<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended DECEMBER 31, 1997
_________________
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________________ to ___________________
Commission File Number: 1-8122
______
GRUBB & ELLIS COMPANY
______________________________________________________
(Exact name of registrant as specified in its charter)
DELAWARE 94-1424307
________________________________ __________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2215 Sanders Road, Suite 400,
Northbrook, IL 60062
______________________________________
(Address of principal executive offices)
(Zip Code)
(847) 753-7500
______________________
(Registrant's telephone number, including area code)
No Change
______________________
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No ___
19,608,771
______________________
(Number of shares outstanding of the registrant's
common stock at January 29, 1998)
<PAGE>
PART I
FINANCIAL INFORMATION
2
<PAGE>
ITEM 1. FINANCIAL STATEMENTS
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
For the Three Months For the Six Months
Ended December 31, Ended December 31,
----------------------- ---------------------
1997 1996 1997 1996
----------------------- ---------------------
<S> <C> <C> <C> <C>
Revenue:
Transaction service commissions $ 70,061 $ 56,510 $ 122,266 $ 99,301
Management services fees 7,811 5,649 14,869 11,377
Other fees 3,653 5,875 6,489 9,283
--------- --------- ---------- ----------
Total revenue 81,525 68,034 143,624 119,961
--------- --------- ---------- ----------
Costs and expenses:
Transaction service commissions 42,143 35,214 73,345 61,153
Salaries and wages 18,102 13,933 33,961 26,610
Selling, general and administrative 13,203 11,598 25,198 22,288
Depreciation and amortization 796 885 1,532 1,652
Other non-recurring expense - 993 - 900
--------- ---------- ---------- ----------
Total costs and expenses 74,244 62,623 134,036 112,603
--------- ---------- ---------- ----------
Total operating income 7,281 5,411 9,588 7,358
Other income and expenses:
Interest income 281 221 529 351
Other income, net 29 151 60 126
Interest expense to related parties - (599) - (1,325)
--------- ---------- ---------- ----------
Income before income taxes and
extraordinary item 7,591 5,184 10,177 6,510
Net benefit (provision) for income taxes 949 (37) 1,398 (67)
--------- ---------- ---------- ----------
Income before extraordinary gain 8,540 5,147 11,575 6,443
Extraordinary item - gain on extinguishment
of debt, net of taxes - 3,576 - 3,576
---------- ---------- ---------- ----------
Net income $ 8,540 $ 8,723 $ 11,575 $ 10,019
========== ========== ========== ==========
Net income applicable to common
stockholders, net of undeclared dividends
earned on preferred stock in 1996 $ 8,540 $ 8,087 $ 11,575 $ 8,588
========== ========== ========== ==========
Earnings per share:
Basic:
- from operations $ .44 $ .42 $ .59 $ .51
- from extraordinary gain - .34 - .37
---------- ---------- ---------- ----------
$ .44 $ .76 $ .59 $ .88
========== ========== ========== ==========
Weighted average common shares
outstanding 19,592,001 10,657,026 19,566,773 9,786,797
========== ========== ========== ==========
Diluted:
- from operations $ .39 $ .29 $ .53 $ .37
- from extraordinary gain - .20 - .20
---------- --------- ---------- ----------
$ .39 $ .49 $ .53 $ .57
========== ========= ========== ==========
Weighted average common shares and
equivalents outstanding 21,988,328 17,670,560 22,028,923 17,535,247
========== ========== ========== ==========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE DATA)
(UNAUDITED)
ASSETS
<TABLE>
<CAPTION>
December 31, June 30,
1997 1997
------------ ------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 33,540 $ 16,790
Commissions, management services and
other fees receivable 7,064 4,694
Other receivables 2,347 2,097
Prepaids and other current assets 621 1,257
Deferred taxes 4,920 3,220
------------ ------------
Total current assets 48,492 28,058
Noncurrent assets:
Equipment and leasehold improvements, net 7,807 5,988
Commissions, management services and other
fees receivable 522 525
Other assets 3,475 2,125
------------ ------------
Total assets $ 60,296 $ 36,696
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,700 $ 1,938
Compensation and employee benefits payable 8,498 4,568
Deferred commissions payable 11,331 237
Accrued office closure costs 393 788
Other accrued expenses 3,562 3,542
------------ ------------
Total current liabilities 25,484 11,073
Long-term liabilities:
Accrued claims and settlements 8,561 10,512
Accrued office closure costs 238 308
Other liabilities 1,535 1,880
------------ ------------
Total liabilities 35,818 23,773
------------ ------------
Stockholders' equity:
Common stock, $.01 par value: 50,000,000 and
25,000,000 shares authorized, and 19,598,371
and 19,509,952 shares issued and outstanding
at December 31, 1997 and June 30, 1997,
respectively 197 196
Additional paid-in-capital 110,558 110,579
Retained earnings (deficit) (86,277) (97,852)
------------ ------------
Total stockholders' equity 24,478 12,923
------------ ------------
Total liabilities and stockholders' equity $ 60,296 $ 36,696
============ ============
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
For the Six Months Ended
December 31,
-------------------------
1997 1996
----------- ----------
<S> <C> <C>
Cash Flows from Operating Activities:
Net income $ 11,575 $ 10,019
Extraordinary item-gain on extinguishment of debt - (3,576)
Adjustments to reconcile net income to net
cash provided by operating activities 8,089 9,251
----------- ----------
Net cash provided by operating activities 19,664 15,694
----------- ----------
Cash Flows from Investing Activities:
Purchases of equipment and leasehold improvements (2,953) (792)
Proceeds from disposition and distribution from
real estate joint ventures and real estate owned 59 95
----------- ----------
Net cash used in investing activities (2,894) (697)
----------- ----------
Cash Flows from Financing Activities:
Exercise of common stock options (20) -
Repayment of notes payable - (14)
Repayment of long-term debt to related party - (10,000)
Issuance of common stock - 10,000
----------- ----------
Net cash used in financing activities (20) (14)
----------- ----------
Net increase in cash and cash equivalents 16,750 14,983
Cash and cash equivalents at beginning of period 16,790 13,547
----------- ----------
Cash and cash equivalents at end of period $ 33,540 $ 28,530
=========== ==========
------------------------------
Supplemental Disclosure of Cash Flow Information:
Cash payments during the period for:
Interest $ - $ 1,357
Income taxes 528 16
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. INTERIM PERIOD REPORTING
The accompanying unaudited condensed consolidated financial statements
include the accounts of Grubb & Ellis Company and its wholly owned
subsidiaries and controlled partnerships (collectively, the "Company").
The accompanying unaudited condensed consolidated financial statements are
prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting
principles for complete financial statements and, therefore, should be read
in conjunction with the Company's Annual Report on Form 10-K for the year
ended June 30, 1997.
The financial statements have been prepared in conformity with generally
accepted accounting principles which require management to make estimates and
assumptions that affect the reported amounts of assets and liabilities
(including disclosure of contingent assets and liabilities) at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
In the opinion of management, all adjustments necessary for a fair statement
of the financial position and results of operations for the interim periods
presented have been included in these financial statements and are of a
normal and recurring nature. Certain amounts in prior periods have been
reclassified to conform to the current presentation.
Operating results for the six months ended December 31, 1997 are not
necessarily indicative of the results that may be achieved in future periods.
2. INCOME TAXES
The Company's tax provision consists of currently payable state and local
income taxes and federal alternative minimum taxes, totaling $302,000 and
$67,000 in the six months ended December 31, 1997 and 1996, respectively. In
addition, the Company recognized a deferred tax benefit of $1,700,000 in the
six months ended December 31, 1997, as a result of a reduction in the
valuation allowance against the net deferred tax asset, based upon the
expected utilization of net operating loss carryforwards. Management believes
that, due to favorable economic conditions, the recent elimination of debt
and the trend of earnings, it is more likely than not that the Company will
generate sufficient future taxable income to realize the deferred tax asset.
6
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
3. EARNINGS PER SHARE
Earnings per share computations are based on the weighted average number of
common shares and equivalents outstanding. Common equivalent shares from
stock options, stock warrants and convertible preferred stock are excluded
from the computations if their effect is anti-dilutive.
The calculations of earnings per share for the three month and six month
periods ended December 31, 1996, include adjustments for earned but
undeclared dividends related to the Company's previously outstanding
convertible preferred stock. All of the preferred stock was either retired
or converted to common stock during December 1996.
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings per Share", which replaced
the previously reported primary and fully diluted earnings per share
calculations with basic and diluted earnings per share. Unlike primary
earnings per share, basic earnings per share excludes any dilutive effects of
options, warrants, and convertible securities. Diluted earnings per share is
very similar to the previously reported fully diluted earnings per share.
All earnings per share amounts for all periods have been presented and, where
necessary, restated to conform to the Statement No. 128 requirements.
The following table sets forth the computation of basic and diluted earnings
per share from continuing operations (in thousands, except per share data):
<TABLE>
<CAPTION>
Quarter ended December 31, Six Months Ended Dec. 31,
-------------------------- --------------------------
1997 1996 1997 1996
------------ ----------- ------------ ----------
<S> <C> <C> <C> <C>
BASIC EARNINGS PER SHARE:
Income before extraordinary gain $ 8,540 $ 5,147 $ 11,575 $ 6,443
Adjustments:
Dividends-senior preferred stock - (454) - (1,032)
Dividends-junior preferred stock - (182) - (399)
------------ ----------- ------------ ----------
Net income applicable to common stockholders $ 8,540 $ 4,511 $ 11,575 $ 5,012
============ =========== ============ ==========
Weighted average common shares outstanding 19,592 10,657 19,567 9,787
============ =========== ============ ==========
Earnings per share - basic $ 0.44 $ 0.42 $ 0.59 $ 0.51
============ =========== ============ ==========
DILUTED EARNINGS PER SHARE:
Income before extraordinary gain $ 8,540 $ 5,147 $ 11,575 $ 6,443
============ =========== ============ ==========
Weighted average common shares outstanding 19,592 10,657 19,567 9,787
Weighted common stock equivalents:
Stock options and warrants 2,396 942 2,462 791
Senior convertible preferred stock - 3,989 - 4,578
Junior convertible preferred stock - 2,083 - 2,379
------------ ----------- ------------ ----------
Weighted average common shares and
equivalents outstanding 21,988 17,671 22,029 17,535
============ =========== ============ ==========
Earnings per share - diluted $ 0.39 $ 0.29 $ 0.53 $ 0.37
============ =========== ============ ==========
</TABLE>
7
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
4. REVOLVING CREDIT FACILITY
On January 26, 1998, the Company amended its existing credit agreement, by
adding an additional bank and expanding the credit facility available for
general corporate purposes and acquisitions to $35 million from $15 million.
Payment and maturity terms remained relatively unchanged, with interest due
quarterly in arrears at rates contingent upon a particular financial ratio of
the Company, and the agreement maturing on March 13, 2001. Performance of the
Company's obligations under the credit agreement is collateralized by
substantially all of the Company's assets. The credit agreement also contains
certain restrictive covenants, including the prohibition of the payment of
dividends, restrictions on the issuance of certain types of preferred stock,
and the maintenance of certain financial ratios.
5. COMMITMENTS AND CONTINGENCIES
The Company has guaranteed, in the aggregate amount of $4 million, the
contingent liabilities of one of its wholly-owned subsidiaries with respect
to two limited partnerships in which the subsidiary formerly acted as general
partner.
The Company is involved in various claims and lawsuits arising out of the
conduct of its business, as well as in connection with its participation in
various joint ventures, partnerships, a trust, and an appraisal business,
many of which may not be covered by the Company's insurance policies. In the
opinion of management, the eventual outcome of such claims and lawsuits is
not expected to have a material adverse effect on the Company's financial
position or results of operations.
The Company previously disclosed in its Annual Report on Form 10-K for the
year ended June 30, 1997, information concerning a lawsuit entitled JOHSZ ET
AL. V. KOLL COMPANY, ET AL., and a related lawsuit entitled YOUNKIN, MAIONA,
ET AL. V. KOLL COMPANY, ET AL. and a class action lawsuit, JOHN W. MATTHEWS,
ET AL. V. KIDDER, PEABODY & CO., ET AL. AND HSM INC., ET AL. Since such
report, there has been no material change with respect to these matters.
8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This report contains forward-looking statements which may involve known and
unknown risks, uncertainties and other factors that may cause the Company's
actual results and performance in future periods to be materially different
from any future results or performance suggested by these statements. Such
factors, which could adversely affect the Company's ability to obtain these
results include, among other things, (i) the volume of transactions and
prices for real estate in the real estate markets generally, (ii) a general
or regional economic downturn which could create a recession in the real
estate markets, (iii) the Company's debt level and its ability to make
interest and principal payments, (iv) an increase in expenses related to new
initiatives, investments in personnel and technology, and service
improvements, (v) the success of new initiatives and investments, and (vi)
other factors described in the Company's Form 10-K for the fiscal year ended
June 30, 1997.
RESULTS OF OPERATIONS
REVENUE
The Company's revenue is derived principally from transaction service
commissions related to commercial real estate. Management services fees
generated from property and facilities management services, along with other
fees comprised of asset management, mortgage brokerage, appraisal and
consulting fees, provide substantially all of the remaining revenue.
Revenue in any given quarter during the three fiscal year period ended June
30, 1997, as a percentage of total annual revenue, ranged from a high of
31.1% to a low of 19.0%, with revenue earned in the second quarters of each
of the last three fiscal years ranging from 29.8% to 31.1%. The Company has
historically experienced its lowest quarterly revenue in the quarter ending
March 31 of each year with progressively higher revenue in the quarters
ending June 30, September 30, and December 31, due to increased activity
caused by the desire of clients to complete transactions by calendar
year-end.
Total revenue for the six months ended December 31, 1997 was $143.6 million,
an increase of 19.7% over revenue of $120.0 million for the same period last
year, reflecting continued strong real estate markets and increased business
activity across the Company's service lines. This improvement related
primarily to a $23.0 million increase in transaction service commissions over
the same period in 1996. Management services fees of $14.9 million for the
six months ended December 31, 1997 increased by $3.5 million, or 30.7%, as a
result of increased activity in business services and property and facilities
management. The improvements in transaction service commissions and
management services fees were partially offset by reduced asset management
and other fees for the period.
Total revenue for the quarter ended December 31, 1997 was $81.5 million, an
increase of 19.8% over revenue of $68.0 million for the same period last
year. Transaction service commissions increased $13.6 million or 24.0% over
the comparable 1996 period, while management services fees increased by $2.2
million, or 38.3%. Reduced asset management and other fees partially offset
these improvements for the period.
9
<PAGE>
COSTS AND EXPENSES
Transaction service commission expense is the Company's major expense and is
a direct function of transaction related revenue levels, which include
transaction service commissions and other fees. As a percentage of these
revenues, related commission expense increased slightly for the six months
and quarter ended December 31, 1997 as compared to the same periods in 1996
due to higher costs related to guaranteed participation amounts for newly
hired professionals and higher participation percentages attributable to
higher production levels. Commission expense related to other fee revenue is
also included in transaction service commission expense for the periods
reported.
Total costs and expenses, other than transaction service commission expense
and special charges and unusual items, increased by $10.1 million, or 20.0%,
for the first six months of fiscal year 1998 compared to the same period in
fiscal year 1997. The increase in costs includes $3.3 million and $3.2
million of expenses associated with supporting new business and changes in
executive management structure in the Company's transaction services and
management services areas, respectively; and $2.9 million in salaries and
operating expenses related to the Institutional Services Group and Corporate
Services Group. The Company currently has 20 directors responsible for
managing relationships with its largest multi-market clients. In addition,
the Company also incurred increased costs related to upgrading technology,
human resources systems and corporate marketing, which were offset by a
reduction in self-insured reserves.
Total costs and expenses, other than transaction service commission expense
and special charges and unusual items, for the quarter ended December 31,
1997 increased by $5.7 million, or 21.5%, compared to the same quarter in
fiscal year 1997 due primarily to the costs described above.
Special charges and unusual items reflect charges of $900,000 for the six
month period ended December 31, 1996 primarily resulting from incremental
non-recurring costs incurred in the quarter ended December 31, 1996, related
to the relocation of the Company's corporate headquarters from San Francisco,
California to Northbrook, Illinois.
NET INCOME
Net income for the six months ended December 31, 1997 was $11.6 million, or
$.53 per common share on a diluted basis, as compared to net income of $10.0
million, or $.57 per common share for the same period in fiscal year 1997.
The increase over the prior year's performance was related to higher net
earnings from transaction and management services activities, the elimination
of interest expense resulting from the extinguishment of the Company's
long-term debt in fiscal year 1997, and the recognition of a $1.7 million
deferred tax benefit in fiscal year 1998. Earnings per share on a comparative
basis were diluted by the impact of the increased value of stock options and
warrants due to the appreciation of the Company's stock price, as well as the
issuance of additional shares of common stock during fiscal year 1997. Net
income for the prior period also included non-recurring charges of $900,000
related primarily to the corporate headquarters relocation and a $3.6 million
extraordinary gain on the extinguishment of debt in connection with the
financing transactions which occurred in December 1996. Net income before
non-recurring items for the current six-month period was $9.9 million, or
$0.45 per share, compared with $7.3 million, or $0.42 per share, in the first
half of fiscal 1997.
10
<PAGE>
Net income for the quarter ended December 31, 1997 was $8.5 million or $.39
per common share on a diluted basis, as compared to $8.7 million or $.49 per
common share for the same period in fiscal year 1997. Net income includes
the effect of non-recurring items which consisted of a $1.1 million deferred
tax benefit in the most recent quarter, and a $3.6 million extraordinary gain
on extinguishment of debt that was offset by a $1.0 million charge related to
the relocation of its corporate headquarters in the comparable prior year
period. Net income for the second quarter of fiscal year 1998, before
non-recurring items, was $7.4 million, or $0.34 per share, compared with $6.1
million, or $0.35 per share, for the same period last year. Earnings per
share on a comparative basis were diluted by the impact of the increased
value of stock options and warrants due to the appreciation of the Company's
stock price, as well as the issuance of additional shares of common stock
during fiscal 1997.
The Company's earnings per share amounts have been calculated in accordance
with the Statement of Financial Accounting Standards No. 128, "Earnings per
Share." See Note 3 of Notes to Financial Statements for additional
information.
LIQUIDITY AND CAPITAL RESOURCES
Working capital increased by $6.0 million to $23.0 million during the six
months ended December 31, 1997, as the Company's cash and cash equivalents
increased by $16.8 million from June 30, 1997 to December 31, 1997. Cash
provided by operations of $19.7 million was offset by net cash of $2.9
million used in investing activities, primarily for purchases of equipment
and leasehold improvements.
The Company has historically experienced the highest use of operating cash in
the quarter ended March 31, primarily related to the payment of incentive and
deferred commission payable balances which attain peak levels as a result of
the high volume of transaction services activity during the quarter ended
December 31. Deferred commissions payable balances of approximately $11.3
million, related to revenues earned in the six months ended December 31,
1997, have been paid subsequent to the end of that period.
The Company believes that its short-term and long-term cash requirements will
be met by operating cash flow. In addition, on January 26, 1998, the Company
amended its credit agreement, by adding an additional bank and expanding the
credit facility available for general corporate purposes and acquisitions to
$35 million from $15 million. Payment terms and maturities remained
relatively unchanged, although certain restrictive covenants were eliminated
or modified. Currently, the Company has no outstanding borrowings under the
facility. (See Item 2.(b) of Part II of this report for additional
information.)
The Company has increased its investment in various business and technology
initiatives, entering into contracts for intranet, human resources, general
ledger and transaction services information systems. The Company's current
contracted commitments for these systems, including required computer
hardware additions and upgrades, total approximately $884,000, with
additional commitments being likely. The primary objectives of these added
technology investments were to enhance the productivity and effectiveness of
the Company's staff and business processes, and to bring the Company's
computer information systems into
11
<PAGE>
compliance with year 2000 requirements. The Company expects all of these
initiatives to be completed by the end of fiscal year 1999.
The second half of fiscal 1998 should mirror the first-half of the year in
many ways. Real estate markets, especially in the West where the Company has
a significant presence, should remain strong. Infrastructure expenditures
will continue, therefore, the Company expects to see expenses as a percentage
of revenue, on a rolling twelve month basis, to continue to increase
throughout fiscal 1998, before stabilizing and then decreasing in fiscal 1999.
The Company is exploring strategic acquisition opportunities that have the
potential to broaden its geographic reach and expand the depth and breadth of
its current lines of business. The sources of consideration for such
acquisitions could be cash, the Company's line of credit, new debt, and/or
the issuance of stock. Although it is the Company's intent to actively pursue
this strategy, no assurances can be made that any such acquisitions will
occur.
12
<PAGE>
PART II
OTHER INFORMATION
(ITEMS 1, 3 AND 5 ARE NOT APPLICABLE
FOR THE QUARTER ENDED DECEMBER 31, 1997)
13
<PAGE>
ITEM 2. CHANGES IN SECURITIES
(a) Effective December 9, 1997, the Certificate of Incorporation
of the Company was amended (the "Amendment") to increase the number of
authorized shares of Common Stock, $.01 par value per share, from 25 million
to 50 million shares, resulting in an increase in the authorized capital
stock of the Company from 26 million to 51 million shares. In addition, the
Amendment eliminated the existing designation of preferences on the
authorized Preferred Stock, $.01 par value per share. There were no shares
of authorized Preferred Stock outstanding as of the date of this Report. The
Amendment provides that the Board of Directors retains the right to designate
the preferences on any Preferred Stock which may be issued in the future.
See Item 4, "Submission of Matters to a Vote of Security Holders."
On December 30, 1997, Warburg Pincus Investors, L.P. ("WPI") and
the Company entered into an agreement whereby WPI agreed that whenever a
matter is brought to the vote of the stockholders of the Company and WPI
beneficially has more than 50% of the voting power entitled to vote on such
matter, then WPI may vote its shares up to 50% of the voting power (the
"Limit") in its discretion and WPI may vote its shares in excess of the Limit
in the same proportion as the shares of voting stock owned by holders other
than WPI are voted. The agreement may not be amended or terminated without
the concurrence of a majority of the directors of the Company who are not
officers, employees, members or partners of WPI or the Company or the holders
of a majority of the stock of the Company at a stockholders' meeting, other
than shares owned by WPI. In addition, the agreement may be terminated by
WPI or the Company if either party has received an opinion from a certified
public accounting firm that the agreement shall not be effective to divest
WPI of voting power in excess of the 50% limitation for pooling of interest
accounting rules.
(b) Effective January 26, 1998, the Company and certain of its
subsidiaries entered into an Amended and Restated Credit Agreement (the
"Credit Agreement") with PNC Bank, National Association ("PNC") and American
National Bank and Trust Company of Chicago ("ANB") (together, the "Banks"),
providing for an increase in the existing revolving credit facility made
available to the Company by PNC from $15 million to $35 million. The
facility had not been utilized at the date of this Report. The term of the
Credit Agreement extends until March 13, 2001. As security for the facility,
the Banks have a security interest in the majority of the assets of the
Company and its primary subsidiaries. In addition, the material subsidiaries
of the Company have guaranteed repayment of any amounts borrowed under the
facility. Pursuant to the provisions of the Credit Agreement, the Company is
prohibited from the payment of dividends with respect to its capital stock,
and from the issuance of preferred stock unless the stock is unredeemable and
not subject to any right with respect to non-payment of dividends other than
a right to cumulative dividends prior to the payment of dividends on the
common stock. In addition, the consent of the Banks is required prior to the
amendment of the certificate of the incorporation or bylaws of the Company.
There are also restrictions on indebtedness, liens, guarantees, loans,
investments, acquisitions, and dispositions of assets. The financial
covenants of the Credit Agreement include maintaining a ratio of indebtedness
to annual cash flow from operations of no more than 3.00, 2.75 and 2.50 to
1.00 at the end of each fiscal quarter during each of the periods from
January 1, 1998 to December 31, 1998; January 1, 1999 to December 31, 1999;
January 1, 2000 and thereafter, respectively.
14
<PAGE>
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The 1997 annual meeting of stockholders of the Company was held on
November 20, 1997. The Company submitted to a vote of stockholders, through
the solicitation of proxies, the following proposals: the election of ten
directors, representing the entire Board of Directors; the Amendment; a
proposed new Employee Stock Purchase Plan providing for 750,000 authorized
shares of Common Stock; and amendments to the 1990 Amended and Restated Stock
Option Plan increasing the authorized shares of Common Stock for the grant of
options thereunder from 1,500,000 shares to 2,000,000 shares. See Item 2,
"Changes in Securities." The votes cast for, against and withheld (or
abstained) with respect to each nominee for election as director and each
other proposal were as follows:
<TABLE>
<CAPTION>
WITHHOLD
FOR AUTHORITY
---------- ---------
<S> <C> <C>
Neil Young 18,217,544 17,288
R. David Anacker 18,217,694 17,138
Lawrence S. Bacow 18,217,512 17,320
Joe F. Hanauer 18,217,744 17,088
C. Michael Kojaian 18,217,371 17,461
Sidney Lapidus 18,217,744 17,088
Reuben S. Leibowitz 18,217,744 17,088
Robert J. McLaughlin 18,217,470 17,362
John D. Santoleri 18,216,814 18,018
Todd A. Williams 18,216,610 18,222
BROKER
FOR AGAINST ABSTAINED NON-VOTES
---------- --------- --------- ---------
<S> <C> <C> <C> <C>
The Amendment 17,254,589 970,383 9,860 -
Employee Stock Purchase Plan 16,718,494 180,477 21,663 1,314,198
Amendments to Stock Option Plan 15,887,690 1,005,630 27,784 1,313,728
</TABLE>
ITEM 6(a). EXHIBITS
(3) ARTICLES OF INCORPORATION AND BYLAWS
3.1 Certificate of Incorporation of the Registrant, as restated effective
November 1, 1994, incorporated herein by reference to Exhibit 3.2 to the
Registrant' Annual Report on Form 10-K filed on March 31, 1995 (Commission
File No. 1-8122).
3.2 Certificate of Retirement with Respect to 130,233 Shares of Junior
Convertible Preferred Stock of Grubb & Ellis Company, filed with the Delaware
Secretary of State on January 22, 1997, incorporated herein by reference to
Exhibit 3.3 to the Registrant's Quarterly Report on Form 10-Q filed on
February 13, 1997 (Commission File No. 1-8122).
3.3 Certificate of Retirement with Respect to 8,894 Shares of Series A
Senior Convertible Preferred Stock, 128,266 Shares of Series B Senior
Convertible Preferred Stock, and 19,767 Shares of Junior Convertible
Preferred Stock of Grubb & Ellis Company, filed with the Delaware Secretary
15
<PAGE>
of State on January 22, 1997, incorporated herein by reference to Exhibit 3.4
to the Registrant's Quarterly Report on Form 10-Q filed on February 13, 1997
(Commission File No. 1-8122).
3.4 Amendment to the Restated Certificate of Incorporation of Grubb & Ellis
Company, filed with the Delaware Secretary of State on December 9, 1997,
incorporated herein by reference to Exhibit 4.4 to the Registrant's
Registration Statement on Form S-8 filed on December 19, 1997 (Commission
File No. 333-42741).
3.5 Grubb & Ellis Company Bylaws, as amended and restated effective June 1,
1994, incorporated herein by reference to Exhibit 3.2 to the Registrant's
Quarterly Report on Form 10-Q filed on November 13, 1996 (Commission File No.
1-8122).
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES
4.1 Amended and Restated Credit Agreement among the Registrant, certain
subsidiaries of the Registrant, PNC Bank, National Association, and American
National Bank and Trust Company of Chicago dated as of January 26, 1998.
4.2 Amended and Restated Subordination Agreement among the Registrant and
certain subsidiaries of the Registrant in favor of PNC Bank, National
Association, and American National Bank and Trust Company of Chicago dated as
of January 26, 1998.
4.3 Revolving Credit Note executed by the Registrant in favor of PNC Bank,
National Association in the amount of $20 million dated as of January 26,
1998.
4.4 Revolving Credit Note executed by the Registrant in favor of American
National Bank and Trust Company of Chicago in the amount of $15 million dated
as of January 26, 1998.
4.5 Voting Agreement between Warburg, Pincus Investors, L.P. and the
Registrant dated as of December 30, 1997.
(10) MATERIAL CONTRACTS
10.1 Amended and Restated Master Collateral Assignment of Contracts Rights to
PNC Bank, National Association, as Agent by the Registrant and Subsidiaries
of the Registrant as of January 26, 1998.
10.2 Amended and Restated Master Agreement of Guaranty and Suretyship by the
Registrant and Subsidiaries of the Registrant in favor of PNC Bank, National
Association, as Agent by the Registrant and Subsidiaries of the Registrant as
of January 26, 1998.
10.3 Amended and Restated Pledge Agreement among the Registrant, certain
Subsidiaries of the Registrant, PNC Bank, National Association, and American
National Bank and Trust Company of Chicago dated as of January 26, 1998.
10.4 Amended and Restated Security Agreement among the Registrant, certain
Subsidiaries of the Registrant, PNC Bank, National Association, and American
National Bank and Trust Company of Chicago dated as of January 26, 1998.
16
<PAGE>
10.5 Amended and Restated Trademark Security Agreement by the Registrant in
favor of PNC Bank, National Association, and American National Bank and
Trust Company of Chicago dated as of January 26, 1998.
10.6 Grubb & Ellis Company 1990 Amended and Restated Stock Option Plan, as
amended effective as of June 20, 1997, incorporated herein by reference to
Exhibit 4.6 to the Registrant's Registration Statement on Form S-8 filed on
December 19, 1997 (Commission File No. 333-42741).
(27) FINANCIAL DATA SCHEDULE
ITEM 6. (b) REPORTS ON FORM 8-K
None.
17
<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 thereunto duly authorized.
GRUBB & ELLIS COMPANY
---------------------
(Registrant)
Date: February 13, 1998 /s/ Brian D. Parker
---------------------------------
Brian D. Parker
Senior Vice President and
Chief Financial Officer
18
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
EXHIBIT INDEX
FOR THE QUARTER ENDED DECEMBER 31 1997
EXHIBIT
- ---------
(4) INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES
4.1 Amended and Restated Credit Agreement among the Registrant, certain
subsidiaries of the Registrant, PNC Bank, National Association, and
American National Bank and Trust Company of Chicago dated as of
January 26, 1998.
4.2 Amended and Restated Subordination Agreement among the Registrant and
certain subsidiaries of the Registrant in favor of PNC Bank, National
Association, and American National Bank and Trust Company of Chicago
dated as of January 26, 1998.
4.3 Revolving Credit Note executed by the Registrant in favor of PNC Bank,
National Association in the amount of $20 million dated as of January
26, 1998.
4.4 Revolving Credit Note executed by the Registrant in favor of American
National Bank and Trust Company of Chicago in the amount of $15
million dated as of January 26, 1998.
4.5 Voting Agreement between Warburg, Pincus Investors, L.P. and the
Registrant dated as of December 30, 1997.
(10) MATERIAL CONTRACTS
10.1 Amended and Restated Master Collateral Assignment of Contracts Rights
to PNC Bank, National Association, as Agent by the Registrant and
Subsidiaries of the Registrant as of January 26, 1998.
10.2 Amended and Restated Master Agreement of Guaranty and Suretyship by
the Registrant and Subsidiaries of the Registrant in favor of PNC
Bank, National Association, as Agent by the Registrant and
Subsidiaries of the Registrant as of January 26, 1998.
10.3 Amended and Restated Pledge Agreement among the Registrant, certain
Subsidiaries of the Registrant, PNC Bank, National Association, and
American National Bank and Trust Company of Chicago dated as of
January 26, 1998.
10.4 Amended and Restated Security Agreement among the Registrant, certain
Subsidiaries of the Registrant, PNC Bank, National Association, and
American National Bank and Trust Company of Chicago dated as of
January 26, 1998.
10.5 Amended and Restated Trademark Security Agreement by the Registrant in
favor of PNC Bank, National Association, and American National Bank
and Trust Company of Chicago dated as of January 26, 1998.
(27) FINANCIAL DATA SCHEDULE
19
<PAGE>
Exhibit 4.1
$35,000,000 REVOLVING CREDIT FACILITY
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
GRUBB & ELLIS COMPANY,
THE GUARANTORS,
THE BANKS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION, as Agent
Dated as of January 26, 1998
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
1. CERTAIN DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 CERTAIN DEFINITIONS.. . . . . . . . . . . . . . . . . .1
1.2 CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . 19
1.2.1 NUMBER; INCLUSION. . . . . . . . . . . . . . . 20
1.2.2 DETERMINATION. . . . . . . . . . . . . . . . . 20
1.2.3 AGENT'S DISCRETION AND CONSENT.. . . . . . . . 20
1.2.4 DOCUMENTS TAKEN AS A WHOLE.. . . . . . . . . . 20
1.2.5 HEADINGS.. . . . . . . . . . . . . . . . . . . 20
1.2.6 IMPLIED REFERENCES TO THIS AGREEMENT.. . . . . 20
1.2.7 PERSONS. . . . . . . . . . . . . . . . . . . . 20
1.2.8 MODIFICATIONS TO DOCUMENTS.. . . . . . . . . . 21
1.2.9 FROM, TO AND THROUGH.. . . . . . . . . . . . . 21
1.2.10 SHALL; WILL.. . . . . . . . . . . . . . . . . 21
1.3 ACCOUNTING PRINCIPLES.. . . . . . . . . . . . . . . . 21
2. REVOLVING CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . 21
2.1 REVOLVING CREDIT COMMITMENTS. . . . . . . . . . . . . 21
2.2 NATURE OF BANKS' OBLIGATIONS WITH RESPECT TO
REVOLVING CREDIT LOANS.. . . . . . . . . . . . . . . 22
2.3 COMMITMENT FEE. . . . . . . . . . . . . . . . . . . . 22
2.4 REVOLVING CREDIT FACILITY FEE.. . . . . . . . . . . . 22
2.5 REVOLVING CREDIT LOAN REQUESTS. . . . . . . . . . . . 22
2.6 MAKING REVOLVING CREDIT LOANS.. . . . . . . . . . . . 23
2.7 REVOLVING CREDIT NOTES. . . . . . . . . . . . . . . . 23
2.8 USE OF PROCEEDS.. . . . . . . . . . . . . . . . . . . 24
2.9 LETTER OF CREDIT SUBFACILITY. . . . . . . . . . . . . 24
2.9.1 ISSUANCE OF LETTERS OF CREDIT. . . . . . . . . 24
2.9.2 LETTER OF CREDIT FEES. . . . . . . . . . . . . 24
2.9.3 DISBURSEMENTS, REIMBURSEMENT.. . . . . . . . . 25
2.9.4 REPAYMENT OF PARTICIPATION ADVANCES. . . . . . 26
2.9.5 DOCUMENTATION. . . . . . . . . . . . . . . . . 26
2.9.6 DETERMINATIONS TO HONOR DRAWING REQUESTS.. . . 27
2.9.7 NATURE OF PARTICIPATION AND REIMBURSEMENT
OBLIGATIONS.. . . . . . . . . . . . . . . . 27
2.9.8 INDEMNITY. . . . . . . . . . . . . . . . . . . 28
2.9.9 LIABILITY FOR ACTS AND OMISSIONS.. . . . . . . 29
-i-
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
3. [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . . . 30
4. INTEREST RATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 INTEREST RATE OPTIONS.. . . . . . . . . . . . . . . . 30
4.1.1 REVOLVING CREDIT INTEREST RATE OPTIONS.. . . . 30
4.1.2 RATE QUOTATIONS. . . . . . . . . . . . . . . . 30
4.2 INTEREST PERIODS. . . . . . . . . . . . . . . . . . . 30
4.2.1 ENDING DATE AND BUSINESS DAY.. . . . . . . . . 31
4.2.2 AMOUNT OF BORROWING TRANCHE. . . . . . . . . . 31
4.2.3 TERMINATION BEFORE EXPIRATION DATE.. . . . . . 31
4.2.4 RENEWALS.. . . . . . . . . . . . . . . . . . . 31
4.3 INTEREST AFTER DEFAULT. . . . . . . . . . . . . . . . 31
4.3.1 LETTER OF CREDIT FEES, INTEREST RATE.. . . . . 31
4.3.2 OTHER OBLIGATIONS. . . . . . . . . . . . . . . 31
4.3.3 ACKNOWLEDGMENT.. . . . . . . . . . . . . . . . 32
4.4 EURO-RATE UNASCERTAINABLE; ILLEGALITY; INCREASED
COSTS; DEPOSITS NOT AVAILABLE. . . . . . . . . . 32
4.4.1 UNASCERTAINABLE. . . . . . . . . . . . . . . . 32
4.4.2 ILLEGALITY; INCREASED COSTS; DEPOSITS
NOT AVAILABLE. . . . . . . . . . . . . . . 32
4.4.3 AGENT'S AND BANK'S RIGHTS. . . . . . . . . . . 33
4.5 SELECTION OF INTEREST RATE OPTIONS. . . . . . . . . . 33
5. PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.1 PAYMENTS. . . . . . . . . . . . . . . . . . . . . . . 33
5.2 PRO RATA TREATMENT OF BANKS.. . . . . . . . . . . . . 34
5.3 INTEREST PAYMENT DATES. . . . . . . . . . . . . . . . 34
5.4 VOLUNTARY REPAYMENTS. . . . . . . . . . . . . . . . . 34
5.4.1 RIGHT TO REPAY.. . . . . . . . . . . . . . . . 34
5.4.2 REPLACEMENT OF A BANK. . . . . . . . . . . . . 35
5.4.3 CHANGE OF LENDING OFFICE.. . . . . . . . . . . 35
5.4.4 COMMITMENT REDUCTIONS. . . . . . . . . . . . . 36
5.5 MANDATORY REPAYMENTS. . . . . . . . . . . . . . . . . 36
5.5.1 SALE OF ASSETS.. . . . . . . . . . . . . . . . 36
5.5.2 APPLICATION AMONG INTEREST RATE OPTIONS. . . . 36
5.6 ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES. . . 37
5.6.1 INCREASED COSTS OR REDUCED RETURN RESULTING
FROM TAXES, RESERVES, CAPITAL ADEQUACY
REQUIREMENTS, EXPENSES, ETC. . . . . . . . 37
5.6.2 INDEMNITY. . . . . . . . . . . . . . . . . . . 38
-ii-
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
6. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . 38
6.1 REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . 38
6.1.1 ORGANIZATION AND QUALIFICATION.. . . . . . . . 38
6.1.2 CAPITALIZATION AND OWNERSHIP.. . . . . . . . . 39
6.1.3 SUBSIDIARIES.. . . . . . . . . . . . . . . . . 39
6.1.4 POWER AND AUTHORITY. . . . . . . . . . . . . . 39
6.1.5 VALIDITY AND BINDING EFFECT. . . . . . . . . . 40
6.1.6 NO CONFLICT. . . . . . . . . . . . . . . . . . 40
6.1.7 LITIGATION.. . . . . . . . . . . . . . . . . . 40
6.1.8 TITLE TO PROPERTIES. . . . . . . . . . . . . . 40
6.1.9 FINANCIAL STATEMENTS.. . . . . . . . . . . . . 41
6.1.10 USE OF PROCEEDS; MARGIN STOCK.. . . . . . . . 41
6.1.11 FULL DISCLOSURE.. . . . . . . . . . . . . . . 42
6.1.12 TAXES.. . . . . . . . . . . . . . . . . . . . 42
6.1.13 CONSENTS AND APPROVALS. . . . . . . . . . . . 42
6.1.14 NO EVENT OF DEFAULT; COMPLIANCE WITH
INSTRUMENTS.. . . . . . . . . . . . . . . 42
6.1.15 PATENTS, TRADEMARKS, COPYRIGHTS,
LICENSES, ETC. . . . . . . . . . . . . . . 43
6.1.16 SECURITY INTERESTS. . . . . . . . . . . . . . 43
6.1.17 STATUS OF THE PLEDGED COLLATERAL. . . . . . . 43
6.1.18 INSURANCE.. . . . . . . . . . . . . . . . . . 44
6.1.19 COMPLIANCE WITH LAWS. . . . . . . . . . . . . 44
6.1.20 MATERIAL CONTRACTS; BURDENSOME
RESTRICTIONS.. . . . . . . . . . . . . . . 44
6.1.21 INVESTMENT COMPANIES; REGULATED ENTITIES. . . 44
6.1.22 PLANS AND BENEFIT ARRANGEMENTS. . . . . . . . 45
6.1.23 EMPLOYMENT MATTERS. . . . . . . . . . . . . . 46
6.1.24 ENVIRONMENTAL MATTERS.. . . . . . . . . . . . 46
6.2 UPDATES TO SCHEDULES. . . . . . . . . . . . . . . . . 47
7. CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . 48
7.1 FIRST LOANS.. . . . . . . . . . . . . . . . . . . . . 48
7.1.1 OFFICER'S CERTIFICATE. . . . . . . . . . . . . 48
7.1.2 SECRETARY'S CERTIFICATE. . . . . . . . . . . . 48
7.1.3 DELIVERY OF LOAN DOCUMENTS.. . . . . . . . . . 49
7.1.4 OPINION OF COUNSEL.. . . . . . . . . . . . . . 49
7.1.5 LEGAL DETAILS. . . . . . . . . . . . . . . . . 50
7.1.6 PAYMENT OF FEES. . . . . . . . . . . . . . . . 50
7.1.7 CONSENTS.. . . . . . . . . . . . . . . . . . . 50
7.1.8 OFFICER'S CERTIFICATE REGARDING MACS.. . . . . 50
7.1.9 NO VIOLATION OF LAWS.. . . . . . . . . . . . . 50
7.1.10 NO ACTIONS OR PROCEEDINGS.. . . . . . . . . . 50
7.1.11 INSURANCE POLICIES; CERTIFICATES OF
INSURANCE; ENDORSEMENTS. . . . . . . . . . 51
7.1.12 FILING RECEIPTS.. . . . . . . . . . . . . . . 51
-iii-
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
7.2 EACH ADDITIONAL LOAN. . . . . . . . . . . . . . . . . . . . . . 51
8. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.1 AFFIRMATIVE COVENANTS.. . . . . . . . . . . . . . . . 51
8.1.1 PRESERVATION OF EXISTENCE, ETC.. . . . . . . . 52
8.1.2 PAYMENT OF LIABILITIES, INCLUDING
TAXES, ETC.. . . . . . . . . . . . . . . . 52
8.1.3 MAINTENANCE OF INSURANCE.. . . . . . . . . . . 52
8.1.4 MAINTENANCE OF PROPERTIES AND LEASES.. . . . . 53
8.1.5 MAINTENANCE OF PATENTS, TRADEMARKS, ETC. . . . 53
8.1.6 VISITATION RIGHTS. . . . . . . . . . . . . . . 53
8.1.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. . . . 53
8.1.8 PLANS AND BENEFIT ARRANGEMENTS.. . . . . . . . 53
8.1.9 COMPLIANCE WITH LAWS.. . . . . . . . . . . . . 54
8.1.10 USE OF PROCEEDS.. . . . . . . . . . . . . . . 54
8.1.11 FURTHER ASSURANCES. . . . . . . . . . . . . . 54
8.1.12 SUBORDINATION OF INTERCOMPANY LOANS.. . . . . 55
8.1.13 LIEN TERMINATIONS.. . . . . . . . . . . . . . 55
8.2 NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . 55
8.2.1 INDEBTEDNESS.. . . . . . . . . . . . . . . . . 55
8.2.2 LIENS. . . . . . . . . . . . . . . . . . . . . 56
8.2.3 GUARANTIES.. . . . . . . . . . . . . . . . . . 56
8.2.4 LOANS AND INVESTMENTS. . . . . . . . . . . . . 57
8.2.5 DIVIDENDS AND RELATED DISTRIBUTIONS. . . . . . 57
8.2.6 LIQUIDATIONS, MERGERS, CONSOLIDATIONS,
ACQUISITIONS.. . . . . . . . . . . . . . . 58
8.2.7 DISPOSITIONS OF ASSETS OR SUBSIDIARIES.. . . . 59
8.2.8 AFFILIATE TRANSACTIONS.. . . . . . . . . . . . 60
8.2.9 SUBSIDIARIES, PARTNERSHIPS, JOINT VENTURES
AND RESTRICTED INVESTMENTS.. . . . . . . . 60
8.2.10 CONTINUATION OF OR CHANGE IN BUSINESS.. . . . 61
8.2.11 PLANS AND BENEFIT ARRANGEMENTS. . . . . . . . 61
8.2.12 FISCAL YEAR.. . . . . . . . . . . . . . . . . 62
8.2.13 ISSUANCE OF STOCK.. . . . . . . . . . . . . . 63
8.2.14 CHANGES IN ORGANIZATIONAL DOCUMENTS.. . . . . 63
8.2.15 INTEREST RATE PROTECTION. . . . . . . . . . . 63
8.2.16 MAXIMUM DEBT TO CASH FLOW RATIO.. . . . . . . 63
8.3 REPORTING REQUIREMENTS. . . . . . . . . . . . . . . . 64
9. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.1 EVENTS OF DEFAULT.. . . . . . . . . . . . . . . . . . 64
9.1.1 PAYMENTS UNDER LOAN DOCUMENTS. . . . . . . . . 64
9.1.2 BREACH OF WARRANTY.. . . . . . . . . . . . . . 64
9.1.3 BREACH OF NEGATIVE COVENANTS OR VISITATION
RIGHTS.. . . . . . . . . . . . . . . . . . 64
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<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
9.1.4 BREACH OF OTHER COVENANTS. . . . . . . . . . . 64
9.1.5 DEFAULTS IN OTHER AGREEMENTS OR INDEBTEDNESS.. 65
9.1.6 FINAL JUDGMENTS OR ORDERS. . . . . . . . . . . 65
9.1.7 LOAN DOCUMENT UNENFORCEABLE. . . . . . . . . . 65
9.1.8 UNINSURED LOSSES; PROCEEDINGS AGAINST
ASSETS; ENVIRONMENTAL LIABILITY. . . . . . 65
9.1.9 NOTICE OF LIEN OR ASSESSMENT.. . . . . . . . . 66
9.1.10 INSOLVENCY. . . . . . . . . . . . . . . . . . 66
9.1.11 EVENTS RELATING TO PLANS AND BENEFIT
ARRANGEMENTS.. . . . . . . . . . . . . . . 66
9.1.12 CESSATION OF BUSINESS.. . . . . . . . . . . . 66
9.1.13 CHANGE OF CONTROL.. . . . . . . . . . . . . . 67
9.1.14 INVOLUNTARY PROCEEDINGS.. . . . . . . . . . . 67
9.1.15 VOLUNTARY PROCEEDINGS.. . . . . . . . . . . . 67
9.2 CONSEQUENCES OF EVENT OF DEFAULT. . . . . . . . . . . 67
9.2.1 EVENTS OF DEFAULT OTHER THAN BANKRUPTCY,
INSOLVENCY OR REORGANIZATION PROCEEDINGS.. 67
9.2.2 BANKRUPTCY, INSOLVENCY OR REORGANIZATION
PROCEEDINGS. . . . . . . . . . . . . . . . 68
9.2.3 SET-OFF. . . . . . . . . . . . . . . . . . . . 68
9.2.4 SUITS, ACTIONS, PROCEEDINGS. . . . . . . . . . 68
9.2.5 APPLICATION OF PROCEEDS. . . . . . . . . . . . 69
9.2.6 OTHER RIGHTS AND REMEDIES. . . . . . . . . . . 69
9.3 NOTICE OF SALE. . . . . . . . . . . . . . . . . . . . 69
10. THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.1 APPOINTMENT. . . . . . . . . . . . . . . . . . . . . 70
10.2 DELEGATION OF DUTIES.. . . . . . . . . . . . . . . . 70
10.3 NATURE OF DUTIES; INDEPENDENT CREDIT
INVESTIGATION. . . . . . . . . . . . . . . . . . 70
10.4 ACTIONS IN DISCRETION OF AGENT; INSTRUCTIONS
FROM THE BANKS.. . . . . . . . . . . . . . . . . 71
10.5 REIMBURSEMENT AND INDEMNIFICATION OF AGENT
BY THE BORROWER. . . . . . . . . . . . . . . . . 71
10.6 EXCULPATORY PROVISIONS; LIMITATION OF LIABILITY. . . 72
10.7 REIMBURSEMENT AND INDEMNIFICATION OF AGENT
BY BANKS.. . . . . . . . . . . . . . . . . . . . 73
10.8 RELIANCE BY AGENT. . . . . . . . . . . . . . . . . . 73
10.9 NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . 73
10.10 NOTICES.. . . . . . . . . . . . . . . . . . . . . . 74
10.11 BANKS IN THEIR INDIVIDUAL CAPACITIES. . . . . . . . 74
10.12 HOLDERS OF NOTES. . . . . . . . . . . . . . . . . . 74
10.13 EQUALIZATION OF BANKS.. . . . . . . . . . . . . . . 74
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<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
10.14 SUCCESSOR AGENT.. . . . . . . . . . . . . . . . . . 75
10.15 AGENT'S FEE.. . . . . . . . . . . . . . . . . . . . 75
10.16 AVAILABILITY OF FUNDS.. . . . . . . . . . . . . . . 75
10.17 CALCULATIONS. . . . . . . . . . . . . . . . . . . . 76
10.18 BENEFICIARIES.. . . . . . . . . . . . . . . . . . . 76
11. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.1 MODIFICATIONS, AMENDMENTS OR WAIVERS.. . . . . . . . 76
11.1.1 INCREASE OF COMMITMENTS; EXTENSION OR
EXPIRATION DATE. . . . . . . . . . . . . . 77
11.1.2 EXTENSION OF PAYMENT; REDUCTION OF PRINCIPAL,
INTEREST OR FEES; MODIFICATION OF TERMS
OF PAYMENT.. . . . . . . . . . . . . . . . 77
11.1.3 RELEASE OF COLLATERAL OR GUARANTOR. . . . . . 77
11.1.4 MISCELLANEOUS . . . . . . . . . . . . . . . . 77
11.2 NO IMPLIED WAIVERS; CUMULATIVE REMEDIES;
WRITING REQUIRED.. . . . . . . . . . . . . . . . 77
11.3 REIMBURSEMENT AND INDEMNIFICATION OF BANKS BY
THE BORROWER; TAXES. . . . . . . . . . . . . . . 78
11.4 HOLIDAYS.. . . . . . . . . . . . . . . . . . . . . . 79
11.5 FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.. . . . . 79
11.5.1 NOTIONAL FUNDING. . . . . . . . . . . . . . . 79
11.5.2 ACTUAL FUNDING. . . . . . . . . . . . . . . . 80
11.6 NOTICES. . . . . . . . . . . . . . . . . . . . . . . 80
11.7 SEVERABILITY.. . . . . . . . . . . . . . . . . . . . 80
11.8 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . 81
11.9 PRIOR UNDERSTANDING. . . . . . . . . . . . . . . . . 81
11.10 DURATION; SURVIVAL. . . . . . . . . . . . . . . . . 81
11.11 SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . 81
11.12 CONFIDENTIALITY.. . . . . . . . . . . . . . . . . . 82
11.13 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . 83
11.14 AGENT'S OR BANK'S CONSENT.. . . . . . . . . . . . . 83
11.15 EXCEPTIONS. . . . . . . . . . . . . . . . . . . . . 83
11.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL. . . . . . . 83
11.17 TAX WITHHOLDING CLAUSE. . . . . . . . . . . . . . . 84
11.18 JOINDER OF GUARANTORS.. . . . . . . . . . . . . . . 85
-vi-
<PAGE>
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A) - PRICING GRID
SCHEDULE 1.1(B) - COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
SCHEDULE 1.1(E) - EXISTING PARTNERSHIPS
SCHEDULE 1.1(P) - PERMITTED LIENS
SCHEDULE 6.1.1 - QUALIFICATIONS TO DO BUSINESS
SCHEDULE 6.1.2 - CAPITALIZATION
SCHEDULE 6.1.3 - SUBSIDIARIES
SCHEDULE 6.1.7 - LITIGATION
SCHEDULE 6.1.13 - CONSENTS AND APPROVALS
SCHEDULE 6.1.15 - PATENTS, .TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
SCHEDULE 6.1.17 - PARTNERSHIP AGREEMENTS; LLC AGREEMENTS
SCHEDULE 6.1.20 - MATERIAL CONTRACTS
SCHEDULE 6.1.22 - BENEFIT PLAN DISCLOSURES
SCHEDULE 6.1.24 - ENVIRONMENTAL DISCLOSURES
SCHEDULE 8.2.1 - PERMITTED INDEBTEDNESS
SCHEDULE 8.2.3 - PERMITTED GUARANTIES
SCHEDULE 8.2.4 - PERMITTED LOANS AND INVESTMENTS
SCHEDULE 8.3 - PERMITTED REQUIREMENTS
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(C) - COLLATERAL ASSIGNMENT
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER
EXHIBIT 1.1(G)(2) - GUARANTY AGREEMENT
EXHIBIT 1.1(I)(1) - INDEMNITY AGREEMENT
EXHIBIT 1.1(I)(2) - SUBORDINATION AGREEMENT
EXHIBIT 1.1(P) - PLEDGE AGREEMENT
EXHIBIT 1.1(R) - FORM OF REVOLVING CREDIT NOTE
EXHIBIT 1.1(S) - SECURITY AGREEMENT
EXHIBIT 1.1(T) - TRADEMARK SECURITY AGREEMENT
EXHIBIT 2.5 - LOAN REQUEST
EXHIBIT 7.1.4 - OPINION OF COUNSEL
EXHIBIT 8.3.3 - QUARTERLY COMPLIANCE CERTIFICATE
-vii-
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of January 26,
1998 and is made by and among GRUBB & ELLIS COMPANY, a Delaware corporation (the
"Borrower"), each of the Guarantors (as hereinafter defined), the BANKS (as
hereinafter defined) and PNC BANK, NATIONAL ASSOCIATION, in its capacity as
agent for the Banks under this Agreement (hereinafter referred to in such
capacity as the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Guarantors and PNC Bank, National
Association are parties to a Credit Agreement dated as of March 13, 1997,
pursuant to which the Borrower received a revolving credit facility in the
aggregate amount not to exceed at any one time outstanding the principal amount
of $15,000,000.
WHEREAS, the Borrower has requested the Banks to provide a replacement
revolving credit facility to the Borrower in an aggregate principal amount not
to exceed $35,000,000;
WHEREAS, the replacement revolving credit facility shall amend and
restate the existing credit facility of PNC Bank, National Association and shall
be used for general corporate purposes of the Borrower, to provide for the
issuance of letters of credit and as otherwise provided herein; and
WHEREAS, the Banks are willing to provide such credit upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS.
In addition to words and terms defined elsewhere in this Agreement,
the following words and terms shall have the following meanings, respectively,
unless the context hereof clearly requires otherwise:
ACQUISITION INDEBTEDNESS shall mean Indebtedness which is a
liability on the balance sheet of the Borrower or GEMS as determined in
accordance with GAAP, incurred by the Borrower or GEMS as the purchaser and owed
to the seller in connection with the Borrower's
<PAGE>
or GEM's purchase of the ownership interests of another Person or the purchase
of all or substantially all the assets of another Person or of a business or
division of another Person.
ADJUSTED CONSOLIDATED CASH FLOW FROM OPERATIONS for any period of
determination shall mean (i) the sum of net income, depreciation, amortization,
other non-cash charges to net income, interest expense, income tax expense and
one-half of the Relocation Expense incurred in the fiscal quarters ended
December 31, 1996, March 31, 1997 and June 30, 1997, minus (ii) non-cash credits
to net income, in each case of the Borrower and its Subsidiaries for such period
determined and consolidated in accordance with GAAP. It is acknowledged and
agreed that the non-cash charges and non-cash credits which adjust net income
pursuant to the preceding sentence in the determination of Adjusted Consolidated
Cash Flow from Operations shall not include any non-cash charges or non-cash
credits attributable to changes in the current asset or current liability
accounts on the consolidated balance sheet of the Borrower and its Subsidiaries.
If the Borrower or GEMS shall have made one or more Permitted Acquisitions as
permitted under Section 8.2.6(2) during the period of determination, Adjusted
Consolidated Cash Flow from Operations for such period shall be adjusted on a
pro forma basis acceptable to the Agent and based upon the historical financial
statements of the Person or assets acquired to give effect to such Permitted
Acquisitions as if they had occurred at the beginning of such period. The pro
forma adjustment shall include any income or loss attributable to the ownership
interests or assets purchased, excluding in the case of a stock acquisition of
the Person acquired any income on the historical financial statements
attributable to stock or asset dispositions made prior to the time of the
Permitted Acquisition. The pro forma adjustment shall exclude any income on the
historical financial statements attributable to stock or assets acquired under
the Permitted Acquisition which the Borrower or GEMS contemplate disposing of
following the Permitted Acquisition. The pro forma adjustment shall not include
any projected cost savings, cost reductions or similar synergistic adjustments
forecasted by the Borrower or GEMS based upon the Permitted Acquisition.
AFFILIATE as to any Person shall mean any other Person (i) which
directly or indirectly controls, is controlled by, or is under common control
with such Person, (ii) which beneficially owns or holds 10% or more of any class
of the voting or other equity interests of such Person, or (iii) 10% or more of
any class of voting interests or other equity interests of which is beneficially
owned or held, directly or indirectly, by such Person. Control, as used in this
definition, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise, including
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
AGENT shall mean PNC Bank, National Association, and its
successors and assigns.
AGENT'S FEE shall have the meaning assigned to that term in
Section 10.15.
AGENT'S LETTER shall have the meaning assigned to that term in
Section 10.15.
<PAGE>
AGREEMENT shall mean this Credit Agreement, as the same may be
supplemented or amended from time to time, including all schedules and exhibits.
ANNUAL ADJUSTED CONSOLIDATED CASH FLOW FROM OPERATIONS means
Adjusted Consolidated Cash Flow from Operations calculated as of the end of each
fiscal quarter for the four fiscal quarters then ended.
ANNUAL CONSOLIDATED CASH FLOW FROM OPERATIONS means Consolidated
Cash Flow from Operations calculated as of the end of each fiscal quarter for
the four fiscal quarters then ended.
ANNUAL STATEMENTS shall have the meaning assigned to that term in
Section 6.1.9(i).
APPLICABLE MARGIN shall mean, as applicable:
(A) the percentage margin to be added to Base Rate under the Base
Rate Option at the indicated Ratio of Consolidated Funded Indebtedness to Annual
Consolidated Cash Flow from Operations in the pricing grid on Schedule 1.1(A)
below the heading "Base Rate Margin;" or
(B) the percentage margin to be added to Euro-Rate under the
Euro-Rate Option at the indicated Ratio of Consolidated Funded Indebtedness to
Annual Consolidated Cash Flow from Operations in the pricing grid on 1.1(A)
below the heading "Euro-Rate Margin".
The ratio of Consolidated Funded Indebtedness to Annual Consolidated Cash
Flow from Operations as of the last day of each fiscal quarter shall mean the
ratio of (a) Consolidated Funded Indebtedness on such date to (b) Annual
Consolidated Cash Flow from Operations as of such date. Any change in the
Applicable Margin shall be based upon the financial statements and compliance
certificates provided pursuant to paragraphs 1, 2 and 3 of Schedule 8.3 and
shall become effective on the 45th day following the last day of the first three
fiscal quarters and on the 90th day following the last day of the fiscal year.
ASSIGNMENT AND ASSUMPTION AGREEMENT shall mean an Assignment and
Assumption Agreement by and among a Purchasing Bank, a Transferor Bank and the
Agent, as Agent and on behalf of the remaining Banks, substantially in the form
of EXHIBIT 1.1(A).
AUTHORIZED OFFICER shall mean those individuals, designated by
written notice to the Agent from the Borrower, authorized to execute notices,
reports and other documents on behalf of the Loan Parties required hereunder.
The Borrower may amend such list of individuals from time to time by giving
written notice of such amendment to the Agent.
BANKS shall mean the financial institutions named on SCHEDULE
1.1(B) and their respective successors and assigns as permitted hereunder, each
of which is referred to herein as a Bank.
<PAGE>
BASE RATE shall mean the greater of (i) the interest rate per
annum announced from time to time by the Agent at its Principal Office as its
then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the Agent, or (ii) the Federal Funds Effective Rate plus
one-half percent (1/2%) per annum.
BASE RATE OPTION shall mean the option of the Borrower to have
Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 4.1.1(i).
BENEFIT ARRANGEMENT shall mean at any time an "employee benefit
plan," within the meaning of Section 3(3) of ERISA, which is neither a Plan nor
a Multiemployer Plan and which is maintained, sponsored or otherwise contributed
to by any member of the ERISA Group.
BORROWER shall mean Grubb & Ellis Company, a corporation
organized and existing under the laws of the State of Delaware.
BORROWING DATE shall mean, with respect to any Loan, the date for
the making thereof or the renewal or conversion thereof at or to the same or a
different Interest Rate Option, which shall be a Business Day.
BORROWING TRANCHE shall mean specified portions of Loans
outstanding as follows: (i) any Loans to which a Euro-Rate Option applies which
become subject to the same Interest Rate Option under the same Loan Request by
the Borrower and which have the same Interest Period shall constitute one
Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies shall
constitute one Borrowing Tranche.
BUSINESS DAY shall mean any day other than a Saturday or Sunday
or a legal holiday on which commercial banks are authorized or required to be
closed for business in Pittsburgh, Pennsylvania, and if the applicable Business
Day relates to any borrowing to which the Euro-Rate Option applies, such day
must also be a day on which dealings are carried on in the London interbank
market.
CHANGE OF CONTROL shall mean the occurrence of any one or more of
the following events:
(A) During the period from the Prior Closing Date through the
second anniversary of the Prior Closing Date, either (i) Warburg shall fail to
own at least twenty percent (20%) of the Voting Stock (with full right to vote
the shares) or (ii) any person or group of persons (within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended) other than
Warburg shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
the Voting Stock in an amount greater than Warburg;
(B) At any time after the second anniversary of the Prior Closing
Date, (i) Warburg shall fail to own at least twenty percent (20%) of the Voting
Stock (with full right to
<PAGE>
vote the shares), unless at the time of the first disposition which causes
Warburg to own less than 20 percent of the Voting Stock (w) the Annual
Consolidated Cash Flow from Operations for the period ending with the most
recent fiscal quarter (based upon the completed Exhibit 8.3.3 provided by the
Borrower to the Banks for the most recent fiscal quarter or such other written
report delivered with the notice described in (z) below as is satisfactory to
the Agent) is equal to or greater than $5,000,000, (x) no person or group of
persons (within the meaning of Section 13(d) of the Securities Exchange Act of
1934, as amended) shall have beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
20 percent or more of the Voting Stock, (y) no Event of Default or Potential
Default has occurred and is continuing, and (z) the Agent is in receipt of
written notice of the proposed disposition by Warburg at least 5 days prior to
the disposition, (ii) any person or group of persons (within the meaning of
Section 13(d) of the Securities Exchange Act of 1934, as amended) other than
Warburg shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said Act) of
30 percent or more of the Voting Stock of the Borrower unless at the time of
such acquisition by such person or group of persons, Warburg owns a greater
percentage of the Voting Stock of the Borrower than such person or group of
persons, or (iii) a majority of the seats (other than vacant seats) on the board
of directors of the Borrower are occupied by Persons who are not Continuing
Directors.
CLOSING DATE shall mean January 26, 1998. The closing shall take
place at 10:00 a.m., Pittsburgh time, on the Closing Date at the offices of
Buchanan Ingersoll Professional Corporation or at such other time and place as
the parties agree.
COLLATERAL shall mean the Pledged Collateral, the UCC Collateral
and the Intellectual Property Collateral.
COLLATERAL ASSIGNMENT shall mean the Collateral Assignment in the
form of EXHIBIT 1.1(C).
COMMERCIAL LETTER OF CREDIT shall mean any Letter of Credit which
is a commercial letter of credit issued in respect of the purchase of goods or
services by one or more of the Loan Parties in the ordinary course of their
business.
COMMISSION ADVANCE PROGRAM shall mean any program pursuant to
which a Loan Party may make advances to its employees and/or agents against
future real estate commissions to be earned by such agents.
COMMITMENT shall mean, as to any Bank at any time, the amount
initially set forth opposite its name on SCHEDULE 1.1(B) in the column labeled
"Amount of Commitment for Revolving Credit Loans," and thereafter on Schedule I
to the most recent Assignment and Assumption Agreement, and COMMITMENTS shall
mean the aggregate Commitments of all of the Banks.
<PAGE>
COMMITMENT FEE shall have the meaning assigned to that term in
Section 2.3.
CONSOLIDATED CASH FLOW FROM OPERATIONS for any period of
determination shall mean (i) the sum of net income, depreciation, amortization,
other non-cash charges to net income, interest expense and income tax expense
minus (ii) non-cash credits to net income, in each case of the Borrower and its
Subsidiaries for such period determined and consolidated in accordance with
GAAP. It is acknowledged and agreed that the non-cash charges and non-cash
credits which adjust net income pursuant to the preceding sentence in the
determination of Consolidated Cash Flow from Operations shall not include any
non-cash charges or non-cash credits attributable to changes in the current
asset or current liability accounts on the consolidated balance sheet of the
Borrower and its Subsidiaries. If the Borrower or GEMS shall have made one or
more Permitted Acquisitions as permitted under Section 8.2.6(2) during the
period of determination, Consolidated Cash Flow from Operations for such period
shall be adjusted on a pro forma basis acceptable to the Agent and based upon
the historical financial statements of the Person or assets acquired to give
effect to such Permitted Acquisitions as if they had occurred at the beginning
of such period. The pro forma adjustment shall include any income or loss
attributable to the ownership interests or assets purchased, excluding in the
case of a stock acquisition of the Person acquired any income on the historical
financial statements attributable to stock or asset dispositions made prior to
the time of the Permitted Acquisition. The pro forma adjustment shall exclude
any income on the historical financial statements attributable to stock or
assets acquired under the Permitted Acquisition which the Borrower or GEMS
contemplate disposing of following the Permitted Acquisition. The pro forma
adjustment shall not include any projected cost savings, cost reductions or
similar synergistic adjustments forecasted by the Borrower or GEMS based upon
the Permitted Acquisition.
CONSOLIDATED FUNDED INDEBTEDNESS shall mean the principal balance
of the Loans and the Letters of Credit Outstanding and all Indebtedness of the
Borrower and its Subsidiaries for borrowed money, including without limitation
capitalized leases and other Indebtedness permitted under Section 8.2.1(iii), as
determined and consolidated in accordance with GAAP.
CONSOLIDATED NET WORTH shall mean, as to any date of
determination, the product obtained by multiplying six (6) times the
Consolidated Cash Flow from Operations of the Borrower and its Subsidiaries for
the four most recent fiscal quarters of the Borrower, as reported to the Banks
pursuant to Item 1 or 2 of Schedule 8.3.
CONTINUING DIRECTORS shall mean directors of the Borrower on the
Prior Closing Date and each other director, if such other director's nomination
for election to the board of directors of the Borrower is recommended by a
majority of the then Continuing Directors.
DOLLAR, DOLLARS, U.S. DOLLARS and the symbol $ shall mean lawful
money of the United States of America.
<PAGE>
DRAWING DATE shall have the meaning assigned to that term in
Section 2.9.3.2.
EARN-OUT CONSIDERATION shall mean Indebtedness which is not a
liability on the balance sheet of the Borrower or GEMS (as determined in
accordance with GAAP) and which is incurred by the Borrower or GEMS as the
purchaser and owed to the seller in connection with the Borrower's or GEM's
purchase of the ownership interests of another Person or the purchase of all or
substantially all the assets of another Person or of a business or division of
another Person.
ENVIRONMENTAL COMPLAINT shall mean any written complaint setting
forth a cause of action for personal injury or property damage or natural
resource damage or equitable relief, order, notice of violation, citation,
request for information issued pursuant to any Environmental Laws by an Official
Body, subpoena or other written notice of any type relating to, arising out of,
or issued pursuant to, any of the Environmental Laws or any Environmental
Conditions, as the case may be.
ENVIRONMENTAL CONDITIONS shall mean any conditions of the
environment, including the workplace, the ocean, natural resources (including
flora or fauna), soil, surface water, groundwater, any actual or potential
drinking water supply sources, substrata or the ambient air, relating to or
arising out of, or caused by, the use, handling, storage, treatment, recycling,
generation, transportation, release, spilling, leaking, pumping, emptying,
discharging, injecting, escaping, leaching, disposal, dumping, threatened
release or other management or mismanagement of Regulated Substances resulting
from the use of, or operations on, any Property.
ENVIRONMENTAL LAWS shall mean all federal, state, local and
foreign Laws and regulations, including permits, licenses, written
authorizations, bonds, orders, judgments, and consent decrees issued, or entered
into, pursuant thereto, relating to pollution or protection of human health or
the environment or employee safety in the workplace.
ERISA shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
ERISA GROUP shall mean, at any time, the Borrower and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control and all other entities which, together
with the Borrower, are treated as a single employer under Section 414 of the
Internal Revenue Code.
EURO-RATE shall mean, with respect to any Loan comprising any
Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period,
the interest rate per annum determined by the Agent by dividing (the resulting
quotient rounded upward to the nearest 1/100th of 1% per annum) (i) the rate of
interest determined by the Agent in accordance with its
<PAGE>
usual procedures (which determination shall be conclusive absent manifest error)
to be the average of the London interbank offered rates for U.S. Dollars set
forth on Telerate display page 3750 or such other display page on the Telerate
System as may replace such page to evidence the average of rates quoted by banks
designated by the British Bankers' Association (or appropriate successor or, if
the British Bankers' Association or its successor ceases to provide such quotes,
a comparable replacement determined by the Agent) two (2) Business Days prior
to the first day of such Interest Period for an amount comparable to such Loan
and having a borrowing date and a maturity comparable to such Interest Period by
(ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage. The
Euro-Rate may also be expressed by the following formula:
Telerate page 3750 as quoted by British
Euro-Rate = Bankers' Association or appropriate successor
---------------------------------------------
1.00 - Euro-Rate Reserve Percentage
EURO-RATE OPTION shall mean the option of the Borrower to have
Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 4.1.1(ii).
EURO-RATE RESERVE PERCENTAGE shall mean the maximum percentage
(expressed as a decimal rounded upward to the nearest 1/100 of 1%) as determined
by the Agent which is in effect during any relevant period, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency Liabilities") of a member bank in such System.
EVENT OF DEFAULT shall mean any of the events described in
Section 9.1 and referred to therein as an "Event of Default."
EXISTING PARTNERSHIPS shall mean the general and limited
partnerships set forth on Schedule 1.1(E) in which the Loan Parties own
partnership interests on the Closing Date.
EXPIRATION DATE shall mean, with respect to the Commitments,
March 13, 2001.
FACILITY FEE shall mean the fee referred to in Section 2.3.
FEDERAL FUNDS EFFECTIVE RATE for any day shall mean the rate per
annum (based on a year of 365 or 366 days, as the case may be, and actual days
elapsed and rounded upward to the nearest 1/100 of 1%) announced by the Federal
Reserve Bank of New York (or any successor) on such day as being the weighted
average of the rates on overnight federal funds transactions arranged by federal
funds brokers on the previous trading day, as computed and announced by such
Federal Reserve Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it refers to as
the "Federal Funds Effective Rate" as of the date of this Agreement; PROVIDED,
if such Federal
<PAGE>
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
GAAP shall mean generally accepted accounting principles as are
in effect from time to time, subject to the provisions of Section 1.3, and
applied on a consistent basis both as to classification of items and amounts.
GEMS shall mean Grubb & Ellis Management Services, Inc., a
Delaware corporation formerly known as Axiom Real Estate Management, Inc.
GOVERNMENTAL ACTS shall have the meaning assigned to that term in
Section 2.9.8.
GUARANTOR shall mean each of the parties to this Agreement which
is designated as a "Guarantor" on the signature page hereof and each other
Person which joins this Agreement as a Guarantor after the date hereof pursuant
to Section 11.17.
GUARANTOR JOINDER shall mean a joinder by a Person as a Guarantor
under this Agreement, the Guaranty Agreement and the other Loan Documents in the
form of EXHIBIT 1.1(G)(1).
GUARANTY of any Person shall mean any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation of any other
Person in any manner, whether directly or indirectly, including any agreement to
indemnify or hold harmless any other Person, any performance bond or other
suretyship arrangement and any other form of assurance against loss, except
endorsement of negotiable or other instruments for deposit or collection in the
ordinary course of business.
GUARANTY AGREEMENT shall mean the Guaranty and Suretyship
Agreement in substantially the form of EXHIBIT 1.1(G)(2) executed and delivered
by each of the Guarantors to the Agent for the benefit of the Banks.
HISTORICAL STATEMENTS shall have the meaning assigned to that
term in Section 6.1.9(i).
INDEBTEDNESS shall mean, as to any Person at any time, any and
all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money,
(ii) amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations (contingent or
otherwise) under any letter of credit, currency swap agreement, interest rate
swap, cap, collar or floor agreement or other interest rate management device,
(iv) any other transaction (including forward sale or purchase agreements,
capitalized leases and conditional sales agreements) having the commercial
effect of a borrowing of money entered into by such Person to finance its
operations or capital
<PAGE>
requirements (but not including trade payables and accrued expenses incurred in
the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness and which are not more than thirty (30) days
past due), (v) any Guaranty of Indebtedness for borrowed money, or (vi) any
consideration payable to a Person from which the Borrower or GEMS has made a
Permitted Acquisition, which consideration is contingent upon the happening of
certain events or the achievement of certain results following the consummation
of the Permitted Acquisition.
INDEMNITY shall mean the Environmental Indemnity Agreement in the
form of EXHIBIT 1.1(I)(1) among the Agent and the Loan Parties relating to
possible environmental liabilities associated with any of the Property.
INELIGIBLE SECURITY shall mean any security which may not be
underwritten or dealt in by member bank of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
INSOLVENCY PROCEEDING shall mean, with respect to any Person,
(a) case, action or proceeding with respect to such Person (i) before any court
or any other Official Body under any bankruptcy, insolvency, reorganization or
other similar Law now or hereafter in effect, or (ii) for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator
(or similar official) of any Loan Party or otherwise relating to liquidation,
dissolution, winding-up or relief of such Person, or (b) any general assignment
for the benefit of creditors, composition, marshaling of assets for creditors,
or other, similar arrangement in respect of such Person's creditors generally or
any substantial portion of its creditors; undertaken under any Law.
INTELLECTUAL PROPERTY COLLATERAL shall mean all of the property
described in the Trademark Security Agreement.
INTERCOMPANY SUBORDINATION AGREEMENT shall mean a Subordination
Agreement among the Loan Parties in the form attached hereto as EXHIBIT
1.1(I)(2).
INTEREST PERIOD shall have the meaning assigned to such term in
Section 4.2.
INTEREST RATE OPTION shall mean any Euro-Rate Option or the Base
Rate Option.
INTERIM STATEMENTS shall have the meaning assigned to that term
in Section 6.1.9(i).
INTERNAL REVENUE CODE shall mean the Internal Revenue Code of
1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
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LABOR CONTRACTS shall mean all employment agreements, employment
contracts, collective bargaining agreements and other agreements among any Loan
Party or Subsidiary of a Loan Party and its employees.
LAW shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Official Body.
LETTER OF CREDIT shall have the meaning assigned to that term in
Section 2.9.1.
Letter of Credit Banks shall mean PNC Bank and American National
Bank and Trust Company of Chicago, a national banking association, each of which
is referred to herein as a Letter of Credit Bank.
LETTER OF CREDIT BORROWING shall mean an extension of credit
resulting from a drawing under any Letter of Credit which shall not have been
reimbursed on the date when made and shall not have been converted into a
Revolving Credit Loan under Section 2.9.3.2.
LETTER OF CREDIT FEE shall have the meaning assigned to that term
in Section 2.9.2.
LETTERS OF CREDIT OUTSTANDING shall mean at any time the sum of
(i) the aggregate undrawn face amount of outstanding Letters of Credit and
(ii) the aggregate amount of all unpaid and outstanding Reimbursement
Obligations.
LIEN shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
LLC INTERESTS shall have the meaning given to such term in
Section 6.1.3.
LOAN DOCUMENTS shall mean this Agreement, the Collateral
Assignment, the Guaranty Agreement, the Indemnity, the Intercompany
Subordination Agreement, the Notes, the Trademark Security Agreement, the Pledge
Agreement, the Security Agreement, and any other instruments, certificates or
documents delivered or contemplated to be delivered hereunder or thereunder or
in connection herewith or therewith, as the same may be supplemented or amended
from time to time in accordance herewith or therewith, and LOAN DOCUMENT shall
mean any of the Loan Documents.
LOAN PARTIES shall mean the Borrower and the Guarantors.
LOAN REQUEST shall have the meaning given to such term in
Section 2.5.
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LOANS shall mean collectively and LOAN shall mean separately all
Revolving Credit Loans or any Revolving Credit Loan.
MATERIAL ADVERSE CHANGE shall mean any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of this Agreement
or any other Loan Document, (b) is or could reasonably be expected to be
material and adverse to the business, properties, assets, financial condition or
results of operations of the Loan Parties taken as a whole, (c) impairs
materially or could reasonably be expected to impair materially the ability of
the Loan Parties taken as a whole to duly and punctually pay or perform its
Indebtedness, or (d) impairs materially or could reasonably be expected to
impair materially the ability of the Agent or any of the Banks to enforce their
respective legal remedies pursuant to this Agreement or any other Loan Document.
MONTCLAIR shall mean Montclair Insurance Company, Ltd., a Bermuda
corporation.
MONTH, with respect to an Interest Period under the Euro-Rate
Option, shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any
Euro-Rate Interest Period begins on a day of a calendar month for which there is
no numerically corresponding day in the month in which such Interest Period is
to end, the final day of such Interest Period shall be deemed to end on the last
Business Day of such month.
MOODY'S shall mean Moody's Investor's Service, Inc.
MULTIEMPLOYER PLAN shall mean any employee benefit plan which is
a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower or any member of the ERISA Group is then making or accruing
an obligation to make contributions or, within the preceding five Plan years,
has made or had an obligation to make such contributions.
MULTIPLE EMPLOYER PLAN shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
NOTES shall mean the collectively and NOTE shall mean separately
the Revolving Credit Notes of the Borrower in the form of EXHIBIT 1.1(R)
evidencing the Revolving Credit Loans, together with all amendments, extensions,
renewals, replacements, refinancings or refundings thereof in whole or in part.
NOTICES shall have the meaning assigned to that term in
Section 11.6.
OBLIGATION shall mean any obligation or liability of any of the
Loan Parties to the Agent or any of the Banks, howsoever created, arising or
evidenced, whether direct or
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indirect, absolute or contingent, now or hereafter existing, or due or to become
due, under or in connection with this Agreement, the Notes, the Letters of
Credit, the Agent's Letter or any other Loan Document.
OFFICIAL BODY shall mean any national, federal, state, local or
other government or political subdivision or any agency, authority, bureau,
central Bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
PARTNERSHIP INTERESTS shall have the meaning given to such term
in Section 6.1.3.
PBGC shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA or any successor.
PERMITTED ACQUISITIONS shall have the meaning assigned to such
term in Section 8.2.6.
PERMITTED INVESTMENTS shall mean:
(i) commercial paper and taxable or tax-exempt
instruments maturing not more than one year from the date of creation thereof
and rated not lower than A-2 by Standard and Poor's or P-2 by Moody's;
(ii) long term instruments rated not lower than A- by
Standard and Poor's or A3 by Moody's, and having either "put" or rate reset
features recurring no less frequently than annually;
(iii) certificates of deposit issued by or repurchase
agreements of a bank incorporated in, or a branch or office located in, the
United States of America, having combined capital, surplus and undivided profits
of not less than $250,000,000 and having a senior unsecured debt rating for such
bank, or if such rating is not available for such bank, then the rating of its
holding company, rated not lower than A- by Standard and Poor's or A3 by
Moody's;
(iv) marketable direct obligations issued or
unconditionally guaranteed by the United States government or an agency thereof
maturing within one year from the date of acquisition thereof;
(v) money market funds;
(vi) deposits available for withdrawal on demand within
the United States with financial institutions incorporated in the United States
of America or any OECD country, if it has a branch or office located in the
United States of America, and which have capital, surplus and undivided profits
of not less than $250,000,000 and having a senior unsecured debt rating for such
bank, or if such rating is not available for such bank, then the
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rating of its holding company, rated not lower than A- by Standard and Poor's or
A3 by Moody's; and
(vii) Restricted Investments permitted pursuant to
Section 8.2.9
PERMITTED LIENS shall mean:
(i) Liens for taxes, assessments, or similar charges,
incurred in the ordinary course of business and which are not yet due and
payable;
(ii) Pledges or deposits made in the ordinary course of
business to secure payment of worker's compensation, or to participate in any
fund in connection with worker's compensation, unemployment insurance, old-age
pensions, retirement insurance, social security programs or similar
obligations;
(iii) Liens of mechanics, materialmen, warehousemen,
carriers, or other like Liens, securing obligations incurred in the ordinary
course of business that are not yet due and payable and Liens of landlords
securing obligations to pay lease payments that are not yet due and payable or
in default;
(iv) Good-faith pledges or deposits made in the
ordinary course of business to secure performance of bids, tenders, contracts
(other than for the repayment of borrowed money) or leases, not in excess of the
aggregate amount due thereunder, or to secure statutory obligations, or surety,
appeal, indemnity, performance or other similar bonds required in the ordinary
course of business;
(v) Encumbrances consisting of zoning restrictions,
easements or other restrictions on the use of real property, none of which
materially impairs the use of such property or the value thereof, and none of
which is violated in any material respect by existing or proposed structures or
land use;
(vi) Liens, security interests and mortgages in favor
of the Agent for the benefit of the Banks;
(vii) Liens on property leased by any Loan Party or
Subsidiary of a Loan Party under operating leases securing obligations of such
Loan Party or Subsidiary to the lessor under such leases;
(viii) Any Lien existing on the date of this Agreement
and described on SCHEDULE 1.1(P), PROVIDED that the principal amount secured
thereby is not hereafter increased, and no additional assets become subject to
such Lien;
(ix) Purchase Money Security Interests and Liens
granted pursuant to capitalized leases in the property leased by the Loan
Parties as permitted under Section 8.2.1(iii);
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(x) Options for a time period not greater than one (1)
year granted in connection with dispositions permitted under Section 8.2.7;
(xi) Liens arising in connection with deposits to
secure public and statutory obligations of a Loan Party or in lieu of surety,
appeal or customs bonds in proceedings to which a Loan Party is a party; and
(xii) The following, (A) if the validity or amount
thereof is being contested in good faith by appropriate and lawful proceedings
diligently conducted so long as levy and execution thereon have been stayed and
continue to be stayed or (B) if a final judgment is entered and such judgment is
discharged within thirty (30) days of entry, and in either case they do not
affect the Collateral or, in the aggregate, materially impair the ability of any
Loan Party to perform its Obligations hereunder or under the other Loan
Documents:
(1) Claims or Liens for taxes, assessments or charges due and
payable, PROVIDED that the applicable Loan Party maintains such
reserves or other appropriate provisions as shall be required by GAAP
and pays all such taxes, assessments or charges forthwith upon the
commencement of proceedings to foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of title to,
real or personal property other than the Collateral, including any
attachment of personal or real property or other legal process prior
to adjudication of a dispute on the merits; or
(3) Claims or Liens of mechanics, materialmen, warehousemen,
carriers, or other statutory nonconsensual Liens.
(4) Liens resulting from final judgments or orders which do not
constitute an Event of Default under Section 9.1.6.
PERSON shall mean any individual, corporation, partnership,
limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.
PLAN shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is maintained by
any member of the ERISA Group for employees of any member of the ERISA Group or
(ii) has at any time within the preceding five years been maintained by any
entity which was at such time a member of the ERISA Group for employees of any
entity which was at such time a member of the ERISA Group.
<PAGE>
PLEDGE AGREEMENT shall mean the Pledge Agreement in substantially
the form of EXHIBIT 1.1(P) executed and delivered by the Borrower, GEMS and HSM
Inc., a Texas corporation, to the Agent for the benefit of the Banks.
PLEDGED COLLATERAL shall mean the property of the Loan Parties in
which security interests are to be granted under the Pledge Agreement or the
Collateral Assignment.
PNC BANK shall mean PNC Bank, National Association, its
successors and assigns.
POTENTIAL DEFAULT shall mean any event or condition which with
notice, passage of time or a determination by the Agent or the Required Banks,
or any combination of the foregoing, would constitute an Event of Default.
PRINCIPAL OFFICE shall mean the main banking office of the Agent
in Pittsburgh, Pennsylvania.
PRIOR CLOSING DATE shall mean March 13, 1997.
PRIOR SECURITY INTEREST shall mean a valid and enforceable
perfected first-priority security interest under the Uniform Commercial Code in
the UCC Collateral and the Pledged Collateral which is subject only to (i) Liens
for taxes not yet due and payable and statutory liens to the extent such
prospective tax payments and statutory liens are given priority by statute, (ii)
Purchase Money Security Interests and property subject to capital leases as
permitted hereunder, (iii) pledges of cash and cash equivalents permitted under
items (ii),(iv) and (xi) of the definition of Permitted Liens to the extent
granted priority under applicable Law, and (iv) other Liens which by the terms
hereof are permitted to be prior to the Agent's security interest.
PROHIBITED TRANSACTION shall mean any prohibited transaction as
defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for
which neither an individual nor a class exemption has been issued by the United
States Department of Labor.
PROPERTY shall mean all real property, both owned and leased, of
any Loan Party or Subsidiary of a Loan Party.
PURCHASE MONEY SECURITY INTEREST shall mean Liens upon tangible
personal property securing loans to any Loan Party or Subsidiary of a Loan Party
or deferred payments by such Loan Party or Subsidiary for the purchase of such
tangible personal property.
PURCHASING BANK shall mean a Bank which becomes a party to this
Agreement by executing an Assignment and Assumption Agreement.
RATABLE SHARE shall mean the proportion that a Bank's Commitment
bears to the Commitments of all of the Banks.
<PAGE>
REGULATED SUBSTANCES shall mean any substance, including any
solid, liquid, semisolid, gaseous, thermal, thoriated or radioactive material,
refuse, garbage, wastes, chemicals, petroleum products, by-products, coproducts,
impurities, dust, scrap, heavy metals, defined as a "hazardous substance,"
"pollutant," "pollution," "contaminant," "hazardous or toxic substance,"
"extremely hazardous substance," "toxic chemical," "toxic waste," "hazardous
waste," "industrial waste," "residual waste," "solid waste," "municipal waste,"
"mixed waste," "infectious waste," "chemotherapeutic waste," "medical waste," or
"regulated substance" or any related materials, substances or wastes as now or
hereafter defined pursuant to any Environmental Laws, ordinances, rules,
regulations or other written directives of any Official Body, the generation,
manufacture, extraction, processing, distribution, treatment, storage, disposal,
transport, recycling, reclamation, use, reuse, spilling, leaking, dumping,
injection, pumping, leaching, emptying, discharge, escape, release or other
management or mismanagement of which is regulated by the Environmental Laws.
REGULATION U shall mean Regulation U, T, G or X as promulgated by
the Board of Governors of the Federal Reserve System, as amended from time to
time.
REIMBURSEMENT OBLIGATION shall have the meaning assigned to such
term in Section 2.9.3.2.
RELOCATION EXPENSE shall mean the lesser of (i) the expenses
incurred by the Borrower in connection with the movement of its corporate
headquarters from San Francisco, California to Northbrook, Illinois, or (ii)
$2,500,000.
REPORTABLE EVENT shall mean a reportable event described in
Section 4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer Plan.
REQUIRED BANKS shall mean
(i) if there are no Loans, Reimbursement Obligations or
Letter of Credit Borrowings outstanding, Banks whose Commitments aggregate at
least 66-2/3% of the Commitments of all of the Banks, or
(ii) if there are Loans, Reimbursement Obligations, or
Letter of Credit Borrowings outstanding, any Bank or group of Banks if the sum
of the Loans, Reimbursement Obligations and Letter of Credit Borrowings of such
Banks then outstanding aggregates at least 66-2/3% of the total principal amount
of all of the Loans, Reimbursement Obligations and Letter of Credit Borrowings
then outstanding. Reimbursement Obligations and Letter of Credit Borrowings
shall be deemed, for purposes of this definition, to be in favor of the Agent
and not a participating Bank if such Bank has not made its Participation Advance
in respect thereof and shall be deemed to be in favor of such Bank to the extent
of its Participation Advance if it has made its Participation Advance in respect
thereof.
<PAGE>
Restricted Investment shall have the meaning assigned to such
term in Section 8.2.9.
REVOLVING CREDIT LOANS shall mean collectively and REVOLVING
CREDIT LOAN shall mean separately all Revolving Credit Loans or any Revolving
Credit Loan made by the Banks or one of the Banks to the Borrower pursuant to
Section 2.1 or 2.9.3.
REVOLVING FACILITY USAGE shall mean at any time the sum of the
Revolving Credit Loans outstanding and the Letters of Credit Outstanding.
SECTION 20 SUBSIDIARY shall mean the Subsidiary of the bank
holding company controlling any Bank, which Subsidiary has been granted
authority by the Federal Reserve Board to underwrite and deal in certain
Ineligible Securities.
SECURITY AGREEMENT shall mean the Security Agreement in
substantially the form of EXHIBIT 1.1(S) executed and delivered by each of the
Loan Parties to the Agent for the benefit of the Banks.
SHARES shall have the meaning assigned to that term in
Section 6.1.2.
STANDARD & POOR'S shall mean Standard & Poor's Ratings Services,
a division of The McGraw-Hill Companies, Inc.
STANDBY LETTER OF CREDIT shall mean a Letter of Credit issued to
support obligations of one or more of the Loan Parties, contingent or otherwise,
which finance the working capital and business needs of the Loan Parties
incurred in the ordinary course of business.
SUBSIDIARY of any Person at any time shall mean (i) any
corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such Person or one or
more of such Person's Subsidiaries, (ii) any partnership of which such Person is
a general partner or of which 50% or more of the partnership interests is at the
time directly or indirectly owned by such Person or one or more of such Person's
Subsidiaries, (iii) any limited liability company of which such Person is a
member or of which 50% or more of the limited liability company interests is at
the time directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is controlled or capable of being
controlled by such Person or one or more of such Person's Subsidiaries.
SUBSIDIARY SHARES shall have the meaning assigned to that term in
Section 6.1.3.
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TRADEMARK SECURITY AGREEMENT shall mean the Trademark Security
Agreement in substantially the form of EXHIBIT 1.1(T) executed and delivered by
each of the Loan Parties to the Agent for the benefit of the Banks.
TRANSFEROR BANK shall mean the selling Bank pursuant to an
Assignment and Assumption Agreement.
UCC COLLATERAL shall mean the property of the Loan Parties in
which security interests are created under the Uniform Commercial Code and to be
granted under the Security Agreement.
UNIFORM COMMERCIAL CODE shall have the meaning assigned to that
term in Section 6.1.16.
VOTING STOCK shall mean the outstanding capital stock of the
Borrower entitled to vote for the election of the members of the board of
directors of the Borrower.
WARBURG shall mean Warburg, Pincus Investors, L.P., a Delaware
limited partnership.
1.2 CONSTRUCTION.
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and each of the
other Loan Documents:
1.2.1 NUMBER; INCLUSION.
references to the plural include the singular, the plural, the
part and the whole; "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including
without limitation";
1.2.2 DETERMINATION.
references to "determination" of or by the Agent or the Banks
shall be deemed to include good-faith estimates by the Agent or the Banks (in
the case of quantitative determinations) and good-faith beliefs by the Agent or
the Banks (in the case of qualitative determinations) and such determination
shall be conclusive absent manifest error;
1.2.3 AGENT'S DISCRETION AND CONSENT.
whenever the Agent or the Banks are granted the right herein to
act in its or their sole discretion or to grant or withhold consent such right
shall be exercised in good faith;
<PAGE>
1.2.4 DOCUMENTS TAKEN AS A WHOLE.
the words "hereof," "herein," "hereunder," "hereto" and similar
terms in this Agreement or any other Loan Document refer to this Agreement or
such other Loan Document as a whole and not to any particular provision of this
Agreement or such other Loan Document;
1.2.5 HEADINGS.
the section and other headings contained in this Agreement or
such other Loan Document and the Table of Contents (if any), preceding this
Agreement or such other Loan Document are for reference purposes only and shall
not control or affect the construction of this Agreement or such other Loan
Document or the interpretation thereof in any respect;
1.2.6 IMPLIED REFERENCES TO THIS AGREEMENT.
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the case may be,
unless otherwise specified;
1.2.7 PERSONS.
reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
this Agreement or such other Loan Document, as the case may be, and reference to
a Person in a particular capacity excludes such Person in any other capacity;
1.2.8 MODIFICATIONS TO DOCUMENTS.
reference to any agreement (including this Agreement and any
other Loan Document together with the schedules and exhibits hereto or thereto),
document or instrument means such agreement, document or instrument as amended,
modified, replaced, substituted for, superseded or restated;
1.2.9 FROM, TO AND THROUGH.
relative to the determination of any period of time, "from" means
"from and including," "to" means "to but excluding," and "through" means
"through and including"; and
1.2.10 SHALL; WILL.
references to "shall" and "will" are intended to have the same
meaning.
1.3 ACCOUNTING PRINCIPLES.
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered
<PAGE>
pursuant to this Agreement shall be made and prepared in accordance with GAAP
(including principles of consolidation where appropriate), and all accounting or
financial terms shall have the meanings ascribed to such terms by GAAP;
PROVIDED, HOWEVER, subject to changes resulting from any agreement described in
the next sentence, all accounting terms used in Section 8.2 (and all defined
terms used in the definition of any accounting term used in Section 8.2 shall
have the meaning given to such terms (and defined terms) under GAAP as in effect
on the date hereof applied on a basis consistent with those used in preparing
the Annual Statements referred to in Section 6.1.9(i). In the event of any
change after the date hereof in GAAP, and if such change would result in the
inability to determine compliance with the financial covenants set forth in
Section 8.2 based upon the Borrower's regularly prepared financial statements by
reason of the preceding sentence, then the parties hereto agree to endeavor, in
good faith, to agree upon an amendment to this Agreement that would adjust such
financial covenants in a manner that would not affect the substance thereof, but
would allow compliance therewith to be determined in accordance with the
Borrower's financial statements at that time.
2. REVOLVING CREDIT FACILITY
2.1 REVOLVING CREDIT COMMITMENTS.
Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Bank agrees to make
Revolving Credit Loans to the Borrower at any time or from time to time on or
after the date hereof to the Expiration Date provided that after giving effect
to such Loan the aggregate amount of Loans from such Bank shall not exceed such
Bank's Commitment minus such Bank's Ratable Share of Letters of Credit
Outstanding. Within such limits of time and amount and subject to the other
provisions of this Agreement, the Borrower may borrow, repay and reborrow
pursuant to this Section 2.1.
2.2 NATURE OF BANKS' OBLIGATIONS WITH RESPECT TO REVOLVING CREDIT
LOANS.
Each Bank shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.5 in accordance with its Ratable
Share. The aggregate of each Bank's Revolving Credit Loans outstanding
hereunder to the Borrower at any time shall never exceed its Commitment minus
its Ratable Share of the Letter of Credit Outstandings. The obligations of each
Bank hereunder are several. The failure of any Bank to perform its obligations
hereunder shall not affect the Obligations of the Borrower to any other party
nor shall any other party be liable for the failure of such Bank to perform its
obligations hereunder. The Banks shall have no obligation to make Revolving
Credit Loans hereunder on or after the Expiration Date.
2.3 COMMITMENT FEE.
Accruing from the date hereof until the Expiration Date, the Borrower
agrees to pay to the Agent for the account of each Bank, as consideration for
such Bank's Commitment hereunder, a nonrefundable commitment fee (the
"COMMITMENT FEE") equal to a rate per annum
<PAGE>
(computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) on the average daily difference between the amount of
(i) such Bank's Commitment as the same may be constituted from time to time, and
(ii) such Bank's Ratable Share of the Revolving Facility Usage. The rate per
annum used to determine the Commitment Fee shall be based upon the ratio of
Consolidated Funded Indebtedness to Annual Consolidated Cash Flow from
Operations, as set forth on SCHEDULE 1.1(A) and based upon the last completed
Exhibit 8.3. All Commitment Fees shall be payable quarterly in arrears on or
before the first day of each April, July, October and January after the date
hereof and on the Expiration Date or upon acceleration of the Notes.
2.4 REVOLVING CREDIT FACILITY FEE.
The Borrower agrees to pay to the Agent for the account of each Bank,
as consideration for such Bank's Commitment, a nonrefundable facility fee equal
to $78,000 (the "FACILITY FEE"), payable on the Closing Date.
2.5 REVOLVING CREDIT LOAN REQUESTS.
Except as otherwise provided herein, the Borrower may from time to
time prior to the Expiration Date request the Banks to make Revolving Credit
Loans, or renew or convert the Interest Rate Option applicable to existing
Revolving Credit Loans pursuant to Section 4.2, by delivering to the Agent, not
later than 12:00 noon, Pittsburgh time, (i) two (2) Business Days prior to the
proposed Borrowing Date with respect to the making of a Revolving Credit Loan to
which the Euro-Rate Option applies or the conversion to or the renewal of the
Euro-Rate Option for any Revolving Credit Loan; and (ii) one (1) Business Day
prior to either the proposed Borrowing Date with respect to the making of a
Revolving Credit Loan to which the Base Rate Option applies or the last day of
the preceding Interest Period with respect to the conversion to the Base Rate
Option for any Revolving Credit Loan, of a duly completed request therefor
substantially in the form of EXHIBIT 2.4 (each, a "LOAN REQUEST"). Each Loan
Request shall be irrevocable and shall specify (i) the proposed Borrowing Date;
(ii) the aggregate amount of the proposed Revolving Credit Loan comprising each
Borrowing Tranche, which shall be not less than $1,000,000 for each Borrowing
Tranche to which the Euro-Rate Option applies ; (iii) whether the Euro-Rate
Option or Base Rate Option shall apply to the proposed Revolving Credit Loan
comprising the applicable Borrowing Tranche; and (iv) in the case of a Borrowing
Tranche to which the Euro-Rate Option applies, an appropriate Interest Period
for the proposed Revolving Credit Loan comprising such Borrowing Tranche.
Notwithstanding the foregoing, the Borrower shall be limited to submitting one
Loan Request in each calendar week with respect to the making of Revolving
Credit Loans.
2.6 MAKING REVOLVING CREDIT LOANS.
The Agent shall, promptly after receipt by it of a Loan Request
pursuant to Section 2.5, notify the Banks of its receipt of such Loan Request
specifying: (i) the proposed Borrowing Date and the time and method of
disbursement of the Revolving Credit Loans requested thereby; (ii) the amount
and type of each such Revolving Credit Loan and the applicable
<PAGE>
Interest Period (if any); and (iii) the apportionment among the Banks of such
Revolving Credit Loans as determined by the Agent in accordance with
Section 2.2. Each Bank shall remit the principal amount of each Revolving
Credit Loan to the Agent such that the Agent is able to, and the Agent shall, to
the extent the Banks have made funds available to it for such purpose and
subject to Section 7.2 , fund such Revolving Credit Loans to the Borrower in
U.S. Dollars and immediately available funds at the Principal Office prior to
2:00 p.m., Pittsburgh time, on the applicable Borrowing Date, PROVIDED that if
any Bank fails to remit such funds to the Agent in a timely manner, the Agent
may elect in its sole discretion to fund with its own funds the Revolving Credit
Loans of such Bank on such Borrowing Date, and such Bank shall be subject to the
repayment obligation in Section 10.16.
2.7 REVOLVING CREDIT NOTES.
The obligation of the Borrower to repay the aggregate unpaid principal
amount of the Revolving Credit Loans made to it by each Bank, together with
interest thereon, shall be evidenced by a Note dated the Closing Date payable to
the order of such Bank in a face amount equal to the Commitment of such Bank.
2.8 USE OF PROCEEDS.
The proceeds of the Revolving Credit Loans shall be used for general
corporate purposes and in accordance with Section 8.1.10.
2.9 LETTER OF CREDIT SUBFACILITY.
2.9.1 ISSUANCE OF LETTERS OF CREDIT.
Borrower may request the issuance of a letter of credit (each a
"LETTER OF CREDIT") on behalf of itself or another Loan Party by delivering to a
Letter of Credit Bank a completed application and agreement for letters of
credit in such form as the Agent may specify from time to time by no later than
12:00 noon, Pittsburgh time, at least three (3) Business Days, or such shorter
period as may be agreed to by the Agent, in advance of the proposed date of
issuance. Each Letter of Credit shall be either a Standby Letter of Credit or a
Commercial Letter of Credit. Subject to the terms and conditions hereof, the
Letter of Credit Bank shall promptly notify the Agent of the letter of credit
application and the amount and beneficiary of each such Letter of Credit, and
will issue a Letter of Credit, provided that each Letter of Credit shall
(A) have a maximum maturity of twelve (12) months from the date of issuance, and
(B) in no event expire later than one Business Day prior to the Expiration Date
and providing that in no event shall (i) the Letters of Credit Outstanding
exceed, at any one time, $4,000,000 or (ii) the Revolving Facility Usage exceed,
at any one time, the Commitments.
2.9.2 LETTER OF CREDIT FEES.
The Borrower shall pay to the Agent for the ratable account of
the Banks a fee (the "LETTER OF CREDIT FEE") at a rate per annum (computed on
the basis of a year of 360 days
<PAGE>
and actual days elapsed ) equal to (i) with respect to all Standby Letters of
Credit, the applicable Euro-Rate Margin (as such term is used in the definition
of Applicable Margin) set forth on Schedule 1.1(A), and (ii) with respect to all
Commercial Letters of Credit, one-half (1/2) of the applicable Euro-Rate Margin.
The Borrower shall also pay to the Letter of Credit Bank issuing the Letter of
Credit for its own account a fronting fee equal to one-eighth percent (1/8%) per
annum (computed on the basis of a year of 360 days and actual days elapsed).
The Letter of Credit Fees and the fronting fees shall be computed on the daily
average Letters of Credit Outstanding and shall be payable quarterly in arrears
commencing with the first day of each April, July, October and January following
issuance of each Letter of Credit and on the Expiration Date. The Borrower
shall also pay to the Letter of Credit Bank for its own account the Letter of
Credit Bank's then in effect customary fees and administrative expenses payable
with respect to the Letters of Credit as the Letter of Credit Bank may generally
charge or incur from time to time in connection with the issuance, modification
(if any), assignment or transfer (if any), and negotiation of Letters of Credit.
2.9.3 DISBURSEMENTS, REIMBURSEMENT.
2.9.3.1 Immediately upon the Issuance of each
Letter of Credit, the Letter of Credit Bank shall give notice of such issuance
to the Agent and each of the Banks and each Bank shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Letter of Credit
Bank a participation in such Letter of Credit and each drawing thereunder in an
amount equal to such Bank's Ratable Share of the maximum amount available to be
drawn under such Letter of Credit and the amount of such drawing, respectively.
2.9.3.2 In the event of any request for a drawing
under a Letter of Credit by the beneficiary or transferee thereof, the Letter of
Credit Bank will promptly notify the Agent and the Borrower. Provided that it
shall have received such notice, the Borrower shall reimburse (such obligation
to reimburse the Letter of Credit Bank shall sometimes be referred to as a
"REIMBURSEMENT OBLIGATION") the Letter of Credit Bank prior to 12:00 noon,
Pittsburgh time on each date that an amount is paid by the Letter of Credit Bank
under any Letter of Credit (each such date, a "DRAWING DATE") in an amount equal
to the amount so paid by the Letter of Credit Bank. In the event the Borrower
fails to reimburse the Letter of Credit Bank for the full amount of any drawing
under any Letter of Credit by 12:00 noon, Pittsburgh time, on the Drawing Date,
the Letter of Credit Bank shall promptly notify the Agent and each Bank thereof,
and the Borrower shall be deemed to have requested that Revolving Credit Loans
be made by the Banks under the Base Rate Option to be disbursed on the Drawing
Date under such Letter of Credit, subject to the amount of the unutilized
portion of the Commitment and subject to the conditions set forth in Section 7.2
other than any notice requirements. Any notice given by the Letter of Credit
Bank pursuant to this Section 2.9.3.2 may be oral if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
<PAGE>
2.9.3.3 Each Bank shall upon any notice pursuant to
Section 2.9.3.2 make available to the Agent, for the account of the Letter of
Credit Bank, an amount in immediately available funds equal to its Ratable Share
of the amount of the drawing, whereupon the participating Banks shall (subject
to Section 2.9.3.4) each be deemed to have made a Revolving Credit Loan under
the Base Rate Option to the Borrower in that amount. If any Bank so notified
fails to make available to the Agent for the account of the Letter of Credit
Bank the amount of such Bank's Ratable Share of such amount by no later than
2:00 p.m., Pittsburgh time on the Drawing Date, then interest shall accrue on
such Bank's obligation to make such payment, from the Drawing Date to the date
on which such Bank makes such payment (i) at a rate per annum equal to the
Federal Funds Effective Rate during the first three days following the Drawing
Date and (ii) at a rate per annum equal to the rate applicable to Loans under
the Revolving Credit Base Rate Option on and after the fourth day following the
Drawing Date. The Letter of Credit Bank will promptly give notice of the
occurrence of the Drawing Date, but failure of the Letter of Credit Bank to give
any such notice on the Drawing Date or in sufficient time to enable any Bank to
effect such payment on such date shall not relieve such Bank from its obligation
under this Section 2.9.3.3.
2.9.3.4 With respect to any unreimbursed drawing
that is not converted into a Revolving Credit Loan under the Base Rate Option to
the Borrower in whole or in part as contemplated by Section 2.9.3.2, because of
the Borrower's failure to satisfy the conditions set forth in Section 7.2 other
than any notice requirements or for any other reason, the Borrower shall be
deemed to have incurred from the Letter of Credit Bank a Letter of Credit
Borrowing in the amount of such drawing. Such Letter of Credit Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
the rate per annum applicable to the Revolving Credit Loans under the Base Rate
Option. Each Bank's payment to the Agent for the account of the Letter of
Credit Bank pursuant to Section 2.9.3.3 shall be deemed to be a payment in
respect of its participation in such Letter of Credit Borrowing and shall
constitute a Participation Advance from such Bank in satisfaction of its
participation obligation under this Section 2.9.3.
2.9.4 REPAYMENT OF PARTICIPATION ADVANCES.
2.9.4.1 Upon (and only upon) receipt by the Agent
for the account of the Letter of Credit Bank of immediately available funds from
the Borrower (i) in reimbursement of any payment made by the Letter of Credit
Bank under the Letter of Credit with respect to which any Bank has made a
Participation Advance to the Agent, or (ii) in payment of interest on such a
payment made by the Letter of Credit Bank under such a Letter of Credit, the
Agent will pay to each Bank, in the same funds as those received by the Agent,
the amount of such Bank's Ratable Share of such funds, except the Letter of
Credit Bank shall retain the amount of the Ratable Share of such funds of any
Bank that did not make a Participation Advance in respect of such payment by
Letter of Credit Bank.
2.9.4.2 If the Agent is required at any time to
return to any Loan Party, or to a trustee, receiver, liquidator, custodian, or
any official in any Insolvency Proceeding,
<PAGE>
any portion of the payments made by any Loan Party to the Agent pursuant to
Section 2.9.4.1 in reimbursement of a payment made under the Letter of Credit or
interest or fee thereon, each Bank shall, on demand of the Agent, forthwith
return to the Agent the amount of its Ratable Share of any amounts so returned
by the Agent plus interest thereon from the date such demand is made to the date
such amounts are returned by such Bank to the Agent, at a rate per annum equal
to the Federal Funds Effective Rate in effect from time to time.
2.9.5 DOCUMENTATION.
Each Loan Party agrees to be bound by the terms of the Letter of
Credit Bank's application and agreement for letters of credit and the Letter of
Credit Bank's written regulations and customary practices relating to letters of
credit, though such interpretation may be different from such Loan Party's own.
In the event of a conflict between such application or agreement and this
Agreement, this Agreement shall govern. It is understood and agreed that,
except in the case of gross negligence or willful misconduct, the Letter of
Credit Bank shall not be liable for any error, negligence and/or mistakes,
whether of omission or commission, in following any Loan Party's instructions or
those contained in the Letters of Credit or any modifications, amendments or
supplements thereto.
2.9.6 DETERMINATIONS TO HONOR DRAWING REQUESTS.
In determining whether to honor any request for drawing under any
Letter of Credit by the beneficiary thereof, the Letter of Credit Bank shall be
responsible only to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they comply
on their face with the requirements of such Letter of Credit.
2.9.7 NATURE OF PARTICIPATION AND REIMBURSEMENT OBLIGATIONS.
Each Bank's obligation in accordance with this Agreement to make
the Revolving Credit Loans or Participation Advances, as contemplated by
Section 2.9.3, as a result of a drawing under a Letter of Credit, and the
Obligations of the Borrower to reimburse the Agent upon a draw under a Letter of
Credit, shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Section 2.9 under all
circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the Agent or any other Person for
any reason whatsoever;
(ii) the failure of any Loan Party or any other Person
to comply, in connection with a Letter of Credit Borrowing, with the conditions
set forth in Section 2.1, 2.5, 2.6 or 7.2 or as otherwise set forth in this
Agreement for the making of a Revolving Credit Loan, it being acknowledged that
such conditions are not required for the making of a Letter of Credit Borrowing
and the obligation of the Banks to make Participation Advances under
Section 2.9.3;
<PAGE>
(iii) any lack of validity or enforceability of any
Letter of Credit;
(iv) the existence of any claim, set-off, defense or
other right which any Loan Party or any Bank 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 Agent or any Bank or any other Person
or, whether in connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying transaction
between any Loan Party or Subsidiaries of a Loan Party and the beneficiary for
which any Letter of Credit was procured);
(v) any draft, demand, certificate 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 even if the Agent has been notified thereof;
(vi) payment by the Letter of Credit Bank under any
Letter of Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit, unless
such payment constitutes bad faith, gross negligence or willful misconduct on
the part of the Letter of Credit Bank;
(vii) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of any Loan
Party or Subsidiaries of a Loan Party;
(viii) any breach of this Agreement or any other Loan
Document by any party thereto;
(ix) the occurrence or continuance of an Insolvency
Proceeding with respect to any Loan Party;
(x) the fact that an Event of Default or a Potential
Default shall have occurred and be continuing;
(xi) the fact that the Expiration Date shall have passed
or this Agreement or the Commitments hereunder shall have been terminated; and
(xii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, unless the Letter of Credit
Bank's actions in connection therewith constitute bad faith, gross negligence or
willful misconduct; PROVIDED that the Agent's obligation to make Revolving
Credit Loans under Section 2.1 is subject to the conditions set forth in
Section 7.2.
2.9.8 INDEMNITY.
In addition to amounts payable as provided in Section 11.3, the
Borrower hereby agrees to protect, indemnify, pay and save harmless the Letter
of Credit Bank 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 Letter of Credit Bank may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit, other than as a
result of (A) the bad faith, gross negligence or willful misconduct of the
Letter of Credit Bank as determined by a final judgment of a court of competent
jurisdiction or (B) subject to the following clause (ii), the
<PAGE>
wrongful dishonor by the Letter of Credit Bank of a proper demand for payment
made under any Letter of Credit, or (ii) the failure of the Letter of Credit
Bank 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").
2.9.9 LIABILITY FOR ACTS AND OMISSIONS.
As between any Loan Party and the Letter of Credit Bank, such
Loan Party assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit by, the respective beneficiaries of such Letters of Credit.
In furtherance and not in limitation of the foregoing, the Letter of Credit Bank
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 an 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 (even if the Agent shall have been notified
thereof); (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) the failure of the
beneficiary of any such Letter of Credit, or any other party to which such
Letter of Credit may be transferred, to comply fully with any conditions
required in order to draw upon such Letter of Credit or any other claim of any
Loan Party against any beneficiary of such Letter of Credit, or any such
transferee, or any dispute between or among any Loan Party and any beneficiary
of any Letter of Credit or any such transferee; (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 Agent, including any Governmental Acts,
and none of the above shall affect or impair, or prevent the vesting of, any of
the Agent's rights or powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by the Letter
of Credit Bank 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 and absent gross negligence or willful misconduct, shall not put the
Letter of Credit Bank under any resulting liability to the Borrower, any other
Loan Party or any Bank.
<PAGE>
3. [INTENTIONALLY OMITTED]
4. INTEREST RATES
4.1 INTEREST RATE OPTIONS.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Loans as selected by it from the Base Rate Option or the
Euro-Rate Option set forth below applicable to the Loans, it being understood
that, subject to the provisions of this Agreement, the Borrower may select
different Interest Rate Options and different Interest Periods to apply
simultaneously to the Loans comprising different Borrowing Tranches and may
convert to or renew one or more Interest Rate Options with respect to all or any
portion of the Loans comprising any Borrowing Tranche, PROVIDED that there shall
not be at any one time outstanding more than four (4) Borrowing Tranches in the
aggregate among all of the Loans accruing interest at a Euro-Rate Option. If at
any time the designated rate applicable to any Loan made by any Bank exceeds
such Bank's highest lawful rate, the rate of interest on such Bank's Loan shall
be limited to such Bank's highest lawful rate.
4.1.1 REVOLVING CREDIT INTEREST RATE OPTIONS.
The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Revolving Credit Loans:
(i) BASE RATE OPTION: A fluctuating rate per annum
(computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) equal to the Base Rate plus the Applicable Margin, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate; or
(ii) EURO-RATE OPTION: A rate per annum (computed on
the basis of a year of 360 days and actual days elapsed) equal to the Euro-Rate
plus the Applicable Margin.
4.1.2 RATE QUOTATIONS.
The Borrower may call the Agent on or before the date on which a
Loan Request is to be delivered to receive an indication of the rates then in
effect, but it is acknowledged that such projection shall not be binding on the
Agent and the Banks nor affect the rate of interest which thereafter is actually
in effect when the election is made.
4.2 INTEREST PERIODS.
At any time when the Borrower shall select, convert to or renew a
Euro-Rate Option, the Borrower shall notify the Agent thereof at least two (2)
Business Days prior to the effective date of such Euro-Rate Option by delivering
a Loan Request. The notice shall specify an interest period (the "INTEREST
PERIOD") during which such Interest Rate Option shall apply, such
<PAGE>
Interest Period to be one, two, three or six Months. Notwithstanding the
preceding sentence, the following provisions shall apply to any selection of,
renewal of, or conversion to a Euro-Rate Option:
4.2.1 ENDING DATE AND BUSINESS DAY.
any Interest Period which would otherwise end on a date which is
not a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
4.2.2 AMOUNT OF BORROWING TRANCHE.
each Borrowing Tranche of Euro-Rate Loans shall be not less than
$1,000,000;
4.2.3 TERMINATION BEFORE EXPIRATION DATE.
the Borrower shall not select, convert to or renew an Interest
Period for any portion of the Loans that would end after the Expiration Date;
and
4.2.4 RENEWALS.
in the case of the renewal of a Euro-Rate Option at the end of an
Interest Period, the first day of the new Interest Period shall be the last day
of the preceding Interest Period, without duplication in payment of interest for
such day.
4.3 INTEREST AFTER DEFAULT.
To the extent permitted by Law, upon the occurrence of an Event of
Default and until such time such Event of Default shall have been cured or
waived:
4.3.1 LETTER OF CREDIT FEES, INTEREST RATE.
the Letter of Credit Fees and the rate of interest for each Loan
otherwise applicable pursuant to Section 2.7.3 or Section 4.1, respectively,
shall be increased by two percent (2%) per annum; and
4.3.2 OTHER OBLIGATIONS.
each other Obligation hereunder if not paid when due shall bear
interest at a rate per annum equal to the sum of the rate of interest applicable
under the Base Rate Option plus an additional two percent (2%) per annum from
the time such Obligation becomes due and payable and until it is paid in full.
<PAGE>
4.3.3 ACKNOWLEDGMENT.
The Borrower acknowledges that the increase in rates referred to
in this Section 4.3 reflects, among other things, the fact that such Loans or
other amounts have become a substantially greater risk given their default
status and that the Banks are entitled to additional compensation for such risk;
and all such interest shall be payable by Borrower upon demand by the Agent.
4.4 EURO-RATE UNASCERTAINABLE; ILLEGALITY; INCREASED COSTS; DEPOSITS
NOT AVAILABLE
4.4.1 UNASCERTAINABLE.
If on any date on which a Euro-Rate would otherwise be
determined, the Agent shall have determined that:
(i) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(ii) a contingency has occurred which materially and
adversely affects the secondary market for the London interbank eurodollar
market relating to the Euro-Rate, the Agent shall have the rights specified in
Section 4.4.3.
4.4.2 ILLEGALITY; INCREASED COSTS; DEPOSITS NOT AVAILABLE.
If at any time any Bank shall have determined that:
(i) the making, maintenance or funding of any Loan to
which a Euro-Rate Option applies has been made impracticable or unlawful by
compliance by such Bank in good faith with any Law or any interpretation or
application thereof by any Official Body or with any request or directive of any
such Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and
fairly reflect the cost to such Bank of the establishment or maintenance of any
such Loan, or
(iii) after making all reasonable efforts, deposits of
the relevant amount in Dollars for the relevant Interest Period for a Loan to
which a Euro-Rate Option applies are not available to such Bank at the effective
cost of funding a proposed Loan in the London interbank market,
then the Agent shall have the rights specified in Section 4.4.3.
4.4.3 AGENT'S AND BANK'S RIGHTS.
In the case of any event specified in Section 4.4.1, the Agent
shall promptly so notify the Borrower thereof, and in the case of an event
specified in Section 4.4.2 above, such Bank shall promptly so notify the Agent
and endorse a certificate to such notice as to the specific
<PAGE>
circumstances of such notice, and the Agent shall promptly send copies of such
notice and certificate to the other Banks and the Borrower. Upon such date as
shall be specified in such notice (which shall not be earlier than the date such
notice is given), the obligation of (A) the Banks, in the case of such notice
given by the Agent, or (B) such Bank, in the case of such notice given by such
Bank, to allow the Borrower to select, convert to or renew a Euro-Rate Option
shall be suspended until the Agent shall have later notified the Borrower, or
such Bank shall have later notified the Agent, of the Agent's of such Bank's,
as the case may be, determination that the circumstances giving rise to such
previous determination no longer exist. If at any time the Agent makes a
determination under Section 4.4.1, Section 4.4.2(ii) or Section 4.4.2(iii) and
the Borrower has previously notified the Agent of its selection of, conversion
to or renewal of a Euro-Rate Option and such Interest Rate Option has not yet
gone into effect, such notification shall be deemed to provide for selection of,
conversion to or renewal of the Base Rate Option otherwise available with
respect to such Loans. If any Bank notifies the Agent of a determination under
Section 4.4.2(i), the Borrower shall, subject to the Borrower's indemnification
Obligations under Section 5.6.2, as to any Loan of the Bank to which a
Euro-Rate Option applies, on the date specified in such notice either convert
such Loan to the Base Rate Option otherwise available with respect to such Loan
or prepay such Loan in accordance with Section 5.4. Absent due notice from the
Borrower of conversion or prepayment, such Loan shall automatically be converted
to the Base Rate Option otherwise available with respect to such Loan upon such
specified date.
4.5 SELECTION OF INTEREST RATE OPTIONS.
If the Borrower fails to select a new Interest Period to apply to any
Borrowing Tranche of Loans under the Euro-Rate Option at the expiration of an
existing Interest Period applicable to such Borrowing Tranche in accordance with
the provisions of Section 4.2, the Borrower shall be deemed to have converted
such Borrowing Tranche to the Base Rate Option commencing upon the last day of
the existing Interest Period.
5. PAYMENTS
5.1 PAYMENTS.
All payments and prepayments to be made in respect of principal,
interest, Commitment Fees, Facility Fee, Letter of Credit Fees, Agent's Fee or
other fees or amounts due from the Borrower hereunder shall be payable prior to
12:00 noon, Pittsburgh time, on the date when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by the
Borrower, and without set-off, counterclaim or other deduction of any nature,
and an action therefor shall immediately accrue. Such payments shall be made to
the Agent at the Principal Office for the ratable accounts of the Banks with
respect to the Loans in U.S. Dollars and in immediately available funds, and the
Agent shall promptly distribute such amounts to the Banks in immediately
available funds, PROVIDED that in the event payments are received by 12:00 noon,
Pittsburgh time, by the Agent with respect to the Loans and such payments are
not distributed to the Banks on the same day received by the Agent, the Agent
shall pay the Banks the
<PAGE>
Federal Funds Effective Rate with respect to the amount of such payments for
each day held by the Agent and not distributed to the Banks. The Agent's and
each Bank's statement of account, ledger or other relevant record shall, in the
absence of manifest error, be conclusive as the statement of the amount of
principal of and interest on the Loans and other amounts owing under this
Agreement and shall be deemed an "account stated."
5.2 PRO RATA TREATMENT OF BANKS.
Each borrowing shall be allocated to each Bank according to its
Ratable Share, and each selection of, conversion to or renewal of any Interest
Rate Option and each payment or prepayment by the Borrower with respect to
principal, interest, Commitment Fees, Facility Fees, Letter of Credit Fees, or
other fees (except for the Agent's Fee) or amounts due from the Borrower
hereunder to the Banks with respect to the Loans, shall (except as provided in
Section 4.4.3 in the case of an event specified in Section 4.4, 5.4.2 or Section
5.6 be made in proportion to the applicable Loans outstanding from each Bank
and, if no such Loans are then outstanding, in proportion to the Ratable Share
of each Bank.
5.3 INTEREST PAYMENT DATES.
Interest on Loans shall be due and payable in arrears on the first day
of each calendar quarter after the date hereof, commencing with a payment on
April 1, 1998, and on each July 1, October 1, January 1 and April 1 thereafter,
and on the Expiration Date or upon acceleration of the Notes. Interest on
mandatory prepayments of Interest on the principal amount of each Loan or other
monetary Obligation shall be due and payable on demand after such principal
amount or other monetary Obligation becomes due and payable (whether on the
stated maturity date, upon acceleration or otherwise).
5.4 VOLUNTARY REPAYMENTS.
5.4.1 RIGHT TO REPAY.
The Borrower shall have the right at its option at any time and
from time to time to repay the Loans in whole or part without premium or penalty
(except as provided in Section 5.6).
Whenever the Borrower desires to repay any part of the Loans, it
shall provide a notice to the Agent at least two (2) Business Days prior to the
date of repayment of Loans setting forth the following information:
(y) the date, which shall be a Business Day, on which the
proposed repayment is to be made; and
(z) the total principal amount of such repayment, which
shall not be less than $100,000.
<PAGE>
All repayment notices shall be irrevocable. The principal amount
of the Loans for which a repayment notice is given shall be due and payable on
the date specified in such prepayment notice as the date on which the proposed
repayment is to be made. Except as provided in Section 4.4.3, if the Borrower
repays a Loan but fails to specify the applicable Borrowing Tranche which the
Borrower is repaying, the repayment shall be applied first to Loans to which the
Base Rate Option applies, then to Loans to which the Euro-Rate Option applies.
Any repayment hereunder shall be subject to the Borrower's Obligation to
indemnify the Banks under Section 5.6.2.
5.4.2 REPLACEMENT OF A BANK.
In the event any Bank (i) gives notice under Section 4.4 or
Section 5.6.1, (ii) does not fund Revolving Credit Loans because the making of
such Loans would contravene any Law applicable to such Bank, (iii) does not
approve any action as to which consent of the Required Banks is requested by the
Borrower and obtained hereunder, or (iv) becomes subject to the control of an
Official Body (other than normal and customary supervision), then the Borrower
shall have the right at its option, with the consent of the Agent, which shall
not be unreasonably withheld, to prepay the Loans of such Bank in whole,
together with all interest accrued thereon, and terminate such Bank's Commitment
within ninety (90) days after (w) receipt of such Bank's notice under
Section 4.4 or 5.6.1, (x) the date such Bank has failed to fund Revolving
Credit Loans because the making of such Loans would contravene Law applicable to
such Bank, (y) the date of obtaining the consent which such Bank has not
approved, or (z) the date such Bank became subject to the control of an Official
Body, as applicable; PROVIDED that the Borrower shall also pay to such Bank at
the time of such prepayment any amounts required under Section 5.6 and any
accrued interest due on such amount and any related fees; PROVIDED, however,
that the Commitment of such Bank shall be provided by one or more of the
remaining Banks or a replacement bank acceptable to the Agent; PROVIDED,
further, the remaining Banks shall have no obligation hereunder to increase
their Commitments. Notwithstanding the foregoing, the Agent may only be
replaced subject to the requirements of Section 10.14 and PROVIDED that all
Letters of Credit have expired or been terminated or replaced.
5.4.3 CHANGE OF LENDING OFFICE.
Each Bank agrees that upon the occurrence of any event giving
rise to increased costs or other special payments under Section 4.4.2 or 5.6.1
with respect to such Bank, it will if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Bank) to designate
another lending office for any Loans or Letters of Credit affected by such
event, PROVIDED that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of such Section. Nothing is this Section 5.4.3 shall affect or postpone any of
the Obligations of the Borrower or any other Loan Party or the rights of the
Agent or any Bank provided in this Agreement.
<PAGE>
5.4.4 COMMITMENT REDUCTIONS.
The Borrower may at any time and from time to time terminate in
whole the Commitments. The Borrower may on two separate occasions reduce in
part the Commitments, provided however, that after giving effect to any
reduction, the aggregate Commitments are not less than $7,500,000. In the case
of either a termination or reduction of the Commitments, the Borrower shall give
the Agent and the Banks not less than seven (7) days prior written notice to
such effect. Notice of termination or reduction, having once been given by the
Borrower, shall be irrevocable on the part of the Borrower. Each reduction of
the Commitments shall be in the aggregate amount of Five Hundred Thousand
($500,000) or an integral multiple thereof. After each such reduction of the
Commitments, the fee payable pursuant to Section 2.2 shall be calculated upon
the Commitments as so reduced.
5.5 MANDATORY REPAYMENTS.
5.5.1 SALE OF ASSETS.
Within five (5) Business Days of any sale of assets authorized by
Section 8.2.7(iv) when the Borrower's reasonable calculation of the net
after-tax proceeds are greater than $1,000,000, the Borrower shall make a
mandatory repayment of principal on the Loans equal to the lesser of (i) the
then outstanding principal amount of the Loans, or (ii) the net after-tax
proceeds of such sale (as estimated in good faith by the Borrower), together
with accrued interest on such principal amount, and the Commitments shall be
reduced by the amount of the net after-tax proceeds, rounded to the nearest
multiple of $10,000.
5.5.2 APPLICATION AMONG INTEREST RATE OPTIONS.
If at the time the Borrower makes a repayment required pursuant
to this Section 5.5 and the Borrower fails to specify the applicable Borrowing
Tranche to which the Borrower wants the repayment to be applied, the repayment
shall first be applied among the Interest Rate Options to the principal amount
of the Loans subject to the Base Rate Option, then to Loans subject to a
Euro-Rate Option. In accordance with Section 5.6.2, the Borrower shall
indemnify the Banks for any loss or expense, including loss of margin, incurred
with respect to any such prepayments applied against Loans subject to a
Euro-Rate Option on any day other than the last day of the applicable Interest
Period.
5.6 ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
5.6.1 INCREASED COSTS OR REDUCED RETURN RESULTING FROM
TAXES, RESERVES, CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC.
If any Law, guideline or interpretation issued or adopted after
the date hereof or any change in any Law, guideline or interpretation or
application thereof after the date hereof by any Official Body charged with the
interpretation or administration thereof or
<PAGE>
compliance with any request or directive issued or adopted after the date hereof
(whether or not having the force of Law) of any central bank or other Official
Body:
(i) subjects any Bank to any tax or changes the basis
of taxation with respect to this Agreement, the Notes, the Loans or payments by
the Borrower of principal, interest, Commitment Fees, or other amounts due from
the Borrower hereunder or under the Notes (except for taxes on the overall net
income of any Bank),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments to extend
credit extended by, or assets (funded or contingent) of, deposits with or for
the account of, or other acquisitions of funds by, any Bank, or
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or contingent) of, or
letters of credit, other credits or commitments to extend credit extended by,
any Bank, or (B) otherwise applicable to the obligations of any Bank under this
Agreement,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Bank with respect to this Agreement, the Notes or the making, maintenance or
funding of any part of the Loans (or, in the case of any capital adequacy or
similar requirement, to have the effect of reducing the rate of return on any
Bank's capital, taking into consideration such Bank's customary policies with
respect to capital adequacy) by an amount which is not reflected by the
Euro-Rate and which any Bank in its sole discretion deems to be material, any
Bank shall from time to time notify the Borrower of the amount determined in
good faith (using any averaging and attribution methods employed in good faith)
by any Bank to be necessary to compensate such Bank for such increase in cost,
reduction of income, additional expense or reduced rate of return. Such notice
shall set forth in reasonable detail the basis for such determination. Such
amount shall be due and payable by the Borrower to such Bank ten (10) Business
Days after such notice is given. If any event or circumstance arises or occurs
which gives rise to the obligation of the Borrower to make a payment pursuant to
this Section 5.5.1, such Bank shall promptly notify the Borrower of such event
or circumstance. Notwithstanding anything to the contrary contained herein, the
Borrower shall not be required to make any payment to any Bank pursuant to this
Section 5.5.1 with respect to amounts which arise or relate to periods more than
180 days prior to any Bank's request for such payment.
5.6.2 INDEMNITY.
In addition to the compensation required by Section 5.6.1, the
Borrower shall indemnify each Bank against all liabilities, losses or expenses
(including loss of margin, any loss or expense incurred in liquidating or
employing deposits from third parties and any loss or expense incurred in
connection with funds acquired by any Bank to fund or maintain Loans subject to
a Euro-Rate Option) which such Bank sustains or incurs as a consequence of any
<PAGE>
(i) payment, prepayment, conversion or renewal of any
Loan to which a Euro-Rate Option applies on a day other than the last day of the
corresponding Interest Period (whether or not such payment or prepayment is
mandatory, voluntary or automatic and whether or not such payment or prepayment
is then due),
(ii) attempt by the Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or part any Loan Requests
under Section 2.5 or Section 4.2 or notice relating to prepayments under
Section 5.4, or
(iii) default by the Borrower in the performance or
observance of any covenant or condition contained in this Agreement or any other
Loan Document, including any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal, interest, Commitment Fee or any other
amount due hereunder.
If any Bank sustains or incurs any such loss or expense, it shall from
time to time notify the Borrower of the amount determined in good faith by such
Bank (which determination may include such assumptions, allocations of
reasonable costs and expenses and averaging or attribution methods as such Bank
shall deem reasonable) to be necessary to indemnify any Bank for such loss or
expense. Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such
Bank ten (10) Business Days after such notice is given.
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES.
The Loan Parties, jointly and severally, represent and warrant to the
Agent and each of the Banks as follows:
6.1.1 ORGANIZATION AND QUALIFICATION.
Each Loan Party is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization. Each Loan Party has the lawful
power to own or lease its properties and to engage in the business it presently
conducts or proposes to conduct. Each Loan Party is duly licensed or qualified
and in good standing in each jurisdiction listed on SCHEDULE 6.1.1 and in all
other jurisdictions where the property owned or leased by it or the nature of
the business transacted by it or both makes such licensing or qualification
necessary, except where such failure is not reasonably likely to cause a
Material Adverse Change.
6.1.2 CAPITALIZATION AND OWNERSHIP.
The authorized capital stock of the Borrower (referred to herein
as the "Shares") and the issued and outstanding Shares and the ownership thereof
are as indicated on
<PAGE>
SCHEDULE 6.1.2. All of the Shares have been validly issued and are fully paid
and nonassessable. There are no options, warrants or other rights outstanding
to purchase any such shares except as indicated on SCHEDULE 6.1.2.
6.1.3 SUBSIDIARIES.
SCHEDULE 6.1.3 states the name of each of the Borrower's
Subsidiaries other than Montclair and the Existing Partnerships, its
jurisdiction of incorporation, its authorized capital stock, the issued and
outstanding shares (referred to herein as the "Subsidiary Shares") and the
owners thereof if it is a corporation, its outstanding partnership interests
(the "Partnership Interests") if it is a partnership and its outstanding limited
liability company interests, interests assigned to managers thereof and the
voting rights associated therewith (the "LLC Interests") if it is a limited
liability company. Each Loan Party has good and marketable title to all of the
Subsidiary Shares, Partnership Interests and LLC Interests of the Loan Parties
it purports to own, free and clear in each case of any Lien other than Permitted
Liens. All Subsidiary Shares, Partnership Interests and LLC Interests of each
Loan Party have been validly issued, and all Subsidiary Shares of each Loan
Party are fully paid and nonassessable. All capital contributions and other
consideration required to be made or paid in connection with the issuance of the
Partnership Interests and LLC Interests have been made or paid, as the case may
be. There are no options, warrants or other rights outstanding to purchase any
such Subsidiary Shares, Partnership Interests or LLC Interests of any Loan Party
except as indicated on SCHEDULE 6.1.3. With the exception of Montclair and the
Existing Partnerships, no Subsidiary which is not a Loan Party has either (i)
active business operations of any of the type described in Section 8.2.10, or
(ii) assets having a book value equal to or greater than $50,000.
6.1.4 POWER AND AUTHORITY.
Each Loan Party has full power to enter into, execute, deliver
and carry out this Agreement and the other Loan Documents to which it is a
party, to incur the Indebtedness contemplated by the Loan Documents and to
perform its Obligations under the Loan Documents to which it is a party, and all
such actions have been duly authorized by all necessary proceedings on its part.
6.1.5 VALIDITY AND BINDING EFFECT.
This Agreement has been duly and validly executed and delivered
by each Loan Party, and each other Loan Document which any Loan Party is
required to execute and deliver on or after the date hereof will have been duly
executed and delivered by such Loan Party on the required date of delivery of
such Loan Document. This Agreement and each other Loan Document constitutes, or
will constitute, legal, valid and binding obligations of each Loan Party which
is or will be a party thereto on and after its date of delivery thereof,
enforceable against such Loan Party in accordance with its terms, except to the
extent that enforceability of any of such Loan Document may be limited by
bankruptcy, insolvency, reorganization, moratorium or
<PAGE>
other similar laws affecting the enforceability of creditors' rights generally
and by general equitable principles.
6.1.6 NO CONFLICT.
Neither the execution and delivery of this Agreement or the other
Loan Documents by any Loan Party nor the consummation of the transactions herein
or therein contemplated or compliance with the terms and provisions hereof or
thereof by any of them will conflict with, constitute a default under or result
in any breach of (i) the terms and conditions of the certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents of any Loan Party or (ii) any Law or any material
agreement or instrument or order, writ, judgment, injunction or decree to which
any Loan Party is a party or by which it is bound or to which it is subject, or
result in the creation or enforcement of any Lien, charge or encumbrance
whatsoever upon any property (now or hereafter acquired) of any Loan Party
(other than Liens granted under the Loan Documents).
6.1.7 LITIGATION.
Except as set forth on Schedule 6.1.7, there are no actions,
suits, proceedings or investigations pending or, to the knowledge of any Loan
Party, threatened against such Loan Party at law or equity before any Official
Body which individually or in the aggregate is reasonably likely to result in
any Material Adverse Change. None of the Loan Parties is in violation of any
order, writ, injunction or any decree of any Official Body which may result in
any Material Adverse Change.
6.1.8 TITLE TO PROPERTIES.
Each Loan Party has good and marketable title to or valid
leasehold interest in all material properties, assets and other rights which it
purports to own or lease or which are reflected as owned or leased on its books
and records, free and clear of all Liens and encumbrances except Permitted
Liens, and subject to the terms and conditions of the applicable leases. All
leases of property are in full force and effect without the necessity for any
consent which has not previously been obtained upon consummation of the
transactions contemplated hereby.
6.1.9 FINANCIAL STATEMENTS.
(i) HISTORICAL STATEMENTS. The Borrower has delivered
to the Agent copies of its audited consolidated year-end financial statements
for and as of the end of the three fiscal years ended June 30, 1997, 1996 and
1995 (the "Annual Statements"). In addition, the Borrower has delivered to the
Agent copies of its unaudited consolidated interim financial statements for the
fiscal year to date and as of the end of the fiscal quarter ended September 30,
1997 (the "Interim Statements") (the Annual and Interim Statements being
collectively referred to as the "Historical
<PAGE>
Statements"). The Historical Statements were compiled from the books and
records maintained by the Borrower's management, are correct and complete and
fairly represent in all material respects the consolidated financial condition
of the Borrower and its Subsidiaries as of their dates and the results of
operations for the fiscal periods then ended and have been prepared in
accordance with GAAP consistently applied, subject (in the case of the Interim
Statements) to normal year-end audit adjustments.
(ii) ACCURACY OF FINANCIAL STATEMENTS. Neither the
Borrower nor any Subsidiary of the Borrower has any liabilities, contingent or
otherwise, or forward or long-term commitments that are not disclosed in the
Historical Statements or in the notes thereto, and except as disclosed therein
there are no unrealized or anticipated losses from any commitments of the
Borrower or any Subsidiary of the Borrower which is reasonably likely to cause a
Material Adverse Change. Since June 30, 1997 no Material Adverse Change has
occurred.
6.1.10 USE OF PROCEEDS; MARGIN STOCK.
The Loan Parties intend to use the proceeds of the Loans in
accordance with Sections 2.8 and 8.1.10. None of the Loan Parties or any
Subsidiaries of any Loan Party engages or intends to engage principally, or as
one of its important activities, in the business of extending credit for the
purpose, immediately, incidentally or ultimately, of purchasing or carrying
margin stock (within the meaning of Regulation U). No part of the proceeds of
any Loan has been or will be used, immediately, incidentally or ultimately, to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock or to refund Indebtedness originally
incurred for such purpose, or for any purpose which entails a violation of or
which is inconsistent with the provisions of the regulations of the Board of
Governors of the Federal Reserve System. None of the Loan Parties holds or
intends to hold margin stock in such amounts that more than 25% of the
reasonable value of the assets of any Loan Party are or will be represented by
margin stock.
6.1.11 FULL DISCLOSURE.
Neither this Agreement nor any other Loan Document, nor any
certificate, written statement, agreement or other documents furnished to the
Agent or any Bank in connection herewith or therewith, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein, in light of the
circumstances under which they were made, not misleading. As of the date hereof
there is no fact known to any Loan Party which materially adversely affects the
business, property, assets, financial condition or results of operations of any
Loan Party which has not been set forth in this Agreement or in the
certificates, statements, agreements or other documents furnished in writing to
the Agent and the Banks prior to or at the date hereof in connection with the
transactions contemplated hereby.
<PAGE>
6.1.12 TAXES.
All federal, state and local income tax returns and all other
material federal, state and local tax returns required to have been filed with
respect to each Loan Party have been filed or properly extended, and payment or
adequate provision has been made for the payment of all taxes, fees, assessments
and other governmental charges which have or may become due pursuant to said
returns or to assessments received, except to the extent that such taxes, fees,
assessments and other charges are being contested in good faith by appropriate
proceedings diligently conducted and for which such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made. There are no agreements or waivers extending the statutory period of
limitations applicable to any federal income tax return of any Loan Party for
any period.
6.1.13 CONSENTS AND APPROVALS.
Except for the filing of financing statements and the Trademark
Security Agreement in the state, county and federal filing offices, no consent,
approval, exemption, order or authorization of, or a registration or filing
with, any Official Body or any other Person is required by any Law or any
agreement in connection with the execution, delivery and carrying out of this
Agreement and the other Loan Documents by any Loan Party, except as listed on
SCHEDULE 6.1.13, all of which shall have been obtained or made on or prior to
the Closing Date except as otherwise indicated on SCHEDULE 6.1.13.
6.1.14 NO EVENT OF DEFAULT; COMPLIANCE WITH INSTRUMENTS.
No event has occurred and is continuing and no condition exists
or will exist after giving effect to the borrowings or other extensions of
credit to be made on the Closing Date under or pursuant to the Loan Documents
which constitutes an Event of Default or Potential Default. None of the Loan
Parties is in violation of (i) any term of its certificate of incorporation,
bylaws, certificate of limited partnership, partnership agreement, certificate
of formation, limited liability company agreement or other organizational
documents or (ii) any material agreement or instrument to which it is a party or
by which it or any of its properties may be subject or bound where such
violation would constitute a Material Adverse Change.
6.1.15 PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
Each Loan Party owns or possesses or has the right to use all the
material patents, trademarks, service marks, trade names, copyrights, licenses,
registrations, franchises, permits and rights necessary to own and operate its
properties and to carry on its business as conducted from time to time by such
Loan Party, without known alleged or actual conflict with the rights of others.
All material patents, trademarks, service marks, trade names and registered
copyrights of each Loan Party are listed and described on SCHEDULE 6.1.15.
<PAGE>
6.1.16 SECURITY INTERESTS.
Upon proper completion of the Perfection Actions, the Liens and
security interests granted to the Agent pursuant to the Collateral Assignment,
the Trademark Security Agreement, the Pledge Agreement and the Security
Agreement in the UCC Collateral constitute and will continue to constitute Prior
Security Interests under the Uniform Commercial Code as in effect in each
applicable jurisdiction (the "Uniform Commercial Code") or other applicable Law
entitled to all the rights, benefits and priorities provided by the Uniform
Commercial Code or such Law. Upon the filing of financing statements relating
to said security interests in each office and in each jurisdiction where
required in order to perfect the security interests described above, taking
possession of any stock certificates or other certificates evidencing the
Pledged Collateral, execution and delivery of the Collateral Assignment and
recordation of the Trademark Security Agreement in the United States Patent and
Trademark Office (collectively, the "Perfection Actions"), all such action as is
necessary or advisable to establish such rights of the Agent will have been
taken, and there will be upon execution and delivery of the Collateral
Assignment, the Trademark Security Agreement, the Pledge Agreement and the
Security Agreement, such filings and such taking of possession, no necessity for
any further action in order to preserve, protect and continue such rights,
except the filing of continuation statements with respect to such financing
statements within six months prior to each five-year anniversary of the filing
of such financing statements. All filing fees and other expenses in connection
with each such action have been or will be paid by the Borrower to the Agent.
6.1.17 STATUS OF THE PLEDGED COLLATERAL.
All the shares of capital stock, Partnership Interests or LLC
Interests included in the Pledged Collateral to be pledged pursuant to the
Pledge Agreement or the Collateral Assignment are or will be subject to Agent's
Prior Security Interest and are or will be upon issuance validly issued and
nonassessable and owned beneficially and of record by the pledgor free and clear
of any Lien or restriction on transfer, except for Permitted Liens or except as
otherwise provided by the Pledge Agreement or the Collateral Assignment and
except as the right of the Agent and the Banks to dispose of the Shares,
Partnership Interests or LLC Interests may be limited by the Securities Act of
1933, as amended, and the regulations promulgated by the Securities and Exchange
Commission thereunder and by applicable state securities laws. There are no
shareholder, partnership, limited liability company or other agreements or
understandings with respect to the shares of capital stock, Partnership
Interests or LLC Interests included in the Pledged Collateral except for the
partnership agreements and limited liability company agreements described on
SCHEDULE 6.1.17. The Loan Parties have delivered true and correct copies of
such partnership agreements and limited liability company agreements to the
Agent.
6.1.18 INSURANCE.
All insurance policies and other bonds to which any Loan Party is
a party are valid and in full force and effect. No notice has been given or
claim made and no grounds exist to cancel or avoid any of such policies or bonds
or to reduce the coverage provided thereby.
<PAGE>
Such policies and bonds provide adequate coverage from reputable and financially
sound insurers in amounts sufficient to insure the material assets and material
risks of each Loan Party in accordance with prudent business practice in the
industry of the Loan Parties.
6.1.19 COMPLIANCE WITH LAWS.
The Loan Parties and their Subsidiaries are in compliance in all
material respects with all applicable Laws (other than Environmental Laws which
are specifically addressed in Section 6.1.24) in all jurisdictions in which any
Loan Party or Subsidiary of any Loan Party is presently or will be doing
business except where the failure to do so is not reasonably likely to
constitute a Material Adverse Change.
6.1.20 MATERIAL CONTRACTS; BURDENSOME RESTRICTIONS.
SCHEDULE 6.1.20 lists all material contracts relating to the
business operations of each Loan Party, including all employee benefit plans and
Labor Contracts. All such material contracts are valid, binding and enforceable
in all material respects upon such Loan Party and each of the other parties
thereto in accordance with their respective terms, and there is no default
thereunder which would result in a Material Adverse Change, to the Loan Parties'
knowledge, with respect to parties other than such Loan Party. None of the Loan
Parties is bound by any contractual obligation, or subject to any restriction in
any organization document, or any requirement of Law which is reasonably likely
to result in a Material Adverse Change.
6.1.21 INVESTMENT COMPANIES; REGULATED ENTITIES.
None of the Loan Parties is an "investment company" registered or
required to be registered under the Investment Company Act of 1940 or under the
"control" of an "investment company" as such terms are defined in the Investment
Company Act of 1940 and shall not become such an "investment company" or under
such "control." None of the Loan Parties is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
6.1.22 PLANS AND BENEFIT ARRANGEMENTS.
Except as set forth on SCHEDULE 6.1.22:
(i) The Borrower and each other member of the ERISA
Group are in compliance in all material respects with any applicable provisions
of ERISA with respect to all Benefit Arrangements, Plans and Multiemployer
Plans. There has been no Prohibited Transaction with respect to any Benefit
Arrangement or any Plan or, to the best knowledge of the Borrower, with respect
to any Multiemployer Plan or Multiple Employer Plan, which could result in any
material liability of the Borrower or any other member of the ERISA Group. The
Borrower and all other members of the ERISA Group have made when due any and all
payments required to be made under any agreement relating to a Multiemployer
Plan or a Multiple Employer Plan or any Law pertaining thereto. With respect to
each Plan and Multiemployer Plan, the Borrower and each other member
<PAGE>
of the ERISA Group (i) have fulfilled in all material respects their obligations
under the minimum funding standards of ERISA, (ii) have not incurred any
liability to the PBGC, and (iii) have not had asserted against them any penalty
for failure to fulfill the minimum funding requirements of ERISA.
(ii) To the best of the Borrower's knowledge, each
Multiemployer Plan and Multiple Employer Plan is able to pay benefits thereunder
when due.
(iii) Neither the Borrower nor any other member of the
ERISA Group has instituted or intends to institute proceedings to terminate any
Plan.
(iv) No event requiring notice to the PBGC under
Section 302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur
with respect to any Plan, and no amendment with respect to which security is
required under Section 307 of ERISA has been made or is reasonably expected to
be made to any Plan.
(v) The aggregate actuarial present value of all
benefit liabilities (whether or not vested) under each Plan, determined on a
plan termination basis, as disclosed in, and as of the date of, the most recent
actuarial report for such Plan, does not exceed the aggregate fair market value
of the assets of such Plan.
(vi) Neither the Borrower nor any other member of the
ERISA Group has incurred or reasonably expects to incur any material withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Borrower nor any other member of the ERISA Group has been notified
by any Multiemployer Plan or Multiple Employer Plan that such Multiemployer Plan
or Multiple Employer Plan has been terminated within the meaning of Title IV of
ERISA and, to the best knowledge of the Borrower, no Multiemployer Plan or
Multiple Employer Plan is reasonably expected to be reorganized or terminated,
within the meaning of Title IV of ERISA.
(vii) To the extent that any Benefit Arrangement is
insured, the Borrower and all other members of the ERISA Group have paid when
due all premiums required to be paid for all periods through the Closing Date.
To the extent that any Benefit Arrangement is funded other than with insurance,
the Borrower and all other members of the ERISA Group have made when due all
contributions required to be paid for all periods through the Closing Date.
(viii) All Plans, Benefit Arrangements and
Multiemployer Plans have been administered in accordance with their terms and
applicable Law in all material respects.
6.1.23 EMPLOYMENT MATTERS.
Each of the Loan Parties and each of their Subsidiaries is in
compliance with the material Labor Contracts and all applicable federal, state
and local labor and employment Laws including those related to equal employment
opportunity and affirmative action, labor relations, minimum wage, overtime,
child labor, medical insurance continuation, worker adjustment and relocation
notices, immigration controls and worker and unemployment
<PAGE>
compensation, where the failure to comply would constitute a Material Adverse
Change. There are no material outstanding grievances, arbitration awards or
appeals therefrom arising out of the Labor Contracts or current or threatened
strikes, picketing, handbilling or other work stoppages or slowdowns at
facilities of any of the Loan Parties or any of their Subsidiaries which in any
case would constitute a Material Adverse Change. The Borrower has delivered to
the Agent true and correct copies of each of the material employment agreements
of the Borrower and the Loan Parties.
6.1.24 ENVIRONMENTAL MATTERS.
Except as disclosed on SCHEDULE 6.1.24 and except as is not
reasonably likely to constitute a Material Adverse Change:
(i) None of the Loan Parties or any Subsidiaries of
any Loan Party has received any Environmental Complaint from any Official Body
or private Person alleging that such Loan Party or Subsidiary or any prior or
subsequent owner of any of the Property is a potentially responsible party under
the Comprehensive Environmental Response, Cleanup and Liability Act, 42 U.S.C.
Section 9601, ET SEQ., and none of the Loan Parties has any reason to believe
that such an Environmental Complaint might be received. There are no pending
or, to any Loan Party's knowledge, threatened Environmental Complaints relating
to any Loan Party or Subsidiary of any Loan Party or, to any Loan Party's
knowledge, any prior or subsequent owner of any of the Property pertaining to,
or arising out of, any Environmental Conditions.
(ii) There are no circumstances at, on or under any of
the Property that constitute a breach of or non-compliance with any of the
Environmental Laws, and there are no past or present Environmental Conditions
at, on or under any of the Property or, to any Loan Party's knowledge, at, on or
under adjacent property, that prevent compliance with the Environmental Laws at
any of the Property.
(iii) Neither any of the Property nor any structures,
improvements, equipment, fixtures, activities or facilities thereon or
thereunder contain or use Regulated Substances except in compliance with
Environmental Laws. There are no processes, facilities, operations, equipment
or other activities at, on or under any of the Property, or, to any Loan Party's
knowledge, at, on or under adjacent property, that currently result in the
release or threatened release of Regulated Substances onto any of the Property,
except to the extent that such releases or threatened releases are not a breach
of or otherwise not a violation of the Environmental Laws.
(iv) To the knowledge of the Loan Parties, there are no
aboveground storage tanks, underground storage tanks or underground piping
associated with such tanks, used for the management of Regulated Substances at,
on or under any of the Property that (a) do not have, to the extent required by
Environmental Laws, a full operational secondary containment system in place,
and (b) are not otherwise in compliance with all applicable Environmental Laws.
There are no abandoned underground storage tanks or underground piping
associated with such tanks, previously used for the management of Regulated
Substances at, on or under any of the Property that have not either been closed
in place in accordance with Environmental Laws or removed in
<PAGE>
compliance with all applicable Environmental Laws and no contamination
associated with the use of such tanks exists on any of the Property that is not
in compliance with applicable Environmental Laws.
(v) Each Loan Party and each Subsidiary of any Loan
Party has all material permits, licenses, authorizations, plans and approvals
necessary under the Environmental Laws for the conduct of the business of such
Loan Party or Subsidiary as presently conducted. Each Loan Party and each
Subsidiary of any Loan Party has submitted all material notices, reports and
other filings required by the Environmental Laws to be submitted to an Official
Body which pertain to past and current operations on any of the Property.
(vi) All past and present on-site generation, storage,
processing, treatment, recycling, reclamation, disposal or other use or
management of Regulated Substances at, on, or under any of the Property and all
off-site transportation, storage, processing, treatment, recycling, reclamation,
disposal or other use or management of Regulated Substances have been done in
compliance with the Environmental Laws.
6.2 UPDATES TO SCHEDULES.
Should any of the information or disclosures provided on any of
the Schedules attached hereto become outdated or incorrect in any material
respect, the Borrower shall promptly provide the Agent in writing with such
revisions or updates to such Schedule as may be necessary or appropriate to
update or correct same; PROVIDED, however, that no Schedule shall be deemed to
have been amended, modified or superseded by any such correction or update, nor
shall any breach of warranty or representation resulting from the inaccuracy or
incompleteness of any such Schedule be deemed to have been cured thereby, unless
and until the Required Banks, in their absolute discretion exercised in good
faith, shall have accepted in writing such revisions or updates to such
Schedule.
7. CONDITIONS OF LENDING
The obligation of each Bank to make Loans and of the Agent to issue
Letters of Credit hereunder is subject to the performance by each of the Loan
Parties of its Obligations to be performed hereunder at or prior to the making
of any such Loans or issuance of such Letters of Credit and to the satisfaction
of the following further conditions:
7.1 FIRST LOANS.
On the Closing Date:
<PAGE>
7.1.1 OFFICER'S CERTIFICATE.
The representations and warranties of each of the Loan Parties
contained in Section 6 and in each of the other Loan Documents shall be true and
accurate on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein), and each of the Loan Parties shall
have performed and complied with all covenants and conditions hereof and
thereof, which shall include certification of the condition set forth in Section
7.1.14, no Event of Default or Potential Default shall have occurred and be
continuing or shall exist; and there shall be delivered to the Agent for the
benefit of each Bank a certificate of each of the Loan Parties, dated the
Closing Date and signed by the Chief Executive Officer, President or Chief
Financial Officer of each of the Loan Parties, to each such effect.
7.1.2 SECRETARY'S CERTIFICATE.
There shall be delivered to the Agent for the benefit of each
Bank a certificate dated the Closing Date and signed by the Secretary or an
Assistant Secretary of each of the Loan Parties, certifying as appropriate as
to:
(i) all action taken by such Loan Party in connection
with this Agreement and the other Loan Documents;
(ii) the names of the officer or officers authorized to
sign this Agreement and the other Loan Documents and the true signatures of such
officer or officers and specifying the Authorized Officers permitted to act on
behalf of such Loan Party for purposes of this Agreement and the true signatures
of such officers, on which the Agent and each Bank may conclusively rely;
(iii) the Certificate of Incorporation, as amended, of
the Borrower, certified by the Secretary of State of the State of Delaware, as
in effect on the Closing Date;
(iv) the Certificate of Incorporation, as amended, of
GEMS, certified by the Secretary of State of the State of Delaware, as in effect
on the Closing Date;
(v) the Articles of Incorporation of Grubb & Ellis
Management Services of Colorado, Inc., certified by the Secretary of State of
the State of Colorado, as in effect on the Closing Date;
(vi) a certificate or certificates of the Borrower and
the Loan Parties to the effect that, except as evidenced by the documents
provided pursuant to subsections (iii), (iv) and (v) hereof, each Loan Party's
organizational documents, including its certificate of incorporation, bylaws,
certificate of limited partnership, partnership agreement, certificate of
formation, and limited liability company agreement have not changed from the
documents provided to PNC Bank on the Prior Closing Date and remain in full
force and effect, and each Loan Party continues in existence and is in good
<PAGE>
standing in each state where organized and qualified to do business as requested
by the Agent with respect to the Prior Closing Date.
7.1.3 DELIVERY OF LOAN DOCUMENTS.
The Collateral Assignment, Guaranty Agreement, Indemnity, Notes,
Trademark Security Agreement, Pledge Agreement, Intercompany Subordination
Agreement and Security Agreement shall have been duly executed and delivered to
the Agent for the benefit of the Banks, together with all appropriate financing
statements and appropriate stock powers and certificates evidencing the Shares,
the Partnership Interests and the LLC Interests.
7.1.4 OPINION OF COUNSEL.
There shall be delivered to the Agent for the benefit of each
Bank a written opinion of Latham & Watkins and Carol M. Vanairsdale, counsel for
the Loan Parties (who may rely on the opinions of such other counsel as may be
acceptable to the Agent), dated the Closing Date and in form and substance
satisfactory to the Agent and its counsel:
(i) as to the matters set forth in EXHIBIT 7.1.4; and
(ii) as to such other matters incident to the
transactions contemplated herein as the Agent may reasonably request.
7.1.5 LEGAL DETAILS.
All legal details and proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be in form and substance satisfactory to the Agent and counsel for the Agent,
and the Agent shall have received all such other counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the Agent and said
counsel, as the Agent or said counsel may reasonably request.
7.1.6 PAYMENT OF FEES.
The Borrower shall have paid or caused to be paid to the Agent
for itself and the account of the Banks to the extent not previously paid the
Facility Fee, all other commitment and other fees accrued through the Closing
Date and the costs and expenses for which the Agent is entitled to be
reimbursed.
7.1.7 CONSENTS.
All material consents required to effectuate the transactions
contemplated hereby as set forth on SCHEDULE 6.1.13 shall have been obtained.
<PAGE>
7.1.8 OFFICER'S CERTIFICATE REGARDING MACS.
Since June 30, 1997 no Material Adverse Change shall have
occurred; prior to the Closing Date, there shall have been no material change in
the management of any Loan Party or Subsidiary of any Loan Party; and there
shall have been delivered to the Agent for the benefit of each Bank a
certificate dated the Closing Date and signed by the Chief Executive Officer,
President or Chief Financial Officer of each Loan Party to each such effect.
7.1.9 NO VIOLATION OF LAWS.
The making of the Loans and the issuance of the Letters of Credit
shall not contravene any Law applicable to any Loan Party or any of the Banks.
7.1.10 NO ACTIONS OR PROCEEDINGS.
No action, proceeding, investigation, regulation or legislation
shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, this Agreement, the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby or which, in the
Agent's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents.
7.1.11 INSURANCE POLICIES; CERTIFICATES OF INSURANCE;
ENDORSEMENTS.
The Loan Parties shall have delivered evidence acceptable to the
Agent that adequate insurance in compliance with Section 8.1.3 is in full force
and effect and that all premiums then due thereon have been paid, together with
a certified copy of each Loan Party's casualty insurance policy or policies
evidencing coverage satisfactory to the Agent, with additional insured and
lender loss payable special endorsements attached thereto in form and substance
satisfactory to the Agent and its counsel naming the Agent as additional insured
and lender loss payee.
7.1.12 FILING RECEIPTS.
The Agent shall have received (i) copies of all filing receipts
and acknowledgments issued by any governmental authority to evidence any
recordation or filing necessary to perfect the Lien of the Banks on the
Collateral or other satisfactory evidence of such recordation and filing and
(ii) evidence in a form acceptable to the Agent that such Lien constitutes a
Prior Security Interest in favor of the Banks.
7.2 EACH ADDITIONAL LOAN.
At the time of making any Loans or issuing any Letters of Credit other
than Loans made or Letters of Credit issued on the Closing Date and after giving
effect to the proposed
<PAGE>
extensions of credit: the representations and warranties of the Loan Parties
contained in Section 6 and in the other Loan Documents shall be true on and as
of the date of such additional Loan or Letter of Credit with the same effect as
though such representations and warranties had been made on and as of such date
(except representations and warranties which expressly relate solely to an
earlier date or time, which representations and warranties shall be true and
correct on and as of the specific dates or times referred to therein) and the
Loan Parties shall have performed and complied with all covenants and conditions
hereof; no Event of Default or Potential Default shall have occurred and be
continuing or shall exist; the making of the Loans or issuance of such Letter of
Credit shall not contravene any Law applicable to any Loan Party or any of the
Banks; and the Borrower shall have delivered to the Agent a duly executed and
completed Loan Request or application for a Letter of Credit as the case may be.
8. COVENANTS
8.1 AFFIRMATIVE COVENANTS.
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations and Letter of Credit
Borrowings, and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Loan Parties' other Obligations and
termination of the Commitments, the Loan Parties shall comply at all times with
the following affirmative covenants:
8.1.1 PRESERVATION OF EXISTENCE, ETC.
Each Loan Party shall maintain its legal existence as a
corporation, limited partnership or limited liability company and its license or
qualification and good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such license or
qualification necessary, except as otherwise expressly permitted in
Section 8.2.6 or when the failure to do so would not result in a Material
Adverse Change.
8.1.2 PAYMENT OF LIABILITIES, INCLUDING TAXES, ETC.
Each Loan Party shall duly pay and discharge all liabilities to
which it is subject or which are asserted against it, promptly as and when the
same shall become due and payable, including all taxes, assessments and
governmental charges upon it or any of its properties, assets, income or
profits, prior to the date on which penalties attach thereto, except to the
extent that such liabilities, including taxes, assessments or charges, are being
contested in good faith and by appropriate and lawful proceedings diligently
conducted and for which such reserve or other appropriate provisions, if any, as
shall be required by GAAP shall have been made, but only to the extent that
failure to discharge any such liabilities would not result in any additional
liability which would adversely affect to a material extent the financial
condition of any Loan Party or which would adversely affect the Collateral,
PROVIDED that the Loan Parties and
<PAGE>
their Subsidiaries will pay all such liabilities forthwith upon the commencement
of proceedings to foreclose any Lien which may have attached as security
therefor.
8.1.3 MAINTENANCE OF INSURANCE.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, insure its material properties and material assets against loss or damage by
fire and such other insurable hazards as such assets are commonly insured
(including fire, extended coverage, property damage, workers' compensation,
public liability and business interruption insurance) and against other risks
(including errors and omissions) in such amounts as similar properties and
assets are insured by prudent companies in similar circumstances carrying on
similar businesses, and with reputable and financially sound insurers, including
self-insurance to the extent customary. At the request of the Agent, the Loan
Parties shall deliver to the Agent and each of the Banks (x) on the Closing Date
and annually thereafter if requested by the Agent or any Bank an original
certificate of insurance signed by the Loan Parties' independent insurance
broker describing and certifying as to the existence of the insurance on the
Collateral required to be maintained by this Agreement and the other Loan
Documents, together with a copy of the endorsement described in the next
sentence attached to such certificate and (y) from time to time a summary
schedule indicating all insurance then in force with respect to each of the Loan
Parties. Such policies of insurance shall contain special endorsements, in form
and substance acceptable to the Agent, which shall specify the Agent as an
additional insured and lender loss payee as its interests may appear.
8.1.4 MAINTENANCE OF PROPERTIES AND LEASES.
Each Loan Party shall maintain in good repair, working order and
condition (ordinary wear and tear excepted) in accordance with the general
practice of other businesses of similar character and size, all of those
properties necessary to its business, and from time to time, such Loan Party
will make or cause to be made all appropriate material repairs, renewals or
replacements thereof.
8.1.5 MAINTENANCE OF PATENTS, TRADEMARKS, ETC.
Each Loan Party shall maintain in full force and effect all
patents, trademarks, service marks, trade names, copyrights, licenses,
franchises, permits and other authorizations necessary for the ownership and
operation of its properties and business if the failure so to maintain the same
would constitute a Material Adverse Change.
8.1.6 VISITATION RIGHTS.
Each Loan Party shall permit any of the officers or authorized
employees or representatives of the Agent or any of the Banks to visit and
inspect any of its properties and to examine and make excerpts from its books
and records and discuss its business affairs, finances and accounts with its
officers, all in such detail and at such times and as often as any of the Banks
may reasonably request, PROVIDED that each Bank shall provide the Borrower and
the Agent with
<PAGE>
reasonable notice prior to any visit or inspection. In the event any Bank
desires to visit and inspect any Loan Party, such Bank shall make a reasonable
effort to conduct such visitation and inspection contemporaneously with any
visitation and inspection to be performed by the Agent.
8.1.7 KEEPING OF RECORDS AND BOOKS OF ACCOUNT.
The Borrower shall, and shall cause each Subsidiary of the
Borrower to, maintain and keep proper books of record and account which enable
the Borrower and its Subsidiaries to issue financial statements in accordance
with GAAP and as otherwise required by applicable Laws of any Official Body
having jurisdiction over the Borrower or any Subsidiary of the Borrower, and in
which full, true and correct entries shall be made in all material respects of
all its dealings and business and financial affairs.
8.1.8 PLANS AND BENEFIT ARRANGEMENTS.
The Borrower shall, and shall cause each other member of the
ERISA Group to, comply with ERISA, the Internal Revenue Code and other
applicable Laws applicable to Plans and Benefit Arrangements except where such
failure, alone or in conjunction with any other failure, would not result in a
Material Adverse Change. Without limiting the generality of the foregoing, the
Borrower shall cause all of its Plans and all Plans maintained by any member of
the ERISA Group to be funded in accordance with the minimum funding requirements
of ERISA and shall make, and cause each member of the ERISA Group to make, in a
timely manner, all contributions due to Plans, Benefit Arrangements and
Multiemployer Plans except where such failure, alone or in conjunction with any
other failure, would not result in a Material Adverse Change.
8.1.9 COMPLIANCE WITH LAWS.
Each Loan Party shall, and shall cause each of its Subsidiaries
to, comply with all applicable Laws, including all Environmental Laws, in all
respects, PROVIDED that it shall not be deemed to be a violation of this
Section 8.1.9 if any failure to comply with any Law would not result in fines,
penalties, remediation costs, other similar liabilities or injunctive relief
which in the aggregate would constitute a Material Adverse Change.
8.1.10 USE OF PROCEEDS.
8.1.10.1 GENERAL.
The Loan Parties will use the Letters of Credit and the proceeds
of the Loans only (i) to finance Permitted Acquisitions or (ii) for general
corporate purposes and for working capital, provided however, that not more than
$15,000,000 aggregate outstanding principal balance of Loans will be used to
finance general corporate purposes and for working capital.. The Loan Parties
shall not use the Letters of Credit and the proceeds of the Loans for any
purpose which contravenes any applicable Law or any provision hereof.
<PAGE>
8.1.10.2 MARGIN STOCK.
The Loan Parties shall not use the proceeds of the Loans to
purchase margin stock as more fully provided in Section 6.1.10.
8.1.10.3 SECTION 20 SUBSIDIARIES.
The Loan Parties will not, directly or indirectly, use any
portion of the proceeds of the Loans (i) knowingly to purchase any Ineligible
Securities from a Section 20 Subsidiary during any period in which such
Section 20 Subsidiary makes a market in such Ineligible Securities,
(ii) knowingly to purchase during the underwriting or placement period
Ineligible Securities being underwritten or privately placed by a Section 20
Subsidiary, or (iii) to make payments of principal or interest on Ineligible
Securities underwritten or privately placed by a Section 20 Subsidiary and
issued by or for the benefit of any Loan Party or any Affiliate of any Loan
Party.
8.1.11 FURTHER ASSURANCES.
Each Loan Party shall, from time to time, at its expense,
faithfully preserve and protect the Agent's Lien on and Prior Security Interest
in the Collateral as a continuing first priority perfected Lien, subject only to
Permitted Liens, and shall do such other acts and things as the Agent in its
sole discretion exercised in good faith may deem necessary or advisable from
time to time in order to preserve, perfect and protect the Liens granted under
the Loan Documents and to exercise and enforce its rights and remedies
thereunder with respect to the Collateral.
8.1.12 SUBORDINATION OF INTERCOMPANY LOANS.
Each Loan Party shall cause any intercompany Indebtedness, loans
or advances owed by any Loan Party to any other Loan Party to be subordinated
pursuant to the terms of the Intercompany Subordination Agreement.
8.1.13 LIEN TERMINATIONS.
The Loan Parties shall within 120 days after the Closing Date
cause the collateral granted to Orix Credit Alliance, Inc. to be limited only to
the specific property financed by said lender, and until such release of
collateral and release or termination of the corresponding financing statements,
the aggregate indebtedness owed by the Loan Parties to said lender shall not
exceed $5,000.
8.2 NEGATIVE COVENANTS.
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations and Letter of Credit
Borrowings and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Loan Parties'
<PAGE>
other Obligations and termination of the Commitments, the Loan Parties shall
comply with the following negative covenants:
8.2.1 INDEBTEDNESS.
Each of the Loan Parties shall not at any time create, incur,
assume or suffer to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness set forth on SCHEDULE 8.2.1
(including any extensions, renewals or refinancings thereof), PROVIDED there is
no increase in the amount thereof or other significant change in the terms
thereof unless otherwise specified on SCHEDULE 8.2.1;
(iii) other Indebtedness (including, without limitation,
Indebtedness secured by Purchase Money Security Interests, Indebtedness incurred
pursuant to capitalized leases and Acquisition Indebtedness permitted under
Section 8.2.6 (2), when any portion of such Acquisition Indebtedness is
scheduled for payment more than two years after the date of the Permitted
Acquisition), but excluding Earn-Out Consideration and Acquisition Indebtedness
when all such Acquisition Indebtedness is due within two years of the date of
the Permitted Acquisition, provided that the aggregate amount of all such
Indebtedness does not exceed $10,000,000 at any one time outstanding, and
provided further that all Acquisition Indebtedness shall be unsecured
Indebtedness and shall be subordinated to the Obligations on terms and
conditions acceptable to the Required Banks in their absolute discretion;
(iv) Indebtedness in the form of Earn-Out Consideration
provided that all Earn-Out Consideration shall be unsecured Indebtedness and
shall be subordinated to the Obligations on terms and conditions acceptable to
the Required Banks in their absolute discretion;
(v) Interest Rate Protection Agreements permitted
under Section 8.2.15;
(vi) Indebtedness of a Loan Party to another Loan Party
which is subordinated in accordance with the provisions of Section 8.1.12; and
(vii) Guaranties not prohibited under the terms of
Section 8.2.3 hereof.
8.2.2 LIENS.
Each of the Loan Parties shall not at any time create, incur,
assume or suffer to exist any Lien on any of its property or assets, tangible or
intangible, now owned or hereafter acquired, or agree or become liable to do so,
except Permitted Liens.
<PAGE>
8.2.3 GUARANTIES.
Each of the Loan Parties shall not at any time, directly or
indirectly, become or be liable in respect of any Guaranty, or assume,
guarantee, become surety for, endorse or otherwise agree, become or remain
directly or contingently liable upon or with respect to any obligation or
liability of any other Person, except for (i) Guaranties of Indebtedness of the
Loan Parties permitted under Section 8.2.1, (ii) Guaranties set forth on
Schedule 8.2.3, (iii) Guaranties in connection with indemnity programs for
employees and/or agents, (iv) Guaranties in connection with indemnification
provided in the organizational documents of one or more Loan Parties; (v)
indemnification granted by the Loan Parties in the ordinary course of business
and usual and customary for companies engaged in the businesses described in
Section 8.2.10 and of the size of the Borrower and its Subsidiaries, as well as
Guaranties by the Borrower of such indemnification granted by other Loan
Parties, and (vi) Guaranties of loans and advances made to employees and/or
agents pursuant to the Commission Advance Program or on account of errors and
omissions insurance programs, provided that after giving effect thereto the
aggregate amount of such guarantees plus the aggregate amount of the loans and
advances permitted pursuant to Section 8.2.4(vi) shall not exceed $5,000,000 at
any one time outstanding.
8.2.4 LOANS AND INVESTMENTS.
Each of the Loan Parties shall not at any time make or suffer to
remain outstanding any loan or advance to, or purchase, acquire or own any
stock, bonds, notes or securities of, or any partnership interest (whether
general or limited) or limited liability company interest in, or any other
investment or interest in, or make any capital contribution to, any other
Person, or agree, become or remain liable to do any of the foregoing, except:
(i) trade credit extended on usual and customary terms
in the ordinary course of business;
(ii) advances to employees and agents to meet expenses
incurred by such employees and agents in the ordinary course of business;
(iii) Permitted Investments;
(iv) loans, advances and investments in and/or to other
Loan Parties;
(v) loans, advances and investments described on
Schedule 8.2.4;
(vi) loans or other advances under the Commission
Advance Program to, or on account of errors and omissions insurance premium
payments for, employees and/or agents provided that the aggregate principal
amount of all such loans or advances plus the aggregate amount of all guarantees
permitted pursuant to Section 8.2.3(vi) shall not exceed $5,000,000 outstanding
at any one time;
(vii) acquisitions of equity securities of a Loan Party;
and
<PAGE>
(viii) loans and advances to employees to assist with
relocation and similar costs and expenses no greater than $500,000 at any time
outstanding.
8.2.5 DIVIDENDS AND RELATED DISTRIBUTIONS.
Each of the Loan Parties shall not make or pay any dividend or
other distribution of any nature (whether in cash, property, securities or
otherwise) on account of or in respect of its shares of capital stock,
partnership interests or limited liability company interests on account of the
purchase, redemption, retirement or acquisition of its shares of capital stock
(or warrants, options or rights therefor), partnership interests or limited
liability company interests, except dividends or other distributions payable to
another Loan Party.
8.2.6 LIQUIDATIONS, MERGERS, CONSOLIDATIONS, ACQUISITIONS.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a
party to any merger or consolidation, or acquire by purchase, lease or otherwise
all or substantially all of the assets or capital stock of any other Person,
PROVIDED that
(1) upon prior written notice to the Agent, any Loan Party other
than the Borrower and GEMS may consolidate with or merge into or convey
substantially all of its assets to the Borrower or another Loan Party which is
wholly-owned by one or more of the other Loan Parties, and
(2) the Borrower or GEMS may acquire, whether by purchase or by
merger, (A) all of the ownership interests of another Person or (B) all or
substantially all of the assets of another Person or of a business or division
of another Person (each a "Permitted Acquisition"), PROVIDED that each of the
following requirements is met:
(i) the Ratio of Consolidated Funded Indebtedness plus
the maximum amount of Earn-Out Consideration for which to Loan Parties may
become liable to Annual Adjusted Consolidated Cash Flow from Operations, both
immediately prior to the consummation of the acquisition and after giving effect
to the consummation of the acquisition (the latter being calculated on a pro
forma basis, including giving effect to any Acquisition Indebtedness), shall be
less than 2.0 to 1.0, unless compliance with such ratio in connection with the
acquisition is waived in writing by the Required Banks;
(ii) if the Borrower or GEMS are acquiring the
ownership interests in such Person, such Person shall be a corporation, limited
liability company or other entity with respect to which applicable state law
provides that the owners of all stock or other ownership interests in such
entity shall not be liable for any obligations of such entity or for the claims
of any creditors thereof;
(iii) if the Borrower or GEMS are acquiring the
ownership interests in such Person, such Person shall execute the Guarantor
Joinder in the form of Exhibit
<PAGE>
1.1(G)(1) hereto and join this Agreement as a Guarantor pursuant to
Section 11.17 and such Person and its owners shall grant Liens in the assets and
stock or other ownership interests in such Person and otherwise comply with
Section 11.17 on or before the date of such Permitted Acquisition;
(iv) the board of directors or other equivalent
governing body of such Person shall have approved such Permitted Acquisition;
(v) the business acquired, or the business conducted
by the Person whose ownership interests are being acquired, as applicable, shall
be substantially the same as one or more line or lines of business conducted by
the Loan Parties and shall comply with Section 8.2.10; and
(vi) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Permitted
Acquisition.
8.2.7 DISPOSITIONS OF ASSETS OR SUBSIDIARIES.
Each of the Loan Parties shall not sell, convey, assign, lease,
abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any
of its properties or assets, tangible or intangible (including sale, assignment,
discount or other disposition of accounts, contract rights, chattel paper,
equipment or general intangibles with or without recourse or of capital stock,
shares of beneficial interest, partnership interests or limited liability
company interests of a Subsidiary of such Loan Party), except:
(i) any sale, transfer or lease of assets in the
ordinary course of business which are no longer necessary or required in the
conduct of such Loan Party's or such Subsidiary's business;
(ii) any sale, transfer or lease of assets by a Loan
Party to another Loan Party;
(iii) any sale, transfer or lease of assets in the
ordinary course of business which are replaced by substitute assets acquired or
leased under usual and customary terms in the ordinary course of business,
PROVIDED such substitute assets are subject to the Agent's Prior Security
Interest;
(iv) any sale, transfer or lease of assets, other than
those specifically excepted pursuant to clauses (i) through (iv) above, so long
as in the case of dispositions when the net after-tax proceeds (as reasonably
estimated by the Borrower) are greater than $1,000,000, the net after-tax
proceeds are applied as a mandatory repayment of the Loans and a reduction of
the Commitments in accordance with the provisions of Section 5.5.1 above;
(v) any sale or transfer of the interests of the Loan
Parties in the Existing Partnerships; or
(vi) any sale or transfer of Restricted Investments,
provided however, that the net proceeds of such sale are applied as either (i) a
mandatory repayment of the Loans or (ii) subject to Section 8.2.9, are further
invested in Permitted Investments of the Loan Parties.
<PAGE>
8.2.8 AFFILIATE TRANSACTIONS.
Each of the Loan Parties shall not enter into or carry out any
transaction (including purchasing property or services from or selling property
or services to any Affiliate of any Loan Party or other Person) unless such
transaction is not otherwise prohibited by this Agreement, is entered into in
the ordinary course of business upon fair and reasonable arm's-length terms and
conditions which in the case of a material transaction are fully disclosed to
the Agent and is in accordance with all applicable Law.
8.2.9 SUBSIDIARIES, PARTNERSHIPS, JOINT VENTURES AND
RESTRICTED INVESTMENTS.
Each of the Loan Parties shall not, own or create directly or
indirectly any Subsidiaries other than (i) any Subsidiary which has joined this
Agreement as a Guarantor on the Closing Date and those set forth on Schedule
6.1.3; and (ii) any Subsidiary formed after the Closing Date which joins this
Agreement as a Guarantor pursuant to Section 11.17, provided that the Required
Banks shall have consented to such formation and joinder and that such
Subsidiary and the Loan Parties, as applicable, shall grant a Prior Security
Interest to the Agent in the assets held by, and stock of or other ownership
interests in, such Subsidiary. Each of the Loan Parties shall not become or
agree to (1) become a general or limited partner in any general or limited
partnership, except that the Loan Parties may be general or limited partners in
other Loan Parties, (2) become a member or manager of, or hold a limited
liability company interest in, a limited liability company, except that the Loan
Parties may be members or managers of, or hold limited liability company
interests in, other Loan Parties, (3) become a joint venturer or hold a joint
venture interest in any joint venture, or (4) make any other investments
(exclusive of Permitted Investments) in any Person. Notwithstanding anything in
this Section 8.2.9 above, any Loan Party may (1) become a general or limited
partner in any general or limited partnership (2) become a member or manager of,
or hold a limited liability company interest in, a limited liability company,
(3) become a joint venturer or hold a joint venture interest in any joint
venture, or (4) make equity investments in real estate portfolios and Persons
which own or manage commercial real estate (each a "Restricted Investment"),
provided that each of the following requirements is met:
(i) the Ratio of Consolidated Funded Indebtedness plus
the maximum amount of Earn-Out Consideration for which the Loan Parties may
become liable to Annual Adjusted Consolidated Cash Flow from Operations, both
immediately prior to the consummation of the investment and after giving effect
to the consummation of the investment (the latter being calculated on a pro
forma basis, including giving effect to any Restricted Investment), shall be
less than 2.0 to 1.0, unless compliance with such ratio in connection with the
investment is waived in writing by the Required Banks;
(ii) the Loan Party making the investment shall, to the
extent permitted by the applicable investment contracts and other documents
relating to such investment,
<PAGE>
grant and cause to be perfected as a Prior Security Interest or other first lien
position the Loan Party's interest in the property of the Loan Party
constituting the Restricted Investment;
(iii) the nature of the investment and the Person or
property subject to the investment shall not result in the Loan Party becoming
directly or contingently liable for any obligations of such Person or related to
such property in excess of the amount of the investment, nor shall the
investment constitute a direct investment by the Loan Party in real property or
real property improvements;
(iv) no Potential Default or Event of Default shall
exist immediately prior to and after giving effect to such Restricted
Investment; and
(v) at the time of the consummation of the Restricted
Investment and after giving effect thereto, the aggregate amount of all
Restricted Investments made by the Loan Parties (other than investments in one
or more Loan Parties) shall not exceed the lesser of (i) ten percent (10%) of
the Consolidated Net Worth of the Borrower, or (ii) $10,000,000.
The calculation of the aggregate amount of Restricted Investments in (v) above
shall be based upon the purchase price paid by the Loan Parties for each
Permitted Investment which is still owned by the Loan Parties at the time of
such additional Restricted Investment. In the case of any partial dispositions
of Restricted Investments by the Loan Parties, the purchase price shall be
reduced pro-rata based upon the portion of the Restricted Investment which is
transferred by the Loan Parties.
8.2.10 CONTINUATION OF OR CHANGE IN BUSINESS.
Each of the Loan Parties shall not engage in any business other
than real estate property, facilities and asset management, real estate
brokerage services, mortgage brokerage services, appraisal, corporate real
estate consulting and mortgage banking and other fee based real estate related
services, substantially as conducted and operated by such Loan Party or
Subsidiary during the present fiscal year, and investments in real estate
portfolios and Persons which own or manage commercial real estate with the
objective of securing real estate services business, and such Loan Party or
Subsidiary shall not permit any material change in such business, provided
however, any real estate brokerage services businesses acquired pursuant to
Section 8.2.6 shall be strategic and/or ancillary acquisitions made to benefit
the other service businesses conducted by the Loan Parties.
8.2.11 PLANS AND BENEFIT ARRANGEMENTS.
Each of the Loan Parties shall not, and shall not permit any of
its Subsidiaries to:
<PAGE>
(i) fail to satisfy the minimum funding requirements
of ERISA and the Internal Revenue Code with respect to any Plan;
(ii) request a minimum funding waiver from the Internal
Revenue Service with respect to any Plan;
(iii) engage in a Prohibited Transaction with any Plan,
Benefit Arrangement or Multiemployer Plan which, alone or in conjunction with
any other circumstances or set of circumstances resulting in liability under
ERISA, would constitute a Material Adverse Change;
(iv) permit the aggregate actuarial present value of
all benefit liabilities (whether or not vested) under each Plan, determined on a
plan termination basis, as disclosed in the most recent actuarial report
completed with respect to such Plan, to exceed, as of any actuarial valuation
date, the fair market value of the assets of such Plan;
(v) fail to make when due any contribution to any
Multiemployer Plan that the Borrower or any member of the ERISA Group may be
required to make under any agreement relating to such Multiemployer Plan, or any
Law pertaining thereto;
(vi) withdraw (completely or partially) from any
Multiemployer Plan or withdraw (or be deemed under Section 4062(e) of ERISA to
withdraw) from any Multiple Employer Plan, where any such withdrawal is likely
to result in a material liability of the Borrower or any member of the ERISA
Group;
(vii) terminate, or institute proceedings to terminate,
any Plan, where such termination is likely to result in a material liability to
the Borrower or any member of the ERISA Group;
(viii) make any amendment to any Plan with respect to
which security is required under Section 307 of ERISA; or
(ix) fail to give any and all notices and make all
disclosures and governmental filings required under ERISA or the Internal
Revenue Code, where such failure is likely to result in a Material Adverse
Change.
8.2.12 FISCAL YEAR.
The Borrower shall not, and shall not permit any Subsidiary of
the Borrower to, change its fiscal year from the twelve-month period beginning
July 1 and ending June 30, provided however, that upon 15 days prior written
notice, the Borrower or any Subsidiary may change its fiscal year so that it
begins on January 1 and ends on December 31.
8.2.13 ISSUANCE OF STOCK.
Each of the Guarantors shall not issue any additional shares of
its capital stock or any options, warrants or other rights in respect thereof.
The Borrower shall not issue any shares of preferred stock unless such stock is
not subject to redemption and limits the rights
<PAGE>
of preferred stockholders for the non-payment of dividends to the payment of all
cumulative dividends prior to the payment of any dividend or distribution on, or
the redemption of, any common stock.
8.2.14 CHANGES IN ORGANIZATIONAL DOCUMENTS.
Each of the Loan Parties shall not amend in any respect its
certificate of incorporation (including any provisions or resolutions relating
to capital stock), by-laws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents without providing at least thirty (30) calendar
days' prior written notice to the Agent and, in the event such change would be
adverse to the Banks as determined by the Agent in its sole discretion,
obtaining the prior written consent of the Required Banks.
8.2.15 INTEREST RATE PROTECTION.
The Loan Parties shall not enter into any interest rate
protection agreement (the "Interest Rate Protection Agreement") without the
prior written consent of the Agent, which consent shall not be unreasonably
withheld. Any Interest Rate Protection Agreement shall be with a financial
institution acceptable to the Agent and contain such terms and conditions as
shall be acceptable to the Agent. Documentation for the Interest Rate
Protection Agreement shall be in a standard International Swap Dealer
Association Agreement or such other form as is acceptable to the Agent and shall
provide for the method of calculating the reimbursable amount of the provider's
credit exposure in a reasonable and customary manner.
8.2.16 MAXIMUM DEBT TO CASH FLOW RATIO.
The Loan Parties shall not permit the ratio of Consolidated
Funded Indebtedness plus the maximum amount of Earn-Out Consideration for which
to Loan Parties may become liable to Annual Adjusted Consolidated Cash Flow from
Operations, as measured at the end of each fiscal quarter of the Borrower, to
exceed the amounts set forth below at the relevant time of measurement:
(i) December 31, 1997 through December 31, 1998 --
3.00 to 1.00;
(ii) March 31, 1999 through December 31, 1999 --
2.75 to 1.00; and
(iii) March 31, 2000 and thereafter -- 2.50 to 1.00.
8.3 REPORTING REQUIREMENTS.
The Loan Parties, jointly and severally, covenant and agree that
until payment in full of the Loans, Reimbursement Obligations and Letter of
Credit Borrowings and interest thereon, expiration or termination of all Letters
of Credit, satisfaction of all of the Loan
<PAGE>
Parties' other Obligations and termination of the Commitments, the Loan Parties
will furnish or cause to be furnished to the Agent and/or the Banks, as the case
may be, the financial statements, certificates, notices, budgets, forecasts,
reports and other information set forth in Schedule 8.3 within the time frames
and as described in Schedule 8.3.
9. DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall mean the occurrence or existence of any one
or more of the following events or conditions (whatever the reason therefor and
whether voluntary, involuntary or effected by operation of Law):
9.1.1 PAYMENTS UNDER LOAN DOCUMENTS.
The Borrower shall fail to pay any principal of any Loan
(including mandatory repayments or the payment due at maturity), Reimbursement
Obligation or Letter of Credit Borrowing when due or shall fail to pay any
interest on any Loan, Reimbursement Obligation or Letter of Credit Borrowing or
shall fail to pay any other amount (other than principal) owing hereunder or
under the other Loan Documents within five (5) days after such interest or other
amount becomes due in accordance with the terms hereof or thereof;
9.1.2 BREACH OF WARRANTY.
Any representation or warranty made at any time by any of the
Loan Parties herein or by any of the Loan Parties in any other Loan Document, or
in any certificate, other instrument or statement furnished pursuant to the
provisions hereof or thereof, shall prove to have been false or misleading in
any material respect as of the time it was made or furnished;
9.1.3 BREACH OF NEGATIVE COVENANTS OR VISITATION RIGHTS.
Any of the Loan Parties shall default in the observance or
performance of any covenant contained in Section 8.1.6 or Section 8.2;
9.1.4 BREACH OF OTHER COVENANTS.
Any of the Loan Parties shall default in the observance or
performance of any other covenant, condition or provision hereof or of any other
Loan Document and such default shall continue unremedied for a period of ten
(10) Business Days after any officer of any Loan Party becomes aware of the
occurrence of such default (such grace period to be applicable only in the event
such default can be remedied by corrective action of the Loan Parties as
determined by the Agent in its sole discretion);
<PAGE>
9.1.5 DEFAULTS IN OTHER AGREEMENTS OR INDEBTEDNESS.
A default or event of default shall occur at any time under the
terms of any other agreement involving borrowed money or the extension of credit
or any other Indebtedness under which any Loan Party may be obligated as a
borrower or guarantor in excess of $1,000,000 in the aggregate, and such breach,
default or event of default consists of the failure to pay (beyond any period of
grace permitted with respect thereto, whether waived or not) any indebtedness
when due (whether at stated maturity, by acceleration or otherwise) or if such
breach or default permits or causes the acceleration of any indebtedness
(whether or not such right shall have been waived) or the termination of any
commitment to lend;
9.1.6 FINAL JUDGMENTS OR ORDERS.
Any final judgments or orders for the payment of money in excess
of $1,000,000 in the aggregate shall be entered against any Loan Party by a
court having jurisdiction in the premises, which judgment is not discharged,
vacated, bonded or stayed pending appeal within a period of thirty (30) days
from the date of entry;
9.1.7 LOAN DOCUMENT UNENFORCEABLE.
Any of the Loan Documents shall cease to be legal, valid and
binding agreements enforceable against the Loan Party executing the same or such
Loan Party's successors and assigns (as permitted under the Loan Documents) in
accordance with the respective terms thereof or shall in any way be terminated
(except in accordance with its terms) or become or be declared ineffective or
inoperative or shall in any way be challenged or contested or cease to give or
provide the respective Liens, security interests, rights, titles, interests,
remedies, powers or privileges intended to be created thereby;
9.1.8 UNINSURED LOSSES; PROCEEDINGS AGAINST ASSETS;
ENVIRONMENTAL LIABILITY.
There shall occur any material uninsured damage to or loss, theft
or destruction of any of the Collateral in excess of $2,000,000, or the
Collateral or any other of the Loan Parties' assets are attached, seized, levied
upon or subjected to a writ or distress warrant; or such come within the
possession of any receiver, trustee, custodian or assignee for the benefit of
creditors and the same is not cured within thirty (30) days thereafter; any Loan
Party shall become liable for a violation of Environmental Laws in an amount in
excess of $2,000,000;
9.1.9 NOTICE OF LIEN OR ASSESSMENT.
A notice of Lien or assessment in excess of $2,000,000 which is
not a Permitted Lien is filed of record with respect to all or any part of any
of the Loan Parties' assets by the United States, or any department, agency or
instrumentality thereof, or by any state, county, municipal or other
governmental agency, including the PBGC, or any taxes or debts
<PAGE>
owing at any time or times hereafter to any one of these becomes payable and the
same is not paid within thirty (30) days after the same becomes payable;
9.1.10 INSOLVENCY.
Any Loan Party ceases to be solvent or admits in writing its
inability to pay its debts as they mature;
9.1.11 EVENTS RELATING TO PLANS AND BENEFIT ARRANGEMENTS.
Any of the following occurs: (i) any Reportable Event, which the
Agent determines in good faith constitutes grounds for the termination of any
Plan by the PBGC or the appointment of a trustee to administer or liquidate any
Plan, shall have occurred and be continuing; (ii) proceedings shall have been
instituted or other action taken to terminate any Plan, or a termination notice
shall have been filed with respect to any Plan; (iii) a trustee shall be
appointed to administer or liquidate any Plan; (iv) the PBGC shall give notice
of its intent to institute proceedings to terminate any Plan or Plans or to
appoint a trustee to administer or liquidate any Plan; (v) the Borrower or any
member of the ERISA Group shall fail to make any contributions when due to a
Plan or a Multiemployer Plan; (vi) the Borrower or any other member of the ERISA
Group shall make any amendment to a Plan with respect to which security is
required under Section 307 of ERISA; (vii) the Borrower or any other member of
the ERISA Group shall withdraw completely or partially from a Multiemployer
Plan; (viii) the Borrower or any other member of the ERISA Group shall withdraw
(or shall be deemed under Section 4062(e) of ERISA to withdraw) from a Multiple
Employer Plan; or (ix) any applicable Law is adopted, changed or interpreted by
any Official Body with respect to or otherwise affecting one or more Plans,
Multiemployer Plans or Benefit Arrangements and, with respect to any of the
events specified in (i), (ii), (iii). (iv), (v), (vi), (vii), (viii) or (ix),
the Agent determines in good faith that any such occurrence would be reasonably
likely to result in a Material Adverse Change;
9.1.12 CESSATION OF BUSINESS.
Any Loan Party ceases to conduct its business as contemplated,
except as expressly permitted under Section 8.2.6 or 8.2.7, or any Loan Party is
enjoined, restrained or in any way prevented by court order from conducting all
or any material part of its business and such injunction, restraint or other
preventive order is not dismissed within thirty (30) days after the entry
thereof;
9.1.13 CHANGE OF CONTROL.
Any Change of Control shall occur;
9.1.14 INVOLUNTARY PROCEEDINGS.
A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
any Loan Party in an involuntary case
<PAGE>
under any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or similar official) of
any Loan Party for any substantial part of its property, or for the winding-up
or liquidation of its affairs, and such proceeding shall remain undismissed or
unstayed and in effect for a period of sixty (60) consecutive days or such court
shall enter a decree or order granting any of the relief sought in such
proceeding; or
9.1.15 VOLUNTARY PROCEEDINGS.
Any Loan Party shall commence a voluntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official) of itself or for any
substantial part of its property or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any action in furtherance of any of the foregoing.
9.2 CONSEQUENCES OF EVENT OF DEFAULT.
9.2.1 EVENTS OF DEFAULT OTHER THAN BANKRUPTCY, INSOLVENCY
OR REORGANIZATION PROCEEDINGS.
If an Event of Default specified under Sections 9.1.1 through
9.1.13 shall occur and be continuing, the Banks and the Agent shall be under no
further obligation to make Loans or issue Letters of Credit, as the case may be,
and the Agent may, and upon the request of the Required Banks, shall (i) declare
the unpaid principal amount of the Notes then outstanding and all interest
accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to
the Banks hereunder and thereunder to be forthwith due and payable, and the same
shall thereupon become and be immediately due and payable to the Agent for the
benefit of each Bank without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived, and (ii) require the
Borrower to, and the Borrower shall thereupon, deposit with the Agent, as cash
collateral for its Obligations under the Loan Documents, an amount equal to the
maximum amount currently or at any time thereafter available to be drawn on all
outstanding Letters of Credit, and the Borrower hereby pledges to the Agent and
the Banks and grants to the Agent and the Banks a security interest in, all such
cash as security for such Obligations. Upon the curing of all existing Events
of Default to the satisfaction of the Required Banks or upon indefeasible
payment in full of the Obligations and termination of the Commitments, the Agent
shall return such cash collateral to the Borrower; and
9.2.2 BANKRUPTCY, INSOLVENCY OR REORGANIZATION PROCEEDINGS.
If an Event of Default specified under Section 9.1.14 or 9.1.15
shall occur, the Banks shall be under no further obligations to make Loans
hereunder and the unpaid principal amount of
<PAGE>
the Notes then outstanding and all interest accrued thereon, any unpaid fees and
all other Indebtedness of the Borrower to the Banks hereunder and thereunder
shall be immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived; and
9.2.3 SET-OFF.
If an Event of Default shall occur and be continuing, any Bank to
whom any Obligations is owed by any Loan Party hereunder or under any other Loan
Document or any participant of such Bank which has agreed in writing to be bound
by the provisions of Section 10.13 shall have the right, in addition to all
other rights and remedies available to it, without notice to such Loan Party, to
set-off against and apply to the then unpaid balance of all the Loans and all
other Obligations of the Borrower and the other Loan Parties hereunder or under
any other Loan Document any debt owing to, and any other funds held in any
manner for the account of, the Borrower or such other Loan Party by such Bank or
participant, including all funds in all deposit accounts (whether time or
demand, general or special, provisionally credited or finally credited, or
otherwise) now or hereafter maintained by the Borrower or such other Loan Party
for its own account (but not including funds held in custodian or trust
accounts) with such Bank or participant. Such right shall exist whether or not
any Bank or the Agent shall have made any demand under this Agreement or any
other Loan Document, whether or not such debt owing to or funds held for the
account of the Borrower or such other Loan Party is or are matured or unmatured
and regardless of the existence or adequacy of any Collateral, Guaranty or any
other security, right or remedy available to any Bank and the Agent; and
9.2.4 SUITS, ACTIONS, PROCEEDINGS.
If an Event of Default shall occur and be continuing, and whether
or not the Agent shall have accelerated the maturity of Loans pursuant to any of
the foregoing provisions of this Section 9.2, the Agent or any Bank, if owed any
amount with respect to the Loans, may proceed to protect and enforce its rights
by suit in equity, action at law and/or other appropriate proceeding, whether
for the specific performance of any covenant or agreement contained in this
Agreement or the other Loan Documents, including as permitted by applicable Law
the obtaining of the EX PARTE appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any other legal or equitable right of the Agent or such Bank;
and
9.2.5 APPLICATION OF PROCEEDS.
From and after the date on which the Agent has taken any action
pursuant to this Section 9.2 and until all Obligations of the Loan Parties have
been paid in full, any and all proceeds received by the Agent from any sale or
other disposition of the Collateral, or any part thereof, or the exercise of any
other remedy by the Agent, shall be applied as follows:
<PAGE>
(i) first, to reimburse the Agent and the Banks for
reasonable out-of-pocket costs, expenses and disbursements, including reasonable
attorneys' and paralegals' fees and legal expenses, incurred by the Agent and
the Banks in connection with realizing on the Collateral or collection of any
Obligations of any of the Loan Parties under any of the Loan Documents,
including advances made by the Banks or any one of them or the Agent for the
reasonable maintenance, preservation, protection or enforcement of, or
realization upon, the Collateral, including advances for taxes, insurance,
repairs and the like and reasonable expenses incurred to sell or otherwise
realize on, or prepare for sale or other realization on, any of the Collateral;
(ii) second, to the repayment of all Indebtedness then
due and unpaid of the Loan Parties to the Banks incurred under this Agreement or
any of the other Loan Documents, whether of principal, interest, fees, expenses
or otherwise, in such manner as the Agent may determine in its discretion; and
(iii) the balance, if any, to the Borrower or as
otherwise required by Law.
9.2.6 OTHER RIGHTS AND REMEDIES.
In addition to all of the rights and remedies contained in this
Agreement or in any of the other Loan Documents, the Agent shall have all of the
rights and remedies of a secured party under the Uniform Commercial Code or
other applicable Law, all of which rights and remedies shall be cumulative and
non-exclusive, to the extent permitted by Law. The Agent may, and upon the
request of the Required Banks shall, exercise all post-default rights granted to
the Agent and the Banks under the Loan Documents or applicable Law.
9.3 NOTICE OF SALE.
Any notice required to be given by the Agent of a sale, lease, or
other disposition of the Collateral or any other intended action by the Agent,
if given ten (10) days prior to such proposed action, shall constitute
commercially reasonable and fair notice thereof to the Borrower.
10. THE AGENT
10.1 APPOINTMENT.
Each Bank hereby irrevocably designates, appoints and authorizes PNC
Bank to act as Agent for such Bank under this Agreement and to execute and
deliver or accept on behalf of each of the Banks the other Loan Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of a Note shall be deemed irrevocably to authorize, the Agent to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and any other instruments and agreements referred to herein, and
to exercise such powers and to perform such duties hereunder as are specifically
delegated to or required of the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. PNC Bank agrees to act as the
Agent on behalf of the Banks to the extent provided in this Agreement.
<PAGE>
10.2 DELEGATION OF DUTIES.
The Agent may perform any of its duties hereunder by or through agents
or employees (PROVIDED such delegation does not constitute a relinquishment of
its duties as Agent) and, subject to Sections 10.5 and 10.6, shall be entitled
to engage and pay for the advice or services of any attorneys, accountants or
other experts concerning all matters pertaining to its duties hereunder and to
rely upon any advice so obtained.
10.3 NATURE OF DUTIES; INDEPENDENT CREDIT INVESTIGATION.
The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Agreement except as
expressly set forth herein. Without limiting the generality of the foregoing,
the use of the term "agent" in this Agreement with reference to the Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties. Each
Bank expressly acknowledges (i) that the Agent has not made any representations
or warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of any of the Loan Parties, shall be deemed to constitute
any representation or warranty by the Agent to any Bank; (ii) that it has made
and will continue to make, without reliance upon the Agent, its own independent
investigation of the financial condition and affairs and its own appraisal of
the creditworthiness of each of the Loan Parties in connection with this
Agreement and the making and continuance of the Loans hereunder; and
(iii) except as expressly provided herein, that the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Bank
with any credit or other information with respect thereto, whether coming into
its possession before the making of any Loan or at any time or times thereafter.
10.4 ACTIONS IN DISCRETION OF AGENT; INSTRUCTIONS FROM THE BANKS.
The Agent agrees, upon the written request of the Required Banks, to
take or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein, PROVIDED that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or applicable
Law. In the absence of a request by the Required Banks, the Agent shall have
authority, in its sole discretion, to take or not to take any such action,
unless this Agreement specifically requires the consent of the Required Banks or
all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to
Section 10.6. Subject to the provisions of Section 10.6, no Bank shall have
any right of action
<PAGE>
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Banks, or
in the absence of such instructions, in the absolute discretion of the Agent.
10.5 REIMBURSEMENT AND INDEMNIFICATION OF AGENT BY THE BORROWER.
The Borrower unconditionally agrees to pay or reimburse the Agent and
hold the Agent harmless against (a) liability for the payment of all reasonable
out-of-pocket costs, expenses and disbursements, including fees and expenses of
counsel (including the allocated costs of staff counsel), appraisers (prior to
an Event of Default, not more frequently than once every twelve months) and
environmental consultants, incurred by the Agent (i) in connection with the
development, negotiation, preparation, printing, execution, administration,
interpretation and performance of this Agreement and the other Loan Documents,
(ii) relating to any requested amendments, waivers or consents pursuant to the
provisions hereof, (iii) in connection with the enforcement of this Agreement or
any other Loan Document or collection of amounts due hereunder or thereunder or
the proof and allowability of any claim arising under this Agreement or any
other Loan Document, whether in bankruptcy or receivership proceedings or
otherwise, and (iv) in any workout or restructuring or in connection with the
protection, preservation, exercise or enforcement of any of the terms hereof or
of any rights hereunder or under any other Loan Document or in connection with
any foreclosure, collection or bankruptcy proceedings, and (b) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Agent hereunder or thereunder, PROVIDED that
the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements if the same results from the Agent's gross negligence
or willful misconduct, or if the Borrower was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense
(except that the Borrower shall remain liable to the extent such failure to give
notice does not result in a loss to the Borrower), or if the same results from a
compromise or settlement agreement entered into without the consent of the
Borrower, which shall not be unreasonably withheld. In addition, the Borrower
agrees to reimburse and pay all reasonable out-of-pocket expenses of the Agent's
regular employees and agents engaged to perform audits of the Loan Parties'
books, records and business properties.
10.6 EXCULPATORY PROVISIONS; LIMITATION OF LIABILITY.
Neither the Agent nor any of its directors, officers, employees,
agents, attorneys or Affiliates shall (a) be liable to any Bank for any action
taken or omitted to be taken by it or them hereunder, or in connection herewith
including pursuant to any Loan Document, unless caused by its or their own gross
negligence or willful misconduct, (b) be responsible in any manner to any of the
Banks for the effectiveness, enforceability, genuineness, validity or the due
execution of this Agreement or any other Loan Documents or for any recital,
representation, warranty, document, certificate, report or statement herein or
made or furnished under or in connection with this
<PAGE>
Agreement or any other Loan Documents, or (c) be under any obligation to any of
the Banks to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions hereof or thereof on the part of the Loan
Parties, or the financial condition of the Loan Parties, or the existence or
possible existence of any Event of Default or Potential Default. No claim may be
made by any of the Loan Parties, any Bank, the Agent or any of their respective
Subsidiaries against the Agent, any Bank or any of their respective directors,
officers, employees, agents, attorneys or Affiliates, or any of them, for any
special, indirect or consequential damages or, to the fullest extent permitted
by Law, for any punitive damages in respect of any claim or cause of action
(whether based on contract, tort, statutory liability, or any other ground)
based on, arising out of or related to any Loan Document or the transactions
contemplated hereby or any act, omission or event occurring in connection
therewith, including the negotiation, documentation, administration or
collection of the Loans, and each of the Loan Parties, (for itself and on behalf
of each of its Subsidiaries), the Agent and each Bank hereby waive, releases and
agree never to sue upon any claim for any such damages, whether such claim now
exists or hereafter arises and whether or not it is now known or suspected to
exist in its favor. Each Bank agrees that, except for notices, reports and
other documents expressly required to be furnished to the Banks by the Agent
hereunder or given to the Agent for the account of or with copies for the Banks,
the Agent and each of its directors, officers, employees, agents, attorneys or
Affiliates shall not have any duty or responsibility to provide any Bank with an
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the Loan
Parties which may come into the possession of the Agent or any of its directors,
officers, employees, agents, attorneys or Affiliates.
10.7 REIMBURSEMENT AND INDEMNIFICATION OF AGENT BY BANKS.
Each Bank agrees to reimburse and indemnify the Agent (to the extent
not reimbursed by the Borrower and without limiting the Obligation of the
Borrower to do so) in proportion to its Ratable Share from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements, including attorneys' fees and disbursements
(including the allocated costs of staff counsel), and costs of appraisers and
environmental consultants, of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Agent, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by the Agent hereunder or thereunder, PROVIDED that
no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements (a) if the same results from the Agent's gross negligence or
willful misconduct, or (b) if such Bank was not given notice of the subject
claim and the opportunity to participate in the defense thereof, at its expense
(except that such Bank shall remain liable to the extent such failure to give
notice does not result in a loss to the Bank), or (c) if the same results from a
compromise and settlement agreement entered into without the consent of such
Bank, which shall not be unreasonably withheld. In addition, each Bank agrees
promptly upon demand to reimburse the Agent (to the extent not reimbursed by the
Borrower and without limiting the Obligation of the Borrower to do so) in
proportion to its Ratable Share for all amounts due and payable by the Borrower
to the
<PAGE>
Agent in connection with the Agent's periodic audit of the Loan Parties' books,
records and business properties.
10.8 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon any writing, telegram, telex
or teletype message, resolution, notice, consent, certificate, letter,
cablegram, statement, order or other document or conversation by telephone or
otherwise believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon the advice and opinions of
counsel and other professional advisers selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action hereunder unless it
shall first be indemnified to its satisfaction by the Banks pro rata against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
10.9 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Potential Default or Event of Default unless the Agent has
received written notice from a Bank or the Borrower referring to this Agreement,
describing such Potential Default or Event of Default and stating that such
notice is a "notice of default."
10.10 NOTICES.
The Agent shall promptly send to each Bank a copy of all notices
received from the Borrower pursuant to the provisions of this Agreement or the
other Loan Documents promptly upon receipt thereof. The Agent shall promptly
notify the Borrower and the other Banks of each change in the Base Rate and the
effective date thereof.
10.11 BANKS IN THEIR INDIVIDUAL CAPACITIES.
With respect to its Commitments and the Revolving Credit Loans made by
it and any other rights and powers given to it as a Bank hereunder or under any
of the other Loan Documents, the Agent shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not the
Agent, and the term "Banks" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. PNC Bank and its Affiliates and
each of the Banks and their respective Affiliates may, without liability to
account, except as prohibited herein, make loans to, accept deposits from,
discount drafts for, act as trustee under indentures of, and generally engage in
any kind of banking or trust business with, the Loan Parties and their
Affiliates, in the case of the Agent, as though it were not acting as Agent
hereunder and in the case of each Bank, as though such Bank were not a Bank
hereunder. The Banks acknowledge that, pursuant to such activities, the Agent
or its Affiliates may (i) receive information regarding the Loan Parties
(including information that may be subject to confidentiality obligations in
favor of the Loan Parties) and acknowledge that the Agent shall be under no
obligation to provide such confidential information to them, and (ii) accept
fees and
<PAGE>
other consideration from the Loan Parties for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
10.12 HOLDERS OF NOTES.
The Agent may deem and treat any payee of any Note as the owner
thereof for all purposes hereof unless and until written notice of the
assignment or transfer thereof shall have been filed with the Agent. Any
request, authority or consent of any Person 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, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
10.13 EQUALIZATION OF BANKS.
The Banks and the holders of any participations in any Notes agree
among themselves that, with respect to all amounts received by any Bank or any
such holder for application on any Obligation hereunder or under any Note or
under any such participation, whether received by voluntary payment, by
realization upon security, by the exercise of the right of set-off or banker's
lien, by counterclaim or by any other non-pro rata source, equitable adjustment
will be made in the manner stated in the following sentence so that, in effect,
all such excess amounts will be shared ratably among the Banks and such holders
in proportion to their interests in payments under the Notes, except as
otherwise provided in Section 4.4.3, 5.4.2 or 5.6. The Banks or any such
holder receiving any such amount shall purchase for cash from each of the other
Banks an interest in such Bank's Loans in such amount as shall result in a
ratable participation by the Banks and each such holder in the aggregate unpaid
amount under the Notes, PROVIDED that if all or any portion of such excess
amount is thereafter recovered from the Bank or the holder making such purchase,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, together with interest or other amounts, if any, required by
law (including court order) to be paid by the Bank or the holder making such
purchase.
10.14 SUCCESSOR AGENT.
The Agent (i) may resign as Agent or (ii) shall resign if such
resignation is requested by the Required Banks (if the Agent is a Bank, the
Agent's Loans and its Commitment shall be considered in determining whether the
Required Banks have requested such resignation) or required by Section 5.4.2, in
either case of (i) or (ii) by giving not less than forty-five (45) days' prior
written notice to the Borrower. If the Agent shall resign under this Agreement,
then either (a) the Required Banks shall appoint from among the Banks a
successor agent for the Banks, subject to the consent of the Borrower, such
consent not to be unreasonably withheld, or (b) if a successor agent shall not
be so appointed and approved within the forty-five (45) day period following the
Agent's notice to the Banks of its resignation, then the Agent shall appoint,
with the consent of the Borrower, such consent not to be unreasonably withheld,
a successor agent who shall serve as Agent until such time as the Required Banks
appoint and the Borrower consents to the appointment of a successor agent. Upon
its appointment pursuant to either clause (a) or (b)
<PAGE>
above, such successor agent shall succeed to the rights, powers and duties of
the Agent, and the term "Agent" shall mean such successor agent, effective upon
its appointment, and the former Agent's rights, powers and duties as Agent shall
be terminated without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement. After the resignation of
any Agent hereunder, the provisions of this Section 10 shall inure to the
benefit of such former Agent and such former Agent shall not by reason of such
resignation be deemed to be released from liability for any actions taken or not
taken by it while it was an Agent under this Agreement.
10.15 AGENT'S FEE.
The Borrower shall pay to the Agent a nonrefundable fee (the "Agent's
Fee") under the terms of a letter (the "Agent's Letter") between the Borrower
and Agent, as amended from time to time.
10.16 AVAILABILITY OF FUNDS.
The Agent may assume that each Bank has made or will make the proceeds
of a Loan available to the Agent unless the Agent shall have been notified by
such Bank on or before the later of (1) the close of Business on the Business
Day preceding the Borrowing Date with respect to such Loan or two (2) hours
before the time on which the Agent actually funds the proceeds of such Loan to
the Borrower (whether using its own funds pursuant to this Section 10.16 or
using proceeds deposited with the Agent by the Banks and whether such funding
occurs before or after the time on which Banks are required to deposit the
proceeds of such Loan with the Agent). The Agent may, in reliance upon such
assumption (but shall not be required to), make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Agent by such Bank, the Agent shall be entitled to recover such
amount on demand from such Bank (or, if such Bank fails to pay such amount
forthwith upon such demand from the Borrower) together with interest thereon, in
respect of each day during the period commencing on the date such amount was
made available to the Borrower and ending on the date the Agent recovers such
amount, at a rate per annum equal to (i) the Federal Funds Effective Rate during
the first three (3) days after such interest shall begin to accrue and (ii) the
applicable interest rate in respect of such Loan after the end of such three-day
period.
10.17 CALCULATIONS.
In the absence of gross negligence or willful misconduct, the Agent
shall not be liable for any error in computing the amount payable to any Bank
whether in respect of the Loans, fees or any other amounts due to the Banks
under this Agreement. In the event an error in computing any amount payable to
any Bank is made, the Agent, the Borrower and each affected Bank shall,
forthwith upon discovery of such error, make such adjustments as shall be
required to correct such error, and any compensation therefor will be calculated
at the Federal Funds Effective Rate.
<PAGE>
10.18 BENEFICIARIES.
Except as expressly provided herein, the provisions of this Section 10
are solely for the benefit of the Agent and the Banks, and the Loan Parties
shall not have any rights to rely on or enforce any of the provisions hereof.
In performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for any
of the Loan Parties.
11. MISCELLANEOUS
11.1 MODIFICATIONS, AMENDMENTS OR WAIVERS.
With the written consent of the Required Banks, the Agent, acting on
behalf of all the Banks, and the Loan Parties, may from time to time enter into
written agreements amending or changing any provision of this Agreement or any
other Loan Document or the rights of the Banks or the Loan Parties hereunder or
thereunder, or may grant written waivers or consents to a departure from the due
performance of the Obligations of the Loan Parties hereunder or thereunder. Any
such agreement, waiver or consent made with such written consent shall be
effective to bind all the Banks and the Loan Parties; PROVIDED, that, without
the written consent of all the Banks, no such agreement, waiver or consent may
be made which will:
11.1.1 INCREASE OF COMMITMENTS; EXTENSION OR EXPIRATION
DATE.
Increase the amount of the Commitment of any Bank hereunder or
extend the Expiration Date;
11.1.2 EXTENSION OF PAYMENT; REDUCTION OF PRINCIPAL,
INTEREST OR FEES; MODIFICATION OF TERMS OF PAYMENT.
Whether or not any Loans are outstanding, extend the time for
payment of principal or interest of any Loan (excluding the due date of any
mandatory prepayment of a Loan or any mandatory Commitment reduction in
connection with such a mandatory prepayment hereunder except for mandatory
reductions of the Commitments on the Expiration Date), the Commitment Fee or any
other fee payable to any Bank, or reduce the principal amount of or the rate of
interest borne by any Loan or reduce the Commitment Fee or any other fee payable
to any Bank, or otherwise affect the terms of payment of the principal of or
interest of any Loan, the Commitment Fee or any other fee payable to any Bank;
11.1.3 RELEASE OF COLLATERAL OR GUARANTOR.
Except for sales of assets permitted by Section 8.2.7
[Disposition of Assets or Subsidiaries], release any Collateral consisting of
capital stock or other ownership interests of any Loan Party or its Subsidiary
or substantially all of the assets of any Loan Party, any Guarantor
<PAGE>
from its Obligations under the Guaranty Agreement or any other security for any
of the Loan Parties' Obligations; or
11.1.4 MISCELLANEOUS
Amend Section 5.2, 10.6 or 10.13 or this Section 11.1, alter any
provision regarding the pro rata treatment of the Banks, change the definition
of Required Banks, or change any requirement providing for the Banks or the
Required Banks to authorize the taking of any action hereunder;
PROVIDED, further, that no agreement, waiver or consent which would modify the
interests, rights or obligations of the Agent in its capacity as Agent or as the
issuer of Letters of Credit shall be effective without the written consent of
the Agent.
11.2 NO IMPLIED WAIVERS; CUMULATIVE REMEDIES; WRITING REQUIRED.
No course of dealing and no delay or failure of the Agent or any Bank
in exercising any right, power, remedy or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or operate
as a waiver thereof, nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy or
privilege preclude any further exercise thereof or of any other right, power,
remedy or privilege. The rights and remedies of the Agent and the Banks under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
11.3 REIMBURSEMENT AND INDEMNIFICATION OF BANKS BY THE BORROWER;
TAXES.
The Borrower agrees unconditionally upon demand to pay or reimburse to each Bank
(other than the Agent, as to which the Borrower's Obligations are set forth in
Section 10.5) and to save such Bank harmless against (i) liability for the
payment of all reasonable out-of-pocket costs, expenses and disbursements
(including reasonable fees and expenses of counsel (including allocated costs of
staff counsel) for each Bank), incurred by such Bank (a) in connection with the
administration and interpretation of this Agreement, and other instruments and
documents to be delivered hereunder, provided however, that the Borrower shall
have no liability for such expenses which were incurred prior to the Closing
Date (b) relating to any amendments, waivers or consents pursuant to the
provisions hereof, (c) in connection with the enforcement of this Agreement or
any other Loan Document, or collection of amounts due hereunder or thereunder or
the proof and allowability of any claim arising under this Agreement or any
other Loan Document, whether in bankruptcy or receivership proceedings or
otherwise, and (d) in any workout or restructuring or in connection with the
protection, preservation, exercise or enforcement of any of the terms hereof or
of any rights hereunder or under any other Loan Document or in connection with
any
<PAGE>
foreclosure, collection or bankruptcy proceedings, or (ii) all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against such Bank, in its capacity as such, in any
way relating to or arising out of this Agreement or any other Loan Documents or
any action taken or omitted by such Bank hereunder or thereunder, PROVIDED that
the Borrower shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (A) if the same results from such Bank's gross
negligence or willful misconduct, or (B) if the Borrower was not given notice of
the subject claim and the opportunity to participate in the defense thereof, at
its expense (except that the Borrower shall remain liable to the extent such
failure to give notice does not result in a loss to the Borrower), or (C) if the
same results from a compromise or settlement agreement entered into without the
consent of the Borrower, which shall not be unreasonably withheld. The Borrower
agrees unconditionally to pay all stamp, document, transfer, recording or filing
taxes or fees and similar impositions now or hereafter reasonably determined by
the Agent or any Bank to be payable in connection with this Agreement or any
other Loan Document, and the Borrower agrees unconditionally to save the Agent
and the Banks harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such taxes, fees or impositions, other than those which
arise and/or are payable as a result of the gross negligence or willful
misconduct of the Agent and the Banks. The Borrower will not be required to pay
any additional amounts in respect of United States Federal income tax pursuant
this Section 11.3 and Section 11.17 to any Bank and the Borrower shall
appropriately withhold or deduct taxes:
(i) if the obligation to pay such additional amounts
(or withhold or deduct taxes) would not have arisen but for a failure by such
Bank to comply with its obligations under Sections 11.3 and 11.17 of this Credit
Agreement.
(ii) if such Bank shall have delivered to the Borrower
a Form 4224 or Form 1001 and such Bank shall not at any time be entitled to a
full and complete exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Borrower hereunder for any
reason other than a change in United States law or regulations or any applicable
tax treaty or in the official interpretation of such law, treaty or regulations
by any governmental authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of delivery of
such Form 4224 or Form 1001.
11.4 HOLIDAYS.
Whenever payment of a Loan to be made or taken hereunder shall be due
on a day which is not a Business Day such payment shall be due on the next
Business Day and such extension of time shall be included in computing interest
and fee, except that the Loans shall be due on the Business Day preceding the
Expiration Date if the Expiration Date is not a Business
<PAGE>
Day. Whenever any payment or action to be made or taken hereunder (other than
payment of the Loans) shall be stated to be due on a day which is not a Business
Day, such payment or action shall be made or taken on the next following
Business Day (except as provided in Section 4.2 with respect to Interest Periods
under the Euro-Rate Option), and such extension of time shall not be included in
computing interest or fees, if any, in connection with such payment or action.
11.5 FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.
11.5.1 NOTIONAL FUNDING.
Each Bank shall have the right from time to time, without notice
to the Borrower, to deem any branch, Subsidiary or Affiliate (which for the
purposes of this Section 11.5 shall mean any corporation or association which is
directly or indirectly controlled by or is under direct or indirect common
control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained or funded any Loan to
which the Euro-Rate Option applies at any time, PROVIDED that immediately
following (on the assumption that a payment were then due from the Borrower to
such other office), and as a result of such change, the Borrower would not be
under any greater financial obligation pursuant to Section 5.6 than it would
have been in the absence of such change. Notional funding offices may be
selected by each Bank without regard to the Bank's actual methods of making,
maintaining or funding the Loans or any sources of funding actually used by or
available to such Bank.
11.5.2 ACTUAL FUNDING.
Each Bank shall have the right from time to time to make or
maintain any Loan by arranging for a branch, Subsidiary or Affiliate of such
Bank to make or maintain such Loan subject to the last sentence of this
Section 11.5.2. If any Bank causes a branch, Subsidiary or Affiliate to make or
maintain any part of the Loans hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the Loans to the same extent as if such Loans were
made or maintained by the such Bank, but in no event shall any Bank's use of
such a branch, Subsidiary or Affiliate to make or maintain any part of the Loans
hereunder cause such Bank or such branch, Subsidiary or Affiliate to incur any
cost or expenses payable by the Borrower hereunder or require the Borrower to
pay any other compensation to any Bank (including any expenses incurred or
payable pursuant to Section 5.6) which would otherwise not be incurred.
11.6 NOTICES.
All notices, requests, demands, directions and other communications
(as used in this Section 11.6, collectively referred to as "notices") given to
or made upon any party hereto under the provisions of this Agreement shall be in
writing (including telex or facsimile communication) unless otherwise expressly
permitted hereunder and shall be delivered or sent by telex or facsimile to the
respective parties at the addresses and numbers set forth under their respective
names on SCHEDULE 1.1(B) hereof or in accordance with any subsequent unrevoked
written direction from any
<PAGE>
party to the others. All notices shall, except as otherwise expressly herein
provided, be effective (a) in the case of telex or facsimile, when received,
(b) in the case of hand-delivered notice, when hand-delivered, (c) if given by
mail, four (4) days after such communication is deposited in the mail with
first-class postage prepaid, return receipt requested, and (d) if given by any
other means (including by air courier), when delivered; PROVIDED, that notices
to the Agent shall not be effective until received. Any Bank giving any notice
to any Loan Party shall simultaneously send a copy thereof to the Agent, and the
Agent shall promptly notify the other Banks of the receipt by it of any such
notice.
11.7 SEVERABILITY.
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
11.8 GOVERNING LAW.
Each Letter of Credit and Section 2.9 shall be subject to the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be revised or amended
from time to time, and to the extent not inconsistent therewith, the internal
laws of the Commonwealth of Pennsylvania without regard to its conflict of laws
principles and the balance of this Agreement shall be deemed to be a contract
under the Laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
11.9 PRIOR UNDERSTANDING.
This Agreement and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto and thereto relating to the transactions provided for herein and therein,
including any prior confidentiality agreements and commitments but do not
supersede the Agent's Letter or the letter agreement of even date herewith
between American National Bank and Trust Company of Chicago and the Borrower
with respect to depositary banking services.
11.10 DURATION; SURVIVAL.
All representations and warranties of the Loan Parties contained
herein or made in connection herewith shall survive the making of Loans and
issuance of Letters of Credit and shall not be waived by the execution and
delivery of this Agreement, any investigation by the Agent or the Banks, the
making of Loans, issuance of Letters of Credit, or payment in full of the Loans.
All covenants and agreements of the Loan Parties contained in Sections 8.1, 8.2
and 8.3 herein shall
<PAGE>
continue in full force and effect from and after the date hereof so long as the
Borrower may borrow or request Letters of Credit hereunder and until termination
of the Commitments and payment in full of the Loans and expiration or
termination of all Letters of Credit. All covenants and agreements of the
Borrower contained herein relating to the payment of interest, premiums,
additional compensation or expenses and indemnification, including but not
limited to those set forth in the Notes, Section 5 and Section 11.3, shall
survive payment in full of the Loans, expiration or termination of the Letters
of Credit and termination of the Commitments.
11.11 SUCCESSORS AND ASSIGNS.
(i) This Agreement shall be binding upon and shall
inure to the benefit of the Banks, the Agent, the Loan Parties and their
respective successors and assigns, except that none of the Loan Parties may
assign or transfer any of its rights and Obligations hereunder or any interest
herein. Each Bank may, at its own cost, make assignments of or sell
participations in all or any part of its Commitment and the Revolving Credit
Loans made by it to one or more banks or other entities, subject to the consent
of the Borrower and the Agent with respect to any assignee, such consent not to
be unreasonably withheld, PROVIDED that (1) no consent of the Borrower shall be
required (A) if an Event of Default exists and is continuing, or (B) in the case
of an assignment by a Bank to an Affiliate of such Bank, and (2) any assignment
by a Bank to a Person other than an Affiliate of such Bank may not be made in
amounts less than $5,000,000. In the case of an assignment, upon receipt by the
Agent of the Assignment and Assumption Agreement, the assignee shall have, to
the extent of such assignment (unless otherwise provided therein), the same
rights, benefits and obligations as it would have if it had been a signatory
Bank hereunder, the Commitments shall be adjusted accordingly, and upon
surrender of any Note subject to such assignment, the Borrower shall execute and
deliver a new Note to the assignee in an amount equal to the amount of the
Commitment assumed by it and a new Note to the assigning Bank in an amount equal
to the Commitment retained by it hereunder. Any Bank which assigns any or all
of its Commitment or Revolving Credit Loans to a Person other than an Affiliate
of such Bank shall pay to the Agent a service fee in the amount of $3,000 for
each assignment. In the case of a participation, the participant shall only
have the rights specified in Section 9.2.3 (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto and
not to include any voting rights except with respect to changes of the type
referenced in Sections 11.1.1, 11.1.2, or 11.1.3, all of such Bank's obligations
under this Agreement or any other Loan Document shall remain unchanged, and all
amounts payable by any Loan Party hereunder or thereunder shall be determined as
if such Bank had not sold such participation.
(ii) Any assignee or participant which is not
incorporated under the Laws of the United States of America or a state thereof
shall deliver to the Borrower and the Agent the form of certificate described in
Section 11.17 relating to federal income tax withholding. Each Bank may furnish
any publicly available information concerning any Loan Party or its Subsidiaries
and any other information concerning any Loan Party or its Subsidiaries in the
possession of such Bank from time to time to assignees and participants
(including prospective assignees or participants), PROVIDED that such assignees
and participants agree to be bound by the provisions of Section 11.12.
<PAGE>
(iii) Notwithstanding any other provision in this
Agreement, any Bank may at any time pledge or grant a security interest in all
or any portion of its rights under this Agreement, its Note and the other Loan
Documents to any Federal Reserve Bank in accordance with Regulation A of the FRB
or U.S. Treasury Regulation 31 CFR Section 203.14 without notice to or consent
of the Borrower or the Agent. No such pledge or grant of a security interest
shall release the transferor Bank of its obligations hereunder or under any
other Loan Document.
11.12 CONFIDENTIALITY.
The Agent and the Banks each agree to keep confidential all
information obtained from any Loan Party or its Subsidiaries which is nonpublic
and confidential or proprietary in nature (including any information the
Borrower specifically designates as confidential), except as provided below, and
to use such information only in connection with their respective capacities
under this Agreement and for the purposes contemplated hereby. The Agent and
the Banks shall be permitted to disclose such information (i) to outside legal
counsel, accountants and other professional advisors who need to know such
information in connection with the administration and enforcement of this
Agreement, subject to agreement of such Persons to maintain the confidentiality,
(ii) to assignees and participants as contemplated by Section 11.11, subject to
the agreement of such Persons to maintain the confidentiality, (iii) to the
extent requested by the bank regulatory authority or, with notice to the
Borrower, as otherwise required by applicable Law or by any subpoena or similar
legal process, or in connection with any investigation or proceeding arising out
of the transactions contemplated by this Agreement, (iv) if it becomes publicly
available other than as a result of a breach of this Agreement or becomes
available from a source not known to be subject to confidentiality restrictions,
or (v) if the Borrower shall have consented to such disclosure.
11.13 COUNTERPARTS.
This Agreement may be executed by different parties hereto on any
number of separate counterparts, each of which, when so executed and delivered,
shall be an original, and all such counterparts shall together constitute one
and the same instrument.
11.14 AGENT'S OR BANK'S CONSENT.
Unless otherwise expressly provided for herein, whenever the Agent's
or any Bank's consent is required to be obtained under this Agreement or any of
the other Loan Documents as a condition to any action, inaction, condition or
event, the Agent and each Bank shall be authorized to give or withhold such
consent in its sole and absolute discretion exercised in good faith and to
condition its consent upon the giving of additional collateral, the payment of
money or any other matter.
<PAGE>
11.15 EXCEPTIONS.
The representations, warranties and covenants contained herein shall
be independent of each other, and no exception to any representation, warranty
or covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
11.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
EACH LOAN PARTY, BANK AND THE AGENT HEREBY IRREVOCABLY CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY AND
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, AND
WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH
PERSON AT THE ADDRESSES PROVIDED FOR IN SECTION 11.6 AND SERVICE SO MADE SHALL
BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. EACH LOAN PARTY, BANK
AND THE AGENT WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION
INSTITUTED AGAINST IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE
BASED ON LACK OF JURISDICTION OR VENUE. THE AGENT, EACH BANK AND EACH LOAN
PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT. EACH LOAN PARTY (i) ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED BY COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, (ii) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT
OR AND BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (iii)
ACKNOWLEDGES THAT THE ENTERING INTO OF THE CREDIT AGREEMENT BY THE AGENT AND THE
BANKS HAS BEEN INDUCED BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS
SET FORTH IN THIS SECTION.
11.17 TAX WITHHOLDING CLAUSE.
Each Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a state thereof
agrees that it will deliver to each of the Borrower and the Agent two (2) duly
completed copies of the following: (i) Internal Revenue Service Form W-9, 4224
or 1001, or other applicable form prescribed by the Internal Revenue
<PAGE>
Service, certifying that such Bank, assignee or participant is entitled to
receive payments under this Agreement and the other Loan Documents without
deduction or withholding of any United States federal income taxes. Each Bank,
assignee or participant required to deliver to the Borrower and the Agent a form
or certificate pursuant to the preceding sentence shall deliver such form or
certificate as follows: (A) each Bank which is a party hereto on the Closing
Date shall deliver such form or certificate at least five (5) Business Days
prior to the first date on which any interest or fees are payable by the
Borrower hereunder for the account of such Bank; (B) each assignee or
participant shall deliver such form or certificate at least five (5) Business
Days before the effective date of such assignment or participation (unless the
Agent in its sole discretion shall permit such assignee or participant to
deliver such form or certificate less than five (5) Business Days before such
date in which case it shall be due on the date specified by the Agent). Each
Bank, assignee or participant which so delivers a Form W-8, W-9, 4224 or 1001
further undertakes to deliver to each of the Borrower and the Agent two (2)
additional copies of such form (or a successor form) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Agent, either certifying that such Bank,
assignee or participant is entitled to receive payments under this Agreement and
the other Loan Documents without deduction or withholding of any United States
federal income taxes. The Agent shall be entitled to withhold United States
federal income taxes at the full withholding rate unless the Bank, assignee or
participant establishes an exemption.
11.18 JOINDER OF GUARANTORS.
Any Subsidiary of the Borrower which is required to join this
Agreement as a Guarantor pursuant to Section 8.2.9 shall execute and deliver to
the Agent (i) a Guarantor Joinder in substantially the form attached hereto as
EXHIBIT 1.1(G)(1) pursuant to which it shall join as a Guarantor each of the
documents to which the Guarantors are parties; (ii) documents in the forms
described in Section 7.1 modified as appropriate to relate to such Subsidiary;
and (iii) documents necessary to grant and perfect Prior Security Interests to
the Agent for the benefit of the Banks in all Collateral held by such
Subsidiary. The Loan Parties shall deliver such Guarantor Joinder and related
documents to the Agent at the time of the filing of such Subsidiary's articles
of incorporation if the Subsidiary is a corporation, the date of the filing of
its certificate of limited partnership if it is a limited partnership or the
date of its organization if it is an entity other than a limited partnership or
corporation.
[SIGNATURES APPEAR ON THE NEXT PAGE.]
<PAGE>
[SIGNATURE PAGE 1 OF 2 TO CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year first above
written.
GRUBB & ELLIS COMPANY
By: /s/ Brian Parker
-------------------
Brian Parker
Senior Vice President and Chief
Financial Officer
[Seal]
EACH OF THE SUBSIDIARIES OF GRUBB &
ELLIS COMPANY SET FORTH ON THE ATTACHED
SCHEDULE I
By: /s/ Brian Parker
-------------------
Brian Parker
Senior Vice President and Chief
Financial Officer of each of the
Loan Parties set forth on
Schedule I attached hereto
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Jay C. Baker
-------------------
Jay C. Baker
Senior Vice President
<PAGE>
[SIGNATURE PAGE 2 OF 2 TO CREDIT AGREEMENT]
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: /s/ Ross C. Weigand
-------------------
Ross C. Weigand
Vice President
<PAGE>
Exhibit 4.2
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT is dated as of January 26, 1998, and is
made by and among GRUBB & ELLIS COMPANY, a Delaware corporation (the
"Borrower"), and EACH OF THE CORPORATIONS LISTED ON THE ATTACHED SUBSIDIARIES
SCHEDULE I (the "Subsidiaries" being collectively referred to herein together
with Borrower as the "Companies" and individually as a "Company"), and for
the benefit of the BANKS and PNC BANK, NATIONAL ASSOCIATION, as Agent for the
Banks (the "Agent"). Each capitalized term used herein shall, unless
otherwise defined herein, have the same meaning given to such term in the
Amended and Restated Credit Agreement of even date herewith (as it may
hereafter be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement") by and among the Borrower, each of the
Guarantors party thereto (as defined in the Credit Agreement), the Banks and
the Agent.
WITNESSETH THAT:
WHEREAS, pursuant to the Credit Agreement, the Banks intends to make or
have made Revolving Credit Loans to the Borrower as provided therein;
WHEREAS, the Companies are now or may hereafter become indebted to each
other (all present and future indebtedness of the Companies to each other,
whether created directly or acquired by assignment or otherwise, and interest
and premiums, if any, thereon and other amounts payable in respect thereof are
hereinafter collectively referred to as the "SUBORDINATED DEBT"); and
WHEREAS, the obligation of the Banks to make Revolving Credit Loans and the
obligation of the Agent to issue Letters of Credit are subject to the condition,
among others, that the Companies subordinate the Subordinated Debt to the
Obligations of the Loan Parties to the Agent and the Banks pursuant to the Loan
Documents (the "SENIOR DEBT") in the manner set forth herein.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. SUBORDINATED DEBT SUBORDINATED TO SENIOR DEBT. The recitals set forth
above are hereby incorporated by reference. All Subordinated Debt shall be
subordinate and subject in right of payment to the prior indefeasible payment in
full of all Senior Debt pursuant to the provisions contained herein.
2. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. Upon any distribution
of assets of any Company (a) in the event of any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization, assignment for
the benefit of creditors or other similar case or proceeding in connection
therewith, relative to any such Company or to its assets, or
<PAGE>
(b) after the occurrence and during the continuance of an Event of Default or
Potential Default under the Credit Agreement or any liquidation, dissolution
or other winding up of any such Company, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (c) in the event of any
assignment for the benefit of creditors or any marshalling of assets and
liabilities of any such Company (a Company distributing assets as set forth
herein being referred to in such capacity as a "DISTRIBUTING COMPANY"), then
and in any such event the Agent and the Banks shall be entitled to receive
indefeasible payment in full of all amounts due at the time of such event and
which are incurred by the Agent and the Banks thereafter which are payable by
the Borrower under the Credit Agreement (whether or not an Event of Default
has occurred under the terms of the Loan Documents or the Senior Debt has
been declared due and payable prior to the date on which it would otherwise
have become due and payable) on or in respect of any and all Senior Debt
before the holder of any Subordinated Debt owed by the Distributing Company
is entitled to receive any payment on account of the principal of or interest
on such Subordinated Debt, and to that end the Agent shall be entitled to
receive, for application to the payment of the Senior Debt, any payment or
distribution of any kind or character, whether in cash, property or
securities, which may be payable or deliverable in respect of the
Subordinated Debt owed by the Distributing Company in any such case,
proceeding, dissolution, liquidation or other winding up or event.
3. NO COMMENCEMENT OF ANY PROCEEDING. Each Company agrees that, so long
as the Senior Debt shall remain unpaid, it will not commence, or join with any
creditor other than the Agent in commencing, any collection or enforcement
proceeding against any other Company, including, but not limited to, those
described in Section 2 hereof, or any other enforcement action of any kind
against any Company in respect of the Subordinated Debt.
4. PRIOR PAYMENT OF SENIOR DEBT UPON ACCELERATION OF SUBORDINATED DEBT.
If any portion of the Subordinated Debt owed by any Company becomes or is
declared due and payable before its stated maturity based upon a default or an
event of default under any loan document evidencing the Subordinated Debt, then
and in such event the Agent and the Banks shall be entitled to receive
indefeasible payment in full of all amounts due and to become due on or in
respect of the Senior Debt (whether or not an Event of Default has occurred
under the terms of the Credit Agreement or the Senior Debt has been declared due
and payable prior to the date on which it would otherwise have become due and
payable) before the holder of any such Subordinated Debt is entitled to receive
any payment thereon.
5. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT. If any Event of Default under
the Credit Agreement shall have occurred and be continuing or such an Event of
Default would result from or exist after giving effect to a payment with respect
to any portion of the Subordinated Debt, unless the Required Banks shall have
consented to or waived the same, so long as any of the Senior Debt shall remain
outstanding, no payment shall be made by the Company owing such Subordinated
Debt on account of principal or interest on any portion of the Subordinated
Debt.
6. PAYMENT PERMITTED IF NO DEFAULT. Nothing contained in this Agreement
shall prevent any of the Companies, at any time, except during the pendency of
any of the conditions described in Sections 2, 4 and 5, from making the
regularly scheduled payments of the Subordinated Debt, or the retention thereof
by any of the Companies of any money deposited with it for the regularly
scheduled payments of or on account of the Subordinated Debt.
-2-
<PAGE>
7. RECEIPT OF PROHIBITED PAYMENTS. If, notwithstanding the foregoing
provisions of Sections 2, 4, 5 and 6, a Company which is owed Subordinated Debt
by a Distributing Company shall have received any payment or distribution of
assets from the Distributing Company of any kind or character, whether in cash,
property or securities, other than as expressly permitted by the terms of this
Agreement, then and in such event such payment or distribution shall be held in
trust for the benefit of the Agent and the Banks, shall be segregated from other
funds and property held by such Company, and shall be forthwith paid over to the
Agent in the same form as so received (with any necessary endorsement) to be
applied (in the case of cash) to or held as collateral (in the case of non-cash
property) for the payment or prepayment of the Senior Debt in accordance with
the terms of the Credit Agreement.
8. RIGHTS OF SUBROGATION. Each Company agrees that no payment or
distribution to the Agent or the Banks pursuant to the provisions of this
Agreement shall entitle the Company to exercise any rights of subrogation in
respect thereof until the Senior Debt shall have been indefeasibly paid in full
and the Commitments under the Credit Agreement shall have terminated.
9. INSTRUMENTS EVIDENCING SUBORDINATED DEBT. At the request of the
Agent, each Company shall cause each instrument which now or hereafter evidences
all or a portion of the Subordinated Debt to be conspicuously marked as follows:
"This instrument is subject to the terms of a Subordination
Agreement dated as of January 26, 1998, in favor of PNC Bank, National
Association, as Agent, which Subordination Agreement is incorporated
herein by reference. Notwithstanding any contrary statement contained
in the within instrument, no payment on account of the principal
thereof or interest thereon shall become due or payable except in
accordance with the express terms of said Subordination Agreement."
At the Agent's request, each Company will further mark its books of account in
such a reasonable manner as shall be effective to give proper notice to the
effect of this Agreement.
10. AGREEMENT SOLELY TO DEFINE RELATIVE RIGHTS. The purpose of this
Agreement is solely to define the relative rights of the Companies, on the one
hand, and the Agent and the Banks, on the other hand. Nothing contained in this
Agreement is intended to or shall prevent the Companies from exercising all
remedies otherwise permitted by applicable law upon default under any agreement
pursuant to which the Subordinated Debt is created, subject to Sections 2, 3, 4,
5 and 6 hereof, including, without limitation, the rights under this Agreement
of the Agent to receive cash, property or securities otherwise payable or
deliverable with respect to the Subordinated Debt.
11. NO IMPLIED WAIVERS OF SUBORDINATION. No right of the Agent or the
Banks to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of any
Company, by any act or failure to act by the Agent or the Banks, or by any
non-compliance by any Company with the terms, provisions and covenants of any
agreement pursuant to which the Subordinated Debt is created, regardless of any
knowledge thereof the Agent or the Banks may have or be otherwise charged with.
Each Company by its acceptance hereof agrees that, so long as there is Senior
Debt outstanding or any
-3-
<PAGE>
Commitment is in effect under the Credit Agreement, such Company shall not agree
to sell, assign, pledge, encumber or otherwise dispose of, the obligations of
the Subordinated Debt, other than by means of payment of such Subordinated Debt
according to its terms, without the prior written consent of the Agent.
Without in any way limiting the generality of the foregoing paragraph, in
accordance with the Credit Agreement, the Agent and the Banks, at any time and
from time to time, without the consent of or notice to the Companies, except to
the extent required by the Credit Agreement or other Loan Documents, without
incurring responsibility to the Companies and without impairing or releasing the
subordination provided in this Agreement or the obligations hereunder of the
Companies to the Agent, may do any one or more of the following: (i) change the
manner, place or terms of payment, or extend the time of payment, renew or alter
the Senior Debt or otherwise amend, restate, supplement or otherwise modify the
Senior Debt or the Credit Agreement; (ii) release any person liable in any
manner for the payment or collection of the Senior Debt; and (iii) exercise or
refrain from exercising any rights against any of the Companies and any other
person or entity.
12. ADDITIONAL SUBSIDIARIES. The Companies covenant and agree that each of
them shall cause any Subsidiary (including, without limitation, each direct or
indirect Subsidiary) which it creates or acquires after the date hereof to
become a party to this Agreement by executing a joinder to this Agreement in a
form of the Guarantor Joinder attached to the Credit Agreement as Exhibit
1.1(G)(1) promptly after such Company acquires or creates such Subsidiary.
13. CONTINUING FORCE AND EFFECT. This Agreement shall continue in force
until all of the Senior Debt is indefeasibly paid in full and the Commitments
under the Credit Agreement have terminated, it being contemplated that this
Agreement be of a continuing nature.
14. MODIFICATION, AMENDMENTS OR WAIVERS. Any and all agreements amending
or changing any provision of this Agreement or the rights of the Agent and the
Banks hereunder, and any and all waivers or consents to any departures from the
due performance of the Companies hereunder shall be made only by written
agreement, waiver or consent signed by the Agent and the Loan Parties.
15. EXPENSES. To the extent set forth in and subject to the Credit
Agreement, the Companies each unconditionally and jointly and severally agree
upon demand to pay to the Agent and the Banks the amount of any and all
reasonable and necessary out-of-pocket costs, expenses and disbursements,
including but not limited to reasonable fees and expenses of counsel, which may
be incurred by the Agent and the Banks in connection with (a) the exercise or
enforcement of any of the rights of the Agent and the Banks hereunder, or
(b) the failure by the Companies to perform or observe any of the provisions
hereof.
16. SEVERABILITY. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
-4-
<PAGE>
17. GOVERNING LAW. This Agreement shall be a contract under the internal
laws of the Commonwealth of Pennsylvania and for all purposes shall be construed
in accordance with the laws of said Commonwealth without giving effect to its
conflicts of law principles.
18. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
the Agent, the Banks and their respective successors and assigns, and the
obligations of the Companies shall be binding upon their respective successors
and assigns. The duties and obligations of each of the Companies may not be
delegated or transferred by it.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when executed and delivered, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
20. ATTORNEYS-IN-FACT. Each Company hereby authorizes and empowers the
Agent, at its election and in the name of either itself, or in the name of each
Company after the occurrence and during the continuance of an Event of Default,
to execute and file proofs and documents and take any other action the Agent may
deem advisable in good faith to enforce the Agent's and the Banks' interests
relating to the Subordinated Debt created hereunder and their right of
enforcement thereof as set forth herein, and to that end the Companies hereby
irrevocably make, constitute and appoint the Agent, its officers, employees and
Agents, or any of them, with full power of substitution, as the true and lawful
attorney-in-fact and agent of such Company and with full power for such Company
and in the name, place and stead of such Company for the purpose of carrying out
the provisions of this Agreement and taking any action and executing,
delivering, filing and recording any instruments which the Agent may deem
necessary or advisable in good faith to accomplish the purposes hereof, which
power of attorney, being given for security, is coupled with an interest and
irrevocable. Each Company hereby ratifies and confirms and agrees to ratify and
confirm all action taken by the Agent, its officers, employees or agents
pursuant to and in accordance with the foregoing power of attorney.
21. REMEDIES. In the event of a breach by any of the Companies in the
performance of any of the terms of this Agreement, the Agent and the Banks may
demand specific performance of this Agreement and seek injunctive relief and may
exercise any other remedy available at law or in equity, it being recognized
that the remedies of the Agent and the Banks at law may not fully compensate the
Agent and the Banks for the damages it may suffer in the event of a breach
hereof.
22. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. EACH COMPANY HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF THE COURT OF COMMON
PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA AND THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF PENNSYLVANIA. EACH COMPANY HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT. EACH COMPANY (i) ACKNOWLEDGES THAT IT HAS
BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, (ii) CERTIFIES THAT NO
-5-
<PAGE>
REPRESENTATIVE OR ATTORNEY OF THE AGENT OR ANY BANK HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER, AND (iii) ACKNOWLEDGES THAT THE ENTERING INTO OF
THE CREDIT AGREEMENT BY THE AGENT AND THE BANKS HAS BEEN INDUCED BY, AMONG OTHER
THINGS, THE WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION.
23. NOT A NOVATION. This Agreement amends and restates that certain
Subordination Agreement dated March 13, 1997, by the Borrower and the Companies
for the benefit of PNC Bank, National Association. This Agreement is not
intended as a novation, and shall not be a novation, of the obligations of the
parties thereto and hereto.
[Signatures Appear on the Next Page.]
-6-
<PAGE>
[SIGNATURE PAGE 1 OF 1 TO SUBORDINATION AGREEMENT]
WITNESS the due execution hereof as of the day and year first above
written.
GRUBB & ELLIS COMPANY
By: /s/ Brian Parker
------------------
Brian Parker
Senior Vice President and
Chief Financial Officer
Each of the Subsidiaries listed on
the attached Schedule I
By: /s/ Brian Parker
-----------------
Brian Parker
Senior Vice President and
Chief Financial Officer
of each of the
Subsidiaries listed on
Schedule I
-7-
<PAGE>
Exhibit 4.3
REVOLVING CREDIT NOTE
$20,000,000 Pittsburgh, Pennsylvania
January 26, 1998
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), promises to pay to the order of PNC Bank, National
Association (the "Bank") in immediately available funds the lesser of (i) the
principal sum of Twenty Million Dollars ($20,000,000) or (ii) the aggregate
unpaid principal amount of all loans made by the Bank to Borrower pursuant to
Section 2.1 of the Amended and Restated Credit Agreement dated as of January 26,
1998 (the "Credit Agreement"), among the Borrower, PNC Bank, National
Association, as Agent, the Banks, and the Guarantors (as such terms are defined
in the Credit Agreement), on March 13, 2001, together with interest from the
date hereof on the unpaid balance of the principal hereof (i) until maturity, at
the rate set forth in Section 4.1 of the Credit Agreement, as selected by the
Borrower in accordance with the terms of the Credit Agreement, payable in
accordance with Section 5 of the Credit Agreement, and at maturity, and (ii)
after maturity, whether by declaration, acceleration or otherwise, until paid at
the rate set forth in Section 4.3 of the Credit Agreement, payable upon demand.
The aforesaid interest rates shall continue to apply whether or not judgment
shall be entered on this Note.
If any payment of principal or interest on this Note shall become due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time may in such case be included
in computing interest in connection with such payment.
This Note is the Note referred to in and issued pursuant to the Credit
Agreement, and capitalized terms not otherwise defined herein shall have the
meanings given to them in the Credit Agreement. The Credit Agreement contains
provisions, among other things, for the acceleration of the stated maturity of
this Note upon the happening of certain stated events recited therein and also
for late payment charges and prepayments on account of the principal hereof
prior to maturity as provided therein.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall bind the Borrower and the successors and assigns of
the Borrower, and the benefits hereof shall inure to the benefit of Bank and its
successors and assigns. All references herein to "Borrower" shall be deemed to
apply to the Borrower and to the successors and assigns of Borrower, and all
references herein to "Bank" shall be deemed to apply to Bank and its successors
and assigns.
<PAGE>
IN WITNESS WHEREOF, Borrower, intending to be legally bound, has
executed this Note on the day and year first above written with the intention
that this Note shall constitute a sealed instrument.
ATTEST: GRUBB & ELLIS COMPANY
/s/ Carol M. Vanairsdale By: /s/ Brian Parker
- ------------------------- ----------------
Title: Assistant Secretary Brian Parker
------------------- Senior Vice President and Chief
Financial Officer
[Seal]
-2-
<PAGE>
Exhibit 4.4
REVOLVING CREDIT NOTE
$15,000,000 Pittsburgh, Pennsylvania
January 26, 1998
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), promises to pay to the order of AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO (the "Bank") in immediately available funds
the lesser of (i) the principal sum of Fifteen Million Dollars ($15,000,000) or
(ii) the aggregate unpaid principal amount of all loans made by the Bank to
Borrower pursuant to Section 2.1 of the Amended and Restated Credit Agreement
dated as of January 26, 1998 (the "Credit Agreement"), among the Borrower, PNC
Bank, National Association, as Agent, the Banks, and the Guarantors (as such
terms are defined in the Credit Agreement), on March 13, 2001, together with
interest from the date hereof on the unpaid balance of the principal hereof (i)
until maturity, at the rate set forth in Section 4.1 of the Credit Agreement, as
selected by the Borrower in accordance with the terms of the Credit Agreement,
payable in accordance with Section 5 of the Credit Agreement, and at maturity,
and (ii) after maturity, whether by declaration, acceleration or otherwise,
until paid at the rate set forth in Section 4.3 of the Credit Agreement, payable
upon demand. The aforesaid interest rates shall continue to apply whether or
not judgment shall be entered on this Note.
If any payment of principal or interest on this Note shall become due
on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time may in such case be included
in computing interest in connection with such payment.
This Note is the Note referred to in and issued pursuant to the Credit
Agreement, and capitalized terms not otherwise defined herein shall have the
meanings given to them in the Credit Agreement. The Credit Agreement contains
provisions, among other things, for the acceleration of the stated maturity of
this Note upon the happening of certain stated events recited therein and also
for late payment charges and prepayments on account of the principal hereof
prior to maturity as provided therein.
The Borrower hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall bind the Borrower and the successors and assigns of
the Borrower, and the benefits hereof shall inure to the benefit of Bank and its
successors and assigns. All references herein to "Borrower" shall be deemed to
apply to the Borrower and to the successors and assigns of Borrower, and all
references herein to "Bank" shall be deemed to apply to Bank and its successors
and assigns.
<PAGE>
IN WITNESS WHEREOF, Borrower, intending to be legally bound, has
executed this Note on the day and year first above written with the intention
that this Note shall constitute a sealed instrument.
ATTEST: GRUBB & ELLIS COMPANY
/s/ Carol M. Vanairsdale By: /s/ Brian Parker
- ------------------------- ----------------
Title: Assistant Secretary Brian Parker
------------------- Senior Vice President and Chief
Financial Officer
[Seal]
-2-
<PAGE>
Exhibit 4.5
AGREEMENT
This Agreement ("AGREEMENT") is entered into as of this 30th day of
December, 1997 by and between Warburg, Pincus Investors, L.P., a Delaware
corporation ("WARBURG"), and Grubb & Ellis Company, a Delaware Corporation (the
"COMPANY").
WITNESSETH
WHEREAS, Warburg beneficially owns 10,443,339 shares of Common Stock, par
value $.01 per share, of the Company, through its ownership of (i) 9,105,981
shares of Common Stock, and (ii) currently exercisable warrants to purchase an
aggregate of 1,337,358 shares of Common Stock, such shares (assuming exercise of
the warrants) representing in excess of 50% of the voting power of the Company's
voting stock;
WHEREAS, the parties hereto have been advised by Ernst & Young, LLP, the
Company's independent public accountants that pooling of interests accounting
treatment is generally unavailable for a transaction involving a company that
within two years prior to the transaction had a shareholder that controlled more
than 50% of the voting power of such company; and
WHEREAS, the parties have been further advised by Ernst & Young, LLP, that
upon execution of this Agreement, Warburg will be deemed to have divested itself
of voting power in excess of the 50% limitation for the purposes of the pooling
of interest accounting rules referred to above;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each party, the parties hereto, intending to be legally bound,
agree as follows:
1. VOTING
At any time when a matter is brought to the vote of the Company's
shareholders and Warburg beneficially owns shares of the Company voting stock
representing more than 50% of the voting power of the Company's shares entitled
to vote on such matter (the "LIMIT"), then:
(a) Warburg may vote its shares of voting stock up to the Limit in
its discretion; and
(b) Warburg shall vote its shares of voting stock in excess of the
Limit in the same proportion as the shares of voting stock voted by holders
other than Warburg are voted on such matter.
2. AMENDMENT OR TERMINATION
Except as set forth in paragraph 3 below, this Agreement may not be
amended or terminated without the concurrence of:
<PAGE>
(a) a majority of the Directors of the Board of the Company that are
not officers, employees, members or partners of Warburg or the Company; or
(a) a majority of the votes of the shares of the Company voting stock
voting on the matter at a meeting duly called other than shares of Company
voting stock beneficially owned by Warburg.
3. ADDITIONAL RIGHT TO TERMINATION
This Agreement shall also be terminated by either Warburg or the
Company if it shall have received an opinion from a certified public accounting
firm contrary to the advice referred to in the third "Whereas" clause hereto and
such opinion is delivered to all the parties hereto.
4. COUNTERPARTS
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5. NOTICES
All notices, requests, demands and other communications under this
Agreement shall be in writing, shall be given by one of the methods specified
below, and shall be deemed to have been duly given (i) on the date of service if
served personally on the party to whom notice is to be given, (ii) on the second
business day after delivery to an overnight courier service, provided receipt of
delivery has been confirmed, or (iii) upon receipt by the transmitting party of
confirmation or answer-back if delivery is by telex or telefax.
If to Warburg:
Warburg, Pincus Investors, L.P.
466 Lexington Avenue
New York, New York 10017
Attention: John Santoleri
Telephone: (212) 878-9382
Facsimile: (212) 878-9351
If to Company:
Grubb & Ellis Company
2215 Sanders Road, 4th Floor
Northbrook, IL 60062
Attention: General Counsel
Telephone: (847) 753-7508
Facsimile: (847) 753-9034
<PAGE>
7. GOVERNING LAW
This Agreement shall be construed in accordance with, and governed by,
the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties of this Agreement have duly executed it as
of the date set forth above.
WARBURG, PINCUS INVESTORS, L.P.
By: Warburg, Pincus & Company, its general partner
By: /s/ John D. Santoleri
------------------------------------
Name: John D. Santoleri
Title: Partner
GRUBB & ELLIS COMPANY
By: /s/ Robert J. Walner
------------------------------------
Name: Robert J. Walner
Title: Senior Vice President & General Counsel
<PAGE>
Exhibit 10.1
MASTER COLLATERAL ASSIGNMENT OF CONTRACT RIGHTS
THIS ASSIGNMENT is made and entered into the 26th day of January, 1998, by
GRUBB & ELLIS COMPANY, a Delaware corporation (the "Borrower"), and EACH OF THE
CORPORATIONS LISTED AS A SUBSIDIARY ON THE ATTACHED SCHEDULE I (the
"Subsidiaries" being collectively referred to herein together with the Borrower
as the "Assignors" and each individually as an "Assignor"), in favor of PNC
Bank, National Association (the "Assignee"), as Agent for the Banks, as that
term is defined in that certain Amended and Restated Credit Agreement dated as
of January 26, 1998, among the Assignors, the Assignee and the Banks (as the
same may hereafter be amended, modified, supplemented or restated from time to
time, the "Credit Agreement")
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Banks have agreed to provide
certain loans to the Borrower and the Agent has agreed to issue certain letters
of credit for the Account of the Borrower and the Subsidiaries; and
WHEREAS, in order to provide additional security for the Borrower's
repayment and each of the other Assignor's Guaranty Agreement with respect to
repayment of such loans, the parties hereto desire that Assignee be granted an
assignment and security interest in all rights of each Assignor under those
property management contracts and agreements to which such Assignor now is a
party and those to which it shall hereafter become a party (the "Assigned
Contracts").
NOW, THEREFORE, in consideration of the promises and covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are acknowledged by each Assignor, and intending to be legally bound, each
Assignor assigns to Assignee all of its right, title and interest in and to its
Assigned Contracts to the extent assignable and to the fullest extent permitted
by Law.
1. Except as otherwise expressly provided herein, capitalized terms used
in this Assignment shall have the respective meanings given to them in the
Credit Agreement.
2. This Assignment amends and restates that certain Master Collateral
Assignment of Contract Rights dated March 13, 1997, of the Assignors in favor of
PNC Bank, National Association. This Assignment is not intended as a novation,
and shall not be a novation, of the obligations of the parties thereto and
hereto.
3. As security for the due and punctual payment and performance of the
Obligations as defined in the Credit Agreement, each Assignor does hereby grant,
bargain, sell, assign, transfer
<PAGE>
and set over unto Assignee, for the benefit of the Banks and the Assignee, all
the rights, interests and privileges which such Assignor has or may have in or
under the Assigned Contracts, including without limiting the generality of the
foregoing, the present and continuing right with full power and authority, in
its own name, or in the name of such Assignor, or otherwise, but subject to the
provisions and limitations of Section 3 hereof, (i) to make claim for, enforce,
perform, collect and receive any and all rights under the Assigned Contracts,
(ii) to do any and all things which such Assignor is or may become entitled to
do under the Assigned Contracts, and (iii) to make all waivers and agreements,
give all notices, consents and releases and other instruments and to do any and
all other things whatsoever which such Assignor is or may become entitled to do
under the Assigned Contracts. Notwithstanding the foregoing assignment, each
Assigned Contract which by its terms or by operation of law would become void,
terminable, revocable, or in default if pledged or assigned hereunder or if a
security interest therein were granted hereunder is expressly excepted and
excluded from the lien and terms of this assignment to the extent necessary so
to avoid such voidness, voidability, terminability or revocability.
4. The acceptance of this Assignment and the payment or performance under
the Assigned Contracts shall not constitute a waiver of any rights of Assignee
under the terms of the Notes, the Credit Agreement or any other Loan Documents,
it being understood that, until the occurrence of an Event of Default, and the
exercise of Assignee's rights under Section 4 hereof, each Assignor shall have
all rights to its respective Assigned Contracts and to retain, use and enjoy the
same.
5. Each Assignor, upon the occurrence and during the continuance of an
Event of Default, hereby authorizes Assignee, at Assignee's option, to do all
acts required or permitted under the Assigned Contracts as Assignee in its sole
discretion may deem proper. Each Assignor does hereby irrevocably constitute
and appoint Assignee, while this Assignment remains in force and effect and, in
each instance, to the full extent permitted by applicable Law, its true and
lawful attorney in fact, coupled with an interest and with full power of
substitution and revocation, for such Assignor and in its name, place and stead,
to demand and enforce compliance with all the terms and conditions of its
Assigned Contract and all benefits accrued thereunder, whether at law, in equity
or otherwise; PROVIDED, HOWEVER, that Assignee shall not exercise any such power
unless and until an Event of Default shall have occurred and is continuing.
6. Assignee shall not be obligated to perform or discharge any obligation
or duty to be performed or discharged by any Assignor under the Assigned
Contracts, and each Assignor hereby agrees to indemnify Assignee and the Banks
for, and to save the Assignee and the Banks harmless from, any and all liability
arising under the Assigned Contracts, other than arising or resulting from
Assignee's or Banks' (or their respective agents, employees or contractors)
gross negligence or willful misconduct.
7. Each Assignor agrees that this Assignment and the designation and
directions herein set forth are irrevocable.
8. Neither this Assignment nor any action or inaction on the part of
Assignee or the Banks shall constitute an assumption on the part of Assignee or
the Banks of any obligations or duties under the Assigned Contracts.
<PAGE>
9. Each Assignor covenants and warrants that:
(a) its Assigned Contracts are and shall be valid contracts, and that
there are and shall be, to the extent ascertainable by such Assignor, no
material defaults on the part of any of the parties thereto;
(b) other than with a respect to Permitted Liens, it will not assign,
pledge or otherwise encumber the Assigned Contracts without the prior written
consent of Assignee;
(c) other than in the ordinary course of business, it will not
cancel, terminate or accept any surrender of the Assigned Contracts;
(d) other than in the ordinary course of business, it will not waive
or give any consent with respect to any material default or material variation
in the performance under the Assigned Contracts, it will at all times take
proper steps to enforce all of the provisions and conditions thereof, and it
will forthwith notify Assignee of any material default under the Assigned
Contracts;
(e) it will in all material respects perform and observe, or cause to
be performed and observed, all of the terms, covenants and conditions on its
part to be performed and observed with respect to the Assigned Contracts; and
(f) it will execute from time to time any and all additional
assignments or instruments of further assurance to Assignee, as Assignee may at
any time reasonably request to evidence the intent of this Assignment.
10. At such time as the Loans, Reimbursement Obligations and Letter of
Credit Borrowings and interest thereon are indefeasibly paid in full, and the
Commitments have terminated, this Assignment and all of Assignee's and the
Banks' right, title and interest hereunder with respect to the Assigned
Contracts shall terminate.
11. This Assignment shall inure to the benefit of Assignee and the Banks,
their respective successors and assigns, and shall be binding upon each
Assignor, their respective successors, successors in title and assigns.
12. This Assignment shall be governed by and construed in accordance with
the internal laws of the Commonwealth of Pennsylvania without regard to its
conflicts of Law principles.
13. The provisions of this Assignment are intended to be severable. If
any provision of this Assignment shall be held invalid or unenforceable in whole
or in part in any jurisdiction, such provision shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without in
any manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
14. This Assignment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which, when
executed and delivered,
<PAGE>
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument.
[SIGNATURES APPEAR ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this instrument under seal as
of the day and year first above written.
GRUBB & ELLIS COMPANY
By: /s/ Brian Parker
----------------
Brian Parker
Senior Vice President and Chief
Financial Officer
EACH OF THE CORPORATIONS
LISTED AS A SUBSIDIARY ON THE
ATTACHED SCHEDULE I
By: /s/ Brian Parker
----------------
Brian Parker
Senior Vice President and Chief
Financial Officer of each of the
Subsidiaries listed on Schedule
I
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Jay C. Baker
-----------------
Jay C. Baker
Senior Vice President
<PAGE>
Exhibit 10.2
MASTER AGREEMENT OF GUARANTY AND SURETYSHIP
This Master Agreement of Guaranty and Suretyship (the "Guarantee") dated
as of January 26, 1998, is made and given by each of the undersigned
corporations in favor of the Agent and the Banks as defined in that certain
Amended and Restated Credit Agreement dated as of January 26, 1998 (as it may
hereinafter from time to time be amended, modified or supplemented, the
"Credit Agreement"), by and among Grubb & Ellis Company, a Delaware
corporation (the "Borrower"), the Guarantors, the Banks and PNC Bank,
National Association, in its capacity as Agent for the Banks (the "Agent").
BACKGROUND
In order to induce the Banks to make and continue to make Loans to the
Borrower and the Agent to issue Letters of Credit for the account of the
Borrowers and the Guarantors in accordance with the terms of the Credit
Agreement, each of the undersigned Guarantors hereby unconditionally and
irrevocably guarantees and becomes surety as though it was a primary obligor for
the full and timely payment when due, whether at maturity, by declaration,
acceleration or otherwise, of the principal of and interest and fees on the
Loans and Reimbursement Obligations (as defined in the Credit Agreement), of the
Agent and the Banks to the Borrower under the Credit Agreement and the Notes
issued by the Borrower in connection therewith and any extensions or renewals
thereof, and each and every other obligation or liability (both those now in
existence and those that shall hereafter arise and including, without
limitation, all costs and expenses of enforcement and collection after the
occurrence and during the continuance of an Event of Default, including
reasonable attorney's fees) of the Borrower to the Agent and the Banks under the
Credit Agreement and the other Loan Documents (as defined in the Credit
Agreement) except this Guarantee, and any extensions or renewals thereof
(hereinafter referred to as the "Guaranteed Indebtedness"), whether or not such
Guaranteed Indebtedness or any portion thereof shall hereafter be released or
discharged or is for any reason invalid or unenforceable.
1. Capitalized terms used herein and not otherwise defined herein shall
have such meanings given to them in the Credit Agreement.
2. This Guarantee amends and restates that certain Master Agreement of
Guaranty and Suretyship dated March 13, 1997, of the Guarantors in favor of PNC
Bank, National Association. This Guarantee is not intended as a novation, and
shall not be a novation, of the obligations of the parties thereto and hereto.
3. Each Guarantor agrees to make such full payment forthwith upon demand
of the Agent or the Banks when the Guaranteed Indebtedness or any portion
thereof is due to be paid by the Borrower to the Banks, whether at stated
maturity, by declaration, acceleration or
<PAGE>
otherwise. Each Guarantor agrees to make such full payment irrespective of
whether or not any one or more of the following events has occurred: (i) the
Agent or the Banks have made any demand on the Borrower or any other guarantor;
(ii) the Agent or the Banks have taken any action of any nature against the
Borrower or any other guarantor; (iii) the Agent or the Banks have pursued any
rights which it has against any other Person who may be liable for the
Guaranteed Indebtedness; (iv) the Banks hold or have resorted to any security
for the Guaranteed Indebtedness; or (v) the Agent or the Banks have invoked any
other remedy or right it has available with respect to the Guaranteed
Indebtedness. Each Guarantor further agrees to make full payment to the Banks
even if circumstances exist which otherwise constitute a legal or equitable
discharge of the Guarantor as surety or guarantor.
4. Each Guarantor warrants to the Agent and the Banks that: (i) no other
agreement (other than the Credit Agreement and the Loan Documents),
representation or special condition exists between the Guarantor and the Banks
regarding the liability of such Guarantor hereunder, nor does any understanding
exist between such Guarantor and the Banks that the obligations of the Guarantor
hereunder are or will be other than as set forth herein; and (ii) as of the date
hereof, such Guarantor has no defense whatsoever to any action or proceeding
that may be brought to enforce this Guarantee.
5. Until indefeasible payment in full of the Loans and termination of all
Letters of Credit and the Commitments, each Guarantor waives and agrees not to
enforce any of the rights of the Guarantor against the Borrower or any other
guarantor which arise as a result of this Guarantee, including, but not limited
to: (i) any right of the Guarantor to be subrogated in whole or in part to any
right or claim with respect to any Guaranteed Indebtedness or any portion
thereof to the Banks which might otherwise arise from payment by the Guarantor
to the Banks on the account of the Guaranteed Indebtedness or any portion
thereof until all the Guaranteed Indebtedness is indefeasibly paid in full; and
(ii) any right of the Guarantor to require the marshalling of assets of the
Borrower or any other guarantor which might otherwise arise from payment by the
Guarantor to the Banks on account of the Guaranteed Indebtedness or any portion
thereof. If any amount shall be paid to any Guarantor in violation of the
preceding sentence, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for the benefit of, the Banks
and shall forthwith be paid to the Agent to be credited and applied upon the
Guaranteed Indebtedness, whether matured or unmatured, in accordance with the
terms of the Credit Agreement. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by the
Credit Agreement and that the waivers set forth in this Section are knowingly
made in contemplation of such benefits.
6. Each Guarantor waives promptness and diligence by the Banks with
respect to his rights under the Credit Agreement or any of the other Loan
Documents, including, but not limited to, this Guarantee.
7. Each Guarantor waives any and all notice with respect to:
(i) acceptance by the Banks of this Guarantee; (ii) the provisions of any note,
instrument or agreement relating to the Guaranteed Indebtedness; and (iii) any
default in connection with the Guaranteed
<PAGE>
Indebtedness.
8. Each Guarantor waives any presentment, demand, notice of dishonor or
nonpayment, protest, and notice of protest in connection with the Guaranteed
Indebtedness.
9. Each Guarantor agrees that the Agent and the Banks may from time to
time and as many times as the Agent and the Banks, in their absolute discretion,
deem appropriate, do any of the following without notice to such Guarantor and
without adversely affecting the validity or enforceability of this Guarantee:
(i) release, surrender, exchange, compromise, or settle the Guaranteed
Indebtedness or any portion thereof; (ii) change, renew, or waive the terms of
the Guaranteed Indebtedness or any portion thereof; (iii) change, renew, or
waive the terms, including without limitation, the rate of interest charged to
the Borrower or the Guarantor, of any note, instrument, or agreement relating to
the Guaranteed Indebtedness or any portion thereof; (iv) grant any extension or
indulgence with respect to the payment to the Banks of the Guaranteed
Indebtedness or any portion thereof; (v) enter into any agreement of forbearance
with respect to the Guaranteed Indebtedness or any portion thereof;
(vi) release, surrender, exchange or compromise any security held by the Banks
for the Guaranteed Indebtedness; (vii) release any Person who is a guarantor or
surety or who has agreed to purchase the Guaranteed Indebtedness or any portion
thereof; and (viii) release, surrender, exchange or compromise any security or
Lien held by the Banks for the liabilities of any Person who is a guarantor or
surety for the Guaranteed Indebtedness or any portion thereof. Each Guarantor
agrees that the Agent and the Banks may do any of the above as it deems
necessary or advisable, in its sole discretion, without giving any notice to the
Guarantor, and that the Guarantor will remain liable for full payment to the
Banks of the Guaranteed Indebtedness.
10. If any amount owing hereunder shall have become due and payable (by
acceleration or otherwise) and an Event of Default has occurred and is
continuing, the Banks and any branch, subsidiary or affiliate of the Banks
anywhere in the world shall each have the right, at any time and from time to
time to the fullest extent permitted by Law, in addition to all other rights and
remedies available to it, without prior notice to any Guarantor, to set-off
against and to appropriate and apply to such due and payable amounts any debt
owing to, and any other funds held in any manner for the account of the
Guarantor by the Banks or any such branch, subsidiary or affiliate including,
without limitation, all funds in all deposit accounts (whether time or demand,
general or special, provisionally credited or finally credited, or otherwise)
now or hereafter maintained by the Guarantor with the Banks or such branch,
subsidiary or affiliate. Such right shall exist whether or not the Banks shall
have given notice or made any demand hereunder or under any of the Note or any
other Loan Document, whether or not such debt owing to or funds held for the
account of any Guarantor is or are matured or unmatured, and regardless of the
existence or adequacy of any collateral, guarantee or any other security, right
or remedy available to the Banks. Each Guarantor hereby consents to and
confirms the foregoing arrangements, and confirms the Banks' rights and each
such branch's, subsidiary's and affiliate's rights of banker's lien and set-off.
11. Each Guarantor recognizes and agrees that the Borrower, after the date
hereof,
<PAGE>
may incur additional Indebtedness or other obligations, fees and expenses to the
Banks under the Credit Agreement or pay existing Guaranteed Indebtedness, and
that in any such transaction, even if such transaction is not now contemplated,
the Banks will rely in any such case upon this Guarantee and the enforceability
thereof against the Guarantor and that this Guarantee shall remain in full force
and effect with respect to such Indebtedness of the Borrower to the Banks and
such Indebtedness shall for all purposes constitute Guaranteed Indebtedness.
12. Each Guarantor further agrees that, if at any time all or any part of
any payment, from whomever received, theretofore applied by the Banks to any of
the Guaranteed Indebtedness is or must be rescinded or returned by the Banks for
any reason whatsoever including, without limitation, the insolvency, bankruptcy
or reorganization of the Guarantor, such liability shall, for the purposes of
this Guarantee, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence, notwithstanding such
application by the Banks, and this Guarantee shall continue to be effective or
be reinstated, as the case may be, as to such liabilities, all as though such
application by the Banks had not been made.
13. Each Guarantor agrees that no failure or delay on the part of the
Agent or the Banks to exercise any of its rights, powers or privileges under
this Guarantee shall be a waiver of such rights, powers or privileges or a
waiver of any default, nor shall any single or partial exercise of any of the
Agent's or the Banks' rights, powers or privileges preclude other or further
exercise thereof or the exercise of any other right, power or privilege or be
construed as a waiver of any default. Each Guarantor further agrees that no
waiver or modification of any rights of the Agent and the Banks under this
Guarantee shall be effective unless in writing and signed by the Agent and the
Banks. Each Guarantor further agrees that each written waiver shall extend only
to the specific instance actually recited in such written waiver and shall not
impair the rights of the Agent or the Banks in any other respect.
14. Each Guarantor unconditionally agrees to pay all reasonable costs and
expenses, including reasonable attorney's fees, incurred after the occurrence of
and during the continuance of an Event of Default by the Agent and the Banks in
enforcing this Guarantee against such Guarantor.
15. Each Guarantor agrees that this Guarantee and the rights and
obligations of the parties hereto shall for all purposes be governed by and
construed and enforced in accordance with the substantive law of the
Commonwealth of Pennsylvania without giving effect to its principles of conflict
of laws.
16. Each Guarantor recognizes that this Guarantee when executed
constitutes a sealed instrument and as a result the instrument will be
enforceable as such without regard to any statute of limitations which might
otherwise be applicable and without any consideration.
17. Each Guarantor acknowledges that in addition to binding itself to this
Guarantee, at the time of execution of this Guarantee the Banks offered to the
Guarantor a copy of this Guarantee in the form in which it was executed and that
by acknowledging this
<PAGE>
fact the Guarantor may not later be able to claim that a copy of the Guarantee
was not received by it.
18. Each Guarantor agrees that this Guarantee shall be binding upon each
Guarantor, its successors and assigns; PROVIDED, HOWEVER, that the Guarantor may
not assign or transfer any of its rights and obligations hereunder or any
interest herein. Each Guarantor further agrees that (i) this Guarantee is
freely assignable and transferable by the Banks in connection with any
assignment or transfer of the Guaranteed Indebtedness in accordance with the
Credit Agreement and (ii) this Guarantee shall inure to the benefit of the
Banks, their respective successors and assigns. Upon indefeasible payment in
full of the Guaranteed Indebtedness, this Guarantee shall terminate and be of no
further effect and the Agent and the Banks shall execute any documents,
instruments, agreements or any combination thereof as the Guarantors shall
reasonably request to evidence such termination.
19. Each Guarantor agrees that if such Guarantor fails to perform any
covenant or agreement hereunder or if there occurs an Event of Default under the
Credit Agreement, all or any part of the Guaranteed Indebtedness may be declared
to be forthwith due and payable and, in the case of an Event of Default
described in Sections 9.1.14 or 9.1.15 of the Credit Agreement, the Guaranteed
Indebtedness shall be immediately due and payable, in any case without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
20. Each Guarantor agrees that the enumeration of the Banks' rights and
remedies set forth in this Guarantee is not intended to be exhaustive and the
exercise by the Banks of any right or remedy shall not preclude the exercise of
any other rights or remedies, all of which shall be cumulative and shall be in
addition to any other right or remedy given hereunder or under any other
agreement among the parties to the Loan Documents or which may now or hereafter
exist at law or in equity or by suit or otherwise.
21. Each Guarantor agrees that all notices, statements, requests, demands
and other communications under this Guarantee shall be given to the Guarantor at
the address set forth in Schedule 1.1(B) to the Credit Agreement in the manner
provided in Section 11.6 of the Credit Agreement.
22. Each Guarantor agrees that the provisions of this Guarantee are
severable, and in an action or proceeding involving any state or federal
bankruptcy, insolvency or other law affecting the rights of creditors generally:
(a) if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part
thereof, in such jurisdiction and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or
provision in this Guarantee in any jurisdiction.
(b) if this Guarantee would be held or determined to be void, invalid
or unenforceable on account of the amount of the Guarantor's aggregate
liability
<PAGE>
under this Guarantee, then, notwithstanding any other provision of
this Guarantee to the contrary, the aggregate amount of such liability
shall, without any further action by the Banks, the Guarantor or any
other Person, be automatically limited and reduced to the highest
amount which is valid and enforceable as determined in such action or
proceeding, which (without limiting the generality of the foregoing)
may be an amount which is not greater than the greater of:
(A) the fair consideration actually received by the
Guarantor under the terms of and as a result of the Loan Documents, including,
without limiting the generality of the foregoing, and to the extent not
inconsistent with applicable federal and state laws affecting the enforceability
of guarantees, distributions or advances made to the Guarantor with the proceeds
of any credit extended under the Loan Documents in exchange for its guaranty of
the Guaranteed Indebtedness, or
(B) ninety-five percent (95%) of the excess of (1) the
amount of the fair saleable value of the assets of the Guarantor as of the date
of this Guarantee as determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors as in effect on the
date thereof over (2) the amount of all liabilities of the Guarantor as of the
date of this Guarantee, also as determined on the basis of applicable federal
and state laws governing the insolvency of debtors as in effect on the date
thereof.
23. EACH GUARANTOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTEE. EACH GUARANTOR (i) ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED BY
COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS GUARANTEE
(ii) CERTIFIES THAT NO REPRESENTATIVE OR ATTORNEY OF THE AGENT OR ANY BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND EXECUTION AND DELIVERY
HEREOF BY THE GUARANTOR, AND (iii) ACKNOWLEDGES THAT THE ENTERING INTO OF THE
CREDIT AGREEMENT BY THE AGENT AND THE BANKS HAS BEEN INDUCED BY, AMONG OTHER
THINGS, THE WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION.
Each Guarantor (i) hereby irrevocably submits to the nonexclusive
jurisdiction of the Court of Common Pleas of Allegheny County, Commonwealth of
Pennsylvania, or any successor to said court, and to the nonexclusive
jurisdiction of the United States District Court for the Western District of
Pennsylvania, or any successor to said court (hereinafter referred to as the
"Pennsylvania Courts") for purposes of any suit, action or other proceeding
which relates to this Guarantee or any other Loan Document, (ii) to the extent
permitted by applicable Law, hereby waives and agrees not to assert by way of
motion, as a defense or
<PAGE>
otherwise in any such suit, action or proceeding, any claim that he is not
personally subject to the jurisdiction of the Pennsylvania Courts; that such
suit, action or proceeding is brought in an inconvenient forum; that the venue
of such suit, action or proceeding is improper; or that this Guarantee or any
Loan Document may not be enforced in or by the Pennsylvania Courts, (iii) hereby
agrees not to seek, and hereby waives, any collateral review by any other court,
which may be called upon to enforce the judgment of any of the Pennsylvania
Courts, of the merits of any such suit, action or proceeding or the jurisdiction
of the Pennsylvania Courts, and (iv) waives personal service of any and all
process upon it and consents that all such service of process may be made by
certified or registered mail addressed as provided in Schedule 1.1(B) of the
Credit Agreement and service so made shall be deemed to be completed upon actual
receipt thereof. Nothing herein shall limit the Agent or the Banks' right to
bring any suit, action or other proceeding against any Guarantor or any of the
Guarantor's assets or to serve process on the Guarantor by any means authorized
by Law.
[SIGNATURES APPEAR ON THE NEXT PAGE.]
<PAGE>
[SIGNATURE PAGE 1 OF 1 TO MASTER AGREEMENT OF GUARANTY AND SURETYSHIP]
IN WITNESS WHEREOF, the Guarantors intending to be legally bound, have
executed this Guarantee as of the date first above written with the intention
that this Guarantee shall constitute a sealed instrument.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I
ATTACHED HERETO
By /s/ Brian Parker
----------------------------------
Brian Parker
Senior Vice President and Chief
Financial Officer of each of the
Subsidiaries listed on Schedule I
attached hereto
<PAGE>
Exhibit 10.3
PLEDGE AGREEMENT
THIS AGREEMENT, dated as of January 26, 1998, among GRUBB & ELLIS
COMPANY, a Delaware corporation (the "Borrower"), each of the undersigned
Subsidiaries of the Borrower, identified in Schedule I attached hereto and
made a part hereof (each a "Guarantor" and collectively with the Borrower
the "Pledgors"), and PNC BANK, NATIONAL ASSOCIATION (the "Agent"), as Agent
for the Banks, as such term is defined in the Amended and Restated Credit
Agreement dated as of January 26, 1998, among, INTER ALIA, the Borrower,
the Guarantors, the Agent and the Banks (the "Credit Agreement")
WITNESSETH THAT:
WHEREAS, each Pledgor is the legal and beneficial owner and the holder
of its respective Pledged Collateral (as defined in Section 1(b) hereof) as
set forth on Exhibit A hereto; and
WHEREAS, pursuant to the Credit Agreement the Banks may make certain
loans to the Borrower and the Agent may issue certain letters of credit for
the account of the Borrower and its Subsidiaries; and
WHEREAS, the obligations of the Banks to make loans and the
obligations of the Agent to issue letters of credit under the Credit
Agreement are subject to the condition, among others, that each Pledgor
secure its obligations to the Agent and the Banks under the Credit
Agreement in the manner set forth therein and herein;
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto covenant and agree as follows:
1. DEFINITIONS. Terms which are defined in the Credit Agreement and not
otherwise defined herein are used herein as defined therein. In addition
to the words and terms defined elsewhere in this Pledge Agreement (the
"Pledge Agreement"), the following words and terms shall have the following
meanings, respectively, unless the context hereof otherwise clearly
requires:
(a) "Code" shall mean the Uniform Commercial Code as in effect in the
Commonwealth of Pennsylvania or other applicable jurisdiction on the date
hereof and as the same may subsequently be amended from time to time.
(b) "Pledged Collateral" shall mean and include with respect to each
Pledgor (i) the securities listed on Exhibit A attached hereto and made a
part hereof, with respect to each Pledgor, and all rights and privileges
pertaining thereto, including, without limitation, all securities and
additional securities receivable in respect of or in exchange for such
securities, all rights to subscribe for securities incident to or arising
from ownership of such securities, all cash, interest,
<PAGE>
stock and other dividends or distributions paid or payable on such
securities, and all books and records pertaining to the foregoing,
including, without limitation, all stock record and transfer books, (ii)
any and all other securities hereafter pledged to the Banks to secure the
Obligations and the Pledgor's obligations hereunder, and all rights and
privileges pertaining thereto, including, without limitation, all
securities and additional securities receivable in respect of or in
exchange for such securities, all rights to subscribe for securities
incident to or arising from ownership of such securities, all cash,
interest, stock and other dividends or distributions paid or payable on
such securities, and all books and records pertaining to the foregoing,
including, without limitation, all stock record and stock transfer books,
and (iii) whatever is received when any of the foregoing is sold, exchanged
or otherwise disposed of, including any proceeds as such term is defined in
the Code.
2. NOT A NOVATION. This Pledge Agreement amends and restates that certain
Pledge Agreement dated March 13, 1997, among the Pledgors and PNC Bank,
National Association. This Pledge Agreement is not intended as a novation,
and shall not be a novation, of the obligations of the parties thereto and
hereto.
3. PLEDGE. As security for the due and punctual payment and performance of
the Obligations in full, each Pledgor hereby agrees that the Agent shall
have, and each Pledgor hereby grants to and creates in favor of the Agent
for the benefit of the Banks, a first priority security interest under the
Code in and to all of the Pledged Collateral, which security interest
constitutes a Prior Security Interest.
4. DELIVERY OF CERTIFICATES, ETC. Upon the execution and delivery of this
Pledge Agreement, each Pledgor has delivered to and deposited with the
Agent in pledge, stock certificates and any other instruments evidencing
the Pledged Collateral, together with undated stock powers signed in blank
by such Pledgor as the Agent shall have required.
5. REPRESENTATIONS AND WARRANTIES. Each Pledgor represents and warrants to
the Agent and the Banks as follows:
(a) The Pledgor has good and marketable title to the Pledged
Collateral;
(b) Any shares of capital stock of a Subsidiary forming part of the
Pledged Collateral have been duly authorized and validly issued to the
Pledgor, are fully paid and nonassessable and constitute all of the issued
and outstanding stock of such Subsidiary, and there are no outstanding
options or rights to purchase or acquire any additional shares of capital
stock of such Subsidiary;
(c) Other than the security interest granted to and created in favor
of the Agent hereunder, all of the Pledged Collateral is free and clear of
any pledge, lien, security interest, encumbrance, option or rights of
others, other than Permitted Liens and except to the extent transfer of the
Pledged Collateral may be restricted by the federal Securities Act of 1933,
as amended, and state securities laws; and
-2-
<PAGE>
(d) The Pledgor has delivered to the Agent a true and correct copy of
the articles or certificate of incorporation, bylaws and other
organizational documents of each Subsidiary of a Pledgor the shares of
capital stock of which constitute part of the Pledged Collateral.
6. FURTHER ASSURANCES. Each Pledgor will faithfully preserve and protect the
Agent's security interest in the Pledged Collateral as a first priority
perfected security interest under the Code, and will do all such other acts
and things, and will upon request therefor by the Agent execute and deliver
all such other documents and instruments, including, without limitation,
further pledges, assignments, documents and powers of attorney with respect
to its Pledged Collateral consistent with the terms of this Pledge
Agreement and the Credit Agreement, as the Agent may deem necessary or
advisable from time to time in order to preserve, perfect and protect said
security interest.
7. CERTAIN COVENANTS OF THE PLEDGOR. Each Pledgor covenants and agrees that
(a) it will defend the Banks' right, title and security interest in and to
the Pledged Collateral and the proceeds thereof against the claims and
demands of all persons whomsoever other than any Person claiming a right in
the Pledged Collateral pursuant to an agreement between such Person and the
Banks and other than the holder of a Permitted Lien; (b) it will have like
title to and right to pledge any other property at any time hereafter
pledged to the Agent pursuant to the Credit Agreement and will likewise
defend the Agent's right thereto and security interest therein; (c) except
as permitted by the Credit Agreement it will not assign, transfer, pledge,
or otherwise encumber any of its right, title or interest under, in or to
the Pledged Collateral other than pursuant hereto; (d) except as permitted
by the Credit Agreement it will not take or omit to take any action, or
permit any Subsidiary, any shares of capital stock of which constitute a
part of the Pledged Collateral, to take or omit to take any action, the
taking or the omission of which might result in an alteration or impairment
of the Pledged Collateral or of this Pledge Agreement; (e) it will not
permit any Subsidiary, any shares of capital stock of which constitute a
part of the Pledged Collateral, to repeal, amend or modify its articles or
certificate of incorporation, bylaws or other organizational documents,
other than as permitted under the terms of the Credit Agreement; (f) it
will cause each Subsidiary, any shares of capital stock of which constitute
a part of the Pledged Collateral, to maintain accurate stock record and
stock transfer books, and upon request of the Agent, provide the Agent with
access to and copies of such stock record and stock transfer books; (g) it
will not, without the prior written consent of the Agent, waive or release
any obligation of any party to the Pledged Collateral; and (h) it will
execute and deliver to the Agent and record such supplements to this Pledge
Agreement and additional assignments as the Agent reasonably may request to
evidence and confirm the pledge herein contained.
8. PROTECTION OF THE BANKS' INTEREST IN THE PLEDGED COLLATERAL AGAINST OTHERS.
Each Pledgor assumes full responsibility for taking any and all necessary
steps to preserve the Banks' rights, other than Permitted Liens, with
respect to its Pledged Collateral against all others, including the
respective issuers of capital stock forming part of the Pledged Collateral.
The Agent shall be deemed to have exercised reasonable care in the custody
and preservation of the Pledged Collateral in its possession if the Agent
takes such action for that purpose as the Pledgor shall request in writing
(or in the absence of such request, if the Agent deals with it in the same
manner that it deals with
-3-
<PAGE>
similar property for its own account) , provided that such requested action
will not, in the judgment of the Agent, impair the security interest in the
Pledged Collateral created hereby or the Banks' rights in, or the value of,
the Pledged Collateral, and provided further that such written request is
received by the Agent in sufficient time to permit the Agent to take the
requested action.
9. CONTINUATION OF PERFECTION OF SECURITY INTEREST. Each Pledgor shall at
such Pledgor's own cost and expense cause the security interest in its
Pledged Collateral granted to and created in favor of the Banks under this
Pledge Agreement to be perfected and continue to be perfected as long as
the Obligations or any part thereof is outstanding and unpaid or not
performed in full, and for such purpose such Pledgor shall from time to
time deliver possession to the Agent of and execute, deliver and file or
record (or cause to be filed or recorded) such instruments, documents and
notices (including, without limitation, amendments or supplements to this
Pledge Agreement, financing statements and continuation statements) as the
Agent may deem necessary or advisable from time to time in order to
confirm, perfect and preserve such security interest. The Agent is hereby
irrevocably appointed attorney-in-fact of each Pledgor to do all acts and
things which the Banks, in the exercise of its responsibilities under the
Credit Agreement, may deem necessary or advisable to perfect and continue
perfected the Banks' security interest in the Pledged Collateral.
10. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default or Potential Default shall have
occurred and is continuing:
(i) Each 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 Pledge Agreement or the Credit Agreement;
PROVIDED, HOWEVER, that such Pledgor shall not exercise or
refrain from exercising any such right if such action or inaction
would REASONABLY BE LIKELY to have a material adverse effect on
the value of the Pledged Collateral or any part thereof;
(ii) Any and all instruments and other property (other than cash
dividends) received, receivable or otherwise distributed in
respect of, or in exchange for, any of the Pledged Collateral
shall be forthwith delivered to the Agent to hold as part of the
Pledged Collateral and shall, if received by any Pledgor, be
received in trust for the benefit of the Banks, be segregated
from the other property or funds of such Pledgor, and be
forthwith delivered to the Agent as Pledged Collateral in the
same form as so received (with any necessary endorsement). To
the extent permitted by the Credit Agreement, a Pledgor may
receive and retain cash dividends from any of the Subsidiaries;
and
-4-
<PAGE>
(iii) The Agent shall execute and deliver (or cause to be
executed and delivered) to any Pledgor all such proxies and other
instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to exercise the voting and other
rights which it is entitled to exercise pursuant to paragraph (i)
above, and to receive the dividends which it is authorized to
receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of
Default or Potential Default under the terms of the Credit Agreement:
(i) All rights of any Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to
exercise pursuant to Section 9(a)(i) and to receive the dividends
which it would otherwise be authorized to receive and retain
pursuant to Section 9(a)(ii) shall cease, and all such rights
shall, upon notice by the Agent to such Pledgor, become vested in
the Agent, who shall thereupon have the sole right to exercise
such voting and other consensual rights and the sole right to
receive and hold as Pledged Collateral such dividends and apply
them to payment of the Obligations; and
(ii) All dividends which are received by any Pledgor contrary to
the provisions of paragraph (i) of this Section 9(b) shall be
received in trust for the benefit of the Banks, shall be
segregated from other funds of such Pledgor and shall be
forthwith paid over to the Agent as Pledged Collateral in the
same form as so received (with any necessary endorsement).
In the event of any inconsistency between the provisions of this Section 9
and Section 9.2.5 of the Credit Agreement, the terms of the Credit
Agreement shall control.
11. REMEDIES UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. If there shall have
occurred and is then continuing an Event of Default under the terms of the
Credit Agreement, then the Agent and the Banks shall have such rights and
remedies with respect to the Pledged Collateral or any part thereof and the
proceeds thereof as are provided by the Code and such other rights and
remedies with respect thereto which it may have at law or in equity or
under this Pledge Agreement, including without limitation, to the extent
not inconsistent with the provisions of the Code, the right to (a) transfer
all or any part of the Pledged Collateral into the Agent's name or into the
name of its nominee and thereafter receive all cash, stock and other
dividends or distributions paid or payable in respect thereof, and
otherwise act with respect thereto for the benefit of the Banks as the
absolute owner thereof, and (b) sell, assign, give an option or options to
purchase or otherwise dispose of all or any part of the Pledged Collateral
at any public or private sale at such place or places and at such time or
times and upon such terms, whether for cash or on credit, and in such
manner as the Banks may determine, and apply the proceeds so received in
accordance with the terms of the Credit Agreement. Each Pledgor shall be
liable for any deficiency if the
-5-
<PAGE>
proceeds of any sale, assignment, giving of an option or options to
purchase or other disposition of its Pledged Collateral is insufficient to
pay all amounts to which the Banks are entitled.
12. NOTICE OF SALE OF THE PLEDGED COLLATERAL BY THE AGENT. If any notification
of intended sale of any of the Pledged Collateral is required by law, such
notification shall be deemed reasonable if provided at least ten (10) days
before such sale, addressed to the Pledgor as provided in Section 11.6 of
the Credit Agreement.
13. NATURE OF SALE. Each Pledgor recognizes that the Agent may be compelled to
resort to one or more private sales of the Pledged Collateral to a
restricted group of purchasers who will be obliged to agree, among other
things, to acquire such securities for their own account for investment and
not with a view to the distribution or resale thereof. Each Pledgor
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable to the seller than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private
sale shall not, for such reason alone, be deemed to have been made in a
commercially unreasonable manner. The Agent shall not be under any
obligation to delay a sale of any of the Pledged Collateral for the period
of time necessary to permit the issuer of such securities to register such
securities for public sale under the federal Securities Act of 1933, as
amended, or under applicable state securities laws, even if the issuer
would agree to do so.
14. TERMINATION. Upon payment in full of the Loans, Reimbursement Obligations
and Letter of Credit Borrowings and interest thereon, expiration or
termination of all Letters of Credit, satisfaction of all of the Loan
Parties' other Obligations and the termination of the Commitments, this
Pledge Agreement shall terminate and be of no further force and effect, and
the Agent shall thereupon promptly return to each Pledgor such of the
Pledged Collateral and such other documents delivered by such Pledgor
hereunder as may then be in the Agent's possession and execute such
documents, instruments, agreements or any combination thereof as the
Pledgors shall reasonably request to evidence such termination.. Until
such time, however, this Pledge Agreement shall be binding upon and inure
to the benefit of the parties hereto, their respective successors and
assigns.
15. NO WAIVER. No failure or delay on the part of the Agent or the Banks in
exercising any right, remedy, power or privilege hereunder shall operate as
a waiver thereof or of any other right, remedy, power or privilege of the
Agent or the Banks hereunder; nor shall any single or partial exercise of
any such right, remedy, power or privilege preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights and remedies of the Agent and the Banks under this
Pledge Agreement are cumulative and not exclusive of any rights or remedies
which it may otherwise have.
16. NOTICES. All notices, statements, requests and demands given to or made
upon either party hereto in accordance with the provisions of this Pledge
Agreement shall be given or made as provided in Section 11.6 of the Credit
Agreement.
17. SUCCESSORS AND ASSIGNS. This Pledge Agreement shall be binding upon and
inure to the benefit of the Agent and the Banks and their respective
successors and assigns, and each Pledgor and its
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<PAGE>
successors and assigns, except that the Pledgors may not assign or transfer
the respective Pledgor's obligations hereunder or any interest herein.
18. GOVERNING LAW. This Pledge Agreement shall be deemed to be a contract
under the laws of the Commonwealth of Pennsylvania and for all purposes
shall be governed by and construed in accordance with the laws of said
Commonwealth excepting its rules relating to conflicts of Law.
19. SURVIVAL. Any provision of this Pledge Agreement which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
[Signatures appear on the next page.]
-7-
<PAGE>
[SIGNATURE PAGE 1 OF 1 TO PLEDGE AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Pledge Agreement as of the day
and year first above set forth.
GRUBB & ELLIS COMPANY
By /s/ Brian Parker
-----------------
Brian Parker
Senior Vice President and Chief
Financial Officer
EACH PLEDGOR LISTED ON SCHEDULE I
By /s/ Brian Parker
------------------
Brian Parker
Senior Vice President and Chief
Financial Officer of each Pledgor listed
on Schedule I
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By /s/ Jay C. Baker
------------------
Jay C. Baker
Senior Vice President
<PAGE>
Exhibit 10.4
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement"), dated January 26, 1998, is
entered into by and among GRUBB & ELLIS COMPANY, a Delaware corporation (the
"Borrower"), and EACH OF THE CORPORATIONS LISTED AS A SUBSIDIARY ON THE ATTACHED
SCHEDULE I (the "Subsidiaries" being collectively referred to herein together
with the Borrower as the "Debtors" and individually as a "Debtor"), and PNC
BANK, NATIONAL ASSOCIATION, in its capacity as Agent for the Banks (the
"Agent");
WITNESSETH THAT:
WHEREAS, each Debtor is (or will be with respect to after-acquired
property) the legal and beneficial owner and the holder of its respective
Collateral (as defined in Section 1 hereof); and
WHEREAS, pursuant to that certain Amended and Restated Credit Agreement (as
it may hereafter from time to time be restated, amended, modified or
supplemented, the "Credit Agreement") of even date herewith among, INTER ALIA,
the Banks, Grubb & Ellis Company, a Delaware corporation (the "Borrower"), the
Guarantors and the Agent, the Banks and the Agent have agreed to make certain
loans to the Borrower and issue letters of credit for the account of the
Borrower and the Guarantors; and
WHEREAS, the obligation of the Banks and the Agent to make loans and issue
letters of credit under the Credit Agreement is subject to the condition, among
others, that each of the Debtors secure its obligations to the Banks and the
Agent under the Credit Agreement and the other Loan Documents in the manner set
forth herein.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. Terms which are defined in the Credit Agreement and not otherwise
defined herein are used herein as defined therein. The following words and
terms shall have the following meanings, respectively, unless the context hereof
otherwise clearly requires:
(a) "Code" means the Uniform Commercial Code of each state as in
effect on the date hereof and as the same may subsequently be amended from time
to time, the substantive provisions of which are applicable to any of the
property of the Debtors in which the Agent and the Banks are granted a security
interest pursuant to this Agreement.
(b) "Collateral" means, in the case of each Debtor, all of its right,
title and interest in, to and under the following described property of such
Debtor (each capitalized term used in this Section 1(b) shall have in this
Agreement the meaning given to it by Article 9 of the Code as in effect in
Pennsylvania):
<PAGE>
(i) all now existing and hereafter acquired and arising
Accounts, General Intangibles, Chattel Paper, Investment Property, Documents,
Instruments, Letters of Credit, Advices of Credit, Equipment, and Inventory, all
Products of and Accessions to the foregoing and all Proceeds of all of the
foregoing (including without limitation all insurance policies and proceeds
thereof);
(ii) to the extent, if any, not included in clause (i) above,
each and every other item of personal property and fixtures, both those that are
now owned and those that hereafter arise or are acquired, regardless of whether
Article 9 of the Code is applicable to any extent to the creation, perfection or
enforcement of Liens thereon or therein.
Without limiting the foregoing and to the extent permitted by applicable Law,
Collateral includes all business records and information, including computer
tapes and other storage media containing the same and computer programs and
software (including without limitation, source code, object code and related
manuals and documentation and all licenses to use such software) for accessing
and manipulating such information.
The definition of Collateral shall not include the general or limited
partnership interests of the Debtors in the Existing Partnerships to the extent
that the grant of a security interest in such partnerships interests is not
permitted under the terms of the applicable partnership agreement.
Notwithstanding anything to the contrary contained herein or in the other Loan
Documents, the Agent and the Banks will not take any action pursuant to this
Agreement, the Credit Agreement or any other Loan Document that would constitute
or result in any assignment of any rights under or with respect to any General
Intangible, license, permit or authorization without first obtaining the prior
approval of the applicable federal, state or local governmental authority, if,
under the existing Law, such assignment of any rights under or with respect to
any General Intangible, license, permit or authorization would require the prior
approval of such federal, state or local governmental authority. Prior to the
exercise by the Agent and the Banks of any power, right, privilege or remedy
pursuant to this Agreement which requires any consent, approval, recording,
qualification or authorization of any federal, state or local governmental
authority or instrumentality, appropriate Debtor will execute and deliver, or
will cause the execution and delivery of, all applications, certificates,
instruments and other documents and papers that the Agent and the Banks may be
required to obtain for such governmental consent, approval, recording,
qualification or authorization. Without limiting the generality of the
foregoing, such Debtor will use its best efforts upon the request of the Agent
or the Banks to obtain from the appropriate governmental authorities the
necessary consents and approvals, if any (i) for the granting to the Agent
pursuant hereto of the security interest provided for in this Agreement to the
extent, if any, such security interest may be granted under existing statutes or
regulations and (ii) for the assignment or transfer of such authorizations,
licenses and permits to the Agent or its designee upon or following the
occurrence and during the continuance of an Event of Default.
(c) "Debt" means, collectively, all now existing and hereafter
arising Indebtedness of the Borrower and the other Debtors to the Agent and the
Banks under the Credit Agreement, the Guaranty Agreement of the Debtors and
other Loan Documents, including without limitation, all Indebtedness, whether of
principal, interest, fees, expenses or otherwise, of
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<PAGE>
the Borrower and the Debtors to the Agent and the Banks now existing or
hereafter incurred under the Credit Agreement, the Guarantee Agreement of the
Debtors or the Notes, or any of the other Loan Documents referred to therein as
any of the same or any one or more of them may from time to time be amended,
restated, modified or supplemented, together with any and all extensions,
renewals, refinancings or refundings thereof in whole or in part.
(d) "Receivables" means all of the Collateral except Equipment and
Inventory.
2. As security for the due and punctual payment and performance of the
Debt in full, each Debtor hereby agrees that the Agent for the benefit of the
Banks, and the Agent and the Banks shall have, and each Debtor hereby grants to
and creates in favor of the Agent for the benefit of the Banks, a first priority
security interest under the Code and lien in and to each Debtor's respective
Collateral subject only to Permitted Liens. Without limiting the generality of
Section 4 below, each Debtor further agrees that with respect to each item of
Collateral as to which (i) the creation of a valid and enforceable security
interest is not governed exclusively by the Code or (ii) the perfection of a
valid and enforceable security interest therein under the Code cannot be
accomplished either by the Agent's taking possession thereof or by the filing in
appropriate locations of appropriate Code financing statements executed by the
Debtor, such Debtor will at its expense execute and deliver to the Agent such
documents, agreements, notices, assignments and instruments and take such
further actions as may be requested by the Agent from time to time for the
purpose of creating a valid and perfected first priority Lien on such item,
subject only to Permitted Liens, enforceable against the Debtor and all third
parties to secure the Debt.
3. Each Debtor jointly and severally represents and warrants to the
Agent and the Banks that (a) such Debtor has good and marketable title to its
Collateral, and (b) except for the security interest granted to and created in
favor of the Agent hereunder and Permitted Liens, all the Collateral is free and
clear of any Lien.
4. Each Debtor will faithfully preserve and protect the Agent's security
interest in such Debtor's Collateral as a prior perfected security interest
under the Code, superior and prior to the rights of all third Persons, except
for Permitted Liens, and will, upon request therefor by the Agent, do all such
other acts and things and will, upon request therefor by the Agent, execute,
deliver, file and record all such other documents and instruments, including,
without limitation, financing statements, security agreements, assignments and
documents and powers of attorney with respect to the Collateral, and pay all
filing fees and taxes related thereto, as the Agent in its reasonable discretion
deems necessary or advisable from time to time in order to attach, continue,
preserve, perfect and protect said security interest; and each Debtor hereby
irrevocably appoints the Agent, its officers, employees and agents, or any of
them, as attorneys-in-fact for such Debtor to execute, deliver, file and record
such items for such Debtor and in such Debtor's name, place and stead. This
power of attorney, being coupled with an interest, shall be irrevocable for the
life of this Agreement.
5. Each Debtor jointly and severally covenants and agrees that:
-3-
<PAGE>
(a) it will defend the Agent and the Banks' right, title and security
interest in and to the Collateral and the proceeds thereof against the claims
and demands of all Persons whomsoever, other than any Person claiming a right in
the Collateral pursuant to an agreement between such Person and the Banks and
other than the holder of a Permitted Lien;
(b) it will not suffer or permit to exist on any Collateral any Lien
except for Permitted Liens;
(c) it will not take or omit to take any action, the taking or the
omission of which might result in a material alteration or impairment of the
Collateral or of the Agent's or the Banks' rights under this Agreement;
(d) except as permitted by the Credit Agreement it will not sell,
assign or otherwise dispose of any portion of the Collateral;
(e) it will (i) obtain and maintain sole and exclusive possession or
control of the Collateral, (ii) keep the Collateral and all records pertaining
thereto at the locations specified on the Security Interest Data Summary
attached as SCHEDULE A hereto, unless it shall have given the Agent prior notice
and taken any action reasonably requested by the Agent to maintain its security
interest therein, (iii) deliver to the Agent upon the Agent's request therefor
all Collateral consisting of Chattel Paper immediately upon such Debtor's
receipt of a request therefor, and (iv) keep materially accurate and complete
books and records concerning the Collateral and such other books and records as
the Agent may from time to time reasonably require;
(f) it will promptly furnish to the Agent and the Banks such
information and documents relating to the Collateral as the Agent and the Banks
may reasonably request, including, without limitation, all invoices, Documents,
contracts, Chattel Paper, Instruments and other writings pertaining to such
Debtor's contracts or the performance thereof; all of the foregoing to be
certified upon request of the Agent by an Authorized Officer of such Debtor;
6. Each Debtor assumes full responsibility for taking any and all
necessary steps to preserve the Agent and the Banks' rights with respect to the
Collateral against all Persons other than anyone asserting rights in respect of
a Permitted Lien. The Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Collateral in its possession if the Agent
takes such action for that purpose as the Debtors shall request in writing or in
the absence of such request, if the Agent deals with it in the same manner that
it deals with similar property for its own account, provided that such requested
action will not, in the judgment of the Agent, impair the security interest in
the Collateral created hereby or the Agent or the Banks' rights in, or the value
of, the Collateral, and provided further that such written request is received
by the Agent in sufficient time to permit the Agent to take the requested
action.
7. (a) At any time and from time to time whether or not an Event of
Default then exists and without prior notice to or consent of the Debtors, the
Agent and the Banks may at its option take such actions as the Agent and the
Banks deems appropriate (i) to attach, perfect, continue, preserve and protect
the Agent's prior security interest in the Collateral, and/or (ii) inspect,
audit and verify the Collateral, including reviewing all of the Debtors' books
and
-4-
<PAGE>
records and copying and making excerpts therefrom, provided that prior to an
Event of Default or a Potential Default, the same is done with advance notice
during normal business hours to the extent access to any of the Debtors'
premises is required, and to add all liabilities, obligations, costs and
expenses reasonably incurred in connection with the foregoing clauses (i) and
(ii) to the Debt, to be paid by the Debtors to the Agent upon demand;
(b) At any time and from time to time after an Event of Default
exists and is continuing and without prior notice to or consent of the Debtors,
the Agent and the Banks may at its option take such action as the Agent and the
Banks deems appropriate (i) to maintain, repair, protect and insure the
Collateral, and/or (ii) to perform, keep, observe and render true and correct
any and all covenants, agreements, representations and warranties of the Debtors
hereunder, and to add all liabilities, obligations, costs and expenses
reasonably incurred in connection with the foregoing clauses (i) and (ii) to the
Debt, to be paid by the Debtors to the Agent upon demand.
8. After the occurrence and during the continuance of an Event of Default
under the Credit Agreement:
(a) The Agent and the Banks shall have and may exercise all the
rights and remedies available to a secured party under the Code in effect at the
time, and such other rights and remedies as may be provided by Law and as set
forth below, including without limitation to take over and collect all the
Debtors' Receivables and all other Collateral, and to this end each Debtor
hereby appoints the Agent, its officers, employees and agents, as its
irrevocable, true and lawful attorneys-in-fact with all necessary power and
authority to (i) take possession immediately, with or without notice, demand, or
legal process, of any of or all of the Collateral wherever found, and for such
purposes, enter upon any premises upon which the Collateral may be found and
remove the Collateral therefrom, (ii) require the Debtors to assemble the
Collateral and deliver it to the Agent or to any place designated by the Agent
at the Debtors' expense, (iii) receive, open and dispose of all mail addressed
to any Debtor and notify postal authorities to change the address for delivery
thereof to such address as the Agent may designate, (iv) demand payment of the
Receivables, (v) enforce payment of the Receivables by legal proceedings or
otherwise, (vi) exercise all of the Debtors' rights and remedies with respect to
the collection of the Receivables, (vii) settle, adjust, compromise, extend or
renew the Receivables, (viii) settle, adjust or compromise any legal proceedings
brought to collect the Receivables, (ix) to the extent permitted by applicable
Law, sell or assign the Receivables upon such terms, for such amounts and at
such time or times as the Agent deems advisable, (x) discharge and release the
Receivables, (xi) take control, in any manner, of any item of payment or
proceeds from any account debtor, (xii) prepare, file and sign the Debtor's name
on any Proof of Claim in Bankruptcy or similar document against any account
debtor, (xiii) prepare, file and sign the Debtor's name on any notice of Lien,
assignment or satisfaction of Lien or similar document in connection with the
Receivables, (xiv) do all acts and things necessary, in the Agent's sole
discretion, exercised in good faith, to fulfill the Debtors' obligations under
the Loan Documents, (xv) endorse the name of the Debtor upon any check, Chattel
Paper, Document, Instrument, invoice, freight bill, bill of lading or similar
document or agreement relating to the Receivables or Inventory; (xvi) use the
Debtor's stationery and sign the Debtor's name to verifications of the
Receivables and notices thereof to account debtors; (xvii) access and use the
information recorded on or contained in any data processing equipment or
computer hardware or software relating to the Receivables,
-5-
<PAGE>
Inventory, or other Collateral or proceeds thereof to which the Debtor has
access, (xviii) demand, sue for, collect, compromise and give acquittances for
any and all Collateral, (xix) prosecute, defend or compromise any action, claim
or proceeding with respect to any of the Collateral, and (xx) take such other
action as the Agent may deem appropriate with respect to the Collateral,
including extending or modifying the terms of payment of the Debtor's debtors.
This power of attorney, being coupled with an interest, shall be irrevocable for
the life of this Agreement. To the extent permitted by Law, each Debtor hereby
waives all claims of damages due to or arising from or connected with any of the
rights or remedies exercised by the Agent and the Banks pursuant to this
Agreement, except claims for physical damage to the Collateral arising from
gross negligence or willful misconduct by the Agent and the Banks.
(b) The Agent and the Banks shall have the right to lease, sell or
otherwise dispose of all or any of the Collateral at public or private sale or
sales for cash, credit or any combination thereof, with such notice as may be
required by Law (it being agreed by each Debtor that, in the absence of any
contrary requirement of Law, ten (10) days' prior notice of a public or private
sale of Collateral shall be deemed reasonable notice), in lots or in bulk, for
cash or on credit, all as the Agent and the Banks, in their absolute discretion
exercised in good faith, may deem advisable. Such sales may be adjourned from
time to time with or without notice. The Agent and the Banks shall have the
right to conduct such sales on any Debtor's premises or elsewhere and shall have
the right to use any Debtor's premises without charge for such sales for such
time or times as the Agent and the Banks may see fit. The Agent and the Banks
may purchase all or any part of the Collateral at public or, if permitted by
Law, private sale and, in lieu of actual payment of such purchase price, may set
off the amount of such price against the Debt.
9. The security interest in each Debtor's Collateral granted to and
created in favor of the Agent by this Agreement shall be for the benefit of the
Agent and the Banks. Each of the rights, privileges, and remedies provided to
the Agent and the Banks hereunder or otherwise by Law with respect to each
Debtor's Collateral shall be exercised by the Agent and the Banks only for its
own benefit, and any of the Debtor's Collateral or proceeds thereof held or
realized upon at any time by the Agent and the Banks shall be applied as set
forth in Section 9.2.5 of the Credit Agreement. Each Debtor shall remain liable
to the Agent and the Banks for and shall pay to the Agent and the Banks any
deficiency which may remain after such sale or collection.
10. If the Agent and the Banks repossesses or seeks to repossess any of
the Collateral pursuant to the terms hereof because of the occurrence and
continuance of an Event of Default, then to the extent it is commercially
reasonable for the Agent and the Banks to store any Collateral on any Debtor's
premises, such Debtor, to the extent it has the right to do so, hereby agrees to
lease to the Agent and the Banks on a month-to-month tenancy for a period not to
exceed one hundred twenty (120) days at the Banks' election, at a rental of One
Dollar ($1.00) per month, the premises on which the Collateral is located,
provided it is located on premises owned or leased by such Debtor.
11. Upon indefeasible payment in full of the Debt, expiration of the
Letters of Credit and termination of the Credit Agreement and the Commitments,
this Agreement shall terminate and be of no further force and effect, and the
Agent and the Banks shall thereupon promptly return to each Debtor such of its
Collateral and such other documents delivered by such Debtor
-6-
<PAGE>
hereunder as may then be in the Agent and the Banks' possession and execute such
documents, instruments, agreements or any combination thereof as the Debtors
shall reasonably request to evidence such termination. Until such time,
however, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Upon any
sale or other transfer of any Collateral which sale is not prohibited by and
which disposition is made in accordance with the Credit Agreement, the Agent and
the Banks shall (i) release its security interest on the Collateral being sold
or transferred and (ii) execute such documents, instruments, agreements or any
combination thereof as the Debtor shall request to evidence such termination.
12. No failure or delay on the part of the Agent or the Banks in
exercising any right, remedy, power or privilege hereunder shall operate as a
waiver thereof or of any other right, remedy, power or privilege of the Agent
and the Banks hereunder; nor shall any single or partial exercise of any such
right, remedy, power or privilege preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. No waiver of a
single Event of Default shall be deemed a waiver of a subsequent Event of
Default. All waivers under this Agreement must be in writing. The rights and
remedies of the Agent and the Banks under this Agreement are cumulative and in
addition to any rights or remedies which it may otherwise have, and the Agent
and the Banks may enforce any one or more remedies hereunder successively or
concurrently at its option.
13. All notices, statements, requests and demands given to or made upon
either party hereto in accordance with the provisions of this Agreement shall be
given or made as provided in Section 11.6 of the Credit Agreement.
14. Each Debtor agrees that as of the date hereof, all information
contained on the Security Interest Data Schedule attached hereto as SCHEDULE A
is accurate and complete and contains no omission or misrepresentation. The
Debtors shall promptly notify the Agent of any changes in the information set
forth thereon.
15. Each Debtor acknowledges that the provisions hereof giving the Agent
and the Banks rights of access to books, records and information concerning the
Collateral and such Debtor's operations and providing the Agent and the Banks
access to such Debtor's premises are intended to afford the Agent and the Banks
with immediate access to current information concerning such Debtor and its
activities, including without limitation, the value, nature and location of the
Collateral so that the Agent and the Banks can, among other things, make an
appropriate determination after the occurrence of an Event of Default, whether
and when to exercise its other remedies hereunder and at Law, including without
limitation, instituting a replevin action should such Debtor refuse to turn over
any Collateral to the Agent and the Banks. Each Debtor further acknowledges
that should such Debtor at any time fail to promptly provide such information
and access to the Agent and the Banks, such Debtor acknowledges that the Agent
and the Banks would have no adequate remedy at Law to promptly obtain the same.
Each Debtor agrees that the provisions hereof may be specifically enforced by
the Agent and the Banks and waives any claim or defense in any such action or
proceeding that the Agent and the Banks have an adequate remedy at Law.
-7-
<PAGE>
16. This Agreement shall be binding upon and inure to the benefit of the
Agent and the Banks and their respective successors and assigns, and each Debtor
and its respective successors and assigns, except that the Debtors may not
assign or transfer the Debtor's obligations hereunder or any interest herein.
17. This Agreement shall be deemed to be a contract under the laws of the
Commonwealth of Pennsylvania and for all purposes shall be governed by and
construed in accordance with the laws of said Commonwealth excluding its rules
relating to conflicts of Law.
18. Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall not invalidate the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
19. This Agreement amends and restates that certain Security Agreement
dated March 13, 1997, between the Debtors and PNC Bank, National Association.
This Agreement is not intended as a novation, and shall not be a novation, of
the obligations of the parties thereto and hereto.
[SIGNATURES APPEAR ON NEXT PAGE]
-8-
<PAGE>
[SIGNATURE PAGE 1 OF 1 TO SECURITY AGREEMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the day and year
first above set forth.
GRUBB & ELLIS COMPANY
By /s/ Brian Parker
-----------------
Brian Parker
Senior Vice President and Chief
Financial Officer
EACH OF THE CORPORATIONS LISTED AS A
SUBSIDIARY ON THE ATTACHED SCHEDULE I
By /s/ Brian Parker
-----------------
Brian Parker
Senior Vice President and Chief
Financial Officer of each of the
Subsidiaries listed on Schedule I
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By /s/ Jay C. Baker
------------------
Jay C. Baker
Senior Vice President
<PAGE>
Exhibit 10.5
TRADEMARK SECURITY AGREEMENT
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby
acknowledged, the undersigned ______________________ ("Debtor"), a ____________
corporation, hereby conveys a security interest to PNC BANK, NATIONAL
ASSOCIATION (the "Agent"), a national banking association, as agent for the
Banks, as such term is defined in the Amended and Restated Credit Agreement of
even date herewith among, INTER ALIA, the Debtor, the Banks and the Agent, as
the same may be amended and modified from time to time (the "Credit Agreement"),
in all of the Debtor's right, title and interest in and to (i) the trademarks
and any applications therefor listed on EXHIBIT A hereto and (ii) any United
States federally registered other trademarks and applications therefor which
Debtor shall hereafter acquire, in each case including without limitation all
proceeds thereof, (all of the aforesaid property being hereinafter referred to
as the "Collateral") as security for the payment when due whether by
declaration, acceleration or otherwise of the principal of and interest on each
and every loan of the Banks to the Debtor and each and every other liability of
Debtor to the Agent and the Banks, including (i) all "Obligations", as such term
is defined in the Credit Agreement, (ii) liabilities now in existence, (iii)
liabilities incurred or arising contemporaneously herewith, and (iv) liabilities
that shall hereafter be incurred or arise (collectively, the "Liabilities").
Capitalized terms not otherwise defined herein shall have the meanings given to
them in the Credit Agreement unless the context clearly indicates otherwise.
<PAGE>
1. Debtor covenants and warrants that as of the date hereof and to the
best of its knowledge:
(a) Each of the trademarks constituting a part of the Collateral is
subsisting and has not been adjudged invalid or unenforceable;
(b) All of the trademarks constituting a part of the Collateral are
valid and enforceable;
(c) No claim has been made that the use of any of the trademarks
constituting a part of the Collateral does or may violate the rights of any
third person;
(d) With the exception of licenses of the Collateral, the Debtor is
the sole and exclusive owner of the entire and unencumbered right, title and
interest in and to all of the trademarks constituting a part of the Collateral,
free and clear of any liens, charges and encumbrances other than Permitted Liens
(as defined in the Credit Agreement);
(e) Debtor has the unqualified right to enter into this Agreement and
perform its terms;
(f) Debtor has used, and shall continue to use for the duration of
this Agreement, consistent standards of quality in its services sold under any
trademarks constituting part of the Collateral.
2. Debtor agrees that, until such time as all of the Liabilities shall
have been satisfied in full, it shall not enter into any agreement which is
inconsistent with Debtor's obligations under this Agreement, without Agent's
prior written consent;.
3. If, during the term of this Agreement, Debtor shall at any time or
from time to time acquire any additional material United States federally
registered trademarks and/or applications
<PAGE>
therefor not then listed on Exhibit A, the Debtor shall give to Agent prompt
notice thereof in writing and the provisions hereof shall automatically apply
thereto.
4. In any case mentioned in Section 3 hereof, Debtor authorizes the Agent
to modify this Agreement by amending Exhibit A to include any material United
States federally registered trademarks and/or applications therefor so acquired
by Debtor.
5. In addition to the rights and remedies available to Agent and the
Banks hereunder, Agent and the Banks shall have such rights and remedies as are
set forth in the Credit Agreement. At such time as Debtor shall have satisfied
in full all of the Liabilities and the Commitments are terminated, this
Agreement shall terminate and Agent shall execute and deliver to Debtor all
documents, instruments, agreement or any combination thereof as may be necessary
or proper as the Debtors shall reasonably request to evidence such termination.
6. To the extent set forth in, and subject to, the Credit Agreement, any
and all reasonable fees, costs and expenses of whatever kind or nature incurred
by Agent and the Banks in connection with the filing or recording of any
documents, and the payment or discharge of reasonable counsel fees, maintenance
fees or other costs of protecting, maintaining or preserving of any of the
Collateral, or of defending or prosecuting any actions or proceedings arising
out of or related to any of the Collateral, shall be borne and paid by Debtor on
demand by Agent and until so paid shall be added to the principal amount of the
Liabilities and shall bear interest at default rate prescribed in the instrument
or instruments evidencing such Liabilities.
7. Debtor shall have the duty to prosecute diligently any application
with respect to any material trademarks constituting a part of the Collateral
pending as of the date of this Agreement or thereafter until the Liabilities
shall have been paid in full, to make any necessary
<PAGE>
federal application with respect thereto, to file and prosecute opposition and
cancellation proceedings, and to do any and all acts which are necessary to
preserve and maintain all rights in all of the material trademarks constituting
a part of the Collateral. Any expenses incurred in connection with the
Collateral shall be borne by Debtor. Debtor shall not abandon any of the
material trademarks constituting a part of the Collateral, without the consent
of Required Banks, which consent shall not be unreasonably withheld.
8. If Debtor fails to comply with any of its obligations hereunder, Agent
may after the occurrence and during the continuance of an Event of Default do so
in Debtor's name or in Agent's name, but at Debtor's expense, and Debtor hereby
agrees to in accordance with, and subject to the Credit Agreement, reimburse
Agent in full for all expenses, including reasonable attorneys' fees, incurred
by Agent in protecting, defending and maintaining any of the trademarks
constituting a part of the Collateral.
9. No course of dealing between Debtor and Agent or the Banks, nor any
failure to exercise, nor any delay in exercising, on the part of Agent and the
Banks, any right, power or privilege hereunder or under any note or instrument
evidencing any of the Liabilities or any agreement pursuant to which they were
incurred shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
10. All of Agent's and the Banks' rights and remedies with respect to any
of the trademarks constituting a part of the Collateral, whether established
hereby or by any instrument or instruments evidencing any of the Liabilities or
by any other agreements or by law, shall be cumulative and may be exercised
singularly or concurrently.
<PAGE>
11. If any provision of this Agreement is hereafter determined to be
unlawful, and if the unlawful provision can be deleted without altering the
essence of this Agreement, the unlawful provision and only that provision shall
be severed from this Agreement and the remaining provisions shall remain in full
force and effect.
12. This Agreement is subject to modification only by a writing signed by
the parties, except as provided in Section 4 hereof.
13. The benefits and burdens of this Agreement shall inure to the benefit
of and be binding upon the respective successors and permitted assigns of the
parties.
14. This Trademark Security Agreement and any other documents delivered in
connection herewith and the rights and obligations of the parties hereto and
thereto shall for all purposes be governed by and construed and enforced in
accordance with the substantive law of the Commonwealth of Pennsylvania without
giving effect to the principles of conflict of laws.
15. This Trademark Security Agreement amends and restates that certain
Trademark Security Agreement dated March 13, 1997, of the Debtor in favor of PNC
Bank, National Association. This Trademark Security Agreement is not intended
as a novation, and shall not be a novation, of the obligations of the parties
thereto and hereto.
[SIGNATURES APPEAR ON NEXT PAGE]
<PAGE>
[SIGNATURE PAGE 1 OF 1 TO TRADEMARK SECURITY AGREEMENT]
WITNESS the due execution hereof this 26th day of January, 1998.
GRUBB & ELLIS COMPANY
By /s/ Brian Parker
-----------------
Brian Parker
Senior Vice President and Chief
Financial Officer
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED CONSOLIDATED BALANCE SHEETS AND THE CONSOLIDATED STATEMENTS OF
OPERATIONS AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-START> JUL-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 33,540
<SECURITIES> 0
<RECEIVABLES> 11,625
<ALLOWANCES> 1,692
<INVENTORY> 0
<CURRENT-ASSETS> 48,492
<PP&E> 22,894
<DEPRECIATION> 15,087
<TOTAL-ASSETS> 60,296
<CURRENT-LIABILITIES> 25,484
<BONDS> 0
0
0
<COMMON> 197
<OTHER-SE> 24,281
<TOTAL-LIABILITY-AND-EQUITY> 60,296
<SALES> 0
<TOTAL-REVENUES> 81,825
<CGS> 0
<TOTAL-COSTS> 42,143
<OTHER-EXPENSES> 32,101
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 7,591
<INCOME-TAX> (949)
<INCOME-CONTINUING> 8,540
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,540
<EPS-PRIMARY> .44
<EPS-DILUTED> .39
</TABLE>
