, or over all or a substantial part of its
property, shall have been entered; or there shall have
occurred the involuntary appointment of an interim
receiver, trustee or other custodian of Company or any of
its Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar
process shall have been issued against any substantial
part of the property of Company or any of its
Subsidiaries, and any such event described in this clause
(ii) shall continue for 60 days unless dismissed, bonded
or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
---------------------------------------------------
(i) Company or any of its Subsidiaries shall have an
order for relief entered with respect to it or commence a
voluntary case under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now
or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case,
under any such law, or shall consent to the appointment of
or taking possession by a receiver, trustee or other
custodian for all or a substantial part of its property;
or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Company
or any of its Subsidiaries shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay
its debts as such debts become due; or the Board of Direc-
tors of Company or any of its Subsidiaries (or any
committee thereof) shall adopt any resolution or otherwise
authorize any action to approve any of the actions
referred to in clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
-------------------------
Any money judgment, writ or warrant of attachment or
similar process involving (i) in any individual case an amount
in excess of $1,000,000 or (ii) in the aggregate at any time an
amount in excess of $1,000,000 shall be entered or filed
against Company or any of its Subsidiaries or any of their
respective assets and shall remain undischarged, unvacated,
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unbonded or unstayed for a period of 60 days (or in any event
later than five days prior to the date of any proposed sale
thereunder); or
8.9 Dissolution.
-----------
Any order, judgment or decree shall be entered
against Company or any of its Subsidiaries decreeing the
dissolution or split up of Company or that Subsidiary and such
order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 Employee Benefit Plans.
----------------------
There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably
be expected to result in liability of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in
excess of $1,000,000 during the term of this Agreement; or
there shall exist an amount of unfunded benefit liabilities (as
defined in Section 4001(a)(18) of ERISA), individually or in
the aggregate for all Pension Plans of Company and its
Subsidiaries (excluding for purposes of such computation any
such Pension Plans with respect to which assets exceed benefit
liabilities), which exceeds $1,000,000; or
8.11 Material Adverse Effect.
-----------------------
Any event or change shall occur that has caused or
evidences, either in any case or in the aggregate, a Material
Adverse Effect on Company; or
8.12 Change in Control.
-----------------
Any Person or any two or more Persons acting in
concert shall have acquired after the date hereof beneficial
ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Exchange Act), directly or
indirectly, of Securities of Company (or other Securities
convertible into such Securities) representing 30% or more of
the combined voting power of all Securities of Company entitled
to vote in the election of directors, other than Securities
having such power only by reason of the happening of a
contingency; or
8.13 Invalidity of Subsidiary Guaranty; Failure of Security;
Repudiation of Obligations.
-------------------------------------------------------
At any time after the execution and delivery thereof,
(i) any Subsidiary Guaranty for any reason, other than the
satisfaction in full of all Obligations, shall cease to be in
full force and effect (other than in accordance with its terms)
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or shall be declared to be null and void, (ii) any Collateral
Document shall cease to be in full force and effect (other than
by reason of a release of Collateral thereunder in accordance
with the terms hereof or thereof, the satisfaction in full of
the Obligations or any other termination of such Collateral
Document in accordance with the terms hereof or thereof) or
shall be declared null and void, or Administrative Agent shall
not have or shall cease to have a valid and perfected First
Priority Lien in any Collateral purported to be covered
thereby, in each case for any reason other than the failure of
Administrative Agent or any Lender to take any action within
its control, or (iii) any Loan Party shall contest the validity
or enforceability of any Loan Document in writing or deny in
writing that it has any further liability, including without
limitation with respect to future advances by Lenders, under
any Loan Document to which it is a party; or
8.14 Failure to Consummate Merger.
----------------------------
The Acquisition or the Merger shall not be
consummated in accordance with the Merger Agreement
concurrently with the making of the initial Loans, or the
Acquisition or the Merger shall be unwound, reversed or
otherwise rescinded in whole or in part for any reason; or
8.15 Failure to Comply with Subordination Provisions.
-----------------------------------------------
Any obligee of any Subordinated Indebtedness shall
fail to comply with the subordination provision of the
documents or instruments evidencing such Subordinated
Indebtedness;
THEN (i) upon the occurrence of any Event of Default described
in subsection 8.6 or 8.7, each of (a) the unpaid principal
amount of and accrued interest on the Loans, (b) an amount
equal to the maximum amount that may at any time be drawn under
all Letters of Credit then outstanding (whether or not any
beneficiary under any such Letter of Credit shall have
presented, or shall be entitled at such time to present, the
drafts or other documents or certificates required to draw
under such Letter of Credit), and (c) all other Obligations
shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind,
all of which are hereby expressly waived by Company, and the
obligation of each Lender to make any Loan and the obligation
of the Issuing Lender to issue any Letter of Credit hereunder
shall thereupon terminate, and (ii) upon the occurrence and
during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with
the written consent of Requisite Lenders, by written notice to
Company, declare all or any portion of the amounts described in
clauses (a) through (c) above to be, and the same shall
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forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan and the obligation
of the Issuing Lender to issue any Letter of Credit hereunder
shall thereupon terminate; PROVIDED that the foregoing shall
not affect in any way the obligations of Lenders under
subsection 3.3C(i).
Any amounts described in clause (b) above, when
received by Administrative Agent, shall be held by
Administrative Agent pursuant to the terms of the Collateral
Account Agreement and shall be applied as therein provided.
Notwithstanding anything contained in the second
preceding paragraph, if at any time within 60 days after an
acceleration of the Loans pursuant to clause (ii) of such
paragraph Company shall pay all arrears of interest and all
payments on account of principal which shall have become due
otherwise than as a result of such acceleration (with interest
on principal and, to the extent permitted by law, on overdue
interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the
Loans, in each case which is due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to
subsection 10.6, then Requisite Lenders, by written notice to
Company, may at their option rescind and annul such
acceleration and its consequences; but such action shall not
affect any subsequent Event of Default or Potential Event of
Default or impair any right consequent thereon. The provisions
of this paragraph are intended merely to bind Lenders to a
decision which may be made at the election of Requisite Lenders
and are not intended, directly or indirectly, to benefit
Company, and such provisions shall not at any time be construed
so as to grant Company the right to require Lenders to rescind
or annul any acceleration hereunder or to preclude
Administrative Agent or Lenders from exercising any of the
rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph
are met.
Section 9. ADMINISTRATIVE AGENT
9.1 Appointment.
-----------
A. APPOINTMENT OF ADMINISTRATIVE AGENT. Wells Fargo is
hereby appointed Administrative Agent hereunder and under the
other Loan Documents and each Lender hereby authorizes
Administrative Agent to act as its agent in accordance with the
terms of this Agreement and the other Loan Documents.
Administrative Agent agrees to act upon the express conditions
contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 9 are solely for
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the benefit of Administrative Agent and Lenders and Company
shall have no rights as a third party beneficiary of any of the
provisions thereof. In performing its functions and duties
under this Agreement, Administrative Agent shall act solely as
an agent of Lenders and does not assume and shall not be deemed
to have assumed any obligation towards or relationship of
agency or trust with or for Company or any of its Subsidiaries.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL ADMINISTRATIVE
AGENTS. It is the purpose of this Agreement and the other Loan
Documents that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking
corporations or associations to transact business as agent or
trustee in such jurisdiction. It is recognized that in case of
litigation under this Agreement or any of the other Loan
Documents, and in particular in case of the enforcement of any
of the Loan Documents, or in case Administrative Agent deems
that by reason of any present or future law of any jurisdiction
it may not exercise any of the rights, powers or remedies
granted herein or in any of the other Loan Documents or take
any other action which may be desirable or necessary in
connection therewith, it may be necessary that Administrative
Agent appoint an additional individual or institution
reasonably acceptable to Company as a separate trustee, co-
trustee, collateral agent or collateral co-agent (any such
additional individual or institution being referred to herein
individually as a "Supplemental Collateral Agent" and
collectively as "Supplemental Collateral Agents"). Company
shall not be obligated to pay any fees to such Supplemental
Collateral Agent.
In the event that Administrative Agent appoints a
Supplemental Collateral Administrative Agent with respect to
any Collateral, (i) each and every right, power, privilege or
duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or
conveyed to Administrative Agent with respect to such
Collateral shall be exercisable by and vest in such
Supplemental Collateral Administrative Agent to the extent, and
only to the extent, necessary to enable such Supplemental
Collateral Administrative Agent to exercise such rights, powers
and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant
and obligation contained in the Loan Documents and necessary to
the exercise or performance thereof by such Supplemental
Collateral Administrative Agent shall run to and be enforceable
by either Administrative Agent or such Supplemental Collateral
Administrative Agent, and (ii) the provisions of this Section 9
and of subsections 10.2 and 10.3 that refer to Administrative
Agent shall inure to the benefit of such Supplemental
Collateral Administrative Agent and all references therein to
Administrative Agent shall be deemed to be references to
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Administrative Agent and/or such Supplemental Collateral
Administrative Agent, as the context may require.
Should any instrument in writing from Company or any
other Loan Party be required by any Supplemental Collateral
Administrative Agent so appointed by Administrative Agent for
more fully and certainly vesting in and confirming to him or it
such rights, powers, privileges and duties, Company shall, or
shall cause such Loan Party to, execute, acknowledge and
deliver any and all such instruments promptly upon request by
Administrative Agent. In case any Supplemental Collateral
Administrative Agent, or a successor thereto, shall die, become
incapable of acting, resign or be removed, all the rights,
powers, privileges and duties of such Supplemental Collateral
Administrative Agent, to the extent permitted by law, shall
vest in and be exercised by Administrative Agent until the
appointment of a new Supplemental Collateral Administrative
Agent.
9.2 Powers and Duties; General Immunity.
-----------------------------------
A. POWERS; DUTIES SPECIFIED. Each Lender irrevocably
authorizes Administrative Agent to take such action on such
Lender's behalf and to exercise such powers, rights and
remedies hereunder and under the other Loan Documents as are
specifically delegated or granted to Administrative Agent by
the terms hereof and thereof, together with such powers, rights
and remedies as are reasonably incidental thereto.
Administrative Agent shall have only those duties and responsi-
bilities that are expressly specified in this Agreement and the
other Loan Documents. Administrative Agent may exercise such
powers, rights and remedies and perform such duties by or
through its agents or employees. Administrative Agent shall
not have, by reason of this Agreement or any of the other Loan
Documents, a fiduciary relationship in respect of any Lender;
and nothing in this Agreement or any of the other Loan
Documents, expressed or implied, is intended to or shall be so
construed as to impose upon Administrative Agent any
obligations in respect of this Agreement or any of the other
Loan Documents except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS.
Administrative Agent shall not be responsible to any Lender for
the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement
or any other Loan Document or for any representations,
warranties, recitals or statements made herein or therein or
made in any written or oral statements or in any financial or
other statements, instruments, reports or certificates or any
other documents furnished or made by Administrative Agent to
Lenders or by or on behalf of Company to Administrative Agent
or any Lender in connection with the Loan Documents and the
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transactions contemplated thereby or for the financial
condition or business affairs of Company or any other Person
liable for the payment of any Obligations, nor shall
Administrative Agent be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the
Loan Documents or as to the use of the proceeds of the Loans or
the use of the Letters of Credit or as to the existence or
possible existence of any Event of Default or Potential Event
of Default. Anything contained in this Agreement to the
contrary notwithstanding, Administrative Agent shall not have
any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the
component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Administrative Agent
nor any of its officers, directors, employees or agents shall
be liable to Lenders for any action taken or omitted by
Administrative Agent under or in connection with any of the
Loan Documents except to the extent caused by Administrative
Agent's gross negligence or willful misconduct. Administrative
Agent shall be entitled to refrain from any act or the taking
of any action (including the failure to take an action) in
connection with this Agreement or any of the other Loan
Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until
Administrative Agent shall have received instructions in
respect thereof from Requisite Lenders (or such other Lenders
as may be required to give such instructions under subsection
10.6) and, upon receipt of such instructions from Requisite
Lenders (or such other Lenders, as the case may be),
Administrative Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power,
discretion or authority, in accordance with such instructions.
Without prejudice to the generality of the foregoing,
(i) Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected
in relying on opinions and judgments of attorneys (who may be
attorneys for Company and its Subsidiaries), accountants,
experts and other professional advisors selected by it; and
(ii) no Lender shall have any right of action whatsoever
against Administrative Agent as a result of Administrative
Agent acting or (where so instructed) refraining from acting
under this Agreement or any of the other Loan Documents in
accordance with the instructions of Requisite Lenders (or such
other Lenders as may be required to give such instructions
under subsection 10.6).
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D. ADMINISTRATIVE AGENT ENTITLED TO ACT AS LENDER. The
agency hereby created shall in no way impair or affect any of
the rights and powers of, or impose any duties or obligations
upon, Administrative Agent in its individual capacity as a
Lender hereunder. With respect to its participation in the
Loans and the Letters of Credit, Administrative Agent shall
have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not performing the
duties and functions delegated to it hereunder, and the term
"Lender" or "Lenders" or any similar term shall, unless the
context clearly otherwise indicates, include Administrative
Agent in its individual capacity. Administrative Agent and its
Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial
advisory or other business with Company or any of its
Affiliates as if it were not performing the duties specified
herein, and may accept fees and other consideration from
Company for services in connection with this Agreement and
otherwise without having to account for the same to Lenders.
9.3 Representations and Warranties; No Responsibility For
Appraisal of Creditworthiness.
-----------------------------------------------------
Each Lender represents and warrants that it has made
its own independent investigation of the financial condition
and affairs of Company and its Subsidiaries in connection with
the making of the Loans and the issuance of Letters of Credit
hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its
Subsidiaries. Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to
make any such investigation or any such appraisal on behalf of
Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or
times thereafter, and Administrative Agent shall not have any
responsibility with respect to the accuracy of or the complete-
ness of any information provided to Lenders.
9.4 Right to Indemnity.
------------------
Each Lender, in proportion to its Pro Rata Share,
severally agrees to indemnify Administrative Agent, to the
extent that Administrative Agent shall not have been reimbursed
by Company, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including, without limitation, counsel
fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against Administrative Agent in exercising its powers, rights
and remedies or performing its duties hereunder or under the
other Loan Documents or otherwise in its capacity as
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Administrative Agent in any way relating to or arising out of
this Agreement or the other Loan Documents; PROVIDED 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
Administrative Agent's gross negligence or willful misconduct.
If any indemnity furnished to Administrative Agent for any
purpose shall, in the opinion of Administrative Agent, be
insufficient or become impaired, Administrative Agent may call
for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is
furnished.
9.5 Successor Administrative Agent.
------------------------------
Administrative Agent may resign at any time by giving
30 days' prior written notice thereof to Lenders and Company,
and Administrative Agent may be removed at any time with or
without cause by an instrument or concurrent instruments in
writing delivered to Company and Administrative Agent and
signed by Requisite Lenders. Upon any such notice of
resignation or any such removal, Requisite Lenders shall have
the right, upon five Business Days' notice to Company, to
appoint a successor Administrative Agent reasonably acceptable
to Company. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Administrative
Agent and the retiring or removed Administrative Agent shall be
discharged from its duties and obligations under this Agree-
ment. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
9.6 Collateral Documents and Guaranties.
-----------------------------------
Each Lender hereby further authorizes Administrative
Agent, on behalf of and for the benefit of Lenders, to enter
into each Collateral Document as secured party and to be the
agent for and representative of Lenders under each Subsidiary
Guaranty, and each Lender agrees to be bound by the terms of
each Collateral Document and each Subsidiary Guaranty; PROVIDED
that Administrative Agent shall not (i) enter into or consent
to any material amendment, modification, termination or waiver
of any provision contained in any Collateral Document or any
Subsidiary Guaranty or (ii) release any Collateral (except as
otherwise expressly permitted or required pursuant to the terms
of this Agreement or the applicable Collateral Document), in
each case without the prior consent of Requisite Lenders (or,
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if required pursuant to subsection 10.6, all Lenders); PROVIDED
FURTHER, HOWEVER, that, without further written consent or
authorization from Lenders, Administrative Agent may execute
any documents or instruments necessary to (a) release any Lien
encumbering any item of Collateral that is the subject of a
sale or other disposition of assets permitted by this Agreement
or to which Requisite Lenders have otherwise consented or
(b) release any Subsidiary Guarantor if all of the capital
stock of such Subsidiary Guarantor is sold to any Person (other
than an Affiliate of Company) pursuant to a sale or other
disposition permitted hereunder or to which Requisite Lenders
have otherwise consented. Anything contained in any of the
Loan Documents to the contrary notwithstanding, Company,
Administrative Agent and each Lender hereby agree that (1) no
Lender shall have any right individually to realize upon any of
the Collateral under any Collateral Document or to enforce any
Subsidiary Guaranty, it being understood and agreed that all
powers, rights and remedies under the Collateral Documents and
the Subsidiary Guaranties may be exercised solely by
Administrative Agent for the benefit of Lenders in accordance
with the terms thereof, and (2) in the event of a foreclosure
by Administrative Agent on any of the Collateral pursuant to a
public or private sale, Administrative Agent or any Lender may
be the purchaser of any or all of such Collateral at any such
sale and Administrative Agent, as agent for and representative
of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose
of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such
public sale, to use and apply any of the Obligations as a
credit on account of the purchase price for any collateral
payable by Administrative Agent at such sale.
Section 10. MISCELLANEOUS
10.1 Assignments and Participations in Loans and Letters of
Credit.
------------------------------------------------------
A. GENERAL. Subject to subsection 10.1B, each Lender
shall have the right at any time to (i) sell, assign or
transfer to any Eligible Assignee, or (ii) sell participations
to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or
participations therein or any other interest herein or in any
other Obligations owed to it; PROVIDED that no such sale,
assignment, transfer or participation shall, without the
consent of Company, require Company to file a registration
statement with the Securities and Exchange Commission or apply
to qualify such sale, assignment, transfer or participation
under the securities laws of any state; PROVIDED, FURTHER that
no such sale, assignment or transfer described in clause (i)
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above shall be effective unless and until an Assignment
Agreement effecting such sale, assignment or transfer shall
have been accepted by Administrative Agent and consented to by
Company and Administrative Agent as provided in subsection
10.1B(ii); PROVIDED, FURTHER that no such sale, assignment,
transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale,
assignment, transfer or participation of a corresponding
interest in the Revolving Loan Commitment and the Revolving
Loans of the Lender effecting such sale, assignment, transfer
or participation. Except as otherwise provided in this
subsection 10.1, no Lender shall, as between Company and such
Lender, be relieved of any of its obligations hereunder as a
result of any granting of participations in, all or any part of
its Commitments or the Loans, the Letters of Credit or
participations therein, or the other Obligations owed to such
Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each
Commitment, Loan, Letter of Credit or participation
therein, or other Obligation may (a) be assigned in any
amount to another Lender, or to an Affiliate of the
assigning Lender or another Lender, with the giving of
notice to Company and Administrative Agent or (b) be
assigned in an aggregate amount of not less than
$5,000,000 (or such lesser amount as shall constitute the
aggregate amount of the Commitments, Loans, Letters of
Credit and participations therein, and other Obligations
of the assigning Lender) to any other Eligible Assignee
with the consent of Company and Administrative Agent
(which consent of Company and Administrative Agent shall
not be unreasonably withheld or delayed). To the extent
of any such assignment in accordance with either clause
(a) or (b) above, the assigning Lender shall be relieved
of its obligations with respect to its Commitments, Loans,
Letters of Credit or participations therein, or other
Obligations or the portion thereof so assigned. The
parties to each such assignment shall execute and deliver
to Administrative Agent, for its acceptance, an Assignment
Agreement, together with a processing fee of $3,500 and
such forms, certificates or other evidence, if any, with
respect to United States federal income tax withholding
matters as the assignee under such Assignment Agreement
may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a). Upon such execution,
delivery and acceptance, from and after the effective date
specified in such Assignment Agreement, (1) the assignee
thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it
pursuant to such Assignment Agreement, shall have the
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rights and obligations of a Lender hereunder and (2) the
assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, relinquish its
rights (other than any rights which survive the
termination of this Agreement under subsection 10.9B) and
be released from its obligations under this Agreement
(and, in the case of an Assignment Agreement covering all
or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall
cease to be a party hereto; PROVIDED that, anything
contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is the Issuing Lender with
respect to any outstanding Letters of Credit such Lender
shall continue to have all rights and obligations of the
Issuing Lender with respect to such Letters of Credit
until the cancellation or expiration of such Letters of
Credit and the reimbursement of any amounts drawn thereun-
der). The Commitments hereunder shall be modified to
reflect the Commitment of such assignee and any remaining
Commitment of such assigning Lender and, if any such
assignment occurs after the issuance of the Notes
hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter
as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon new
Notes shall be issued to the assignee and to the assigning
Lender, substantially in the form of Exhibit IV-A,
------------
Exhibit IV-B or Exhibit V annexed hereto, as the case may
------------ ---------
be, with appropriate insertions, to reflect the new
Commitments and/or outstanding Tranche A Term Loans and/or
Tranche B Term Loans, as the case may be, of the assignee
and the assigning Lender.
(ii) ACCEPTANCE BY ADMINISTRATIVE AGENT. Upon its
receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is
an Eligible Assignee, together with the processing fee
referred to in subsection 10.1B(i) and any forms,
certificates or other evidence with respect to United
States federal income tax withholding matters that such
assignee may be required to deliver to Administrative
Agent pursuant to subsection 2.7B(iii)(a), Administrative
Agent shall, if Administrative Agent and Company have
consented to the assignment evidenced thereby (in each
case to the extent such consent is required pursuant to
subsection 10.1B(i)), (a) accept such Assignment Agreement
by executing a counterpart thereof as provided therein
(which acceptance shall evidence any required consent of
Administrative Agent to such assignment), and (b) give
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prompt notice thereof to Company. Administrative Agent
shall maintain a copy of each Assignment Agreement
delivered to and accepted by it as provided in this
subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation,
other than an Affiliate of the Lender granting such
participation, shall not be entitled to require such Lender to
take or omit to take any action hereunder except action
directly affecting (i) the extension of the regularly scheduled
maturity of any portion of the principal amount of or interest
on any Loan allocated to such participation or (ii) a reduc-
tion of the principal amount of or the rate of interest payable
on any Loan allocated to such participation, and all amounts
payable by Company hereunder (including without limitation
amounts payable to such Lender pursuant to subsections 2.6D,
2.7 and 3.6) shall be determined as if such Lender had not sold
such participation.
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to
the assignments and participations permitted under the
foregoing provisions of this subsection 10.1, any Lender may
assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes to any Federal
Reserve Bank as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any
operating circular issued by such Federal Reserve Bank;
PROVIDED that (i) no Lender shall, as between Company and such
Lender, be relieved of any of its obligations hereunder as a
result of any such assignment and pledge and (ii) in no event
shall such Federal Reserve Bank be considered to be a "Lender"
or be entitled to require the assigning Lender to take or omit
to take any action hereunder.
E. INFORMATION. Each Lender may furnish any informa-
tion concerning Company and its Subsidiaries in the possession
of that Lender from time to time to assignees and participants
(including prospective assignees and participants), subject to
subsection 10.18.
F. REPRESENTATIONS OF LENDERS. Each Lender listed on
the signature pages hereof hereby represents and warrants (i)
that it is an Eligible Assignee described in clause (i) of the
definition thereof; (ii) that it has experience and expertise
in the making of loans such as the Loans; and (iii) that it
will make its Loans for its own account in the ordinary course
of its business and without a view to distribution of such
Loans within the meaning of the Securities Act or the Exchange
Act or other federal securities laws (it being understood that,
subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all
times remain within its exclusive control). Each Lender that
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becomes a party hereto pursuant to an Assignment Agreement
shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such
Assignment Agreement are incorporated herein by this reference.
10.2 Expenses.
--------
Whether or not the transactions contemplated hereby
shall be consummated, Company agrees to pay promptly (i) all
the actual and reasonable costs and expenses of preparation of
the Loan Documents and any consents, amendments, waivers or
other modifications thereto and the transactions contemplated
thereby; (ii) all the costs of furnishing all opinions by
counsel for Company required hereunder and of Company's perfor-
mance of and compliance with all agreements and conditions on
its part to be performed or complied with under this Agreement
and the other Loan Documents, including, without limitation,
with respect to confirming compliance with environmental,
insurance and solvency requirements; (iii) the reasonable fees,
expenses and disbursements of counsel to Administrative Agent
(including allocated costs of internal counsel) in connection
with the negotiation, preparation, execution and administra-
tion of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and any other documents
or matters requested by Company; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor
of Administrative Agent on behalf of Lenders pursuant to any
Collateral Document, including without limitation filing and
recording fees, expenses and taxes, stamp or documentary taxes,
search fees, and reasonable fees, expenses and disbursements of
counsel to Administrative Agent and of counsel providing any
opinions required hereunder; (v) all the actual costs and
reasonable expenses (including without limitation the
reasonable fees, expenses and disbursements of any auditors,
accountants or other consultants, advisors and agents employed
or retained by Administrative Agent or its counsel) of
obtaining and reviewing any audits or reports provided for
under subsection 4.1G with respect to Accounts Receivable of
Company and its Subsidiaries; (vi) the custody or preservation
of any of the Collateral; (vii) all the actual and reasonable
costs and expenses incurred by Administrative Agent in
connection with the syndication of the Commitments; and
(viii) after the occurrence of an Event of Default, all costs
and expenses, including reasonable attorneys' fees (including
allocated costs of internal counsel) and costs of settlement,
incurred by Administrative Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from any Loan
Party hereunder or under the other Loan Documents by reason of
such Event of Default (including, without limitation, in
connection with the sale of, collection from, or other
realization upon any of the Collateral or the enforcement of
the Subsidiary Guaranties) or in connection with any
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refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a "work-out" or
pursuant to any insolvency or bankruptcy proceedings.
10.3 Indemnity.
---------
In addition to the payment of expenses pursuant to
subsection 10.2, whether or not the transactions contemplated
hereby shall be consummated, Company agrees to defend (subject
to Indemnitees' selection of counsel) indemnify, pay and hold
harmless Administrative Agent and Lenders, and the officers,
directors, employees, agents and affiliates of Administrative
Agent and Lenders (collectively called the "Indemnitees"), from
and against any and all Indemnified Liabilities (as hereinafter
defined); PROVIDED that Company shall not have any obligation
to any Indemnitee hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise
solely from the gross negligence or willful misconduct of that
Indemnitee as determined by a final judgment of a court of
competent jurisdiction.
As used herein, "Indemnified Liabilities" means,
collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties,
actions, judgments, suits, claims (including Environmental
Claims), costs (including the costs of any investigation,
study, sampling, testing, abatement, cleanup, removal,
remediation or other response action necessary to remove,
remediate, clean up or abate any Hazardous Materials Activity),
expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, admini-
strative or judicial proceeding commenced or threatened by any
Person, whether or not any such Indemnitee shall be designated
as a party or a potential party thereto, and any fees or
expenses incurred by Indemnitees in enforcing this indemnity),
whether direct, indirect or consequential and whether based on
any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that
may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i)
this Agreement or the other Loan Documents or the Merger
Agreement or the transactions contemplated hereby or thereby
(including Lenders' agreement to make the Loans hereunder or
the use or intended use of the proceeds thereof or the issuance
of Letters of Credit hereunder or the use or intended use of
any thereof, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization
upon any of the Collateral or the enforcement of the Subsidiary
Guaranties), (ii) the statements contained in the commitment
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letter delivered by any Lender to Company with respect thereto,
or (iii) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from, directly or indirectly,
any past or present activity, operation, land ownership, or
practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend,
indemnify, pay and hold harmless set forth in this subsection
10.3 may be unenforceable in whole or in part because they are
violative of any law or public policy, Company shall contribute
the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by Indemnitees or any of them.
Promptly after receipt by an Indemnitee of notice of the
commencement of any action, such Indemnitee shall use
reasonable efforts to notify Company of the commencement of
such action.
10.4 Set-Off.
-------
In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such
rights, upon the occurrence of any Event of Default each Lender
is hereby authorized by Company at any time or from time to
time, without notice to Company or to any other Person, any
such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or
special, including, but not limited to, Indebtedness evidenced
by certificates of deposit, whether matured or unmatured, but
not including trust accounts) and any other Indebtedness at any
time held or owing by that Lender to or for the credit or the
account of Company against and on account of the obligations
and liabilities of Company to that Lender under this Agreement,
the Letters of Credit and participations therein and the other
Loan Documents, including, but not limited to, all claims of
any nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein or
any other Loan Document, irrespective of whether or not (i)
that Lender shall have made any demand hereunder or (ii) the
principal of or the interest on the Loans or any amounts in
respect of the Letters of Credit or any other amounts due
hereunder shall have become due and payable pursuant to
Section 8 and although said obligations and liabilities, or any
of them, may be contingent or unmatured.
10.5 Ratable Sharing.
---------------
Lenders hereby agree among themselves that if any of
them shall, whether by voluntary payment (other than a
voluntary prepayment of Loans made and applied in accordance
with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or
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banker's lien, by counterclaim or cross action or by the
enforcement of any right under the Loan Documents or otherwise,
or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or
reduction of a proportion of the aggregate amount of principal,
interest, amounts payable in respect of Letters of Credit, fees
and other amounts then due and owing to that Lender hereunder
or under the other Loan Documents (collectively, the "Aggre-
gate Amounts Due" to such Lender) which is greater than the
proportion received by any other Lender in respect of the
Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of
such payment and (ii) apply a portion of such payment to
purchase participations (which it shall be deemed to have
purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment)
in the Aggregate Amounts Due to the other Lenders so that all
such recoveries of Aggregate Amounts Due shall be shared by all
Lenders in proportion to the Aggregate Amounts Due to them;
PROVIDED that if all or part of such proportionately greater
payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganiza-
tion of Company or otherwise, those purchases shall be
rescinded and the purchase prices paid for such participations
shall be returned to such purchasing Lender ratably to the
extent of such recovery, but without interest. Company
expressly consents to the foregoing arrangement and agrees that
any holder of a participation so purchased may exercise any and
all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder
with respect thereto as fully as if that holder were owed the
amount of the participation held by that holder. Each Lender
hereby agrees that, solely for purposes of this subsection
10.5, a participant shall be considered to be a Lender.
10.6 Amendments and Waivers.
----------------------
No amendment, modification, termination or waiver of
any provision of this Agreement or of the Notes, and no consent
to any departure by Company therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders;
PROVIDED that any such amendment, modification, termination,
waiver or consent which: increases the amount of any of the
Commitments or reduces the principal amount of any of the
Loans; increases the maximum amount of Letters of Credit;
changes in any manner the definition of "Class" or the
definition of "Pro Rata Share" or the definition of "Requisite
Class Lenders" or the definition of "Requisite Lenders";
changes in any manner any provision of this Agreement which, by
its terms, expressly requires the approval or concurrence of
all Lenders; postpones the date or reduces the amount of any
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scheduled payment (but not prepayment) of principal of any of
the Loans; postpones the date on which any interest or any fees
are payable; decreases the interest rate borne by any of the
Loans (other than any waiver of any increase in the interest
rate applicable to any of the Loans pursuant to subsection
2.2E) or the amount of any fees payable hereunder; increases
the maximum duration of Interest Periods permitted hereunder;
reduces the amount or postpones the due date of any amount
payable in respect of, or extends the required expiration date
of, any Letter of Credit; changes in any manner the obligations
of Lenders relating to the purchase of participations in
Letters of Credit; releases any Lien granted in favor of
Administrative Agent with respect to all or substantially all
of the Collateral; releases all or substantially all of the
Subsidiary Guarantors from their obligations under the
Subsidiary Guaranties, in each case other than in accordance
with the terms of the Loan Documents; or changes in any manner
the provisions contained in subsection 8.1 or this subsection
10.6 shall be effective only if evidenced by a writing signed
by or on behalf of all Lenders. In addition, (i) any amend-
ment, modification, termination or waiver of any of the
provisions contained in Section 4 shall be effective only if
evidenced by a writing signed by or on behalf of Administrative
Agent and Requisite Lenders, (ii) no amendment, modification,
termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which
is the holder of that Note, (iii) no amendment, modification,
termination or waiver of any provision of Section 9 or of any
other provision of this Agreement which, by its terms,
expressly requires the approval or concurrence of
Administrative Agent shall be effective without the written
concurrence of Administrative Agent and (iv) no amendment,
modification, termination or waiver of any provision of
subsection 2.4 which has the effect of changing any voluntary
or mandatory prepayments, or Commitment reductions applicable
to either Class (the "Affected Class") in a manner that
disproportionately disadvantages such Class relative to the
other Class shall be effective without the written concurrence
of Requisite Class Lenders of the Affected Class (it being
understood and agreed that any amendment, modification,
termination or waiver of any such provision which only
postpones or reduces any voluntary or mandatory prepayment, or
Commitment reduction from those set forth in subsection 2.4
with respect to one Class but not the other Class shall be
deemed to disproportionately disadvantage such one Class but
not to disproportionately disadvantage such other Class for
purposes of this clause (iv). Administrative Agent may, but
shall have no obligation to, with the concurrence of any
Lender, execute amendments, modifications, waivers or consents
on behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific
purpose for which it was given. No notice to or demand on
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Company in any case shall entitle Company to any other or
further notice or demand in similar or other circumstances.
Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be
binding upon each Lender at the time outstanding, each future
Lender and, if signed by Company, on Company.
10.7 Independence of Covenants.
-------------------------
All covenants hereunder shall be given independent
effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be
permitted by an exception to, or would otherwise be within the
limitations of, another covenant shall not avoid the occur-
rence of an Event of Default or Potential Event of Default if
such action is taken or condition exists.
10.8 Notices.
-------
Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to
be given shall be in writing and may be personally served or
sent by telefacsimile or United States mail or courier service
and shall be deemed to have been given when delivered in person
or by courier service, upon receipt of telefacsimile or three
Business Days after depositing it in the United States mail
with postage prepaid and properly addressed; PROVIDED that
notices to Administrative Agent shall not be effective until
received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the
signature pages hereof or (i) as to Company and Administrative
Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and
(ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to
Administrative Agent.
10.9 Survival of Representations, Warranties and Agreements.
------------------------------------------------------
A. All representations, warranties and agreements made
herein shall survive the execution and delivery of this
Agreement and the making of the Loans and the issuance of the
Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied
by law to the contrary, the agreements of Company set forth in
subsections 2.6D, 2.7, 3.5A, 3.6, 10.2, 10.3 and 10.4 and the
agreements of Lenders set forth in subsections 9.2C, 9.4 and
10.5 shall survive the payment of the Loans, the cancellation
or expiration of the Letters of Credit and the reimbursement of
any amounts drawn thereunder, and the termination of this
Agreement.
-154-
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10.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of Administrative
Agent or any Lender in the exercise of any power, right or
privilege hereunder or under any other Loan Document shall
impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any
other power, right or privilege. All rights and remedies
existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies
otherwise available.
10.11 Marshalling; Payments Set Aside.
-------------------------------
Neither Administrative Agent nor any Lender shall be
under any obligation to marshal any assets in favor of Company
or any other party or against or in payment of any or all of
the Obligations. To the extent that Company makes a payment or
payments to Administrative Agent or Lenders (or to
Administrative Agent for the benefit of Lenders), or
Administrative Agent or Lenders enforce any security interests
or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or
any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if
such payment or payments had not been made or such enforcement
or setoff had not occurred.
10.12 Severability.
------------
In case any provision in or obligation under this
Agreement or the Notes shall be invalid, illegal or un-
enforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
10.13 Obligations Several; Independent Nature of Lenders'
Rights.
---------------------------------------------------
The obligations of Lenders hereunder are several and
no Lender shall be responsible for the obligations or Commit-
ments of any other Lender hereunder. Nothing contained herein
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or in any other Loan Document, and no action taken by Lenders
pursuant hereto or thereto, shall be deemed to constitute
Lenders as a partnership, an association, a joint venture or
any other kind of entity. The amounts payable at any time
hereunder to each Lender shall be a separate and independent
debt, and each Lender shall be entitled to protect and enforce
its rights arising out of this Agreement and it shall not be
necessary for any other Lender to be joined as an additional
party in any proceeding for such purpose.
10.14 Headings.
--------
Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be
given any substantive effect.
10.15 Applicable Law.
--------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF CALIFORNIA (INCLUDING WITHOUT LIMITATION SECTION 1646.5 OF
THE CIVIL CODE OF THE STATE OF CALIFORNIA), WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
10.16 Successors and Assigns.
----------------------
This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and the successors
and assigns of Lenders (it being understood that Lenders'
rights of assignment are subject to subsection 10.1). Neither
Company's rights or obligations hereunder nor any interest
therein may be assigned or delegated by Company without the
prior written consent of all Lenders.
10.17 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES
TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The
scope of this waiver is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate
to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims
and all other common law and statutory claims. Each party
hereto acknowledges that this waiver is a material inducement
to enter into a business relationship, that each has already
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relied on this waiver in entering into this Agreement, and that
each will continue to rely on this waiver in their related
future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal
counsel and that it knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.17 AND
EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO
THE LOANS MADE HEREUNDER. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the
court.
10.18 Confidentiality.
---------------
Each Lender shall hold all non-public information
obtained pursuant to the requirements of this Agreement,
including, without limitation, pursuant to any inspection under
subsection 6.5, which has been identified as confidential by
Company in accordance with such Lender's customary procedures
for handling confidential information of this nature and in
accordance with safe and sound banking practices, it being
understood and agreed by Company that in any event a Lender may
make disclosures to Affiliates of such Lender or disclosures
reasonably required by any bona fide assignee, transferee or
participant in connection with the contemplated assignment or
transfer by such Lender of any Loans or any participations
therein or disclosures required or requested by any govern-
mental agency or representative thereof or pursuant to legal
process; PROVIDED that, unless specifically prohibited by
applicable law or court order, each Lender shall notify Company
of any request by any governmental agency or representative
thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such
governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and
PROVIDED, FURTHER that in no event shall any Lender be
obligated or required to return any materials furnished by
Company or any of its Subsidiaries.
10.19 Counterparts; Effectiveness.
---------------------------
This Agreement and any amendments, waivers, consents
or supplements hereto or in connection herewith may be executed
in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
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instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties hereto
and receipt by Company and Administrative Agent of written or
telephonic notification of such execution and authorization of
delivery thereof.
[Remainder of page intentionally left blank]
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Page 225 of 424 <PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
COMPANY:
URS CORPORATION
By: /s/ Kent P. Ainsworth
--------------------------------------
Name: Kent P. Ainsworth
Title: Vice President and Chief Financial
Officer
Notice Address:
100 California Street
San Francisco, CA 94111
Attention: Mr. Kent P. Ainsworth
Vice President and Chief
Financial Officer
Fax: (415) 398-1905
LENDERS:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent
By: /s/ David A. Neumann
--------------------------------------
Name: David A. Neumann
Title: Vice President
Notice Address:
420 Montgomery Street, 9th Floor
San Francisco, CA 94163
Attention: Mr. David A. Neumann
Vice President
Fax: (415) 421-1352
S-1
Page 226 of 424 <PAGE>
SCHEDULE 2.1
LENDERS' COMMITMENTS AND PRO RATA SHARES
Tranche A
Term Loan Revolving Loan Pro Rata
Lender Commitment Commitment Share
---------- ---------- -------------- ---------
$ $ %
___________ ___________ _______
TOTAL $32,500,000 $20,000,000 100%
Tranche B
Term Loan
Lender Commitment
---------- ----------
$
___________
TOTAL $17,500,000
Page 227 of 424 <PAGE>
EXHIBIT I
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of
January 10, 1996, as amended, supplemented or otherwise
modified to the date hereof (said Credit Agreement, as so
amended, supplemented or otherwise modified, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among URS
Corporation, a Delaware corporation ("Company"), the financial
institutions listed therein as Lenders ("Lenders"), and Wells
Fargo Bank, National Association, as Administrative Agent
("Administrative Agent"), this represents Company's request to
borrow as follows:
1. Date of borrowing: ___________________, _______
2. Amount of borrowing: $___________________
3. Type of Loans: a. Revolving Loans
b. Tranche A Term Loans
(Initial Funding Date only)
c. Tranche B Term Loans
(Initial Funding Date only)
4. Interest rate option: a. Base Rate Loans
b. Eurodollar Rate Loans with
an initial Interest Period
of ____________ month(s)
The proceeds of such Revolving Loans are to be deposited in
Company's account at Administrative Agent.
The undersigned officer, to the best of his or her
knowledge, on behalf of Company, certifies that:
(i) The representations and warranties contained in
the Credit Agreement and the other Loan Documents are
true, correct and complete in all material respects on and
as of the date hereof to the same extent as though made on
and as of the date hereof, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case such representations and
I-1
Page 228 of 424 <PAGE>
warranties were true, correct and complete in all material
respects on and as of such earlier date;
(ii) No event has occurred and is continuing or would
result from the consummation of the borrowing contemplated
hereby that would constitute an Event of Default or a
Potential Event of Default; and
(iii) Company has performed in all material respects
all agreements and satisfied all conditions which the
Credit Agreement provides shall be performed or satisfied
by it on or before the date hereof.
DATED: ____________________ URS CORPORATION
By:_________________________
Title: _____________________
I-2
Page 229 of 424 <PAGE>
EXHIBIT II
[FORM OF NOTICE OF CONVERSION/CONTINUATION]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Credit Agreement dated as of
January 10, 1996, as amended, supplemented or otherwise
modified to the date hereof (said Credit Agreement, as so
amended, supplemented or otherwise modified, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among URS
Corporation, a Delaware corporation ("Company"), the financial
institutions listed therein as Lenders, and Wells Fargo Bank,
National Association, as Administrative Agent, this represents
Company's request to convert or continue Loans as follows:
1. Date of conversion/continuation: _______________, ______
2. Amount of Loans being converted/continued: $____________
3. Type of Loans being a. Tranche A Term Loans
converted/continued: b. Tranche B Term Loans
c. Revolving Loans
4. Nature of conversion/continuation:
a. Conversion of Base Rate Loans to Eurodollar Rate
Loans
b. Conversion of Eurodollar Rate Loans to Base Rate
Loans
c. Continuation of Eurodollar Rate Loans as such
5. If Loans are being continued as or converted to Eurodollar
Rate Loans, the duration of the new Interest Period that
commences on the conversion/continuation date:
_______________ month(s)
In the case of a conversion to or continuation of
Eurodollar Rate Loans, the undersigned officer, to the best of
his or her knowledge, on behalf of Company, certifies that no
Event of Default or Potential Event of Default has occurred and
is continuing under the Credit Agreement.
DATED: _____________________ URS CORPORATION
By: ________________________
Title: _____________________
II-1
Page 230 of 424 <PAGE>
EXHIBIT III
[FORM OF NOTICE OF ISSUANCE OF STANDBY LETTER OF CREDIT]
NOTICE OF ISSUANCE OF STANDBY LETTER OF CREDIT
Pursuant to that certain Credit Agreement dated as of
January 10, 1996, as amended, supplemented or otherwise
modified to the date hereof (said Credit Agreement, as so
amended, supplemented or otherwise modified, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined), by and among URS
Corporation, a Delaware corporation ("Company"), the financial
institutions listed therein as Lenders, and Wells Fargo Bank,
National Association, as Administrative Agent ("Administrative
Agent"), this represents Company's request for the issuance of
a Letter of Credit as follows:
1. Date of issuance of Letter of Credit: ____________, _____
2. Face amount of Letter of Credit: $_______________
3. Expiration date of Letter of Credit: _____________, _____
4. Name and address of beneficiary:
___________________________________________
___________________________________________
___________________________________________
___________________________________________
5. Attached hereto is:
a. the verbatim text of such proposed Letter of
Credit
b. a description of the proposed terms and
conditions of such Letter of Credit
The undersigned officer, to the best of his or her
knowledge, on behalf of Company, certifies that:
(i) The representations and warranties contained in
the Credit Agreement and the other Loan Documents are
true, correct and complete in all material respects on and
as of the date hereof to the same extent as though made on
and as of the date hereof, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case such representations and
warranties were true, correct and complete in all material
respects on and as of such earlier date;
(ii) No event has occurred and is continuing or would
result from the issuance of the Letter of Credit
III-1
Page 231 of 424 <PAGE>
contemplated hereby that would constitute an Event of
Default or a Potential Event of Default; and
(iii) Company has performed in all material respects
all agreements and satisfied all conditions which the
Credit Agreement provides shall be performed or satisfied
by it on or before the date hereof.
DATED: ____________________ URS CORPORATION
By: ________________________
Title: _____________________
III-2
Page 232 of 424 <PAGE>
EXHIBIT IV-A
[FORM OF TRANCHE A TERM NOTE]
URS CORPORATION
PROMISSORY NOTE DUE OCTOBER 31, 2002
$___________________ San Francisco, California
January 10, 1996
FOR VALUE RECEIVED, URS Corporation, a Delaware
corporation ("Company"), promises to pay to the order of
________________________________ ("Payee") the principal amount
of _________ Million United States Dollars ($____________) on
October 31, 2002 in the installments referred to below.
Company also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in
full, at the rates and at the times which shall be determined
in accordance with the provisions of that certain Credit
Agreement dated as of January 10, 1996 by and among Company,
the financial institutions listed therein as Lenders, and Wells
Fargo Bank, National Association, as Administrative Agent (said
Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined).
Company shall make principal payments on this Note in
consecutive quarterly installments, commencing on October 31,
1996 and ending on October 31, 2002. Each such installment
shall be due on the date specified in the Credit Agreement and
in an amount determined in accordance with the provisions
thereof; PROVIDED that the last such installment shall be in an
amount sufficient to repay the entire unpaid principal balance
of this Note, together with all accrued and unpaid interest
thereon.
This Note is one of Company's "Tranche A Term Notes"
in the aggregate principal amount of $32,500,000 and is issued
pursuant to and entitled to the benefits of the Credit
Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the
Tranche A Term Loan evidenced hereby was made and is to be
repaid.
All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States of
America in same day funds at the Funding and Payment Office or
at such other place as shall be designated in writing for such
purpose in accordance with the terms of the Credit Agreement.
IV-A-1
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Unless and until an Assignment Agreement effecting the
assignment or transfer of this Note shall have been accepted by
Administrative Agent and consented to by Company and
Administrative Agent as provided in subsection 10.1B(ii) of the
Credit Agreement, Company and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of
this Note and the Loan evidenced hereby. Payee hereby agrees,
by its acceptance hereof, that before disposing of this Note or
any part hereof it will make a notation hereon of all principal
payments previously made hereunder and of the date to which
interest hereon has been paid; PROVIDED, HOWEVER, that the
failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest
on this Note.
Whenever any payment on this Note shall be stated to
be due on a day which is not a Business Day, such payment shall
be made on the next succeeding Business Day and such extension
of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment as
provided in subsection 2.4B(iii) of the Credit Agreement and to
prepayment at the option of Company as provided in subsection
2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY
AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA (INCLUDING, WITHOUT LIMITATION, SECTION
1646.5 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the
unpaid balance of the principal amount of this Note, together
with all accrued and unpaid interest thereon, may become, or
may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only
in the manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or
assignment as provided in subsections 10.1 and 10.16 of the
Credit Agreement.
No reference herein to the Credit Agreement and no
provision of this Note or the Credit Agreement shall alter or
impair the obligations of Company, which are absolute and
unconditional, to pay the principal of and interest on this
IV-A-2
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Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in
subsection 10.2 of the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without
notice, and hereby waive diligence, presentment, protest,
demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to
be duly executed and delivered by its officer thereunto duly
authorized as of the date and at the place first written above.
URS CORPORATION
By:_________________________
Name:_______________________
Title:______________________
IV-A-3
Page 235 of 424 <PAGE>
EXHIBIT IV-B
[FORM OF TRANCHE B TERM NOTE]
URS CORPORATION
PROMISSORY NOTE DUE APRIL 30, 2003
$__________ San Francisco, California
January 10, 1996
FOR VALUE RECEIVED, URS Corporation, a Delaware
corporation ("Company"), promises to pay to the order of
________________________________ ("Payee") the principal amount
of ___________ Million United States Dollars ($_____________)
on April 30, 2003 in the installments referred to below.
Company also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in
full, at the rates and at the times which shall be determined
in accordance with the provisions of that certain Credit
Agreement dated as of January 10, 1996 by and among Company,
the financial institutions listed therein as Lenders, and Wells
Fargo Bank, National Association, as Administrative Agent (said
Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined).
Company shall make principal payments on this Note in
consecutive quarterly installments, commencing on January 31,
1997 and ending on April 30, 2003. Each such installment shall
be due on the date specified in the Credit Agreement and in an
amount determined in accordance with the provisions thereof;
PROVIDED that the last such installment shall be in an amount
sufficient to repay the entire unpaid principal balance of this
Note, together with all accrued and unpaid interest thereon.
This Note is one of Company's "Tranche B Term Notes"
in the aggregate principal amount of $17,500,000 and is issued
pursuant to and entitled to the benefits of the Credit
Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the
Tranche B Term Loan evidenced hereby was made and is to be
repaid.
All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States of
America in same day funds at the Funding and Payment Office or
at such other place as shall be designated in writing for such
purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the
IV-B-1
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assignment or transfer of this Note shall have been accepted by
Administrative Agent and consented to by Company and
Administrative Agent as provided in subsection 10.1B(ii) of the
Credit Agreement, Company and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of
this Note and the Loan evidenced hereby. Payee hereby agrees,
by its acceptance hereof, that before disposing of this Note or
any part hereof it will make a notation hereon of all principal
payments previously made hereunder and of the date to which
interest hereon has been paid; PROVIDED, HOWEVER, that the
failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest
on this Note.
Whenever any payment on this Note shall be stated to
be due on a day which is not a Business Day, such payment shall
be made on the next succeeding Business Day and such extension
of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment as
provided in subsection 2.4B(iii) of the Credit Agreement and to
prepayment at the option of Company as provided in subsection
2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY
AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA (INCLUDING, WITHOUT LIMITATION, SECTION
1646.5 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the
unpaid balance of the principal amount of this Note, together
with all accrued and unpaid interest thereon, may become, or
may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only
in the manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or
assignment as provided in subsections 10.1 and 10.16 of the
Credit Agreement.
No reference herein to the Credit Agreement and no
provision of this Note or the Credit Agreement shall alter or
impair the obligations of Company, which are absolute and
unconditional, to pay the principal of and interest on this
IV-B-2
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Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in
subsection 10.2 of the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and
extensions of time at or after the maturity hereof, without
notice, and hereby waive diligence, presentment, protest,
demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to
be duly executed and delivered by its officer thereunto duly
authorized as of the date and at the place first written above.
URS CORPORATION
By:_________________________
Name:_______________________
Title:______________________
IV-B-3
Page 238 of 424 <PAGE>
EXHIBIT V
[FORM OF REVOLVING NOTE]
URS CORPORATION
PROMISSORY NOTE DUE APRIL 30, 1999
$___________ San Francisco, California
January 10, 1996
FOR VALUE RECEIVED, URS Corporation, a Delaware
corporation ("Company"), promises to pay to the order of
__________ ("Payee"), on or before April 30, 1999, the lesser
of (x) ______ Million United States Dollars ($__________) or
(y) the unpaid principal amount of all advances made by Payee
to Company as Revolving Loans under the Credit Agreement
referred to below.
Company also promises to pay interest on the unpaid
principal amount hereof, from the date hereof until paid in
full, at the rates and at the times which shall be determined
in accordance with the provisions of that certain Credit
Agreement dated as of January 10, 1996 by and among Company,
the financial institutions listed therein as Lenders, and Wells
Fargo Bank, National Association, as Administrative Agent (said
Credit Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined).
This Note is one of Company's "Revolving Notes" in
the aggregate principal amount of $20,000,000 and is issued
pursuant to and entitled to the benefits of the Credit
Agreement, to which reference is hereby made for a more
complete statement of the terms and conditions under which the
Revolving Loans evidenced hereby were made and are to be
repaid.
All payments of principal and interest in respect of
this Note shall be made in lawful money of the United States of
America in same day funds at the Funding and Payment Office or
at such other place as shall be designated in writing for such
purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the
assignment or transfer of this Note shall have been accepted by
Administrative Agent and consented to by Company and
Administrative Agent as provided in subsection 10.1B(ii) of the
Credit Agreement, Company and Administrative Agent shall be
entitled to deem and treat Payee as the owner and holder of
this Note and the Loans evidenced hereby. Payee hereby agrees,
by its acceptance hereof, that before disposing of this Note or
V-1
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any part hereof it will make a notation hereon of all principal
payments previously made hereunder and of the date to which
interest hereon has been paid; PROVIDED, HOWEVER, that the
failure to make a notation of any payment made on this Note
shall not limit or otherwise affect the obligations of Company
hereunder with respect to payments of principal of or interest
on this Note.
Whenever any payment on this Note shall be stated to
be due on a day which is not a Business Day, such payment shall
be made on the next succeeding Business Day and such extension
of time shall be included in the computation of the payment of
interest on this Note.
This Note is subject to mandatory prepayment as
provided in subsection 2.4B(iii) of the Credit Agreement and to
prepayment at the option of Company as provided in
subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY
AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA (INCLUDING, WITHOUT LIMITATION, SECTION
1646.5 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA), WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the
unpaid balance of the principal amount of this Note, together
with all accrued and unpaid interest thereon, may become, or
may be declared to be, due and payable in the manner, upon the
conditions and with the effect provided in the Credit
Agreement.
The terms of this Note are subject to amendment only
in the manner provided in the Credit Agreement.
This Note is subject to restrictions on transfer or
assignment as provided in subsections 10.1 and 10.16 of the
Credit Agreement.
No reference herein to the Credit Agreement and no
provision of this Note or the Credit Agreement shall alter or
impair the obligations of Company, which are absolute and
unconditional, to pay the principal of and interest on this
Note at the place, at the respective times, and in the currency
herein prescribed.
Company promises to pay all costs and expenses,
including reasonable attorneys' fees, all as provided in
subsection 10.2 of the Credit Agreement, incurred in the
collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and
V-2
Page 240 of 424 <PAGE>
extensions of time at or after the maturity hereof, without
notice, and hereby waive diligence, presentment, protest,
demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations
as a defense to any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to
be duly executed and delivered by its officer thereunto duly
authorized as of the date and at the place first written above.
URS CORPORATION
By:_________________________
Name:_______________________
Title:______________________
V-3
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TRANSACTIONS
ON
REVOLVING NOTE
Outstand-
Amount of ing
Type of Amount of Principal Principal
Loan Made Loan Made Paid Balance Notation
Date This Date This Date This Date This Date Made By
----- --------- --------- --------- --------- --------
V-4
Page 242 of 424 <PAGE>
EXHIBIT VI
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(1) I am the duly elected [President] [Chief
Financial Officer] of URS Corporation, a Delaware
corporation ("Company");
(2) I have reviewed the terms of that certain Credit
Agreement dated as of January 10, 1996, as amended,
supplemented or otherwise modified to the date hereof
(said Credit Agreement, as so amended, supplemented or
otherwise modified, being the "Credit Agreement", the
terms defined therein and not otherwise defined in this
Certificate (including Attachment No. 1 and Attachment No.
2 annexed hereto and made a part hereof) being used in
this Certificate as therein defined), by and among
Company, the financial institutions listed therein as
Lenders, and Wells Fargo Bank, National Association, as
Administrative Agent, and the terms of the other Loan
Documents, and I have made, or have caused to be made
under my supervision, a review in reasonable detail of the
transactions and condition of Company and its Subsidiaries
during the accounting period covered by the attached
financial statements; and
(3) The examination described in paragraph (2) above
did not disclose, and I have no actual knowledge of, the
existence of any condition or event which constitutes an
Event of Default or Potential Event of Default during or
at the end of the accounting period covered by the
attached financial statements or as of the date of this
Certificate, except as set forth below.
Set forth below are all exceptions to paragraph (3)
above listing, in detail, the nature of the condition or event,
the period during which it has existed and the action which
Company has taken, is taking, or proposes to take with respect
to each such condition or event:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
VI-1
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The foregoing certifications, together with the
computations set forth in [Attachment No. 1] [Attachment No. 2]
annexed hereto and made a part hereof and the financial
statements delivered with this Certificate in support hereof,
are made and delivered this __________ day of _____________,
199_ pursuant to subsection 6.1(vii) of the Credit Agreement.
URS CORPORATION
By:_________________________
Name:_______________________
Title:______________________
VI-2
Page 244 of 424 <PAGE>
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part
of a Compliance Certificate dated as of ____________, 199_ and
pertains to the period from ____________, 199_ to ____________,
199_. Subsection references herein relate to subsections of
the Credit Agreement.
A. Indebtedness (7.1)
1. Indebtedness permitted under $_________
subsection 7.1(vii):
(Maximum permitted $5,000,000)
B. Liens (7.2)
1. Liens permitted under subsection
7.2A(iv): $_________
(Maximum permitted $5,000,000)
C. Investments; Joint Ventures (7.3)
1. Investments in Foreign Subsidiaries
permitted under subsection 7.3(vii): $_________
(Maximum permitted $5,000,000)
2. Investments in Unrestricted Subsidiaries
permitted under subsection 7.3(viii): $_________
(Maximum permitted $5,000,000)
3. Investments in Joint Ventures permitted
under subsection 7.3(ix): $_________
(Maximum permitted $1,000,000)
4. Investments permitted under
subsection 7.3(x): $_________
(Maximum permitted $5,000,000)
D. Contingent Obligations (7.4)
1. Contingent Obligations under
guarantees in ordinary course
of business of the obligations of
suppliers, customers, franchisees
and licensees permitted under
subsection 7.4(iv): $_________
(Maximum permitted $5,000,000)
VI-3
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2. Contingent Obligations permitted
under subsection 7.4(viii): $_________
(Maximum permitted $5,000,000)
E. Minimum Quick Ratio (as of _____________, 199_) (7.6A)
1. Consolidated Quick Assets: $_________
2. Consolidated Current Liabilities: $_________
3. Minimum ratio required under
subsection 7.6A: 1.25:1.00
F. Minimum Fixed Charge Coverage Ratio (for the four-Fiscal
Quarter period ending _____________, 199_) (7.6B)
1. Consolidated Net Income: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
2. Consolidated Interest Expense: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
3. Provisions for taxes based on income: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
4. Total depreciation expense: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
5. Total amortization expense: $_________
Pre Merger Greiner $_________
VI-4
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Pre Merger URS $_________
Post Merger Combined $_________
6. Other non-cash items reducing
Consolidated Net Income LESS
other non-cash items increasing
Consolidated Net Income: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
7. Consolidated EBITDA (1+2+3+4+5+6): $_________
8. Consolidated Capital Expenditures: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
9. Adjusted Consolidated EBITDA (7-8): $_________
10. Consolidated Interest Expense (F.2 above): $_________
11. Provisions for taxes based on income
and payable in Cash: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
12. Consolidated Scheduled Principal Payments: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
13. Consolidated Fixed Charges (10+11+12): $_________
14. Fixed Charge Coverage Ratio (9):(13): ____:1.00
15. Minimum ratio required under
subsection 7.6B: ____:1.00
VI-5
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G. Maximum Leverage Ratio (as of _____________, 199_) (7.6C)
1. Aggregate principal amount of all
outstanding Term Loans: $_________
2. Maximum aggregate amount which is or
at any time thereafter may become
available for drawing under all
letters of credit then outstanding: $_________
Pre Merger Greiner $_________
Pre Merger URS $_________
Post Merger Combined $_________
3. Aggregate amount of that proportion of
obligations with respect to Capital Leases
that is properly classified as a
liability: $_________
Pre Merger Greiner $_________
Pre Merger URS $__________
Post Merger Combined $__________
4. Indebtedness evidenced by a note or
similar written instrument: $_________
Pre Merger Greiner $__________
Pre Merger URS $__________
Post Merger Combined $__________
5. Average aggregate principal amount of all
revolving loans outstanding: $_________
Pre Merger Greiner $__________
Pre Merger URS $__________
Post Merger Combined $__________
6. Consolidated Total Funded Debt
(1+2+3+4+5): $_________
7. Consolidated EBITDA (F.7 above): $_________
8. Leverage Ratio (6):(7): ____:1.00
VI-6
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9. Maximum ratio permitted under
subsection 7.6C: ____:1.00
H. Minimum Consolidated EBITDA (for the four-
Fiscal Quarter period ending ____________, 199_) (7.6D)
1. Consolidated EBITDA
(F.7 above): $_________
(Minimum permitted _______)
I. Maximum Tangible Net Worth (as of_____________, 199_)
(7.6E)
1. Consolidated Tangible Net Worth: $_________
2. $8,500,000 $_________
3. 75% of Consolidated Net Income since the
quarter ending after consummation of the
Merger: $_________
4. Minimum Consolidated Net Worth required
under subsection 7.6E (2 + 3): $_________
J. Fundamental Changes
1. Aggregate fair market value of assets
sold in any one or more Asset Sales
after Closing Date in one or more
transactions permitted under
subsection 7.7(v): $_________
(Maximum permitted $1,000,000)
2. Total Purchase Price of Subsequent
Acquisition: $_________
(Maximum permitted $5,000,000)
3. Aggregate Total Purchase Price of
all Subsequent Acquisitions: $_________
(Maximum permitted $15,000,000)
K. Disposal of Subsidiary Stock
1. Annual gross revenue of any Subsidiary
sold during the period for the immediately
preceding twelve-month period: $_________
(Maximum $10,000,000)
VI-7
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L. Foreign Subsidiaries
1. Aggregate annual gross revenues of
Foreign Subsidiaries: $_________
2. Consolidated gross revenues of Company and
its Subsidiaries: $_________
3. Foreign Subsidiary revenue as a
percentage of consolidated gross
revenues (1 / 2): __%
4. Maximum percentage permitted under
subsection 7.12: 25%
VI-8
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ATTACHMENT NO. 2
TO COMPLIANCE CERTIFICATE
This Attachment No. 2 is attached to and made a part
of a Compliance Certificate dated as of _____________, 199_ and
pertains to the month of ____________, 199_. Subsection
references herein relate to subsections of the Credit
Agreement.
A. Cash URS Greiner
1. Cash and Cash Equivalents $__________ $__________
and U.S. Treasury
Securities held:
2. Minimum permitted under
subsections 4.2D(ii)(a) and
4.2D(iii)(a): $ 5,000,000 $16,000,000
B. Consolidated EBITDA
1.Consolidated Net Income: $__________ $__________
2. Consolidated Interest
Expense: $__________ $__________
3. Provisions for taxes based
on income: $__________ $__________
4. Total depreciation expense: $__________ $__________
5. Total amortization expense: $__________ $__________
6. Other non-cash items
reducing Consolidated Net
Income LESS other non-cash
items increasing
Consolidated Net Income: $__________ $__________
7. Consolidated EBITDA
(1+2+3+4+5+6): $__________ $__________
8. Minimum permitted under
subsections 4.2D(ii)(b) and
4.2D(iii)(b): $__________ $__________
C. Consolidated Net Income
1. Consolidated Net Income: $__________ $__________
VI-9
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URS Greiner
2. Minimum permitted under
subsections 4.2D(ii)(c) and
4.2D(iii)(c): $__________ $__________
D. Sum of Backlog Plus $__________ $__________
Designations
1. Backlog + Designations $__________
Category I Backlog and
Category II Backlog
multiplied by 130% $__________
2. Minimum permitted under
subsections 4.2D(ii)(d) and
4.2C(iv)(d): $350,000,000 $200,000,000
VI-10
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EXHIBIT VII-A
[FORM OF OPINION OF COMPANY COUNSEL]
[Letterhead of Company Counsel]
January 10, 1996
Wells Fargo Bank, National Association,
as Administrative Agent
420 Montgomery Street
San Francisco, California 94163
and
The Lenders Listed on
Schedule A Hereto
Re: Credit Agreement dated as of January 10, 1996
among URS Corporation, a Delaware corporation,
the financial institutions listed therein as
Lenders, and Wells Fargo Bank, National
Association, as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to URS Corporation, a
Delaware corporation (the "Company"), in connection with that
certain Credit Agreement dated as of January 10, 1996 (the
"Credit Agreement") between the Company, the financial
institutions listed therein as Lenders ("Lenders") and Wells
Fargo Bank, National Association, as Administrative Agent on
behalf of the Lenders ("Administrative Agent"). We are
providing this opinion to you at the request of the Company
pursuant to Section 4.1H of the Credit Agreement. Except as
otherwise indicated, capitalized terms used in this opinion and
defined in the Credit Agreement will have the meanings given in
the Credit Agreement.
In our capacity as such counsel, we have examined
originals or copies of those corporate and other records and
documents we considered appropriate, including the following:
a. the Certificate of Incorporation of the Company,
as amended to date;
VII-A-1
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Wells Fargo Bank, National Association, as Administrative Agent
January 9, 1996
Page 2
b. the Bylaws of the Company, as amended to date;
c. all records of proceedings and actions of the
Board of Directors of the Company relating to
the Loan Documents and the transactions
contemplated thereby;
d. the Credit Agreement; and
e. the other Loan Documents.
As to relevant factual matters, we have relied upon,
among other things, the Certified Resolutions of the Company
delivered to you pursuant to Section 4.1A(i) of the Credit
Agreement and the Incumbency Certificate delivered to you
pursuant to Section 4.1A(ii) of the Credit Agreement. In
addition, we have obtained and relied upon those certificates
of public officials we considered appropriate.
We have assumed the genuineness of all signatures
(other than the signatures of officers of the Company on the
Loan Documents), the authenticity of all documents submitted to
us as originals and the conformity with originals of all
documents submitted to us as copies. To the extent the
Company's obligations depend on the due authorization,
execution and delivery of the Credit Agreement and the other
Loan Documents by the other parties thereto, we have assumed
that the Credit Agreement and the other Loan Documents have
been so authorized, executed and delivered and that they
constitute legally valid and binding obligations of each such
party enforceable in accordance with their respective terms.
We have also assumed that Administrative Agent and all Lenders
will exercise their rights under the Loan Documents in a
commercially reasonable manner.
On the basis of such examination, our reliance upon
the assumptions contained herein and our consideration of those
questions of law we considered relevant, and subject to the
limitations and qualifications in this opinion, we are of the
opinion that the Loan Documents to which the Company is a party
constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally (including, without
VII-A-2
Page 254 of 424 <PAGE>
Wells Fargo Bank, National Association, as Administrative Agent
January 9, 1996
Page 3
limitation, fraudulent conveyance laws) and by general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and
the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a
proceeding in equity or at law, PROVIDED, HOWEVER, we express
no opinion with regard to the enforceability of any Letters of
Credit to which the Company is an account party but is not
liable for payment.
Our opinion as to the enforceability of the Credit
Agreement and the other Loan Documents is subject to:
(i) public policy considerations, statutes or court
decisions that may limit the rights of a party
to obtain indemnification against its own gross
negligence, willful misconduct or unlawful
conduct;
(ii) the unenforceability under certain circumstances
of waivers of rights granted by law where the
waivers are against public policy or prohibited
by law or the rights waived are not specifically
described;
(iii) the unenforceability under certain circumstances
of provisions waiving the right to a jury trial;
(iv) the unenforceability under certain circumstances
of provisions imposing penalties, forfeitures,
late payment charges or an increase in interest
rate upon delinquency in payment or the
occurrence of a default; and
(v) the unenforceability under certain circumstances
of provisions appointing one party as attorney-
in-fact or trustee for an adverse party.
We express no opinion with respect to your ability to
collect attorneys' fees and costs in an action involving the
Credit Agreement if you are not the prevailing party in such
action (we call your attention to the effect of Section 1717 of
the California Civil Code, which provides that where a contract
permits one party thereto to recover attorneys' fees, the
prevailing party in any action to enforce any provision of the
VII-A-3
Page 255 of 424 <PAGE>
Wells Fargo Bank, National Association, as Administrative Agent
January 9, 1996
Page 4
contract shall be entitled to recover its reasonable attorneys'
fees).
We express no opinion as to any provision of the Loan
Documents requiring written amendments or waivers of the Loan
Documents insofar as it suggests that oral or other
modifications, amendments or waivers could not be effectively
agreed upon by the parties or that the doctrine of promissory
estoppel might not apply.
We express no opinion as to the effect of non-
compliance by you with any state or federal laws or regulations
applicable to the transactions contemplated by the Credit
Agreement because of the nature of your business.
We have further assumed with your consent that each
Lender is a bank incorporated or organized under, or a foreign
bank licensed to conduct a banking business through an agency
located in the United States of America pursuant to, the laws
of the United States of America or any state of the United
States of America, within the meaning of Section 1 of Article
XV of the California Constitution and Section 1716 of the
California Financial Code.
We are members of the Bar of the State of California
only, and express no opinion as to matters of law in
jurisdictions other than the State of California and the United
States.
This opinion is furnished by us as counsel for the
Company and may be relied upon by you only in connection with
the Credit Agreement. It may not be used or relied upon by you
for any other purpose or by any other person, nor may copies be
delivered to any other person, without in each instance our
prior written consent. You may, however, deliver a copy of
this opinion to permitted transferees of the Notes in
connection with such transfer, and such transferees may rely on
this opinion as if it were addressed and had been delivered to
them on the date of this opinion.
Very truly yours,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
VII-A-4
Page 256 of 424 <PAGE>
Wells Fargo Bank, National Association, as Administrative Agent
January 9, 1996
Page 5
SCHEDULE A
Wells Fargo Bank, National Association
420 Montgomery Street
San Francisco, California 94163
VII-A-5
Page 257 of 424 <PAGE>
EXHIBIT VII-B
[FORM OF OPINION OF COMPANY COUNSEL]
[Letterhead of Company Counsel]
Initial Funding Date
Wells Fargo Bank, National Association,
as Administrative Agent
420 Montgomery Street
San Francisco, California 94163
and
The Lenders Listed on
Schedule A Hereto
Re: Credit Agreement, dated as of January 10, 1996,
among URS Corporation, a Delaware corporation,
the financial institutions listed therein as
Lenders, and Wells Fargo Bank, National
Association, as Administrative Agent
Ladies and Gentlemen:
We have acted as counsel to URS Corporation, a Delaware
corporation (the "Company"), and certain of its subsidiaries
(collectively, the "Guarantor Subsidiaries", which term shall
include Greiner Engineering, Inc., a Nevada corporation
("Greiner")) in connection with that certain Credit Agreement
dated as of January 10, 1996 (the "Credit Agreement") between
the Company, the financial institutions listed therein as
Lenders ("Lenders") and Wells Fargo Bank, National Association,
as Administrative Agent ("Administrative Agent"). We are
providing this opinion to you at the request of the Company
pursuant to Section 4.2N of the Credit Agreement. Except as
otherwise indicated, capitalized terms used in this opinion and
defined in the Credit Agreement will have the meanings given in
the Credit Agreement.
VII-B-1
Page 258 of 424 <PAGE>
In our capacity as such counsel, we have examined
originals or copies of those corporate and other records and
documents we considered appropriate, including the following:
a. The Certificate of Incorporation of the Company,
as amended to date;
b. The Bylaws of the Company, as amended to date;
c. All records of proceedings and actions of the
Board of Directors of the Company relating to
the Loan Documents and the transactions
contemplated thereby;
d. The Articles or Certificate of Incorporation of
each Guarantor Subsidiary, as amended to date;
e. The Bylaws of each Guarantor Subsidiary, as
amended to date;
f. All records of proceedings and actions of the
Board of Directors of each Guarantor Subsidiary
relating to the Loan Documents and the
transactions contemplated thereby;
g. The Credit Agreement;
h. The Collateral Documents;
i. The other Loan Documents;
j. The documents, orders, judgments and decrees
listed in the Company Certificate dated the
Initial Funding Date (the "Company
Certificate");
k. The documents, orders, judgments and decrees
listed in the Guarantor Subsidiary Certificate
dated the Initial Funding Date (the "Subsidiary
Certificate");
l. Unfiled copies of UCC-1 Financing Statements
(the "Company UCC-1 Financing Statements")
naming the Company as debtor and the
Administrative Agent as Secured Party, which we
understand will be filed with the filing offices
listed on Schedule C hereto (the "Company Filing
Offices");
m. Unfiled copies of UCC-1 Financing Statements
(the "Subsidiary UCC-1 Financing Statements")
naming each Guarantor Subsidiary as debtor and
the Administrative Agent as Secured Party, which
we understand will be filed with the filing
VII-B-2
Page 259 of 424 <PAGE>
offices listed on Schedule D hereto (the
"Subsidiary Filing Offices").
As to relevant factual matters, we have relied upon, among
other things, the factual representations of the Company in the
Company Certificate and of the Guarantor Subsidiaries in the
Subsidiary Certificate, copies of which have been delivered to
you. In addition, we have obtained and relied upon those
certificates of public officials we considered appropriate.
We have assumed, with your consent, the genuineness of all
signatures [(other than the signatures of officers of the
Company),] the authenticity of all documents submitted to us as
originals and the conformity with originals of all documents
submitted to us as copies. To the extent any Loan Party's
obligations depend on the due authorization, execution and
delivery of the Credit Agreement and the other Loan Documents
by the other parties thereto, we have assumed that the Credit
Agreement and the other Loan Documents have been so authorized,
executed and delivered and that they constitute legally valid
and binding obligations of each such party enforceable in
accordance with their respective terms. We have also assumed
that Administrative Agent and all Lenders will exercise their
rights under the Loan Documents in a commercially reasonable
manner.
On the basis of such examination, our reliance upon the
assumptions contained herein and our consideration of those
questions of law we considered relevant, and subject to the
limitations and qualifications in this opinion, we are of the
opinion that:
1. The Company has been duly incorporated, and is
validly existing in good standing under the laws of the State
of Delaware, with corporate power to enter into the Loan
Documents to which it is a party, and to perform its
obligations thereunder.
2. The execution, delivery and performance of the Loan
Documents to which it is a party have been duly authorized by
all necessary corporate action on the part of the Company, and
the Loan Documents to which it is a party have been duly
executed and delivered by the Company.
3. The Loan Documents to which the Company is a party
constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws) and by general
principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and
the possible unavailability of specific performance or
VII-B-3
Page 260 of 424 <PAGE>
injunctive relief, regardless of whether considered in a
proceeding in equity or at law.
4. The Company's execution and delivery of, and
performance of its obligations under, the Loan Documents to
which it is a party do not and will not (i) violate the
Company's Certificate of Incorporation or Bylaws, (ii) violate,
breach, or result in a default under, any existing obligation
of the Company under any other agreement identified in the
Company Certificate, or (iii) breach or otherwise violate any
existing obligation of the Company under any order, judgment or
decree of any California or federal court or governmental
authority binding on the Company identified in the Company
Certificate.
5. The execution and delivery by the Company of, and
performance of its obligations under, the Loan Documents to
which it is a party do not violate any California or federal
statute or regulation that we have, in the exercise of
customary professional diligence, recognized as applicable to
the Company in connection with the transactions contemplated by
the Loan Documents.
6. No order, consent, permit or approval of any
California or federal governmental authority that we have, in
the exercise of customary professional diligence, recognized as
applicable to the Company in connection with the transactions
contemplated by the Loan Documents, is required on the part of
the Company for the execution and delivery of, and performance
of its obligations under, the Loan Documents to which it is a
party[, except for the authorization of __________, which has
been obtained].
7. Each Guarantor Subsidiary has been duly incorporated,
and is validly existing in good standing under the laws of its
state of incorporation, with corporate power to enter into the
Loan Documents to which it is a party, and to perform its
obligations thereunder.
8. The execution, delivery and performance of the Loan
Documents to which it is a party have been duly authorized by
all necessary corporate action on the part of each Guarantor
Subsidiary, and the Loan Documents to which it is a party have
been duly executed and delivered by each Guarantor Subsidiary.
9. The Loan Documents to which each Guarantor Subsidiary
is a party constitute legally valid and binding obligations of
such Guarantor Subsidiary, enforceable against such Guarantor
Subsidiary in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors'
rights generally (including, without limitation, fraudulent
conveyance laws) and by general principles of equity,
including, without limitation, concepts of materiality,
VII-B-4
Page 261 of 424 <PAGE>
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or
at law.
10. Each Guarantor Subsidiary's execution and delivery
of, and performance of its obligations under, the Loan
Documents to which it is a party do not and will not (i)
violate such Guarantor Subsidiary's Articles or Certificate of
Incorporation or Bylaws, (ii) violate, breach, or result in a
default under, any existing obligation of such Guarantor
Subsidiary under any other agreement identified in the
Subsidiary Certificate, or (iii) breach or otherwise violate
any existing obligation of such Guarantor Subsidiary under any
order, judgment or decree of any state or federal court or
governmental authority binding on such Guarantor Subsidiary
identified in the Subsidiary Certificate.
11. The execution and delivery by each Guarantor
Subsidiary of, and performance of its obligations under, the
Loan Documents to which it is a party do not violate any state
or federal statute or regulation that we have, in the exercise
of customary professional diligence, recognized as applicable
to such Guarantor Subsidiary in connection with the
transactions contemplated by the Loan Documents.
12. No order, consent, permit or approval of any state or
federal governmental authority that we have, in the exercise of
customary professional diligence, recognized as applicable to
any Guarantor Subsidiary in connection with the transactions
contemplated by the Loan Documents, is required on the part of
such Guarantor Subsidiary for the execution and delivery of,
and performance of its obligation under, the Loan Documents to
which it is a party[, except for the authorization of
__________, which has been obtained].
13. Any outstanding shares of the capital stock of each
of the Guarantor Subsidiaries pledged to Administrative Agent
pursuant to the Collateral Documents have been duly authorized
by all necessary corporate action on the part of such
corporation, are validly issued, fully-paid and nonassessable
and are owned of record by the Company or another Guarantor
Subsidiary.
14. Neither the extension of credit nor the use of
proceeds provided in the Agreement will violate Regulation G,
T, U or X of the Board of Governors of the Federal Reserve
System.
15. Neither the Company nor any of the Guarantor
Subsidiaries is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
VII-B-5
Page 262 of 424 <PAGE>
16. Neither the Company nor any of the Guarantor
Subsidiaries is a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company,"
within the meaning of the Public Utility Holding Company Act of
1935, as amended.
17. Except for those matters described in Schedule 5.6 to
the Company Signing Date Disclosure Letter and described on
Schedule B attached hereto, we have not, since _______________
given substantive attention on behalf of the Company or any of
its Subsidiaries to, or represented the Company or any of its
Subsidiaries in connection with, any actions, suits or
proceedings pending or threatened against the Company or any of
its Subsidiaries before any court, arbitrator or governmental
agency, which (i) seek to affect the enforceability of any of
the Loan Documents or (ii) seek damages in excess of
$____________ or any relief other than damages. We call your
attention to the fact that our engagement is limited to
specific matters as to which we are consulted by the Company
and its Subsidiaries.
18. The Company Security Agreement creates in favor of
the Administrative Agent a security interest in such of the
Collateral (as defined in the Company Security Agreement) of
the Company that is of a type in which a security interest can
be created under Division 9 of the Uniform Commercial Code as
in effect in the State of California.
19. Upon the filing of the Company UCC-1 Financing
Statements with the Company Filing Offices, the Administrative
Agent will have a perfected security interest in the Company's
interest in the Collateral described therein, to the extent a
security interest in such Collateral can be perfected by the
filing of a financing statement with the Company Filing Offices
under the Uniform Commercial Code as in effect in the State of
California.
20. With regard to each deposit account referred to in
the Company Security Agreement and the Subsidiary Security
Agreement which is maintained with an organization located in
the State of California, assuming that either (a) the deposit
account is maintained with the Administrative Agent or (b)
notice of the Administrative Agent's security interest is given
in writing to the organization with which the deposit account
is maintained, the Administrative Agent has a perfected
security interest in the Company's and any Guarantor
Subsidiary's interest in the deposit account to the extent a
security interest in the deposit account can be perfected under
the Uniform Commercial Code as in effect in the State of
California.
21. The Company Pledge Agreement, together with delivery
of the Pledged Debt (as defined therein) to the Administrative
VII-B-6
Page 263 of 424 <PAGE>
Agent in the State of California, create in favor of the
Administrative Agent a perfected security interest under the
Uniform Commercial Code as in effect in the State of California
in the Pledged Debt. Assuming the Administrative Agent
maintains possession of the Pledge Debt in the State of
California, such security interest will be prior to any other
security interest in such Pledged Debt that may be created
under the Uniform Commercial Code as in effect in the State of
California.
22. The Company Pledge Agreement, together with delivery
of the certificates representing the shares of stock identified
on Schedule I to the Company Pledge Agreement (the "Pledged
Securities") to the Administrative Agent in the State of
California, create in favor of the Administrative Agent a
perfected security interest under the Uniform Commercial Code
as in effect in the State of California in the Pledged
Securities. Assuming the Administrative Agent acquires its
security interest in the Pledged Securities in good faith and
without notice of any adverse claims and that each Pledged
Security is a certificated security either in bearer form or in
registered form, issued or indorsed in the name of the
Administrative Agent or in blank, the Administrative Agent will
acquire its security interest in the Pledged Securities free of
adverse claims.
23. The Subsidiary Security Agreement creates in favor of
the Administrative Agent a security interest in such of the
Collateral (as defined in the Subsidiary Security Agreement) of
each Guarantor Subsidiary that is of a type in which a security
interest can be created under Article 9 of the Uniform
Commercial Code as in effect in the State of California.
24. Upon the filing of the Subsidiary UCC-1 Financing
Statements with the Subsidiary Filing Offices, the
Administrative Agent will have a perfected security interest in
each Guarantor Subsidiary's interest in the Collateral
described therein, to the extent a security interest in such
Collateral can be perfected by the filing of a financing
statement with the Subsidiary Filing Offices under the Uniform
Commercial Code as in effect in the State of California and the
States listed in paragraph (vii) on page [11] below.
25. The Subsidiary Pledge Agreement, together with
delivery of the certificates representing the shares of stock
identified on Schedule I to the Subsidiary Pledge Agreement
----------
(the "Subsidiary Pledged Securities") to the Administrative
Agent in the State of California, create in favor of the
Administrative Agent a perfected security interest under the
Uniform Commercial Code as in effect in the State of California
in the Subsidiary Pledged Securities. Assuming the
Administrative Agent acquires its security interest in the
VII-B-7
Page 264 of 424 <PAGE>
Subsidiary Pledged Securities in good faith and without notice
of any adverse claims and that each Subsidiary Pledged Security
is a certificated security either in bearer form or in
registered form, issued or indorsed in the name of the
Administrative Agent or in blank, the Administrative Agent will
acquire its security interest in the Subsidiary Pledged
Securities free of adverse claims.
26. Upon the filing of the Certificate of Merger with the
Nevada Secretary of State in accordance with the Merger
Agreement, and the acceptance of the Certificate of Merger by
the Nevada Secretary of State, the Merger will be validly
consummated in accordance with the Merger Agreement and Nevada
law, each outstanding share of Greiner's stock will be
converted as provided in the Merger Agreement and Greiner will
be a wholly-owned Subsidiary of the Company.
Our opinions in paragraphs 3 and 9 above as to the
enforceability of the Credit Agreement and the other Loan
Documents is subject to:
(i) public policy considerations, statutes or court
decisions that may limit the rights of a party to
obtain indemnification against its own gross
negligence, willful misconduct or unlawful conduct;
(ii) the unenforceability under certain circumstances of
waivers of rights granted by law where the waivers
are against public policy or prohibited by law or the
rights waived are not specifically described;
(iii) the unenforceability under certain circumstances of
provisions waiving the right to a jury trial;
(iv) the unenforceability under certain circumstances of
provisions imposing penalties, forfeitures, late
payment charges or an increase in interest rate upon
delinquency in payment or the occurrence of a
default; and
(v) the unenforceability under certain circumstances of
provisions appointing one party as attorney-in-fact
or trustee for an adverse party.
We express no opinion with respect to your ability to
collect attorneys' fees and costs in an action involving the
Loan Documents if you are not the prevailing party in such
action (we call your attention to the effect of Section 1717 of
the California Civil Code, which provides that where a contract
permits one party thereto to recover attorneys' fees, the
prevailing party in any action to enforce any provision of the
contract shall be entitled to recover its reasonable attorneys'
fees).
VII-B-8
Page 265 of 424 <PAGE>
We express no opinion as to any provision of the Loan
Documents requiring written amendments or waivers of the Loan
Documents insofar as it suggests that oral or other
modifications, amendments or waivers could not be effectively
agreed upon by the parties or that the doctrine of promissory
estoppel might not apply.
As to our opinion in paragraph 9, we advise you of
California statutory provisions and case law to the effect
that, in certain circumstances, a guarantor may be exonerated
if the creditor materially alters the original obligation of
the principal without the consent of the guarantor, elects
remedies for default that impair the subrogation or
reimbursement rights of the guarantor against the principal, or
otherwise takes, without notifying the guarantor, any action
that materially prejudices the guarantor. We express no
opinion as to the effect on the Subsidiary Guaranty of: (i) any
modification to or amendment of the Company's obligations that
materially increases such obligations, or (ii) any other action
by Administrative Agent or any Lender that materially
prejudices any Guarantor Subsidiary, if, in any such instance,
such modification, amendment or action occurs without notice to
such Guarantor Subsidiary and without granting to such
Guarantor Subsidiary an opportunity to cure any default by such
Guarantor Subsidiary. There is also authority (including
California Civil Code Section 2856, which has not yet been the
subject of judicial interpretation) to the effect that a
guarantor may effectively waive statutory suretyship defenses
if an express waiver of such defenses is expressly set forth in
the guaranty. We express no opinion as to the effectiveness,
under California law, of the waivers set forth in the
Subsidiary Guaranty.
We express no opinion as to the effect of non-compliance
by you with any state or federal laws or regulations applicable
to the transactions contemplated by the Loan Documents because
of the nature of your business.
We advise you that Section __ of the Subsidiary Pledge
Agreement, Section __ of the Subsidiary Security Agreement and
Section __ of the Subsidiary Guaranty, which provide for
jurisdiction of the courts of California, may not be binding on
the courts in the forum(s) selected or excluded.
For purposes of the opinions expressed in paragraphs 4 and
10, we have assumed that neither the Company nor any Guarantor
Subsidiary will in the future take any discretionary action
(including a decision not to act) permitted by the Loan
Documents that would cause the payment of the Loan to violate
any California or federal statute, rule or regulation or
constitute a violation or breach of or default under any of the
agreements, orders, judgments or decrees referred to in clauses
(ii) and (iii) of paragraph 4 or 10 or require an order,
VII-B-9
Page 266 of 424 <PAGE>
consent, permit or approval to be obtained from a California or
federal governmental authority.
We have further assumed with your consent that each Lender
is a bank incorporated or organized under, or a foreign bank
licensed to conduct a banking business through an agency
located in the United States of America pursuant to, the laws
of the United States of America or any state of the United
States of America, within the meaning of Section 1 of
Article XV of the California Constitution and Section 1716 of
the California Financial Code.
We express no opinion with respect to:
(i) the priority of any liens or security interests
except as set forth in paragraphs 20, 21 and 24
relating to the Pledged Debt, the Pledged Securities
and the Subsidiary Pledged Securities, respectively;
or
(ii) any provision of the Collateral Documents that
purports to permit the Administrative Agent or any
other person to sell or otherwise dispose of any
Collateral subject thereto except in compliance with
the Uniform Commercial Code and any other applicable
federal and state laws, or to impose on the
Administrative Agent standards of care of Collateral
in the Administrative Agent's possession other than
as provided in Section 9207 of the Uniform Commercial
Code.
In rendering the opinions in paragraphs 18, 19, 20, 21,
22, 23, 24 and 25, we have assumed with your consent:
(i) that the Company and each Guarantor Subsidiary has,
or will have at the relevant time, rights in the
Collateral, Pledged Securities or Subsidiary Pledged
Securities, as the case may be, in which the Company
or such Guarantor Subsidiary, as the case may be, has
granted a security interest to the Administrative
Agent within the meaning of Section 9203(1)(c) of the
Uniform Commercial Code at all times relevant to this
opinion;
(ii) that the Collateral is reasonably identified in the
description of collateral set forth in the Company
Security Agreement, the Company UCC-1 Financing
Statements, the Subsidiary Security Agreement and the
Subsidiary UCC-1 Financing Statements; however this
assumption does not apply to Collateral described as
"accounts"; "chattel paper" and "inventory";
VII-B-10
Page 267 of 424 <PAGE>
(iii) that, at all times relevant to this opinion, value
has been given within the meaning of Section
9203(1)(b) of the Uniform Commercial Code;
(iv) that none of the Collateral arises out of any
transaction described in Section 9104 of the Uniform
Commercial Code;
(v) that the Collateral does not include motor vehicles
or boats subject to the registration provisions of
the California Vehicle Code (or other statute enacted
in any of the States listed in paragraph (vii) on
page [11]), mobile homes or commercial coaches
subject to the registration provisions of the
California Health and Safety Code (or other statute
enacted in any of the States listed in paragraph
(vii) on page [11]), any vehicle or other item of
tangible personal property subject to a registration
or certificate of title statute of a jurisdiction
other than California or any of the States listed in
paragraph (vii) on page [11], goods which are mobile
and which are of a type normally used in more than
one jurisdiction, uncertificated securities, real
property, fixtures, farm products, consumer goods, or
crops, timber, minerals or the like (including oil
and gas) or accounts resulting from the sale of an
interest in minerals or the like (including oil and
gas); and
(vi) that all Collateral constituting chattel paper and
negotiable documents does or will bear a legend
naming the Administrative Agent as secured party.
We advise you that:
(i) a security interest in accounts and general
intangibles will be subject to the rights of account
debtors;
(ii) federal and state securities laws may limit the right
to transfer or dispose of Collateral which may
constitute securities under such laws;
(iii) under certain circumstances described in Section 9306
of the Uniform Commercial Code the rights of a
secured party to enforce its security interest in
proceeds of Collateral may be limited;
(iv) we have not made or undertaken to make any
investigation as to the existence of or state of
title to the Collateral and we express no opinion as
to the existence, condition, location or ownership of
the Collateral or, except as specifically set forth
VII-B-11
Page 268 of 424 <PAGE>
in paragraphs 21, 22 and 25, the priority of any
liens thereon or security interests therein;
(v) a security interest in patents, copyrights and
trademarks may have to be filed or recorded in one or
more federal registration offices, and our opinion in
paragraphs 18, 19, 23 and 24 does not cover the
effect of a failure to file in such federal office;
(vi) pursuant to Section 9302(h) of the Uniform Commercial
Code, a security interest in any policy of insurance
may only be perfected by giving notice thereof in
writing to the insurer, and our opinion in paragraphs
19 and 23 does not cover the effect of a failure to
give such written notice;
(vii) Our opinion in paragraph 24 with respect to the
States of Delaware, Nevada, New York, Washington,
Ohio, Colorado, New Jersey, [other states] and
Florida is based solely upon a review of Sections
9-103, 9-203, 9-302, 9-303, 9-304, 9-305, 9-306,
9-401, 9-402 and 9-403 of the Uniform Commercial Code
as currently in effect in such States, as reported in
the [U.C.C. Reporter], and excludes any review of
official decisions interpreting these sections or any
other review; and
(viii) Our opinion in paragraph 7 above that each Guarantor
Subsidiary "is validly existing in good standing
under the laws of its state of incorporation" is
based solely upon a review of Certificates of Good
Standing issued by the Secretaries of State in the
States where the Guarantor Subsidiaries are
incorporated.
We are members of the Bar of the State of California only,
and except as provided in the immediately preceding paragraphs
(vii) and (viii) express no opinion as to matters of law in
jurisdictions other than the State of California and the United
States, except as to matters relating to the corporate law of
Delaware, Nevada, New York, Washington, Ohio, Colorado, New
Jersey and Florida to the extent necessary to render the
opinions expressed in paragraphs 1 through 4, 7 through 10 and
13 above. We are not qualified to practice in the States of
Delaware, Nevada, New York, Washington, Ohio, Colorado, New
Jersey and Florida and do not, in the ordinary course of our
practice, have occasion to become familiar with the laws
thereof.
This opinion is furnished by us as counsel for the Company
and may be relied upon by you only in connection with the
Credit Agreement. It may not be used or relied upon by you for
any other purpose or by any other person, nor may copies be
delivered to any other person, without in each instance our
VII-B-12
Page 269 of 424 <PAGE>
prior written consent. You may, however, deliver a copy of
this opinion to permitted transferees of the Notes in
connection with such transfer, and such transferees may rely on
this opinion as if it were addressed and had been delivered to
them on the date of this opinion.
Very truly yours,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
VII-B-13
Page 270 of 424 <PAGE>
SCHEDULE A
Wells Fargo Bank, National Association
420 Montgomery Street
San Francisco, California 94163
VII-B-14
Page 271 of 424 <PAGE>
SCHEDULE B
VII-B-15
Page 272 of 424 <PAGE>
SCHEDULE C
Company Filing Offices
VII-B-16
Page 273 of 424 <PAGE>
SCHEDULE D
Subsidiary Filing Offices
VII-B-17
Page 274 of 424 <PAGE>
EXHIBIT VIII
[FORM OF OPINION OF ADMINISTRATIVE AGENT COUNSEL]
[Letterhead of Administrative Agent Counsel]
Initial Funding
Date
918,120-181
[doc ID]
Wells Fargo Bank, National Association,
as Administrative Agent
420 Montgomery Street
San Francisco, CA 94163
and
The Lenders Party to the Credit
Agreement Referenced Below
Re: Loans to URS Corporation
------------------------
Ladies and Gentlemen:
We have acted as counsel to Wells Fargo Bank,
National Association, as Administrative Agent (in such
capacity, "Administrative Agent"), in connection with the
preparation and delivery of a Credit Agreement dated as of
January 10, 1996 (the "Credit Agreement") among URS
Corporation, a Delaware corporation ("Company"), the financial
institutions listed therein as lenders, and Administrative
Agent and in connection with the preparation and delivery of
certain related documents.
We have participated in various conferences with
representatives of Company and Administrative Agent and
conferences and telephone calls with Sheppard, Mullin,
Richter & Hampton, counsel to Company, and with your
representatives, during which the Credit Agreement and related
matters have been discussed, and we have also participated in
the meeting held on the date hereof (the "Closing") incident to
the funding of the initial loans made under the Credit
Agreement. We have reviewed the forms of the Credit Agreement
and the exhibits thereto, including the forms of the promissory
notes annexed thereto (the "Notes"), and the opinion of
Sheppard, Mullin, Richter & Hampton (the "Opinion") and the
VIII-1
Page 275 of 424 <PAGE>
Page 2 - Wells Fargo Bank, National Association, as
Administrative Agent - _________, 1996
officers' certificates and other documents delivered at the
Closing. We have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals
or copies and the due authority of all persons executing the
same, and we have relied as to factual matters on the documents
that we have reviewed.
Although we have not independently considered all of
the matters covered by the Opinion to the extent necessary to
enable us to express the conclusions therein stated, we believe
that the Credit Agreement and the exhibits thereto are in
substantially acceptable legal form and that the Opinion and
the officers' certificates and other documents delivered in
connection with the execution and delivery of, and as
conditions to the making of the initial loans under, the Credit
Agreement and the Notes are substantially responsive to the
requirements of the Credit Agreement.
Respectfully submitted,
VIII-2
Page 276 of 424 <PAGE>
EXHIBIT IX
[FORM OF ASSIGNMENT AGREEMENT]
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement") is dated as of ________________, 199__ between
___________________________________ ("Assignor") and
___________________________________ ("Assignee").
WHEREAS, Assignor is a Lender under the Credit Agreement
dated as of January 10, 1996 (as amended, supplemented or
otherwise modified to the date hereof and as it may hereafter
be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among URS Corporation, a Delaware
corporation ("Company"), the Lenders that are parties thereto,
and Wells Fargo Bank, National Association, as Administrative
Agent. Capitalized terms used but not defined in this
Agreement shall have the meanings set forth in the Credit
Agreement. The Credit Agreement and all other agreements,
documents and instruments referred to therein or delivered
pursuant thereto are collectively called the "Credit
Documents".
WHEREAS, Assignor and Assignee wish (a) Assignor to assign
to Assignee [all] [a portion] of its rights and obligations
under the Credit Agreement, (b) Assignee to assume such
obligations, and (c) Assignor to be released from such
obligations.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, the parties hereto agree as follows:
1. Assignment.
----------
Effective on the Assignment Effective Date (as defined in
Section 3 below), Assignor hereby, without recourse, and
without representation or warranty (except as expressly
provided in Section 6 below), assigns to Assignee the Assigned
Rights and Obligations (as defined below).
[The "Assigned Rights and Obligations" means all of
Assignor's rights and obligations under the Credit Agreement on
the Assignment Effective Date, including without limitation
those relating to its [Revolving Loan] [Tranche A Term Loan]
[Tranche B Term Loan] Commitment, its commitment to purchase
participations in Letters of Credit, any outstanding
[Revolving] [Tranche A Term] [Tranche B Term] Loans and
participations in any outstanding Letters of Credit.]
IX-1
Page 277 of 424 <PAGE>
[The "Assigned Rights and Obligations" means (a) [a
$______________ portion] [______________] of Assignor's
$______________ [Revolving Loan] [Tranche A Term Loan] [Tranche
B Term Loan] Commitment on the Assignment Effective Date,
(b) the portion of any [Revolving] [Tranche A Term] [Tranche B
Term] Loans by Assignor outstanding on the Assignment Effective
Date that is attributable to the above portion of Assignor's
[Revolving Loan] [Tranche A Term Loan] [Tranche B Term Loan]
Commitment, and (c) all of Assignor's other rights and
obligations under the Credit Agreement that are attributable to
the above portion of Assignor's [Revolving Loan] [Tranche A
Term Loan] [Tranche B Term Loan] Commitment, including, without
limitation participations in any outstanding Letters of Credit
and commitments to purchase participations in Letters of
Credit.]
2. Assumption.
----------
Effective on the Assignment Effective Date, Assignee
hereby accepts the foregoing assignment of, and hereby assumes
from Assignor, the Assigned Rights and Obligations.
3. Effectiveness.
-------------
This Agreement shall become effective on a date (the
"Assignment Effective Date") selected by Assignor, which shall
be on or as soon as practicable after the execution and
delivery of counterparts of this Agreement by Assignor,
Assignee, Administrative Agent and Company. Assignor shall
promptly notify Assignee, Administrative Agent and Company in
writing of the Assignment Effective Date.
4. Payments on Assignment Effective Date.
-------------------------------------
In consideration of the assignment by Assignor to and the
assumption by Assignee of the Assigned Rights and Obligations,
on the Assignment Effective Date (a) Assignee shall pay to
Assignor the principal amount of all Loans made by Assignor
pursuant to the Credit Agreement that are attributable to the
Assigned Rights and Obligations and outstanding on the
Assignment Effective Date, and (b) each of Assignor and
Assignee shall pay to the other such amounts (if any) as are
specified in any written agreement or exchange of letters
between them, and (c) Assignee shall pay to Administrative
Agent an assignment processing and recordation fee of $3,500.
5. Allocation and Payment of Interest and Fees.
-------------------------------------------
(a) Administrative Agent shall pay to Assignee all
interest, commitment fees and other amounts not constituting
principal that are paid by or on behalf of Company pursuant to
the Credit Documents and are attributable to the Assigned
IX-2
Page 278 of 424 <PAGE>
Rights and Obligations ("Company Amounts"), that accrue on and
after the Assignment Effective Date. If Assignor receives or
collects any such Company Amounts, Assignor shall promptly pay
them to Assignee.
(b) Administrative Agent shall pay to Assignor all
Company Amounts that accrue before the Assignment Effective
Date. If Assignee receives or collects any such Company
Amounts, Assignee shall promptly pay them to Assignor.
6. Representations and Warranties.
------------------------------
(a) Each of Assignor and Assignee represents and warrants
to the other as follows:
(i) It has full power and authority, and has taken
all action necessary, to execute and deliver
this Agreement and to fulfill its obligations
under, and to consummate the transactions
contemplated by, this Agreement.
(ii) The making and performance of this Agreement and
all documents required to be executed and
delivered by it hereunder do not and will not
violate any law or regulation applicable to it.
(iii) This Agreement has been duly executed and
delivered by it and constitutes its legal, valid
and binding obligation, enforceable in
accordance with its terms.
(iv) All approvals, authorizations or other actions
by, or filings with, any governmental authority
necessary for the validity or enforceability of
its obligations under this Agreement have been
made or obtained.
(b) Assignor represents and warrants to Assignee that
Assignor owns the Assigned Rights and Obligations, free and
clear of any lien or other encumbrance.
(c) Assignee represents and warrants to Assignor as
follows:
(i) Assignee has made and shall continue to make its
own independent investigation of the financial
condition, affairs and creditworthiness of
Company and any other person or entity obligated
under the Credit Documents (collectively,
"Credit Parties"), and the value of any
collateral now or hereafter securing any of the
obligations, indebtedness, liabilities or
IX-3
Page 279 of 424 <PAGE>
undertakings under the Credit Documents
("Collateral"), in connection with its
assumption of the Assigned Rights and
Obligations.
(ii) Assignee has received a copy of the Credit
Documents and such other documents, financial
statements and information as it has deemed
appropriate to make its own credit analysis and
decision to enter into this Agreement.
7. No Assignor Responsibility.
--------------------------
Assignor makes no representation or warranty and assumes
no responsibility to Assignee for:
(a) the execution (by any party other than Assignor),
effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of the Credit Documents or for
any representations, warranties, recitals or statements made in
the Credit Documents or in any financial or other written or
oral statement, instrument, report, certificate or any other
document made or furnished or made available by Assignor to
Assignee or by or on behalf of any Credit Party to Assignor or
Assignee in connection with the Credit Documents and the
transactions contemplated thereby;
(b) the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in
any of the Credit Documents or as to the existence or possible
existence of any default or event of default under the Credit
Documents; or
(c) the accuracy or completeness of any information
provided to Assignee, whether by Assignor or by or on behalf of
any Credit Party.
Assignor shall have no initial or continuing duty or
responsibility to make any investigation of the financial
condition, affairs or creditworthiness of any of the Credit
Parties, or the value of any Collateral, in connection with the
assignment of the Assigned Rights and Obligations or to provide
Assignee with any credit or other information with respect
thereto, whether coming into its possession before the date
hereof or at any time or times thereafter.
8. Assignee Bound By Credit Agreement.
----------------------------------
Effective on the Assignment Effective Date, Assignee
(a) shall be deemed to be a party to the Credit Agreement,
(b) agrees to be bound by the Credit Agreement as it would have
been if it had been an original Lender party thereto, and
IX-4
Page 280 of 424 <PAGE>
(c) agrees to perform in accordance with their terms all of the
obligations which are required under the Credit Documents to be
performed by it as a Lender. Assignee appoints and authorizes
Administrative Agent to take such actions as agent on its
behalf and to exercise such powers under the Credit Documents
as are delegated to Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto.
9. Assignor Released From Credit Agreement.
---------------------------------------
Effective on the Assignment Effective Date, Assignor shall
be released from the Assigned Rights and Obligations; PROVIDED,
HOWEVER, that Assignor shall retain all of its rights to
indemnification under subsections 10.3 of the Credit Agreement
and the other Credit Documents for any events, acts or
omissions occurring before the Assignment Effective Date.
10. New Notes.
---------
On or promptly after the Assignment Effective Date,
Company, Administrative Agent, Assignor and Assignee shall make
appropriate arrangements so that new Notes executed by Company,
dated the Assignment Effective Date and in the amount of the
Commitment of [Assignor and] Assignee after giving effect to
this Agreement, are issued to [Assignor and] Assignee, in
exchange for the surrender by Assignor [and Assignee] to
Company of any outstanding Note[s] by Company, marked
"Exchanged."
11. Foreign Withholding Taxes.
-------------------------
(a) Assignee represents and warrants to Administrative
Agent, Company and Assignor that, under applicable law and
treaties, Assignee is entitled to receive all payments under
the Credit Agreement, the Notes and this Agreement payable to
it, without deduction or withholding of any taxes imposed by
the United States or any political subdivision thereof.
(b) On or before the Assignment Effective Date, Assignee
shall deliver to each of Company and Administrative Agent
(i) two executed copies of a valid and properly completed
United States Internal Revenue Service Form 1001 or 4224
certifying that Assignee is entitled to receive payments under
the Credit Agreement and the Notes payable to it, without
deduction or withholding of any United States federal income
taxes, or (ii) if Assignee is not a "bank" or other Person
described in Section 881(i)(3) of the Internal Revenue Code, a
Certificate re Non-Bank status and two executed copies of a
valid and properly completed Internal Revenue Service Form W-8
or W-9 establishing an exemption from United States backup
withholding tax. If any such form is found to be incomplete or
incorrect, or must be replaced (on the same or a successor
IX-5
Page 281 of 424 <PAGE>
form) in order to maintain its effectiveness, Assignee shall
execute and deliver to each of Company and Administrative Agent
two executed copies of a valid, complete and correct
replacement form.
12. General.
-------
(a) This Agreement constitutes the entire understanding
of the parties with respect to the subject matter hereof and
supersedes all prior and current understandings and agreements,
whether written or oral (other than with respect to any fees
payable as provided in Section 4 hereof).
(b) No term or provision of this Agreement may be
amended, waived or terminated orally, but only by an instrument
signed by the parties hereto.
(c) This Agreement may be executed in one or more
counterparts. Each set of executed counterparts shall be an
original. Executed counterparts may be delivered by facsimile
transmission.
(d) Assignor may at any time and from time to time grant
to others as provided in the Credit Agreement assignments of or
participations in all or part of Assignor's Loans or
Commitment, but not with respect to the Assigned Rights and
Obligations.
(e) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
and assigns. Neither Assignor nor Assignee may assign or
transfer any of its rights or obligations under this Agreement
without the prior written consent of the other. The preceding
sentence shall not limit the right of Assignee to grant to
others assignments of or participations in all or part of the
Assigned Rights and Obligations to the extent permitted by the
terms of the Credit Agreement.
(f) All payments to Assignor or Assignee hereunder shall,
unless otherwise specified by the party entitled thereto, be
made in United States Dollars, in immediately available funds,
and to the address or account specified on the signature pages
of this Agreement. The address of Assignee for notice purposes
under the Credit Agreement shall be as specified on the
signature pages of this Agreement.
(g) If any provision of this Agreement is held invalid,
illegal or unenforceable, the remaining provisions hereof will
not be affected or impaired in any way.
(h) Each party shall bear its own expenses in connection
with the preparation and execution of this Agreement.
IX-6
Page 282 of 424 <PAGE>
(i) This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ASSIGNOR: _________________________________
By:______________________________
Printed Name:____________________
Title:___________________________
Assignor's Notice Instructions:
_________________________________
_________________________________
_________________________________
Attention:_______________________
_______________________
Reference:_______________________
Telephone: ( )____________
Facsimile: ( )____________
Assignor's Payment Instructions:
_________________________________
_________________________________
_________________________________
Attention:_______________________
Reference:_______________________
IX-7
Page 283 of 424 <PAGE>
ASSIGNEE: _________________________________
By:______________________________
Printed Name:____________________
Title:___________________________
Assignee's Notice Instructions:
_________________________________
_________________________________
_________________________________
Attention:_______________________
Reference:_______________________
Telephone: ( )____________
Facsimile: ( )____________
Assignee's Payment Instructions:
_________________________________
_________________________________
ABA No.__________________________
Account No.______________________
Attention:_______________________
Reference:_______________________
IX-8
Page 284 of 424 <PAGE>
ACKNOWLEDGED AND AGREED:
-----------------------
COMPANY: URS CORPORATION
By:_______________________________
Printed Name:_____________________
Title:____________________________
ADMINISTRATIVE AGENT: WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:_______________________________
Printed Name:_____________________
Title:____________________________
IX-9
Page 285 of 424 <PAGE>
EXHIBIT X-A
[FORM OF AUDITOR'S LETTER]
[Letterhead of Coopers & Lybrand, LLP]
January 10, 1996
URS Corporation
100 California Street
Suite 500
San Francisco, CA 94111
Gentlemen:
Our Firm has audited, in accordance with generally accepted
auditing standards, the financial statements of URS Corporation
(URS) as of and for the year ended October 31, 1995. We
understand and acknowledge that (a) the Company plans to
provide the Lenders party to the Loan Agreement referred to
below with a copy of the audited 1995 financial statements and
our report thereon, (b) Wells Fargo Bank, as Administrative
Agent, has informed you that the Lenders intend to rely upon
our report in connection with the Loan Agreement dated January
10, 1996, between URS, the Lenders and Wells Fargo Bank, as
Administrative Agent, and (c) you intend for the Lenders to so
rely.
Our audit was conducted in accordance with generally accepted
auditing standards, the objective of which is to form an
opinion as to whether financial statements, which are the
responsibility and representations of management of the
Company, present fairly, in all material respects, the
financial position, results of operations, and cash flows of
the Company in conformity with generally accepted accounting
principles. Under those standards, we have the responsibility,
within the inherent limitations of the auditing process, to
design our audit to provide reasonable assurance of detecting
errors and irregularities that are material to the financial
statements and to exercise due care in the conduct of our
audit. The concept of selective testing of the data being
audited, which involves judgment regarding both the number of
transactions to be audited and the areas to be tested, has been
generally accepted as a valid and sufficient basis for an
auditor to express an opinion on financial statements. Thus,
our audit, based on the concept of selective testing, is
subject to the inherent risk that material errors or
irregularities, if they exist, were not detected. In addition,
X-A-1
Page 286 of 424 <PAGE>
Coopers & Lybrand
January 9, 1996
Page 2-A
____________________________________________________________
an audit does not address the possibility that material errors
or irregularities may occur in the future. The conduct of an
audit requires the application of professional judgment and the
assessment of materiality in connection with financial
statement assertions. Thus, matters may have existed that
would have been differently assessed by others, including
Administrative Agent, in connection with the Loan Agreement.
We understand that, in connection with their loan the Lenders
have (a) reviewed the Company's operations with its management;
(b) retained KPMG Peat Marwick LLP to review, and it has
reviewed, the Company's tax returns, the Company's own
financial records, and our working papers supporting our report
on the financial statements referred to above; and (c) directly
or through their attorneys or other advisors, performed such
other investigations and reviews as a prudent lender would
perform in similar circumstances.
Further, we understand that the Lenders recognize that (i) the
balance sheet on which we reported speaks only as of October
31, 1995; (ii) the procedures followed by us in performing our
audit and rendering our report on the Company's financial
statements are designed solely to permit us to express our
opinion concerning the Company's financial statements taken as
a whole, do not address individual line items contained
therein, and therefore may not be appropriate for the Lenders'
purposes and should not supplant the inquiries and procedures
that the Lenders should undertake for their own purposes; and
(iii) we have performed no procedures subsequent to our report
to update such report.
This letter is issued in connection with our report on the
Company's 1995 financial statements. Our understanding and
acknowledgement referred to above does not extend to reports,
if any, that might be rendered in connection with future
engagements.
Coopers & Lybrand L.L.P.
Copy to: Wells Fargo Bank, National Association
X-A-2
Page 287 of 424 <PAGE>
EXHIBIT X-B
[FORM OF AUDITOR'S LETTER]
[Letterhead of Administrative Agent]
Initial Funding Date
Price Waterhouse, LLP
2001 Ross Avenue, Suite 1800
Dallas, TX 75201
Attention: _____________
Re: Greiner Engineering, Inc.
-------------------------
Ladies and Gentlemen:
This letter (this "Letter of Understanding") is being sent
to Price Waterhouse, LLP ("CPA") with respect to credit
accommodations that certain financial institutions
(collectively, "Lenders") may grant to URS Corporation, a
Delaware corporation ("Company"), pursuant to that certain
Credit Agreement dated as of January 10, 1996 (the "Credit
Agreement") by and among Company, Lenders and Wells Fargo Bank,
National Association, as Administrative Agent ("Administrative
Agent") in connection with the acquisition by Company of
Greiner Engineering, Inc., a Nevada corporation ("Greiner").
We wish to confirm that Lenders may use CPA's audit report
dated ____________, 199__ on the financial statements of
Greiner as of ____________, 199_ (the "Current Audit Report")
in connection with Lenders' decision whether or not to extend
the following new credit to Company, pursuant to the Credit
Agreement, substantially on the following terms:
The Credit Agreement provides for an unsecured term loan
facility in the principal amount of $50,000,000 which has a
final maturity date of January 31, 2003 and an unsecured
revolving credit and letter of credit facility in the maximum
principal amount of $20,000,000 which has a final maturity date
of April 30, 1999 (collectively, the "Proposed Credit").
Lenders may also use CPA's subsequent audit reports on
future financial statements of Greiner (the "Subsequent Audit
Reports"; together with the Current Audit Report, the "Audit
Reports") in connection with Lenders' provision of credit to
X-B-1
Page 288 of 424 <PAGE>
Price Waterhouse
January 9, 1996
Page 2
______________________________________________________________
Company so long as there has been no substantial change to the
terms of the Proposed Credit as outlined above. CPA may
communicate in writing to Administrative Agent that Lenders
should no longer use the Audit Reports, in which case Lenders
shall no longer have the benefit of this Letter of
Understanding with respect to subsequent credit decisions
relating to Company.
Lenders' consideration of the Audit Reports may or may not
have an impact on Lenders' decision whether or not to extend
the Proposed Credit; nor is any Audit Report a representation
of creditworthiness. Lenders' credit decisions will not be
based solely on the Audit Reports or the accompanying financial
statements, but will also be based on the exercise of
reasonable due diligence with respect to other potentially
relevant factors bearing on Company's and Greiner's
creditworthiness as each individual Lender believes
appropriate.
Consideration by Lenders of the Audit Reports shall not
(a) change CPA's duties to Greiner with respect to the conduct
of any audit of Greiner's financial statements, (b) change the
limitations of the audits as set forth in the Audit Reports,
(c) affect the timeliness of the information contained in the
Audit Reports and the accompanying financial statements, or
(d) alter the responsibility of management of Greiner for the
financial statements accompanying the Audit Reports.
Events may occur after the period covered by any Audit
Report which may have an effect on the financial condition of
Greiner, and CPA is not responsible under this Letter of
Understanding for knowledge or disclosure of such events.
This Letter of Understanding does not authorize Lenders to
use any Audit Report in connection with any transaction other
than the granting of the Proposed Credit under the Credit
Agreement. This Letter of Understanding shall no longer be
binding on CPA if the Credit Agreement is not executed within
90 days of the date of this Letter of Understanding.
Administrative Agent and Lenders agree to keep the Audit
Reports confidential and, except as required by law or
regulation, not to disclose any Audit Report to any other party
not involved in the Proposed Credit unless such Audit Report
becomes generally available to the public.
X-B-2
Page 289 of 424 <PAGE>
Price Waterhouse
January 9, 1996
Page 3
______________________________________________________________
Kindly confirm your acknowledgement and agreement to this
Letter of Understanding by signing the enclosed copy of this
Letter of Understanding and returning it promptly to
Administrative Agent.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative
Agent
By:___________________________
Name:_________________________
Title:________________________
ACKNOWLEDGED AND AGREED:
GREINER ENGINEERING, INC.
By:________________________________
Title:
PRICE WATERHOUSE, LLP
By:________________________________
Title:
X-B-3
Page 290 of 424 <PAGE>
EXHIBIT XI
[FORM OF CERTIFICATE RE NON-U.S. BANK STATUS]
CERTIFICATE RE NON-U.S. BANK STATUS
Reference is hereby made to that certain Credit
Agreement dated as of January 10, 1996 (said Credit Agreement,
as amended, supplemented or otherwise modified to the date
hereof, being the "Credit Agreement") by and among URS
Corporation, a Delaware corporation, the financial institutions
listed therein as Lenders, and Wells Fargo Bank, National
Association, as Administrative Agent. Pursuant to
subsection 2.7B(iii) of the Credit Agreement, the undersigned
hereby certifies that it is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code of
1986, as amended.
[NAME OF LENDER]
By: ____________________
Title: __________________
XI-1
Page 291 of 424 <PAGE>
EXHIBIT XII
[FORM OF COLLATERAL ACCOUNT AGREEMENT]
COLLATERAL ACCOUNT AGREEMENT
This COLLATERAL ACCOUNT AGREEMENT (this "Agreement")
is dated as of ________________ and entered into by and between
URS CORPORATION, a Delaware corporation ("Pledgor"), and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent on
behalf of the Lenders party to the Credit Agreement referred to
below (in such capacity herein called "Secured Party").
PRELIMINARY STATEMENTS
A. Secured Party and Lenders have entered into a
Credit Agreement dated as of January 10, 1996 (said Credit
Agreement, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined) with Pledgor
pursuant to which Lenders have made certain commitments,
subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Pledgor.
B. It is a condition precedent to the initial
extensions of credit by Lenders under the Credit Agreement that
Pledgor shall have granted the security interests and
undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and
in order to induce Lenders to make Loans and issue Letters of
Credit under the Credit Agreement and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Pledgor hereby agrees with Secured Party
as follows:
SECTION 1. CERTAIN DEFINITIONS. The following terms
used in this Agreement shall have the following meanings:
"Collateral" means (i) the Collateral Account,
(ii) all amounts on deposit from time to time in the Collateral
Account, (iii) all interest, cash, instruments, securities and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the Collateral, and (iv) to the extent not covered by
clauses (i) through (iii) above, all proceeds of any or all of
the foregoing Collateral.
XII-1
Page 292 of 424 <PAGE>
"Collateral Account" means the restricted deposit
account established and maintained by Secured Party pursuant to
Section 2(a) hereof.
"Secured Obligations" means all obligations and
liabilities of every nature of Pledgor now or hereafter
existing under or arising out of or in connection with the
Credit Agreement and the other Loan Documents and all
extensions or renewals thereof, whether for principal, interest
(including, without limitation, interest that, but for the
filing of a petition in bankruptcy with respect to Pledgor,
would accrue on such obligations), reimbursement of amounts
drawn under Letters of Credit, fees, expenses, indemnities or
otherwise, whether voluntary or involuntary, direct or
indirect, absolute or contingent, liquidated or unliquidated,
whether or not jointly owed with others, and whether or not
from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such
obligations or liabilities that are paid, to the extent all or
any part of such payment is avoided or recovered directly or
indirectly from Secured Party or any Lender as a preference,
fraudulent transfer or otherwise, and all obligations of every
nature of Pledgor now or hereafter existing under this
Agreement.
SECTION 2. ESTABLISHMENT AND OPERATION OF COLLATERAL
ACCOUNT.
(a) Secured Party is hereby authorized to establish
and maintain at its office at _________________, as a blocked
account in the name of Secured Party and under the sole
dominion and control of Secured Party, a restricted deposit
account designated as "URS Corporation Collateral Account".
(b) The Collateral Account shall be operated in
accordance with the terms of this Agreement.
(c) All amounts at any time held in the Collateral
Account shall be beneficially owned by Pledgor but shall be
held in the name of Secured Party hereunder, for the benefit of
Lenders, as collateral security for the Secured Obligations
upon the terms and conditions set forth herein. Pledgor shall
have no right to withdraw, transfer or, except as expressly set
forth herein, otherwise receive any funds deposited into the
Collateral Account.
(d) Anything contained herein to the contrary
notwithstanding, the Collateral Account shall be subject to
such applicable laws, and such applicable regulations of the
Board of Governors of the Federal Reserve System and of any
other appropriate banking or governmental authority, as may now
or hereafter be in effect.
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SECTION 3. DEPOSITS OF CASH COLLATERAL.
(a) All deposits of funds in the Collateral Account
shall be made by wire transfer (or, if applicable, by intra-
bank transfer from another account of Pledgor) of immediately
available funds, in each case addressed as follows:
Account No.:
ABA No.:
Reference:
Attention:
Pledgor shall, promptly after initiating a transfer of funds to
the Collateral Account, give notice to Secured Party by
telefacsimile of the date, amount and method of delivery of
such deposit.
(b) If an Event of Default has occurred and is
continuing and, in accordance with Section 8 of the Credit
Agreement, Pledgor is required to pay to Secured Party an
amount (the "Aggregate Available Amount") equal to the maximum
amount that may at any time be drawn under all Letters of
Credit then outstanding under the Credit Agreement, Pledgor
shall deliver funds in such an amount for deposit in the
Collateral Account in accordance with Section 3(a) hereof. If
for any reason the aggregate amount delivered by Pledgor for
deposit in the Collateral Account as aforesaid is less than the
Aggregate Available Amount, the aggregate amount so delivered
by Pledgor shall be apportioned among all outstanding Letters
of Credit for purposes of this Section 3(b) in accordance with
the ratio of the maximum amount available for drawing under
each such Letter of Credit (as to such Letter of Credit, the
"Maximum Available Amount") to the Aggregate Available Amount.
Upon any drawing under any outstanding Letter of Credit in
respect of which Pledgor has deposited in the Collateral
Account any amounts described above, Secured Party shall apply
such amounts to reimburse the Issuing Lender for the amount of
such drawing. In the event of cancellation or expiration of
any Letter of Credit in respect of which Pledgor has deposited
in the Collateral Account any amounts described above, or in
the event of any reduction in the Maximum Available Amount
under such Letter of Credit, Secured Party shall apply the
amount then on deposit in the Collateral Account in respect of
such Letter of Credit (LESS, in the case of such a reduction,
the Maximum Available Amount under such Letter of Credit
immediately after such reduction) FIRST, to the payment of any
amounts payable to Secured Party pursuant to Section 13 hereof,
SECOND, to the extent of any excess, to the cash collateral-
ization pursuant to the terms of this Agreement of any
outstanding Letters of Credit in respect of which Pledgor has
failed to pay all or a portion of the amounts described above
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(such cash collateralization to be apportioned among all such
Letters of Credit in the manner described above), THIRD, to the
extent of any further excess, to the payment of any other
outstanding Secured Obligations in such order as Secured Party
shall elect, and FOURTH, to the extent of any further excess,
to the payment to whomsoever shall be lawfully entitled to
receive such funds.
SECTION 4. PLEDGE OF SECURITY FOR SECURED
OBLIGATIONS. Pledgor hereby pledges and assigns to Secured
Party, and hereby grants to Secured Party a security interest
in, all of Pledgor's right, title and interest in and to the
Collateral as collateral security for the prompt payment or
performance in full when due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or
otherwise (including the payment of amounts that would become
due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. sec. 362(a)), of all
Secured Obligations.
SECTION 5. NO INVESTMENT OF AMOUNTS IN THE
COLLATERAL ACCOUNT; INTEREST ON AMOUNTS IN THE COLLATERAL
ACCOUNT.
(a) Cash held by Secured Party in the Collateral
Account shall not be invested by Secured Party but instead
shall be maintained as a cash deposit in the Collateral Account
pending application thereof as elsewhere provided in this
Agreement.
(b) To the extent permitted under Regulation Q of
the Board of Governors of the Federal Reserve System, any cash
held in the Collateral Account shall bear interest at the
standard rate paid by Secured Party to its customers for
deposits of like amounts and terms.
(c) Subject to Secured Party's rights under Section
12 hereof, any interest earned on deposits of cash in the
Collateral Account in accordance with Section 5(b) hereof shall
be deposited directly in and held in the Collateral Account.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Pledgor
represents and warrants as follows:
(a) OWNERSHIP OF COLLATERAL. Pledgor is (or at the
time of transfer thereof to Secured Party will be) the legal
and beneficial owner of the Collateral from time to time
transferred by Pledgor to Secured Party, free and clear of any
Lien except as permitted by the Credit Agreement.
(b) GOVERNMENTAL AUTHORIZATIONS. No authorization,
approval or other action by, and no notice to or filing with,
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any governmental authority or regulatory body is required for
either (i) the grant by Pledgor of the security interest
granted hereby, (ii) the execution, delivery or performance of
this Agreement by Pledgor, or (iii) the perfection of or the
exercise by Secured Party of its rights and remedies hereunder
(except as may have been taken by or at the direction of
Pledgor).
(c) PERFECTION. The pledge and assignment of the
Collateral pursuant to this Agreement creates a valid and
perfected first priority security interest in the Collateral,
securing the payment of the Secured Obligations.
(d) OTHER INFORMATION. All information heretofore,
herein or hereafter supplied to Secured Party by or on behalf
of Pledgor with respect to the Collateral is accurate and
complete in all material respects.
SECTION 7. FURTHER ASSURANCES. Pledgor agrees that
from time to time, at the expense of Pledgor, Pledgor will
promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary
or desirable, or that Secured Party may reasonably request, in
order to perfect and protect any security interest granted or
purported to be granted hereby or to enable Secured Party to
exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of
the foregoing, Pledgor will: (a) execute and file such
financing or continuation statements, or amendments thereto,
and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may request, in order to perfect
and preserve the security interests granted or purported to be
granted hereby and (b) at Secured Party's request, appear in
and defend any action or proceeding that may affect Pledgor's
beneficial title to or Secured Party's security interest in all
or any part of the Collateral.
SECTION 8. TRANSFERS AND OTHER LIENS. Pledgor
agrees that it will not (a) sell, assign (by operation of law
or otherwise) or otherwise dispose of any of the Collateral or
(b) create or suffer to exist any Lien upon or with respect to
any of the Collateral, except as permitted by the Credit
Agreement.
SECTION 9. SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
Pledgor hereby irrevocably appoints Secured Party as Pledgor's
attorney-in-fact, with full authority in the place and stead of
Pledgor and in the name of Pledgor, Secured Party or otherwise,
from time to time in Secured Party's discretion to take any
action and to execute any instrument that Secured Party may
deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to file one or more
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financing or continuation statements, or amendments thereto,
relative to all or any part of the Collateral without the
signature of Pledgor.
SECTION 10. SECURED PARTY MAY PERFORM. If Pledgor
fails to perform any agreement contained herein, Secured Party
may itself perform, or cause performance of, such agreement,
and the expenses of Secured Party incurred in connection
therewith shall be payable by Pledgor under Section 13 hereof.
SECTION 11. STANDARD OF CARE. The powers conferred
on Secured Party hereunder are solely to protect its interest
in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the exercise of
reasonable care in the custody of any Collateral in its
possession and the accounting for moneys actually received by
it hereunder, Secured Party shall have no duty as to any
Collateral, it being understood that Secured Party shall have
no responsibility for (a) taking any necessary steps (other
than steps taken in accordance with the standard of care set
forth above to maintain possession of the Collateral) to
preserve rights against any parties with respect to any
Collateral or (b) taking any necessary steps to collect or
realize upon the Secured Obligations or any guarantee therefor,
or any part thereof, or any of the Collateral. Secured Party
shall be deemed to have exercised reasonable care in the
custody and preservation of Collateral in its possession if
such Collateral is accorded treatment substantially equal to
that which Secured Party accords its own property of like kind.
SECTION 12. REMEDIES. Subject to the provisions of
Section 3(b) hereof, Secured Party may exercise in respect of
the Collateral, in addition to all other rights and remedies
otherwise available to it, all the rights and remedies of a
secured party on default under the Uniform Commercial Code as
in effect in any relevant jurisdiction, as the same may be
supplemented from time to time (the "Code") (whether or not the
Code applies to the affected Collateral).
SECTION 13. INDEMNITY AND EXPENSES.
(a) Pledgor agrees to indemnify Secured Party and
each Lender from and against any and all claims, losses and
liabilities in any way relating to, growing out of or resulting
from this Agreement and the transactions contemplated hereby
(including, without limitation, enforcement of this Agreement),
except to the extent such claims, losses or liabilities result
solely from Secured Party's or such Lender's gross negligence
or willful misconduct as finally determined by a court of
competent jurisdiction.
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(b) Pledgor shall pay to Secured Party upon demand
the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and of any experts
and agents, that Secured Party may incur in connection with
(i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection
from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of
Secured Party hereunder, or (iv) the failure by Pledgor to
perform or observe any of the provisions hereof.
SECTION 14. CONTINUING SECURITY INTEREST; TRANSFER
OF LOANS. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force
and effect until the payment in full of the Secured
Obligations, the cancellation or termination of the Commitments
and the cancellation or expiration of all outstanding Letters
of Credit, (b) be binding upon Pledgor, its successors and
assigns, and (c) inure, together with the rights and remedies
of Secured Party hereunder, to the benefit of Secured Party and
its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the
provisions of subsection 10.1 of the Credit Agreement, any
Lender may assign or otherwise transfer any Loans held by it to
any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to
Lenders herein or otherwise. Upon the payment in full of all
Secured Obligations, the cancellation or termination of the
Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted
hereby shall terminate and all rights to the Collateral shall
revert to Pledgor. Upon any such termination Secured Party
shall, at Pledgor's expense, promptly execute and deliver to
Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the
return, upon its request and at its expense, against receipt
and without recourse to Secured Party, of such of the
Collateral as shall not have been otherwise applied pursuant to
the terms hereof.
SECTION 15. SECURED PARTY AS ADMINISTRATIVE AGENT.
(a) Secured Party has been appointed to act as
Secured Party hereunder by Lenders. Secured Party shall be
obligated, and shall have the right hereunder, to make demands,
to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action
(including, without limitation, the release or substitution of
Collateral), solely in accordance with this Agreement and the
Credit Agreement.
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(b) Secured Party shall at all times be the same
Person that is Administrative Agent under the Credit Agreement.
Written notice of resignation by Administrative Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute
notice of resignation as Secured Party under this Agreement;
removal of Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor
Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute appointment of a successor
Secured Party under this Agreement. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the
Credit Agreement by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring or removed Secured Party under this
Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured
Party all sums held by Secured Party hereunder (which shall be
deposited in a new Collateral Account established and
maintained by such successor Secured Party), together with all
records and other documents necessary or appropriate in
connection with the performance of the duties of the successor
Secured Party under this Agreement, and (ii) execute and
deliver to such successor Secured Party such amendments to
financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to
such successor Secured Party of the security interests created
hereunder, whereupon such retiring or removed Secured Party
shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Administrative
Agent's resignation or removal hereunder as Secured Party, the
provisions of this Agreement shall inure to its benefit as to
any actions taken or omitted to be taken by it under this
Agreement while it was Secured Party hereunder.
SECTION 16. AMENDMENTS; ETC. No amendment,
modification, termination or waiver of any provision of this
Agreement, and no consent to any departure by Pledgor
therefrom, shall in any event be effective unless the same
shall be in writing and signed by Secured Party and, in the
case of any such amendment or modification, by Pledgor. Any
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 17. NOTICES. Unless otherwise specifically
provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may
be personally served or sent by telefacsimile or United States
mail or courier service and shall be deemed to have been given
when delivered in person or by courier service, upon receipt of
telefacsimile or three Business Days after depositing it in the
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United States mail with postage prepaid and properly addressed.
For the purposes hereof, the address of each party hereto shall
be as set forth under such party's name on the signature pages
hereof or, as to either party, such other address as shall be
designated by such party in a written notice delivered to the
other party hereto.
SECTION 18. FAILURE OR INDULGENCE NOT WAIVER;
REMEDIES CUMULATIVE. No failure or delay on the part of
Secured Party in the exercise of any power, right or privilege
hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such
power, right or privilege preclude any other or further
exercise thereof or of any other power, right or privilege.
All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies
otherwise available.
SECTION 19. SEVERABILITY. In case any provision in
or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 20. HEADINGS. Section and subsection
headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive
effect.
SECTION 21. GOVERNING LAW; TERMS. THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
(INCLUDING, WITHOUT LIMITATION, SECTION 1646.5 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES
THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
CALIFORNIA. Unless otherwise defined herein or in the Credit
Agreement, terms used in Articles 8 and 9 of the Uniform
Commercial Code of the State of California are used herein as
therein defined.
SECTION 22. CONSENT TO JURISDICTION AND SERVICE OF
PROCESS. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN
ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
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AGREEMENT PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
Pledgor hereby agrees that service of all process in any such
proceeding in any such court may be made by registered or
certified mail, return receipt requested, to Pledgor at its
address provided in Section 17 hereof, such service being
hereby acknowledged by Pledgor to be sufficient for personal
jurisdiction in any action against Pledgor in any such court
and to be otherwise effective and binding service in every
respect. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the
right of Secured Party to bring proceedings against Pledgor in
the courts of any other jurisdiction.
SECTION 23. WAIVER OF JURY TRIAL. PLEDGOR AND
SECURED PARTY HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter
of this transaction, including without limitation contract
claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Pledgor and Secured Party
each acknowledge that this waiver is a material inducement for
Pledgor and Secured Party to enter into a business
relationship, that Pledgor and Secured Party have already
relied on this waiver in entering into this Agreement and that
each will continue to rely on this waiver in their related
future dealings. Pledgor and Secured Party further warrant and
represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 23 AND EXECUTED
BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. In the event of litigation,
this Agreement may be filed as a written consent to a trial by
the court.
SECTION 24. COUNTERPARTS. This Agreement may be
executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
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that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, Pledgor and Secured Party have
caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the
date first written above.
URS CORPORATION, as Pledgor
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
Fax:_____________________________
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative
Agent, as Secured Party
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
Fax:_____________________________
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EXHIBIT XIII
[FORM OF COMPANY PLEDGE AGREEMENT]
COMPANY PLEDGE AGREEMENT
This COMPANY PLEDGE AGREEMENT (this "Agreement") is
dated as of January 10, 1996 and entered into by and between
URS CORPORATION, a Delaware corporation ("Pledgor"), and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent on
behalf of the Lenders party to the Credit Agreement referred to
below (in such capacity herein called "Secured Party").
PRELIMINARY STATEMENTS
A. Pledgor is the legal and beneficial owner of
(i) the shares of stock (the "Pledged Shares") described in
Part A of Schedule I annexed hereto and issued by the
----------
corporations named therein and (ii) the intercompany
indebtedness arising from the transfer of the proceeds of the
Term Loans and the Initial Revolving Loans (the "Pledged Debt")
described in Part B of said Schedule I.
----------
B. Secured Party and Lenders have entered into a
Credit Agreement dated as of January 10, 1996 (said Credit
Agreement, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined) with Pledgor
pursuant to which Lenders have made certain commitments,
subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Pledgor.
C. It is a condition precedent to the initial
extensions of credit by Lenders under the Credit Agreement that
Pledgor shall have granted the security interests and
undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and
in order to induce Lenders to make Loans and other extensions
of credit under the Credit Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Pledgor hereby agrees with Secured Party
as follows:
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SECTION 1. PLEDGE OF SECURITY. Pledgor hereby
pledges and assigns to Secured Party, and hereby grants to
Secured Party a security interest in, all of Pledgor's right,
title and interest in and to the following (the "Pledged
Collateral"):
(a) the Pledged Shares and the certificates
representing the Pledged Shares and any interest of Pledgor in
the entries on the books of any financial intermediary
pertaining to the Pledged Shares, and all dividends, cash,
warrants, rights, instruments and other property or proceeds
from time to time received, receivable or otherwise distrib-
uted in respect of or in exchange for any or all of the Pledged
Shares;
(b) the Pledged Debt and the instruments evidencing
the Pledged Debt, and all interest, cash, instruments and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the Pledged Debt;
(c) all additional shares of, and all securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock of any issuer of the
Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged
Shares) to the extent necessary to cause the Pledged Shares to
include 100% of the shares of, and 100% of the securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock held by Pledgor of any
issuer of the Pledged Shares that is a Domestic Subsidiary of
Pledgor and the lesser of 100% of the shares of, and 100% of
the securities convertible into and warrants, options and other
rights to purchase or otherwise acquire, stock held by Pledgor
or 65% of the shares of, and 65% of the securities convertible
into and warrants, options and other rights to purchase or
otherwise acquire, stock of any issuer of the Pledged Shares
that is a Foreign Subsidiary of Pledgor, the certificates or
other instruments representing such additional shares,
securities, warrants, options or other rights and any interest
of Pledgor in the entries on the books of any financial
intermediary pertaining to such additional shares, and all
dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of such additional shares, securities, warrants, options or
other rights;
(d) if required pursuant to the Credit Agreement,
all additional indebtedness from time to time owed to Pledgor
by any obligor on the Pledged Debt and the instruments
evidencing such indebtedness, and all interest, cash,
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instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect or in
exchange for any or all of such indebtedness;
(e) if required pursuant to the Credit Agreement,
(i) 100% of the shares of, and 100% of the securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock held by Pledgor of any
Person that, after the date of this Agreement, becomes, as a
result of any occurrence, a direct Domestic Subsidiary of
Pledgor (which shares shall be deemed to be part of the Pledged
Shares), and (ii) the lesser of 100% of the shares of, and 100%
of the securities convertible into and warrants, options and
other rights to purchase or otherwise acquire, stock held by
Pledgor of or 65% of the shares of, and 65% of the securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock of any Person that, after
the date of this Agreement, becomes as a result of any
occurrence a direct Foreign Subsidiary of Pledgor (which shares
shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such shares,
securities, warrants, options or other rights and any interest
of Pledgor in the entries on the books of any financial
intermediary pertaining to such shares, and all dividends,
cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
shares, securities, warrants, options or other rights; provided
that in no event shall more than 65% of the shares of any
Foreign Subsidiary of Pledgor be pledged to Secured Party under
this Agreement or any other Loan Document; and
(f) to the extent not covered by clauses (a) through
(e) above, all proceeds of any or all of the foregoing Pledged
Collateral. For purposes of this Agreement, the term
"proceeds" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected
or otherwise disposed of, whether such disposition is voluntary
or involuntary, and includes, without limitation, proceeds of
any indemnity or guaranty payable to Pledgor or Secured Party
from time to time with respect to any of the Pledged
Collateral.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement
secures, and the Pledged Collateral is collateral security for,
the prompt payment or performance in full when due, whether at
stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of
amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. sec. 362(a)), of all obligations and liabilities of
every nature of Pledgor now or hereafter existing under or
XIII-3
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arising out of or in connection with the Credit Agreement and
the other Loan Documents and all extensions or renewals
thereof, whether for principal, interest (including, without
limitation, interest that, but for the filing of a petition in
bankruptcy with respect to Pledgor, would accrue on such
obligations, whether or not a claim is allowed against Pledgor
for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, fees,
expenses, indemnities or otherwise, whether voluntary or
involuntary, direct or indirect, absolute or contingent,
liquidated or unliquidated, whether or not jointly owed with
others, and whether or not from time to time decreased or
extinguished and later increased, created or incurred, and all
or any portion of such obligations or liabilities that are
paid, to the extent all or any part of such payment is avoided
or recovered directly or indirectly from Secured Party or any
Lender as a preference, fraudulent transfer or otherwise, and
all obligations of every nature of Pledgor now or hereafter
existing under this Agreement (all such obligations of Pledgor
being the "Secured Obligations").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All
certificates or instruments representing or evidencing the
Pledged Collateral shall be delivered to and held by or on
behalf of Secured Party pursuant hereto and shall be in
suitable form for transfer by delivery or, as applicable, shall
be accompanied by Pledgor's endorsement, where necessary, or
duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to Secured Party. Upon
the occurrence and during the continuance of an Event of
Default (as defined in the Credit Agreement), Secured Party
shall have the right, without notice to Pledgor, to transfer to
or to register in the name of Secured Party or any of its
nominees any or all of the Pledged Collateral, subject only to
the revocable rights specified in Section 7(a). In addition,
Secured Party shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger
denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor
represents and warrants as follows:
(a) DUE AUTHORIZATION, ETC. OF PLEDGED COLLATERAL.
All of the Pledged Shares have been duly authorized and validly
issued and are fully paid and non-assessable. All of the
Pledged Debt has been duly authorized, authenticated or issued,
and delivered and is the legal, valid and binding obligation of
the issuers thereof and is not in default.
(b) DESCRIPTION OF PLEDGED COLLATERAL. The Pledged
Shares constitute 100% of the issued and outstanding shares of
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stock held by Pledgor of each issuer thereof that is a Domestic
Subsidiary of Pledgor and the lesser of 100% of the issued and
outstanding shares of stock held by Pledgor or that number of
the issued and outstanding shares of stock held by Pledgor
which, together with any other shares of stock of such issuer
pledged to Secured Party under this Agreement or any other Loan
Document, is equal to 65% of the issued and outstanding shares
of stock of each issuer thereof that is a Foreign Subsidiary of
Pledgor, and there are no outstanding warrants, options or
other rights to purchase, or other agreements outstanding with
respect to, or property that is now or hereafter convertible
into, or that requires the issuance or sale of, any Pledged
Shares. The Pledged Debt constitutes all of the issued and
outstanding intercompany indebtedness evidenced by a promissory
note of the issuer thereof to Pledgor and arising from any
transfer of the proceeds of the Term Loans and the Initial
Revolving Loans.
(c) OWNERSHIP OF PLEDGED COLLATERAL. Pledgor is the
legal, record and beneficial owner of the Pledged Collateral
free and clear of any Lien except as permitted by the Credit
Agreement.
SECTION 5. TRANSFERS AND OTHER LIENS; ADDITIONAL
PLEDGED COLLATERAL; ETC. Pledgor shall:
(a) not, except as expressly permitted by the Credit
Agreement, (i) sell, assign (by operation of law or otherwise)
or otherwise dispose of, or grant any option with respect to,
any of the Pledged Collateral, (ii) create or suffer to exist
any Lien upon or with respect to any of the Pledged Collateral,
except as permitted by the Credit Agreement, or (iii) permit
any issuer of Pledged Shares to merge or consolidate unless
that percentage of the outstanding capital stock of the
surviving or resulting corporation equal to the percentage of
shares of such issuer set forth opposite the name of such
issuer on Schedule I annexed hereto is, upon such merger or
----------
consolidation, pledged hereunder and no cash, securities or
other property is distributed in respect of the outstanding
shares of any other constituent corporation; PROVIDED that in
the event Pledgor makes an Asset Sale permitted by the Credit
Agreement and the assets subject to such Asset Sale are Pledged
Shares, Secured Party shall release the Pledged Shares that are
the subject of such Asset Sale to Pledgor free and clear of the
lien and security interest under this Agreement concurrently
with the consummation of such Asset Sale; PROVIDED, FURTHER
that, as a condition precedent to such release, Secured Party
shall have received evidence satisfactory to it that
arrangements satisfactory to it have been made for delivery to
Secured Party of the Net Asset Sale Proceeds of such Asset
Sale;
XIII-5
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(b) (i) cause each issuer of Pledged Shares not to
issue any stock or other securities in addition to or in
substitution for the Pledged Shares issued by such issuer,
except to Pledgor or to licensed professionals employed by
Pledgor in order to comply with state licensing laws,
(ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional shares
of stock or other securities of each issuer of Pledged Shares
to the extent necessary to cause the percentage of shares of
such issuer pledged hereunder to equal the percentage of shares
set forth opposite the name of such issuer on Schedule I
----------
annexed hereto, and (iii) pledge hereunder, if required
pursuant to the Credit Agreement, immediately upon its
acquisition (directly or indirectly) thereof, 100% of the
shares of stock of any Person held by Pledgor that, after the
date of this Agreement, becomes, as a result of any occurrence,
a direct Domestic Subsidiary of Pledgor and the lesser of 100%
of the shares of stock held by Pledgor of or 65% of the shares
of stock of any Person that, after the date of this Agreement,
becomes, as a result of any occurrence, a direct Foreign
Subsidiary of Pledgor; provided that in no event shall more
than 65% of the shares of any Foreign Subsidiary of Pledgor be
pledged to Secured Party under this Agreement or any other Loan
Document;
(c) if required pursuant to the Credit Agreement,
(i) pledge hereunder, immediately upon their issuance, any and
all instruments or other evidences of additional indebtedness
from time to time owed to Pledgor by any obligor on the Pledged
Debt, and (ii) pledge hereunder, immediately upon their
issuance, any and all instruments or other evidences of
indebtedness from time to time owed to Pledgor by any Person
that after the date of this Agreement becomes, as a result of
any occurrence, a direct or indirect Subsidiary of Pledgor;
(d) promptly notify Secured Party of any event of
which Pledgor becomes aware causing a material loss or
depreciation in the value of the Pledged Collateral;
(e) promptly deliver to Secured Party all written
notices received by it with respect to the Pledged Collateral;
and
(f) pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon, and all claims
against, the Pledged Collateral, except to the extent the
validity thereof is being contested in good faith; PROVIDED
that Pledgor shall in any event pay such taxes, assessments,
charges, levies or claims not later than five days prior to the
date of any proposed sale under any judgement, writ or warrant
XIII-6
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of attachment entered or filed against Pledgor or any of the
Pledged Collateral as a result of the failure to make such
payment.
SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Pledgor agrees that from time to time, at the
expense of Pledgor, Pledgor will promptly execute and deliver
all further instruments and documents, and take all further
action, that may be necessary or desirable, or that Secured
Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby
or to enable Secured Party to exercise and enforce its rights
and remedies hereunder with respect to any Pledged Collateral.
Without limiting the generality of the foregoing, Pledgor will:
(i) execute and file such financing or continuation statements,
or amendments thereto, and such other instruments or notices,
as may be necessary or desirable, or as Secured Party may
reasonably request, in order to perfect and preserve the
security interests granted or purported to be granted hereby
and (ii) at Secured Party's request, appear in and defend any
action or proceeding that may affect Pledgor's title to or
Secured Party's security interest in all or any part of the
Pledged Collateral.
(b) Pledgor further agrees that it will, upon
obtaining any additional shares of stock or other securities
required to be pledged hereunder as provided in Section 5(b) or
(c), promptly (and in any event within five Business Days)
deliver to Secured Party a Pledge Amendment, duly executed by
Pledgor, in substantially the form of Schedule II annexed
-----------
hereto (a "Pledge Amendment"), in respect of the additional
Pledged Shares or Pledged Debt to be pledged pursuant to this
Agreement. Pledgor hereby authorizes Secured Party to attach
each Pledge Amendment to this Agreement and agrees that all
Pledged Shares or Pledged Debt listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be
considered Pledged Collateral; PROVIDED that the failure of
Pledgor to execute a Pledge Amendment with respect to any
additional Pledged Shares or Pledged Debt pledged pursuant to
this Agreement shall not impair the security interest of
Secured Party therein or otherwise adversely affect the rights
and remedies of Secured Party hereunder with respect thereto.
SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have
occurred and be continuing:
(i) Pledgor shall be entitled to exercise any
and all voting and other consensual rights pertaining to
XIII-7
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the Pledged Collateral or any part thereof for any purpose
not inconsistent with the terms of this Agreement or the
Credit Agreement; PROVIDED, HOWEVER, that Pledgor shall
not exercise or refrain from exercising any such right if
Secured Party shall have notified Pledgor in writing that,
in Secured Party's reasonable judgment, such action would
have a material adverse effect on the value of the Pledged
Collateral or any part thereof; and PROVIDED, FURTHER,
that Pledgor shall give Secured Party at least five
Business Days' prior written notice of the manner in which
it intends to exercise, or the reasons for refraining from
exercising, any such right. It is understood, however,
that neither (A) the voting by Pledgor of any Pledged
Shares for or Pledgor's consent to the election of
directors either by written consent or at a regularly
scheduled annual or other meeting of stockholders or with
respect to incidental matters at any such meeting nor
(B) Pledgor's consent to or approval of any action
otherwise permitted under this Agreement and the Credit
Agreement shall be deemed inconsistent with the terms of
this Agreement or the Credit Agreement within the meaning
of this Section 7(a)(i), and no notice of any such voting
or consent need be given to Secured Party;
(ii) Pledgor shall be entitled to receive and
retain, and to utilize free and clear of the lien of this
Agreement, any and all dividends and interest paid in
respect of the Pledged Collateral; PROVIDED, HOWEVER, that
except as permitted by the Credit Agreement any and all
(A) dividends and interest paid or payable
other than in cash in respect of, and instruments and
other property received, receivable or otherwise
distributed in respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other distributions paid
or payable in cash in respect of any Pledged
Collateral in connection with a partial or total
liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-
surplus, and
(C) cash paid, payable or otherwise
distributed in respect of principal or in redemption
of or in exchange for any Pledged Collateral,
shall be, and shall forthwith be delivered to Secured
Party to hold as Pledged Collateral and shall, if received
by Pledgor, be received in trust for the benefit of
Secured Party, be segregated from the other property or
funds of Pledgor and be forthwith delivered to Secured
XIII-8
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Party as Pledged Collateral in the same form as so
received (with all necessary indorsements); and
(iii) Secured Party shall promptly execute and
deliver (or cause to be executed and delivered) to Pledgor
all such proxies, dividend payment orders and other
instruments as Pledgor may from time to time reasonably
request for the purpose of enabling Pledgor to exercise
the voting and other consensual rights which it is
entitled to exercise pursuant to paragraph (i) above and
to receive the dividends, principal or interest payments
which it is authorized to receive and retain pursuant to
paragraph (ii) above.
(b) Upon the occurrence and during the continuation
of an Event of Default:
(i) upon written notice from Secured Party to
Pledgor, all rights of Pledgor to exercise the voting and
other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 7(a)(i) shall
cease, and all such rights shall thereupon become vested
in Secured Party who shall thereupon have the sole right
to exercise such voting and other consensual rights;
(ii) all rights of Pledgor to receive the
dividends and interest payments which it would otherwise
be authorized to receive and retain pursuant to Section
7(a)(ii) shall cease, and all such rights shall thereupon
become vested in Secured Party who shall thereupon have
the sole right to receive and hold as Pledged Collateral
such dividends and interest payments; and
(iii) all dividends, principal and interest pay-
ments which are received by Pledgor contrary to the
provisions of paragraph (ii) of this Section 7(b) shall be
received in trust for the benefit of Secured Party, shall
be segregated from other funds of Pledgor and shall
forthwith be paid over to Secured Party as Pledged
Collateral in the same form as so received (with any
necessary indorsements).
(c) In order to permit Secured Party to exercise the
voting and other consensual rights which it may be entitled to
exercise pursuant to Section 7(b)(i) and to receive all
dividends and other distributions which it may be entitled to
receive under Section 7(a)(ii) or Section 7(b)(ii), (i) Pledgor
shall promptly execute and deliver (or cause to be executed and
delivered) to Secured Party all such proxies, dividend payment
orders and other instruments as Secured Party may from time to
time reasonably request and (ii) without limiting the effect of
the immediately preceding clause (i), Pledgor hereby grants to
XIII-9
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Secured Party an irrevocable proxy to vote the Pledged Shares
and to exercise all other rights, powers, privileges and
remedies to which a holder of the Pledged Shares would be
entitled (including, without limitation, giving or withholding
written consents of shareholders, calling special meetings of
shareholders and voting at such meetings), which proxy shall be
effective, automatically and without the necessity of any
action (including any transfer of any Pledged Shares on the
record books of the issuer thereof) by any other Person
(including the issuer of the Pledged Shares or any officer or
agent thereof), upon the occurrence and during the continuance
of an Event of Default and which proxy shall only terminate
upon the payment in full of the Secured Obligations.
SECTION 8. SECURED PARTY APPOINTED ATTORNEY-IN-
FACT. Pledgor hereby irrevocably appoints Secured Party as
Pledgor's attorney-in-fact, with full authority in the place
and stead of Pledgor and in the name of Pledgor, Secured Party
or otherwise, from time to time in Secured Party's discretion
to take any action and to execute any instrument that Secured
Party may deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation:
(a) to file one or more financing or continuation
statements, or amendments thereto, relative to all or any part
of the Pledged Collateral without the signature of Pledgor;
(b) to ask, demand, collect, sue for, recover,
compound, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of the Pledged
Collateral;
(c) to receive, endorse and collect any instruments
made payable to Pledgor representing any dividend, principal or
interest payment or other distribution in respect of the
Pledged Collateral or any part thereof and to give full
discharge for the same; and
(d) to file any claims or take any action or
institute any proceedings that Secured Party may deem necessary
or desirable for the collection of any of the Pledged
Collateral or otherwise to enforce the rights of Secured Party
with respect to any of the Pledged Collateral.
SECTION 9. SECURED PARTY MAY PERFORM. If Pledgor
fails to perform any agreement contained herein, Secured Party
may itself perform, or cause performance of, such agreement,
and the expenses of Secured Party incurred in connection
therewith shall be payable by Pledgor under subsection 10.2 of
the Credit Agreement.
XIII-10
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SECTION 10. STANDARD OF CARE. The powers conferred
on Secured Party hereunder are solely to protect its interest
in the Pledged Collateral and shall not impose any duty upon it
to exercise any such powers. Except for the exercise of
reasonable care in the custody of any Pledged Collateral in its
possession and the accounting for moneys actually received by
it hereunder, Secured Party shall have no duty as to any
Pledged Collateral, it being understood that Secured Party
shall have no responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to any Pledged
Collateral, whether or not Secured Party has or is deemed to
have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care
set forth above to maintain possession of the Pledged
Collateral) to preserve rights against any parties with respect
to any Pledged Collateral, (c) taking any necessary steps to
collect or realize upon the Secured Obligations or any
guarantee therefor, or any part thereof, or any of the Pledged
Collateral, or (d) initiating any action to protect the Pledged
Collateral against the possibility of a decline in market
value. Secured Party shall be deemed to have exercised
reasonable care in the custody and preservation of Pledged
Collateral in its possession if such Pledged Collateral is
accorded treatment substantially equal to that which Secured
Party accords its own property consisting of negotiable
securities.
SECTION 11. REMEDIES.
(a) If any Event of Default shall have occurred and
be continuing, Secured Party may exercise in respect of the
Pledged Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the
Uniform Commercial Code as in effect in any relevant
jurisdiction (the "Code") (whether or not the Code applies to
the affected Pledged Collateral), and Secured Party may also in
its sole discretion, without notice except as specified below,
sell the Pledged Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange or broker's
board or at any of Secured Party's offices or elsewhere, for
cash, on credit or for future delivery, at such time or times
and at such price or prices and upon such other terms as
Secured Party may deem commercially reasonable, irrespective of
the impact of any such sales on the market price of the Pledged
Collateral. Secured Party or any Lender may be the purchaser
of any or all of the Pledged Collateral at any such sale and
Secured Party, as agent for and representative of Lenders (but
not any Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders shall otherwise agree in
writing), shall be entitled, for the purpose of bidding and
XIII-11
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making settlement or payment of the purchase price for all or
any portion of the Pledged Collateral sold at any such public
sale, to use and apply any of the Secured Obligations as a
credit on account of the purchase price for any Pledged
Collateral payable by Secured Party at such sale. Each
purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Pledgor,
and Pledgor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten days' notice to Pledgor of the
time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable
notification. Secured Party shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having
been given. Secured Party may adjourn any public or private
sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
Pledgor hereby waives any claims against Secured Party arising
by reason of the fact that the price at which any Pledged
Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale,
even if Secured Party accepts the first offer received and does
not offer such Pledged Collateral to more than one offeree. If
the proceeds of any sale or other disposition of the Pledged
Collateral are insufficient to pay all the Secured Obliga-
tions, Pledgor shall be liable for the deficiency and the fees
of any attorneys employed by Secured Party to collect such
deficiency.
(b) Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable
state securities laws, Secured Party may be compelled, with
respect to any sale of all or any part of the Pledged
Collateral conducted without prior registration or qualifica-
tion of such Pledged Collateral under the Securities Act and/or
such state securities laws, to limit purchasers to those who
will agree, among other things, to acquire the Pledged
Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. Pledgor
acknowledges that any such private sales may be at prices and
on terms less favorable than those obtainable through a public
sale without such restrictions (including, without limitation,
a public offering made pursuant to a registration statement
under the Securities Act) and, notwithstanding such circum-
stances, Pledgor agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner
and that Secured Party shall have no obligation to engage in
public sales and no obligation to delay the sale of any Pledged
XIII-12
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Collateral for the period of time necessary to permit the
issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would,
agree to so register it.
(c) If Secured Party determines to exercise its
right to sell any or all of the Pledged Collateral, upon
written request, Pledgor shall and shall cause each issuer of
any Pledged Shares to be sold hereunder from time to time to
furnish to Secured Party all such information as Secured Party
may reasonably request in order to determine the number of
shares and other instruments included in the Pledged Collateral
which may be sold by Secured Party in exempt transactions under
the Securities Act and the rules and regulations of the
Securities and Exchange Commission thereunder, as the same are
from time to time in effect.
SECTION 12. APPLICATION OF PROCEEDS. Except as
expressly provided in the Credit Agreement with respect to
Asset Sales, all proceeds received by Secured Party in respect
of any sale of, collection from, or other realization upon all
or any part of the Pledged Collateral may, in the discretion of
Secured Party, be held by Secured Party as Pledged Collateral
for, and/or then, or at any time thereafter, applied in full or
in part by Secured Party against, the Secured Obligations in
the following order of priority:
(a) To the payment of costs and expenses of such
sale, collection or other realization, including
reasonable compensation to Secured Party and its agents
and counsel, and all other expenses, liabilities and
advances made or incurred by Secured Party in connection
therewith, and all amounts for which Secured Party is
entitled to indemnification hereunder and all advances
made by Secured Party hereunder for the account of
Pledgor, and to the payment of all costs and expenses paid
or incurred by Secured Party in connection with the
exercise of any right or remedy hereunder, all in
accordance with this Agreement, the Credit Agreement and
the other Loan Documents;
(b) Thereafter, to the extent of any excess such
proceeds, to the payment of all other Secured Obligations
for the ratable benefit of the holders thereof; and
(c) Thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of Pledgor,
or to whosoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
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SECTION 13. CONTINUING SECURITY INTEREST; TRANSFER
OF LOANS. This Agreement shall create a continuing security
interest in the Pledged Collateral and shall (a) remain in full
force and effect until the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments
and the cancellation or expiration of all outstanding Letters
of Credit, (b) be binding upon Pledgor, its successors and
assigns, and (c) inure, together with the rights and remedies
of Secured Party hereunder, to the benefit of Secured Party and
its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the
provisions of subsection 10.1 of the Credit Agreement, any
Lender may assign or otherwise transfer any Loans held by it to
any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to
Lenders herein or otherwise. Upon the payment in full of all
Secured Obligations, the cancellation or termination of the
Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted
hereby shall terminate and all rights to the Pledged Collateral
shall revert to Pledgor. Upon any such termination Secured
Party will, at Pledgor's expense, execute and deliver to
Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the
return, upon its request and at its expense, against receipt
and without recourse to Secured Party, of such of the Pledged
Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof.
SECTION 14. SECURED PARTY AS ADMINISTRATIVE AGENT.
(a) Secured Party has been appointed to act as
Secured Party hereunder by Lenders. Secured Party shall be
obligated, and shall have the right hereunder, to make demands,
to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action
(including, without limitation, the release or substitution of
Pledged Collateral), solely in accordance with this Agreement
and the Credit Agreement; PROVIDED that Secured Party shall
exercise, or refrain from exercising, any remedies provided for
in Section 11 in accordance with the instructions of Requisite
Lenders or all Lenders, as the case may be.
(b) Secured Party shall at all times be the same
Person that is Administrative Agent under the Credit Agreement.
Written notice of resignation by Administrative Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute
notice of resignation as Secured Party under this Agreement;
removal of Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor
Administrative Agent pursuant to subsection 9.5 of the Credit
XIII-14
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Agreement shall also constitute appointment of a successor
Secured Party under this Agreement. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the
Credit Agreement by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring or removed Secured Party under this
Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured
Party all sums, securities and other items of Collateral held
hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of
the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party
such amendments to financing statements, and take such other
actions, as may be necessary or appropriate in connection with
the assignment to such successor Secured Party of the security
interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and
obligations under this Agreement. After any retiring or
removed Administrative Agent's resignation or removal hereunder
as Secured Party, the provisions of this Agreement shall inure
to its benefit as to any actions taken or omitted to be taken
by it under this Agreement while it was Secured Party
hereunder.
SECTION 15. AMENDMENTS; ETC. No amendment,
modification, termination or waiver of any provision of this
Agreement, and no consent to any departure by Pledgor
therefrom, shall in any event be effective unless the same
shall be in writing and signed by Secured Party and, in the
case of any such amendment or modification, by Pledgor. Any
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 16. NOTICES. Any notice or other
communication herein required or permitted to be given shall be
in writing and may be personally served or sent by tele-
facsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by
courier service, upon receipt of telefacsimile or three
Business Days after depositing it in the United States mail
with postage prepaid and properly addressed. For the purposes
hereof, the address of each party hereto shall be as provided
in subsection 10.8 of the Credit Agreement.
SECTION 17. SEVERABILITY. In case any provision in
or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
XIII-15
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SECTION 18. HEADINGS. Section and subsection
headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive
effect. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement
unless otherwise specifically provided.
SECTION 19. GOVERNING LAW; TERMS. THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
(INCLUDING, WITHOUT LIMITATION, SECTION 1646.5 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES
THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF CALIFORNIA. Unless otherwise defined herein
or in the Credit Agreement, terms used in Articles 8 and 9 of
the Uniform Commercial Code of the State of California are used
herein as therein defined.
SECTION 20. COUNTERPARTS. This Agreement may be
executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank]
XIII-16
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IN WITNESS WHEREOF, Pledgor and Secured Party have
caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the
date first written above.
URS CORPORATION, as Pledgor
By:______________________________
Name:____________________________
Title:___________________________
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative
Agent, as Secured Party
By:______________________________
Name:____________________________
Title:___________________________
XIII-S-1
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SCHEDULE I
Attached to and forming a part of the Pledge
Agreement dated as of January 10, 1996 between URS Corporation,
as Pledgor, and Wells Fargo Bank, National Association, as
Administrative Agent, as Secured Party.
Part A
Percent-
Stock age of
Certi- Number Out-
Stock Class of ficate Par of standing
Issuer Stock Nos. Value Shares Shares
------ -------- ------ ------ ------- --------
Part B
Debt Issuer Amount of Indebtedness
----------- ----------------------
XIII-I-1
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SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ___________, 199_, is
delivered pursuant to Section 6(b) of the Pledge Agreement
referred to below. The undersigned hereby agrees that this
Pledge Amendment may be attached to the Pledge Agreement dated
January 10, 1996, between the undersigned and Wells Fargo Bank,
National Association, as Administrative Agent, as Secured Party
(the "Pledge Agreement," capitalized terms defined therein
being used herein as therein defined), and that the Pledged
Shares listed on this Pledge Amendment shall be deemed to be
part of the Pledged Shares and shall become part of the Pledged
Collateral and shall secure all Secured Obligations.
URS CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
Percent-
Stock age of
Certi- Number Out-
Stock Class of ficate Par of standing
Issuer Stock Nos. Value Shares Shares
------ -------- ------ ------ ------- --------
Debt Issuer Amount of Indebtedness
----------- ----------------------
XIII-II-1
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EXHIBIT XIV
[FORM OF COMPANY SECURITY AGREEMENT]
COMPANY SECURITY AGREEMENT
This COMPANY SECURITY AGREEMENT (this "Agreement") is
dated as of January 10, 1996 and entered into by and between
URS CORPORATION, a Delaware corporation ("Grantor"), and WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent on
behalf of the Lenders party to the Credit Agreement referred to
below (in such capacity herein called "Secured Party").
PRELIMINARY STATEMENTS
A. Secured Party and Lenders have entered into a
Credit Agreement dated as of January 10, 1996 (said Credit
Agreement, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined) with Grantor
pursuant to which Lenders have made certain commitments,
subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Grantor.
B. It is a condition precedent to the initial
extensions of credit by Lenders under the Credit Agreement that
Grantor shall have granted the security interests and
undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and
in order to induce Lenders to make Loans and other extensions
of credit under the Credit Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Grantor hereby agrees with Secured Party
as follows:
SECTION 1. GRANT OF SECURITY. Grantor hereby
assigns to Secured Party, and hereby grants to Secured Party a
security interest in, all of Grantor's right, title and
interest in and to the following, in each case whether now or
hereafter existing or in which Grantor now has or hereafter
acquires an interest and wherever the same may be located (the
"Collateral"):
(a) all inventory in all of its forms (including,
but not limited to, (i) all goods held by Grantor for sale or
lease or to be furnished under contracts of service or so
leased or furnished, (ii) all raw materials, work in process,
XIV-1
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finished goods, and materials used or consumed in the
manufacture, packing, shipping, advertising, selling, leasing,
furnishing or production of such inventory or otherwise used or
consumed in Grantor's business, (iii) all goods in which
Grantor has an interest in mass or a joint or other interest or
right of any kind, and (iv) all goods which are returned to or
repossessed by Grantor and all accessions thereto and products
thereof (all such inventory, accessions and products being the
"Inventory") and all negotiable documents of title (including,
without limitation, warehouse receipts, dock receipts and bills
of lading) issued by any Person covering any Inventory;
(b) all accounts, accounts receivable, chattel
paper, documents, instruments, general intangibles and other
rights and obligations of any kind and all rights in, to and
under all guaranties, warranties, indemnity agreements,
insurance policies, security agreements, leases and other
contracts securing or otherwise relating to any such accounts,
accounts receivable, chattel paper, documents, instruments,
general intangibles or other obligations (any and all such
accounts, accounts receivable, chattel paper, documents,
instruments, general intangibles and other rights and
obligations being the "Accounts", and any and all such
guaranties, warranties, indemnity agreements, insurance
policies, security agreements, leases and other contracts being
the "Related Contracts");
(c) all deposit accounts, including, without
limitation, the deposit accounts listed on Schedule I annexed
----------
hereto and all other deposit accounts maintained by Grantor;
(d) all trademarks, tradenames, tradesecrets,
business names, patents, patent applications, licenses,
copyrights, registrations and franchise rights, and all
goodwill associated with any of the foregoing;
(e) to the extent not included in any other
paragraph of this Section 1, all other general intangibles
(including, without limitation, tax refunds, rights to payment
or performance, choses in action and judgments taken on any
rights or claims included in the Collateral);
(f) all books, records, ledger cards, files,
correspondence, computer programs, tapes, disks and related
data processing software that at any time evidence or contain
information relating to any of the Collateral or are otherwise
necessary or helpful in the collection thereof or realization
thereupon; and
(g) all proceeds, and profits of or from any and all
of the foregoing Collateral and, to the extent not otherwise
XIV-2
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included, all payments under insurance (whether or not Secured
Party is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise
with respect to any of the foregoing Collateral;
PROVIDED, HOWEVER, that there shall be excluded from Collateral
all (i) equipment, (ii) leasehold improvements, (iii) furni-
ture, (iv) fixtures, (v) software, and (vi) other tangible
personal property, in each case, not otherwise specifically
included in this Section 1. For purposes of this Agreement,
the term "proceeds" includes whatever is receivable or received
when Collateral or proceeds are sold, leased, exchanged,
collected or otherwise disposed of, whether such disposition is
voluntary or involuntary, including, without limitation, all
Accounts, including returned premiums, with respect to any
insurance relating to any of the foregoing, and all Accounts
with respect to any cause of action relating to any of the
foregoing.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement
secures, and the Collateral is collateral security for, the
prompt payment or performance in full when due, whether at
stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of
amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. sec. 362(a)), of all obligations and liabilities of
every nature of Grantor now or hereafter existing under or
arising out of or in connection with the Credit Agreement and
the other Loan Documents and all extensions or renewals
thereof, whether for principal, interest (including, without
limitation, interest that, but for the filing of a petition in
bankruptcy with respect to Grantor, would accrue on such
obligations), reimbursement of amounts drawn under Letters of
Credit, fees, expenses, indemnities or otherwise, whether
voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly
owed with others, and whether or not from time to time
decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of
such payment is avoided or recovered directly or indirectly
from Secured Party or any Lender as a preference, fraudulent
transfer or otherwise and all obligations of every nature of
Grantor now or hereafter existing under this Agreement (all
such obligations of Grantor being the "Secured Obligations").
SECTION 3. GRANTOR REMAINS LIABLE. Anything
contained herein to the contrary notwithstanding, (a) Grantor
shall remain liable under any contracts and agreements included
in the Collateral, to the extent set forth therein, to perform
all of its duties and obligations thereunder to the same extent
XIV-3
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as if this Agreement had not been executed, (b) the exercise by
Secured Party of any of its rights hereunder shall not release
Grantor from any of its duties or obligations under the
contracts and agreements included in the Collateral, and
(c) Secured Party shall not have any obligation or liability
under any contracts and agreements included in the Collateral
by reason of this Agreement, nor shall Secured Party be
obligated to perform any of the obligations or duties of
Grantor thereunder or to take any action to collect or enforce
any claim for payment assigned hereunder.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Grantor
represents and warrants as follows:
(a) OWNERSHIP OF COLLATERAL. Except for the
security interest created by this Agreement, Grantor owns the
Collateral free and clear of any Lien.
(b) LOCATION OF INVENTORY. All of the Inventory is,
as of the date hereof, located at the places specified in
Schedule II annexed hereto.
-----------
(c) ASSIGNABILITY. Except as set forth on
Schedule III annexed hereto, no contract entered into by
------------
Company and between or among the government of the United
States of America, or any agency or division thereof, prohibits
the assignment of such contract by Grantor to Secured Party.
(d) OFFICE LOCATIONS; OTHER NAMES. The chief place
of business, the chief executive office and the office where
Grantor keeps its records regarding the Accounts and all
originals of all chattel paper that evidence Accounts is, and
has been for the four month period preceding the date hereof,
located at the addresses set forth on Schedule IV annexed
-----------
hereto. Grantor has not in the past done, and does not now do,
business under any other name (including any trade-name or
fictitious business name), except as set forth on Schedule V
----------
annexed hereto.
(e) DELIVERY OF CERTAIN COLLATERAL. All notes and
other instruments (excluding checks) comprising any and all
items of Collateral have been delivered to Secured Party duly
endorsed and accompanied by duly executed instruments of
transfer or assignment in blank.
XIV-4
Page 326 of 424 <PAGE>
SECTION 5. FURTHER ASSURANCES.
(a) Grantor agrees that from time to time, at the
expense of Grantor, Grantor will promptly execute and deliver
all further instruments and documents, and take all further
action, that may be necessary or desirable, or that Secured
Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby
or to enable Secured Party to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, Grantor will:
(i) mark conspicuously each item of chattel paper included in
the Accounts, each Related Contract and, at the request of
Secured Party, each of its records pertaining to the
Collateral, with a legend, in form and substance satisfactory
to Secured Party, indicating that such Collateral is subject to
the security interest granted hereby, (ii) at the request of
Secured Party, deliver and pledge to Secured Party hereunder
all promissory notes and other instruments (including checks)
and all original counterparts of chattel paper constituting
Collateral, duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and
substance satisfactory to Secured Party, (iii) execute and file
such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be
necessary or desirable, or as Secured Party may request, in
order to perfect and preserve the security interests granted or
purported to be granted hereby, and (iv) at Secured Party's
request, appear in and defend any action or proceeding that may
affect Grantor's title to or Secured Party's security interest
in all or any part of the Collateral.
(b) Grantor hereby authorizes Secured Party to file
one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the
Collateral without the signature of Grantor. Grantor agrees
that a carbon, photographic or other reproduction of this
Agreement or of a financing statement signed by Grantor shall
be sufficient as a financing statement and may be filed as a
financing statement in any and all jurisdictions.
(c) Grantor will furnish to Secured Party from time
to time statements and schedules further identifying and
describing the Collateral and such other reports in connection
with the Collateral as Secured Party may reasonably request,
all in reasonable detail.
XIV-5
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SECTION 6. CERTAIN COVENANTS OF GRANTOR. Grantor
shall:
(a) not use or permit any Collateral to be used
unlawfully or in violation of any provision of this Agreement
or any applicable statute, regulation or ordinance or any
policy of insurance covering the Collateral;
(b) notify Secured Party of any change in Grantor's
name, identity or corporate structure within 15 days of such
change;
(c) give Secured Party 30 days' prior written notice
of any change in Grantor's chief place of business, chief
executive office or residence or the office where Grantor keeps
its records regarding the Accounts and all originals of all
chattel paper that evidence Accounts;
(d) if Secured Party gives value to enable Grantor
to acquire rights in or the use of any Collateral, use such
value for such purposes; and
(e) pay promptly when due all taxes, and
governmental charges or levies imposed upon, and all claims
against, the Collateral, except to the extent the validity
thereof is being contested in good faith; PROVIDED that Grantor
shall in any event pay such taxes, assessments, charges, levies
or claims not later than five days prior to the date of any
proposed sale under any judgment, writ or warrant of attachment
entered or filed against Grantor or any of the Collateral as a
result of the failure to make such payment.
SECTION 7. SPECIAL COVENANTS WITH RESPECT TO
INVENTORY. Grantor shall keep correct and accurate records of
the Inventory and keep the Inventory at the places therefor
specified on Schedule II annexed hereto or, upon 30 days' prior
-----------
written notice to Secured Party, at such other places in
jurisdictions where all action that may be necessary or
desirable, or that Secured Party may reasonably request, in
order to perfect and protect any security interest granted or
purported to be granted hereby, or to enable Secured Party to
exercise and enforce its rights and remedies hereunder, with
respect to such Inventory shall have been taken.
SECTION 8. SPECIAL COVENANTS WITH RESPECT TO
ACCOUNTS AND RELATED CONTRACTS.
(a) Grantor shall keep its chief place of business
and chief executive office and the office where it keeps its
records concerning the Accounts and Related Contracts, and all
originals of all chattel paper that evidence Accounts, at the
XIV-6
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location therefor specified in Section 4 or, upon 30 days'
prior written notice to Secured Party, at such other location
in a jurisdiction where all action that may be necessary or
desirable, or that Secured Party may request, in order to
perfect and protect any security interest granted or purported
to be granted hereby, or to enable Secured Party to exercise
and enforce its rights and remedies hereunder, with respect to
such Accounts and Related Contracts shall have been taken.
Grantor will hold and preserve such records and chattel paper
and will permit representatives of Secured Party at any time
during normal business hours to inspect and make abstracts from
such records and chattel paper, and Grantor agrees to render to
Secured Party, at Grantor's cost and expense, such clerical and
other assistance as may be reasonably requested with regard
thereto. Promptly upon the request of Secured Party, Grantor
shall deliver to Secured Party complete and correct copies of
each Related Contract.
(b) Grantor shall, for not less than five years from
the date on which such Account arose, maintain (i) complete
records of each Account, including records of all payments
received, credits granted and merchandise returned, and
(ii) all documentation relating thereto.
(c) Except as otherwise provided in this
subsection (c) and subsection (d), Grantor shall continue to
collect, at its own expense, all amounts due or to become due
to Grantor under the Accounts and Related Contracts. In
connection with such collections, Grantor may take (and, at
Secured Party's direction, shall take) such action as Grantor
or Secured Party may reasonably deem necessary or advisable to
enforce collection of amounts due or to become due under the
Accounts; PROVIDED, HOWEVER, that upon the occurrence and
during the continuation of an Event of Default or a Potential
Event of Default and upon written notice to Grantor of its
intention to do so, Secured Party shall have the right at any
time to notify the account debtors or obligors under any
Accounts of the assignment of such Accounts to Secured Party
and to direct such account debtors or obligors to make payment
of all amounts due or to become due to Grantor thereunder
directly to Secured Party, to notify each Person maintaining a
lockbox or similar arrangement to which account debtors or
obligors under any Accounts have been directed to make payment
to remit all amounts representing collections on checks and
other payment items from time to time sent to or deposited in
such lockbox or other arrangement directly to Secured Party
and, upon such notification and at the expense of Grantor, to
enforce collection of any such Accounts and to adjust, settle
or compromise the amount or payment thereof, in the same manner
and to the same extent as Grantor might have done. After
receipt by Grantor of the notice from Secured Party referred to
in the proviso to the preceding sentence, (i) all amounts and
XIV-7
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proceeds (including checks and other instruments) received by
Grantor in respect of the Accounts and the Related Contracts
shall be received in trust for the benefit of Secured Party
hereunder, shall be segregated from other funds of Grantor and
shall be forthwith paid over or delivered to Secured Party in
the same form as so received (with any necessary endorsement)
to be held as cash Collateral and applied as provided by
Section 16, and (ii) Grantor shall not adjust, settle or
compromise the amount or payment of any Account, or release
wholly or partly any account debtor or obligor thereof, or
allow any credit or discount thereon.
(d) Grantor shall, upon request of Secured Party,
take any action and execute any instrument necessary or
advisable, in accordance with the procedures enacted under the
Assignment of Claims Act of 1940, to ensure that Secured Party
receives any and all proceeds from any contract entered into
between or among Grantor and the government of the United
States of America or any agency or division thereof. Such
action shall include, but not be limited to, filing notices of
assignment under the provision of 48 C.F.R. 32.805.
SECTION 9. DEPOSIT ACCOUNTS. Upon the occurrence
and during the continuation of an Event of Default, Secured
Party may exercise dominion and control over, and refuse to
permit further withdrawals (whether of money, securities,
instruments or other property) from any deposit accounts
maintained with Secured Party constituting part of the
Collateral.
SECTION 10. LICENSE OF PATENTS, TRADEMARKS,
COPYRIGHTS, ETC. Grantor hereby assigns, transfers and conveys
to Secured Party, effective upon the occurrence of any Event of
Default, the nonexclusive right and license to use all
trademarks, tradenames, copyrights, patents or technical
processes owned or used by Grantor that relate to the
Collateral and any other collateral granted by Grantor as
security for the Secured Obligations, together with any
goodwill associated therewith, all to the extent necessary to
enable Secured Party to use, possess and realize on the
Collateral and to enable any successor or assign to enjoy the
benefits of the Collateral. This right and license shall inure
to the benefit of all successors, assigns and transferees of
Secured Party and its successors, assigns and transferees,
whether by voluntary conveyance, operation of law, assignment,
transfer, foreclosure, deed in lieu of foreclosure or
otherwise. Such right and license is granted free of charge,
without requirement that any monetary payment whatsoever be
made to Grantor.
XIV-8
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SECTION 11. TRANSFERS AND OTHER LIENS. Grantor
shall not:
(a) sell, assign (by operation of law or otherwise)
or otherwise dispose of any of the Collateral, except as
permitted by the Credit Agreement; or
(b) except as permitted by the Credit Agreement,
create or suffer to exist any Lien upon or with respect to any
of the Collateral to secure the indebtedness or other
obligations of any Person.
SECTION 12. SECURED PARTY APPOINTED ATTORNEY-IN-
FACT. Grantor hereby irrevocably appoints Secured Party as
Grantor's attorney-in-fact, with full authority in the place
and stead of Grantor and in the name of Grantor, Secured Party
or otherwise, from time to time in Secured Party's discretion
(a) to file any claims or notices and to take any other action
and execute any instrument necessary or advisable, in
accordance with the procedures enacted under the Assignment of
Claims Act of 1940, in order to receive any and all proceeds
from any contract entered into between or among Grantor and the
government of the United States of America or any agency or
division thereof, and (b) upon the occurrence and during the
continuation of an Event of Default, to take any action and to
execute any instrument that Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement,
including, without limitation:
(i) to ask for, demand, collect, sue for, recover,
compound, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of the
Collateral;
(ii) to receive, endorse and collect any drafts or
other instruments, documents and chattel paper in connection
with clause (i) above;
(iii) to file any claims or take any action or
institute any proceedings that Secured Party may deem necessary
or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of Secured Party with respect
to any of the Collateral;
(iv) to pay or discharge taxes or Liens levied or
placed upon or threatened against the Collateral, the legality
or validity thereof and the amounts necessary to discharge the
same to be determined by Secured Party in its sole discretion,
any such payments made by Secured Party to become obligations
of Grantor to Secured Party, due and payable immediately
without demand;
XIV-9
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(v) to sign and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications and notices
in connection with Accounts and other documents relating to the
Collateral; and
(vi) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though Secured Party were
the absolute owner thereof for all purposes, and to do, at
Secured Party's option and Grantor's expense, at any time or
from time to time, all acts and things that Secured Party deems
necessary to protect, preserve or realize upon the Collateral
and Secured Party's security interest therein in order to
effect the intent of this Agreement, all as fully and
effectively as Grantor might do.
SECTION 13. SECURED PARTY MAY PERFORM. If Grantor
fails to perform any agreement contained herein, Secured Party
may itself perform, or cause performance of, such agreement,
and the expenses of Secured Party incurred in connection
therewith shall be payable by Grantor under subsection 10.2 of
the Credit Agreement.
SECTION 14. STANDARD OF CARE. The powers conferred
on Secured Party hereunder are solely to protect its interest
in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the exercise of
reasonable care in the custody of any Collateral in its
possession and the accounting for moneys actually received by
it hereunder, Secured Party shall have no duty as to any
Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights
pertaining to any Collateral. Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation
of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which Secured Party
accords its own property.
SECTION 15. REMEDIES. If any Event of Default shall
have occurred and be continuing, Secured Party may exercise in
respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the
Uniform Commercial Code as in effect in any relevant
jurisdiction (the "Code") (whether or not the Code applies to
the affected Collateral), and also may (a) require Grantor to,
and Grantor hereby agrees that it will at its expense and upon
request of Secured Party forthwith, assemble all or part of the
Collateral as directed by Secured Party and make it available
to Secured Party at a place to be designated by Secured Party
that is reasonably convenient to both parties, (b) enter onto
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the property where any Collateral is located and take
possession thereof with or without judicial process, (c) prior
to the disposition of the Collateral, store, process, repair or
recondition the Collateral or otherwise prepare the Collateral
for disposition in any manner to the extent Secured Party deems
appropriate, and (d) without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, at such
time or times and at such price or prices and upon such other
terms as Secured Party may deem commercially reasonable.
Secured Party or any Lender may be the purchaser of any or all
of the Collateral at any such sale and Secured Party, as agent
for and representative of Lenders (but not any Lender or
Lenders in its or their respective individual capacities unless
Requisite Lenders or all Lenders, as the case may be, shall
otherwise agree in writing), shall be entitled, for the purpose
of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such
public sale, to use and apply any of the Secured Obligations as
a credit on account of the purchase price for any Collateral
payable by Secured Party at such sale. Each purchaser at any
such sale shall hold the property sold absolutely free from any
claim or right on the part of Grantor, and Grantor hereby
waives (to the extent permitted by applicable law) all rights
of redemption, stay and/or appraisal which it now has or may at
any time in the future have under any rule of law or statute
now existing or hereafter enacted. Grantor agrees that, to the
extent notice of sale shall be required by law, at least ten
days' notice to Grantor of the time and place of any public
sale or the time after which any private sale is to be made
shall constitute reasonable notification. Secured Party shall
not be obligated to make any sale of Collateral regardless of
notice of sale having been given. Secured Party may adjourn
any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was
so adjourned. Grantor hereby waives any claims against Secured
Party arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale,
even if Secured Party accepts the first offer received and does
not offer such Collateral to more than one offeree. If the
proceeds of any sale or other disposition of the Collateral are
insufficient to pay all the Secured Obligations, Grantor shall
be liable for the deficiency and the fees of any attorneys
employed by Secured Party to collect such deficiency.
SECTION 16. APPLICATION OF PROCEEDS. Except as
expressly provided in the Credit Agreement with respect to
Asset Sales, all proceeds received by the Secured Party in
respect of any sale of, collection from or other realization
XIV-11
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upon all or any part of the Collateral may, in the discretion
of the Secured Party, be held by the Secured Party as
Collateral for, and/or then, or at any other time thereafter
applied, in full or in part by the Secured Party against the
Secured Obligations in the following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization and all other
expenses, liabilities and advances made or incurred by the
Secured Party in connection therewith and all amounts for
which the Secured Party is entitled to indemnification
hereunder and all advances made by the Secured Party
hereunder for the account of Grantor and for the payment
of all costs and expenses paid or incurred by the Secured
Party in connection with the exercise of any right or
remedy hereunder, all in accordance with this Agreement,
the Credit Agreement and the other Loan Documents;
(b) Thereafter, to the extent of any excess such
proceeds, to the payment of the Secured Obligations for
the ratable benefit of the holders thereof; and
(c) Thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of the
Grantor, or whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may
direct.
SECTION 17. CONTINUING SECURITY INTEREST; TRANSFER
OF LOANS. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force
and effect until the payment in full of the Secured
Obligations, the cancellation or termination of the Commitments
and the cancellation or expiration of all outstanding Letters
of Credit, (b) be binding upon Grantor, its successors and
assigns, and (c) inure, together with the rights and remedies
of Secured Party hereunder, to the benefit of Secured Party and
its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the
provisions of subsection 10.1 of the Credit Agreement, any
Lender may assign or otherwise transfer any Loans held by it to
any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to
Lenders herein or otherwise. Upon the payment in full of all
Secured Obligations, the cancellation or termination of the
Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted
hereby shall terminate and all rights to the Collateral shall
revert to Grantor. Upon any such termination Secured Party
will, at Grantor's expense, execute and deliver to Grantor such
documents as Grantor shall reasonably request to evidence such
termination.
XIV-12
Page 334 of 424 <PAGE>
SECTION 18. SECURED PARTY AS ADMINISTRATIVE AGENT.
(a) Secured Party has been appointed to act as
Secured Party hereunder by Lenders. Secured Party shall be
obligated, and shall have the right hereunder, to make demands,
to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action
(including, without limitation, the release or substitution of
Collateral), solely in accordance with this Agreement and the
Credit Agreement; PROVIDED that Secured Party shall exercise,
or refrain from exercising, any remedies provided for in
Section 15 in accordance with the instructions of Requisite
Lenders or all Lenders, as the case may be.
(b) Secured Party shall at all times be the same
Person that is Administrative Agent under the Credit Agreement.
Written notice of resignation by Administrative Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute
notice of resignation as Secured Party under this Agreement;
removal of Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor
Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute appointment of a successor
Secured Party under this Agreement. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the
Credit Agreement by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring or removed Secured Party under this
Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured
Party all sums, securities and other items of Collateral held
hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of
the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party
such amendments to financing statements, and take such other
actions, as may be necessary or appropriate in connection with
the assignment to such successor Secured Party of the security
interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and
obligations under this Agreement. After any retiring or
removed Administrative Agent's resignation or removal hereunder
as Secured Party, the provisions of this Agreement shall inure
to its benefit as to any actions taken or omitted to be taken
by it under this Agreement while it was Secured Party
hereunder.
SECTION 19. AMENDMENTS; ETC. No amendment,
modification, termination or waiver of any provision of this
XIV-13
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Agreement, and no consent to any departure by Grantor
therefrom, shall in any event be effective unless the same
shall be in writing and signed by Secured Party and, in the
case of any such amendment or modification, by Grantor. Any
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 20. NOTICES. Any notice or other
communication herein required or permitted to be given shall be
in writing and may be personally served or sent by
telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or
by courier service, upon receipt of telefacsimile or three
Business Days after depositing it in the United States mail
with postage prepaid and properly addressed. For the purposes
hereof, the address of each party hereto shall be as provided
in subsection 10.8 of the Credit Agreement.
SECTION 21. SEVERABILITY. In case any provision in
or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 22. HEADINGS. Section and subsection
headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive
effect. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement
unless otherwise specifically provided.
SECTION 23. GOVERNING LAW; TERMS. THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
(INCLUDING, WITHOUT LIMITATION, SECTION 1646.5 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES
THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
CALIFORNIA. Unless otherwise defined herein or in the Credit
Agreement, terms used in Articles 8 and 9 of the Uniform
Commercial Code of the State of California are used herein as
therein defined.
SECTION 24. COUNTERPARTS. This Agreement may be
executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such
XIV-14
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counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document.
XIV-15
Page 337 of 424 <PAGE>
IN WITNESS WHEREOF, Grantor and Secured Party have
caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the
date first written above.
URS CORPORATION, as Grantor
By:______________________________
Name:____________________________
Title:___________________________
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative
Agent, as Secured Party
By:______________________________
Name:____________________________
Title:___________________________
XIV-S-1
Page 338 of 424 <PAGE>
SCHEDULE I
Deposit Accounts
XIV-I-1
Page 339 of 424 <PAGE>
SCHEDULE II
Location of Inventory
XIV-II-1
Page 340 of 424 <PAGE>
SCHEDULE III
Government Contracts
XIV-III-1
Page 341 of 424 <PAGE>
SCHEDULE IV
Office Locations
Chief Place of Business
-----------------------
Chief Executive Officer
-----------------------
Location of Records
-------------------
XIV-IV-1
Page 342 of 424 <PAGE>
SCHEDULE V
Previous and Fictitious Business Names
XIV-V-1
Page 343 of 424 <PAGE>
EXHIBIT XV
[FORM OF SUBSIDIARY GUARANTY]
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of
January 10, 1996 by THE UNDERSIGNED (each a "Guarantor" and
collectively, "Guarantors") in favor of and for the benefit of
WELLS FARGO BANK, NATIONAL ASSOCIATION, as agent for and
representative of (in such capacity herein called "Guarantied
Party") the financial institutions ("Lenders") party to the
Credit Agreement referred to below and for the benefit of the
other Beneficiaries (as hereinafter defined).
RECITALS
A. URS CORPORATION, a Delaware corporation
("Company"), has entered into that certain Credit Agreement
dated as of January 10, 1996 with Guarantied Party and Lenders
(said Credit Agreement, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the
"Credit Agreement"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined).
B. A portion of the proceeds of the Loans may be
advanced to Guarantors and thus the Guarantied Obligations (as
hereinafter defined) are being incurred for and will inure to
the benefit of Guarantors (which benefits are hereby
acknowledged).
C. It is a condition precedent to the making of the
initial Loans under the Credit Agreement that Company's
obligations thereunder be guarantied by Guarantors.
D. Guarantors are willing irrevocably and
unconditionally to guaranty such obligations of Company.
NOW, THEREFORE, based upon the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in order to induce Lenders
and Guarantied Party to enter into the Credit Agreement and to
make Loans and other extensions of credit thereunder,
Guarantors hereby agree as follows:
XV-1
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SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Guaranty, the
following terms shall have the following meanings unless the
context otherwise requires:
"Beneficiaries" means Guarantied Party and Lenders.
"Guarantied Obligations" has the meaning assigned to
that term in subsection 2.1.
"Guaranty" means this Subsidiary Guaranty dated as of
January 10, 1996, as it may be amended, supplemented or
otherwise modified from time to time.
"payment in full", "paid in full" or any similar term
means payment in full of the Guarantied Obligations,
including, without limitation, all principal, interest,
costs, fees and expenses (including, without limitation,
reasonable legal fees and expenses) of Beneficiaries as
required under the Loan Documents.
1.2 INTERPRETATION.
(a) References to "Sections" and "subsections" shall be
to Sections and subsections, respectively, of this Guaranty
unless otherwise specifically provided.
(b) In the event of any conflict or inconsistency between
the terms, conditions and provisions of this Guaranty and the
terms, conditions and provisions of the Credit Agreement, the
terms, conditions and provisions of this Guaranty shall
prevail.
SECTION 2. THE GUARANTY
2.1 GUARANTY OF THE GUARANTIED OBLIGATIONS. Subject to
the provisions of subsection 2.2(a), Guarantors jointly and
severally hereby irrevocably and unconditionally guaranty, as
primary obligors and not merely as sureties, the due and
punctual payment in full of all Guarantied Obligations when the
same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation
of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. sec. 362(a)). The term "Guarantied
Obligations" is used herein in its most comprehensive sense and
includes:
(a) any and all Obligations of Company now or hereafter
made, incurred or created, whether absolute or contingent,
liquidated or unliquidated, whether due or not due, and however
XV-2
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arising under or in connection with the Credit Agreement and
the other Loan Documents, including those arising under
successive borrowing transactions under the Credit Agreement
which shall either continue the Obligations of Company or from
time to time renew them after they have been satisfied and
including interest which, but for the filing of a petition in
bankruptcy with respect to Company, would have accrued on any
Guarantied Obligations, whether or not a claim is allowed
against Company for such interest in the related bankruptcy
proceeding; and
(b) those expenses set forth in subsection 2.9.
2.2 LIMITATION ON AMOUNT GUARANTIED; CONTRIBUTION BY
GUARANTORS. (a) Anything contained in this Guaranty to the
contrary notwithstanding, if any Fraudulent Transfer Law (as
hereinafter defined) is determined by a court of competent
jurisdiction to be applicable to the obligations of any
Guarantor under this Guaranty, such obligations of such
Guarantor hereunder shall be limited to a maximum aggregate
amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the
United States Code or any applicable provisions of comparable
state law (collectively, the "Fraudulent Transfer Laws"), in
each case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (specifically excluding, however, any
liabilities of such Guarantor (x) in respect of intercompany
indebtedness to Company or other affiliates of Company to the
extent that such indebtedness would be discharged in an amount
equal to the amount paid by such Guarantor hereunder and
(y) under any guaranty of Subordinated Indebtedness which
guaranty contains a limitation as to maximum amount similar to
that set forth in this subsection 2.2(a), pursuant to which the
liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum
amount) and after giving effect as assets to the value (as
determined under the applicable provisions of the Fraudulent
Transfer Laws) of any rights to subrogation, reimbursement,
indemnification or contribution of such Guarantor pursuant to
applicable law or pursuant to the terms of any agreement
(including, without limitation, any such right of contribution
under subsection 2.2(b)).
(b) Guarantors under this Guaranty together desire to
allocate among themselves (collectively, the "Contributing
Guarantors"), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any
payment or distribution is made on any date by any Guarantor
under this Guaranty (a "Funding Guarantor") that exceeds its
Fair Share (as defined below) as of such date, that Funding
XV-3
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Guarantor shall be entitled to a contribution from each of the
other Contributing Guarantors in the amount of such other
Contributing Guarantor's Fair Share Shortfall (as defined
below) as of such date, with the result that all such
contributions will cause each Contributing Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share
as of such date. "Fair Share" means, with respect to a
Contributing Guarantor as of any date of determination, an
amount equal to (i) the ratio of (x) the Adjusted Maximum
Amount (as defined below) with respect to such Contributing
Guarantor to (y) the aggregate of the Adjusted Maximum Amounts
with respect to all Contributing Guarantors MULTIPLIED BY
(ii) the aggregate amount paid or distributed on or before such
date by all Funding Guarantors under this Guaranty in respect
of the obligations guarantied. "Fair Share Shortfall" means,
with respect to a Contributing Guarantor as of any date of
determination, the excess, if any, of the Fair Share of such
Contributing Guarantor over the Aggregate Payments of such
Contributing Guarantor. "Adjusted Maximum Amount" means, with
respect to a Contributing Guarantor as of any date of
determination, the maximum aggregate amount of the obligations
of such Contributing Guarantor under this Guaranty, determined
as of such date in accordance with subsection 2.2(a); PROVIDED
that, solely for purposes of calculating the "Adjusted Maximum
Amount" with respect to any Contributing Guarantor for purposes
of this subsection 2.2(b), any assets or liabilities of such
Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to
or obligations of contribution hereunder shall not be
considered as assets or liabilities of such Contributing
Guarantor. "Aggregate Payments" means, with respect to a
Contributing Guarantor as of any date of determination, an
amount equal to (i) the aggregate amount of all payments and
distributions made on or before such date by such Contributing
Guarantor in respect of this Guaranty (including, without
limitation, in respect of this subsection 2.2(b)) MINUS
(ii) the aggregate amount of all payments received on or before
such date by such Contributing Guarantor from the other
Contributing Guarantors as contributions under this subsection
2.2(b). The amounts payable as contributions hereunder shall
be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The
allocation among Contributing Guarantors of their obligations
as set forth in this subsection 2.2(b) shall not be construed
in any way to limit the liability of any Contributing Guarantor
hereunder.
2.3 PAYMENT BY GUARANTORS; APPLICATION OF PAYMENTS.
Subject to the provisions of subsection 2.2(a), Guarantors
hereby jointly and severally agree, in furtherance of the
foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor
XV-4
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by virtue hereof, that upon the failure of Company to pay any
of the Guarantied Obligations when and as the same shall become
due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. sec. 362(a)), Guarantors will upon demand pay, or
cause to be paid, in cash, to Guarantied Party for the ratable
benefit of Beneficiaries, an amount equal to the sum of the
unpaid principal amount of all Guarantied Obligations then due
as aforesaid, accrued and unpaid interest on such Guarantied
Obligations (including, without limitation, interest which, but
for the filing of a petition in bankruptcy with respect to
Company, would have accrued on such Guarantied Obligations,
whether or not a claim is allowed against Company for such
interest in the related bankruptcy proceeding) and all other
Guarantied Obligations then owed to Beneficiaries as aforesaid.
All such payments shall be applied promptly from time to time
by Guarantied Party:
FIRST, to the payment of the costs and expenses of
any collection or other realization under this Guaranty,
including reasonable compensation to Guarantied Party and
its agents and counsel, and all reasonable expenses,
liabilities and advances made or incurred by Guarantied
Party in connection therewith;
SECOND, to the payment of all other Guarantied
Obligations in such order as Guarantied Party shall elect;
and
THIRD, after payment in full of all Guarantied
Obligations, to the payment to Guarantors, or their
respective successors or assigns, or to whomsoever may be
lawfully entitled to receive the same or as a court of
competent jurisdiction may direct, of any surplus then
remaining from such payments.
2.4 LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor
agrees that its obligations hereunder are irrevocable,
absolute, independent and unconditional and shall not be
affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment
in full of the Guarantied Obligations. In furtherance of the
foregoing and without limiting the generality thereof, each
Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and
not of collectibility.
(b) Guarantied Party may enforce this Guaranty upon the
occurrence of an Event of Default under the Credit Agreement
XV-5
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notwithstanding the existence of any dispute between Company
and any Beneficiary with respect to the existence of such Event
of Default.
(c) The obligations of each Guarantor hereunder are
independent of the obligations of Company under the Loan
Documents and the obligations of any other guarantor (including
any other Guarantor) of the obligations of Company under the
Loan Documents, and a separate action or actions may be brought
and prosecuted against such Guarantor whether or not any action
is brought against Company or any of such other guarantors and
whether or not Company is joined in any such action or actions.
(d) Payment by any Guarantor of a portion, but not all,
of the Guarantied Obligations shall in no way limit, affect,
modify or abridge any Guarantor's liability for any portion of
the Guarantied Obligations which has not been paid. Without
limiting the generality of the foregoing, if Guarantied Party
is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guarantied
Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the
Guarantied Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent satisfied by
such Guarantor, limit, affect, modify or abridge any other
Guarantor's liability hereunder in respect of the Guarantied
Obligations.
(e) Any Beneficiary, upon such terms as it deems
appropriate, without notice or demand and without affecting the
validity or enforceability of this Guaranty or giving rise to
any reduction, limitation, impairment, discharge or termination
of any Guarantor's liability hereunder, from time to time may
(i) renew, extend, accelerate, increase the rate of interest
on, or otherwise change the time, place, manner or terms of
payment of the Guarantied Obligations, (ii) settle, compromise,
release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or
subordinate the payment of the same to the payment of any other
obligations; (iii) request and accept other guaranties of the
Guarantied Obligations and take and hold security for the
payment of this Guaranty or the Guarantied Obligations;
(iv) release, surrender, exchange, substitute, compromise,
settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the
Guarantied Obligations, any other guaranties of the Guarantied
Obligations, or any other obligation of any Person (including
any other Guarantor) with respect to the Guarantied
Obligations; (v) enforce and apply any security now or
hereafter held by or for the benefit of such Beneficiary in
respect of this Guaranty or the Guarantied Obligations and
XV-6
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direct the order or manner of sale thereof, or exercise any
other right or remedy that such Beneficiary may have against
any such security, in each case as such Beneficiary in its
discretion may determine consistent with the Credit Agreement
and any applicable security agreement, including foreclosure on
any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against
Company or any security for the Guarantied Obligations; and
(vi) exercise any other rights available to it under the Loan
Documents.
(f) This Guaranty and the obligations of Guarantors
hereunder shall be valid and enforceable and shall not be
subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the
Guarantied Obligations), including, without limitation, the
occurrence of any of the following, whether or not any
Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement
or election not to assert or enforce, or the stay or enjoining,
by order of court, by operation of law or otherwise, of the
exercise or enforcement of, any claim or demand or any right,
power or remedy (whether arising under the Loan Documents, at
law, in equity or otherwise) with respect to the Guarantied
Obligations or any agreement relating thereto, or with respect
to any other guaranty of or security for the payment of the
Guarantied Obligations; (ii) any rescission, waiver, amendment
or modification of, or any consent to departure from, any of
the terms or provisions (including, without limitation,
provisions relating to events of default) of the Credit
Agreement, any of the other Loan Documents, or any agreement or
instrument executed pursuant thereto, or of any other guaranty
or security for the Guarantied Obligations, in each case
whether or not in accordance with the terms of the Credit
Agreement or such Loan Document, or any agreement relating to
such other guaranty or security; (iii) the Guarantied
Obligations, or any agreement relating thereto, at any time
being found to be illegal, invalid or unenforceable in any
respect; (iv) the application of payments received from any
source (other than payments received pursuant to the other Loan
Documents or from the proceeds of any security for the
Guarantied Obligations, except to the extent such security also
serves as collateral for indebtedness other than the Guarantied
Obligations) to the payment of indebtedness other than the
Guarantied Obligations, even though any Beneficiary might have
elected to apply such payment to any part or all of the Guaran-
tied Obligations; (v) any Beneficiary's consent to the change,
reorganization or termination of the corporate structure or
existence of Company or any of its Subsidiaries and to any
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corresponding restructuring of the Guarantied Obligations;
(vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the
Guarantied Obligations; (vii) any defenses, set-offs or
counterclaims which Company may allege or assert against any
Beneficiary in respect of the Guarantied Obligations, including
but not limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury; and (viii) any other act or
thing or omission, or delay to do any other act or thing, which
may or might in any manner or to any extent vary the risk of
any Guarantor as an obligor in respect of the Guarantied
Obligations.
2.5 WAIVERS BY GUARANTORS. Each Guarantor hereby waives,
for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition
of payment or performance by such Guarantor, to (i) proceed
against Company, any other guarantor (including any other
Guarantor) of the Guarantied Obligations or any other Person,
(ii) proceed against or exhaust any security held from Company,
any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or
credit on the books of any Beneficiary in favor of Company or
any other Person, or (iv) pursue any other remedy in the power
of any Beneficiary whatsoever;
(b) any defense arising by reason of the incapacity, lack
of authority or any disability or other defense of Company,
including, without limitation, any defense based on or arising
out of the lack of validity or the unenforceability of the
Guarantied Obligations or any agreement or instrument relating
thereto or by reason of the cessation of the liability of
Company from any cause other than payment in full of the
Guarantied Obligations;
(c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than
that of the principal;
(d) any defense based upon any Beneficiary's errors or
omissions in the administration of the Guarantied Obligations,
except behavior which arises from any Beneficiary's gross
negligence or willful misconduct;
(e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of
this Guaranty and any legal or equitable discharge of such
Guarantor's obligations hereunder, (ii) the benefit of any
statute of limitations affecting such Guarantor's liability
XV-8
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hereunder or the enforcement hereof, (iii) any rights to set-
offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that any Beneficiary protect,
secure, perfect or insure any security interest or lien or any
property subject thereto;
(f) notices, demands, presentments, protests, notices of
protest, notices of dishonor and notices of any action or
inaction, including acceptance of this Guaranty, notices of
default under the Credit Agreement or any agreement or
instrument related thereto, notices of any renewal, extension
or modification of the Guarantied Obligations or any agreement
related thereto, notices of any extension of credit to Company
and notices of any of the matters referred to in subsection 2.4
and any right to consent to any thereof; and
(g) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of
this Guaranty.
2.6 CERTAIN CALIFORNIA LAW WAIVERS. As used in this
subsection 2.6, any reference to "the principal" includes
Company, and any reference to "the creditor" includes each
Beneficiary. In accordance with Section 2856 of the California
Civil Code:
(a) each Guarantor agrees (i) to waive any and all rights
of subrogation and reimbursement against Company or against any
collateral or security granted by Company for any of the
Guarantied Obligations and (ii) to withhold the exercise of any
and all rights of contribution against any other guarantor of
any of the Guarantied Obligations and against any collateral or
security granted by any such other guarantor for any of the
Guarantied Obligations until the Guarantied Obligations shall
have been paid in full and the Commitments shall have
terminated and all Letters of Credit shall have expired or been
cancelled, all as more fully set forth in subsection 2.7;
(b) each Guarantor waives any and all other rights and
defenses available to such Guarantor by reason of Sections 2787
to 2855, inclusive, 2899 and 3433 of the California Civil Code,
including without limitation any and all rights or defenses
such Guarantor may have by reason of protection afforded to the
principal with respect to any of the Guarantied Obligations, or
to any other guarantor (including any other Guarantor) of any
of the Guarantied Obligations with respect to any of such
guarantor's obligations under its guaranty, in either case
pursuant to the antideficiency or other laws of the State of
California limiting or discharging the principal's indebtedness
or such guarantor's obligations, including without limitation
XV-9
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Section 580a, 580b, 580d, or 726 of the California Code of
Civil Procedure; and
(c) each Guarantor waives all rights and defenses arising
out of an election of remedies by the creditor, even though
that election of remedies, such as a nonjudicial foreclosure
with respect to security for any Guarantied Obligation, has
destroyed such Guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section
580d of the Code of Civil Procedure or otherwise; and even
though that election of remedies by the creditor, such as
nonjudicial foreclosure with respect to security for an
obligation of any other guarantor (including any other
Guarantor) of any of the Guarantied Obligations, has destroyed
such Guarantor's rights of contribution against such other
guarantor.
No other provision of this Guaranty shall be construed as
limiting the generality of any of the covenants and waivers set
forth in this subsection 2.6.
2.7 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.
Each Guarantor hereby waives any claim, right or remedy, direct
or indirect, that such Guarantor now has or may hereafter have
against Company or any of its assets in connection with this
Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute
(including, without limitation, under California Civil Code
Section 2847, 2848 or 2849), under common law or otherwise and,
including, without limitation, (a) any right of subrogation,
reimbursement or indemnification that such Guarantor now has or
may hereafter have against Company, (b) any right to enforce,
or to participate in, any claim, right or remedy that any
Beneficiary now has or may hereafter have against Company, and
(c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any
Beneficiary. In addition, until the Guarantied Obligations
shall have been indefeasibly paid in full and the Commitments
shall have terminated and all Letters of Credit shall have
expired or been cancelled, each Guarantor shall withhold
exercise of any right of contribution such Guarantor may have
against any other guarantor (including any other Guarantor) of
the Guarantied Obligations (including, without limitation, any
such right of contribution under California Civil Code Section
2848 or under subsection 2.2(b)). Each Guarantor further
agrees that, to the extent the waiver or agreement to withhold
the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found
by a court of competent jurisdiction to be void or voidable for
any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against Company or
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against any collateral or security, and any rights of
contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights any
Beneficiary may have against Company, to all right, title and
interest any Beneficiary may have in any such collateral or
security, and to any right any Beneficiary may have against
such other guarantor. If any amount shall be paid to any
Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all
Guarantied Obligations shall not have been paid in full, such
amount shall be held in trust for Guarantied Party on behalf of
Beneficiaries and shall forthwith be paid over to Guarantied
Party for the benefit of Beneficiaries to be credited and
applied against the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms hereof.
2.8 SUBORDINATION OF OTHER OBLIGATIONS. Any indebted-
ness of Company now or hereafter held by any Guarantor is
hereby subordinated in right of payment to the Guarantied
Obligations, and any such indebtedness of Company to such
Guarantor collected or received by such Guarantor after an
Event of Default has occurred and is continuing shall be held
in trust for Guarantied Party on behalf of Beneficiaries and
shall forthwith be paid over to Guarantied Party for the
benefit of Beneficiaries to be credited and applied against the
Guarantied Obligations but without affecting, impairing or
limiting in any manner the liability of such Guarantor under
any other provision of this Guaranty.
2.9 EXPENSES. Guarantors jointly and severally agree to
pay, or cause to be paid, on demand, and to save Beneficiaries
harmless against liability for, any and all reasonable costs
and expenses (including reasonable fees and disbursements of
counsel and allocated costs of internal counsel) incurred or
expended by any Beneficiary in connection with the enforcement
of or preservation of any rights under this Guaranty.
2.10 CONTINUING GUARANTY. This Guaranty is a continuing
guaranty and shall remain in effect until all of the Guarantied
Obligations shall have been paid in full and the Commitments
shall have terminated and all Letters of Credit shall have
expired or been cancelled. Each Guarantor hereby irrevocably
waives any right (including, without limitation, any such right
arising under California Civil Code Section 2815) to revoke
this Guaranty as to future transactions giving rise to any
Guarantied Obligations.
2.11 AUTHORITY OF GUARANTORS OR COMPANY. It is not
necessary for any Beneficiary to inquire into the capacity or
powers of any Guarantor or Company or the officers, directors
or any agents acting or purporting to act on behalf of any of
them.
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2.12 FINANCIAL CONDITION OF COMPANY. Any Loans may be
granted to Company or continued from time to time without
notice to or authorization from any Guarantor regardless of the
financial or other condition of Company at the time of any such
grant or continuation. No Beneficiary shall have any
obligation to disclose or discuss with any Guarantor its
assessment, or any Guarantor's assessment, of the financial
condition of Company. Each Guarantor has adequate means to
obtain information from Company on a continuing basis
concerning the financial condition of Company and its ability
to perform its obligations under the Loan Documents, and each
Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Company and of all
circumstances bearing upon the risk of nonpayment of the
Guarantied Obligations. Each Guarantor hereby waives and
relinquishes any duty on the part of any Beneficiary to
disclose any matter, fact or thing relating to the business,
operations or conditions of Company now known or hereafter
known by any Beneficiary.
2.13 RIGHTS CUMULATIVE. The rights, powers and remedies
given to Beneficiaries by this Guaranty are cumulative and
shall be in addition to and independent of all rights, powers
and remedies given to Beneficiaries by virtue of any statute or
rule of law or in any of the other Loan Documents, or any
agreement between any Guarantor and any Beneficiary or
Beneficiaries or between Company and any Beneficiary or
Beneficiaries. Any forbearance or failure to exercise, and any
delay by any Beneficiary in exercising, any right, power or
remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or
remedy.
2.14 BANKRUPTCY; POST-PETITION INTEREST; REINSTATEMENT OF
GUARANTY. (a) So long as any Guarantied Obligations remain
outstanding, no Guarantor shall, without the prior written
consent of Guarantied Party acting pursuant to the instructions
of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency
proceedings of or against Company. The obligations of
Guarantors under this Guaranty shall not be reduced, limited,
impaired, discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the bankrupt-
cy, insolvency, receivership, reorganization, liquidation or
arrangement of Company or by any defense which Company may have
by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
(a) Each Guarantor acknowledges and agrees that any
interest on any portion of the Guarantied Obligations which
XV-12
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accrues after the commencement of any proceeding referred to in
clause (a) above (or, if interest on any portion of the
Guarantied Obligations ceases to accrue by operation of law by
reason of the commencement of said proceeding, such interest as
would have accrued on such portion of the Guarantied
Obligations if said proceedings had not been commenced) shall
be included in the Guarantied Obligations because it is the
intention of Guarantors and Beneficiaries that the Guarantied
Obligations which are guarantied by Guarantors pursuant to this
Guaranty should be determined without regard to any rule of law
or order which may relieve Company of any portion of such
Guarantied Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the
benefit of creditors or similar person to pay Guarantied Party,
or allow the claim of Guarantied Party in respect of, any such
interest accruing after the date on which such proceeding is
commenced.
(b) In the event that all or any portion of the
Guarantied Obligations are paid by Company, the obligations of
Guarantors hereunder shall continue and remain in full force
and effect or be reinstated, as the case may be, in the event
that all or any part of such payment(s) are rescinded or
recovered directly or indirectly from any Beneficiary as a
preference, fraudulent transfer or otherwise, and any such
payments which are so rescinded or recovered shall constitute
Guarantied Obligations for all purposes under this Guaranty.
2.15 NOTICE OF EVENTS. As soon as any Guarantor obtains
knowledge thereof, such Guarantor shall give Guarantied Party
written notice of any condition or event which has resulted in
(a) a Material Adverse Effect with respect to any Guarantor or
Company or (b) a breach of or noncompliance with any term,
condition or covenant contained herein or in the Credit
Agreement, any other Loan Document or any other document
delivered pursuant hereto or thereto.
2.16 SET OFF. In addition to any other rights any
Beneficiary may have under law or in equity, if any amount
shall at any time be due and owing by any Guarantor to any
Beneficiary under this Guaranty, such Beneficiary is authorized
at any time or from time to time, without notice (any such
notice being hereby expressly waived), to set off and to
appropriate and to apply any and all deposits (general or
special, including but not limited to indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any
other indebtedness of such Beneficiary owing to such Guarantor
and any other property of such Guarantor held by any
Beneficiary to or for the credit or the account of such
Guarantor against and on account of the Guarantied Obligations
and liabilities of such Guarantor to any Beneficiary under this
Guaranty.
XV-13
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2.17 DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If
all of the stock of any Guarantor or any of its successors in
interest under this Guaranty shall be sold or otherwise
disposed of (including by merger or consolidation) in an Asset
Sale not prohibited by subsection 7.7 of the Credit Agreement
or otherwise consented to by Requisite Lenders, the Guaranty of
such Guarantor or such successor in interest, as the case may
be, hereunder shall automatically be discharged and released
without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale; PROVIDED
that, as a condition precedent to such discharge and release,
Guarantied Party shall have received evidence satisfactory to
it that arrangements satisfactory to it have been made for
delivery to Guarantied Party of the applicable Net Asset Sale
Proceeds.
SECTION 3. GUARANTOR'S REPRESENTATIONS AND WARRANTIES
Guarantor represents and warrants as follows:
(a) ORGANIZATION AND POWERS. Guarantor is a corporation
duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation. Guarantor has all
requisite corporate power and authority to own and operate its
properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into this Guaranty and to
carry out the transactions contemplated thereby.
(b) QUALIFICATION AND GOOD STANDING. Guarantor is
qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good
standing has not had and will not have a Material Adverse
Effect on Guarantor.
(c) AUTHORIZATION. The execution, delivery and
performance of this Guaranty have been duly authorized by all
necessary corporate action on the part of Guarantor.
(d) NO CONFLICT. The execution, delivery and perfor-
mance by Guarantor of this Guaranty and the consummation of the
transactions contemplated by this Guaranty do not and will not
(i) violate any provision of any law or any governmental rule
or regulation applicable to Guarantor or any of its
Subsidiaries, the Certificate or Articles of Incorporation or
Bylaws of Guarantor or any of its Subsidiaries or any order,
judgment or decree of any court or other agency of government
binding on Guarantor or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual
XV-14
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Obligation of Guarantor or any of its Subsidiaries,
(iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Guarantor or any
of its Subsidiaries (other than any Liens created under any of
the Loan Documents in favor of Administrative Agent on behalf
of Lenders), or (iv) require any approval of stockholders or
any approval or consent of any Person under any Contractual
Obligation of Guarantor or any of its Subsidiaries.
(e) GOVERNMENTAL CONSENTS. The execution, delivery and
performance by Guarantor of this Guaranty and the consummation
of the transactions contemplated by this Guaranty do not and
will not require any registration with, consent or approval of,
or notice to, or other action to, with or by, any federal,
state or other governmental authority or regulatory body.
(f) BINDING OBLIGATION. This Guaranty has been duly
executed and delivered by Guarantor and is the legally valid
and binding obligation of Guarantor, enforceable against
Guarantor in accordance with its respective terms, except as
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to
enforceability.
SECTION 4. MISCELLANEOUS
4.1 SURVIVAL OF WARRANTIES. All agreements, representa-
tions and warranties made herein shall survive the execution
and delivery of this Guaranty and the other Loan Documents and
any increase in the Commitments under the Credit Agreement.
4.2 NOTICES. Any notice or other communications between
Guarantied Party and any Guarantor shall be in writing and may
be personally served or sent by telefacsimile or United States
mail, postage prepaid, or courier service to each such party at
its address set forth in the Credit Agreement, on the signature
pages hereof or to such other addresses as each such party may
in writing hereafter indicate. Any notice, request or demand
to or upon Guarantied Party or any Guarantor shall not be
effective until received.
4.3 SEVERABILITY. In case any provision in or obligation
under this Guaranty shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in
any way be affected or impaired thereby.
4.4 AMENDMENTS AND WAIVERS. No amendment, modification,
termination or waiver of any provision of this Guaranty, and no
consent to any departure by any Guarantor therefrom, shall in
XV-15
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any event be effective without the written concurrence of
Guarantied Party and, in the case of any such amendment or
modification, each Guarantor against whom enforcement of such
amendment or modification is sought. Any such waiver or
consent shall be effective only in the specific instance and
for the specific purpose for which it was given.
4.5 HEADINGS. Section and subsection headings in this
Guaranty are included herein for convenience of reference only
and shall not constitute a part of this Guaranty for any other
purpose or be given any substantive effect.
4.6 APPLICABLE LAW. THIS GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF GUARANTORS AND BENEFICIARIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (INCLUDING,
WITHOUT LIMITATION, SECTION 1646.5 OF THE CIVIL CODE OF THE
STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
4.7 SUCCESSORS AND ASSIGNS. This Guaranty is a
continuing guaranty and shall be binding upon each Guarantor
and its respective successors and assigns. This Guaranty shall
inure to the benefit of Beneficiaries and their respective
successors and assigns. No Guarantor shall assign this
Guaranty or any of the rights or obligations of such Guarantor
hereunder without the prior written consent of all Lenders.
Any Beneficiary may, without notice or consent, assign its
interest in this Guaranty in whole or in part. The terms and
provisions of this Guaranty shall inure to the benefit of any
transferee or assignee of any Loan, and in the event of such
transfer or assignment the rights and privileges herein
conferred upon such Beneficiary shall automatically extend to
and be vested in such transferee or assignee, all subject to
the terms and conditions hereof.
4.8 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT
OF OR RELATING TO THIS GUARANTY, OR ANY OBLIGATIONS HEREUNDER,
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF CALIFORNIA, COUNTY AND CITY OF SAN
FRANCISCO. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH
GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
XV-16
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CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO SUCH
GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 4.2;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
SUCH GUARANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT;
(V) AGREES THAT BENEFICIARIES RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST SUCH GUARANTOR IN THE COURTS OF
ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION
4.8 RELATING TO JURISDICTION AND VENUE SHALL BE BINDING
AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 410.40 OR
OTHERWISE.
4.9 WAIVER OF TRIAL BY JURY. EACH GUARANTOR AND, BY ITS
ACCEPTANCE OF THE BENEFITS HEREOF, EACH BENEFICIARY EACH HEREBY
AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
GUARANTY. The scope of this waiver is intended to be all
encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this
transaction, including, without limitation, contract claims,
tort claims, breach of duty claims and all other common law and
statutory claims. Each Guarantor and, by its acceptance of the
benefits hereof, each Beneficiary, each (i) acknowledges that
this waiver is a material inducement for such Guarantor and
Beneficiaries to enter into a business relationship, that such
Guarantor and Beneficiaries have already relied on this waiver
in entering into this Guaranty or accepting the benefits
thereof, as the case may be, and that each will continue to
rely on this waiver in their related future dealings and
(ii) further warrants and represents that each has reviewed
this waiver with its legal counsel, and that each knowingly and
voluntarily waives its jury trial rights following consultation
with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT
IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN
BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS
SUBSECTION 4.9 AND EXECUTED BY GUARANTIED PARTY AND EACH
GUARANTOR), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
GUARANTY. In the event of litigation, this Guaranty may be
filed as a written consent to a trial by the court.
4.10 NO OTHER WRITING. This writing is intended by
Guarantors and Beneficiaries as the final expression of this
XV-17
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Guaranty and is also intended as a complete and exclusive
statement of the terms of their agreement with respect to the
matters covered hereby. No course of dealing, course of
performance or trade usage, and no parol evidence of any
nature, shall be used to supplement or modify any terms of this
Guaranty. There are no conditions to the full effectiveness of
this Guaranty.
4.11 FURTHER ASSURANCES. At any time or from time to
time, upon the request of Guarantied Party, Guarantors shall
execute and deliver such further documents and do such other
acts and things as Guarantied Party may reasonably request in
order to effect fully the purposes of this Guaranty.
4.12 ADDITIONAL GUARANTORS. The initial Guarantors
hereunder shall be such of the Subsidiaries of Company as are
signatories hereto on the date hereof. From time to time
subsequent to the date hereof, additional Subsidiaries of
Company may become parties hereto, as additional Guarantors
(each an "Additional Guarantor"), by executing a counterpart of
this Guaranty. Upon delivery of any such counterpart to
Administrative Agent, notice of which is hereby waived by
Guarantors, each such Additional Guarantor shall be a Guarantor
and shall be as fully a party hereto as if such Additional
Guarantor were an original signatory hereof. Each Guarantor
expressly agrees that its obligations arising hereunder shall
not be affected or diminished by the addition or release of any
other Guarantor hereunder, nor by any election of
Administrative Agent not to cause any Subsidiary of Company to
become an Additional Guarantor hereunder. This Guaranty shall
be fully effective as to any Guarantor that is or becomes a
party hereto regardless of whether any other Person becomes or
fails to become or ceases to be a Guarantor hereunder.
4.13 COUNTERPARTS; EFFECTIVENESS. This Guaranty may be
executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original for
all purposes; but all such counterparts together shall
constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to
a single counterpart so that all signature pages are physically
attached to the same document. This Guaranty shall become
effective as to each Guarantor upon the execution of a
counterpart hereof by such Guarantor (whether or not a
counterpart hereof shall have been executed by any other
Guarantor) and receipt by Guarantied Party of written or
telephonic notification of such execution and authorization of
delivery thereof.
XV-18
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4.14 GUARANTIED PARTY AS ADMINISTRATIVE AGENT.
(a) Guarantied Party has been appointed to act as
Guarantied Party hereunder by Lenders. Guarantied Party shall
be obligated, and shall have the right hereunder, to make
demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any
action, solely in accordance with this Guaranty and the Credit
Agreement; PROVIDED that Guarantied Party shall exercise, or
refrain from exercising, any remedies hereunder in accordance
with the instructions of Requisite Lenders or all Lenders, as
the case may be.
(b) Guarantied Party shall at all times be the same
Person that is Administrative Agent under the Credit Agreement.
Written notice of resignation by Administrative Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute
notice of resignation as Guarantied Party under this Guaranty;
removal of Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute removal as
Guarantied Party under this Guaranty; and appointment of a
successor Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute appointment of a
successor Guarantied Party under this Guaranty. Upon the
acceptance of any appointment as Administrative Agent under
subsection 9.5 of the Credit Agreement by a successor
Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed
Guarantied Party under this Guaranty, and the retiring or
removed Guarantied Party under this Guaranty shall promptly
(i) transfer to such successor Guarantied Party all sums held
hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of
the duties of the successor Guarantied Party under this
Guaranty, and (ii) take such other actions as may be necessary
or appropriate in connection with the assignment to such
successor Guarantied Party of the rights created hereunder,
whereupon such retiring or removed Guarantied Party shall be
discharged from its duties and obligations under this Guaranty.
After any retiring or removed Guarantied Party's resignation or
removal hereunder as Guarantied Party, the provisions of this
Guaranty shall inure to its benefit as to any actions taken or
omitted to be taken by it under this Guaranty while it was
Guarantied Party hereunder.
[Remainder of page intentionally left blank]
XV-19
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IN WITNESS WHEREOF, each of the undersigned
Guarantors has caused this Guaranty to be duly executed and
delivered by its officer thereunto duly authorized as of the
date first written above.
[NAME OF GUARANTOR]
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
[NAME OF GUARANTOR]
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
XV-S-1
Page 363 of 424 <PAGE>
IN WITNESS WHEREOF, the undersigned Additional
Guarantor has caused this Guaranty to be duly executed and
delivered by its officer thereunto duly authorized as of
______________, 199_.
[NAME OF ADDITIONAL GUARANTOR]
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
XV-S-2
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EXHIBIT XVI
[FORM OF SUBSIDIARY PLEDGE AGREEMENT]
SUBSIDIARY PLEDGE AGREEMENT
This SUBSIDIARY PLEDGE AGREEMENT (this "Agreement")
is dated as of January 10, 1996 and entered into by and between
THE UNDERSIGNED (each a "Pledgor" and collectively,
"Pledgors"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent on behalf of the Lenders party to the
Credit Agreement referred to below (in such capacity herein
called "Secured Party").
PRELIMINARY STATEMENTS
A. Pledgor is the legal and beneficial owner of
(i) the shares of stock (the "Pledged Shares") described in
Part A of Schedule I annexed hereto and issued by the
----------
corporations named therein and (ii) the intercompany
indebtedness arising from the transfer of the proceeds of the
Term Loans and the Initial Revolving Loans (the "Pledged Debt")
described in Part B of said Schedule I.
----------
B. Secured Party and Lenders have entered into a
Credit Agreement dated as of January 10, 1996 (said Credit
Agreement, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined) with URS
Corporation, a Delaware corporation ("Company"), pursuant to
which Lenders have made certain commitments, subject to the
terms and conditions set forth in the Credit Agreement, to
extend certain credit facilities to Company.
C. Pledgor has executed and delivered that certain
Subsidiary Guaranty dated as of January 10, 1996 (said
Subsidiary Guaranty, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the
"Guaranty") in favor of Secured Party for the benefit of
Lenders, pursuant to which Pledgor has guarantied the prompt
payment and performance when due of all obligations of Company
under the Credit Agreement.
D. It is a condition precedent to the initial
extensions of credit by Lenders under the Credit Agreement that
XVI-1
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Pledgor shall have granted the security interests and
undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and
in order to induce Lenders to make Loans and other extensions
of credit under the Credit Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Pledgor hereby agrees with Secured Party
as follows:
SECTION 1. PLEDGE OF SECURITY. Pledgor hereby
pledges and assigns to Secured Party, and hereby grants to
Secured Party a security interest in, all of Pledgor's right,
title and interest in and to the following (the "Pledged
Collateral"):
(a) the Pledged Shares and the certificates
representing the Pledged Shares and any interest of Pledgor in
the entries on the books of any financial intermediary
pertaining to the Pledged Shares, and all dividends, cash,
warrants, rights, instruments and other property or proceeds
from time to time received, receivable or otherwise distrib-
uted in respect of or in exchange for any or all of the Pledged
Shares;
(b) the Pledged Debt and the instruments evidencing
the Pledged Debt, and all interest, cash, instruments and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the Pledged Debt;
(c) all additional shares of, and all securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock of any issuer of the
Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged
Shares) to the extent necessary to cause the Pledged Shares to
include 100% of the shares of, and 100% of the securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock held by Pledgor of any
issuer of the Pledged Shares that is a Domestic Subsidiary of
Pledgor and the lesser of 100% of the shares of, and 100% of
the securities convertible into and warrants, options and other
rights to purchase or otherwise acquire, stock held by Pledgor
or 65% of the shares of, and 65% of the securities convertible
into and warrants, options and other rights to purchase or
otherwise acquire, stock of any issuer of the Pledged Shares
that is a Foreign Subsidiary of Pledgor, the certificates or
other instruments representing such additional shares,
securities, warrants, options or other rights and any interest
of Pledgor in the entries on the books of any financial
intermediary pertaining to such additional shares, and all
XVI-2
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dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of such additional shares, securities, warrants, options or
other rights;
(d) if required pursuant to the Credit Agreement,
all additional indebtedness from time to time owed to Pledgor
by any obligor on the Pledged Debt and the instruments
evidencing such indebtedness, and all interest, cash,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all of such indebtedness;
(e) if required pursuant to the Credit Agreement,
(i) 100% of the shares of, and 100% of the securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock held by Pledgor of any
Person that, after the date of this Agreement, becomes, as a
result of any occurrence, a direct Domestic Subsidiary of
Pledgor (which shares shall be deemed to be part of the Pledged
Shares), and (ii) the lesser of 100% of the shares of, and 100%
of securities convertible into and warrants, options and other
rights to purchase or otherwise acquire, stock held by Pledgor
of or 65% of the shares of, and 65% of the securities
convertible into and warrants, options and other rights to
purchase or otherwise acquire, stock of any Person that, after
the date of this Agreement, becomes as a result of any
occurrence a direct Foreign Subsidiary of Pledgor (which shares
shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such shares,
securities, warrants, options or other rights and any interest
of Pledgor in the entries on the books of any financial
intermediary pertaining to such shares, and all dividends,
cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such
shares, securities, warrants, options or other rights; provided
that in no event shall more than 65% of the shares of any
Foreign Subsidiary of Pledgor be pledged to Secured Party under
this Agreement or any other Loan Document; and
(f) to the extent not covered by clauses (a) and (e)
above, all proceeds of any or all of the foregoing Pledged
Collateral. For purposes of this Agreement, the term
"proceeds" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected
or otherwise disposed of, whether such disposition is voluntary
or involuntary, and includes, without limitation, proceeds of
any indemnity or guaranty payable to Pledgor or Secured Party
from time to time with respect to any of the Pledged
Collateral.
XVI-3
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SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement
secures, and the Pledged Collateral is collateral security for,
the prompt payment or performance in full when due, whether at
stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of
amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. sec. 362(a)), of all obligations and liabilities of
every nature of Pledgor now or hereafter existing under or
arising out of or in connection with the Guaranty and all
extensions or renewals thereof, whether for principal, interest
(including, without limitation, interest that, but for the
filing of a petition in bankruptcy with respect to Company,
would accrue on such obligations, whether or not a claim is
allowed against Company for such interest in the related
bankruptcy proceeding), reimbursement of amounts drawn under
Letters of Credit, fees, expenses, indemnities or otherwise,
whether voluntary or involuntary, direct or indirect, absolute
or contingent, liquidated or unliquidated, whether or not
jointly owed with others, and whether or not from time to time
decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of
such payment is avoided or recovered directly or indirectly
from Secured Party or any Lender as a preference, fraudulent
transfer or otherwise, and all obligations of every nature of
Pledgor now or hereafter existing under this Agreement (all
such obligations of Pledgor being the "Secured Obligations").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All
certificates or instruments representing or evidencing the
Pledged Collateral shall be delivered to and held by or on
behalf of Secured Party pursuant hereto and shall be in
suitable form for transfer by delivery or, as applicable, shall
be accompanied by Pledgor's endorsement, where necessary, or
duly executed instruments of transfer or assignment in blank,
all in form and substance satisfactory to Secured Party. Upon
the occurrence and during the continuation of an Event of
Default (as defined in the Credit Agreement), Secured Party
shall have the right, without notice to Pledgor, to transfer to
or to register in the name of Secured Party or any of its
nominees any or all of the Pledged Collateral, subject only to
the revocable rights specified in Section 7(a). In addition,
Secured Party shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger
denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor
represents and warrants as follows:
XVI-4
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(a) DUE AUTHORIZATION, ETC. OF PLEDGED COLLATERAL.
All of the Pledged Shares have been duly authorized and validly
issued and are fully paid and non-assessable. All of the
Pledged Debt has been duly authorized, authenticated or issued,
and delivered and is the legal, valid and binding obligation of
the issuers thereof and is not in default.
(b) DESCRIPTION OF PLEDGED COLLATERAL. The Pledged
Shares constitute 100% of the issued and outstanding shares of
stock held by Pledgor of each issuer thereof that is a Domestic
Subsidiary of Pledgor and the lesser of 100% of the issued and
outstanding shares of stock held by Pledgor or that number of
the issued and outstanding shares of stock held by Pledgor
which, together with any other shares of stock of such issuer
pledged to Secured Party under this Agreement or any other Loan
Document, is equal to 65% of the issued and outstanding shares
of stock of each issuer thereof that is a Foreign Subsidiary of
Pledgor, and there are no outstanding warrants, options or
other rights to purchase, or other agreements outstanding with
respect to, or property that is now or hereafter convertible
into, or that requires the issuance or sale of, any Pledged
Shares. The Pledged Debt constitutes all of the issued and
outstanding intercompany indebtedness evidenced by a promissory
note of the issuer thereof to Pledgor and arising from any
transfer of the proceeds of the Term Loans and the Initial
Revolving Loans.
(c) OWNERSHIP OF PLEDGED COLLATERAL. Pledgor is the
legal, record and beneficial owner of the Pledged Collateral
free and clear of any Lien except as permitted by the Credit
Agreement.
(d) ORGANIZATION AND POWERS. Pledgor is a
corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation.
Pledgor has all requisite corporate power and authority to own
and operate its properties, to carry on its business as now
conducted and as proposed to be conducted, to enter into this
Agreement and to carry out the transactions contemplated
thereby.
(e) AUTHORIZATION. The execution, delivery and
performance of this Agreement have been duly authorized by all
necessary corporate action on the part of Pledgor.
(f) NO CONFLICT. The execution, delivery and
performance by Pledgor of this Agreement and the consummation
of the transactions contemplated by this Agreement do not and
will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Pledgor or any of
its Subsidiaries, the Certificate or Articles of Incorporation
or Bylaws of Pledgor or any of its Subsidiaries or any order,
XVI-5
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judgment or decree of any court or other agency of government
binding on Pledgor or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual
Obligation of Pledgor or any of its Subsidiaries, (iii) result
in or require the creation or imposition of any Lien upon any
of the properties or assets of Pledgor or any of its Subsid-
iaries (other than any Liens created under any of the Loan
Documents in favor of Administrative Agent on behalf of
Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual
Obligation of Pledgor or any of its Subsidiaries.
(g) GOVERNMENTAL CONSENTS. The execution, delivery
and performance by Pledgor of this Agreement and the consum-
mation of the transactions contemplated by this Agreement do
not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory
body. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge by
Pledgor of the Pledged Collateral pursuant to this Agreement or
(ii) the exercise by Administrative Agent of any rights or
remedies in respect of the Pledged Collateral (whether
specifically granted or created pursuant to this Agreement or
created or provided for by applicable law), except as may be
required, in connection with the disposition of any Pledged
Collateral, by laws generally affecting the offering and sale
of securities.
(h) BINDING OBLIGATION. This Agreement has been
duly executed and delivered by Pledgor and is the legally valid
and binding obligation of Pledgor, enforceable against Pledgor
in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights
generally or by equitable principles relating to
enforceability.
(i) PERFECTION. The pledge of the Pledged
Collateral pursuant to this Agreement creates in favor of
Administrative Agent for the benefit of Lenders, as security
for the Secured Obligations, a valid and perfected First
Priority Lien on all of the Pledged Collateral.
(j) MARGIN REGULATIONS. The pledge of the Pledged
Collateral pursuant to this Agreement does not violate
Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
XVI-6
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(k) INFORMATION REGARDING COLLATERAL. All
information supplied to Administrative Agent by or on behalf of
Pledgor with respect to any of the Pledged Collateral (in each
case taken as a whole with respect to the Pledged Collateral)
is accurate and complete in all material respects.
SECTION 5. TRANSFERS AND OTHER LIENS; ADDITIONAL
PLEDGED COLLATERAL; ETC. Pledgor shall:
(a) not, except as expressly permitted by the Credit
Agreement, (i) sell, assign (by operation of law or otherwise)
or otherwise dispose of, or grant any option with respect to,
any of the Pledged Collateral, (ii) create or suffer to exist
any Lien upon or with respect to any of the Pledged Collateral,
except as permitted by the Credit Agreement, or (iii) permit
any issuer of Pledged Shares to merge or consolidate unless
that percentage of the outstanding capital stock of the
surviving or resulting corporation equal to the percentage of
shares of such issuer set forth opposite the name of such
issuer on Schedule I annexed hereto is, upon such merger or
----------
consolidation, pledged hereunder and no cash, securities or
other property is distributed in respect of the outstanding
shares of any other constituent corporation; PROVIDED that in
the event Pledgor makes an Asset Sale permitted by the Credit
Agreement and the assets subject to such Asset Sale are Pledged
Shares, Secured Party shall release the Pledged Shares that are
the subject of such Asset Sale to Pledgor free and clear of the
lien and security interest under this Agreement concurrently
with the consummation of such Asset Sale; PROVIDED, FURTHER
that, as a condition precedent to such release, Secured Party
shall have received evidence satisfactory to it that
arrangements satisfactory to it have been made for delivery to
Secured Party of the Net Asset Sale Proceeds of such Asset
Sale;
(b) (i) cause each issuer of Pledged Shares not to
issue any stock or other securities in addition to or in
substitution for the Pledged Shares issued by such issuer,
except to Pledgor or to licensed professionals employed by
Pledgor in order to comply with state licensing laws,
(ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional shares
of stock or other securities of each issuer of Pledged Shares
to the extent necessary to cause the percentage of shares of
such issuer pledged hereunder to equal the percentage of shares
set forth opposite the name of such issuer on Schedule I
----------
annexed hereto, and (iii) pledge hereunder, if required
pursuant to the Credit Agreement, immediately upon its
acquisition (directly or indirectly) thereof, 100% of the
shares of stock of any Person held by Pledgor that, after the
XVI-7
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date of this Agreement, becomes, as a result of any occurrence,
a direct Domestic Subsidiary of Pledgor and the lesser of 100%
of the shares of stock held by Pledgor of or 65% of the shares
of stock of any Person that, after the date of this Agreement,
becomes, as a result of any occurrence, a direct Foreign
Subsidiary of Pledgor; provided that in no event shall more
than 65% of the shares of any Foreign Subsidiary of Pledgor be
pledged to Secured Party under this Agreement or any other Loan
Document;
(c) if required pursuant to the Credit Agreement,
(i) pledge hereunder, immediately upon their issuance, any and
all instruments or other evidences of additional indebtedness
from time to time owed to Pledgor by any obligor on the Pledged
Debt, and (ii) pledge hereunder, immediately upon their
issuance, any and all instruments or other evidences of
indebtedness from time to time owed to Pledgor by any Person
that after the date of this Agreement becomes, as a result of
any occurrence, a direct or indirect Subsidiary of Pledgor;
(d) promptly notify Secured Party of any event of
which Pledgor becomes aware causing a material loss or
depreciation in the value of the Pledged Collateral;
(e) promptly deliver to Secured Party all written
notices received by it with respect to the Pledged Collateral;
and
(f) pay promptly when due all taxes, assessments and
governmental charges or levies imposed upon, and all claims
against, the Pledged Collateral, except to the extent the
validity thereof is being contested in good faith; PROVIDED
that Pledgor shall in any event pay such taxes, assessments,
charges, levies or claims not later than five days prior to the
date of any proposed sale under any judgement, writ or warrant
of attachment entered or filed against Pledgor or any of the
Pledged Collateral as a result of the failure to make such
payment.
SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Pledgor agrees that from time to time, at the
expense of Pledgor, Pledgor will promptly execute and deliver
all further instruments and documents, and take all further
action, that may be necessary or desirable, or that Secured
Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby
or to enable Secured Party to exercise and enforce its rights
and remedies hereunder with respect to any Pledged Collateral.
Without limiting the generality of the foregoing, Pledgor will:
(i) execute and file such financing or continuation statements,
or amendments thereto, and such other instruments or notices,
XVI-8
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as may be necessary or desirable, or as Secured Party may
reasonably request, in order to perfect and preserve the
security interests granted or purported to be granted hereby
and (ii) at Secured Party's request, appear in and defend any
action or proceeding that may affect Pledgor's title to or
Secured Party's security interest in all or any part of the
Pledged Collateral.
(b) Pledgor further agrees that it will, upon
obtaining any additional shares of stock or other securities
required to be pledged hereunder as provided in Section 5(b) or
(c), promptly (and in any event within five Business Days)
deliver to Secured Party a Pledge Amendment, duly executed by
Pledgor, in substantially the form of Schedule II annexed
-----------
hereto (a "Pledge Amendment"), in respect of the additional
Pledged Shares or Pledged Debt to be pledged pursuant to this
Agreement. Pledgor hereby authorizes Secured Party to attach
each Pledge Amendment to this Agreement and agrees that all
Pledged Shares or Pledged Debt listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be
considered Pledged Collateral; PROVIDED that the failure of
Pledgor to execute a Pledge Amendment with respect to any
additional Pledged Shares or Pledged Debt pledged pursuant to
this Agreement shall not impair the security interest of
Secured Party therein or otherwise adversely affect the rights
and remedies of Secured Party hereunder with respect thereto.
SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have
occurred and be continuing:
(i) Pledgor shall be entitled to exercise any
and all voting and other consensual rights pertaining to
the Pledged Collateral or any part thereof for any purpose
not inconsistent with the terms of this Agreement or the
Credit Agreement; PROVIDED, HOWEVER, that Pledgor shall
not exercise or refrain from exercising any such right if
Secured Party shall have notified Pledgor in writing that,
in Secured Party's reasonable judgment, such action would
have a material adverse effect on the value of the Pledged
Collateral or any part thereof; and PROVIDED, FURTHER,
that Pledgor shall give Secured Party at least five
Business Days' prior written notice of the manner in which
it intends to exercise, or the reasons for refraining from
exercising, any such right. It is understood, however,
that neither (A) the voting by Pledgor of any Pledged
Shares for or Pledgor's consent to the election of
directors either by written consent or at a regularly
scheduled annual or other meeting of stockholders or with
respect to incidental matters at any such meeting nor
XVI-9
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(B) Pledgor's consent to or approval of any action
otherwise permitted under this Agreement and the Credit
Agreement shall be deemed inconsistent with the terms of
this Agreement or the Credit Agreement within the meaning
of this Section 7(a)(i), and no notice of any such voting
or consent need be given to Secured Party;
(ii) Pledgor shall be entitled to receive and
retain, and to utilize free and clear of the lien of this
Agreement, any and all dividends and interest paid in
respect of the Pledged Collateral; PROVIDED, HOWEVER, that
except as permitted by the Credit Agreement any and all
(A) dividends and interest paid or payable
other than in cash in respect of, and instruments and
other property received, receivable or otherwise
distributed in respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other distributions paid
or payable in cash in respect of any Pledged
Collateral in connection with a partial or total
liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-
surplus, and
(C) cash paid, payable or otherwise
distributed in respect of principal or in redemption
of or in exchange for any Pledged Collateral,
shall be, and shall forthwith be delivered to Secured
Party to hold as, Pledged Collateral and shall, if
received by Pledgor, be received in trust for the benefit
of Secured Party, be segregated from the other property or
funds of Pledgor and be forthwith delivered to Secured
Party as Pledged Collateral in the same form as so
received (with all necessary indorsements); and
(iii) Secured Party shall promptly execute and
deliver (or cause to be executed and delivered) to Pledgor
all such proxies, dividend payment orders and other
instruments as Pledgor may from time to time reasonably
request for the purpose of enabling Pledgor to exercise
the voting and other consensual rights which it is
entitled to exercise pursuant to paragraph (i) above and
to receive the dividends, principal or interest payments
which it is authorized to receive and retain pursuant to
paragraph (ii) above.
(b) Upon the occurrence and during the continuation
of an Event of Default:
XVI-10
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(i) upon written notice from Secured Party to
Pledgor, all rights of Pledgor to exercise the voting and
other consensual rights which it would otherwise be
entitled to exercise pursuant to Section 7(a)(i) shall
cease, and all such rights shall thereupon become vested
in Secured Party who shall thereupon have the sole right
to exercise such voting and other consensual rights;
(ii) all rights of Pledgor to receive the
dividends and interest payments which it would otherwise
be authorized to receive and retain pursuant to Section
7(a)(ii) shall cease, and all such rights shall thereupon
become vested in Secured Party who shall thereupon have
the sole right to receive and hold as Pledged Collateral
such dividends and interest payments; and
(iii) all dividends, principal and interest pay-
ments which are received by Pledgor contrary to the provi-
sions of paragraph (ii) of this Section 7(b) shall be
received in trust for the benefit of Secured Party, shall
be segregated from other funds of Pledgor and shall
forthwith be paid over to Secured Party as Pledged
Collateral in the same form as so received (with any
necessary indorsements).
(c) In order to permit Secured Party to exercise the
voting and other consensual rights which it may be entitled to
exercise pursuant to Section 7(b)(i) and to receive all
dividends and other distributions which it may be entitled to
receive under Section 7(a)(ii) or Section 7(b)(ii), (i) Pledgor
shall promptly execute and deliver (or cause to be executed and
delivered) to Secured Party all such proxies, dividend payment
orders and other instruments as Secured Party may from time to
time reasonably request and (ii) without limiting the effect of
the immediately preceding clause (i), Pledgor hereby grants to
Secured Party an irrevocable proxy to vote the Pledged Shares
and to exercise all other rights, powers, privileges and
remedies to which a holder of the Pledged Shares would be
entitled (including, without limitation, giving or withholding
written consents of shareholders, calling special meetings of
shareholders and voting at such meetings), which proxy shall be
effective, automatically and without the necessity of any
action (including any transfer of any Pledged Shares on the
record books of the issuer thereof) by any other Person
(including the issuer of the Pledged Shares or any officer or
agent thereof), upon the occurrence and during the continuance
of an Event of Default and which proxy shall only terminate
upon the payment in full of the Secured Obligations.
SECTION 8. SECURED PARTY APPOINTED ATTORNEY-IN-
FACT. Pledgor hereby irrevocably appoints Secured Party as
Pledgor's attorney-in-fact, with full authority in the place
XVI-11
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and stead of Pledgor and in the name of Pledgor, Secured Party
or otherwise, from time to time in Secured Party's discretion
to take any action and to execute any instrument that Secured
Party may deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation:
(a) to file one or more financing or continuation
statements, or amendments thereto, relative to all or any part
of the Pledged Collateral without the signature of Pledgor;
(b) to ask, demand, collect, sue for, recover,
compound, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of the Pledged
Collateral;
(c) to receive, endorse and collect any instruments
made payable to Pledgor representing any dividend, principal or
interest payment or other distribution in respect of the
Pledged Collateral or any part thereof and to give full
discharge for the same; and
(d) to file any claims or take any action or
institute any proceedings that Secured Party may deem necessary
or desirable for the collection of any of the Pledged
Collateral or otherwise to enforce the rights of Secured Party
with respect to any of the Pledged Collateral.
SECTION 9. SECURED PARTY MAY PERFORM. If Pledgor
fails to perform any agreement contained herein, Secured Party
may itself perform, or cause performance of, such agreement,
and the expenses of Secured Party incurred in connection
therewith shall be payable by Pledgor under Section 13(b).
SECTION 10. STANDARD OF CARE. The powers conferred
on Secured Party hereunder are solely to protect its interest
in the Pledged Collateral and shall not impose any duty upon it
to exercise any such powers. Except for the exercise of
reasonable care in the custody of any Pledged Collateral in its
possession and the accounting for moneys actually received by
it hereunder, Secured Party shall have no duty as to any
Pledged Collateral, it being understood that Secured Party
shall have no responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to any Pledged
Collateral, whether or not Secured Party has or is deemed to
have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care
set forth above to maintain possession of the Pledged
Collateral) to preserve rights against any parties with respect
to any Pledged Collateral, (c) taking any necessary steps to
collect or realize upon the Secured Obligations or any
guarantee therefor, or any part thereof, or any of the Pledged
XVI-12
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Collateral, or (d) initiating any action to protect the Pledged
Collateral against the possibility of a decline in market
value. Secured Party shall be deemed to have exercised
reasonable care in the custody and preservation of Pledged
Collateral in its possession if such Pledged Collateral is
accorded treatment substantially equal to that which Secured
Party accords its own property consisting of negotiable
securities.
SECTION 11. REMEDIES.
(a) If any Event of Default shall have occurred and
be continuing, Secured Party may exercise in respect of the
Pledged Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the
Uniform Commercial Code as in effect in any relevant
jurisdiction (the "Code") (whether or not the Code applies to
the affected Pledged Collateral), and Secured Party may also in
its sole discretion, without notice except as specified below,
sell the Pledged Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange or broker's
board or at any of Secured Party's offices or elsewhere, for
cash, on credit or for future delivery, at such time or times
and at such price or prices and upon such other terms as
Secured Party may deem commercially reasonable, irrespective of
the impact of any such sales on the market price of the Pledged
Collateral. Secured Party or any Lender may be the purchaser
of any or all of the Pledged Collateral at any such sale and
Secured Party, as agent for and representative of Lenders (but
not any Lender or Lenders in its or their respective individual
capacities unless Requisite Lenders shall otherwise agree in
writing), shall be entitled, for the purpose of bidding and
making settlement or payment of the purchase price for all or
any portion of the Pledged Collateral sold at any such public
sale, to use and apply any of the Secured Obligations as a
credit on account of the purchase price for any Pledged
Collateral payable by Secured Party at such sale. Each
purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Pledgor,
and Pledgor hereby waives (to the extent permitted by
applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted.
Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten days' notice to Pledgor of the
time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable
notification. Secured Party shall not be obligated to make any
sale of Pledged Collateral regardless of notice of sale having
been given. Secured Party may adjourn any public or private
sale from time to time by announcement at the time and place
XVI-13
Page 377 of 424 <PAGE>
fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
Pledgor hereby waives any claims against Secured Party arising
by reason of the fact that the price at which any Pledged
Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale,
even if Secured Party accepts the first offer received and does
not offer such Pledged Collateral to more than one offeree. If
the proceeds of any sale or other disposition of the Pledged
Collateral are insufficient to pay all the Secured Obliga-
tions, Pledgor shall be liable for the deficiency and the fees
of any attorneys employed by Secured Party to collect such
deficiency.
(b) Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable
state securities laws, Secured Party may be compelled, with
respect to any sale of all or any part of the Pledged Collat-
eral conducted without prior registration or qualification of
such Pledged Collateral under the Securities Act and/or such
state securities laws, to limit purchasers to those who will
agree, among other things, to acquire the Pledged Collateral
for their own account, for investment and not with a view to
the distribution or resale thereof. Pledgor acknowledges that
any such private sales may be at prices and on terms less
favorable than those obtainable through a public sale without
such restrictions (including, without limitation, a public
offering made pursuant to a registration statement under the
Securities Act) and, notwithstanding such circumstances,
Pledgor agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner and that
Secured Party shall have no obligation to engage in public
sales and no obligation to delay the sale of any Pledged
Collateral for the period of time necessary to permit the
issuer thereof to register it for a form of public sale
requiring registration under the Securities Act or under
applicable state securities laws, even if such issuer would
agree to so register it.
(c) If Secured Party determines to exercise its
right to sell any or all of the Pledged Collateral, upon
written request, Pledgor shall and shall cause each issuer of
any Pledged Shares to be sold hereunder from time to time to
furnish to Secured Party all such information as Secured Party
may reasonably request in order to determine the number of
shares and other instruments included in the Pledged Collateral
which may be sold by Secured Party in exempt transactions under
the Securities Act and the rules and regulations of the
Securities and Exchange Commission thereunder, as the same are
from time to time in effect.
XVI-14
Page 378 of 424 <PAGE>
SECTION 12. APPLICATION OF PROCEEDS. Except as
expressly provided in the Credit Agreement with respect to
Asset Sales, all proceeds received by Secured Party in respect
of any sale of, collection from, or other realization upon all
or any part of the Pledged Collateral may, in the discretion of
Secured Party, be held by Secured Party as Pledged Collateral
for, and/or then, or at any time thereafter, applied in full or
in part by Secured Party against, the Secured Obligations in
the following order of priority:
(a) To the payment of costs and expenses of such
sale, collection or other realization, including
reasonable compensation to Secured Party and its agents
and counsel, and all other expenses, liabilities and
advances made or incurred by Secured Party in connection
therewith, and all amounts for which Secured Party is
entitled to indemnification hereunder and all advances
made by Secured Party hereunder for the account of
Pledgor, and to the payment of all costs and expenses paid
or incurred by Secured Party in connection with the
exercise of any right or remedy hereunder, all in
accordance with Section 13;
(b) Thereafter, to the extent of any excess such
proceeds, to the payment of all other Secured Obligations
for the ratable benefit of the holders thereof; and
(c) Thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of Pledgor,
or to whosoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
SECTION 13. INDEMNITY AND EXPENSES.
(a) Pledgor agrees to indemnify Secured Party and
each Lender from and against any and all claims, losses and
liabilities in any way relating to, growing out of or resulting
from this Agreement and the transactions contemplated hereby
(including, without limitation, enforcement of this Agree-
ment), except to the extent such claims, losses or liabilities
result solely from Secured Party's or such Lender's gross
negligence or willful misconduct as finally determined by a
court of competent jurisdiction.
(b) Pledgor shall pay to Secured Party upon demand
the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and of any experts
and agents, that Secured Party may incur in connection with
(i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (iii) the
exercise or enforcement of any of the rights of Secured Party
XVI-15
Page 379 of 424 <PAGE>
hereunder, or (iv) the failure by Pledgor to perform or observe
any of the provisions hereof.
SECTION 14. CONTINUING SECURITY INTEREST; TRANSFER
OF LOANS. This Agreement shall create a continuing security
interest in the Pledged Collateral and shall (a) remain in full
force and effect until the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments
and the cancellation or expiration of all outstanding Letters
of Credit, (b) be binding upon Pledgor, its successors and
assigns, and (c) inure, together with the rights and remedies
of Secured Party hereunder, to the benefit of Secured Party and
its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the
provisions of subsection 10.1 of the Credit Agreement, any
Lender may assign or otherwise transfer any Loans held by it to
any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to
Lenders herein or otherwise. Upon the payment in full of all
Secured Obligations, the cancellation or termination of the
Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted
hereby shall terminate and all rights to the Pledged Collateral
shall revert to Pledgor. Upon any such termination Secured
Party will, at Pledgor's expense, execute and deliver to
Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the
return, upon its request and at its expense, against receipt
and without recourse to Secured Party, of such of the Pledged
Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof.
SECTION 15. SECURED PARTY AS ADMINISTRATIVE AGENT.
(a) Secured Party has been appointed to act as
Secured Party hereunder by Lenders. Secured Party shall be
obligated, and shall have the right hereunder, to make demands,
to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action
(including, without limitation, the release or substitution of
Pledged Collateral), solely in accordance with this Agreement
and the Credit Agreement; PROVIDED that Secured Party shall
exercise, or refrain from exercising, any remedies provided for
in Section 11 in accordance with the instructions of Requisite
Lenders, or all Lenders, as the case may be.
(b) Secured Party shall at all times be the same
Person that is Administrative Agent under the Credit Agreement.
Written notice of resignation by Administrative Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute
notice of resignation as Secured Party under this Agreement;
removal of Administrative Agent pursuant to subsection 9.5 of
XVI-16
Page 380 of 424 <PAGE>
the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor
Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute appointment of a successor
Secured Party under this Agreement. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the
Credit Agreement by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring or removed Secured Party under this
Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured
Party all sums, securities and other items of Collateral held
hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of
the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party
such amendments to financing statements, and take such other
actions, as may be necessary or appropriate in connection with
the assignment to such successor Secured Party of the security
interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and
obligations under this Agreement. After any retiring or
removed Administrative Agent's resignation or removal hereunder
as Secured Party, the provisions of this Agreement shall inure
to its benefit as to any actions taken or omitted to be taken
by it under this Agreement while it was Secured Party
hereunder.
Section 16. ADDITIONAL PLEDGORS. The initial
Pledgors hereunder shall be such of the Subsidiaries of Company
as are signatories hereto on the date hereof. From time to
time subsequent to the date hereof, additional Subsidiaries of
Company may become parties hereto, as additional Pledgors (each
an "Additional Pledgor"), by executing a counterpart of this
Agreement. Upon delivery of any such counterpart to
Administrative Agent, notice of which is hereby waived by
Pledgors, each such Additional Pledgor shall be a Pledgor and
shall be as fully a party hereto as if such Additional Pledgor
were an original signatory hereof. Each Pledgor expressly
agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other
Pledgor hereunder, nor by any election of Administrative Agent
not to cause any Subsidiary of Company to become an Additional
Pledgor hereunder. This Agreement shall be fully effective as
to any Pledgor that is or becomes a party hereto regardless of
whether any other Person becomes or fails to become or ceases
to be a Pledgor hereunder.
SECTION 17. AMENDMENTS; ETC. No amendment,
modification, termination or waiver of any provision of this
Agreement, and no consent to any departure by Pledgor
XVI-17
Page 381 of 424 <PAGE>
therefrom, shall in any event be effective unless the same
shall be in writing and signed by Secured Party and, in the
case of any such amendment or modification, by Pledgor. Any
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 18. NOTICES. Any notice or other
communication herein required or permitted to be given shall be
in writing and may be personally served or sent by tele-
facsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by
courier service, upon receipt of telefacsimile or three
Business Days after depositing it in the United States mail
with postage prepaid and properly addressed. For the purposes
hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or, as to
either party, such other address as shall be designated by such
party in a written notice delivered to the other party hereto.
SECTION 19. FAILURE OR INDULGENCE NOT WAIVER;
REMEDIES CUMULATIVE. No failure or delay on the part of
Secured Party in the exercise of any power, right or privilege
hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such
power, right or privilege preclude any other or further
exercise thereof or of any other power, right or privilege.
All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies
otherwise available.
SECTION 20. SEVERABILITY. In case any provision in
or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 21. HEADINGS. Section and subsection
headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive
effect. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement
unless otherwise specifically provided.
SECTION 22. GOVERNING LAW; TERMS. THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
(INCLUDING, WITHOUT LIMITATION, SECTION 1646.5 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS
XVI-18
Page 382 of 424 <PAGE>
OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES
THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF CALIFORNIA. Unless otherwise defined herein
or in the Credit Agreement, terms used in Articles 8 and 9 of
the Uniform Commercial Code of the State of California are used
herein as therein defined.
SECTION 23. CONSENT TO JURISDICTION AND SERVICE OF
PROCESS. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY
OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA,
COUNTY AND CITY OF SAN FRANCISCO. BY EXECUTING AND DELIVERING
THIS AGREEMENT, PLEDGOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO PLEDGOR AT
ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 18;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
PLEDGOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT;
(V) AGREES THAT SECURED PARTY RETAINS THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST PLEDGOR IN THE COURTS OF ANY
OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 23
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 410.40 OR
OTHERWISE.
SECTION 24. WAIVER OF JURY TRIAL. PLEDGOR AND
SECURED PARTY HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter
of this transaction, including without limitation contract
XVI-19
Page 383 of 424 <PAGE>
claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Pledgor and Secured Party
each acknowledge that this waiver is a material inducement for
Pledgor and Secured Party to enter into a business relation-
ship, that Pledgor and Secured Party have already relied on
this waiver in entering into this Agreement and that each will
continue to rely on this waiver in their related future
dealings. Pledgor and Secured Party further warrant and
represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 24 AND EXECUTED
BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. In the event of litigation,
this Agreement may be filed as a written consent to a trial by
the court.
SECTION 25. COUNTERPARTS. This Agreement may be
executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document. This Agreement shall become effective as to each
Pledgor upon the execution of a counterpart hereof by such
Pledgor (whether or not a counterpart hereof shall have been
executed by any other Pledgor) and receipt by Secured Party of
written or telephonic notification of such execution and
authorization of delivery thereof.
[Remainder of page intentionally left blank]
XVI-20
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IN WITNESS WHEREOF, Pledgor and Secured Party have
caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the
date first written above.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative
Agent, as Secured Party
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:
_________________________________
_________________________________
_________________________________
[NAME OF PLEDGOR]
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
XVI-S-1
Page 385 of 424 <PAGE>
IN WITNESS WHEREOF, the undersigned Additional
Pledgor has caused this Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of
______________, 199_.
Attached hereto is Schedule I of this Agreement,
----------
completed with respect to the undersigned Additional Pledgor.
[NAME OF ADDITIONAL PLEDGOR]
By:___________________________________
Name:_________________________________
Title:________________________________
Address:______________________________
______________________________________
______________________________________
XVI-S-2
Page 386 of 424 <PAGE>
SCHEDULE I
Attached to and forming a part of the Pledge
Agreement dated as of January 10, 1996 between
_____________________, the parties on the signature pages
thereof, each as a Pledgor, and Wells Fargo Bank, National
Association, as Administrative Agent, as Secured Party.
Part A
Percent-
Stock age of
Certi- Number Out-
Stock Class of ficate Par of standing
Issuer Stock Nos. Value Shares Shares
------ -------- ------ ------ ------- --------
Part B
Debt Issuer Amount of Indebtedness
----------- ----------------------
XVI-I-1
Page 387 of 424 <PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ____________, 199__, is
delivered pursuant to Section 6(b) of the Pledge Agreement
referred to below. The undersigned hereby agrees that this
Pledge Amendment may be attached to the Pledge Agreement dated
January 10, 1996, between the undersigned, the parties on the
signature pages thereof, each as a Pledgor, and Wells Fargo
Bank, National Association, as Administrative Agent, as Secured
Party (the "Pledge Agreement," capitalized terms defined
therein being used herein as therein defined), and that the
Pledged Shares listed on this Pledge Amendment shall be deemed
to be part of the Pledged Shares and shall become part of the
Pledged Collateral and shall secure all Secured Obligations.
[NAME OF PLEDGOR]
By:______________________________
Name:____________________________
Title:___________________________
Stock
Certi- Number
Stock Class of ficate Par of
Issuer Stock Nos. Value Shares
------ -------- ------ ------ -------
Debt Issuer Amount of Indebtedness
----------- ----------------------
XVI-II-1
Page 388 of 424 <PAGE>
EXHIBIT XVII
[FORM OF SUBSIDIARY SECURITY AGREEMENT]
SUBSIDIARY SECURITY AGREEMENT
This SUBSIDIARY SECURITY AGREEMENT (this "Agreement")
is dated as of January 10, 1996 and entered into by and between
THE UNDERSIGNED (each a "Grantor" and collectively,
"Grantors"), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Administrative Agent on behalf of the Lenders party to the
Credit Agreement referred to below (in such capacity herein
called "Secured Party").
PRELIMINARY STATEMENTS
A. Secured Party and Lenders have entered into a
Credit Agreement dated as of January 10, 1996 (said Credit
Agreement, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "Credit
Agreement", the terms defined therein and not otherwise defined
herein being used herein as therein defined) with URS
Corporation, a Delaware corporation ("Company"), pursuant to
which Lenders have made certain commitments, subject to the
terms and conditions set forth in the Credit Agreement, to
extend certain credit facilities to Company.
B. Grantor has executed and delivered that certain
Subsidiary Guaranty dated as of January 10, 1996 (said
Subsidiary Guaranty, as it may hereafter be amended,
supplemented or otherwise modified from time to time, being the
"Guaranty") in favor of Secured Party for the benefit of
Lenders, pursuant to which Grantor has guarantied the prompt
payment and performance when due of all obligations of Company
under the Credit Agreement and the other Loan Documents.
C. It is a condition precedent to the initial
extensions of credit by Lenders under the Credit Agreement that
Grantor shall have granted the security interests and
undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and
in order to induce Lenders to make Loans and other extensions
of credit under the Credit Agreement and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Grantor hereby agrees with Secured Party
as follows:
XVII-1
Page 389 of 424 <PAGE>
SECTION 1. GRANT OF SECURITY. Grantor hereby
assigns to Secured Party, and hereby grants to Secured Party a
security interest in, all of Grantor's right, title and
interest in and to the following, in each case whether now or
hereafter existing or in which Grantor now has or hereafter
acquires an interest and wherever the same may be located (the
"Collateral"):
(a) all inventory in all of its forms (including,
but not limited to, (i) all goods held by Grantor for sale or
lease or to be furnished under contracts of service or so
leased or furnished, (ii) all raw materials, work in process,
finished goods, and materials used or consumed in the
manufacture, packing, shipping, advertising, selling, leasing,
furnishing or production of such inventory or otherwise used or
consumed in Grantor's business, (iii) all goods in which
Grantor has an interest in mass or a joint or other interest or
right of any kind, and (iv) all goods which are returned to or
repossessed by Grantor and all accessions thereto and products
thereof (all such inventory, accessions and products being the
"Inventory") and all negotiable documents of title (including,
without limitation, warehouse receipts, dock receipts and bills
of lading) issued by any Person covering any Inventory;
(b) all accounts, accounts receivable, chattel
paper, documents, instruments, general intangibles and other
rights and obligations of any kind and all rights in, to and
under all guaranties, warranties, indemnity agreements,
insurance policies, security agreements, leases and other
contracts securing or otherwise relating to any such accounts,
accounts receivable, chattel paper, documents, instruments,
general intangibles or other obligations (any and all such
accounts, accounts receivable, chattel paper, documents,
instruments, general intangibles and other rights and
obligations being the "Accounts", and any and all such
guaranties, warranties, indemnity agreements, insurance
policies, security agreements, leases and other contracts being
the "Related Contracts");
(c) all deposit accounts, including, without
limitation, the deposit accounts listed on Schedule I annexed
----------
hereto and all other deposit accounts maintained by Grantor;
(d) all trademarks, tradenames, tradesecrets,
business names, patents, patent applications, licenses,
copyrights, registrations and franchise rights, and all
goodwill associated with any of the foregoing;
(e) to the extent not included in any other
paragraph of this Section 1, all other general intangibles
(including, without limitation, tax refunds, rights to payment
XVII-2
Page 390 of 424 <PAGE>
or performance, choses in action and judgments taken on any
rights or claims included in the Collateral);
(f) all books, records, ledger cards, files,
correspondence, computer programs, tapes, disks and related
data processing software that at any time evidence or contain
information relating to any of the Collateral or are otherwise
necessary or helpful in the collection thereof or realization
thereupon; and
(g) all proceeds, products, rents and profits of or
from any and all of the foregoing Collateral and, to the extent
not otherwise included, all payments under insurance (whether
or not Secured Party is the loss payee thereof), or any
indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing
Collateral;
PROVIDED, HOWEVER, that there shall be excluded from Collateral
all (i) equipment, (ii) leasehold improvements, (iii) furni-
ture, (iv) fixtures, (v) software, and (vi) other tangible
personal property, in each case, not otherwise specifically
included in this Section 1. For purposes of this Agreement,
the term "proceeds" includes whatever is receivable or received
when Collateral or proceeds are sold, leased, exchanged,
collected or otherwise disposed of, whether such disposition is
voluntary or involuntary, including, without limitation, all
Accounts, including returned premiums, with respect to any
insurance relating to any of the foregoing, and all Accounts
with respect to any cause of action relating to any of the
foregoing.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement
secures, and the Collateral is collateral security for, the
prompt payment or performance in full when due, whether at
stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including the payment of
amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. sec. 362(a)), of all obligations and liabilities of
every nature of Grantor now or hereafter existing under or
arising out of or in connection with the Guaranty and all
extensions or renewals thereof, whether for principal, interest
(including, without limitation, interest that, but for the
filing of a petition in bankruptcy with respect to Company,
would accrue on such obligations, whether or not a claim is
allowed against Company for such interest in the related
bankruptcy proceeding), reimbursement of amounts drawn under
Letters of Credit, fees, expenses, indemnities or otherwise,
whether voluntary or involuntary, direct or indirect, absolute
or contingent, liquidated or unliquidated, whether or not
jointly owed with others, and whether or not from time to time
XVII-3
Page 391 of 424 <PAGE>
decreased or extinguished and later increased, created or
incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of
such payment is avoided or recovered directly or indirectly
from Secured Party or any Lender as a preference, fraudulent
transfer or otherwise and all obligations of every nature of
Grantor now or hereafter existing under this Agreement (all
such obligations of Grantor being the "Secured Obligations").
SECTION 3. GRANTOR REMAINS LIABLE. Anything
contained herein to the contrary notwithstanding, (a) Grantor
shall remain liable under any contracts and agreements included
in the Collateral, to the extent set forth therein, to perform
all of its duties and obligations thereunder to the same extent
as if this Agreement had not been executed, (b) the exercise by
Secured Party of any of its rights hereunder shall not release
Grantor from any of its duties or obligations under the
contracts and agreements included in the Collateral, and
(c) Secured Party shall not have any obligation or liability
under any contracts and agreements included in the Collateral
by reason of this Agreement, nor shall Secured Party be
obligated to perform any of the obligations or duties of
Grantor thereunder or to take any action to collect or enforce
any claim for payment assigned hereunder.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Grantor
represents and warrants as follows:
(a) OWNERSHIP OF COLLATERAL. Except for the
security interest created by this Agreement, Grantor owns the
Collateral free and clear of any Lien.
(b) LOCATION OF INVENTORY. All of the Inventory is,
as of the date hereof, located at the places specified in
Schedule II annexed hereto.
-----------
(c) ASSIGNABILITY. Except as set forth on
Schedule III annexed hereto, no contract entered into by
------------
Grantor and between or among the government of the United
States of America, or any agency or division thereof, prohibits
the assignment of such contract by Grantor to Secured Party.
(d) OFFICE LOCATIONS; OTHER NAMES. The chief place
of business, the chief executive office and the office where
Grantor keeps its records regarding the Accounts and all
originals of all chattel paper that evidence Accounts is, and
has been for the four month period preceding the date hereof,
located at the addresses set forth on Schedule III annexed
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XVII-4
Page 392 of 424 <PAGE>
hereto. Grantor has not in the past done, and does not now do,
business under any other name (including any trade-name or
fictitious business name), except as set forth on Schedule IV
-----------
annexed hereto.
(e) DELIVERY OF CERTAIN COLLATERAL. All notes and
other instruments (excluding checks) comprising any and all
items of Collateral have been delivered to Secured Party duly
endorsed and accompanied by duly executed instruments of
transfer or assignment in blank.
(f) ORGANIZATION AND POWERS. Grantor is a
corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation.
Grantor has all requisite corporate power and authority to own
and operate its properties, to carry on its business as now
conducted and as proposed to be conducted, to enter into this
Agreement and to carry out the transactions contemplated
thereby.
(g) AUTHORIZATION OF BORROWING. The execution,
delivery and performance of this Agreement have been duly
authorized by all necessary corporate action on the part of
Grantor.
(h) NO CONFLICT. The execution, delivery and
performance by Grantor of this Agreement and the consummation
of the transactions contemplated by this Agreement and will not
(i) violate any provision of any law or any governmental rule
or regulation applicable to Grantor or any of its Subsidiaries,
the Certificate or Articles of Incorporation or Bylaws of
Grantor or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on
Grantor or any of its Subsidiaries, (ii) conflict with, result
in a breach of or constitute (with due notice or lapse of time
or both) a default under any Contractual Obligation of Grantor
or any of its Subsidiaries, (iii) result in or require the
creation or imposition of any Lien upon any of the properties
or assets of Grantor or any of its Subsidiaries (other than any
Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Grantor or any of
its Subsidiaries.
(i) GOVERNMENTAL CONSENTS. The execution, delivery
and performance by Grantor of this Agreement and the consum-
mation of the transactions contemplated by this Agreement do
not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory
XVII-5
Page 393 of 424 <PAGE>
body. No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required for either (i) the grant by Grantor
of the Liens purported to be created in favor of Administrative
Agent pursuant to this Agreement or (ii) the exercise by
Administrative Agent of any rights or remedies in respect of
any Collateral (whether specifically granted or created
pursuant to this Agreement or created or provided for by
applicable law), except for filings or recordings contemplated
by the Credit Agreement.
(j) BINDING OBLIGATION. This Agreement has been
duly executed and delivered by Grantor and is the legally valid
and binding obligation of Grantor, enforceable against Grantor
in accordance with its respective terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights
generally or by equitable principles relating to
enforceability.
(k) CREATION, PERFECTION AND PRIORITY OF LIENS.
This Agreement together with the filing described in the Credit
Agreement are effective to create in favor of Administrative
Agent for the benefit of Lenders, as security for the Secured
Obligations, a valid and perfected First Priority Lien on all
of the Collateral, and all filings and other actions necessary
or desirable to perfect and maintain the perfection and First
Priority status of such Liens have been duly made or taken and
remain in full force and effect, other than the periodic filing
of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
(l) ABSENCE OF THIRD-PARTY FILINGS. Except such as
may have been filed in favor of Administrative Agent, no
effective UCC financing statement, fixture filing or other
instrument similar in effect covering all or any part of the
Collateral is on file in any filing or recording office.
(m) INFORMATION REGARDING COLLATERAL. All
information supplied to Administrative Agent by or on behalf of
Grantor with respect to any of the Collateral (in each case
taken as a whole with respect to any particular Collateral) is
accurate and complete in all material respects.
SECTION 5. FURTHER ASSURANCES.
(a) Grantor agrees that from time to time, at the
expense of Grantor, Grantor will promptly execute and deliver
all further instruments and documents, and take all further
action, that may be necessary or desirable, or that Secured
Party may reasonably request, in order to perfect and protect
any security interest granted or purported to be granted hereby
XVII-6
Page 394 of 424 <PAGE>
or to enable Secured Party to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, Grantor will:
(i) mark conspicuously each item of chattel paper included in
the Accounts, each Related Contract and, at the request of
Secured Party, each of its records pertaining to the
Collateral, with a legend, in form and substance satisfactory
to Secured Party, indicating that such Collateral is subject to
the security interest granted hereby, (ii) at the request of
Secured Party, deliver and pledge to Secured Party hereunder
all promissory notes and other instruments (including checks)
and all original counterparts of chattel paper constituting
Collateral, duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and
substance satisfactory to Secured Party, (iii) execute and file
such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be
necessary or desirable, or as Secured Party may request, in
order to perfect and preserve the security interests granted or
purported to be granted hereby, and (iv) at Secured Party's
request, appear in and defend any action or proceeding that may
affect Grantor's title to or Secured Party's security interest
in all or any part of the Collateral.
(b) Grantor hereby authorizes Secured Party to file
one or more financing or continuation statements, and
amendments thereto, relative to all or any part of the
Collateral without the signature of Grantor. Grantor agrees
that a carbon, photographic or other reproduction of this
Agreement or of a financing statement signed by Grantor shall
be sufficient as a financing statement and may be filed as a
financing statement in any and all jurisdictions.
(c) Grantor will furnish to Secured Party from time
to time statements and schedules further identifying and
describing the Collateral and such other reports in connection
with the Collateral as Secured Party may reasonably request,
all in reasonable detail.
SECTION 6. CERTAIN COVENANTS OF GRANTOR. Grantor
shall:
(a) not use or permit any Collateral to be used
unlawfully or in violation of any provision of this Agreement
or any applicable statute, regulation or ordinance or any
policy of insurance covering the Collateral;
(b) notify Secured Party of any change in Grantor's
name, identity or corporate structure within 15 days of such
change;
XVII-7
Page 395 of 424 <PAGE>
(c) give Secured Party 30 days' prior written notice
of any change in Grantor's chief place of business, chief
executive office or residence or the office where Grantor keeps
its records regarding the Accounts and all originals of all
chattel paper that evidence Accounts;
(d) if Secured Party gives value to enable Grantor
to acquire rights in or the use of any Collateral, use such
value for such purposes; and
(e) pay promptly when due all property and other
taxes, assessments and governmental charges or levies imposed
upon, and all claims against, the Collateral, except to the
extent the validity thereof is being contested in good faith;
PROVIDED that Grantor shall in any event pay such taxes,
assessments, charges, levies or claims not later than five days
prior to the date of any proposed sale under any judgment, writ
or warrant of attachment entered or filed against Grantor or
any of the Collateral as a result of the failure to make such
payment.
SECTION 7. SPECIAL COVENANTS WITH RESPECT TO
INVENTORY. Grantor shall keep correct and accurate records of
the Inventory and keep the Inventory at the places therefor
specified on Schedule II annexed hereto or, upon 30 days' prior
-----------
written notice to Secured Party, at such other places in
jurisdictions where all action that may be necessary or
desirable, or that Secured Party may reasonably request, in
order to perfect and protect any security interest granted or
purported to be granted hereby, or to enable Secured Party to
exercise and enforce its rights and remedies hereunder, with
respect to such Inventory shall have been taken.
SECTION 8. SPECIAL COVENANTS WITH RESPECT TO
ACCOUNTS AND RELATED CONTRACTS.
(a) Grantor shall keep its chief place of business
and chief executive office and the office where it keeps its
records concerning the Accounts and Related Contracts, and all
originals of all chattel paper that evidence Accounts, at the
location therefor specified in Section 4 or, upon 30 days'
prior written notice to Secured Party, at such other location
in a jurisdiction where all action that may be necessary or
desirable, or that Secured Party may request, in order to
perfect and protect any security interest granted or purported
to be granted hereby, or to enable Secured Party to exercise
and enforce its rights and remedies hereunder, with respect to
such Accounts and Related Contracts shall have been taken.
Grantor will hold and preserve such records and chattel paper
and will permit representatives of Secured Party at any time
during normal business hours to inspect and make abstracts from
XVII-8
Page 396 of 424 <PAGE>
such records and chattel paper, and Grantor agrees to render to
Secured Party, at Grantor's cost and expense, such clerical and
other assistance as may be reasonably requested with regard
thereto. Promptly upon the request of Secured Party, Grantor
shall deliver to Secured Party complete and correct copies of
each Related Contract.
(b) Grantor shall, for not less than five years from
the date on which such Account arose, maintain (i) complete
records of each Account, including records of all payments
received, credits granted and merchandise returned, and
(ii) all documentation relating thereto.
(c) Except as otherwise provided in this
subsection (c) and subsection (d), Grantor shall continue to
collect, at its own expense, all amounts due or to become due
to Grantor under the Accounts and Related Contracts. In
connection with such collections, Grantor may take (and, at
Secured Party's direction, shall take) such action as Grantor
or Secured Party may reasonably deem necessary or advisable to
enforce collection of amounts due or to become due under the
Accounts; PROVIDED, HOWEVER, that upon the occurrence and
during the continuation of an Event of Default or a Potential
Event of Default and upon written notice to Grantor of its
intention to do so, Secured Party shall have the right at any
time to notify the account debtors or obligors under any
Accounts of the assignment of such Accounts to Secured Party
and to direct such account debtors or obligors to make payment
of all amounts due or to become due to Grantor thereunder
directly to Secured Party, to notify each Person maintaining a
lockbox or similar arrangement to which account debtors or
obligors under any Accounts have been directed to make payment
to remit all amounts representing collections on checks and
other payment items from time to time sent to or deposited in
such lockbox or other arrangement directly to Secured Party
and, upon such notification and at the expense of Grantor, to
enforce collection of any such Accounts and to adjust, settle
or compromise the amount or payment thereof, in the same manner
and to the same extent as Grantor might have done. After
receipt by Grantor of the notice from Secured Party referred to
in the proviso to the preceding sentence, (i) all amounts and
proceeds (including checks and other instruments) received by
Grantor in respect of the Accounts and the Related Contracts
shall be received in trust for the benefit of Secured Party
hereunder, shall be segregated from other funds of Grantor and
shall be forthwith paid over or delivered to Secured Party in
the same form as so received (with any necessary endorsement)
to be held as cash Collateral and applied as provided by
Section 16, and (ii) Grantor shall not adjust, settle or
compromise the amount or payment of any Account, or release
wholly or partly any account debtor or obligor thereof, or
allow any credit or discount thereon.
XVII-9
Page 397 of 424 <PAGE>
(d) Grantor shall, upon request of Secured Party,
take any action and execute any instrument necessary or
advisable in accordance with the procedures enacted under the
Assignment of Claims Act of 1940 to insure that Secured Party
receives any and all proceeds from any contract entered into
between or among Grantor and the Government of the United
States of America or any agency or division thereof. Such
action shall include, but not be limited to, filing notices of
assignment under the provision of 48 C.F.R. 32.805.
SECTION 9. DEPOSIT ACCOUNTS. Upon the occurrence
and during the continuation of an Event of Default, Secured
Party may exercise dominion and control over, and refuse to
permit further withdrawals (whether of money, securities,
instruments or other property) from any deposit accounts
maintained with Secured Party constituting part of the
Collateral.
SECTION 10. LICENSE OF PATENTS, TRADEMARKS,
COPYRIGHTS, ETC. Grantor hereby assigns, transfers and conveys
to Secured Party, effective upon the occurrence of any Event of
Default, the nonexclusive right and license to use all
trademarks, tradenames, copyrights, patents or technical
processes owned or used by Grantor that relate to the
Collateral and any other collateral granted by Grantor as
security for the Secured Obligations, together with any
goodwill associated therewith, all to the extent necessary to
enable Secured Party to use, possess and realize on the
Collateral and to enable any successor or assign to enjoy the
benefits of the Collateral. This right and license shall inure
to the benefit of all successors, assigns and transferees of
Secured Party and its successors, assigns and transferees,
whether by voluntary conveyance, operation of law, assignment,
transfer, foreclosure, deed in lieu of foreclosure or
otherwise. Such right and license is granted free of charge,
without requirement that any monetary payment whatsoever be
made to Grantor.
SECTION 11. TRANSFERS AND OTHER LIENS. Grantor
shall not:
(a) sell, assign (by operation of law or otherwise)
or otherwise dispose of any of the Collateral, except as
permitted by the Credit Agreement; or
(b) except as permitted by the Credit Agreement,
create or suffer to exist any Lien upon or with respect to any
of the Collateral to secure the indebtedness or other
obligations of any Person.
XVII-10
Page 398 of 424 <PAGE>
SECTION 12. SECURED PARTY APPOINTED ATTORNEY-IN-
FACT. Grantor hereby irrevocably appoints Secured Party as
Grantor's attorney-in-fact, with full authority in the place
and stead of Grantor and in the name of Grantor, Secured Party
or otherwise, from time to time in Secured Party's discretion
(a) to file any claims or notices and to take any other action
and execute any instrument necessary or advisable, in
accordance with the procedures enacted under the Assignment of
Claims Act of 1940, in order to receive any and all proceeds
from any contract entered into between or among Grantor and the
government of, the United States of America or any agency or
division thereof and (b) upon the occurrence and during the
continuation of an Event of Default, to take any action and to
execute any instrument that Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement,
including, without limitation:
(i) to ask for, demand, collect, sue for, recover,
compound, receive and give acquittance and receipts for moneys
due and to become due under or in respect of any of the
Collateral;
(ii) to receive, endorse and collect any drafts or
other instruments, documents and chattel paper in connection
with clause (i) above;
(iii) to file any claims or take any action or
institute any proceedings that Secured Party may deem necessary
or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of Secured Party with respect
to any of the Collateral;
(iv) to pay or discharge taxes or Liens levied or
placed upon or threatened against the Collateral, the legality
or validity thereof and the amounts necessary to discharge the
same to be determined by Secured Party in its sole discretion,
any such payments made by Secured Party to become obligations
of Grantor to Secured Party, due and payable immediately
without demand;
(v) to sign and endorse any invoices, freight or
express bills, bills of lading, storage or warehouse receipts,
drafts against debtors, assignments, verifications and notices
in connection with Accounts and other documents relating to the
Collateral; and
(vi) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though Secured Party were
the absolute owner thereof for all purposes, and to do, at
Secured Party's option and Grantor's expense, at any time or
from time to time, all acts and things that Secured Party deems
XVII-11
Page 399 of 424 <PAGE>
necessary to protect, preserve or realize upon the Collateral
and Secured Party's security interest therein in order to
effect the intent of this Agreement, all as fully and
effectively as Grantor might do.
SECTION 13. SECURED PARTY MAY PERFORM. If Grantor
fails to perform any agreement contained herein, Secured Party
may itself perform, or cause performance of, such agreement,
and the expenses of Secured Party incurred in connection
therewith shall be payable by Grantor under Section 14.
SECTION 14. STANDARD OF CARE. The powers conferred
on Secured Party hereunder are solely to protect its interest
in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the exercise of
reasonable care in the custody of any Collateral in its
possession and the accounting for moneys actually received by
it hereunder, Secured Party shall have no duty as to any
Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights
pertaining to any Collateral. Secured Party shall be deemed to
have exercised reasonable care in the custody and preservation
of Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which Secured Party
accords its own property.
SECTION 15. REMEDIES. If any Event of Default shall
have occurred and be continuing, Secured Party may exercise in
respect of the Collateral, in addition to all other rights and
remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the
Uniform Commercial Code as in effect in any relevant
jurisdiction (the "Code") (whether or not the Code applies to
the affected Collateral), and also may (a) require Grantor to,
and Grantor hereby agrees that it will at its expense and upon
request of Secured Party forthwith, assemble all or part of the
Collateral as directed by Secured Party and make it available
to Secured Party at a place to be designated by Secured Party
that is reasonably convenient to both parties, (b) enter onto
the property where any Collateral is located and take
possession thereof with or without judicial process, (c) prior
to the disposition of the Collateral, store, process, repair or
recondition the Collateral or otherwise prepare the Collateral
for disposition in any manner to the extent Secured Party deems
appropriate, and (d) without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, at such
time or times and at such price or prices and upon such other
terms as Secured Party may deem commercially reasonable.
Secured Party or any Lender may be the purchaser of any or all
of the Collateral at any such sale and Secured Party, as agent
XVII-12
Page 400 of 424 <PAGE>
for and representative of Lenders (but not any Lender or
Lenders in its or their respective individual capacities unless
Requisite Lenders or all Lenders, as the case may be, shall
otherwise agree in writing), shall be entitled, for the purpose
of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such
public sale, to use and apply any of the Secured Obligations as
a credit on account of the purchase price for any Collateral
payable by Secured Party at such sale. Each purchaser at any
such sale shall hold the property sold absolutely free from any
claim or right on the part of Grantor, and Grantor hereby
waives (to the extent permitted by applicable law) all rights
of redemption, stay and/or appraisal which it now has or may at
any time in the future have under any rule of law or statute
now existing or hereafter enacted. Grantor agrees that, to the
extent notice of sale shall be required by law, at least ten
days' notice to Grantor of the time and place of any public
sale or the time after which any private sale is to be made
shall constitute reasonable notification. Secured Party shall
not be obligated to make any sale of Collateral regardless of
notice of sale having been given. Secured Party may adjourn
any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was
so adjourned. Grantor hereby waives any claims against Secured
Party arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale was less
than the price which might have been obtained at a public sale,
even if Secured Party accepts the first offer received and does
not offer such Collateral to more than one offeree. If the
proceeds of any sale or other disposition of the Collateral are
insufficient to pay all the Secured Obligations, Grantor shall
be liable for the deficiency and the fees of any attorneys
employed by Secured Party to collect such deficiency.
SECTION 16. APPLICATION OF PROCEEDS. Except as
expressly provided in the Credit Agreement with respect to
Asset Sales, all proceeds received by the Secured Party in
respect of any sale of, collection from or other realization
upon all or any part of the Collateral may, in the discretion
of the Secured Party, be held by the Secured Party as
Collateral for, and/or then, or at any other time thereafter
applied, in full or in part by the Secured Party against the
Secured Obligations in the following order of priority:
(a) To the payment of all costs and expenses of such
sale, collection or other realization and all other
expenses, liabilities and advances made or incurred by the
Secured Party in connection therewith and all amounts for
which the Secured Party is entitled to indemnification
hereunder and all advances made by the Secured Party
hereunder for the account of Grantor and for the payment
XVII-13
Page 401 of 424 <PAGE>
of all costs and expenses paid or incurred by the Secured
Party in connection with the exercise of any right or
remedy hereunder, all in accordance with Section 17;
(b) Thereafter, to the extent of any excess such
proceeds, to the payment of the Secured Obligations for
the ratable benefit of the holders thereof; and
(c) Thereafter, to the extent of any excess such
proceeds, to the payment to or upon the order of the
Grantor, or whosoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may
direct.
SECTION 17. INDEMNITY AND EXPENSES.
(a) Grantor agrees to indemnify Secured Party and
each Lender from and against any and all claims, losses and
liabilities in any way relating to, growing out of or resulting
from this Agreement and the transactions contemplated hereby
(including, without limitation, enforcement of this Agreement),
except to the extent such claims, losses or liabilities result
solely from Secured Party's or such Lender's gross negligence
or willful misconduct as finally determined by a court of
competent jurisdiction.
(b) Grantor shall pay to Secured Party upon demand
the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and of any experts
and agents, that Secured Party may incur in connection with
(i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection
from, or other realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of
Secured Party hereunder, or (iv) the failure by Grantor to
perform or observe any of the provisions hereof.
SECTION 18. CONTINUING SECURITY INTEREST; TRANSFER
OF LOANS. This Agreement shall create a continuing security
interest in the Collateral and shall (a) remain in full force
and effect until the payment in full of the Secured
Obligations, the cancellation or termination of the Commitments
and the cancellation or expiration of all outstanding Letters
of Credit, (b) be binding upon Grantor, its successors and
assigns, and (c) inure, together with the rights and remedies
of Secured Party hereunder, to the benefit of Secured Party and
its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), but subject to the
provisions of subsection 10.1 of the Credit Agreement, any
Lender may assign or otherwise transfer any Loans held by it to
any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to
XVII-14
Page 402 of 424 <PAGE>
Lenders herein or otherwise. Upon the payment in full of all
Secured Obligations, the cancellation or termination of the
Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted
hereby shall terminate and all rights to the Collateral shall
revert to Grantor. Upon any such termination Secured Party
will, at Grantor's expense, execute and deliver to Grantor such
documents as Grantor shall reasonably request to evidence such
termination.
SECTION 19. SECURED PARTY AS ADMINISTRATIVE AGENT.
(a) Secured Party has been appointed to act as
Secured Party hereunder by Lenders. Secured Party shall be
obligated, and shall have the right hereunder, to make demands,
to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action
(including, without limitation, the release or substitution of
Collateral), solely in accordance with this Agreement and the
Credit Agreement; PROVIDED that Secured Party shall exercise,
or refrain from exercising, any remedies provided for in
Section 15 in accordance with the instructions of Requisite
Lenders or all Lenders, as the case may be.
(b) Secured Party shall at all times be the same
Person that is Administrative Agent under the Credit Agreement.
Written notice of resignation by Administrative Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute
notice of resignation as Secured Party under this Agreement;
removal of Administrative Agent pursuant to subsection 9.5 of
the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor
Administrative Agent pursuant to subsection 9.5 of the Credit
Agreement shall also constitute appointment of a successor
Secured Party under this Agreement. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the
Credit Agreement by a successor Administrative Agent, that
successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and
duties of the retiring or removed Secured Party under this
Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured
Party all sums, securities and other items of Collateral held
hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of
the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party
such amendments to financing statements, and take such other
actions, as may be necessary or appropriate in connection with
the assignment to such successor Secured Party of the security
interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and
XVII-15
Page 403 of 424 <PAGE>
obligations under this Agreement. After any retiring or
removed Administrative Agent's resignation or removal hereunder
as Secured Party, the provisions of this Agreement shall inure
to its benefit as to any actions taken or omitted to be taken
by it under this Agreement while it was Secured Party
hereunder.
SECTION 20. ADDITIONAL GRANTORS. The initial
Grantors hereunder shall be such of the Subsidiaries of Company
as are signatories hereto on the date hereof. From time to
time subsequent to the date hereof, additional Subsidiaries of
Company may become parties hereto, as additional Grantors (each
an "Additional Grantor"), by executing a counterpart of this
Agreement. Upon delivery of any such counterpart to
Administrative Agent, notice of which is hereby waived by
Grantors, each such Additional Grantor shall be a Grantor and
shall be as fully a party hereto as if such Additional Grantor
were an original signatory hereof. Each Grantor expressly
agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other
Grantor hereunder, nor by any election of Administrative Agent
not to cause any Subsidiary of Company to become an Additional
Grantor hereunder. This Agreement shall be fully effective as
to any Grantor that is or becomes a party hereto regardless of
whether any other Person becomes or fails to become or ceases
to be a Grantor hereunder.
SECTION 21. AMENDMENTS; ETC. No amendment,
modification, termination or waiver of any provision of this
Agreement, and no consent to any departure by Grantor
therefrom, shall in any event be effective unless the same
shall be in writing and signed by Secured Party and, in the
case of any such amendment or modification, by Grantor. Any
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 22. NOTICES. Any notice or other
communication herein required or permitted to be given shall be
in writing and may be personally served or sent by
telefacsimile or United States mail or courier service and
shall be deemed to have been given when delivered in person or
by courier service, upon receipt of telefacsimile or three
Business Days after depositing it in the United States mail
with postage prepaid and properly addressed. For the purposes
hereof, the address of each party hereto shall be as set forth
under such party's name on the signature pages hereof or, as to
either party, such other address as shall be designated by such
party in a written notice delivered to the other party hereto.
SECTION 23. FAILURE OR INDULGENCE NOT WAIVER;
REMEDIES CUMULATIVE. No failure or delay on the part of
Secured Party in the exercise of any power, right or privilege
XVII-16
Page 404 of 424 <PAGE>
hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such
power, right or privilege preclude any other or further
exercise thereof or of any other power, right or privilege.
All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies
otherwise available.
SECTION 24. SEVERABILITY. In case any provision in
or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or
of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
SECTION 25. HEADINGS. Section and subsection
headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive
effect. References to "Sections" and "subsections" shall be to
Sections and subsections, respectively, of this Agreement
unless otherwise specifically provided.
SECTION 26. GOVERNING LAW; TERMS. THIS AGREEMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA
(INCLUDING, WITHOUT LIMITATION, SECTION 1646.5 OF THE CIVIL
CODE OF THE STATE OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE CODE PROVIDES
THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
CALIFORNIA. Unless otherwise defined herein or in the Credit
Agreement, terms used in Articles 8 and 9 of the Uniform
Commercial Code of the State of California are used herein as
therein defined.
SECTION 27. CONSENT TO JURISDICTION AND SERVICE OF
PROCESS. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST GRANTOR
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY
OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA,
COUNTY AND CITY OF SAN FRANCISCO. BY EXECUTING AND DELIVERING
THIS AGREEMENT, GRANTOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
XVII-17
Page 405 of 424 <PAGE>
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO GRANTOR AT
ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 22;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III)
ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
GRANTOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT;
(V) AGREES THAT SECURED PARTY RETAINS THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST GRANTOR IN THE COURTS OF ANY
OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 27
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND
ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER
CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 410.40.
SECTION 28. WAIVER OF JURY TRIAL. GRANTOR AND
SECURED PARTY HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter
of this transaction, including, without limitation, contract
claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Grantor and Secured Party
each acknowledge that this waiver is a material inducement for
Grantor and Secured Party to enter into a business
relationship, that Grantor and Secured Party have already
relied on this waiver in entering into this Agreement and that
each will continue to rely on this waiver in their related
future dealings. Grantor and Secured Party further warrant and
represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its
jury trial rights following consultation with legal counsel.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SECTION 28 AND EXECUTED
BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT. In the event of litigation,
this Agreement may be filed as a written consent to a trial by
the court.
SECTION 29. COUNTERPARTS. This Agreement may be
executed in one or more counterparts and by different parties
XVII-18
Page 406 of 424 <PAGE>
hereto in separate counterparts, each of which when so executed
and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document. This Agreement shall become effective as to each
Grantor upon the execution of a counterpart hereof by such
Grantor (whether or not a counterpart hereof shall have been
executed by any other Grantor) and receipt by Secured Party of
written or telephonic notification of such execution and
authorization of delivery thereof.
[Remainder of page intentionally left blank]
XVII-19
Page 407 of 424 <PAGE>
IN WITNESS WHEREOF, Grantor and Secured Party have
caused this Agreement to be duly executed and delivered by
their respective officers thereunto duly authorized as of the
date first written above.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative
Agent, as Secured Party
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
_________________________________
[NAME OF GRANTOR]
By:______________________________
Name:____________________________
Title:___________________________
Notice Address:__________________
_________________________________
_________________________________
XVII-S-1
Page 408 of 424 <PAGE>
IN WITNESS WHEREOF, the undersigned Additional
Grantor has caused this Agreement to be duly executed and
delivered by its officer thereunto duly authorized as of
______________, 199_.
Attached hereto are Schedules I, II, III, IV and V of
------------------------------
this Agreement, completed with respect to the undersigned
Additional Grantor.
[NAME OF ADDITIONAL GRANTOR]
By:___________________________________
Name:_________________________________
Title:________________________________
Notice Address:_______________________
______________________________________
______________________________________
XVII-S-2
Page 409 of 424 <PAGE>
SCHEDULE I
Deposit Accounts
XVII-I-1
Page 410 of 424 <PAGE>
SCHEDULE II
Location of Inventory
XVII-II-1
Page 411 of 424 <PAGE>
SCHEDULE III
Government Contracts
XVII-III-1
Page 412 of 424 <PAGE>
SCHEDULE IV
Office Locations
Chief Place of Business
-----------------------
Chief Executive Officer
-----------------------
Location of Records
-------------------
XVII-IV-1
Page 413 of 424 <PAGE>
SCHEDULE V
Previous and Fictitious Business Names
XVII-V-1
Page 414 of 424 <PAGE>
EXHIBIT XVIII-A
[FORM OF FINANCIAL CONDITION CERTIFICATE]
FINANCIAL CONDITION CERTIFICATE
This FINANCIAL CONDITION CERTIFICATE (this
"Certificate") is delivered in connection with that certain
Credit Agreement dated as of January 10, 1996 (the "Credit
Agreement") by and among URS Corporation, a Delaware
corporation ("Company"), the financial institutions referred to
therein as Lenders ("Lenders") and Wells Fargo Bank, National
Association, as Administrative Agent ("Administrative Agent").
Capitalized terms used herein without definition have the same
meanings as in the Credit Agreement.
A. I am, and at all pertinent times mentioned
herein have been, the duly qualified and acting chief financial
officer of Company. I have, together with other officers of
Company, acted on behalf of Company in connection with the
evaluation and negotiation of the proposed acquisition of
Greiner Engineering, Inc., a Nevada corporation ("Greiner"),
and the negotiation of the Credit Agreement and I am familiar
with the terms and conditions thereof.
B. I have carefully reviewed the contents of this
Certificate, and I have conferred with counsel for Company for
the purpose of discussing the meaning of its contents.
C. In connection with preparing for the
consummation of the acquisition as well as the transactions and
financings contemplated by the Credit Agreement (the "Proposed
Transactions"), I have participated in the preparation of, and
I have reviewed, pro forma projections of net income and cash
flows for Greiner and its Subsidiaries for the fiscal years of
Company ending October 31, 1996 through October 31, 2003,
inclusive (the "Projected Financial Statements"). The
Projected Financial Statements, attached hereto as Exhibit A,
---------
give effect to the consummation of the Proposed Transactions
and assume that the debt obligations of Company will be paid in
part from the cash flow generated by the operations of Greiner
and its Subsidiaries. The Projected Financial Statements were
prepared on the basis of information available at December 31,
1995. I know of no facts that have occurred since such date
that would lead me to believe that the Projected Financial
Statements are inaccurate in any material respect. The
Projected Financial Statements do not reflect (i) any potential
changes in interest rates from those assumed in the Projected
Financial Statements, (ii) any potential material, adverse
XVIII-A-1
Page 415 of 424 <PAGE>
changes in general business conditions, or (iii) any potential
changes in income tax laws.
D. I have also participated in the preparation of,
and I have reviewed, a pro forma summary balance sheet of
Greiner and its Subsidiaries (the "Fair Value Summary Balance
Sheet") as of the Initial Funding Date, giving effect to the
Proposed Transactions. The Fair Value Summary Balance Sheet is
attached hereto as Exhibit B and has been prepared as described
---------
in paragraphs F and G below and not in accordance with GAAP.
E. In connection with the preparation of the
Projected Financial Statements, I have made such investigations
and inquiries as I have deemed necessary and prudent therefor
and, specifically, have relied on historical information with
respect to revenues, expenses and other relevant items supplied
by the supervisory personnel of Company and its Subsidiaries
and of Greiner and its Subsidiaries directly responsible for
the various operations involved. The assumptions upon which
the Projected Financial Statements are based are stated
therein. Although any assumptions and any projections by
necessity involve uncertainties and approximations, I believe,
based on my discussions with other members of management, that
the assumptions on which the Projected Financial Statements are
based are reasonable. Based thereon, I believe that the
projections for Company and its Subsidiaries, taken as a whole,
reflected in the Projected Financial Statements provide
reasonable estimations of future performance, subject, as
stated above, to the uncertainties and approximations inherent
in any projections.
F. The Fair Value Summary Balance Sheet has been
prepared in a manner which I believe reflects a conservative
estimate of the fair value of the assets of Greiner on a
parent-company basis (which reflects the estimated fair value
of the stock of Greiner's Subsidiaries rather than
consolidating the individual assets and liabilities of such
Subsidiaries) and the probable liability on all of its debts,
contingent or otherwise. For purposes of this Certificate, I
understand "fair value" of any assets to mean the amount which
may be realized within a reasonable time, either through
collection of such assets or through sale of such assets at the
regular market value thereof, conceiving of the latter as the
amount which could be obtained for the property in question
within such period by a capable and diligent businessman from
an interested buyer who is willing to purchase under ordinary
selling conditions. The specific methodology used by
management for valuing Greiner and its Subsidiaries is set
forth in paragraph G below.
XVIII-A-2
Page 416 of 424 <PAGE>
G. For purposes of constructing the Fair Value
Summary Balance Sheet, I have utilized the following
procedures:
I have separately estimated the fair value of the
stock of each of Greiner's Subsidiaries by calculating the
difference between the fair value of the assets of such
Subsidiary and the probable liability on all of its debts,
contingent or otherwise.
With respect to the asset values reflected in the
Fair Value Summary Balance Sheet (including the asset values
used to calculate the fair value of the stock of each of
Greiner's Subsidiaries), I have included the net working
capital of Greiner and its Subsidiaries, calculated as the
difference between the current assets and current liabilities
reported in their December 31, 1995 financial statements, and I
have relied on the capitalization of earnings methodology --
whereby earnings before interest and taxes (EBIT) are
capitalized at a specified EBIT multiple -- to arrive at the
estimated fair value of the long-term assets of Greiner and its
Subsidiaries. For these purposes I have utilized an EBIT
multiplier of ____, which reflects a conservative estimate of
the EBIT multiplier reflected in acquisition prices paid for
total ownership positions in companies whose lines of business
are similar to those of Greiner and its Subsidiaries.
With respect to liabilities reflected in the Fair
Value Summary Balance Sheet (including liabilities used to
calculate the fair value of the stock of Greiner's
Subsidiaries), I have included long-term liabilities reported
by Greiner and its Subsidiaries in their December 31, 1995
financial statements and the portion of the debts to be
incurred by Greiner under the Subsidiary Guaranty and the
Proposed Transactions. In addition, with respect to contingent
liabilities (such as litigation, guaranties (other than the
Subsidiary Guaranties) and pension plan liabilities), I have
consulted with legal, financial and other personnel of Greiner
and its Subsidiaries and have reflected as liabilities our best
judgment as to the maximum exposure that can reasonably be
expected to result therefrom in light of all the facts and
circumstances existing at this time, recognizing that any such
estimation is inherently subject to uncertainties.
Based on the foregoing, I have reached the following
conclusions:
1. Greiner is not now, nor will the incurrence of
the obligations under the Subsidiary Guaranty and the
incurrence of the other obligations contemplated by the
Proposed Transactions render Greiner "insolvent" as
defined in this paragraph 1. The recipients of this
XVIII-A-3
Page 417 of 424 <PAGE>
Certificate and I have agreed that, in this context,
"insolvent" means that the present fair value of assets is
less than the amount that will be required to pay the
probable liability on existing debts as they become
absolute and matured. We have also agreed that the term
"debts" includes any legal liability, whether matured or
unmatured, liquidated or unliquidated, absolute, fixed or
contingent. My conclusion expressed above is supported by
the Fair Value Summary Balance Sheet. Valuation of
Greiner on the basis thereof would reflect the net value
of Greiner as $__________ representing the difference
between asset values of $__________ and liabilities of
$__________.
2. By the incurrence of the obligations under the
Subsidiary Guaranty and the incurrence of the other
obligations contemplated by the Proposed Transactions,
Greiner will not incur debts beyond its ability to pay as
such debts mature. I have based my conclusion in part on
the Projected Financial Statements, which demonstrate that
Greiner will have positive cash flow after paying all of
its scheduled anticipated indebtedness (including the
portion of the debts to be incurred by Greiner under the
Subsidiary Guaranty and the Proposed Transactions
projected to be paid from the cash flow generated by the
operations of Greiner and its Subsidiaries and other
permitted indebtedness). I have concluded that the
realization of current assets in the ordinary course of
business will be sufficient to pay recurring current debt
and short-term and long-term debt service as such debts
mature, and that the cash flow (including earnings plus
non-cash charges to earnings [and the disposition of
surplus fixed assets held for sale]) will be sufficient to
provide cash necessary to repay the portion of the Loans
and other obligations under the Credit Agreement and the
other obligations contemplated by the Proposed
Transactions projected to be paid pursuant to the
Subsidiary Guaranty and other long-term indebtedness as
such debt matures.
3. The incurrence of the obligations under the
Subsidiary Guaranty and the incurrence of the other
obligations contemplated by the Proposed Transactions will
not leave Greiner with property remaining in its hands
constituting "unreasonably small capital." In reaching
this conclusion, I understand that "unreasonably small
capital" depends upon the nature of the particular
business or businesses conducted or to be conducted, and I
have reached my conclusion based on the needs and
anticipated needs for capital of the businesses conducted
or anticipated to be conducted by Greiner and its
XVIII-A-4
Page 418 of 424 <PAGE>
Subsidiaries in light of the Projected Financial
Statements and available credit capacity.
4. To the best of my knowledge, Greiner has not
executed the Subsidiary Guaranty or any documents
mentioned therein, or made any transfer or incurred any
obligations thereunder, with actual intent to hinder,
delay or defraud either present or future creditors.
I understand that Administrative Agent and Lenders
are relying on the truth and accuracy of the foregoing in
connection with the extension of credit to Company pursuant to
the Credit Agreement.
I represent the foregoing information to be, to the
best of my knowledge and belief, true and correct and execute
this Certificate this ___ day of ________, 1996.
URS CORPORATION
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
XVIII-A-5
Page 419 of 424 <PAGE>
EXHIBIT XVIII-B
[FORM OF FINANCIAL CONDITION CERTIFICATE]
FINANCIAL CONDITION CERTIFICATE
This FINANCIAL CONDITION CERTIFICATE (this
"Certificate") is delivered in connection with that certain
Credit Agreement dated as of January 10, 1996 (the "Credit
Agreement") by and among URS Corporation, a Delaware
corporation ("Company"), the financial institutions referred to
therein as Lenders ("Lenders") and Wells Fargo Bank, National
Association, as Administrative Agent ("Administrative Agent").
Capitalized terms used herein without definition have the same
meanings as in the Credit Agreement.
A. I am, and at all pertinent times mentioned
herein have been, the duly qualified and acting chief financial
officer of Company. In such capacity I have participated
actively in the management of its financial affairs and am
familiar with its financial statements and those of its
Subsidiaries. I have, together with other officers of Company,
acted on behalf of Company in connection with the evaluation
and negotiation of the proposed acquisition of Greiner
Engineering, Inc., a Nevada corporation ("Greiner"), and the
negotiation of the Credit Agreement and I am familiar with the
terms and conditions thereof.
B. I have carefully reviewed the contents of this
Certificate, and I have conferred with counsel for Company for
the purpose of discussing the meaning of its contents.
C. In connection with preparing for the
consummation of the acquisition as well as the transactions and
financings contemplated by the Credit Agreement (the "Proposed
Transactions"), I have participated in the preparation of, and
I have reviewed, pro forma projections of net income and cash
flows for Company and its Subsidiaries for the fiscal years of
Company ending October 31, 1996 through October 31, 2003,
inclusive (the "Projected Financial Statements"). The
Projected Financial Statements, attached hereto as Exhibit A,
---------
give effect to the consummation of the Proposed Transactions
and assume that the debt obligations of Company will be paid
from the cash flow generated by the operations of Company and
its Subsidiaries. The Projected Financial Statements were
prepared on the basis of information available at October 31,
1995. I know of no facts that have occurred since such date
that would lead me to believe that the Projected Financial
Statements are inaccurate in any material respect. The
Projected Financial Statements do not reflect (i) any potential
XVIII-B-1
Page 420 of 424 <PAGE>
changes in interest rates from those assumed in the Projected
Financial Statements, (ii) any potential material, adverse
changes in general business conditions, or (iii) any potential
changes in income tax laws.
D. I have also participated in the preparation of,
and I have reviewed, a pro forma summary balance sheet of
Company and its Subsidiaries (the "Fair Value Summary Balance
Sheet") as of the Initial Funding Date, giving effect to the
Proposed Transactions. The Fair Value Summary Balance Sheet is
attached hereto as Exhibit B and has been prepared as described
---------
in paragraphs F and G below and not in accordance with GAAP.
E. In connection with the preparation of the
Projected Financial Statements, I have made such investigations
and inquiries as I have deemed necessary and prudent therefor
and, specifically, have relied on historical information with
respect to revenues, expenses and other relevant items supplied
by the supervisory personnel of Company and its Subsidiaries
and of Greiner and its Subsidiaries directly responsible for
the various operations involved. The assumptions upon which
the Projected Financial Statements are based are stated
therein. Although any assumptions and any projections by
necessity involve uncertainties and approximations, I believe,
based on my discussions with other members of management, that
the assumptions on which the Projected Financial Statements are
based are reasonable. Based thereon, I believe that the
projections for Company and its Subsidiaries, taken as a whole,
reflected in the Projected Financial Statements provide
reasonable estimations of future performance, subject, as
stated above, to the uncertainties and approximations inherent
in any projections.
F. The Fair Value Summary Balance Sheet has been
prepared in a manner which I believe reflects a conservative
estimate of the fair value of the assets of Company on a
parent-company basis (which reflects the estimated fair value
of the stock of Company's Subsidiaries rather than
consolidating the individual assets and liabilities of such
Subsidiaries) and the probable liability on all of its debts,
contingent or otherwise. For purposes of this Certificate, I
understand "fair value" of any assets to mean the amount which
may be realized within a reasonable time, either through
collection of such assets or through sale of such assets at the
regular market value thereof, conceiving of the latter as the
amount which could be obtained for the property in question
within such period by a capable and diligent businessman from
an interested buyer who is willing to purchase under ordinary
selling conditions. The specific methodology used by
management for valuing Company and its Subsidiaries is set
forth in paragraph G below.
XVIII-B-2
Page 421 of 424 <PAGE>
G. For purposes of constructing the Fair Value
Summary Balance Sheet, I have utilized the following
procedures:
I have separately estimated the fair value of the
stock of each of Company's Subsidiaries by calculating the
difference between the fair value of the assets of such
Subsidiary and the probable liability on all of its debts,
contingent or otherwise.
With respect to the asset values reflected in the
Fair Value Summary Balance Sheet (including the asset values
used to calculate the fair value of the stock of each of
Company's Subsidiaries), I have included the net working
capital of Company and its Subsidiaries, calculated as the
difference between the current assets and current liabilities
reported in their October 31, 1995 financial statements, and I
have relied on the capitalization of earnings methodology --
whereby earnings before interest and taxes (EBIT) are
capitalized at a specified EBIT multiple -- to arrive at the
estimated fair value of the long-term assets of Company and its
Subsidiaries. For these purposes I have utilized an EBIT
multiplier of ____, which reflects a conservative estimate of
the EBIT multiplier reflected in acquisition prices paid for
total ownership positions in companies whose lines of business
are similar to those of Company and its Subsidiaries.
With respect to liabilities reflected in the Fair
Value Summary Balance Sheet (including liabilities used to
calculate the fair value of the stock of Company's
Subsidiaries), I have included long-term liabilities reported
by Company and each of its Subsidiaries in their October 31,
1995 financial statements and the portion of the debts to be
incurred by Company under the Credit Agreement and the Proposed
Transactions. In addition, with respect to contingent
liabilities (such as litigation, guaranties (other than the
Subsidiary Guaranties) and pension plan liabilities), I have
consulted with legal, financial and other personnel of Company
and its Subsidiaries and have reflected as liabilities our best
judgment as to the maximum exposure that can reasonably be
expected to result therefrom in light of all the facts and
circumstances existing at this time, recognizing that any such
estimation is inherently subject to uncertainties.
Based on the foregoing, I have reached the following
conclusions:
1. Company is not now, nor will the incurrence of
the obligations under the Credit Agreement and the
incurrence of the other obligations contemplated by the
Proposed Transactions render Company "insolvent" as
XVIII-B-3
Page 422 of 424 <PAGE>
defined in this paragraph 1. The recipients of this
Certificate and I have agreed that, in this context,
"insolvent" means that the present fair value of assets is
less than the amount that will be required to pay the
probable liability on existing debts as they become
absolute and matured. We have also agreed that the term
"debts" includes any legal liability, whether matured or
unmatured, liquidated or unliquidated, absolute, fixed or
contingent. My conclusion expressed above is supported by
the Fair Value Summary Balance Sheet. Valuation of
Company on the basis thereof would reflect the net value
of Company as $__________ representing the difference
between asset values of $__________ and liabilities of
$__________.
2. By the incurrence of the obligations under the
Credit Agreement and the incurrence of the other
obligations contemplated by the Proposed Transactions,
Company will not incur debts beyond its ability to pay as
such debts mature. I have based my conclusion in part on
the Projected Financial Statements, which demonstrate that
Company will have positive cash flow after paying all of
its scheduled anticipated indebtedness (including the
portion of the debts to be incurred by Company under the
Credit Agreement and the Proposed Transactions and other
permitted indebtedness). I have concluded that the
realization of current assets in the ordinary course of
business will be sufficient to pay recurring current debt
and short-term and long-term debt service as such debts
mature, and that the cash flow (including earnings plus
non-cash charges to earnings [and the disposition of
surplus fixed assets held for sale]) will be sufficient to
provide cash necessary to repay the portion of the Loans
and other obligations under the Credit Agreement and the
other obligations contemplated by the Proposed
Transactions and other long-term indebtedness as such debt
matures.
3. The incurrence of the obligations under the
Credit Agreement and the incurrence of the other
obligations contemplated by the Proposed Transactions will
not leave Company with property remaining in its hands
constituting "unreasonably small capital." In reaching
this conclusion, I understand that "unreasonably small
capital" depends upon the nature of the particular
business or businesses conducted or to be conducted, and I
have reached my conclusion based on the needs and
anticipated needs for capital of the businesses conducted
or anticipated to be conducted by Company and its
Subsidiaries in light of the Projected Financial
Statements and available credit capacity.
XVIII-B-4
Page 423 of 424 <PAGE>
4. To the best of my knowledge, Company has not
executed the Credit Agreement or any documents mentioned
therein, or made any transfer or incurred any obligations
thereunder, with actual intent to hinder, delay or defraud
either present or future creditors.
I understand that Administrative Agent and Lenders
are relying on the truth and accuracy of the foregoing in
connection with the extension of credit to Company pursuant to
the Credit Agreement.
I represent the foregoing information to be, to the
best of my knowledge and belief, true and correct and execute
this Certificate this ___ day of ________, 1996.
URS CORPORATION
_________________________________
By:______________________________
Name:____________________________
Title:___________________________
XVIII-B-5
Page 424 of 424 <PAGE>
