<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 September 30, 1999
--------------------------
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
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GRUBB & ELLIS COMPANY
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(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
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(Address of principal executive offices)
(Zip Code)
(847) 753-7500
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(Registrant's telephone number, including area code)
No Change
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(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
----- -----
19,991,216
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(Number of shares outstanding of the registrant's
common stock at November 1, 1999)
<PAGE>
PART I
FINANCIAL INFORMATION
2
<PAGE>
Item 1. Financial Statements
GRUBB & ELLIS COMPANY
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except share data)
(unaudited)
<TABLE>
<CAPTION>
For the Three Months
Ended September 30,
------------------------------
1999 1998
----------- -----------
<S> <C> <C>
Revenue:
Transaction services fees $ 80,332 $ 64,213
Management services fees 14,869 11,956
----------- -----------
Total revenue 95,201 76,169
----------- -----------
Costs and expenses:
Transaction services commissions 48,176 37,272
Salaries, wages and benefits 23,789 20,307
Selling, general and administrative 15,907 13,656
Depreciation and amortization 1,819 1,273
----------- -----------
Total costs and expenses 89,691 72,508
----------- -----------
Total operating income 5,510 3,661
Other income and expenses:
Interest and other income 251 212
Interest expense (192) (157)
----------- -----------
Income before income taxes 5,569 3,716
Provision for income taxes (2,228) (1,406)
----------- -----------
Net income $ 3,341 $ 2,310
=========== ===========
Net income per common share:
Basic - $ .17 $ .12
=========== ===========
Diluted - $ .16 $ .11
=========== ===========
Weighted average common shares outstanding:
Basic - 19,851,208 19,722,124
=========== ===========
Diluted - 21,071,963 21,879,551
=========== ===========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE>
GRUBB & ELLIS COMPANY
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
(unaudited)
Assets
<TABLE>
<CAPTION>
September 30, June 30,
1999 1999
------------- --------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 8,869 $ 5,500
Services fees receivable, net 7,571 9,019
Other receivables 2,527 2,291
Prepaids and other current assets 5,583 5,020
Deferred tax assets, net 1,102 2,940
-------- --------
Total current assets 25,652 24,770
Noncurrent assets:
Equipment and leasehold improvements, net 20,290 18,554
Goodwill, net 30,591 28,564
Deferred tax assets 3,450 3,450
Other assets 3,755 4,455
-------- --------
Total assets $ 83,738 $ 79,793
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,844 $ 3,122
Credit facility indebtedness 3,000 7,500
Acquisition indebtedness 1,252 2,332
Accrued compensation and employee benefits 11,274 9,511
Deferred commissions payable 3,657 -
Other accrued expenses 3,468 2,605
-------- --------
Total current liabilities 25,495 25,070
Long-term liabilities:
Acquisition indebtedness - 553
Accrued claims and settlements 8,866 8,837
Other liabilities 848 851
-------- --------
Total liabilities 35,209 35,311
-------- --------
Stockholders' equity:
Common stock, $.01 par value: 50,000,000 shares authorized; issued and
outstanding 19,766,142 shares (net of 176,000 treasury shares) at
September 30, 1999 and 19,885,084 shares at June 30, 1999 198 199
Additional paid-in-capital 113,257 112,550
Retained earnings (deficit) (64,926) (68,267)
-------- --------
Total stockholders' equity 48,529 44,482
-------- --------
Total liabilities and stockholders' equity $ 83,738 $ 79,793
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE>
GRUBB & ELLIS COMPANY
Condensed Consolidated Statements of Cash Flows
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
For the three months ended
September 30,
--------------------------
1999 1998
-------- --------
<S> <C> <C>
Cash Flows from Operating Activities
Net income $ 3,341 $ 2,310
Net adjustments to reconcile net income to net cash
provided by operating activities 10,980 4,532
-------- --------
Net cash provided by operating activities 14,321 6,842
-------- --------
Cash Flows from Investing Activities:
Purchases of equipment, software and leasehold
improvements (3,044) (1,008)
Cash paid for business acquisitions, net of cash acquired (829) (9,195)
-------- --------
Net cash used in investing activities (3,873) (10,203)
-------- --------
Cash Flows from Financing Activities:
Repayment of acquisition debt (1,633)
Repayment of credit facility debt (4,500)
Other financing uses (946)
--------
(7,079)
--------
Net increase (decrease) in cash and cash equivalents 3,369 (3,361)
Cash and cash equivalents at beginning of period 5,500 14,251
-------- --------
Cash and cash equivalents at end of period $ 8,869 $ 10,890
======== ========
----------------------------------
Supplemental Disclosure of Cash Flow Information:
Cash payments during the period for:
Interest $ 293 $ 110
Income taxes 542 582
</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, 1999.
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 three months ended September 30, 1999 are not
necessarily indicative of the results that may be achieved in future periods.
2. Income Taxes
The provision for income taxes for the three months ended September 30, 1999 and
1998 is as follows (in thousands):
<TABLE>
<CAPTION>
For the three months ended
September 30,
--------------------------
1999 1998
------ ------
<S> <C> <C>
Current $ 390 $ 256
Deferred 1,838 1,150
------ ------
$2,228 $1,406
====== ======
</TABLE>
6
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
3. Earnings Per Share
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>
Three months ended
September 30,
-------------------
1999 1998
------- -------
<S> <C> <C>
Net income $ 3,341 $ 2,310
======= =======
Basic earnings per share:
Weighted average common shares
outstanding 19,851 19,722
======= =======
Earnings per share - basic $ 0.17 $ 0.12
======= =======
Diluted earnings per share:
Weighted average common shares
Outstanding 19,851 19,722
Effect of dilutive securities:
Stock options and warrants 1,221 2,158
------- -------
Weighted average dilutive common
Shares outstanding 21,072 21,880
======= =======
Earnings per share - diluted $ 0.16 $ 0.11
======= =======
</TABLE>
4. Business Acquisitions
On July 30, 1999, the Company acquired substantially all of the assets of
Landauer Associates, Inc. a real estate valuation and consulting firm.
Consideration given the seller at closing included cash, common stock
warrants and the assumption of certain liabilities. The Company recorded the
acquisition under the purchase method of accounting, and all operations
subsequent to the acquisition date are reflected in the Company's financial
statements.
Pro Forma Information:
The Company also completed three other acquisitions during fiscal year 1999
(Williams Property Venture d/b/a Smithy Braedon Oncor International and
Smithy Braedon Oncor International Management, Inc., Commercial Florida
Realty Partners, Inc. and Island Realty Service Group, Inc.) whose results of
operations, due to the timing of the acquisitions, are not included in the
Company's financial statements for the three months ended September 30, 1998.
The following unaudited pro forma financial information reflects the
operations of the Company for the three months ended September 30, 1998,
assuming the above four acquisitions had occurred on July 1, 1998 (in
thousands, except per share data):
7
<PAGE>
GRUBB & ELLIS COMPANY AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
4. Business Acquisitions (Continued)
<TABLE>
<CAPTION>
Three months ended
September 30,
1998
------------------
<S> <C>
Total revenue $85,011
Income before taxes 4,062
Net income 2,524
Earnings per share:
Basic 0.13
Diluted 0.12
</TABLE>
The Company's results of operations for the three months ended September 30,
1999, which includes operations of Landauer Associates, Inc. subsequent to the
date of acquisition, do not materially differ from pro forma results that would
have been obtained for that period.
Pro forma information does not purport to be indicative of the results that
would have been obtained had these events occurred at the beginning of the
period presented, and is not intended to be a projection of future results.
5. Segment Information
The Company has two reportable segments - Transaction Services and Management
Services, and evaluates segment performance and allocates resources based on
earnings before interest expense, taxes, depreciation and amortization
("EBITDA"). (Amounts in $000's)
<TABLE>
<CAPTION>
Transaction Management Company
Services Services Totals
<S> <C> <C> <C>
Three months ended September 30, 1999
Total revenue $80,332 $14,869 $95,201
EBITDA 6,901 679 7,580
Total assets as of September 30, 1999 61,609 22,129 83,738
Three months ended September 30, 1998
Total revenue $64,213 $11,956 $76,169
EBITDA 5,111 35 5,146
Total assets as of June 30, 1999 59,998 19,795 79,793
</TABLE>
Reconciliation of Segment EBITDA to Income Statement:
<TABLE>
<CAPTION>
Three months ended September 30,
--------------------------------
1999 1998
------- -------
<S> <C> <C>
Total segment EBITDA $7,580 $5,146
Less:
Depreciation & amortization 1,819 1,273
Interest expense 192 157
------ ------
Income before income taxes $5,569 $3,716
====== ======
</TABLE>
8
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GRUBB & ELLIS COMPANY AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
6. Commitments and Contingencies
The Company previously disclosed in its Annual Report on Form 10-K for the year
ended June 30, 1999, information concerning a lawsuit filed on January 23, 1995
in the United States District Court for the Western District of Pennsylvania,
entitled John W. Matthews, et al. v. Kidder, Peabody & Co., et al. and HSM Inc.,
et al. During the fiscal quarter ended September 30, 1999, there were no
material developments in this matter.
The Company is involved in various other claims and lawsuits arising out of the
conduct of its business, as well as in connection with its participation in
various joint ventures and partnerships, 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.
7. Subsequent Event
On October 15, 1999 the Company entered into a new credit agreement ("Credit
Agreement") arranged by Bank of America, N.A. ("BofA"), and simultaneously
repaid and terminated its prior credit facility. The Credit Agreement consists
of a $40 million reducing revolver credit facility to be used for acquisitions
and stock repurchases (of which $15 million is uncommitted), along with a $10
million revolving credit facility for working capital purposes. Interest on
outstanding borrowings is due quarterly in arrears and is based upon BofA's
prime rate and/or the LIBOR rate plus, in either case, an additional margin
based upon a particular financial ratio of the Company, and will vary depending
upon which interest rate options the Company chooses to be applied to specific
borrowings. Both credit facilities mature on October 15, 2004, however, the
total available commitment on the reducing revolver will be reduced by 20%, 35%
and 45% during the third, fourth and fifth year of the facility, respectively.
Borrowings from the new Credit Agreement were used to repay loans of $3 million
which were outstanding as of September 30, 1999, along with related financing
costs of the facility, which are being amortized over the term of the Credit
Agreement.
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, among other
things, the prohibition of the payment of dividends, restrictions on the
issuance of certain types of preferred stock, and the maintenance of certain
financial ratios.
9
<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, (vi) the
impact of Year 2000 technology issues, (vii) the ability of the Company to
integrate acquired companies and assets, and (viii) other factors described
in the Company's Annual Report on Form 10-K for the fiscal year ended June
30, 1999.
RESULTS OF OPERATIONS
Revenue
The Company's revenue is derived principally from transaction services fees
related to commercial real estate, which include commissions from leasing,
acquisition and disposition transactions as well as fees from appraisal,
consulting and asset management assignments. Management services fees
comprise the remainder of the Company's revenues, and include fees related
to both property and facilities management, business services, construction
management and agency leasing.
Revenue in any given quarter during the three fiscal year period ended June
30, 1999, as a percentage of total annual revenue, ranged from a high of
31.4% to a low of 19.1%, with revenue earned in the first quarters of each
of the last three fiscal years ranging from 22.0% to 24.2%. The Company
has typically experienced its lowest quarterly revenue in the quarter
ending March 31 of each year with higher and more consistent revenue in the
quarters ended June 30 and September 30, and its highest quarterly revenue
in the quarter ending December 31, due to increased activity caused by the
desire of clients to complete transactions by calendar year-end.
Total revenue for the three months ended September 30, 1999 was $95.2
million, an increase of 25.0% over revenue of $76.2 million for the same
period last year, reflecting stronger real estate markets than the prior
year period, increased business activity across the Company's service lines
and the impact of the Company's recent acquisitions. This improvement
related to a $16.1 million increase in transaction services commissions and
a $2.9 million increase in management services fees over the same period in
1998.
10
<PAGE>
Costs and Expenses
Transaction services commission expense is the Company's major expense and
is a direct function of gross transaction revenue levels, which include
transaction service commissions and other fees. Professionals participate
in transaction services fees at rates which increase upon achievement of
certain levels of production. As a percentage of gross transaction
revenue, related commission expense increased for the quarter ended
September 30, 1999 as compared to the same periods in 1998 due to higher
participation percentages related to increased production levels.
Total costs and expenses, other than transaction services commissions,
increased by $6.3 million, or 17.8%, for the first three months of fiscal
year 2000 compared to the same period in fiscal year 1999. These increases
were due to increased operating, depreciation and amortization expenses
attributable to the ten acquisitions made by the Company in these fiscal
years, as well as higher variable operating costs associated with increases
in its management services business.
Net Income
Net income for the three months ended September 30, 1999 was $3.3 million,
or $.16 per common share on a diluted basis, as compared to net income of
$2.3 million, or $.11 per common share for the same period in fiscal year
1999. The increase was due primarily to increased revenues which, coupled
with the benefit of stabilized fixed expenses, increased the Company's
operating margin.
LIQUIDITY AND CAPITAL RESOURCES
The Company generated cash from operations of $14.3 million, of which $3.8
million was used in investing activities, primarily for business
acquisitions and purchases of equipment and leasehold improvements, and
$7.1 million was used in financing activities, primarily to repay
acquisition and credit facility debt. Working capital also increased by
$457,000 during the three months ended September 30, 1999.
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 balances of approximately
$3,657,000 were outstanding as of September 30, 1999.
On October 15, 1999 the Company entered into a new credit agreement
("Credit Agreement") arranged by Bank of America, N.A. ("BofA"), and
simultaneously repaid and terminated its prior credit facility. The Credit
Agreement consists of a $40 million reducing revolver credit facility to be
used for acquisitions and stock repurchases (of which $15 million is
uncommitted), along with a $10 million revolving credit facility for
working capital purposes. Borrowings from the new Credit Agreement were
used to repay loans of $3 million which were outstanding as of September
30, 1999, along with related financing costs of the facility, which are
being amortized over the term of the Credit Agreement. See Note 7 of Notes
to Condensed Consolidated Financial Statements for additional information.
11
<PAGE>
In August 1999 the Company announced a program through which it may
purchase up to $3 million of its common stock on the open market from time
to time as market conditions warrant. As of September 30, 1999 the Company
had repurchased 176,000 shares at a total cost of approximately $978,000.
The Company believes that its short-term and long-term operating cash
requirements, including its technology initiative commitments, will be met
by operating cash flow. In addition, the Company has a $50 million credit
facility available for additional capital needs.
To the extent that the Company's cash requirements are not met by operating
cash flow or borrowings under its credit facility, or in the event of
adverse economic conditions or other unfavorable events, the Company may
find it necessary to reduce expenditure levels or undertake other actions
as may be appropriate under the circumstances.
The Company continues to explore additional strategic acquisition
opportunities that have the potential to broaden its geographic reach,
increase its market share to a significant portion and/or expand the depth
and breadth of its current lines of business. The sources of consideration
for such acquisitions could be cash, the Company's current credit facility,
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
new acquisitions will occur.
Year 2000 Issues
During fiscal years 1997 through 1999, the Company significantly increased
its investment in various technology initiatives. The Company embarked
upon these initiatives to enhance the productivity of its staff and
business processes, and to provide a stable platform to support the
Company's recent and future growth. Through its three year technology
plan, the Company has sought to mitigate material risks associated with the
year 2000. This technology improvement plan has replaced most of the
Company's information systems and equipment platforms, including intranet,
human resources, general ledger, accounts payable and transaction services
management and research, and consequently has brought these systems into
compliance with year 2000 requirements. The Company has also completed
upgrades to various servers and desktop computers. As a part of this three
year plan, the Company implemented a new transaction services revenue
system in November 1999.
The Company has made capital expenditures totaling $9.7 million through
October 31, 1999 related to these systems, and currently expects to invest
an additional $120,000 over the next two months to complete its technology
plan, the majority of which relates to implementation for the revenue
system. The Company has been testing its systems (including tests of the
financial systems and service interruption tests) and has found no
significant problems. Management of the Company believes it has an
effective program in place relating to its internal information systems to
resolve the year 2000 issue in a timely manner, although no assurances can
be given in this regard.
The Company has assessed its exposure to year 2000 issues other than those
related to internal information systems, including issues related to third
party vendors, and developed a plan (including contingencies to
12
<PAGE>
address these risks). The Company evaluated its telecommunication systems and,
based on this investigation, spent $2.0 million (and expects to spend another
$225,000) to upgrade or replace non-compliant telephone, voice mail, facsimile
and other telecommunications equipment. As of October 31, 1999, all replacements
and upgrades were complete, except for those at two remaining offices which are
scheduled to be completed by November 30, 1999. The Company will face business
interruption risk if telecommunications are suspended as a result of a year 2000
issue.
In addition to its own systems, the Company's year 2000 plan has included
evaluation of building systems in properties managed by Grubb & Ellis
Management Services, Inc. ("GEMS") (as well as the Company's facilities),
and various property accounting systems for GEMS clients. GEMS is working
with its clients (property owners) to gather information on the year 2000
readiness of building systems such as security, elevator and HVAC. As of
September 30, 1999, 94% of the buildings GEMS manages had completed
testing, and 81% of the remediation projects were complete. GEMS is also
assisting its clients in preparing contingency plans, which will be issued
to property owners in November 1999. For client accounting, GEMS has
received and installed accounting software upgrades from all software
vendors, and the Company believes that these systems are year 2000
compliant.
Since the Company cannot anticipate all possible outcomes of the year 2000
problem, nor predict the readiness of entities with which it transacts
business, there can be no assurance these events will not have a material
adverse effect on the Company's business, financial condition, results of
operations or cash flows.
13
<PAGE>
PART II
OTHER INFORMATION
(Items 3, 4 and 5 are not applicable
for the quarter ended September 30, 1999)
14
<PAGE>
Item 1. Legal Proceedings.
-----------------
The information called for by Item 1 is incorporated by reference from Note
6 to Notes to Condensed Consolidated Financial Statements.
Item 2. Changes in Securities
---------------------
(b) Effective October 15, 1999, the Company entered into a secured
credit agreement with Bank of America, N.A. as Administrative Agent and a
lender, and certain other lenders (the "Credit Agreement"), providing for a
credit facility of up to $50 million. The term of the Credit Agreement
extends until October 2004. As security for the facility, the lenders 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 or other repurchases, redemption
or distributions with respect to its capital stock, other than dividends,
redemptions or other distributions payable in common stock with the same
economic and voting rights as the currently outstanding common stock; and
the Company may repurchase shares for cash in the amount of $10 million
less the amount spent on the repurchase of shares since June 30, 1999 and
less the amounts spent on certain other restricted investments. There are
also restrictions on indebtedness, liens, guarantees, loans, investments,
acquisitions, and dispositions of assets. The financial covenants
applicable during the term of the Credit Agreement include maintaining a
ratio of debt to EBITDA of no more than 2.25 to 1.00 as of the last day of
each fiscal quarter beginning December 31, 1999 for the period of the four
fiscal quarters ending on that date; and a ratio of EBITDA to the sum of
interest expense, income taxes, debt service, capital expenditures and
earnout payments of at least 1.00 to 1.00 at all times.
(c) On July 30, 1999, the Company issued to AEGON USA Realty Advisors,
Inc. ("AEGON") a warrant to purchase an aggregate of 600,000 shares of
common stock of the Company at an exercise price of $6.25 per share, as
partial consideration for the purchase of certain assets of Landauer
Associates, Inc., a subsidiary of AEGON ("Landauer"), and certain
affiliates of Landauer. The transaction was consummated in reliance on
Section 4(2) of the Securities Act of 1933, as amended, in that it did not
involve a public offering or sale of the Company's securities, and was not
underwritten.
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(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's Annual Report on Form 10-K filed on March 31, 1995 (Commission
File No. 1-8122).
15
<PAGE>
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 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 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 Credit Agreement among the Registrant, certain subsidiaries of the
Registrant, Bank of America, N.A., American National Bank and Trust of
Chicago and LaSalle Bank National Association, dated as of October 15,
1999.
4.2 Revolving Credit Loan Note executed by the Registrant in favor of Bank of
America, N.A. in the amount of $3,714,285.71 dated as of October 15, 1999.
4.3 Revolving Credit Loan Note executed by the Registrant in favor of American
National Bank and Trust of Chicago in the amount of $3,428,571.43 dated as
of October 15, 1999.
4.4 Revolving Credit Loan Note executed by the Registrant in favor of LaSalle
Bank National Association in the amount of $2,857,142.86 dated as of
October 15, 1999.
4.5 Reducing Revolving Credit Loan Note executed by the Registrant in favor of
Bank of America, N.A. in the amount of $9,285,714.29 dated as of October
15, 1999.
4.6 Reducing Revolving Credit Loan Note executed by the Registrant in favor of
American National Bank and Trust of Chicago in the amount of $8,571,428.57
dated as of October 15, 1999.
4.7 Reducing Revolving Credit Loan Note executed by the Registrant in favor of
LaSalle Bank National Association in the amount of $7,142,857.14 dated as
of October 15, 1999.
4.8 Swingline Loan Note executed by the Registrant in favor of Bank of America,
N.A. in the amount of $2,000,000 dated as of October 15, 1999.
16
<PAGE>
4.9 Stock Subscription Warrant No. A-1 dated July 30, 1999, issued to Aegon USA
Realty Advisors, Inc., incorporated herein by reference to Exhibit 4.20 to
the Registrant's Annual Report on Form 10-K filed on September 28, 1999
(Commission File No. 1-8122).
On an individual basis, instruments other the Exhibits listed above under
Exhibit 4 defining the rights of holders of long-term debt of the Registrant and
its consolidated subsidiaries and partnerships do not exceed ten percent of
total consolidated assets and are, therefore, omitted; however, the Company will
furnish supplementally to the Commission any such omitted instrument upon
request.
(10) Material Contracts
10.1 Pledge Agreement between the Registrant and Bank of America, N.A., as
Administrative Agent, dated as of October 15, 1999.
10.2 Pledge Agreement between Grubb & Ellis Management Services, Inc. and Bank
of America, N.A., as Administrative Agent, dated as of October 15, 1999.
10.3 Pledge Agreement between HSM Inc. and Bank of America, N.A., as
Administrative Agent, dated as of October 15, 1999.
10.4 Guarantee and Collateral Agreement by the Registrant and certain of its
Subsidiaries in favor of Bank of America, N.A., as Administrative Agent,
dated as of October 15, 1999.
10.5 Collateral Trademark Security Agreement by the Registrant in favor of Bank
of America, N.A., as Administrative Agent, dated as of October 15, 1999.
(27) Financial Data Schedule.
(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: November 12, 1999 /s/ Brian D. Parker
-----------------------------------
Brian D. Parker
Executive Vice President
and Chief Financial Officer
18
<PAGE>
Grubb & Ellis Company and Subsidiaries
EXHIBIT INDEX
for the quarter ended September 30, 1999
----------------------------------------
Exhibit
- -------
(4) Instruments Defining the Rights of Security Holders, including Indentures
4.1 Credit Agreement among the Registrant, certain subsidiaries of the
Registrant, Bank of America, N.A., American National Bank and Trust of
Chicago and LaSalle Bank National Association, dated as of October 15,
1999.
4.2 Revolving Credit Loan Note executed by the Registrant in favor of Bank of
America, N.A. in the amount of $3,714,285.71 dated as of October 15, 1999.
4.3 Revolving Credit Loan Note executed by the Registrant in favor of American
National Bank and Trust of Chicago in the amount of $3,428,571.43 dated as
of October 15, 1999.
4.4 Revolving Credit Loan Note executed by the Registrant in favor of LaSalle
Bank National Association in the amount of $2,857,142.86 dated as of
October 15, 1999.
4.5 Reducing Revolving Credit Loan Note executed by the Registrant in favor of
Bank of America, N.A. in the amount of $9,285,714.29 dated as of October
15, 1999.
4.6 Reducing Revolving Credit Loan Note executed by the Registrant in favor of
American National Bank and Trust of Chicago in the amount of $8,571,428.57
dated as of October 15, 1999.
4.7 Reducing Revolving Credit Loan Note executed by the Registrant in favor of
LaSalle Bank National Association in the amount of $7,142,857.14 dated as
of October 15, 1999.
4.8 Swingline Loan Note executed by the Registrant in favor of Bank of America,
N.A. in the amount of $2,000,000 dated as of October 15, 1999.
(10) Material Contracts
10.1 Pledge Agreement between the Registrant and Bank of America, N.A., as
Administrative Agent, dated as of October 15, 1999.
10.2 Pledge Agreement between Grubb & Ellis Management Services, Inc. and Bank
of America, N.A., as Administrative Agent, dated as of October 15, 1999.
10.3 Pledge Agreement between HSM Inc. and Bank of America, N.A., as
Administrative Agent, dated as of October 15, 1999.
19
<PAGE>
10.4 Guarantee and Collateral Agreement by the Registrant and certain of its
Subsidiaries in favor of Bank of America, N.A., as Administrative Agent,
dated as of October 15, 1999.
10.5 Collateral Trademark Security Agreement by the Registrant in favor of Bank
of America, N.A., as Administrative Agent, dated as of October 15, 1999.
(27) Financial Data Schedule
20
<PAGE>
Exhibit 4.1
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
Dated as of October 15, 1999
Among
GRUBB & ELLIS COMPANY
("Borrower"),
THE VARIOUS FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY THERETO
("Lenders")
and
BANK OF AMERICA, N.A.
("Administrative Agent")
for itself as a Lender
and the other Lenders
with
AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
("Documentation Agent")
Arranged By
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINITIONS...................................................................................... 1
1.1 Defined Terms.................................................................................... 1
-------------
1.2 Other Definitional Provisions.................................................................... 24
-----------------------------
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.................................................................. 24
2.1 Commitments...................................................................................... 24
-----------
2.2 Procedure for Borrowing......................................................................... 27
------------------------
SECTION 3. LETTERS OF CREDIT................................................................................ 29
3.1 L/C Commitment................................................................................... 29
--------------
3.2 Procedure for Issuance of Letter of Credit....................................................... 30
------------------------------------------
3.3 Commissions, Fees and Other Charges.............................................................. 30
-----------------------------------
3.4 L/C Participants................................................................................. 31
----------------
3.5 Reimbursement Obligation of the Borrower......................................................... 32
----------------------------------------
3.6 Obligations Absolute............................................................................. 32
--------------------
3.7 Letter of Credit Payments........................................................................ 33
-------------------------
3.8 Applications..................................................................................... 33
------------
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT..................................... 33
4.1 Commitment Fees, etc............................................................................. 33
--------------------
4.2 Termination or Reduction of Commitments.......................................................... 33
---------------------------------------
4.3 Optional Prepayments............................................................................. 34
--------------------
4.4 Mandatory Commitment Reductions.................................................................. 34
-------------------------------
4.5 Conversion and Continuation Options.............................................................. 36
-----------------------------------
4.6 Minimum Amounts and Maximum Number of Eurodollar Tranches........................................ 37
---------------------------------------------------------
4.7 Interest Rates and Payment Dates................................................................. 37
--------------------------------
4.8 Computation of Interest and Fees................................................................. 38
--------------------------------
4.9 Inability to Determine Interest Rate............................................................. 38
------------------------------------
4.10 Pro Rata Treatment and Payments................................................................... 39
------------------------------
4.11 Requirements of Law.............................................................................. 40
-------------------
4.12 Taxes............................................................................................ 41
-----
4.13 Indemnity........................................................................................ 42
---------
4.14 Change of Lending Office......................................................................... 43
------------------------
4.15 Replacement of Lenders under Certain Circumstances............................................... 43
--------------------------------------------------
SECTION 5. REPRESENTATIONS AND WARRANTIES.................................................................... 44
5.1 Financial Condition............................................................................... 44
-------------------
5.2 No Change......................................................................................... 44
---------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
5.3 Corporate Existence; Compliance with Law.......................................................... 44
----------------------------------------
5.4 Corporate Power; Authorization; Enforceable Obligations........................................... 44
-------------------------------------------------------
5.5 No Legal Bar...................................................................................... 45
------------
5.6 No Material Litigation............................................................................ 45
----------------------
5.7 No Default........................................................................................ 45
----------
5.8 Ownership of Property; Liens...................................................................... 45
----------------------------
5.9 Intellectual Property............................................................................. 45
---------------------
5.10 Taxes............................................................................................. 46
-----
5.11 Federal Regulations............................................................................... 46
-------------------
5.12 Labor Matters..................................................................................... 46
-------------
5.13 ERISA............................................................................................. 46
-----
5.14 Investment Company Act; Other Regulations......................................................... 47
-----------------------------------------
5.15 Subsidiaries...................................................................................... 47
------------
5.16 Subsidiary Restrictions........................................................................... 47
-----------------------
5.17 Use of Proceeds................................................................................... 47
---------------
5.18 Environmental Matters............................................................................. 48
---------------------
5.19 Accuracy of Information, etc...................................................................... 49
----------------------------
5.20 Security Documents................................................................................ 49
------------------
5.21 Solvency.......................................................................................... 49
--------
5.22 Year 2000 Issues.................................................................................. 50
----------------
SECTION 6. CONDITIONS PRECEDENT.............................................................................. 50
6.1 Conditions to Initial Extension of Credit......................................................... 50
-----------------------------------------
6.2 Conditions to Each Extension of Credit............................................................ 53
--------------------------------------
SECTION 7. AFFIRMATIVE COVENANTS............................................................................. 54
---------------------
7.1 Financial Statements.............................................................................. 54
--------------------
7.2 Certificates; Other Information................................................................... 54
-------------------------------
7.3 Payment of Obligations............................................................................ 56
----------------------
7.4 Conduct of Business and Maintenance of Existence, etc............................................. 56
-----------------------------------------------------
7.5 Maintenance of Property; Insurance................................................................ 56
----------------------------------
7.6 Inspection of Property; Books and Records; Discussions............................................ 56
------------------------------------------------------
7.7 Notices........................................................................................... 57
-------
7.8 Environmental Laws................................................................................ 57
------------------
7.9 Additional Collateral, etc........................................................................ 58
--------------------------
7.10 Year 2000 Issues.................................................................................. 59
----------------
7.11 Interest Rate Protection.......................................................................... 59
------------------------
7.12 Insurance......................................................................................... 60
---------
SECTION 8. NEGATIVE COVENANTS................................................................................ 60
8.1 Financial Condition Covenants..................................................................... 60
-----------------------------
8.2 Limitation on Indebtedness........................................................................ 60
--------------------------
8.3 Limitation on Liens............................................................................... 61
-------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
8.4 Limitation on Fundamental Changes................................................................. 63
---------------------------------
8.5 Limitation on Sale of Assets...................................................................... 63
----------------------------
8.6 Limitation on Dividends; Restricted Payments...................................................... 64
--------------------------------------------
8.7 Guaranties........................................................................................ 64
----------
8.8 Limitation on Investments, Loans and Advances..................................................... 65
---------------------------------------------
8.9 Subsidiaries, Partnerships, Joint Ventures and Restricted Investments............................. 66
---------------------------------------------------------------------
8.10 Limitation on Transactions with Affiliates........................................................ 66
------------------------------------------
8.11 Limitation on Payments and Modifications of Debt Instruments, etc................................. 67
-----------------------------------------------------------------
8.12 Limitation on Sales and Leasebacks................................................................ 67
----------------------------------
8.13 Limitation on Changes in Fiscal Periods........................................................... 67
---------------------------------------
8.14 Limitation on Negative Pledge Clauses............................................................. 67
-------------------------------------
8.15 Limitation on Restrictions on Subsidiary Distributions............................................ 67
------------------------------------------------------
8.16 Limitation on Lines of Business................................................................... 68
-------------------------------
SECTION 9. EVENTS OF DEFAULT................................................................................. 68
SECTION 10. THE ADMINISTRATIVE AGENT.......................................................................... 72
10.1 Appointment and Authorization; "Administrative Agent"............................................. 72
-----------------------------------------------------
10.2 Delegation of Duties.............................................................................. 72
--------------------
10.3 Exculpatory Provisions............................................................................ 72
----------------------
10.4 Reliance by Administrative Agent.................................................................. 73
--------------------------------
10.5 Notice of Default................................................................................. 73
-----------------
10.6 Independent Credit Decision....................................................................... 74
---------------------------
10.7 Indemnification of Administrative Agent........................................................... 74
---------------------------------------
10.8 Administrative Agent in its Individual Capacity................................................... 75
-----------------------------------------------
10.9 Successor Administrative Agent.................................................................... 75
------------------------------
10.10 Withholding Tax................................................................................... 76
---------------
10.11 Collateral Matters................................................................................ 77
------------------
SECTION 11. MISCELLANEOUS..................................................................................... 78
11.1 Amendments and Waivers............................................................................ 78
----------------------
11.2 Notices........................................................................................... 79
-------
11.3 No Waiver; Cumulative Remedies.................................................................... 79
------------------------------
11.4 Survival of Representations and Warranties........................................................ 80
------------------------------------------
11.5 Payment of Expenses and Taxes..................................................................... 80
-----------------------------
11.6 Successors and Assigns; Participants and Assignments.............................................. 80
----------------------------------------------------
11.7 Adjustments; Set-off.............................................................................. 83
--------------------
11.8 Counterparts...................................................................................... 83
------------
11.9 Severability...................................................................................... 83
------------
11.10 Integration....................................................................................... 84
-----------
11.11 Governing Law..................................................................................... 84
-------------
11.12 Submission To Jurisdiction: Waivers............................................................... 84
-----------------------------------
11.13 Acknowledgments................................................................................... 84
---------------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
11.14 WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION.................................................. 85
------------------------------------------------
11.15 Confidentiality................................................................................... 85
---------------
11.16 Rights and Liabilities of Documentation Agent..................................................... 86
---------------------------------------------
</TABLE>
<PAGE>
SCHEDULES
1.1A Mortgaged Property
1.1B Reducing Revolving Credit Commitments
1.1C Revolving Credit Commitments
1.1D Executive Officers and Directors of the Borrower
5.1 Certain Obligations/Dispositions
5.4 Consents
5.6 Material Litigation
5.12 Labor Matters
5.15 Subsidiaries
5.18 Environmental Matters
5.20 UCC Filing Jurisdictions
8.2(d) Existing Indebtedness
8.3(f) Existing Liens
8.3(j) Liens
8.7 Guaranties
8.8(h) Investments
EXHIBITS
A-1 Form of Revolving Credit Loan Borrowing Notice
A-2 Form of Reducing Revolving Credit Loan Borrowing Notice
A-3 Form of Swingline Loan Borrowing Notice
A-4 Form of Conversion/Continuation Notice
B Form of Compliance Certificate
C Form of Guaranty and Collateral Agreement
D Form of Closing Certificate
E-1 Form of Legal Opinion of Borrower's Local Counsel
E-2 Form of Legal Opinion (Special/Local Counsel)
F Form of Assignment and Acceptance
G-1 Form of Revolving Credit Loan Note
G-2 Form of Reducing Revolving Credit Loan Note
G-3 Form of Swingline Loan Note
-vii-
<PAGE>
CREDIT AGREEMENT
----------------
THIS CREDIT AGREEMENT is dated as of October 15, 1999, and is entered
into by and among GRUBB & ELLIS COMPANY, a Delaware corporation (the
"Borrower"), the several banks and other financial institutions or entities from
--------
time to time parties to this Agreement (the "Lenders") and BANK OF AMERICA,
-------
N.A., a national banking association, as administrative agent (in such capacity,
the "Administrative Agent"). In connection with this Agreement, AMERICAN
--------------------
NATIONAL BANK AND TRUST COMPANY OF CHICAGO has acted as exclusive Documentation
Agent ("Documentation Agent").
-------------------
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms: As used in this Agreement, the terms listed in
-------------
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Acquired Pro Forma EBITDA": for any period, the EBITDA attributable
-------------------------
during such period (i) to any Person or Persons in the case of an Acquisition of
all or substantially all of the capital stock or equity of a Person or (ii) to
any assets in the case of an Acquisition of all or substantially all of the
assets of a Person, in each case in clause (i) and (ii) above, acquired in
connection with a Permitted Acquisition or Permitted Acquisitions to the extent
that Administrative Agent, in its reasonable discretion, deems such EBITDA to be
appropriate given all the facts and circumstances surrounding such Permitted
Acquisition or Permitted Acquisitions.
"Acquisition": the acquisition of all or substantially all of the
-----------
assets of another Person or of a business or division of another Person, or
capital stock or other equity interests of a Person unaffiliated with the
Borrower and its Subsidiaries or the merger, consolidation or amalgamation with
one or more other Persons.
"Acquisition Indebtedness": Indebtedness which is (i) a liability on
------------------------
the balance sheet of the Borrower as determined in accordance with GAAP,
incurred by a Loan Party as the purchaser and owed to another Person as the
seller in connection with the Borrower's purchase of the ownership interests of
another Person or the purchase of all or substantially all of the assets of
another Person or of a business or division of another Person, (ii) except to
the extent otherwise permitted by Section 8.2 hereof, unsecured, (iii) except to
the extent otherwise permitted by Section 8.2 hereof, subordinated to
Indebtedness incurred pursuant to the Senior Credit Facilities and (iv) in form
and substance satisfactory to Administrative Agent.
"Adjustment Date": commencing as of December 31, 1999, the date on
---------------
which financial statements are received by the Administrative Agent pursuant to
Section 7.1(a) and 7.1(b) (but in any event, no later than the 45/th/ day after
the end of each of the three quarterly periods of each
<PAGE>
fiscal year beginning for purposes hereof with the quarter ending December 31,
1999 or the 90/th/ day after the end of each fiscal year beginning with each
fiscal year ending after December 31, 1999, as the case may be) and shall remain
in effect until the next change to be effected pursuant to this paragraph. If
any financial statements referred to above are not delivered within the time
periods specified above, then, until such financial statements are delivered,
Borrower's Consolidated Leverage Ratio as of the end of the fiscal period that
would have been covered thereby, shall for the purposes of this definition be
deemed to be greater than 1.75:1.00. Each determination of Borrower's
Consolidated Leverage Ratio pursuant to this definition shall be made with
respect to the period of four consecutive fiscal quarters of the Borrower ending
at the end of the period covered by the relevant financial statements.
"Administrative Agent": BofA, together with its affiliates, as the
--------------------
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Administrative Agent's Payment Office": the address for payments set
-------------------------------------
forth in Section 11.2 or such other address as the Administrative Agent may from
time to time specify in accordance with Section 11.2.
"Affiliate": as to any Person, any other Person which, directly or
---------
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Agent-Related Persons": BofA and any successor agent pursuant to
---------------------
Section 10.9, together with its Affiliates and the officers, directors,
employees, agents, advisors and attorneys-in-fact of such Persons and
Affiliates.
"Agreement": this Credit Agreement, as amended, supplemented,
---------
restated or otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum set
-----------------
forth under the relevant column heading below:
<TABLE>
<CAPTION>
Eurodollar Base Rate Swingline Commitment
Loans Loans Loans Fee Rate
----- ----- ----- --------
<S> <C> <C> <C> <C>
Revolving Credit Loans 1.625% 0.625% 0% 0.500%
Reducing Revolving Credit Loans 1.625% 0.625% 0% 0.500%
</TABLE>
; provided that on and after the first Adjustment Date pertaining to the period
--------
ended December 31, 1999, the Applicable Margin with respect to the Revolving
Credit Loans and the Reducing Revolving Credit Loans will be determined in
accordance with the pricing grid below:
2
<PAGE>
<TABLE>
<CAPTION>
================================================================================
Applicable Applicable Applicable
Consolidated Margin Margin Margin for Commitment
Leverage Ratio for Eurodollar for Base Rate Swingline Fee
Loans Loans Loans Rate
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Greater than or equal 2.125% 1.125% 0% 0.500%
to 1.75:1.00
- --------------------------------------------------------------------------------
Greater than or equal 1.875% 0.875% 0% 0.500%
to 1.25:1.00 but less
than 1.75:1.00
- --------------------------------------------------------------------------------
Less than 1.625% 0.625% 0% 0.500%
1.25:1.00
================================================================================
</TABLE>
"Application": an application, in such form as the Issuing Lender may
-----------
specify from time to time for applications for letters of credit generally,
requesting the Issuing Lender to open or issue a Letter of Credit.
"Asset Sale": any Disposition of Property (including, without
----------
limitation, any issuance or sale of Capital Stock of any Subsidiary), other than
(a) any Disposition of Property permitted by clause (a), (b), (c) or (d) of
Section 8.5, (b) any issuance or sale of Capital Stock of the Borrower or (c)
any Disposition of Property that, together with any related Dispositions of
Property, yields aggregate Net Cash Proceeds of not more than $100,000.
"Assignee": as defined in Section 11.6(c).
--------
"Assignor": as defined in Section 11.6(c).
--------
"Attorney Costs": means and includes all reasonable fees and
--------------
disbursements of any law firm or other external counsel and non-duplicative,
allocated costs of internal counsel.
"Available Commitment": the sum of the Available Reducing Revolving
--------------------
Credit Commitment and the Available Revolving Credit Commitment.
"Available Reducing Revolving Credit Commitment": as to any Reducing
----------------------------------------------
Revolving Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Reducing Revolving Credit Commitment at such time over (b)
----
such Lender's Reducing Revolving Extensions of Credit at such time.
"Available Revolving Credit Commitment": as to any Revolving Credit
-------------------------------------
Lender at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Credit Commitment at such time over (b) such Lender's Revolving
----
Extensions of Credit at such time.
3
<PAGE>
"Base Rate": for any day, a rate per annum (rounded upwards to the
---------
next 1/100 of 1%) equal to the greater of (a) the Prime Rate in effect on such
day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of
----
1%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Base Rate shall be determined without
regard to clause (b) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in the
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is
---------------
based upon the Base Rate.
"BofA": as applicable, Bank of America, N.A. and its respective
----
Subsidiaries in their individual capacities.
"Borrower": as defined in the preamble to this Agreement.
--------
"Borrower Obligations": the collective reference to the unpaid
--------------------
principal of and interest on the Loans and Reimbursement Obligations and all
other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement after the maturity of the Loans and Reimbursement Obligations and
interest accruing at the then applicable rate provided in this Agreement after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
to the Administrative Agent or to any Lender, whether absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with this Agreement, the other Loan Documents or
any Letter of Credit entered into by the Borrower with any Lender (or any
Affiliate of any Lender) or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, guarantee obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all Attorney Costs of
Administrative Agent or of the Lenders that are required to be paid by the
Borrower pursuant to the terms of any of the foregoing agreements).
"Borrower's Accountant": Ernst & Young, LLP.
---------------------
"Borrowing Date": any Business Day specified by the Borrower in a
--------------
notice delivered pursuant to Section 2.2 as a date on which the Borrower
requests the Lenders to make Loans hereunder.
4
<PAGE>
"Borrowing Notice": the written notice to be given by the Borrower to
----------------
the Administrative Agent pursuant to Section 2.2, substantially in the form of
Exhibit A-1 with respect to Revolving Credit Loans and Exhibit A-2 with respect
to Reducing Revolving Credit Loans.
"Business": as defined in Section 5.18(b).
--------
"Business Day": a day other than a Saturday, Sunday or other day on
------------
which commercial banks in New York City, San Francisco, Chicago or Charlotte are
authorized or required by law to close, provided that with respect to any
--------
borrowings, disbursements and payments in respect of any calculations, interest
rates and Interest Periods pertaining to Eurodollar Loans, such day is also a
day on which dealings are carried on in the interbank market.
"Capital Expenditures": for any period, with respect to any Person,
--------------------
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) which should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
-------------
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
----------------
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year or less from the date of acquisition; (b)
certificates of deposit, time deposits, Eurodollar time deposits, bankers
acceptances or overnight bank deposits having maturities of six months or less
from the date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or any state thereof
having combined capital and surplus of not less than $500,000,000; (c)
commercial paper of an issuer rated at least A1 by Standard & Poor's Ratings
Group or P-1 by Moody's Investors Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; (d) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above;
<PAGE>
and (e) money market accounts or funds with or issued by Qualified Issuers that
invest substantially exclusively in investments of the types described in
clauses (a) through (d) above.
"Closing Date": the date on which the conditions precedent set forth
------------
in Section 6.1 shall have been satisfied, which date is anticipated to be on or
before October 15, 1999.
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral": all Property of the Loan Parties, now owned or
----------
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commission Advance Program": 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 employees or agents.
"Commitment": as to any Lender, the sum of the Reducing Revolving
----------
Credit Commitment and the Revolving Credit Commitment of such Lender;
collectively as to all Lenders, the "Commitments".
-----------
"Commitment Fee Rate": the rate set forth under the "Commitment Fee
-------------------
Rate" column of the pricing chart under the definition of Applicable Margin.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
----------------------
Responsible Officer substantially in the form of Exhibit B, which shall include
inter alia, a worksheet reflecting that the calculations made thereon have been
adjusted to exclude the effects of the operations of Unrestricted Subsidiaries.
"Confidential Information Memorandum": the Confidential Information
-----------------------------------
Memorandum of the Borrower dated September 1999 and furnished to the Lenders.
"Consolidated Debt": at any date, the aggregate Indebtedness of
-----------------
Borrower and its Restricted Subsidiaries.
"Consolidated EBITDA": for any period, the consolidated EBITDA of the
-------------------
Borrower and its Restricted Subsidiaries for such period, as determined on a
consolidated basis in accordance with GAAP plus Acquired Pro Forma EBITDA.
----
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio
----------------------------------------
of (a) Consolidated EBITDA for such period to (b) Consolidated Fixed Charges for
such period.
<PAGE>
"Consolidated Fixed Charges": for any period, the sum (without
--------------------------
duplication) of (a) Consolidated Interest Expense for such period, (b) cash
income taxes paid by the Borrower or any of its Restricted Subsidiaries on a
consolidated basis in respect of such period, (c) scheduled principal payments
made during such period on account of principal of Indebtedness of the Borrower
or any of its Restricted Subsidiaries (including the Capital Lease payments),
(d) the aggregate amount actually paid by the Borrower and its Restricted
Subsidiaries in cash during such period on account of Capital Expenditures and
(e) Earnouts paid or distributed by Borrower.
"Consolidated Interest Expense": for any period, the sum of total
-----------------------------
cash interest expense of the Borrower and its Restricted Subsidiaries for such
period with respect to all outstanding Indebtedness of the Borrower and its
Restricted Subsidiaries (including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit,
bankers' acceptance financing and other Indebtedness).
"Consolidated Leverage Ratio": as at the last day of any period, the
---------------------------
ratio of (a) Consolidated Debt on such day to (b) Consolidated EBITDA of
Borrower and its Restricted Subsidiaries for the period of four consecutive
fiscal quarters ending on such day.
"Consolidated Net Income": for any period, the consolidated Net
-----------------------
Income of the Borrower and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP; provided that there shall be
--------
excluded from such calculation (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Restricted Subsidiaries pursuant to
a Permitted Acquisition, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Restricted
Subsidiaries has an ownership interest and (c) the undistributed earnings of any
Restricted Subsidiary of Borrower to the extent that the declaration or payment
of dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument, indenture,
subordination agreement or other legally binding undertaking to which such
Person is a party or by which it or any of its Property is bound.
"Conversion/Continuation Notice": the written notice of the
------------------------------
conversion or continuation of a Loan to be given by the Borrower to the
Administrative Agent pursuant to Section 4.5, substantially in the form of
Exhibit A-3.
"Default": any of the events specified in Section 9, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Defaulting Lender": any Lender with respect to which a Lender Default
-----------------
is in effect.
<PAGE>
"Disposition": with respect to any Property, any sale, lease, sale
-----------
and leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "Dispose" and "Disposed of" shall have correlative meanings.
------- -----------
"Disposition Notice": the written notice of a Disposition to be given
------------------
by the Borrower to the Administrative Agent pursuant to Section 7.7(f).
"Documentation Agent": American National Bank and Trust Company of
-------------------
Chicago.
"Dollars" and "$": dollars in lawful currency of the United States of
------- -
America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
-------------------
the laws of any jurisdiction within the United States of America.
"Earnouts": any cash payments (i) made by Borrower to third parties
--------
sellers in consideration for the purchase of assets or stock by Borrower from
such seller and (ii) made subsequent to the consummation of such purchase.
"EBITDA": for any period, Net Income for such period plus, without
------ ----
duplication and to the extent reflected as a charge in the statement of such Net
Income for such period, the sum of (a) total income tax expense, (b) interest
expense, amortization or write-off of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including the Loans), (c) depreciation expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Net Income for such period, losses on sales of assets outside of the ordinary
course of business) and (f) any other non-cash charges; and minus, to the extent
-----
included in the statement of such Net Income for such period, the sum of (a)
interest income, (b) any extraordinary income or gains (including, whether or
not otherwise includable as a separate item in the statement of such Net Income
for such period, gains on the sales of assets outside of the ordinary course of
business) and (c) any other non-cash income, all as determined in accordance
with GAAP.
"Environmental Laws": any and all foreign, federal, state, local or
------------------
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment, as may now or at
any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the maximum rates of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves under any
<PAGE>
regulations of the Federal Reserve Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements prescribed
for Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Federal Reserve Board) maintained by a member bank of the
Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
--------------------
Period pertaining to a Eurodollar Loan for any date of determination with
respect to any Interest Period, (i) the rate per annum (rounded upward, if
necessary, to the nearest 1/100 of 1%) equal to the rate determined by the
Administrative Agent to be the offered rate which appears on the page of the
Telerate Screen which displays an average British Bankers Association Interest
Settlement Rate (such page currently being a page number 3750 or a successor
page) for deposits (for delivery two business days prior to the beginning of
such Interest Period) with a term equivalent to the applicable Interest Period,
determined as of approximately 11:00 A.M. (London, England time) on such date of
determination, or (ii) in the event the rate referenced in the preceding clause
(i) does not appear on such page or service or if such page or service shall
cease to be available, the rate per annum (rounded upward, if necessary, to the
nearest five decimal places) equal to the rate determined by the Administrative
Agent to be the offered rate on such other page or other service which displays
an average British Bankers Association Interest Settlement Rate for deposits
(for delivery two business days prior to the beginning of such Interest Period)
with a term equivalent to such Interest Period determined as of approximately
11:00 A.M. (London, England time) on such date of determination, or (iii) in the
event the rates referenced in the preceding clauses (i) and (ii) are not
available, the rate per annum equal to the offered quotation rate (rounded
upward, if necessary, to the nearest five decimal places) to first class banks
in the London interbank market by the Administrative Agent for deposits (for
delivery two business days prior to the buying of such Interest Period) of
amounts in same day funds comparable to the principal amount of the Eurodollar
Loan for which the Eurodollar Base Rate is then being determined with a maturity
comparable to such Interest Period as of approximately 11:00 A.M. (London,
England time) on such date of determination.
"Eurodollar Loans": Loans (other than Swingline Loans) the rate of
----------------
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula:
Eurodollar Base Rate
-----------------------------------
1.00 - Eurocurrency Reserve Requirements
The Eurodollar Rate shall be adjusted automatically as to all Eurodollar Loans
then outstanding as of the effective date of any change in the Eurocurrency
Reserve Requirements.
9
<PAGE>
"Eurodollar Tranche": the collective reference to Eurodollar Loans
------------------
the then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Event of Default": any of the events specified in Section 9,
----------------
provided that any requirement for the giving of notice, the lapse of time, or
- --------
both, has been satisfied.
"Excess Cash Flow": an amount as of each date for which Administrative
----------------
Agent receives Borrower's financial statements pursuant to Section 7.1 (each
such date, a "Calculation Date"), for the period from the Closing Date to and
including the current Calculation Date (each such period, the "Calculation
Period"), equal to (a) Consolidated EBITDA for such Calculation Period less (b)
----
the sum of (i) Consolidated Fixed Charges for such Calculation Period and (ii)
the aggregate amount of Borrower's capital stock repurchased by Borrower during
such Calculation Period.
"Excess Cash Flow Add Back": as of any Calculation Date, 50% of Excess
-------------------------
Cash Flow to the extent that Excess Cash Flow exceeds zero on such date.
"Exchange Act": the Securities Exchange Act of 1934, as amended.
------------
"Executive Officers and Directors of Borrower": as of the Closing
--------------------------------------------
Date, those individuals listed as officers and directors on Schedule 1.1D hereto
and, after the Closing Date, (a) Executive Officers shall be (i) all officers
elected by the board of directors of Borrower or of any Restricted Subsidiary,
(ii) all divisional officers who have regional or area management
responsibilities for the business divisions of the Loan Parties known as
Transaction Services, Management Services, Corporate Services and Institutional
Services, (iii) all employees of Borrower and any Restricted Subsidiary who
perform the role of inside counsel, and (b) Directors shall be all members of
the board of directors of Borrower.
"Federal Funds Effective Rate": for any day, the rate set forth in
----------------------------
the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including any
such successor, "H.15(519)") on the preceding Business Day opposite the caption
"Federal Funds (Effective)", or, if such rate is not so published for any such
preceding Business Day, the arithmetic mean as determined by the Administrative
Agent of the rates for the last transaction in overnight Federal funds arranged
prior to Noon (Chicago time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Administrative
Agent.
"Federal Reserve Board": means the Board of Governors of the Federal
---------------------
Reserve System, and any Governmental Authority succeeding to any of its
principal functions.
"Fee Payment Date": the last Business Day of each March, June,
----------------
September and December of any year.
10
<PAGE>
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
------------------
Domestic Subsidiary.
"GAAP": generally accepted accounting principals in the United States
----
of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be in general use by significant segments of the United States
accounting profession, which are applicable to the circumstances of the Borrower
as of the date of determination, except that for purposes of Section 8.1
(including the accounting terms used therein and defined herein) GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the audited financial
statements of the Borrower in respect of the fiscal year ended June 30, 1999
delivered pursuant to Section 5.1(b). In the event that any "Accounting Change"
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then the Borrower and the Administrative Agent agree to enter into negotiations
in order to amend such provisions of this Agreement so as to equitably reflect
such Accounting Changes with the desired result that the criteria for evaluating
the Borrower's financial condition shall be the same after such Accounting
Changes as if such Accounting Changes had not been made. Until such time as
such an amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
constructed as if such Accounting Changes had not occurred. "Accounting
----------
Changes" refers to changes in accounting principles required by the promulgation
of any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions), the Securities and
Exchange Commission or any other qualified, authoritative agency or
organization.
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranty": any agreement pursuant to which Borrower or its
--------
Subsidiaries incurs Guaranty Obligations.
"Guaranty and Collateral Agreement": the Guaranty and Collateral
---------------------------------
Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit C, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Guaranty Obligation": as to any Person (the "guarantying person"),
-------------------
any obligation of (a) the guarantying person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which obligation the guarantying person has issued a reimbursement, counter-
indemnity or similar obligation, in either case guarantying, directly or
11
<PAGE>
indirectly, any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
------------------- ---------------
manner, whether directly or indirectly, including, without limitation, any
obligation of the guarantying person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
-------- -------
Guaranty Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation of any guarantying person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made and (b) the maximum amount for
which such guarantying person may be liable pursuant to the terms of the
instrument embodying such Guaranty Obligation, unless such primary obligation
and the maximum amount for which such guarantying person may be liable are not
stated or determinable, in which case the amount of such Guaranty Obligation
shall be such guarantying person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Inchoate Tax Liens": Liens arising from taxes not yet due and payable
------------------
but as to which, pursuant to applicable laws and regulations, an inchoate lien
exists against the assets of the taxpayer responsible for such taxes prior to
the time such taxes are paid.
"Incur": as defined in Section 8.2; and the term "Incurrence" shall
----- ----------
have a correlative meaning.
"Indebtedness": of any Person at any date, without duplication, (a)
------------
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business) to the extent required to be shown on a balance sheet prepared in
accordance with GAAP, the amount of which shall equal the amount required to be
shown on such a balance sheet, (c) all obligations of such Person evidenced by
notes (other than notes relating to Earnouts to the extent not required to be
shown on a balance sheet prepared in accordance with GAAP), bonds, debentures or
other similar instruments, (d) all obligations of such Person created or arising
from or in connection with the deposit, transfer or assignment of Capital Stock
into trust, (e) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person, (f) all Capital Lease Obligations of such Person, (g) all obligations of
such Person, contingent or otherwise, as an account party under acceptance,
letter of credit or similar facilities, (h) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire for
value any Capital Stock (other than common stock) of such Person, (i) all
Guaranty Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (h) above, and (j) all obligations of the
kind referred to in clauses (a) through (i) above secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation, accounts and
contract rights)
12
<PAGE>
owned by such Person, whether or not such Person has assumed or become liable
for the payment of such obligation, provided, that the amount of Indebtedness of
--------
the type referred to in clauses (i) and (j) above will be included within the
definition of "Indebtedness" only to the extent of the amount of the obligations
------------
so guaranteed and to the extent of any such Lien, respectively.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intellectual Property": the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
without limitation, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
---------------------
Business Day in each March, June, September and December to occur while such
Loan is outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each day
which is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any Loan,
unless otherwise expressly provided herein, the date of any prepayment or
repayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
---------------
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its Borrowing Notice or
Conversion/Continuation Notice, as the case may be, given with respect thereto;
and (b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
--------
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next Business
Day unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period for Eurodollar Loans under the applicable
Facility that would otherwise extend beyond the Reducing Revolving Credit
Termination Date or the Revolving Credit Termination Date, as the case may
be, shall end on the Reducing Revolving Credit Termination Date or the
Revolving Credit Termination Date, as applicable;
13
<PAGE>
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(iv) the Borrower shall select Interest Periods so as not to require
a scheduled payment or prepayment of the applicable Eurodollar Loan during
an Interest Period for such Loan; and
(v) the Borrower shall use reasonable efforts to select Interest
Periods so as not to require any mandatory prepayment of the applicable
Eurodollar Loan during an Interest Period for such Loan.
"IRS": United States Internal Revenue Service.
---
"Issuing Lender": (i) BofA in its capacity as issuer of any Letter of
--------------
Credit, (ii) each Lender that is a party to this Agreement on the Closing Date
and (iii) any Lender approved as an issuer of any Letter of Credit by the
Administrative Agent and by the Borrower.
"L/C Commitment": at any time, the lesser of (a) $4,000,000, and (b)
--------------
the Total Revolving Credit Commitments.
"L/C Fee Payment Date": on the last Business day of each March, June,
--------------------
September and December and the last day of the Revolving Credit Commitment
Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the Revolving
----------------
Credit Lenders other than the Issuing Lender.
"Lender": as defined in the preamble to this Agreement.
------
"Lender Default": (i) the refusal (which has not been retracted) or
--------------
the failure of a Lender to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 3.4, (ii) a Lender
having notified in writing the Borrower and/or the Administrative Agent that
such Lender does not intend to comply with its obligations under Section 2.1(a),
2.1(b), 2.1(c) or 3.4 or (iii) a Lender becoming subject to any receivership,
conservatorship or insolvency proceeding.
"Letters of Credit": as defined in Section 3.1(a).
-----------------
14
<PAGE>
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other security
interest of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
----
"Loan Year": the twelve-month period commencing on the Closing Date
---------
and each twelve-month period commencing on each anniversary of the Closing
Date.
"Loan Documents": this Agreement, the Applications, the Security
--------------
Documents, the Subordination Agreements, any Notes and all other instruments,
documents (including interest rate hedging or swap transaction documents) and
agreements executed and delivered by a Loan Party to Administrative Agent or any
Lender in connection with the Loans.
"Loan Parties": the Borrower and each Subsidiary or Affiliate of the
------------
Borrower that is a party to a Loan Document.
"Mandatory Borrowing": as defined in Section 2.1(d).
-------------------
"Margin Stock": means "margin stock" as such term is defined in
------------
Regulation T, U or X as promulgated by the Federal Reserve Board.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, assets, properties or financial condition of the Borrower, (b) the
business, assets, properties or financial condition of the Borrower and the
Restricted Subsidiaries, taken as a whole, or (c) the validity or enforceability
of this Agreement or any of the other Loan Documents or the rights or remedies
of the Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maximum Reducing Revolving Credit Commitment": initially the amount
--------------------------------------------
set forth under the column heading "Maximum Reducing Revolving Credit
Commitment" in the chart in Section 4.4(c), and thereafter at any time the sum
of the then applicable Reducing Revolving Credit Commitment and the Supplemental
Facility Commitment.
"Maximum Swingline Amount": Two million dollars ($2,000,000).
------------------------
"Mortgaged Properties": the real property or properties listed on
--------------------
Schedule 1.1A, if any, as to which the Administrative Agent for the benefit of
the Lenders shall be granted a Lien pursuant to the Mortgages.
15
<PAGE>
"Mortgages": each mortgage and deed of trust (or each of the
---------
mortgages and deeds of trust if there is more than one), if any, now or
hereafter made by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Lenders in form and substance
reasonably satisfactory to Administrative Agent.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
-----------------
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys' fees, accountants' fees, investment banking
fees, financial advisory fees (other than financial advisory fees paid to
Affiliates of the Borrower relating to such Asset Sale or Recovery Event),
amounts required to be applied to the repayment of Indebtedness secured by a
Lien expressly permitted hereunder on any asset which is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually incurred in connection
therewith (including reserves deposited with third parties pursuant to indemnity
agreements for so long as such amounts are not returned to the Borrower) and net
of taxes paid or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any tax sharing
arrangements) and (b) in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of loans, the
cash proceeds received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"Net Income": for any period, the net income (or loss) of a Person
----------
determined in accordance with GAAP.
"Non-Excluded Taxes": as defined in Section 4.12(a).
------------------
"Non-U.S. Lender": as defined in Section 4.12(b).
---------------
"Notes": the collective reference to any promissory note evidencing
-----
Loans.
"Obligations": (a) in the case of the Borrower, the Borrower
-----------
Obligations and (b) in the case of each Subsidiary Guarantor, its Subsidiary
Guarantor Obligations.
"Participant": as defined in Section 11.6(b).
-----------
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA (or any successor).
16
<PAGE>
"Permitted Acquisition": any Acquisition that complies with each of
---------------------
the following requirements:
(a) (i) The Borrower satisfies, and will continue to satisfy,
immediately after giving effect (on a pro forma basis) to the
relevant Acquisition and any Indebtedness incurred in connection
therewith, all applicable financial covenants under this
Agreement, (ii) Administrative Agent shall have received no later
than ten (10) days prior to such Permitted Acquisition a pro
forma budget of projected income and expenses relating to such
Permitted Acquisition and (iii) such Acquisition is consummated
on a "friendly" basis;
(b) No Default or Event of Default has then occurred and is
continuing or would result therefrom;
(c) The purchase price (including assumed Indebtedness, the fair
market value of any non-cash consideration and the amount of any
contingent liabilities) of the relevant Acquisition does not
exceed (i) $20,000,000 individually, (ii) $60,000,000 in any Loan
Year and (iii) the purchase price of all such Acquisitions since
the Closing Date does not exceed $100,000,000 in the aggregate;
and
(d) The company being acquired is in the real estate services
business.
"Person": an individual, partnership, corporation, limited liability
------
company, partnership, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements": those certain pledge agreements by Borrower and
-----------------
certain other Loan Parties in favor of Administrative Agent which, among other
things, pledge the Pledged Stock.
"Pledged Stock": stock pledged to the Administrative Agent pursuant
-------------
to the Pledge Agreements.
"Prime Rate": the rate of interest announced from time to time by
----------
Administrative Agent as its Prime Rate.
"Projections": as defined in Section 7.2(c).
-----------
"Properties": as defined in Section 5.18(a).
----------
17
<PAGE>
"Property": any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"Qualified Issuer": any commercial bank (a) which has capital and
----------------
surplus in excess of $500,000,000 and (b) the outstanding long-term debt
securities of which are rated as least A2 by Standard & Poor's Ratings Group or
at least P-2 by Moody's Investors Service, Inc., or carry an equivalent rating
by a nationally recognized rating agency if both of the two named rating
agencies cease publishing ratings of investments.
"Recovery Event": any settlement of or payment in respect of any
--------------
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any Loan Party.
"Reducing Revolving Credit Commitment": as to any Lender, the
------------------------------------
obligation of such Lender, if any, to make Reducing Revolving Credit Loans, in
an aggregate principal and/or face amount not to exceed the amount set forth
under the heading "Reducing Revolving Credit Commitment" opposite such Lender's
name on Schedule 1.1B, as the same may be reduced pursuant to Section 4.4(c) and
4.4(d) or otherwise changed from time to time pursuant to the terms hereof. The
original aggregate amount of the Reducing Revolving Credit Commitments is
$25,000,000. Notwithstanding the foregoing and subject to Section 2.1(b), the
Borrower may elect at any time to increase the Reducing Revolving Credit
Commitment by the then applicable amount of the Supplemental Facility
Commitment.
"Reducing Revolving Credit Commitment Period": the period from and
-------------------------------------------
including the Closing Date to the Reducing Revolving Credit Termination Date.
"Reducing Revolving Credit Lender": each Lender which has a Reducing
--------------------------------
Revolving Credit Commitment or which has made Reducing Revolving Credit Loans.
"Reducing Revolving Credit Loans": as defined in Section 2.1(b).
-------------------------------
"Reducing Revolving Credit Percentage": as to any Reducing Revolving
------------------------------------
Credit Lender at any time, the percentage which such Lender's Reducing Revolving
Credit Commitment then constitutes of the Total Reducing Revolving Credit
Commitments (or, at any time after the Reducing Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of the Reducing Revolving Extensions of Credit of such Lender then
outstanding constitutes of the Total Reducing Revolving Extensions of Credit
then outstanding).
"Reducing Revolving Credit Termination Date": the earliest of (a) the
------------------------------------------
fifth anniversary of the Closing Date, (b) the date on which the Revolving
Credit Commitment is terminated and (c) the date on which the Reducing Revolving
Credit Commitments are terminated pursuant to Section 9.
18
<PAGE>
"Reducing Revolving Extensions of Credit": as to any Reducing
---------------------------------------
Revolving Credit Lender at any time, an amount equal to the aggregate principal
amount of all Reducing Revolving Credit Loans made by such Lender then
outstanding.
"Regulation U": Regulation U of the Federal Reserve Board as in
------------
effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
------------------------
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
----------------
ERISA, other than those events as to which the thirty-day notice period has been
waived by the PBGC pursuant to regulations issued under PBGC Reg. (S) 4043 (or
any successor).
"Required EBITDA Level" on any day means (i) $15 million at all times
---------------------
when the Borrower's Consolidated Leverage Ratio on such day equals or exceeds
1.25:1.00 and (ii) $12 million at all times when Borrower's Consolidated
Leverage Ratio on such day is less than 1.25:1.00.
"Required Lenders": (i) when the total number of Lenders is four or
----------------
more, the holders of not less than 51% of the Total Commitments or, if the
Commitments have been terminated, the Total Extensions of Credit and (ii) at all
times when the number of Lenders is less than four, the holders of not less than
66 2/3% of the Total Commitments or, if the Commitments have been terminated,
the Total Extensions of Credit.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chairman of the board of directors, chief
-------------------
executive officer, president or chief financial officer of the Borrower, but in
any event, with respect to financial matters, the president or chief financial
officer of the Borrower.
"Restricted Payments": as defined in Section 8.6.
-------------------
"Restricted Subsidiaries": each Domestic Subsidiary of the Borrower
-----------------------
or of a Subsidiary of Borrower which is also a Wholly Owned Subsidiary of the
Borrower or such Subsidiary of Borrower whether now owned or hereafter acquired,
other than those Subsidiaries which (i) hold no material assets or liabilities
and (ii) conduct no significant business activities;
19
<PAGE>
provided that, notwithstanding clauses (i) and (ii) above, Restricted
- -------- ----
Subsidiaries shall not include those Subsidiaries designated as Unrestricted
Subsidiaries on Schedule 5.15 hereto or as to which the Borrower has requested
in writing to Administrative Agent that such Subsidiary not be categorized as a
Restricted Subsidiary and as to which Administrative Agent, in its sole and
absolute discretion, has agreed in writing shall not be categorized as a
Restricted Subsidiary.
"Revolving Credit Commitment": as to any Lender, the obligation of
---------------------------
such Lender, if any, to make Revolving Credit Loans and participate in Letters
of Credit and in the case of the Swingline Lender, make Swingline Loans, in an
aggregate principal and/or face amount not to exceed the amount set forth under
the heading "Revolving Credit Commitment" opposite such Lender's name on
Schedule 1.1C, as the same may be changed from time to time pursuant to the
terms hereof. The initial aggregate amount of the Revolving Credit Commitments
is $10,000,000.
"Revolving Credit Commitment Period": the period from and including
----------------------------------
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Lender": each Lender which has a Revolving Credit
-----------------------
Commitment or which has made Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.1(a).
----------------------
"Revolving Credit Percentage": as to any Revolving Credit Lender at
---------------------------
any time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of the Revolving Extensions of Credit of
such Lender then outstanding constitutes of the Total Revolving Extensions of
Credit then outstanding).
"Revolving Credit Termination Date": the earlier of (a) the fifth
---------------------------------
anniversary of the Closing Date; provided that, with respect to the Swingline
Loans and the Swingline Commitment, the "Revolving Credit Termination Date"
shall mean the date which is five (5) Business Days prior to the fifth
anniversary of the Closing Date and (b) the date on which the Revolving Credit
Commitments are terminated pursuant to Section 9.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
------------------------------
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans made by such Lender then outstanding, (b) such
Lender's Revolving Credit Percentage multiplied by the L/C Obligations then
outstanding and (c) in the case of the Swingline Lender, the aggregate principal
amount of any Swingline Loan made by such Lender then outstanding.
"Security Documents": the collective reference to the Guaranty and
------------------
Collateral Agreement, the Pledge Agreements, the Mortgages, the Subordination
Agreements, and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any Property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
20
<PAGE>
"Senior Credit Facilities": each of (a) the Revolving Credit
------------------------
Commitments and the extensions of credit made thereunder (the "Revolving Credit
----------------
Facility") and (b) the Reducing Revolving Credit Commitments and the extension
- --------
of credit made thereunder (the "Reducing Revolving Credit Facility").
----------------------------------
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
-------
any date of determination, (a) the amount of the then "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the anticipated liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its debts
as they mature. For purposes of this definition, (i) "debt" means liability on
a "claim," and (ii) "claim" means any (x) right to payment, whether or not such
a right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
"Subordinated Note Documents": the collective reference to the
---------------------------
Subordination Agreements and the Subordinated Notes.
"Subordinated Noteholders": the collective reference to the Persons
------------------------
to whom the Subordinated Notes are made payable and the holders of the
Subordinated Notes from time to time.
"Subordinated Notes": any promissory notes issued by a Loan Party to
------------------
third parties in connection with Acquisition Indebtedness, together with all
instruments and other agreements entered into by a Loan Party in connection
therewith, as the same may be amended, supplemented, restated or otherwise
modified from time to time in accordance with Section 8.11, which notes shall
include subordination provisions reasonably acceptable to the Administrative
Agent.
"Subordination Agreement": any Subordination Agreement required by the
-----------------------
Administrative Agent relating to Subordinated Notes.
"Subsidiary": as to any Person, a corporation, partnership, limited
----------
liability company or partnership or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers
21
<PAGE>
of such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Restricted Subsidiary of the Borrower
--------------------
other than any Foreign Subsidiary.
"Subsidiary Guarantor Obligations": with respect to any Subsidiary
--------------------------------
Guarantor, the collective reference to (a) the Borrower Obligations and (b) all
obligations and liabilities of such Subsidiary Guarantor which may arise under
or in connection with the Guaranty and Collateral Agreement or any other Loan
Document to which such Subsidiary Guarantor is a party, in each case whether on
account of guaranty obligations, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all Attorney Costs
of the Administrative Agent or of the Lenders that are required to be paid by
such Subsidiary Guarantor pursuant to the terms of the Guaranty and Collateral
Agreement or any other Loan Document).
"Subsidiary Restrictions": as defined in Section 8.15.
-----------------------
"Supplemental Facility Commitment": an amount not to exceed initially
--------------------------------
at any time $15,000,000, as reduced from time to time pursuant to the terms of
Section 4.4(c) and Section 4.4(d).
"Swingline Lender": BofA, in its capacity as the maker of Swingline
----------------
Loans, and its successors in such capacity.
"Swingline Loan": shall have the meaning assigned to such term in
--------------
Section 2.1(c).
"Termination Date": with respect to Reducing Revolving Credit Loans,
----------------
the Reducing Revolving Credit Termination Date and, with respect to the
Revolving Loans, the Revolving Credit Termination Date.
"Title Insurance Company": a nationally recognized title insurance
-----------------------
company satisfactory to Administrative Agent.
"Total Commitment": at any time, the sum of the Total Revolving Credit
----------------
Commitments and the Total Reducing Revolving Credit Commitments.
"Total Extensions of Credit": at any time, the sum of the Total
--------------------------
Revolving Extensions of Credit and the Total Reducing Revolving Extensions of
Credit.
"Total Reducing Revolving Credit Commitments": at any time, the
-------------------------------------------
aggregate amount of the Reducing Revolving Credit Commitments at such time.
"Total Reducing Revolving Extensions of Credit": at any time, the
---------------------------------------------
aggregate amount of the Reducing Revolving Extensions of Credit at such time.
22
<PAGE>
"Total Revolving Credit Commitments": at any time, the aggregate
----------------------------------
amount of the Revolving Credit Commitments at such time.
"Total Revolving Extensions of Credit": at any time, the aggregate
------------------------------------
amount of the Revolving Extensions of Credit at such time.
"Transferee": as defined in Section 11.15.
----------
"Type": as to any Loan, its nature as a Base Rate Loan or a
----
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
---------------
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
"Unrestricted Subsidiaries": any Subsidiary of Borrower or of a
-------------------------
Subsidiary of Borrower that is not a Restricted Subsidiary.
"Warburg": Warburg, Pincus Investors, L.P. and its Affiliates.
-------
"Wholly Owned Subsidiary": as to any Person, any other Person all of
-----------------------
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Year 2000 Issue": the potential or actual inability of computers, as
---------------
well as embedded microchips in non-computing devices, to perform date-sensitive
functions properly with respect to certain dates prior to and after December 31,
1999.
1.2 Other Definitional Provisions . (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the same defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
23
<PAGE>
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions hereof,
-----------
each Revolving Credit Lender severally agrees to make revolving credit loans
(each, a "Revolving Credit Loan") to the Borrower from time to time during the
---------------------
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Revolving Credit Percentage
of the L/C Obligations and in the case of the Swingline Lender, the outstanding
balance of the Swingline Loans, then outstanding does not exceed the amount of
such Lender's Revolving Credit Commitment. During the Revolving Credit
Commitment Period, the Borrower may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Credit Loans may from time to time be Eurodollar Loans (except in the
case of Swingline Loans, which shall at all times be Base Rate Loans) or Base
Rate Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.2 and 4.5, provided that no Revolving Credit
--------
Loan shall be made as a Eurodollar Loan after the day that is one month prior to
the then scheduled Revolving Credit Termination Date. Notwithstanding the
foregoing, the outstanding principal amount of all Revolving Credit Loans shall
be zero for the period from December 1 to December 31 in each calendar year. At
no time shall the sum of (i) the outstanding Revolving Credit Loans and (ii) the
outstanding Swingline Loans exceed the aggregate Revolving Credit Commitments of
all Lenders.
(b) Subject to the terms and conditions hereof, each Reducing
Revolving Credit Lender severally agrees to make revolving credit loans (each, a
"Reducing Revolving Credit Loan") to the Borrower from time to time during the
------------------------------
Reducing Revolving Credit Commitment Period in an aggregate principal amount at
any one time outstanding which does not exceed the amount of such Lender's
Reducing Revolving Credit Commitment. During the Reducing Revolving Credit
Commitment Period, the Borrower may use the Reducing Revolving Credit
Commitments by borrowing, prepaying the Reducing Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof. The Reducing Revolving Credit Loans may from time to time be Eurodollar
Loans or Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 4.5, provided that no
--------
Reducing Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Reducing Revolving Credit Termination Date. The
Borrower may from time to time elect to increase the Reducing Revolving Credit
Commitment by an amount not to exceed the then applicable Supplemental Facility
Commitment as established pursuant to Sections 4.4(c) and 4.4(d); provided that
--------
(i) such increase shall be in an amount equal to the lesser of (x) a whole
multiple of $5,000,000 and (y) the entire remaining amount of the Supplemental
Facility Commitment, (ii) Borrower shall give prior written notice to
Administrative Agent of such election, (iii) immediately after giving effect to
such increase, Borrower shall be in compliance with all terms and conditions of
this Agreement, (iv) no Default or Event of Default exists or would occur as a
result of such increase and (v) any Lender or Lenders or, under the terms and
conditions set forth below, third party
24
<PAGE>
lenders shall have agreed to make Reducing Revolving Credit Loans as a result of
the requested increase in the Reducing Revolving Credit Commitment. Each Lender
may elect, but shall in no way be obligated to, increase its respective
participating interest in the Reducing Revolving Credit Commitment as increased
by the requested portion of the Supplemental Facility Commitment. If the Lenders
elect to commit to provide less than the full amount of the requested portion of
the Supplemental Facility Commitment, Borrower may obtain commitments for the
remainder of the requested portion of the Supplemental Facility Commitment
either from (a) an existing Lender or combination of existing Lenders or (b)
third party lenders acceptable to Administrative Agent, which lenders shall
become Lenders under this Agreement by executing a joinder and acceptance
agreement suitable to the Administrative Agent evidencing their commitment to
become Reducing Revolving Credit Lenders to the extent of their respective
Reducing Revolving Credit Commitment Percentage in the Reducing Revolving Credit
Commitment. Concurrently with such election to participate in the Reducing
Revolving Credit Commitment, as increased by the Supplemental Credit Commitment,
each such Lender shall become a Reducing Revolving Credit Lender bound by the
terms and conditions of this Agreement. Concurrently with each increase in the
Reducing Revolving Credit Commitment pursuant to this Section 2.1(b), the
amounts of the Supplemental Facility Commitment set forth in Section 4.4(c) from
and after the date of such increase shall be permanently and simultaneously
reduced (but not below zero) by the amount of such increase. At no time shall
the Reducing Revolving Credit Loans exceed the Maximum Reducing Revolving Credit
Commitment, as reduced from time to time pursuant to Section 4.4(c).
(c) Subject to and upon the terms and conditions set forth herein,
the Swingline Lender agrees to make, at any time during the Revolving Credit
Commitment Period, a revolving loan or revolving loans (each a "Swingline Loan"
and, collectively, the "Swingline Loans") to the Borrower, which Swingline Loans
(i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and
reborrowed in accordance with the provisions hereof, (iii) shall not exceed in
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Credit Loans then outstanding and
the aggregate amount of all L/C Obligations at such time, an amount equal to the
Swingline Lender's Revolving Credit Commitment at such time and (iv) shall not
exceed in aggregate principal amount at any time outstanding the Maximum
Swingline Amount. Notwithstanding anything to the contrary contained in this
Section 2.1(c), (x) the Swingline Lender shall not be obligated to make any
Swingline Loans at a time when a Lender Default exists unless the Swingline
Lender has entered into arrangements satisfactory to it and the Borrower to
eliminate its risk with respect to the Defaulting Lender's or Lenders'
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Lender's or Lenders' Revolving Credit Percentage of the outstanding
Swingline Loans and (y) the Swingline Lender shall not make any Swingline Loan
after it has received written notice from the Borrower or the Required Lenders
stating that a Default or an Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written notice (I) of
rescission of all such notices from the party or parties originally delivering
such notice or (II) of the waiver by the Required Lenders or cure of such
Default or Event of Default.
(d) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the Revolving Credit Lenders that the Swingline
Lender's outstanding
25
<PAGE>
Swingline Loans shall be funded with one or more Borrowings of Revolving Credit
Loans (provided that such notice shall be deemed to have been automatically
--------
given upon the occurrence of a Default or an Event of Default under Section 9 or
upon the exercise of any of the remedies provided in the last paragraph of
Section 9), in which case one or more Borrowings of Revolving Credit Loans
constituting Base Rate Loans (each such Borrowing, a "Mandatory Borrowing")
shall be made on the immediately succeeding Business Day by all Revolving Credit
Lenders pro rata based on each such Revolving Credit Lender's Revolving Credit
Percentage (determined before giving effect to any termination of the Revolving
Credit Commitments pursuant to Section 4.2(a)) and the proceeds thereof shall be
applied directly by the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each Revolving Credit Lender hereby irrevocably
agrees to make Revolving Credit Loans upon one Business Day's notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by the Swingline Lender
notwithstanding (i) the amount of the Mandatory Borrowing may not comply with
the minimum Borrowing requirements otherwise required hereunder, (ii) whether
any conditions specified in Section 6 are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) the date of such Mandatory
Borrowing and (v) the amount of the Total Revolving Credit Commitment at such
time. In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each Revolving Credit Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise have
occurred, but adjusted for any payments received from the Borrower on or after
such date and prior to such purchase) from the Swingline Lender such
participations in the outstanding Swingline Loans as shall be necessary to cause
the Revolving Credit Lenders to share in such Swingline Loans ratably based upon
their respective Revolving Credit Percentages (determined before giving effect
to any termination of the Revolving Credit Commitments pursuant to Section
4.2(a)), provided that (x) all interest payable on the Swingline Loans shall be
--------
for the account of the Swingline Lender until the date as of which the
respective participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the participant
from and after such date and (y) at the time any purchase of participations
pursuant to this sentence is actually made, the purchasing Revolving Credit
Lender shall be required to pay the Swingline Lender interest on the principal
amount of participation purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such participation, at the overnight Federal Funds Rate for
the first three days and at the rate otherwise applicable to Revolving Credit
Loans maintained as Base Rate Loans hereunder for each day thereafter.
(e) The Borrower hereby unconditionally promises to pay to the
Administrative Agent (i) for the account of each Revolving Credit Lender, the
then unpaid principal amount of each Revolving Credit Loan of such Lender on the
Revolving Credit Termination Date, (ii) for the account of the Swingline Lender,
the then unpaid principal amount of each Swingline Loan of the Swingline Lender
on the Revolving Credit Termination Date, and (iii) for the account of each
Reducing Revolving Credit Lender the then unpaid principal amount of each
Reducing Revolving Credit Loan of such Lender on the Reducing Revolving Credit
Termination Date.
26
<PAGE>
2.2 Procedure for Borrowing.
------------------------
(a) Revolving Credit Borrowing. The Borrower may borrow under
--------------------------
the Revolving Credit Commitments during the Revolving Credit Commitment Period
on any Business Day (each a "Borrowing"), provided that the Borrower shall give
--------
the Administrative Agent irrevocable telephonic notice (promptly confirmed in
writing in a Borrowing Notice) (which notice must be received by the
Administrative Agent prior to Noon, Chicago time, (a) three Business Days prior
to the requested Borrowing Date, in the case of Eurodollar Loans (accompanied in
the case of the initial Revolving Credit Loans consisting of Eurodollar Loans on
the Closing Date by appropriate indemnification letters to protect the
Administrative Agent and Lenders in the event such Eurodollar Loans are not
disbursed on the date set forth in such notice), or (b) one Business Day prior
to the requested Borrowing Date, in the case of Base Rate Loans (excluding
Swingline Loans and Revolving Loans made pursuant to a Mandatory Borrowing)),
specifying (i) the amount and Type of Revolving Credit Loans to be borrowed,
(ii) the requested Borrowing Date, and (iii) in the case of Eurodollar Loans,
the respective amounts of each such Type of Loan and the respective lengths of
the initial Interest Period therefor. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans
$1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then
aggregate Available Revolving Credit Commitments are less than $1,000,000, such
lesser amount) and (y) in the case of Eurodollar Loans $1,000,000 or a whole
multiple of $500,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall notify each Revolving Credit Lender of
the receipt of Borrower's request prior to the end of business on the day
Administrative Agent timely receives such notice from Borrower. Each Revolving
Credit Lender will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of Borrower at the
Administrative Agent's Payment Office prior to 1:00 P.M., Chicago time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available, no later than
2:00 P.M., Chicago time, on the requested Borrowing Date, to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Revolving Credit Lenders and in like funds as received by the
Administrative Agent (or, in the event that the Borrower specifies in the
relevant Borrowing Notice a different account into which such amounts should be
transferred, the Administrative Agent shall, no later than 2:00 P.M., Chicago
time, on the requested Borrowing Date, transfer to such account the aggregate
amount made available to the Administrative Agent by the Revolving Credit
Lenders in immediately available funds).
(b) Reducing Revolving Credit Borrowing. The Borrower may borrow
-----------------------------------
under the Reducing Revolving Credit Commitments during the Reducing Revolving
Credit Commitment Period on any Business Day, provided that the Borrower shall
--------
give the Administrative Agent irrevocable telephonic notice (promptly confirmed
in writing in a Borrowing Notice) (which notice must be received by the
Administrative Agent prior to Noon, Chicago time, (a) three Business Days prior
to the requested Borrowing Date, in the case of Eurodollar Loans (accompanied in
the case of the initial Reducing Revolving Credit Loans consisting of Eurodollar
Loans on the Closing Date by appropriate indemnification letters to protect the
Administrative Agent and Lenders in the event such
27
<PAGE>
Eurodollar Loans are not disbursed on the date set forth in such notice), or (b)
one Business Day prior to the requested Borrowing Date, in the case of Base Rate
Loans), specifying (i) the amount and Type of Reducing Revolving Credit Loans to
be borrowed, (ii) the requested Borrowing Date, and (iii) in the case of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Each borrowing under
the Reducing Revolving Credit Commitments shall be in an amount equal to (x) in
the case of Base Rate Loans $1,000,000 or a whole multiple of $500,000 in excess
thereof (or, if the then aggregate Available Reducing Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans $1,000,000 or a whole multiple of $500,000 in excess thereof.
Upon receipt of any such notice from the Borrower, the Administrative Agent
shall notify each Reducing Revolving Credit Lender of the receipt of Borrower's
request prior to the end of business on the day Administrative Agent timely
receives such notice from Borrower. Each Reducing Revolving Credit Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of Borrower at the Administrative Agent's
Payment Office prior to 1:00 P.M., Chicago time, on the Borrowing Date requested
by the Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available, no later than 2:00 P.M., Chicago time, on
the requested Borrowing Date, to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Reducing Revolving Credit Lenders and in like funds as received by the
Administrative Agent (or, in the event that the Borrower specifies in the
relevant Borrowing Notice a different account into which such amounts should be
transferred, the Administrative Agent shall, no later than 2:00 P.M., Chicago
time, on the requested Borrowing Date, transfer to such account the aggregate
amount made available to the Administrative Agent by the Reducing Revolving
Credit Lenders in immediately available funds).
(c) Swingline Loan Borrowing. (i) Whenever the Borrower desires to
------------------------
incur Swingline Loans hereunder, the Borrower shall give the Swingline Lender no
later than Noon (Chicago time) on the date that a Swingline Loan is to be
incurred, written notice or telephonic notice promptly confirmed in writing of
each Swingline Loan to be incurred hereunder. Such borrowing will then be made
available, no later than 2:00 P.M., Chicago time, on the requested Borrowing
Date, to the Borrower by the Administrative Agent crediting the account of the
Borrower on the books of the Administrative Agent's Payment Office with the
amount of such Swingline Loan made available to the Administrative Agent by the
Swingline Lender and in like funds as received by the Administrative Agent (or,
in the event that the Borrower specifies in the relevant Borrowing Notice a
different account into which such amounts should be transferred, the
Administrative Agent shall, no later than 2:00 P.M., Chicago time, on the
requested Borrowing Date, transfer to such account the aggregate amount made
available to the Administrative Agent by the Swingline Lender in immediately
available funds). Each such notice shall be irrevocable and specify in each case
(A) the date of Borrowing (which shall be a Business Day) and (B) the aggregate
principal amount of the Swingline Loans to be incurred pursuant to such
Borrowing. Each Borrowing under the Swingline Loan shall be (i) a Base Rate Loan
and (ii) in an amount equal to $250,000 or a whole multiple of $250,000 in
excess thereof. Swingline Loans shall be repaid in full on or before the date
that is 15 days subsequent to the date of the original Swingline Borrowing. Not
more than nine Borrowings under the Swingline Loan shall be permitted in any
twelve month period.
28
<PAGE>
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(d), with the Borrower irrevocably agreeing, by its incurrence of any
Swingline Loan, to the making of the Mandatory Borrowings as set forth in
Section 2.1(d).
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
--------------
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Credit Lenders set forth in Section 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
-----------------
the Revolving Credit Commitment Period in such form as may be approved from time
to time by the Issuing Lender: provided that the Issuing Lender shall have no
--------
obligation to issue any Letter of Credit if (i) after giving effect to such
issuance, (A) the L/C Obligations would exceed the L/C Commitment or (B) the
Total Revolving Extensions of Credit would exceed the Total Revolving Credit
Commitments or (ii) it has received notice from the Administrative Agent that
the issuance of such Letter of Credit will violate clause (i) above. Each
Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later
than the earlier of (x) the first anniversary of its date of issuance and (y)
the date which is 30 Business Days prior to the then scheduled Revolving Credit
Termination Date, provided that any Letter of Credit with a one-year term may
--------
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform Customs and
to the extent not inconsistent therewith, the laws of the State of Illinois.
(c) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
------------------------------------------
from to time to time request that the Issuing Lender issue a Letter of Credit by
delivering concurrently to each of the Administrative Agent and the Issuing
Lender at its address for notices specified herein an Application therefor,
completed to the reasonable satisfaction of the Issuing Lender, and such other
certificates, documents and other papers and information as the Issuing Lender
may request to conform to its customary issuance procedures. Upon receipt of any
Application and the approval of the Administrative Agent as evidenced by the
notice referred to in Section 3.1(a)(ii), the Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the Issuing Lender and
the Borrower. The Issuing Lender shall furnish a copy of each Letter of Credit
to the Borrower and the Administrative Agent promptly
29
<PAGE>
following the issuance thereof. The Administrative Agent shall furnish reports
of Issuances and other activity to the Revolving Credit Lenders at least once
per calendar quarter.
3.3 Commissions, Fees and Other Charges. (a) The Borrower will
-----------------------------------
pay to the Administrative Agent, for the account of the Revolving Credit
Lenders, a letter of credit commission with respect to each Letter of Credit,
computed for the period from and including the date of issuance of such Letter
of Credit to the date such Letter of Credit is no longer outstanding, computed
at a rate per annum equal to the Applicable Margin then in effect from time to
time for Revolving Credit Eurodollar Loans and calculated on the average
aggregate daily amount available to be drawn under such Letter of Credit for the
period as to which payment of such commission is made, payable on each L/C Fee
Payment Date to occur while such Letter of Credit remains outstanding and on the
date such Letter of Credit expires or is cancelled. In addition, the Borrower
shall pay to the Issuing Lender for its own account a fronting fee of 0.125% per
annum on the average aggregate amount available to be drawn under Letters of
Credit outstanding during the period for which such fee is calculated, payable
quarterly in arrears on each L/C Fee Payment Date that occurs while such Letter
of Credit remains outstanding and on the date such Letter of Credit expires or
is cancelled.
(b) In addition to the fees and commissions, the Borrower shall pay
or reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participants. (a) The Issuing Lender irrevocably agrees
----------------
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, upon demand such L/C Participant shall pay to the Issuing Lender,
with notice to the Administrative Agent, at the Issuing Lender's address for
notices specified herein an amount equal to such L/C Participant's Revolving
Credit Percentage of the amount of such draft, or any part thereof, which is not
so reimbursed. Each L/C Participant's obligation to make the payment referred to
in the immediately preceding sentence shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such L/C
Participant or the Borrower may have against the Issuing Lender, the Borrower or
any other Person for any reason whatsoever, (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the
conditions specified in Section 6, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower, (iv) any breach of this Agreement or
any other Loan Document by any Loan Party or any
30
<PAGE>
other Lender, or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any reimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is not paid
to the Issuing Lender when due but is paid within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
(through the Administrative Agent) on demand (i) an amount equal to the product
of (x) such amount, times (y) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required to the
date on which such payment is immediately available to the Issuing Lender, times
(z) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360 and (ii) a customary
administrative fee with respect thereto. If any such amount required to be paid
by any L/C Participant pursuant to Section 3.4(a) is not made available to the
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Base Rate Loans under the
Revolving Credit Facility. A certificate of the Issuing Lender submitted to any
L/C Participant (with a copy to be provided promptly to the Administrative
Agent) with respect to any amounts owing under this Section shall be conclusive
in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a), the Issuing Lender
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
- -------- -------
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender.
3.5 Reimbursement Obligation of the Borrower. If any draft shall
----------------------------------------
be presented for payment under any Letter of Credit issued by the Issuing
Lender, the Issuing Lender shall promptly notify the Borrower of the date and
amount thereof. If the Issuing Lender notifies the Borrower prior to Noon
Chicago time, on any Business Day, of any drawing under any Letter of Credit
issued by it, the Borrower shall reimburse the Issuing Lender with respect to
such drawing on such Business Day. If the Issuing Lender notifies the Borrower
after Noon Chicago time. on any Business Day of any drawing under any Letter of
Credit issued by it, the Borrower shall reimburse the Issuing Lender with
respect to such drawing on the next succeeding Business Day and interest shall
be payable on the amount of such drawing for such period at the rate then
applicable to Base Rate Loans under the Revolving Credit Facility. In addition,
the Borrower agrees to reimburse the Issuing Lender for any normal, customary
and reasonable fees and charges and for any taxes or other costs or expenses
incurred by the Issuing Lender in connection with any payment under any Letter
31
<PAGE>
of Credit. Each payment by the Borrower pursuant to this Section 3.5 shall be
made to the Issuing Lender at its address specified herein in Dollars and in
immediately available funds.
3.6 Obligations Absolute. The Borrower's obligations under this
--------------------
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of Illinois, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
------------
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3 or any other terms of this Agreement or any other Loan
Document, the provisions of this Section 3 or such other terms shall apply.
32
<PAGE>
SECTION 4. GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT
4.1 Commitment Fees, etc. : (a) The Borrower agrees to pay to the
---------------------
Administrative Agent for the account of each Revolving Credit Lender and each
Reducing Revolving Credit Lender, a commitment fee for the period from and
including the Closing Date to the last day of the Revolving Credit Commitment
Period or the Reducing Revolving Credit Commitment Period, as the case may be,
computed at the Commitment Fee Rate on the average daily amount of the Available
Commitment (excluding Swingline Loans outstanding) of such Lender during the
period for which payment is made, payable quarterly in arrears on the last
Business Day of each March, June, September and December commencing December 31,
1999 and on the Revolving Credit Termination Date or the Reducing Revolving
Credit Termination Date, as the case may be, commencing on the first of such
dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent the fees
in the amounts and on the dates previously agreed to in writing by the Borrower
and the Administrative Agent.
4.2 Termination or Reduction of Commitments.
---------------------------------------
(a) Revolving Credit Commitment. The Borrower shall have the right,
---------------------------
upon not less than three Business Days' notice to the Administrative Agent, to
terminate the Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments; provided that no such termination or
--------
reduction of Revolving Credit Commitments shall be permitted if (i) after giving
effect thereto and to any prepayments of the Revolving Credit Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Credit Commitments or (ii) the Reducing Revolving Credit
Commitment has not been reduced to zero. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect.
(b) Reducing Revolving Credit Commitment. The Borrower shall have the
------------------------------------
right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate the Reducing Revolving Credit Commitments or, from time to
time, to reduce the amount of the Reducing Revolving Credit Commitments;
provided that no such termination or reduction of Reducing Revolving Credit
- --------
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Reducing Revolving Credit Loans made on the effective date
thereof, the Total Reducing Revolving Extensions of Credit would exceed the
Total Reducing Revolving Credit Commitments. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple thereof, and shall reduce
permanently the Revolving Credit Commitments then in effect.
4.3 Optional Prepayments. The Borrower may at any time and from
--------------------
time to time prepay the Loans, in whole or in part, without premium or penalty
except as specified in Section 4.13, upon irrevocable notice delivered to the
Administrative Agent (which notice must be received by the Administrative Agent
prior to Noon, Chicago time or else such notice will be
33
<PAGE>
deemed to have been received on the next Business Day) at least three Business
Days prior thereto in the case of Eurodollar Loans and at least one Business Day
prior thereto in the case of Base Rate Loans (or same day notice in the case of
a prepayment of Swingline Loans), which notice shall specify the date and amount
of prepayment and whether the prepayment is of Eurodollar Loans or Base Rate
Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the
--------
last day of the Interest Period applicable thereto, the Borrower shall also pay
any amounts owing pursuant to Section 4.13. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest (except in
the case of prepayments of Revolving Credit Loans or Reducing Revolving Credit
Loans which are Base Rate Loans in amounts that are less than the then
outstanding principal balances of such Revolving Credit Loans or Reducing
Revolving Credit Loans, as the case may be) to such date on the amount prepaid.
Partial prepayments of Reducing Revolving Credit Loans and Revolving Credit
Loans shall be in an aggregate principal amount equal to (a) in the case of Base
Rate Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof, (b) in
the case of Eurodollar Loans, $1,000,000 or a whole multiple thereof and (c) in
the case of Swingline Loans, $250,000 or a whole multiple of $250,000 in excess
thereof. Prepayments made pursuant to this Section 4.3 shall be made in
accordance with Section 4.10.
4.4 Mandatory Commitment Reductions. (a) Unless the Required Lenders
-------------------------------
shall otherwise agree, if after the Closing Date any Indebtedness shall be
Incurred by a Loan Party (excluding any Indebtedness permitted to be Incurred in
accordance with Section 8.2) an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied on the date of such issuance or Incurrence toward the
reduction of the Commitments as set forth in Section 4.4(d).
(b) Unless the Required Lenders shall otherwise agree, if on any date
a Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event, then an amount equal to 100% of such Net Cash Proceeds shall be applied
on such date toward the reduction of the Commitments as set forth in Section
4.4(d); provided, that, notwithstanding the foregoing, the aggregate Net Cash
--------
Proceeds of Asset Sales may be excluded from the foregoing requirement as long
as all such excluded Net Cash Proceeds are, within 180 days of receipt thereof
by a Loan Party, reinvested in substitute or replacement assets used or useful
in such Loan Party's Business.
(c) Subject to the provisions of Section 4.4(d), the Reducing
Revolving Credit Commitment, the Supplemental Facility Commitment, and the
Maximum Reducing Revolving Credit Commitment shall reduce in the amounts and at
the times described in the following table:
<TABLE>
<CAPTION>
=================================================================================================
Date Initial Initial Initial
Reducing Revolving Supplemental Facility Maximum Reducing
Credit Commitment Commitment Revolving Credit
Commitment
=================================================================================================
<S> <C> <C> <C>
Closing Date - 12/30/01 $25,000,000 $15,000,000 $40,000,000
- -------------------------------------------------------------------------------------------------
12/31/01 - 3/30/02 $23,750,000 $14,250,000 $38,000,000
- -------------------------------------------------------------------------------------------------
</TABLE>
34
<PAGE>
<TABLE>
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
3/31/02 - 6/29/02 $22,500,000 $13,500,000 $36,000,000
- -------------------------------------------------------------------------------------------------
6/30/02 - 9/29/02 $21,250,000 $12,750,000 $34,000,000
- -------------------------------------------------------------------------------------------------
9/30/02 - 12/30/02 $20,000,000 $12,000,000 $32,000,000
- -------------------------------------------------------------------------------------------------
12/31/02 - 3/30/03 $17,812,500 $10,687,500 $28,500,000
- -------------------------------------------------------------------------------------------------
3/31/03 - 6/29/03 $15,625,000 $ 9,375,000 $25,000,000
- -------------------------------------------------------------------------------------------------
6/30/03 - 9/29/03 $13,437,500 $ 8,062,500 $21,500,000
- ------------------------------------------------------------------------=========================
9/30/03 - 12/30/03 $11,250,000 $ 6,750,000 $18,000,000
- ------------------------------------------------------------------------=========================
12/31/03 - 3/30/04 $ 8,437,500 $ 5,062,500 $13,500,000
- ------------------------------------------------------------------------=========================
3/31/04 - 6/29/04 $ 5,625,000 $ 3,375,000 $ 9,000,000
- ------------------------------------------------------------------------=========================
6/30/04 - 9/29/04 $ 2,812,500 $ 1,687,500 $ 4,500,000
- ------------------------------------------------------------------------=========================
9/30/04 and thereafter $ 0 $ 0 $ 0
=================================================================================================
</TABLE>
(d) (i) Amounts to be applied in connection with Commitment
reductions pursuant to Sections 4.4(a) or 4.4(b) shall first be applied to the
prepayment of the Reducing Revolving Credit Loans then outstanding, second, by
the amount of funds then remaining, to prepayment of the Revolving Credit Loans
then outstanding and third, by the amount of funds then remaining and subject to
the provisions in clause (iii) below, to (or remain with) the Borrower for its
own account.
(ii) Concurrently with each prepayment described in clause (i)
above, each of the Reducing Revolving Credit Commitment amounts set forth
in Section 4.4(c) as of and after the date of such prepayment shall
simultaneously and permanently reduce pro rata by the amount of such
prepayment (but not below zero). If the aggregate Reducing Revolving
Credit Commitments on the date of prepayment and immediately prior to
prepayment is less than the amount of such prepayment, (i) the Reducing
Revolving Credit Commitment shall reduce to $0 on all dates and (ii) each
of the Supplemental Facility Commitment amounts set forth in Section 4.4(c)
as of and after the date of such prepayment shall simultaneously and
permanently reduce pro rata by the amount of such difference (but not below
zero). If the sum of the applicable Reducing Revolving Credit Commitment
and the Supplemental Facility Commitment on the date of prepayment and
immediately prior to prepayment is less than the amount of such prepayment,
(i) the Reducing Revolving Credit Commitment and the Supplemental Facility
Commitment shall reduce to $0 on all dates and (ii) the Revolving Credit
Commitment shall simultaneously and permanently reduce by an amount equal
to such difference.
(iii) Any reduction of the Reducing Revolving Credit Commitment
or the Revolving Credit Commitment shall be accompanied by prepayment of
the Reducing
35
<PAGE>
Revolving Credit Loans or Revolving Credit Loans, as the case may be, to
the extent, if any, that the Total Revolving Extensions of Credit exceed
the Total Revolving Credit Commitments as so reduced, provided that if the
--------
aggregate principal amount of Revolving Credit Loans then outstanding is
less than the amount of such excess (because L/C Obligations constitute a
portion thereof), the Borrower shall, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in
cash in an interest bearing cash collateral account established with the
Administrative Agent for the benefit of the Lenders on terms and conditions
satisfactory to the Administrative Agent. The application of any prepayment
pursuant to Section 4.4 shall be made first to Base Rate Loans and second
to Eurodollar Loans. Each prepayment of the Loans under this Section 4.4
shall be accompanied by accrued interest to the date of such prepayment on
the amount prepaid. Prepayments made pursuant to this Section 4.4 shall be
made in accordance with Section 4.10.
4.5 Conversion and Continuation Options. (a) The Borrower may
-----------------------------------
elect from time to time to convert Eurodollar Loans to Base Rate Loans by giving
the Administrative Agent at least one Business Day's prior irrevocable
telephonic notice (promptly confirmed in writing in a Conversion/Continuation
Notice) of such election (which notice must be received by the Administrative
Agent prior to Noon, Chicago time or else be deemed to be delivered on the next
Business Day), provided that any such conversion of Eurodollar Loans may only be
--------
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans (other than Swingline
Loans which may not be converted pursuant to this Section 4.5) to Eurodollar
Loans by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election specifying the length of the initial
Interest Period therefor (which notice must be received by the Administrative
Agent prior to Noon, Chicago time or else be deemed to be delivered on the next
Business Day), provided that no Base Rate Loan under a particular Facility may
--------
be converted into a Eurodollar Loan (i) when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Required Lenders in
respect of such Facility have determined in its or their sole discretion not to
permit such conversions or (ii) after the date that is one month prior to the
final scheduled termination or maturity date of such Facility. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable prior telephonic notice (promptly confirmed in writing in a
Conversion/Continuation Notice to the first day of the next Interest Period
(which notice must be received by the Administrative Agent prior to Noon,
Chicago time or else be deemed to be delivered on the next Business Day)) to the
Administrative Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in Section 1.1, of the length of the next Interest
Period to be applicable to such Loans, provided that no Eurodollar Loan under a
--------
particular Facility may be continued as such (i) when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuation, or (ii) after the date that is one
month prior to the final scheduled termination or maturity date of such
Facility, and provided, further, that, if the Borrower shall fail to give any
-------- -------
required notice as described
36
<PAGE>
above in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to Base Rate Loans
on the last day of such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
4.6 Minimum Amounts and Maximum Number of Eurodollar Tranches.
---------------------------------------------------------
Except as set forth in the remainder of this Section 4.6 and notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions,
continuations of Eurodollar Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that after giving effect thereto, the aggregate principal amount of
the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof. In no event shall
more than ten Eurodollar Tranches be outstanding at any one time.
4.7 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
--------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
- ----
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
----
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
which is equal to (x) in the case of principal of Loans, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 4.7 plus 2% or (y) in the case of Reimbursement Obligations, the rate
----
applicable to Base Rate Loans plus 2%, and (ii) if all or a portion of any
----
interest payable on any Loan or Reimbursement Obligation or any commitment fee
or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate applicable to Base Rate Loans
under the relevant Facility plus 2% (or, in the case of any such other amounts
----
that do not relate to a particular Facility, the Base Rate plus 2%, in each
case, with respect to clauses (i) and (ii) above, from the date of such non-
payment until such amount is paid in full, after as well as before judgment).
(d) Interest shall be payable by the Borrower in arrears on each
Interest Payment Date and on the Termination Date, provided that interest
--------
accruing pursuant to paragraph (c) of this Section 4.7 shall be payable from
time to time on demand.
4.8 Computation of Interest and Fees. (a) Interest, fees and
--------------------------------
commissions payable pursuant hereto shall be calculated on the basis of a 360-
day year for the actual days elapsed, except that, with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable
37
<PAGE>
notify the Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Prime Rate, the Federal Funds Effective Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error.
4.9 Inability to Determine Interest Rate. If prior to the first
------------------------------------
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders in respect of the relevant Facility that the Eurodollar
Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given, (i) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (ii) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (iii) any outstanding Eurodollar Loans under
the relevant facility shall be converted to Base Rate Loans on the last day of
the Interest Period applicable thereto. Until such notice has been withdrawn by
the Administrative Agent, no further Eurodollar Loans under the relevant
Facility shall be made or continued as such, nor shall the Borrower have the
right to convert Loans under the relevant Facility to Eurodollar Loans.
4.10 Pro Rata Treatment and Payments. (a) Each borrowing by the
-------------------------------
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made, with respect to the applicable Facility, pro rata according to the
respective Reducing Revolving Credit Percentages or Revolving Credit
Percentages, as the case may be, of the relevant Lenders.
(b) (i) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the
38
<PAGE>
respective outstanding principal amounts of the Revolving Credit Loans then held
by the Revolving Credit Lenders and (ii) each payment (including each
prepayment) by the Borrower on account of principal of and interest on the
Reducing Revolving Credit Loans shall be made pro rata according to the
respective outstanding principal amounts of the Reducing Revolving Credit Loans
then held by the Reducing Revolving Credit Lenders.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 1:00 P.M.,
Chicago time, on the due date thereof to the Administration Agent, for the
account of the Lenders, at the Administrative Agent's Payment Office, in Dollars
and in immediately available funds. The Administrative Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as received.
If any payment hereunder (other than payments on the Eurodollar Loans) becomes
due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent plus customary administrative fees. A certificate of
the Administrative Agent submitted to any Lender with respect to any amounts
owing under this Section 4.10(d) shall be conclusive in the absence of manifest
error. If such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of the relevant
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate Loans
under the relevant Facility, on demand, from the Borrower.
4.11 Requirements of Law. (a) If, after the date hereof, the
-------------------
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) issued after the date hereof from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) subject any Lender to any tax, duty or other charge of any
kind whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in
39
<PAGE>
respect thereof (except for Non-Excluded Taxes and changes in the rate of
tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by or commitments of, or any other acquisition
of funds by, any office of such Lender which is not otherwise included in
the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition (except
relating to Non-Excluded Taxes and changes in the rate of tax on the
overall net income of such Lender);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its written demand therefor which sets forth in reasonable detail the basis
therefor and the calculation thereof, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
Section 4.11, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
issued after the date hereof regarding capital adequacy (whether or not having
the force of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request therefor
which sets forth in reasonable detail the basis therefor and the calculation
thereof, the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender or such corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section 4.11 submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error.
Notwithstanding anything to the contrary contained herein, the Borrower shall
not be required to make any payment to any Lender pursuant to Section 4.11 with
respect to rights to payments of amounts which arise during, or relate to,
periods more than 180 days prior to the later to occur of (i) such Lender's
request for such payment and (ii) the date such Lender first knew (or should
have known) of the existence of circumstances entitling
40
<PAGE>
such Lender to such payment. The obligations of the Borrower pursuant to this
Section 4.11 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
4.12 Taxes. (a) All payments made by the Borrower under this
-----
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes imposed on the
Administrative Agent or any Lender as a result of a connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to
------------------
be withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such Lender
shall be increased to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that the Borrower shall not be required to
-------- -------
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this Section. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure (other than to the extent payable as a
result of the gross negligence or wilful misconduct of the Administrative Agent
or a Lender). The Borrower shall make any payments required pursuant to the
immediately preceding sentence within 15 days after receipt of written demand
therefor from the Administrative Agent or any Lender as the case may be. The
agreements in this Section 4.12 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
----------------
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224, or, in the case of a Non-U.S. Lender claiming exemption from
41
<PAGE>
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, an annual certificate representing that such Non-U.S. Lender is not a
"bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from U.S.
federal withholding tax on all payments by the Borrower under this Agreement and
the other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender
on or before the date it becomes a party to this Agreement (or, in the case of
any Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at
any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
4.13 Indemnity. The Borrower agrees to indemnify each Lender and
---------
to hold each Lender harmless from any loss or expense which such Lender sustains
or incurs as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of Eurodollar Loans on a day which
is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
- ----
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market. A certificate as to any amounts payable pursuant to this Section 4.13
submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
4.14 Change of Lending Office. Each Lender agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 4.11 or 4.12(a)
with respect to such Lender, it will use reasonable efforts to designate another
lending office for any Loans affected by such event with the object of avoiding
the consequences of such event; provided, that such designation is made on terms
--------
that, in the reasonable judgment of such Lender, cause such Lender such its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and
provided, further, that nothing in this
- -------- -------
42
<PAGE>
Section 4.14 shall affect or postpone any of the obligations of the Borrower or
the rights of any Lender pursuant to Section 4.11 or 4.12(a).
4.15 Replacement of Lenders under Certain Circumstances . The
--------------------------------------------------
Borrower shall be permitted to replace any Lender which (a) requests
reimbursement for amounts owing pursuant to Section 4.11 or 4.12 or (b) defaults
in its obligation to make Loans hereunder, with a replacement financial
institution; provided that (i) such replacement does not conflict with any
--------
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) with respect to clause (a)
hereof, prior to any such replacement, such Lender shall not have taken actions
to eliminate the continued need for payment of amounts owing pursuant to Section
4.11 or 4.12, (iv) the replacement financial institution shall purchase, at par,
all Loans, L/C Obligations, Swingline Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under Section 4.13 if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 11.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 4.11 or 4.12, as the case may be, and (ix) in the case of clause (b)
above, any such replacement shall not be deemed to be a waiver of any rights
which the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make, issue or participate in the Loans and the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance
-------------------
sheets of Borrower as at June 30, 1997, June 30, 1998, June 30, 1999, and the
related consolidated statements of income and of cash flows for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified report
from the Borrower's Accountant, present fairly, in all material respects, the
consolidated financial condition of the Borrower as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended in accordance with GAAP. All such financial
statements, including any related schedules or notes thereto, have been prepared
in accordance with GAAP applied consistently throughout the periods involved
(except as disclosed therein). As of the date hereof, except as set forth in
Schedule 5.1, Borrower has no material Guaranty Obligations, contingent
liabilities and liabilities for taxes, including, without limitation, any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives. During the period from June 30, 1999 to
and including the date hereof there has been no Disposition by The Borrower or
any of its Subsidiaries of any material part of its business or Property except
as enumerated in Schedule 5.1 hereto.
43
<PAGE>
5.2 No Change. (i) As of the Closing Date, there has been no
---------
development or event, since June 30, 1999, affecting Borrower and its Restricted
Subsidiaries which could cause a Material Adverse Effect and (ii) as of each
Borrowing Date, there has been no development or event affecting Borrower and
its Restricted Subsidiaries since the most recent prior Borrowing Date which is
reasonably likely to cause a Material Adverse Effect.
5.3 Corporate Existence; Compliance with Law. The Borrower and
----------------------------------------
each of its Restricted Subsidiaries (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except where the failure to be so qualified or in
good standing would not have a Material Adverse Effect and (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith would not, in the aggregate, have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each
-------------------------------------------------------
Loan Party has the requisite corporate power and authority to make, deliver and
perform the Loan Documents to which it is a party and, in the case of the
Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents except (i) consents, authorizations, filings and notices described in
Schedule 5.4, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect and (ii) the filings referred
to in Section 5.20. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party thereto. This Agreement constitutes, and each other
Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party thereto, enforceable against each such Loan Party
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, so-called fraudulent conveyance or
similar laws affecting creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of any Loan Party and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
No Requirement of Law or
44
<PAGE>
Contractual Obligation applicable to the Borrower or any of its Subsidiaries
would have a Material Adverse Effect.
5.6 No Material Litigation. Except as set forth in Schedule 5.6,
----------------------
no material litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the knowledge of Borrower,
threatened by or against the Borrower or any Loan Party or against any of their
respective properties or revenues.
5.7 No Default. None of the Borrower or any Loan Party is in
----------
default under or with respect to any of its Contractual Obligations in any
respect which would have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
5.8 Ownership of Property; Liens. The Borrower and each Loan Party
----------------------------
has title in fee simple to, or a valid leasehold interest in, all its real
property, and good title to, or a valid leasehold interest in, all its other
material property, and none of such property is subject to any Lien except as
permitted by Section 8.3.
5.9 Intellectual Property. (a) The Borrower and each Loan Party
---------------------
owns, or is licensed to use, all Intellectual Property that is material to the
continued conduct of their Business as currently conducted; (b) no material
claim has been asserted and is pending by any Person challenging or questioning
the use of any Intellectual Property or the validity or effectiveness, of any
Intellectual Property which is reasonably likely to have a Material Adverse
Effect, nor do the Executive Officers and Directors of the Borrower know of any
valid basis for any such claim; (c) the use of Intellectual Property by the
Borrower and each Loan Party does not infringe on the rights of any Person,
which infringement would have a Material Adverse Effect.
5.10 Taxes. The Borrower and each Loan Party has filed or caused
-----
to be filed all Federal, state and other material tax returns which are required
to be filed and has paid all taxes shown to be due and payable on said returns
or on any assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves to the extent required by GAAP have been provided on
the books of the Borrower or the applicable Loan Party, as the case may be); no
tax Lien not permitted by Section 8.3 has been filed, and, to the knowledge of
the Borrower, no claim is being asserted, with respect to any such tax, fee or
other charge.
5.11 Federal Regulations. No part of the proceeds of any Loans
-------------------
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the
Federal Reserve Board as now and from time to time hereafter in effect or for
any purpose which violates the provisions of the Regulations of the Federal
Reserve Board.
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<PAGE>
5.12 Labor Matters. Except as set forth in Schedule 5.12:
-------------
(a) There are no strikes or other labor disputes against the
Borrower or any Loan Party pending or threatened that (individually or in the
aggregate) is reasonably likely to have a Material Adverse Effect.
(b) Hours worked by and payment made to employees of the Borrower
and each Loan Party have not been in violation of the Fair Labor Standards Act
or any other applicable Requirements of Law dealing with such matters that
(individually or in the aggregate) is reasonably likely to have a Material
Adverse Effect.
(c) All payments due from the Borrower or any Loan Party on account
of employee health and welfare insurance that (individually or in the aggregate)
could have a Material Adverse Effect if not paid, have been paid or accrued as a
liability on the books of the Borrower or, as applicable, the relevant
Subsidiary.
5.13 ERISA. (a) Neither a Reportable Event nor an "accumulated
-----
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date of this
Agreement for which the Borrower or any Commonly Controlled Entity has or had an
obligation to provide notice to the PBGC, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code; (b) no
termination of a Single Employer Plan has occurred, and no Lien not permitted by
Section 8.3 in favor of the PBGC or a Plan has arisen, during such five-year
period; (c) the present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by a material amount; (d) none of the Borrower or any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan which has resulted or could reasonably be expected to result
in a Material Adverse Effect, and neither the Borrower nor any Commonly
Controlled Entity reasonably expects that it would become subject to any
liability under ERISA which could have a Material Adverse Effect if the
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made; and (e) no such
Multiemployer Plan is in Reorganization or Insolvent.
5.14 Investment Company Act; Other Regulations. No Loan Party is
-----------------------------------------
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Federal Reserve Board and general so-called fraudulent
conveyance and similar principles) which limits its ability to incur
indebtedness.
5.15 Subsidiaries. As of the date hereof, the Persons listed on
------------
Schedule 5.15 constitute all the Subsidiaries of the Borrower and are identified
as Domestic Subsidiaries, Foreign Subsidiaries, Restricted Subsidiaries or
Unrestricted Subsidiaries, as appropriate.
46
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5.16 Subsidiary Restrictions. On the date hereof, no Loan Party is
-----------------------
subject to any Subsidiary Restrictions, except Subsidiary Restrictions contained
in the Loan Documents.
5.17 Use of Proceeds. (a) The proceeds of the Revolving Credit
---------------
Loans and the Swingline Loans shall be used for the ongoing working capital
needs of the Borrower and the Loan Parties (including the refinancing of
existing indebtedness) in the ordinary course of business, for capital
expenditures and for other general corporate purposes.
(b) The proceeds of the Reducing Revolving Credit Loans shall be
used to (i) finance the purchase of shares of the capital stock of Borrower in
an amount not to exceed (x) $10,000,000 less (y) the aggregate dollar amount of
the capital stock of Borrower repurchased by Borrower since June 30, 1999, (ii)
finance Permitted Acquisitions and (iii) make Permitted Investments.
(c) None of the Borrower or any of its Subsidiaries is generally
engaged in the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock and no portion of
the proceeds of the Loans will be used to purchase or sell, or finance the
purchase or sale of, Margin Stock.
5.18 Environmental Matters. Except for those environmental matters
---------------------
as are not reasonably likely to have a Material Adverse Effect or as disclosed
in Schedule 5.18:
(a) The facilities and properties owned, leased or operated by the
Borrower and each Loan Party(the "Properties") do not contain, and have not
----------
previously contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances which constitute or constituted a
violation of, or could give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the business operated by the Borrower and any Loan Party
(the "Business") which could interfere with the continued operation of the
--------
Properties or impair the fair saleable value thereof. Neither the Borrower
nor any Loan Party has assumed any liability of any other Person under
Environmental Laws.
(c) None of the Borrower or any of its Subsidiaries has received or
is aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or
the Business, nor does the Borrower have knowledge or reason to believe
that any such notice will be received or is being threatened.
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(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location which could give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could give rise to liability under, any applicable
Environmental Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary of the Borrower
is or will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administration or
judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Borrower or any Subsidiary of the Borrower in
connection with the Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws.
5.19 Accuracy of Information, etc. The projections and pro forma
----------------------------- --- -----
financial information contained in the materials delivered to the Administrative
Agent in connection herewith are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact
known to the Executive Officers and Directors of Borrower that is reasonably
likely to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents, in the Confidential Information Memorandum
(as of the date hereof) or in any other documents, certificates and statements
furnished to the Administrative Agent and the Lenders for use in connection with
the transactions contemplated hereby and by the other Loan Documents.
5.20 Security Documents. (a) The Guaranty and Collateral Agreement
------------------
is effective to create in favor of the Administrative Agent, for itself and for
the benefit of the Lenders, a legal, valid and enforceable security interest in
the Collateral described therein and proceeds thereof subject, as to
enforcement, to applicable bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and other similar, limiting statutes. In the case of
the Pledged Stock described in the Guaranty and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guaranty and
Collateral Agreement, when financing statements in appropriate form are filed in
the office specified on Schedule 5.20(a), the delivery of such Pledged Stock and
the filing of such financing statements shall create a perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof to the extent that delivery
48
<PAGE>
of such Pledged Stock and filing a financing statement is effective to perfect
such security interests, as security for the Obligations (as defined in the
Guaranty and Collateral Agreement) to the Administrative Agent and to the
Lenders, in each case prior and superior in right to any other Person, except
Liens permitted pursuant to Section 8.3 or as previously disclosed to and
approved by Administrative Agent.
(b) Each of the Mortgages, if any, is effective to create in favor
of the Administrative Agent, for itself and for the benefit of the Lenders, a
legal, valid and enforceable Lien on the Mortgaged Properties described therein
and proceeds thereof, and when the Mortgages are filed in the applicable
offices, each such Mortgage shall constitute a perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the Mortgaged
Properties and the proceeds thereof, as security for the Obligations (as defined
in the relevant Mortgage), in each case prior and superior in right to any other
Person, except Liens permitted pursuant to Section 8.3 or as previously
disclosed to and approved by Administrative Agent.
5.21 Solvency. The Borrower, individually is, and the Borrower and
--------
its Restricted Subsidiaries collectively are, and after giving effect to the
incurrence of all indebtedness and obligations in connection herewith and taking
into account all of the terms and provisions of the other Loan Documents will
be, Solvent.
5.22 Year 2000 Issues. Borrower has developed and budgeted for a
----------------
comprehensive program to address the Year 2000 Problem. Borrower has
implemented that program substantially in accordance with its timetable and
budget and will substantially avoid the Year 2000 Problem as to all computers,
as well as embedded microchips in non-computing devices, that are material to
the business, properties or operations of the Borrower and each Loan Party.
Borrower has developed feasible contingency plans adequately to ensure
uninterrupted and unimpaired business operation in the event of failure of its
own or a third party's systems or equipment due to the Year 2000 Problem,
including those of vendors, customers, and suppliers, as well as a general
failure of or interruption in its communications and delivery infrastructure.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extension of Credit. The agreement of
-----------------------------------------
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received, in
--------------
form and substance satisfactory to Administrative Agent, (i) this
Agreement, executed and delivered by a duly authorized officer of the
Borrower, (ii) the Guaranty and Collateral Agreement, executed and
delivered by a duly authorized officer of the Borrower and each Subsidiary
Guarantor, (iii) the Mortgages, if any, executed and delivered by a duly
authorized Person , (iv) for the account of each relevant Lender, at the
option of such Lender, Notes conforming to the requirements hereof and
executed and delivered by a duly authorized officer of the
49
<PAGE>
Borrower, (v) the Subordinated Note Documents in effect as of the Closing
Date, (vi) various collateral assignments of patents, trademarks and
copyrights and (vii) such other Security Documents as may be reasonably
requested by Administrative Agent.
(b) Financial Statements. The Lenders shall have received (i)
--------------------
audited consolidated financial statements of the Borrower for the 1997,
1998 and 1999 fiscal years and (ii) unaudited consolidated balance sheet of
the Borrower and its Restricted Subsidiaries for the fiscal quarters ended
September 30, 1999 on a pro forma basis after giving effect to the
transactions contemplated by this Agreement.
(c) Approvals. All governmental and third party approvals (including
---------
landlords' and other consents) necessary or advisable in connection with
the continuing operations of the Loan Parties and the transactions
contemplated hereby shall have been obtained and be in full force and
effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any Governmental Authority which would
restrain, prevent or otherwise impose adverse conditions on the financing
thereof or any other financing contemplated hereby.
(d) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent lien search in each of the jurisdictions where assets
of the Loan Parties are located and which the Administrative Agent has
requested, and such search shall reveal no Liens on any of the assets of
the Loan Parties except for liens permitted by Section 8.3 or liens
discharged or otherwise provided for the Administrative Agent's
satisfaction on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.
(e) Intentionally Omitted.
---------------------
(f) Closing Certificate. The Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, a certificate of each Loan
Party, dated the Closing Date, substantially in the form of Exhibit F, with
appropriate insertions and attachments.
(g) Legal Opinions. The Administrative Agent shall have received the
--------------
executed legal opinions of:
(i) Carol M. Vanairsdale, Esq., counsel to the Loan Parties,
substantially in the form of Exhibit E-1; and
(ii) Latham & Watkins, special counsel to the Loan Parties,
substantially in the form of Exhibit E-2.
(h) Pledged Stock; Stock Powers. The Administrative Agent shall have
---------------------------
received the certificates, if any, representing the shares of Pledged Stock
pledged pursuant to the Guaranty and Collateral Agreement and the Pledge
Agreements, together with an undated
50
<PAGE>
stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof.
(i) Filings, Registrations and Recordings. Each document (including,
-------------------------------------
without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by
the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person except to the extent otherwise agreed
or provided herein, shall be in proper form for filing, registration or
recordation.
(j) Mortgages, Title Insurance, etc.
-------------------------------
(i) The Administrative Agent shall have received any other
applicable Mortgages, if any.
(ii) With respect to each Mortgage or Deed of Trust, if any, the
Administrative Agent shall have received, and the Title Insurance
Company issuing the policy referred to in Section 6.1(j)(iii) shall
have received, a map or a plat of an as-built survey of the
property[ies] relating to each Mortgage or Deed of Trust in form and
substance reasonably satisfactory to the Administrative Agent.
(iii) The Administrative Agent shall have received in respect of
each Mortgage or Deed of Trust, a mortgagee's title insurance policy
(or policies) or marked up unconditional binder for such insurance in
form and substance reasonably satisfactory to Administrative Agent.
(iv) For any property located in a designated flood zone, the
Administrative Agent shall have received (A) a policy of flood
insurance and (B) confirmation that the mortgagor under such Mortgage
has received the notice required pursuant to Section 208(e)(3) of
Regulation H of the Federal Reserve Board, in each case in form and
substance and amount satisfactory to Administrative Agent.
(v) The Administrative Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in Section 6.1(j)(iii) and a
copy of all other material documents affecting the Mortgaged
Properties.
(k) Fees. The Administrative Agent shall have received the fees
----
required to be paid to it and the Lenders on or prior to the Closing Date
and any invoices for expenses payable hereunder presented to the Borrower
shall have been paid by the Borrower or provided for to the satisfaction of
the Administrative Agent.
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<PAGE>
(l) Solvency Opinion. The Administrative Agent shall have received a
----------------
solvency opinion relating to the solvency of the Borrower, acceptable in
form and substance to the Administrative Agent from the chief financial
officer of the Borrower.
(m) Insurance. The Administrative Agent shall have received
---------
insurance certificates, and all requested documentation relating to
Borrower's insurance programs, acceptable in form and substance to the
Administrative Agent and, in addition, consistent in all respects with the
requirements of the Guaranty and Collateral Agreement and the Mortgages, if
any.
(n) No Change. Since June 30, 1999, there has been no material
---------
adverse change (i) to the business, assets, liabilities (actual or
contingent), operations, conditions (financial or otherwise) or prospects
of the Borrower and the Loan Parties taken as a whole or (ii) in the facts
and information regarding the Borrower and each Loan Party provided to
Administrative Agent as of the date hereof.
(o) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents,
shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received such
other documents and legal opinions in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall reasonably
request consistent with this Agreement.
(p) Year 2000 Issues. The Administrative Agent shall have received
----------------
evidence in form and substance satisfactory to Administrative Agent that
Borrower has made an assessment of the microchip and computer-based systems
and the software used in its business and the business of its Subsidiaries
and based upon such assessment believes that it will be, and each of its
Subsidiaries will be, "Year 2000 Compliant" by January 1, 2000. For
purposes of this paragraph, "Year 2000 Compliant" means that all software,
embedded microchips and other processing capabilities utilized by, and
material to the business operations or financial condition of, Borrower and
each Loan Party are able to interpret, store, transmit, receive and
manipulate data on and involving all calendar dates correctly and without
causing any abnormal ending scenarios in relation to dates in and after the
Year 2000. From time to time, at the request of Administrative Agent,
Borrower shall provide to Administrative Agent and Lenders such updated
information as is reasonably requested regarding the status of its efforts
and each Loan Party's efforts to become Year 2000 Compliant.
6.2 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Lender to make any extension of credit (including the issuance, extension
or renewal of any Letter of Credit) requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject
to the satisfaction of the following conditions precedent:
52
<PAGE>
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties (other than those which speak as of a particular date) made by
any Loan Party in or pursuant to the Loan Documents shall be true and
correct on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) No Injunction. No injunction or other restraining order shall
-------------
have been issued and no hearing to cause an injunction or other restraining
order to be issued shall be pending or noticed with respect to any action,
suit or proceeding seeking to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of, the
transactions contemplated by this Agreement or the making of Loans
hereunder.
Each borrowing of Loans and each issuance of a Letter of Credit shall constitute
a representation and warranty by the Borrower as of the date of such extension
of credit that the conditions contained in this Section 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder, the Borrower shall
and shall cause each Loan Party to:
7.1 Financial Statements. Furnish, or cause to be furnished, to
--------------------
the Administrative Agent and each Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, commencing with the first fiscal
year ending after the Closing Date, the audited consolidated balance sheet
of the Borrower and its Subsidiaries as at the end of such year and the
related audited consolidated, statements of income and of cash flows
(including a calculation of Excess Cash Flow and Excess Cash Flow Add Back
and a separate calculation on an unaudited and itemized basis by a
Responsible Officer reflecting on each line item of such financial
statements the effect, if any, of including the operations of Unrestricted
Subsidiaries in such consolidated financial statements) for such year,
setting forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized standing
and addressing any possible errors generated by financial reporting and
related systems due to the Year 2000 Issue.
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, commencing with
53
<PAGE>
the fiscal quarter ending September 30, 1999, the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
quarter and the related unaudited consolidated, statements of income and of
cash flows (including a calculation of Excess Cash Flow and Excess Cash
Flow Add Back) for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form the
figures for the previous year, in each case certified by a Responsible
Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments); and
All such financial statements shall be complete and correct in all material
respects and shall be prepared in accordance with GAAP applied consistently
throughout the periods reflected therein
54
<PAGE>
and with prior periods (except as approved by such accountants or officer, as
the case may be, and disclosed therein).
7.2 Certificates; Other Information. Furnish, or cause to be
-------------------------------
furnished, to the Administrative Agent:
(a) concurrently with the delivery of the annual financial statements
referred to in Section 7.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor such firm did not discover the
existence of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 7.1(a) and 7.1(b), (i) a certificate of a Responsible
Officer stating that such Responsible Officer has obtained no knowledge
that any Default or Event of Default has occurred and is continuing,
except, in each case, as specified in such certificate and (ii) in the case
of quarterly or annual financial statements, (x) a Compliance Certificate
in the form of Exhibit B including without limitation information in
reasonable detail for determining compliance by the Borrower and each Loan
Party with the financial covenants set forth in this Agreement referred to
therein as of the last day of the fiscal quarter or fiscal year of the
Borrower, as the case may be and (y) to the extent not previously disclosed
to the Administrative Agent, a listing of any county or state within the
United States where any Loan Party keeps inventory or equipment and of any
Intellectual Property of material value acquired by any Loan Party since
the date of the most recent list delivered pursuant to this clause (y) (or,
in the case of the first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event (i) no earlier than 60
days and no later than 30 days prior to the end of each calendar year, a
draft of the consolidated budget and (ii) no later than 30 days following
the end of each calendar year, the final consolidated budget, in each case,
for the following calendar year prepared on a quarter-by-quarter basis,
and, as soon as available, significant revisions, if any, of such budget
and projections with respect to such calendar year (collectively, the
"Projections"), in form and substance satisfactory to Administrative Agent;
------------
(d) within 45 days after the end of each of the first three fiscal
quarters of the Borrower and 90 days after the end of the fiscal year of
the Borrower, a narrative discussion and analysis of the financial
condition and results of operations of the Borrower and its Subsidiaries
for such fiscal quarter and for the period from the beginning of the then
current fiscal year to the end of such fiscal quarter;
(e) no later than 5 Business Days prior to the effectiveness thereof,
copies of substantially final drafts of any proposed amendment, supplement,
waiver or other modification with respect to any Subordinated Note
Documents;
55
<PAGE>
(f) within five days after the same are sent, copies of all financial
statements and reports which the Borrower sends to the holders of any class
of its debt securities or equity securities, and within five days after the
same are filed, copies of all financial statements and reports which the
Borrower may make to, or file with, the Securities and Exchange Commission
or any successor or analogous Governmental Authority; and
(g) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
----------------------
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature including without limitation, income,
real property or other taxes, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
to the extent required by GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be, (i) to the extent
and for so long as the failure to make such payment, in the case of income, real
estate or other taxes does not result in the attempted or actual foreclosure of
a lien against any of the Property of Borrower or its Restricted Subsidiaries or
(ii) the failure to make such payment would constitute an Event of Default
pursuant to Section 9(e).
7.4 Conduct of Business and Maintenance of Existence, etc. (a)(i)
------------------------------------------------------
Continue to engage in business of the same general type as now conducted by one
or more Loan Parties or the real estate services business, (ii) preserve, renew
and keep its existence in full force and effect (provided, however, that this
covenant shall not be construed to prohibit any merger, consolidation or other
transaction elsewhere permitted herein) and (iii) take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business, except, in each case, as otherwise expressly
permitted by Section 8.4 or for such of the foregoing is not reasonably likely
to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith is not likely to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. (a) Maintain its property
----------------------------------
in good working order and condition, ordinary wear and tear excepted and (b)
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business.
7.6 Inspection of Property; Books and Records; Discussions. (a)
------------------------------------------------------
Keep books of records and accounts in which full entries in conformity with GAAP
and all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities and (b) permit representatives of the
Administrative Agent at Borrower's cost (or any Lender at such Lender's cost) to
visit and inspect any of its properties and examine and make abstracts from any
of the Borrower's books and records at any reasonable time and as often as may
reasonably be desired, conduct field
56
<PAGE>
audits of the assets and operations of the Borrower and its Subsidiaries, and
discuss the business, operations, properties and financial and other condition
of the Borrower and its Subsidiaries with officers and employees of the Borrower
and its Subsidiaries and with its independent certified public accountants.
7.7 Notices. Promptly after any Executive Officer or Director of
-------
Borrower knows or should have known of the occurrence of any of the events
described below, give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any Loan Party or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any Loan Party and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, is
reasonably likely to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $500,000 or more and not
covered by insurance, or as to which insurance coverage has been denied, or
in which injunctive or similar relief is sought the effect of which if
granted is reasonably likely to have a Material Adverse Effect;
(d) the following events, as soon as possible and in any event within
30 days after any such officer or director of the Borrower knows or should
have known of the existence of any of the following: (i) the occurrence of
any Reportable Event with respect to any Plan, a failure to make any
required contribution to a Plan within the time prescribed by applicable
law, the creation of any Lien on the assets of the Borrower or any Commonly
Controlled Entity in favor of the PBGC, or a Plan or any withdrawal from,
or the termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan;
(e) any development or event which has had or would have a Material
Adverse Effect; and
(f) each Disposition (i) outside the ordinary course of business or
(ii) of any asset(s) having a combined book value at the time of such
disposition of $1,000,000 or more.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Loan Party proposes
to take with respect thereto.
7.8 Environmental Laws. (a) Comply in all material respects with,
------------------
and ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable
57
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Environmental Laws, and obtain and comply in all material respects with and
maintain, and ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, except in each case where the failure to do so is not reasonably likely to
have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Law, except in each case where the failure to do so is not reasonably likely to
have a Material Adverse Effect.
7.9 Additional Collateral, etc. (a) With respect to any Property
--------------------------
acquired after the Closing Date by the Borrower or any Loan Party for over
$500,000 (other than (x) any Property described in paragraph (b), (c) or (d)
below and (y) any Property subject to a Lien expressly permitted by Section
8.3(g), (h) or (k)) as to which the Administrative Agent, for the benefit of the
Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guaranty and Collateral Agreement or
such other documents as are necessary in order to grant to the Administrative
Agent, for the benefit of the Lenders, a security interest in such Property and
(ii) take all actions necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected first priority security
interest in such Property, including without limitation, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guaranty and Collateral Agreement or by law or as may be requested by the
Administrative Agent.
(b) With respect to any fee or leasehold interest in any real estate
having a value (together with improvements thereof) of at least $500,000
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than any such real estate subject to a Lien expressly permitted by
Section 8.3(g) or 8.3(k)), promptly (i) execute and deliver a first priority
(except to the extent that Liens permitted pursuant to Section 8.3 hereof affect
such real estate) mortgage or deed of trust, as the case may be, in favor of the
Administrative Agent, for the benefit of the Lenders, covering such real estate,
in form and substance reasonably satisfactory to the Administrative Agent, (ii)
if requested by the Administrative Agent, provide the Lenders with title and
extended coverage insurance, together with surveys, covering such real estate,
any consents or estoppels reasonably deemed necessary or advisable by the
Administrative Agent, any legal opinions relating to the matters described
above, all of which insurance, surveys, consents, estoppels and legal opinions
shall be in form and substance reasonably satisfactory to the Administrative
Agent.
(c) With respect to any new Restricted Subsidiary created or acquired
after the Closing Date by a Loan Party, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guaranty and Collateral Agreement as
the Administrative Agent deems necessary in order to grant to the Administrative
Agent, for the benefit of the Lenders, a perfected first priority (except to the
extent that Inchoate Tax Liens affect such Capital Stock) security interest in
the Capital Stock of such new Subsidiary, which is owned by a Loan Party, (ii)
deliver to the
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Administrative Agent the certificates, if any, representing such Capital Stock
together with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the applicable Loan Party, (iii) cause such new Restricted
Subsidiary (A) to become a party to the Guaranty and Collateral Agreement and
(B) to take such actions necessary or advisable to grant to the Administrative
Agent for the benefit of the Lenders a perfected first priority security
interest in the Collateral described in the Guaranty and Collateral Agreement
with respect to such new Restricted Subsidiary, including, without limitation,
the filing of Uniform Commercial Code financing statements in such jurisdictions
as may be required by the Guaranty and Collateral Agreement or by law and (iv)
deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(d) With respect to any Foreign Subsidiary or any new Foreign
Subsidiary created or acquired after the Closing Date by a Loan Party that, if
it was instead a Domestic Subsidiary would constitute a Restricted Subsidiary,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the applicable Pledge Agreement as the Administrative Agent deems necessary in
order to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority (except to the extent that Inchoate Tax Liens affect
such Capital Stock) security interest in 66 2/3% of the Capital Stock of such
new Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii)
deliver to the Administrative Agent the certificates, if any, representing such
Capital Stock, together with undated stock powers, in blank, executed and
delivered by a duly authorized officer of the Borrower or such Subsidiary, as
the case may be, and (iii) deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
7.10 Year 2000 Issues. The Borrower shall take all actions
----------------
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all of its Subsidiaries) are Year 2000 Compliant,
except for such noncompliance as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. At the request of the
Administrative Agent, the Borrower will provide the Administrative Agent with
assurances and substantiations (including, but not limited to, the results of
internal or external audit reports, if any, prepared in the ordinary course of
business) reasonably acceptable to the Administrative Agent to demonstrate that
the Borrower and each Loan Party are Year 2000 Compliant, except for such
noncompliance as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
7.11 Interest Rate Protection. At any time when the Consolidated
------------------------
Leverage Ratio equals or exceeds 1.75:1.00, Borrower shall, at the request of
Administrative Agent, enter into one or more interest rate protection agreements
(each, an "Interest Rate Protection Agreement"). Each Interest Rate Protection
Agreement shall be with a Lender hereunder and shall contain such terms and
conditions as are, and otherwise be in form and substance, reasonably acceptable
to Administrative Agent and shall entitle such Lender to participate in liens
granted pursuant to the Loan Documents and receive the benefits of repayments
hereunder on a pari passu basis.
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7.12 Insurance. Each Loan Party shall (i) keep all real and
---------
personal property insured under casualty insurance policies in amounts and with
insurers as shall be reasonably acceptable to the Administrative Agent and (ii)
execute and deliver such loss payee endorsements as Administrative Agent may
reasonably request. In addition, each Loan Party shall maintain such liability
insurance, including Workmen's Compensation and errors and omissions insurance,
in such amounts and of such types as are customary for businesses similar to
that of such Loan Party and as are otherwise reasonably acceptable to
Administrative Agent. Policies of insurance required hereunder shall inure to
the benefit of the Lenders through such endorsements and assignments as
Administrative Agent shall reasonably deem necessary or appropriate.
SECTION 8. NEGATIVE COVENANTS
The Borrower agrees that, so long as the Commitments remain in effect,
any Letter of Credit remains outstanding or any Loan or other amount is owing to
any Lender or the Administrative Agent hereunder, the Borrower shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly:
8.1 Financial Condition Covenants .
-----------------------------
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
---------------------------
Ratio as at the last day of any fiscal quarter of the Borrower ending during any
fiscal year set forth below to exceed 2.25:1.00.
(b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
----------------------------------------
Fixed Charge Coverage Ratio at any time to be less than 1.00:1.00.
(c) EBITDA. Permit EBITDA as at the last day of any fiscal quarter of
------
the Borrower ending during any fiscal year for the four consecutive fiscal
quarters ending on such date to be less than the Required EBITDA Level on such
date.
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to
--------------------------
exist (in each case, to "Incur") any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of any Loan Party to any other Loan Party;
(c) Indebtedness secured by Liens permitted by Section 8.3(g), 8.3(k)
and Capital Lease Obligations;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 8.2(d) and any refinancings, refundings, renewals or extensions thereof
(without any increase in the principal amount thereof);
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(e) (i) Guaranties not prohibited by Section 8.7 hereof and (ii)
Guaranties made in the ordinary course of business by the Borrower or any Loan
Party of obligations of any other Loan Party;
(f) other Indebtedness not otherwise prohibited by the terms of the
proviso set forth at the end of this Section 8.2;
(g) Capitalized Leases;
(h) any Indebtedness extending the maturity of, or refunding or
refinancing, in whole or in part, any Indebtedness otherwise permitted
hereunder; provided that the terms (including, without limitation, principal
--------
amount, interest rate, limitations on liens, if any, guaranties, if any,
collateral, if any, and subordination terms, if any, but excluding interest
rates and fees to the extent that such interest rates and fees are deemed by
Administrative Agent, in its reasonable discretion, to be "market" rates and
fees at the time of such extension, refunding or refinancing) taken as a whole
of any such extending, refunding or refinancing Indebtedness, and of any
agreement entered into and of any instrument issued in connection therewith, are
no less favorable to the Loan Parties, as determined by the Administrative Agent
in its reasonable discretion, than the terms governing the Indebtedness so
extended, refunded or refinanced (provided that no unsecured indebtedness shall
--------
be refunded or refinanced by secured indebtedness);
(i) Indebtedness of any Person that becomes a Subsidiary of the
Borrower and Indebtedness Incurred by any Loan Party in connection with any
Permitted Acquisition after the date hereof in accordance with the terms hereof
that is existing at the time such Person becomes a Subsidiary of the Borrower
(other than indebtedness incurred solely in contemplation of such Person
becoming a Subsidiary of the Borrower);
(j) Endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and
(k) Indebtedness relating to the Subordinated Notes;
provided however and notwithstanding the provisions of subsections 8.2(a)
- -------- -------
through 8.2(k) above, (i) the aggregate Indebtedness Incurred pursuant to or
described in subsections 8.2(c), (f), (g), (h) and (i) that is secured by Liens
shall at no time exceed $2,000,000, (ii) the aggregate Indebtedness Incurred
pursuant to or described in subsections 8.2(c), (f), (g), (h) and (i) shall at
no time exceed $4,000,000, (iii) the aggregate Indebtedness Incurred pursuant to
or described in subsection 8.2(k) shall at no time exceed $10,000,000, and (iv)
the aggregate Indebtedness Incurred pursuant to and described in clauses (ii)
and (iii) above of this proviso shall at no time exceed $12,000,000.
8.3 Limitation on Liens. Create, incur, assume or suffer to exist
-------------------
any Lien upon any of the Borrower's or its Subsidiaries' Property or revenues,
whether now owned or hereafter acquired, except for:
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(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
--------
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, to the extent required by GAAP;
(b) Liens arising in the ordinary course of business of the Borrower
or its Subsidiaries which are not overdue for a period of more than 30 days
or which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance, social security and other legislation affecting the
Borrower or its Subsidiaries;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business of the Borrower or
its Subsidiaries which, in the aggregate, do not materially detract from
the use of the property subject thereto or materially interfere with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 8.3(f)
securing Indebtedness permitted by Section 8.2(d), provided that no such
--------
Lien is spread to cover any additional property after the Closing Date and
that the principal amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to Section 8.2(c) to finance the acquisition
of equipment or fixed or capital assets, provided that (i) such Liens shall
--------
be created substantially simultaneously with the acquisition of such fixed
or capital assets, (ii) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness (and related general
intangibles and identifiable proceeds specifically related to or arising
out of such Property) and (iii) the principal amount of Indebtedness
secured thereby is not increased;
(h) any interest or title of a lessor under any lease entered into by
the Borrower or any other Subsidiary in the ordinary course of its business
and covering only the assets so leased (and related general intangibles and
identifiable proceeds specifically related to such assets);
(i) Liens created pursuant to the Security Documents;
(j) the Liens existing on the date hereof and described on Schedule
8.3(j) hereto;
(k) Liens securing Indebtedness on property acquired by a Loan Party
or on Property of a Person existing at the time such Person is merged into
or consolidated with the
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Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the
Borrower; provided that such Liens (other than replacement Liens permitted
--------
elsewhere herein) were not created in contemplation of such acquisition,
merger, consolidation, or investment and do not extend to any assets other
than those of the Person merged into or consolidated with the Borrower or
such Subsidiary or acquired by the Borrower or such Subsidiary;
(l) Liens in respect of goods consigned to the Borrower or any of its
Subsidiaries in the ordinary course of business; provided that such Liens
--------
are limited to the goods so consigned;
(m) subject to the limitations described in the proviso at the end of
Section 8.2, Liens securing Indebtedness permitted pursuant to subsections
8.2(c), (f), (g), (h) and (i); and
(n) the replacement, extension, or renewal of any Lien permitted
hereunder.
8.4 Limitation on Fundamental Changes . Enter into any merger,
---------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its assets, or make any
material change in the character of its business except:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing or
--------
surviving corporation) or with or into any Loan Party (provided that such
--------
Loan Party shall be the continuing or surviving corporation);
(b) any Subsidiary of the Borrower may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to a Loan Party; and
(c) Permitted Acquisitions.
8.5 Limitation on Sale of Assets . Dispose of any of its assets
----------------------------
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person, except in the
case of Borrower and any of its Subsidiaries:
(a) the Disposition of assets in the ordinary course of business;
(b) Dispositions permitted by Section 8.4(b);
(c) the sale or issuance of the Capital Stock of any Subsidiary to
the Borrower or any Restricted Subsidiary; and
(d) subject to Section 4.4 hereof, the Disposition of other assets
having a Net Cash Proceeds not to exceed $1,000,000 in the aggregate in any
fiscal year of the Borrower;
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provided that (i) at least 75% of the consideration from any such
--------
Disposition is received in cash or Cash Equivalents, (ii) the Borrower or
the relevant Subsidiary receives consideration at the time of such
Disposition at least equal to the fair market value of the assets subject
thereto in the case of any Disposition, and (iii) all of the Net Cash
Proceeds of such Disposition are reinvested in substitute, or other assets
used or useful in Borrower's Business or applied in accordance with Section
4.4 hereof.
8.6 Limitation on Dividends; Restricted Payments. Declare or pay
--------------------------------------------
any dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
any Loan Party or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of any Loan Party (collectively, "Restricted Payments"), except that
-------------------
(i) any Loan Party may make Restricted Payments to another Loan Party, (ii) any
purchase, redemption, defeasance, retirement or other acquisition of any shares
of any class of common stock of the Borrower effected solely through the
issuance of common stock of the Borrower having the same economic and voting
terms as such class of common stock shall be permitted and (iii) subject to the
limitations set forth in Section 8.8(Y), Borrower may repurchase the shares of
the capital stock of Borrower for an amount not to exceed (x) $10,000,000 less
(y) (i) the aggregate dollar amount of the common stock of Borrower repurchased
by Borrower since June 30, 1999 plus (ii) the amount of Investments made by
----
Borrower or any Loan Party pursuant to proviso (Y) of Section 8.8.
8.7 Guaranties. At any time, directly or indirectly, become or be
----------
liable in respect of any Guaranty Obligations, or assume, guaranty, 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 those relating to (i) Guaranties of the Indebtedness of
Loan Parties permitted by Section 8.2 hereof, (ii) Guaranties set forth on
Schedule 8.7, (iii) Guaranties in connection with indemnity programs for
employees and or agents provided that such Guaranties do not exceed in the
aggregate at any time $5,000,000, (iv) 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 coverage programs, provided that, after giving
effect thereto, the aggregate amount of such guaranties plus the aggregate
amount of loans and advances made or permitted pursuant to subsections (f), (g)
and (j) of Section 8.8 shall not exceed $5,000,000.
8.8 Limitation on Investments, Loans and Advances. Make any
---------------------------------------------
advance, loan, extension of credit (by way of guaranty or otherwise) or capital
contribution to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting all or a material part of a business
unit of, or make any other investment in, any Person (collectively,
"Investments"), except in the case of Borrower and any Loan Party and subject to
-----------
the limitations set forth in the subsections 8.8(X) and (Y) below:
(a) extensions of trade credit in the ordinary course of business;
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(b) Investments in Cash Equivalents;
(c) Guaranty Obligations expressly permitted by Section 8.2;
(d) promissory notes and other similar non-cash consideration
received by the Borrower and any Loan Party in connection with the
Dispositions permitted by Section 8.5;
(e) Investments by the Borrower or any Loan Party in the Borrower or
any Person that, prior to such investment, is a Loan Party;
(f) loans and advances to employees and/or agents to meet expenses
incurred by such employees and/or agents in the ordinary course of the
Business;
(g) loans and advances in the ordinary course of business to vendors
or suppliers of the Borrower and any Loan Party in the ordinary course of
Business or relating to relocation expenses;
(h) Investments existing on the date hereof and described on Schedule
8.8(h) hereto;
(i) Investments consisting of Permitted Acquisitions;
(j) 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; and
(k) Restricted Investments permitted by Section 8.9 hereof; provided,
--------
however, that the aggregate amount of all Investments made pursuant to this
-------
Section 8.8(k) shall not exceed at the time such Investments are made the
sum of: (X) the lesser of (a) $10,000,000 and (b) $5,000,000 plus the
Excess Cash Flow Add Back plus (Y) the lesser of (a) $5,000,000 and (b)
----
$10,000,000 less the amount of any stock repurchases made pursuant to
Section 8.6(iii);
provided that the sum of (i) the aggregate amount of Investments made pursuant
- --------
to subsections 8.8(f), (g) and (j) above plus (ii) the aggregate amount of
----
Guaranties made pursuant to Section 8.7, shall not exceed $5,000,000.
8.9 Subsidiaries, Partnerships, Joint Ventures and Restricted
---------------------------------------------------------
Investments. Own or create directly or indirectly any Subsidiaries other than
- -----------
(i) any Subsidiary which has joined the applicable Security Documents as a
Guarantor on the Closing Date and those set forth on Schedule 5.15 and (ii) any
Subsidiary formed after the Closing Date which joins the applicable Security
Documents, provided that the Required Lenders shall have consented to such
formation and joinder and that such Subsidiary and any Loan Party, as
applicable, shall grant a valid first priority (subject
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only to Liens permitted by Section 8.3 hereof) security interest in favor of the
Administrative Agent in the assets held by, and stock of or other ownership
interests in, such Subsidiary. Neither Borrower nor any Loan Party shall become
or agree to (1) become a general or limited partner in any general or limited
partnership, except that the Borrower or a Loan Party 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
Borrower and Loan Parties may become a member or manager of, or hold a limited
liability company interest 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 (except those permitted pursuant to Section 8.8) in any Person.
Notwithstanding the foregoing, Borrower and Loan Parties may (1) be a general or
limited partner in any general or limited partnership, (2) be a member or
manager of, or hold a limited liability company interest in, a limited liability
company, (3) be a joint venturer or hold a joint venture interest in any joint
venture or (4) make and maintain 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 Loan Party making the investment shall, to the extent
permitted by applicable investment contracts and other documents relating
to such investment, grant and cause to be perfected a first priority
security interest or other first lien position (except for Liens otherwise
permitted pursuant to Section 8.3 hereof) of the Loan Party's interest in
the property constituting the Restricted Investment;
(ii) 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; and
(iii) no Default or Event of Default exists at the time such
Restricted Investment is made or would occur as a result of such Restricted
Investment.
8.10 Limitation on Transactions with Affiliates. Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than a Loan
Party) unless such transaction is (a) otherwise permitted under this Agreement,
(b) in the ordinary course of business of such Loan Party and (c) upon terms no
less favorable to the Loan Party, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate.
8.11 Limitation on Payments and Modifications of Debt Instruments,
-------------------------------------------------------------
etc. (a) (i) Make or offer to make any payment, prepayment, repurchase or
- ---
redemption of or otherwise defease or segregate funds with respect to the
principal of the Subordinated Notes except as expressly permitted by the
applicable Subordination Documents or (ii) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the
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terms of the Subordinated Note Documents (other than any such amendment,
modification, waiver or other change which (A) would extend the maturity or
reduce the amount of any payment of principal of the relevant Subordinated Notes
or which would reduce the rate or extend the date for payment of interest
thereon and (B) does not involve the payment of a consent or other similar fee).
8.12 Limitation on Sales and Leasebacks. Enter into any
----------------------------------
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary.
8.13 Limitation on Changes in Fiscal Periods. Without ninety (90)
---------------------------------------
days' prior written notice to Administrative Agent, permit the fiscal year of
the Borrower to end on a day other than June 30 or change the Borrower's method
of determining fiscal quarters.
8.14 Limitation on Negative Pledge Clauses. Enter into with any
-------------------------------------
Person, or suffer to exist, any agreement, other than (a) this Agreement and the
other Loan Documents and (b) any agreements governing any purchase money Liens
or Capital Lease Obligations otherwise permitted hereby (in which case any
prohibition or limitation shall only be effective against the assets financed
thereby) which prohibits or limits the ability of the Borrower or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of
its Property or revenues, whether now owned or hereafter acquired.
8.15 Limitation on Restrictions on Subsidiary Distributions. Enter
------------------------------------------------------
into or suffer to exist or become effective any consensual encumbrance or
restriction (collectively, "Subsidiary Restrictions") on the ability of any Loan
-----------------------
Party to (a) pay dividends or make any other distributions in respect of any
Capital Stock of such Loan Party held by, or pay any Indebtedness owed to, the
Borrower or any other Loan Party, (b) make loans or advances to the Borrower or
any other Loan Party or (c) transfer any of its assets to the Borrower or any
Loan Party (other than, in the case of this clause (c), any such encumbrance or
restriction created by any agreements governing any purchase money Liens or
Capital Lease Obligations otherwise permitted hereby, in which case such
encumbrance or restriction shall only be effective against the assets financed
thereby), except for (i) Subsidiary Restrictions existing under the Loan
Documents and (ii) Subsidiary Restrictions with respect to a Subsidiary imposed
pursuant to an agreement which has been entered into in connection with the sale
or disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary.
8.16 Limitation on Lines of Business. Enter into any business,
-------------------------------
either directly or through any Subsidiary, except for those businesses in which
one or more Loan Parties are engaged in or, in the judgment of the
Administrative Agent, which are reasonably related to, the real estate services
business.
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SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation or any other amount payable hereunder or under any other Loan
Document within three days after any such interest or other amount becomes
due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) Any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 7.4(a) (with
respect to the Borrower only), Sections 7.7, 7.12 or Section 8 of this
Agreement or Sections 5.1, 5.4, 5.5, and 5.8 of the Guaranty and Collateral
Agreement; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days after the
earlier of (i) the date upon which written notice thereof is given to the
Borrower by the Administrative Agent or the Required Lenders or (ii) the
date upon which any officer or director of Borrower becomes aware of such
default; or
(e) Any Loan Party shall (i) default in making any payment of any
principal of any Indebtedness the principal amount of which Indebtedness
exceeds $1,000,000 (including, without limitation, any Guaranty Obligation,
but excluding the Loans) on the scheduled due date with respect thereto; or
(ii) default in making any payment of any interest on any such Indebtedness
beyond the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to
any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is
to cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or (in the case of any such Indebtedness constituting a
Guaranty Obligation) to become payable; provided, that a default, event or
--------
condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default under this Agreement
unless, at such time, one or more defaults, events or conditions of the
type described in clause (i), (ii) or (iii) of this
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paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $1,000,000; or
(f) (i) Any Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Loan Party shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Loan Party
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
any Loan Party any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof, or
(iv) any Loan Party shall take any action in furtherance of, or indicating
its consent in writing to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii) or (iii) above; or (v) any Loan Party shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(g) (i) Any person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan other than a transaction that is exempt under a statutory or
administrative exemption, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise
on the assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
a Multi-Employer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could, in the sole judgment of the Required Lenders,
reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or to the extent not fully
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covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $1,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or
(i) Any of the Security Documents shall cease, for any reason, to be
in full force and effect, or any Loan Party or any Affiliate of any Loan
Party shall so assert, or any Lien created by any of the Security Documents
shall cease to be enforceable and of the same effect and priority purported
to be created thereby; or
(j) Section 2 of the Guaranty and Collateral Agreement shall cease,
for any reason, to be in full force and effect or any Loan Party or any
Affiliate of any Loan Party shall so assert in writing; or
(k) (A) (i) Warburg shall cease to have the power to vote or direct
the voting of securities having at least 35% of the ordinary voting power
for the election of directors of the Borrower (determined on a fully
diluted basis) and (ii) any "person" or "group" (as such terms are used in
---
Sections 13(d) and 14(d) of the Exchange Act), (excluding members of
Warburg) shall become or obtain rights (whether by means or warrants,
options or otherwise) to become, the "beneficial owner" (as defined in
Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly,
of 35% or more of the outstanding common stock of the Borrower or (B) (i)
Warburg shall have the power to vote or direct the voting of securities
having at least 35% or more of the ordinary voting power for the election
of directors of the Borrower (determined on a fully diluted basis) and (ii)
---
any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), (excluding members of Warburg) shall become or obtain
rights (whether by means or warrants, options or otherwise) to become, the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of a percentage ownership of the
outstanding common stock of the Borrower that exceeds the percentage held
by Warburg; or
(l) Any of the Subordinated Notes shall cease, for any reason, to be
validly subordinated to the obligations of Borrower or any of its
Subsidiaries under the Loan Documents, as provided in the relevant
Subordinated Note Documents;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate;
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and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
an interest-bearing cash collateral account opened by the Administrative Agent
an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. The Borrower hereby grants to the Administrative Agent, for
the benefit of the Issuing Lender and the L/C Participants, a security interest
in such cash collateral to secure all obligations of the Borrower under this
Agreement and the other Loan Documents. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under the other
Loan Documents. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto). Except as otherwise expressly provided above
in this Section 9, the Borrower waives presentment, demand, protest or other
notice of any kind.
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SECTION 10. THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization; "Administrative Agent". Each
-----------------------------------------------------
Lender hereby irrevocably (subject to Section 10.9) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and each such Lender
irrevocably authorizes the Administrative Agent, in such capacity to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or the other Loan Documents,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities to, except those expressly set forth herein, or any fiduciary
relationship with, any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or into any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement with reference to the
Administrative Agent and the Documentation 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 in the case of the Administrative Agent to create
or reflect only an administrative relationship between independent contracting
parties.
The Issuing Lender shall act on behalf of the Lenders with respect to
Letters of Credit issued under this Agreement and the documents associated
therewith. It is understood and agreed that the Issuing Lender (a) shall have
all of the benefit and immunities (i) provided to the Administrative Agent in
this Section 10 with respect to acts taken or omissions suffered by the Issuing
Lender in connection with Letters of Credit issued under this Agreement and the
documents associated therewith as fully as if the term "Administrative Agent",
as used in this Section 10, included such Issuing Lender with respect to such
acts or omissions and (ii) as additionally provided in this Agreement and (b)
shall, with respect to the Revolving Credit Lenders, have all of the benefits of
the provisions of Section 10.7 as fully as if the term "Administrative Agent",
as used in Section 10.7, included the Issuing Lender.
10.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 Exculpatory Provisions. None of the Agent-Related Persons
----------------------
shall be (i) liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by any Loan Party, or any
officer thereof, contained in this Agreement or in any other Loan Document, or
in any certificate, report, statement
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or other document referred to or provided for in, or received by any Agent-
Related Person under or in connection with, this Agreement or any other Loan
Document, or for the value of or title to any Collateral, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party to perform its
obligations hereunder or thereunder. Except to the extent otherwise expressly
provided in Sections 6.1 and 6.2 hereof, no Agent-Related Person shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party. The Administrative Agent shall maintain a record of
the principal amount of the Loans and L/C Obligations from time to time
outstanding and the respective amounts thereof owing to each Lender. Any records
maintained by any Agent-Related Person setting forth the names and addresses of
the Lenders and the Commitments of, and the principal amount of the Loans owing
to, each Lender from time to time shall be conclusive, in the absence of
manifest error.
10.4 Reliance by Administrative Agent. (a) The Administrative
--------------------------------
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been properly filed with the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, if so specified by this Agreement,
all Lenders) as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required Lenders (or, if
so specified by this Agreement, all Lenders) and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 6.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
10.5 Notice of Default. The Administrative Agent shall not be
-----------------
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice from
a Lender or the Borrower referring to this Agreement, describing such Default or
Event of
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Default and stating that such notice is a "notice of default". The
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as may be reasonably requested by the Required Lenders (or, if
so specified by this Agreement, all Lenders); provided, however, that unless and
-------- -------
until the Administrative Agent has received any such request, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable or in the best interest of the Lenders.
10.6 Independent Credit Decision. Each Lender acknowledges that none
---------------------------
of the Agent-Related Persons has made any representation or warranty to it, and
that no act by the Administrative Agent hereinafter taken, including any review
of the affairs of Lender or any affiliate of any Loan Party, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender. Each Lender represents to the Administrative Agent that it has reviewed
and approved all Loan Documents and has verified to its satisfaction that all
conditions precedent deemed necessary by such Lender to the disbursement of the
Loans that such Lender is making have been satisfied. In addition, Lender
represents that it has, independently and without reliance upon any Agent-
Related Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates, the value of and
title to any Collateral, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any Agent-
Related Person or any other Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to conduct such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any Loan Party or any
affiliate of any Loan Party, which may come into the possession of any of the
Agent-Related Persons.
10.7 Indemnification of Administrative Agent. Whether or not the
---------------------------------------
transactions contemplated hereby are consummated, the Lenders hereby agree to
indemnify each of the Agent-Related Persons (each a "Section 10.7 indemnitee")
(to the extent not reimbursed by or on behalf of the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to its
Revolving Credit Percentages and Reducing Revolving Credit Percentages in effect
on the date on which indemnification is sought under this Section 10.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without
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limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against such Section 10.7 indemnitee in any way relating
to or arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
such Section 10.7 indemnitee under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment to the Agent-
- -------- -------
Related Persons of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
which are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the relevant Section 10.7 indemnitee's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Administrative Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The undertakings and agreements in this Section 10.7
shall survive the payment of all Loans and the resignation or replacement of the
Administrative Agent.
10.8 Administrative Agent in its Individual Capacity. BofA and its
-----------------------------------------------
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Borrower and its Subsidiaries and Affiliates as though BofA were not the
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, BofA and its
Affiliates may receive information regarding the Borrower and its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrower or any Affiliate) and acknowledge that neither the
Administrative Agent nor its Affiliates shall be under any obligation to provide
such information to the Lenders. With respect to Loans made or renewed by it and
with respect to any Letter of Credit issued or participated in by it, BofA shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same rights and powers as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include BofA in its individual
capacity.
10.9 Successor Administrative Agent. The Administrative Agent may,
------------------------------
and at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders and the Borrower. If the Administrative
Agent resigns under this Agreement, the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders which successor agent shall
be approved by the Borrower. If no successor agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor agent from among the Lenders. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Administrative Agent and the
term "Administrative Agent" shall mean such successor agent and the retiring
Administrative Agent's appointment, powers
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and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section 10 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided above.
10.10 Withholding Tax. (a) If any Lender is a "foreign
---------------
corporation, partnership or trust" within the meaning of the Code and such
Lender claims exemption from U.S. withholding tax under Sections 1441 or 1442 of
the Code, such Lender agrees with and in favor of the Administrative Agent, to
deliver to the Administrative Agent, in addition to such forms as required by
Section 4.12(b), such other form or forms as may be required under the Code or
other laws of the United States as a condition to exemption from United States
withholding tax.
Such Lender agrees to promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from withholding tax under a
United States tax treaty by providing IRS Form 1001 and such Lender sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of the Borrower to such Lender, such Lender agrees to notify the
Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Borrower to such Lender. To the extent of
such percentage amount, the Administrative Agent will treat such Lender's IRS
Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form 4224 with the Administrative Agent sells, assigns, grants
a participation in, or otherwise transfers all or part of the Obligations of the
Borrower to such Lender, such Lender agrees to undertake sole responsibility for
complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(d) If any Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Lender an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other documentation
required by subsection (a) of this Section are not delivered to the
Administrative Agent, then the Administrative Agent may withhold from any
interest payment to such Lender not providing such forms or other documentation
an amount equivalent to the applicable withholding tax imposed by Sections 1441
and 1442 of the Code, without reduction.
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(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or was not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or indirectly, by the
Administrative Agent as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Administrative Agent.
10.11 Collateral Matters. (a) The Administrative Agent is authorized
------------------
on behalf of all the Lenders, without the necessity of any notice to or further
consent from the Lenders, from time to time to take any action with respect to
any Collateral or the Security Documents which may be necessary to perfect and
maintain perfected the security interest in and Liens upon the Collateral
granted pursuant to the Security Documents.
(b) The Lenders irrevocably authorize the Administrative Agent, at
its option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) upon termination of the Commitments
and payment in full of all Loans and all other Obligations known to the
Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property (including, without limitation, Capital
Stock) sold or to be sold or disposed of as part of or in connection with any
Disposition permitted hereunder; (iii) constituting property in which the
Borrower or any Subsidiary owned no interest at the time the Lien was granted or
at any time thereafter; (iv) constituting property leased to the Borrower or any
Subsidiary under a lease which has expired or been terminated in a transaction
permitted under this Agreement or is about to expire and which has not been, and
is not intended by the Borrower or such Subsidiary to be, renewed or extended;
(v) consisting of an instrument evidencing Indebtedness or other debt
instrument, if the indebtedness evidenced thereby has been paid in full; or (vi)
if approved, authorized or ratified in writing by the Required Lenders or all
the Lenders, as the case may be, as provided in subsection 11.1. Upon request by
the Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
Collateral pursuant to this subsection 10.11(b), provided that the absence of
any such confirmation for whatever reason shall not affect the Administrative
Agent's rights under this Section 10.11; provided that, to the extent that Liens
--------
are permitted pursuant to Section 8.3 hereof, Lenders agree that Administrative
Agent may (i) subordinate its security interest to that of another lender to
whom Borrower is permitted to grant such senior security interest or (ii) if
such other lender shall not agree to such subordination, release Collateral
subject to such permitted Lien or acknowledge such other lender's first priority
security interest in such Collateral.
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SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any other Loan
----------------------
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 11.1. The
Required Lenders and each Loan Party to the relevant Loan Document may, or, with
the written consent of the Required Lenders, the Administrative Agent and each
Loan Party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that except as otherwise explicitly set forth
-------- -------
herein, no such waiver and no such amendment, supplement or modification shall
(i) forgive the principal amount or extend the final scheduled date of maturity
of any Loan, extend the scheduled date of any commitment reduction in respect of
any Reducing Revolving Credit Loan, reduce the stated rate of any interest, fee
or letter of credit commission payable hereunder or extend the scheduled date of
any payment thereof, or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender directly
affected thereby; (ii) amend, modify or waive any provisions of this Section
11.1 or reduce any percentage specified in the definition of Required Lenders,
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or
substantially all of the Collateral or release the Borrower or any of the
Subsidiary Guarantors from their obligations under the Guaranty and Collateral
Agreement, in each case without the written consent of all Lenders; (iii)
increase the Commitments above the Revolving Credit Commitment, in the case of
Revolving Credit Loans and above the Maximum Reducing Revolving Credit
Commitment, in the case of Reducing Revolving Credit Loans, without the written
consent of all Lenders; (iv) amend, modify or waive any condition precedent to
any extension of credit under the Facilities set forth in Section 6.2
(including, without limitation, in connection with any waiver of an exiting
Default or Event of Default) without the written consent of the Required
Lenders; (v) reduce the percentage specified in the definition of Required
Lenders without the written consent of all Lenders under each affected Facility;
(vi) amend, modify or waive any provisions of Section 10 without the written
consent of the Administrative Agent; or (vii) amend, modify or waive any
provisions of Section 3 without the written consent of the Issuing Lender.
Notwithstanding the foregoing, without the consent of the Swingline Lender, the
Swingline Lender's rights and obligations with respect to Swingline Loans shall
not be altered. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
78
<PAGE>
11.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent in the case of the Lenders, or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower: Grubb & Ellis
2155 Sanders Road
Suite 400
Northbrook, Illinois 60062
Attn: General Counsel
Telephone: (847) 753-9010
Telecopy: (847) 753-9067
The Administrative Agent: For notices of borrowing and payments:
Bank of America, N.A.
100 North Tyron Street
7/th/ Floor
Charlotte, North Carolina 28255-0001
Attn: Kathy Mumpower
Telephone: (704) 386-6837
Telecopy: (704) 409-0021
For other administrative matters:
Bank of America, N.A.
100 North Tryon Street
NC 1-007-13-06
Charlotte, NC 28255
Attn: W. Thomas Barnett
Telephone: (704) 387-1009
Telecopy: (704) 386-9607
provided that any notice, request or demand to or upon the Administrative Agent
- --------
or the Lenders shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or
79
<PAGE>
statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
-----------------------------
or reimburse the Administrative Agent for its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to or release of, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation,
Attorney Costs of Administrative Agent, (b) to pay or reimburse each Lender and
the Administrative Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights, including those incurred
pursuant to a "workout" under this Agreement, the other Loan Documents and any
such other documents, including, without limitation, Attorney Costs of each
Lender and of counsel to the Administrative Agent (c) to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and all
recording, filing and release fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other similar taxes, if
-------
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation, administration or release
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
the Administrative Agent and their respective officers, directors, trustees,
professional advisors, employees, affiliates, agents and controlling persons
(each, an "indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance, administration and release of
this Agreement, the other Loan Documents and any such other documents,
including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided, that the Borrower
--------
shall not have any obligation hereunder to any indemnitee with respect to
indemnified liabilities to the extent such indemnified liabilities are found by
a final and nonappealable decision to have resulted from the gross negligence or
willful misconduct of such indemnitee. The agreements in this Section 11.5
shall survive repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participants and Assignments. (a) This
----------------------------------------------------
agreement shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Issuing Lender, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that the Borrower may
not assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender may in accordance with applicable law, at any time
sell to one or more banks or other financial institutions (each, a
"Participant") participating interests in any Loan owing to such Lender, any
-----------
Commitment of such Lender or any other interest of such Lender
80
<PAGE>
hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. In no event shall any Participant under any such
participation have any right to approve any amendment or waiver of any provision
of any Loan Document, or any consent to any departure by any Loan Party
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or stated rate of interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans, in
each case to the extent subject to such participation. The Borrower agrees that
if amounts outstanding under this Agreement and the Loans are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of any Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owning under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
--------
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 11.7(a) as
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 4.11, 4.12 and 4.13
with respect to its participation in the Commitments and the Loans outstanding
from time to time as if it were a Lender; provided that, in the case of Section
--------
4.12, such Participant shall have complied with the requirements of said Section
and provided further, that no Participant shall be entitled to receive any
-------- -------
greater amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable
--------
law, at any time and from time to time assign to any of such Assignor's
affiliates, any Lender or any affiliate thereof or, with the consent of the
Borrower and the Administrative Agent (and, in the case of assignments of
Revolving Credit Commitments, the Issuing Lender), which consent in each case
will not be unreasonably withheld or delayed, to an additional bank or other
financial institution (an "Assignee") all or any part of its rights and
--------
obligations under this Agreement pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit H, executed by such Assignee and such
Assignor (and, in the case of an Assignee that is not then a Lender or an
affiliate thereof, by the Borrower, the Administrative Agent and, if applicable,
the Issuing Lender) and delivered to the Administrative Agent for its
acceptance; provided that no such assignment to an Assignee (other than any
--------
Lender or any affiliate thereof) shall be in an aggregate principal amount of
less than $5,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement), unless otherwise agreed by the
Administrative Agent. Any such assignment need not be ratable as among each
Facility. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and
81
<PAGE>
Acceptance, have the rights and obligations of a Lender hereunder with a
Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of an Assignor's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this Section 11.6, the consent of the Borrower
shall not be required, and, unless requested by the Assignee and/or the
Assignor, new Notes shall not be required to be executed and delivered by the
Borrower, for any assignment which occurs at any time when an Event of Default
shall have occurred and be continuing with respect to the Borrower.
(d) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in the case of an Assignee that is not then a
Lender or an affiliate thereof, by the Borrower and the Administrative Agent)
together with payment to the Administrative Agent of a registration and
processing fee of $3,500 (which registration and processing fee shall be waived
in the case of an Assignment and Acceptance by one Lender to another Lender or
by one Lender to such Lender's affiliates), the Administrative Agent shall
promptly accept such Assignment and Acceptance.
(e) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing Indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement, and any such recordation shall constitute prima facie
----- -----
evidence of the accuracy of the information so recorded, provided that the
--------
failure to make any such recordation or any error in such recordation shall not
affect the Borrower's obligations hereunder or under any existing Note.
(f) The Loans made by each Lender shall, at such Lender's option, be
evidenced by a Note issued by the Borrower, substantially in the form of Exhibit
I-1 or I-2, as applicable, payable to the order of such Lender. Each Lender is
hereby authorized to record, on the schedule annexed to and constituting a part
of any relevant Note, information regarding the relevant Loans made by such
Lender, and any such recordation shall constitute prima facie evidence of the
----- -----
accuracy of the information so recorded, provided that the failure to make any
--------
such recordation or any error in such recordation shall not affect the
Borrower's obligations hereunder or under any existing Note. On or prior to the
effective date of an Assignment and Acceptance, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent, in exchange for
the relevant Notes, new Notes to the order of the Assignee, if the Assignee so
elects, and, if applicable, the Assignor if the Assignor so elects. Such new
Notes shall be dated the Closing Date and shall otherwise be in the form of the
Notes replaced thereby or, in the event no such original Notes were issued, in
the form that such Notes would have taken had such Notes been issued.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 11.6 concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests,
82
<PAGE>
including, without limitation, any pledge or assignment by a Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law.
11.7 Adjustments; Set-off. (a) Except to the extent that this
--------------------
Agreement provides for payments to be allocated to the Lenders under a
particular Facility, if any Lender (a "Benefitted Lender") shall at any time
-----------------
receive any payment of all or part of its Loans or the Reimbursement Obligations
owing to it, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 9(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans or the Reimbursement
Obligations owing to such other Lender, or interest thereon, such Benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such Lender's Loan and/or of the Reimbursement
Obligations owing to each such other Lender, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
- -------- -------
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
--------
the validity of such setoff and application.
11.8 Counterparts. This Agreement may be executed by one or more
------------
of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating 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.
83
<PAGE>
11.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
11.11 Governing Law. This agreement and the rights and obligations
-------------
of the parties under this agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the state of Illinois, without
regard to principles of conflicts of laws.
11.12 Submission To Jurisdiction: Waivers. Each party hereto
-----------------------------------
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of Illinois located in the City of Chicago, the courts of the United
States of America for the Northern District of Illinois, and appellate
courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 11.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section 11.12 any special, exemplary or punitive damages.
11.13 Acknowledgments. The Borrower hereby acknowledges that:
---------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and
84
<PAGE>
Lenders, on one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
11.14 WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION. THE
------------------------------------------------
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
THE BORROWER HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AND OF ANY ILLINOIS
STATE COURT SITTING IN CHICAGO FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH
PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 11.2. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
11.15 Confidentiality. Each of the Administrative Agent and each
---------------
Lender agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; provided, that nothing herein shall prevent the Administrative
--------
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate of any Lender, (b) to
any Participant or Assignee (each, a "Transferee") or prospective Transferee
----------
which agrees to comply with the provisions of this Section 11.15, (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of the Administrative Agent or such Lender or their respective
affiliates, (d) upon the request or demand of any Governmental Authority having
jurisdiction over the Administrative Agent or such Lender, (e) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (f) if requested or required to do
so in connection with any litigation or similar proceeding, (g) which has been
publicly disclosed other than in breach of this Section 11.15, (h) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
85
<PAGE>
11.16 Rights and Liabilities of Documentation Agent. Documentation
---------------------------------------------
Agent has no special right, power, obligation, liability, responsibility or duty
under this Agreement as a result of acting in the capacity of Documentation
Agent other than those applicable to it in its capacity as a Lender hereunder.
Without limiting the foregoing, Documentation Agent shall not have or be deemed
to have a fiduciary relationship with any Lender. Each Lender hereby makes the
same acknowledgments with respect to Documentation Agent as it makes with
respect to the Administrative Agent and Agent-Related Persons in Section 10.6.
IN WITNESS WHEREOF, the parties hereunto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
GRUBB & ELLIS COMPANY
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive Vice
President
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Devon Russell
------------------
Name: Devon Russell
Title: Vice President
BANK OF AMERICA, N.A., individually, on its own
behalf as a Lender
By: /s/ Devon Russell
------------------
Name: Devon Russell
Title: Vice President
Signature Page to Credit Agreement among GRUBB & ELLIS COMPANY, a Delaware
corporation, various lenders as enumerated therein, and BANK OF AMERICA, N.A.,
as Administrative Agent.
______________________________________________________________
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Julie Anne Eck
---------------------
Name: Julie Anne Eck
Title: Assistant Vice President
Signature Page to Credit Agreement among GRUBB & ELLIS COMPANY, a Delaware
corporation, various lenders as enumerated therein, and BANK OF AMERICA, N.A.,
as Administrative Agent.
______________________________________________________________
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
By: /s/ Ross C. Weigand
--------------------
Name: Ross C. Weigand
Title: First Vice President
86
<PAGE>
EXHIBIT 4.2
REVOLVING CREDIT LOAN NOTE
--------------------------
$3,714,285.71 Chicago, Illinois
October 15, 1999
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of BANK OF AMERICA, N.A. (the "Lender"), at the office of
------
Administrative Agent located at 100 North Tyron Street, 7th Floor, Charlotte,
North Carolina 28255-0001 in lawful money of the United States of America and in
immediately available funds, on the Revolving Credit Termination Date, the
principal amount of THREE MILLION SEVEN HUNDRED FOURTEEN THOUSAND TWO HUNDRED
EIGHTY-FIVE AND 71/100 DOLLARS ($3,714,285.71), or, if less, the aggregate
unpaid principal amount of all Revolving Credit Loans of the Lender made to the
Borrower pursuant to Section 2.1 of the Credit Agreement (as defined below).
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 4.7 of the Credit Agreement. Unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have
the meaning given to them in the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, the Type and amount of each
Revolving Credit Loan of the Lender and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof as the same Type in
accordance with the Credit Agreement, each conversion of all or a portion
thereof to another Type in accordance with the Credit Agreement and, in the case
of Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such endorsement shall constitute prima facie evidence of the accuracy of
the information endorsed. The failure to make an such endorsement (or any error
therein) shall not affect the obligations of the Borrower in respect of any
Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of October 15, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the several other banks and financial institutions or entities from time
to time parties thereto and Bank of America, N.A., as Administrative Agent,
evidencing a Revolving Credit Loan, (b) is subject to, the provisions of the
Credit Agreement and (c) is subject to optional prepayment in whole or in part
as provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the properties and assets in
<PAGE>
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all provided in
the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
[signature page follows]
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Note to
be duly executed and delivered as of the date first above written.
GRUBB & ELLIS COMPANY, a Delaware corporation
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive Vice
President
3
<PAGE>
EXHIBIT 4.3
REVOLVING CREDIT LOAN NOTE
--------------------------
$3,428,571.43 Chicago, Illinois
October 15, 1999
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO (the "Lender"),
------
at the office of Administrative Agent located at 100 North Tyron Street, 7th
Floor, Charlotte, North Carolina 28255-0001 in lawful money of the United States
of America and in immediately available funds, on the Revolving Credit
Termination Date, the principal amount of THREE MILLION FOUR HUNDRED TWENTY-
EIGHT THOUSAND FIVE HUNDRED SEVENTY-ONE AND 43/100 DOLLARS ($3,428,571.43), or,
if less, the aggregate unpaid principal amount of all Revolving Credit Loans of
the Lender made to the Borrower pursuant to Section 2.1 of the Credit Agreement
(as defined below). The Borrower further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 4.7 of the Credit
Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meaning given to them in the Credit
Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, the Type and amount of each
Revolving Credit Loan of the Lender and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof as the same Type in
accordance with the Credit Agreement, each conversion of all or a portion
thereof to another Type in accordance with the Credit Agreement and, in the case
of Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such endorsement shall constitute prima facie evidence of the accuracy of
the information endorsed. The failure to make an such endorsement (or any error
therein) shall not affect the obligations of the Borrower in respect of any
Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of October 15, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the several other banks and financial institutions or entities from time
to time parties thereto and Bank of America, N.A., as Administrative Agent,
evidencing a Revolving Credit Loan, (b) is subject to, the provisions of the
Credit Agreement and (c) is subject to optional prepayment in whole or in part
as provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees,
<PAGE>
the terms and conditions upon which the security interests and each guarantee
were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all provided in
the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
[signature page follows]
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Note to
be duly executed and delivered as of the date first above written.
GRUBB & ELLIS COMPANY, a Delaware
corporation
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive
Vice President
3
<PAGE>
EXHIBIT 4.4
REVOLVING CREDIT LOAN NOTE
--------------------------
$2,857,142.86 Chicago, Illinois
October 15, 1999
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of LASALLE BANK NATIONAL ASSOCIATION (the "Lender"), at the office of
------
Administrative Agent located at 100 North Tyron Street, 7th Floor, Charlotte,
North Carolina 28255-0001 in lawful money of the United States of America and in
immediately available funds, on the Revolving Credit Termination Date, the
principal amount of TWO MILLION EIGHT HUNDRED FIFTY-SEVEN THOUSAND ONE HUNDRED
FORTY-TWO AND 86/100 DOLLARS ($2,857,142.86), or, if less, the aggregate unpaid
principal amount of all Revolving Credit Loans of the Lender made to the
Borrower pursuant to Section 2.1 of the Credit Agreement (as defined below).
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 4.7 of the Credit Agreement. Unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have
the meaning given to them in the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, the Type and amount of each
Revolving Credit Loan of the Lender and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof as the same Type in
accordance with the Credit Agreement, each conversion of all or a portion
thereof to another Type in accordance with the Credit Agreement and, in the case
of Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such endorsement shall constitute prima facie evidence of the accuracy of
the information endorsed. The failure to make an such endorsement (or any error
therein) shall not affect the obligations of the Borrower in respect of any
Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of October 15, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the several other banks and financial institutions or entities from time
to time parties thereto and Bank of America, N.A., as Administrative Agent,
evidencing a Revolving Credit Loan, (b) is subject to, the provisions of the
Credit Agreement and (c) is subject to optional prepayment in whole or in part
as provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees,
<PAGE>
the terms and conditions upon which the security interests and each guarantee
were granted and the rights of the holder of this Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all provided in
the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
[signature page follows]
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Revolving Note to
be duly executed and delivered as of the date first above written.
GRUBB & ELLIS COMPANY, a Delaware corporation
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive Vice
President
3
<PAGE>
EXHIBIT 4.5
REDUCING REVOLVING CREDIT LOAN NOTE
-----------------------------------
$9,285,714.29 Chicago, Illinois
October 15, 1999
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of BANK OF AMERICA, N.A. (the "Lender"), at the office of
------
Administrative Agent located at 100 North Tyron Street. 7th Floor, Charlotte,
North Carolina 28255-0001 in lawful money of the United States of America and in
immediately available funds, on the Reducing Revolving Credit Termination Date,
the principal amount of NINE MILLION TWO HUNDRED EIGHTY-FIVE THOUSAND SEVEN
HUNDRED FOURTEEN AND 29/100 DOLLARS ($9,285,714.29), or, if less, the aggregate
unpaid principal amount of all Reducing Revolving Credit Loans of the Lender
made to the Borrower pursuant to Section 2.1 of the Credit Agreement (as defined
below). The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in Section 4.7 of the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meaning given to them in the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, the Type and amount of each
Reducing Revolving Credit Loan of the Lender and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof as the
same Type in accordance with the Credit Agreement, each conversion of all or a
portion thereof to another Type in accordance with the Credit Agreement and, in
the case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make an such endorsement
(or any error therein) shall not affect the obligations of the Borrower in
respect of any Reducing Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of October 15, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the several other banks and financial institutions or entities from time
to time parties thereto and Bank of America, N.A., as Administrative Agent,
evidencing a Reducing Revolving Credit Loan, (b) is subject to, the provisions
of the Credit Agreement and (c) is subject to optional prepayment in whole or in
part as provided in the Credit Agreement. This Note is secured and guaranteed
as provided in the Loan Documents. Reference is hereby made to the Loan
Documents for a description of the properties and assets in which a security
interest has been granted, the nature and extent of the
<PAGE>
security and the guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all provided in
the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
[signature page follows]
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Reducing Revolving
Note to be duly executed and delivered as of the date first above written.
GRUBB & ELLIS COMPANY, a Delaware corporation
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive
Vice President
3
<PAGE>
Exhibit 4.6
REDUCING REVOLVING CREDIT LOAN NOTE
-----------------------------------
$8,571,428.57 Chicago, Illinois
October 15, 1999
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO (the "Lender"),
------
at the office of Administrative Agent located at 100 North Tyron Street. 7th
Floor, Charlotte, North Carolina 28255-0001 in lawful money of the United States
of America and in immediately available funds, on the Reducing Revolving Credit
Termination Date, the principal amount of EIGHT MILLION FIVE HUNDRED SEVENTY-ONE
THOUSAND FOUR HUNDRED TWENTY-EIGHT AND 57/100 DOLLARS ($8,571,428.57), or, if
less, the aggregate unpaid principal amount of all Reducing Revolving Credit
Loans of the Lender made to the Borrower pursuant to Section 2.1 of the Credit
Agreement (as defined below). The Borrower further agrees to pay interest in
like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 4.7 of the
Credit Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meaning given to them in the Credit
Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, the Type and amount of each
Reducing Revolving Credit Loan of the Lender and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof as the
same Type in accordance with the Credit Agreement, each conversion of all or a
portion thereof to another Type in accordance with the Credit Agreement and, in
the case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsment shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make an such endorsement
(or any error therein) shall not affect the obligations of the Borrower in
respect of any Reducing Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of October 15, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the several other banks and financial institutions or entities from time
to time parties thereto and Bank of America, N.A., as Administrative Agent,
evidencing a Reducing Revolving Credit Loan, (b) is subject to, the provisions
of the Credit Agreement and (c) is subject to optional prepayment in whole or in
part as provided in the Credit Agreement. This Note is secured and guaranteed
as provided in the Loan Documents. Reference is hereby made to the Loan
Documents for a description of the properties and assets in which a security
interest has been granted, the nature and extent of the
<PAGE>
security and the guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all provided in
the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Reducing Revolving
Note to be duly executed and delivered as of the date first above written.
GRUBB & ELLIS COMPANY, a Delaware corporation
By: /s/ Brian Parker
--------------------
Title: Chief Financial Officer and Executive
Vice President
<PAGE>
EXHIBIT 4.7
REDUCING REVOLVING CREDIT LOAN NOTE
-----------------------------------
$7,142,857.14 Chicago, Illinois
October 15, 1999
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of LASALLE BANK NATIONAL ASSOCIATION (the "Lender"), at the office of
------
Administrative Agent located at 100 North Tyron Street. 7th Floor, Charlotte,
North Carolina 28255-0001 in lawful money of the United States of America and in
immediately available funds, on the Reducing Revolving Credit Termination Date,
the principal amount of SEVEN MILLION ONE HUNDRED FOURTY-TWO THOUSAND EIGHT
HUNDRED FIFTY-SEVEN AND 14/100 DOLLARS ($7,142,857.14), or, if less, the
aggregate unpaid principal amount of all Reducing Revolving Credit Loans of the
Lender made to the Borrower pursuant to Section 2.1 of the Credit Agreement (as
defined below). The Borrower further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time outstanding
at the rates and on the dates specified in Section 4.7 of the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meaning given to them in the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, the Type and amount of each
Reducing Revolving Credit Loan of the Lender and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof as the
same Type in accordance with the Credit Agreement, each conversion of all or a
portion thereof to another Type in accordance with the Credit Agreement and, in
the case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make an such endorsement
(or any error therein) shall not affect the obligations of the Borrower in
respect of any Reducing Revolving Credit Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of October 15, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the several other banks and financial institutions or entities from time
to time parties thereto and Bank of America, N.A., as Administrative Agent,
evidencing a Reducing Revolving Credit Loan, (b) is subject to, the provisions
of the Credit Agreement and (c) is subject to optional prepayment in whole or in
part as provided in the Credit Agreement. This Note is secured and guaranteed
as provided in the Loan Documents. Reference is hereby made to the Loan
Documents for a description of the
<PAGE>
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all provided in
the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
[signature page follows]
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Reducing Revolving
Note to be duly executed and delivered as of the date first above written.
GRUBB & ELLIS COMPANY, a Delaware
corporation
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive
Vice President
3
<PAGE>
EXHIBIT 4.8
SWINGLINE LOAN NOTE
-------------------
$2,000,000.00 Chicago, Illinois
October 15, 1999
FOR VALUE RECEIVED, the undersigned, GRUBB & ELLIS COMPANY, a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of BANK OF AMERICA, N.A. (the "Lender"), at the office of
------
Administrative Agent located at 100 North Tyron Street, 7/th/ Floor, Charlotte,
North Carolina 28255-0001, in lawful money of the United States of America and
in immediately available funds, on the dates specified in the Credit Agreement
and on the Termination Date, the principal amount of TWO MILLION AND XX/100
DOLLARS ($2,000,000.00), or, if less, the aggregate unpaid principal amount of
all Swingline Loans of the Swingline Lender made to the Borrower pursuant to
Section 2.1 of the Credit Agreement (as defined below). The Borrower further
agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates and on the dates
specified in Section 4.7 of the Credit Agreement. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meaning given to them in the Credit Agreement.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of October 15, 1999 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the several other banks and financial institutions or entities from time
to time parties thereto and Bank of America, N.A., as Administrative Agent,
evidencing a Swingline Loan, (b) is subject to, the provisions of the Credit
Agreement and (c) is subject to repayment as provided in the Credit Agreement.
This Note is secured and guaranteed as provided in the Loan Documents.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Note in respect thereof.
Upon the occurrence and during the continuance of any one or more of
the Events of Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all provided in
the Credit Agreement.
1
<PAGE>
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
[signature page follows]
2
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Swingline Note to
be duly executed and delivered as of the date first above written.
GRUBB & ELLIS COMPANY, a Delaware corporation
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive Vice
President
3
<PAGE>
EXHIBIT 10.1
PLEDGE AGREEMENT
----------------
THIS PLEDGE AGREEMENT (this "Agreement") made as of this 15/th/ day of
October, 1999 is between GRUBB & ELLIS COMPANY, a Delaware corporation having
its principal place of business and chief executive office at 2215 Sanders Road,
Suite 400, Northbrook, Illinois 60062 ("Pledgor"), and BANK OF AMERICA, N.A., a
national banking association having an office at 231 South LaSalle Street,
Chicago, Illinois 60697 ("Pledgee"), as Administrative Agent on behalf of itself
and all Lenders (as hereinafter defined).
RECITALS:
WHEREAS, Pledgor has entered into a Credit Agreement of even date
herewith (as the same may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement") with Pledgee for
the benefit of all lenders thereunder ("Lenders"), and the Lenders from time to
time as parties thereto; and
WHEREAS, Pledgor is the legal and beneficial owner of the issued and
outstanding capital stock described on Exhibit A hereto; and
WHEREAS, Pledgor has received, and may hereafter receive, loans and
other financial accommodations from Lenders under the Credit Agreement, as a
result of which it has incurred, and expects simultaneously with the delivery of
this Agreement to, and will hereafter, incur, "Borrower Obligations" (as that
term is defined in the Credit Agreement) to Lenders; and
WHEREAS, Pledgor wishes to grant further security and assurance to
Pledgee, for itself and the benefit of all Lenders, in order to secure the
performance of the Borrower Obligations to Pledgee and the Lenders under the
Credit Agreement and to that effect to pledge to Pledgee, for the ratable
benefit of Lenders, all of the present and future capital stock of the
Subsidiaries owned by Pledgor;
NOW, THEREFORE, in consideration of the foregoing recitals (which are
incorporated herein by this reference thereto as though fully set forth below)
and in order to induce Pledgee and Lenders to extend credit and make other
financial accommodations under the Credit Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees with Pledgee, on behalf of and for the
ratable benefit of Lenders, as follows:
1. Defined Terms. Unless otherwise defined herein, all capitalized
-------------
terms used herein shall have the meanings given to such terms in the Credit
Agreement. Terms defined in the Illinois Uniform Commercial Code which are not
otherwise defined in this Agreement or in the Credit Agreement are used in this
Agreement as defined in the Illinois Uniform Commercial Code as in effect on the
date hereof.
1
<PAGE>
2. Pledge. Pledgor hereby pledges, assigns, hypothecates, transfers,
------
delivers and grants to Pledgee, for itself and the benefit of all Lenders, a
first lien (other than Inchoate Tax Liens) on and security interest in (a) all
of the capital stock of each Domestic Subsidiary, which is a corporation, except
those Domestic Subsidiaries described in Schedule I hereto and the capital stock
----------
of each Foreign Subsidiary, which is a corporation (in no event to exceed 66% of
the capital stock such Foreign Subsidiary), except those Foreign Subsidiaries
described in Schedule I hereto, in each case now or hereafter owned by Pledgor
----------
(the "Pledged Shares"), (b) all other property hereafter delivered to Pledgor in
substitution for or in addition to the Pledged Shares, (c) any other property of
Pledgor, as described in Section 4 below or otherwise, now or hereafter
delivered by Pledgor to Pledgee, and (d) any and all proceeds thereof (all such
property being hereinafter referred to collectively as the "Collateral"), as
collateral security for (i) the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of all of the
Borrower Obligations, and (iii) the due and punctual payment and performance by
Pledgor of its obligations and liabilities under, arising out of, or in
connection with this Agreement including, without limitation, any taxes and
expenses payable pursuant to Section 18 hereof (all of the foregoing being
hereinafter referred to collectively as the "Liabilities"). Other than with
respect to those Subsidiaries listed on Schedule I hereto, all of the issued and
----------
outstanding capital stock of each Domestic Subsidiary and up to 66% of the
capital stock of each Foreign Subsidiary presently owned by Pledgor is
represented by stock certificates listed on Exhibit A hereto, which stock
certificates, together with undated stock powers duly executed in blank by
Pledgor, are being delivered to Pledgee simultaneously herewith. Pledgee shall
maintain possession and custody of the certificates representing the Pledged
Shares in accordance with Section 5 below and shall return the Pledged Shares in
accordance with said section.
3. Representations and Warranties of Pledgor. Pledgor represents and
-----------------------------------------
warrants to Pledgee, for the benefit of the Lenders, that:
(a) With respect to each Subsidiary the shares of which are pledged
hereunder, Exhibit A sets forth (i) the authorized capital stock of each such
Subsidiary other than those Subsidiaries listed on Schedule I hereto, (ii) the
----------
number of shares of capital stock of each such Subsidiary that are issued and
outstanding as of the date hereof and (iii) the number of shares of capital
stock of each such Subsidiary held in its treasury. Pledgor is the record and
beneficial owner of, and has good and marketable title to, the Pledged Shares,
and the Collateral is free and clear of all Liens except the Liens created by
this Agreement;
(b) Pledgor has full power, authority and legal right to execute the
pledge provided for herein and to pledge the Collateral to Pledgee, for the
ratable benefit of Lenders;
(c) this Agreement has been duly authorized, executed and delivered by
Pledgor and constitutes a legal, valid and binding obligation of Pledgor
enforceable in accordance with its terms;
(d) Pledgor holds no options, warrants or other agreements with
respect to the issuance of additional shares of capital stock of any Subsidiary
and, to the best of Pledgor's
2
<PAGE>
knowledge, no options, warrants or other agreements with respect to issuance of
additional shares of capital stock of any Subsidiary exist;
(e) the Pledged Shares have been duly and validly authorized and
issued, are fully paid and non-assessable and represent the issued and
outstanding shares of capital stock of each Restricted Subsidiary as described
in Exhibit A;
(f) no consent, approval or authorization of or designation or filing
with any federal, state or other governmental authority or regulatory body on
the part of Pledgor is required in connection with the execution, delivery and
performance of this Agreement, the granting of Liens in the Collateral by
Pledgor or the exercise by Pledgee, for the benefit of Pledgee and Lenders, of
the voting and other rights provided for in this Agreement;
(g) the execution, delivery and performance of this Agreement by
Pledgor will not violate any provision of (i) any applicable law or regulation,
(ii) any order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, (iii) the charter or by-laws of
Pledgor or any Subsidiary, (iv) any securities issued by Pledgor or any
Subsidiary, or (v) any mortgage, indenture, lease, contract, or other agreement,
instrument or undertaking to which Pledgor or any; Subsidiary is a party or
which purports to be binding upon Pledgor or such Subsidiary or upon any of
their respective assets, and will not result in the creation or imposition of
any Lien on any of the assets of Pledgor or any Subsidiary except as
contemplated by this Agreement; and
(h) the pledge, assignment and delivery of the Collateral pursuant to
this Agreement creates a valid first Lien on the Collateral in favor of Pledgee,
for the benefit of Pledgee and Lenders, subject to no other Liens nor to any
agreement purporting to grant to any third party any Liens in the property or
assets of Pledgor which would include the Collateral (in each case, other than
Liens permitted by the Credit Agreement.) Pledgor covenants and agrees that it
will defend all of the right, title and interest of Pledgee in and to the
Collateral, for the benefit of Pledgee and the Lenders, against the claims and
demands of all persons whomsoever other than Liens permitted by the Credit
Agreement.
4. Stock Dividends, Distributions, etc. If, while this Agreement
---------------------------------------
is in effect, Pledgor shall become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate representing a
stock dividend or a stock distribution in connection with any reclassification,
increase or reduction of capital, or issued in connection with any
reorganization, merger or consolidation), or any options or rights, whether as
an addition to, in substitution for, or in exchange for any of the Pledged
Shares or otherwise, Pledgor agrees to accept the same as Pledgee's agent and to
hold the same in trust for Pledgee, and to deliver the same forthwith to Pledgee
in the exact form received, with the indorsement of Pledgor when necessary
and/or appropriate undated stock powers duly executed in blank, to be held by
Pledgee as additional collateral security for the Liabilities. In case any
distribution of capital shall be made to Pledgor on or in respect of the Pledged
Shares or any property shall be distributed to Pledgor upon or with respect to
the Pledged Shares pursuant to the recapitalization or reclassification of the
capital of the issuer thereof or pursuant to the reorganization, merger or
consolidation thereof,
3
<PAGE>
the property so distributed shall be delivered, to the extent permitted pursuant
to the Credit Agreement and provided no Event of Default exists and is
continuing, to Pledgor and will constitute additional collateral security for
the Liabilities. Upon the occurrence and during the continuance of an Event of
Default and at the request of Pledgee at the direction of the Required Lenders,
all sums of money and property so paid or distributed shall be paid to Pledgee
and applied in accordance with the terms and provisions of the Credit Agreement.
5. Administration of Security. The following provisions shall govern
--------------------------
the administration of the Pledged Shares:
(a) So long as no Event of Default has occurred and is continuing,
Pledgor shall be entitled (subject to the other provisions hereof and the Credit
Agreement, including, without limitation, Section 8 below and Section 8 of the
Credit Agreement) (i) to vote or consent with respect to the Pledged Shares and
to otherwise exercise the incidents of ownership thereof in any manner not
inconsistent with this Agreement, the Credit Agreement or any of the other Loan
Documents; and (ii) to receive cash dividends or other distributions in the
ordinary course made in respect of the Pledged Shares. Pledgor hereby grants to
Pledgee or its nominee, for the ratable benefit of Lenders, an irrevocable proxy
to exercise all voting and corporate rights relating to the Pledged Shares in
any instance, including, without limitation, to approve any merger involving any
Subsidiary as a constituent corporation, which proxy shall be exercisable
immediately upon the occurrence of an Event of Default and for so long as such
Event of Default is continuing. After the occurrence and during the continuance
of an Event of Default and upon request of Pledgee, Pledgor agrees to deliver to
Pledgee such further evidence of such irrevocable proxy or such further
irrevocable proxies to vote the Pledged Shares as Pledgee may request.
(b) Upon the occurrence and during the continuance of an Event of
Default, in the event that Pledgor, as record and beneficial owner of the
Pledged Shares, shall have received or shall have become entitled to receive any
cash dividends or other distributions in the ordinary course, Pledgor shall
deliver to Pledgee, and Pledgee shall be entitled to receive and retain, on
behalf of Pledgee and Lenders, all such cash or other distributions as
additional collateral security for the Liabilities; provided, however, that upon
-------- -------
such Event of Default being cured (provided that no part of the Borrower
Obligations shall have been accelerated pursuant to subsection 8.3 of the Credit
Agreement), Pledgee shall return such portion of any such cash dividends or
other distributions received and retained by Pledgee as have not been applied to
cure such Event of Default to Pledgor.
(c) Subject to any sale or other disposition by Pledgee of the
Pledged Shares or other property pursuant to this Agreement, upon full payment,
satisfaction and termination of all of the Liabilities (other than contingent
indemnification obligations to the extent no unsatisfied claim giving rise
thereto has been asserted) and the termination pursuant to Section 15 hereof of
the Liens hereby granted, the Pledged Shares and any other property then held as
part of the collateral security for the Liabilities in accordance with the
provisions of this Agreement shall be returned to Pledgor.
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<PAGE>
6. Rights of Pledgee. Neither Pledgee nor Lenders shall be liable
-----------------
for any failure to collect or realize upon the Liabilities or any collateral
security or guaranty therefor, or any part thereof, or for any delay in so
doing, nor shall Pledgee or any Lender be under any obligation to take any
action whatsoever with regard thereto. Any or all of the Collateral held by
Pledgee hereunder may, if an Event of Default has occurred and is continuing,
without notice, be registered in the name of Pledgee or its nominee, for the
benefit of Pledgee and the Lenders, and Pledgee or its nominee may thereafter
without notice exercise all voting and corporate rights at any meeting with
respect to a Subsidiary whose shares are pledged hereunder and exercise any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to any of the Pledged Shares, for the benefit of Pledgee
and Lenders, as if Pledgee or its nominee were the absolute owner thereof,
including, without limitation, the right to vote in favor of, and to exchange at
its discretion any and all of the Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment with respect to a
Subsidiary whose shares are pledged hereunder or upon the exercise by a
Subsidiary whose shares are pledged hereunder or Pledgee, on behalf of Pledgee
and Lenders, of any right, privilege or option pertaining to any of the
Collateral, and in connection therewith, to deposit and deliver any and all of
the Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as Pledgee may determine,
all without liability except to account for property actually received by
Pledgee, but Pledgee shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.
7. Remedies. Upon the occurrence and during the continuance of an
--------
Event of Default, Pledgee, on behalf of Pledgee and Lenders, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
Pledgor or any other Person (all and each of which demands, advertisements
and/or notices are hereby expressly waived), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give an option or options to purchase, contract to sell
or otherwise dispose of (including any disposition in connection with a merger
of a Subsidiary) and deliver the Collateral, or any part thereof, in one or more
portions at public or private sale or sales or transactions, at any exchange,
broker's board or at any of Pledgee's offices or elsewhere upon such terms and
conditions as Pledgee may deem advisable and at such prices as it may deem best,
for any combination of cash and/or securities or other property or on credit or
for future delivery without assumption of any credit risk, with the right to
Pledgee upon any such sale or sales, public or private, to purchase, on behalf
of Pledgee and Lenders, the whole or any part of the Collateral so sold free of
any right or equity of redemption in Pledgor, which right or equity of
redemption Pledgor hereby expressly waives and releases. Pledgee shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization, sale or disposition, after deducting all costs and expenses of
every kind incurred therein or incidental to the safekeeping or otherwise of any
and all of the Collateral or in any way relating to the rights of Pledgee or
Lenders hereunder, including attorneys' fees and expenses, to the payment, in
whole or in part, of the Liabilities in such order (unless a court of competent
jurisdiction shall otherwise direct) as Pledgee may elect. Pledgor shall remain
liable for any deficiency remaining unpaid after such application. Only after
so paying over such net proceeds and after the payment by Pledgee of any other
amount required by
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<PAGE>
any provision of law, including, without limitation, Section 9-504(1)(c) of the
Uniform Commercial Code of the State of Illinois, need Pledgee account for the
surplus, if any, to Pledgor. Pledgor agrees that Pledgee need not give more than
ten days' notice of the time and place of any public sale or of the time after
which a private sale or other intended disposition is to take place and that
such notice shall constitute commercially reasonable notification of such
matters. No notification need be given to Pledgor if Pledgor has signed after
default a statement renouncing any right to notification of sale or other
intended disposition. In addition to the rights and remedies granted to Pledgee
and Lenders in this Agreement and in any of the other Loan Documents, Pledgee
and Lenders shall have all the rights and remedies of secured parties under the
Uniform Commercial Code of the State of Illinois and under any other applicable
law. Pledgor further agrees to waive and agrees not to assert any rights or
privileges which it may acquire under Section 9-112 of the Uniform Commercial
Code of the State of Illinois and Pledgor shall be liable for the deficiency if
the proceeds of any sale or other disposition of the Collateral are insufficient
to pay the Liabilities in full.
8. No Disposition, Liens, etc. Except as expressly permitted
---------------------------
pursuant to the Credit Agreement, without the prior written consent of Pledgee,
Pledgor agrees that it will not sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, any of the Collateral, nor
create, incur or permit to exist any Lien (other than Inchoate Tax Liens) on any
of the Collateral, or any interest therein, or any proceeds thereof, except for
the Liens granted pursuant to this Agreement. Except as permitted under the
Credit Agreement, Pledgor agrees that it will not vote to enable, and will not
otherwise permit any Subsidiary to (a) issue any stock or other securities of
any nature in addition to or in exchange or substitution for the Pledged Shares
or (b) dissolve, liquidate, retire any of its capital stock, reduce its capital
or merge or consolidate with any other Person.
9. Sale of Pledged Shares. (a) Pledgor acknowledges that Pledgee may
----------------------
be unable to effect a public sale or disposition (including, without limitation,
any disposition in connection with a merger of a Subsidiary) of any or all the
Collateral by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Securities Act"), and applicable state securities laws,
but may be compelled to resort to one or more private sales or dispositions
thereof 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. Pledgor acknowledges
that any such private sale or disposition may result in prices and other terms
(including the terms of any securities or other property received in connection
therewith) less favorable to the seller than if such sale or disposition were a
public sale or disposition and, shall not be deemed commercially unreasonable
solely because such sale is a private sale. Pledgee shall be under no
obligation to delay a sale or disposition of any of the Collateral in order to
permit Pledgor or any Subsidiary to register such securities for public sale
under the Securities Act, or under applicable state securities laws, even if
Pledgor or such Subsidiary would agree to do so.
(b) Pledgor further agrees to do or cause to be done all such
other reasonable acts and things as may be necessary to make any sale or other
disposition of all or any portion of the Collateral valid and binding and in
compliance with any and all applicable laws,
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<PAGE>
regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales or dispositions, all at
Pledgor's expense.
(c) Pledgor further agrees to indemnify and hold harmless Pledgee
and each Lender and their respective successors and assigns, officers,
directors, employees and agents, and any Person in control of any thereof, from
and against any loss, liability, claim, damage and expense, including, without
limitation, attorneys' fees and expenses (in this paragraph collectively called
the "Indemnified Liabilities"), under federal and state securities laws or
otherwise insofar as such loss, liability, claim, damage or expense (i) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, prospectus or offering
memorandum, any preliminary prospectus or preliminary offering memorandum, any
amendment or supplement to any thereof or any other writing prepared in
connection with the offer, sale or resale of all or any portion of the
Collateral (collectively, the "Disclosure Documents") unless such untrue
statement of material fact was provided by Pledgee or such Lender specifically
for inclusion therein, or (ii) arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated or necessary to
make the statements in any of the Disclosure Documents not misleading, such
indemnification to remain operative regardless of any investigation made by or
on behalf of Pledgee, any Lender and their respective successors and assigns,
officers, directors, employees and agents, or any Person in control of any
thereof. In connection with a public sale or other distribution, Pledgor shall
provide customary indemnification to any underwriters and their respective
successors and assigns, officers and directors, and each Person who controls any
such underwriter (within the meaning of the Securities Act). If and to the
extent that any of the foregoing undertakings in this paragraph may be
unenforceable for any reason, Pledgor agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The obligations of Pledgor under this
paragraph (c) shall survive the termination of this Agreement.
(d) Pledgor further agrees to waive any and all rights of
subrogation it may have against any Subsidiary upon the sale or other
disposition of all or any portion of the Collateral by Pledgee.
10. Further Assurances. Pledgor agrees that at any time and from
------------------
time to time upon the written request of Pledgee, Pledgor will execute and
deliver all stock powers, financing statements and other documents and do such
further acts and things as Pledgee may reasonably request consistent with the
provisions hereof in order to effect the purposes of this Agreement.
11. Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. No Waiver; Cumulative Remedies. Pledgee shall not by any act,
------------------------------
delay, omission or otherwise be deemed to have waived any of its remedies
hereunder, and no waiver
7
<PAGE>
by Pledgee shall be valid unless in writing and signed by Pledgee, on behalf of
the Lenders, and then only to the extent therein set forth. A waiver by Pledgee
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which Pledgee would otherwise have on any subsequent
occasion. No course of dealing between Pledgor and Pledgee or any Lender and no
failure to exercise, nor any delay by Pledgee in exercising any right, power or
privilege hereunder or under the Credit Agreement, on behalf of Lenders, shall
impair such right or remedy or operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights or
remedies provided by law.
13. Successors and Assigns. This Agreement and all obligations of
----------------------
Pledgor hereunder shall be binding upon the successors and assigns of Pledgor,
and shall, together with the rights and remedies of Pledgee and Lenders
hereunder, inure to the benefit of Pledgee and Lenders and their successors and
assigns, except that Pledgor shall not have the right to assign its rights or
obligations under this Agreement or any interest herein without the prior
written consent of Pledgee.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
--------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS (WITHOUT REFERENCE TO CONFLICTS OF LAW PRINCIPLES).
15. Termination. This Agreement and the Liens granted hereunder
-----------
shall terminate upon the full and complete performance and satisfaction of the
Liabilities (other than contingent indemnification obligations to the extent no
unsatisfied claim giving rise thereto has been asserted).
16. Possession of Collateral. Beyond the exercise of reasonable care
------------------------
to assure the safe custody of the Collateral in the physical possession of
Pledgee pursuant hereto, neither Pledgee nor any Lender, nor any nominee of any
of them, shall have any duty or liability to collect any sums due in respect of
the Collateral or to protect, preserve or exercise any rights pertaining to the
Collateral, and Pledgee, each Lender and any nominee thereof shall be relieved
of all responsibility for any portion of the Collateral surrendered to Pledgor.
17. Survival of Representations. All representations and warranties
---------------------------
of Pledgor contained in this Agreement shall survive the execution and delivery
of this Agreement.
18. Taxes and Expenses. Pledgor will upon demand pay to Pledgee, for
------------------
the benefit of Lenders, (a) any taxes (excluding income taxes, franchise taxes
or other taxes levied on gross earnings, profits or the like) payable or ruled
payable by any federal, state or other governmental authority in respect of this
Agreement, together with interest and penalties, if any, and (b) all expenses,
including the fees and expenses of attorneys, accountants, consultants or other
experts and agents that Pledgee or Lenders may retain in connection with (i) the
8
<PAGE>
administration of this Agreement, (ii) the custody, preservation or sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights and remedies of Pledgee or Lenders
hereunder or (iv) the failure of Pledgor to perform or observe any of the
provisions hereof.
19. Pledgee Appointed Attorney-In-Fact. Pledgor hereby irrevocably
----------------------------------
appoints Pledgee as Pledgor's attorney-in-fact, with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from time to time
in Pledgee's discretion, to take any action and to execute any instrument that
Pledgee deems reasonably necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation, to receive, endorse and collect
all instruments made payable to Pledgor representing any dividend, interest
payment or other distribution in respect of the Collateral and to give full
discharge for the same, when and to the extent permitted by this Agreement.
20. Notices. Unless otherwise specifically provided herein, any
-------
notice or other communication required or permitted to be given shall be in
writing addressed and delivered to the respective party as set forth in the
Credit Agreement. A notice not given as provided above shall, if it is in
writing, be deemed given if and when actually received by the party to whom
given.
21. Changes in Writing. No amendment, modification, termination or
------------------
waiver of any provision of this Agreement or consent to any departure by Pledgor
therefrom, shall in any event be effective without the written concurrence of
Pledgee and Pledgor, and then only to the extent specifically set forth in such
writing.
22. Headings. Section and subsection headings in this Agreement are
--------
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
23. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
24. Entire Agreement. This Agreement embodies the entire agreement
----------------
and understanding among Pledgor, Pledgee and Lenders and supersedes all prior
oral and written agreements and understandings among Pledgor, Pledgee and
Lenders relating to the subject matter hereof.
25. WAIVER OF JURY TRIAL. PLEDGOR, PLEDGEE AND EACH LENDER HEREBY
--------------------
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTTER LOAN DOCUMENTS.
PLEDGOR, PLEDGEE AND EACH LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE
WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT
9
<PAGE>
EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.
PLEDGOR, PLEDGEE AND EACH LENDER WARRANT AND REPRESENT THAT EACH HAS HAD THE
OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
- Signature Page Follows -
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers on the date
first above written.
GRUBB & ELLIS COMPANY, a Delaware
corporation
By: /s/ Brian Parker
----------------------------------------
Its: Brian Parker; Chief Financial Officer
and Executive Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Devon Russell
----------------------------------------
Its: Devon Russell; Vice President
11
<PAGE>
EXHIBIT 10.2
PLEDGE AGREEMENT
----------------
THIS PLEDGE AGREEMENT (this "Agreement") made as of this 15th day of
October, 1999 is between GRUBB & ELLIS MANAGEMENT SERVICES, INC., a Delaware
corporation having its principal place of business and chief executive office at
2215 Sanders Road, Suite 400, Northbrook, Illinois 60062 ("Pledgor"), and BANK
OF AMERICA, N.A., a national banking association having an office at 231 South
LaSalle Street, Chicago, Illinois 60697 ("Pledgee"), as Administrative Agent on
behalf of itself and all Lenders (as hereinafter defined).
RECITALS:
WHEREAS, Grubb & Ellis Company, a Delaware corporation ("Borrower"),
has entered into a Credit Agreement of even date herewith (as the same may
hereafter be amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement") with Pledgee for the benefit of all lenders
thereunder ("Lenders"), and the Lenders from time to time as parties thereto;
and
WHEREAS, Borrower owns 100% of the issued and outstanding capital
stock of Pledgor; and
WHEREAS, Pledgor is the legal and beneficial owner of the issued and
outstanding capital stock described on Exhibit A hereto; and
WHEREAS, Borrower has received, and may hereafter receive, loans and
other financial accommodations from Lenders under the Credit Agreement, as a
result of which it has incurred, and expects simultaneously with the delivery of
this Agreement to, and will hereafter, incur, "Borrower Obligations" (as that
term is defined in the Credit Agreement) to Lenders; and
WHEREAS, as a Wholly Owned Subsidiary of Borrower, Pledgor will derive
substantial benefit from the loans and other financial accommodations to
Borrower; and
WHEREAS, Pledgor wishes to grant further security and assurance to
Pledgee, for itself and the benefit of all Lenders, in order to secure the
performance of the Borrower Obligations to Pledgee and the Lenders under the
Credit Agreement and to that effect to pledge to Pledgee, for itself and the
benefit of all Lenders, all of the present and future capital stock of the
Subsidiaries owned by Pledgor;
NOW, THEREFORE, in consideration of the foregoing recitals (which are
incorporated herein by this reference thereto as though fully set forth below)
and in order to induce Pledgee and Lenders to extend credit and make other
financial accommodations under the Credit Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees with Pledgee, on behalf of and for the
ratable benefit of Lenders, as follows:
<PAGE>
1. Defined Terms. Unless otherwise defined herein, all capitalized
-------------
terms used herein shall have the meanings given to such terms in the Credit
Agreement. Terms defined in the Illinois Uniform Commercial Code which are not
otherwise defined in this Agreement or in the Credit Agreement are used in this
Agreement as defined in the Illinois Uniform Commercial Code as in effect on the
date hereof.
2. Pledge. Pledgor hereby pledges, assigns, hypothecates, transfers,
------
delivers and grants to Pledgee, for itself and the benefit of all Lenders, a
first lien (other than Inchoate Tax Liens) on and security interest in (a) all
of the capital stock of each Domestic Subsidiary, which is a corporation, except
those Domestic Subsidiaries described in Schedule I hereto and the capital stock
----------
of each Foreign Subsidiary, which is a corporation (in no event to exceed 66% of
the capital stock such Foreign Subsidiary), except those Foreign Subsidiaries
described in Schedule I hereto, in each case now or hereafter owned by Pledgor
----------
(the "Pledged Shares"), (b) all other property hereafter delivered to Pledgor in
substitution for or in addition to the Pledged Shares, (c) any other property of
Pledgor, as described in Section 4 below or otherwise, now or hereafter
delivered by Pledgor to Pledgee, and (d) any and all proceeds thereof (all such
property being hereinafter referred to collectively as the "Collateral"), as
collateral security for (i) the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of all of the
Borrower Obligations, and (iii) the due and punctual payment and performance by
Pledgor of its obligations and liabilities under, arising out of, or in
connection with this Agreement including, without limitation, any taxes and
expenses payable pursuant to Section 18 hereof (all of the foregoing being
hereinafter referred to collectively as the "Liabilities"). Other than with
respect to those Subsidiaries listed on Schedule I hereto, all of the issued and
----------
outstanding capital stock of each Domestic Subsidiary and up to 66% of the
capital stock of each Foreign Subsidiary presently owned by Pledgor is
represented by stock certificates listed on Exhibit A hereto, which stock
certificates, together with undated stock powers duly executed in blank by
Pledgor, are being delivered to Pledgee simultaneously herewith. Pledgee shall
maintain possession and custody of the certificates representing the Pledged
Shares in accordance with Section 5 below and shall return the Pledged Shares in
accordance with said section.
3. Representations and Warranties of Pledgor. Pledgor represents and
-----------------------------------------
warrants to Pledgee, for the benefit of the Lenders, that:
(a) With respect to each Subsidiary the shares of which are
pledged hereunder, Exhibit A sets forth (i) the authorized capital stock of each
such Subsidiary other than those Subsidiaries listed on Schedule I hereto, (ii)
----------
the number of shares of capital stock of each such Subsidiary that are issued
and outstanding as of the date hereof and (iii) the number of shares of capital
stock of each such Subsidiary held in its treasury. Pledgor is the record and
beneficial owner of, and has good and marketable title to, the Pledged Shares,
and the Collateral is free and clear of all Liens except the Liens created by
this Agreement;
(b) Pledgor has full power, authority and legal right to execute
the pledge provided for herein and to pledge the Collateral to Pledgee, for the
ratable benefit of Lenders;
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<PAGE>
(c) this Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding obligation of
Pledgor enforceable in accordance with its terms;
(d) Pledgor holds no options, warrants or other agreements with
respect to the issuance of additional shares of capital stock of any Subsidiary
and, to the best of Pledgor's knowledge, no options, warrants or other
agreements with respect to issuance of additional shares of capital stock of any
Subsidiary exist;
(e) the Pledged Shares have been duly and validly authorized and
issued, are fully paid and non-assessable and represent the issued and
outstanding shares of capital stock of each Restricted Subsidiary as described
in Exhibit A;
(f) no consent, approval or authorization of or designation or
filing with any federal, state or other governmental authority or regulatory
body on the part of Pledgor is required in connection with the execution,
delivery and performance of this Agreement, the granting of Liens in the
Collateral by Pledgor or the exercise by Pledgee, for the benefit of Pledgee and
Lenders, of the voting and other rights provided for in this Agreement;
(g) the execution, delivery and performance of this Agreement by
Pledgor will not violate any provision of (i) any applicable law or regulation,
(ii) any order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, (iii) the charter or by-laws of
Pledgor or any Subsidiary, (iv) any securities issued by Pledgor or any
Subsidiary, or (v) any mortgage, indenture, lease, contract, or other agreement,
instrument or undertaking to which Pledgor or any; Subsidiary is a party or
which purports to be binding upon Pledgor or such Subsidiary or upon any of
their respective assets, and will not result in the creation or imposition of
any Lien on any of the assets of Pledgor or any Subsidiary except as
contemplated by this Agreement; and
(h) the pledge, assignment and delivery of the Collateral
pursuant to this Agreement creates a valid first Lien on the Collateral in favor
of Pledgee, for the benefit of Pledgee and Lenders, subject to no other Liens
nor to any agreement purporting to grant to any third party any Liens in the
property or assets of Pledgor which would include the Collateral (in each case,
other than Liens permitted by the Credit Agreement.) Pledgor covenants and
agrees that it will defend all of the right, title and interest of Pledgee in
and to the Collateral, for the benefit of Pledgee and the Lenders, against the
claims and demands of all persons whomsoever other than Liens permitted by the
Credit Agreement.
4. Stock Dividends, Distributions, etc. If, while this Agreement
------------------------------------
is in effect, Pledgor shall become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate representing a
stock dividend or a stock distribution in connection with any reclassification,
increase or reduction of capital, or issued in connection with any
reorganization, merger or consolidation), or any options or rights, whether as
an addition to, in substitution for, or in exchange for any of the Pledged
Shares or otherwise, Pledgor agrees to
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accept the same as Pledgee's agent and to hold the same in trust for Pledgee,
and to deliver the same forthwith to Pledgee in the exact form received, with
the indorsement of Pledgor when necessary and/or appropriate undated stock
powers duly executed in blank, to be held by Pledgee as additional collateral
security for the Liabilities. In case any distribution of capital shall be made
to Pledgor on or in respect of the Pledged Shares or any property shall be
distributed to Pledgor upon or with respect to the Pledged Shares pursuant to
the recapitalization or reclassification of the capital of the issuer thereof or
pursuant to the reorganization, merger or consolidation thereof, the property so
distributed shall be delivered, to the extent permitted pursuant to the Credit
Agreement and provided no Event of Default exists and is continuing, to Pledgor
and will constitute additional collateral security for the Liabilities. Upon the
occurrence and during the continuance of an Event of Default and at the request
of Pledgee at the direction of the Required Lenders, all sums of money and
property so paid or distributed shall be paid to Pledgee and applied in
accordance with the terms and provisions of the Credit Agreement.
5. Administration of Security. The following provisions shall govern
--------------------------
the administration of the Pledged Shares:
(a) So long as no Event of Default has occurred and is
continuing, Pledgor shall be entitled (subject to the other provisions hereof
and the Credit Agreement, including, without limitation, Section 8 below and
Section 8 of the Credit Agreement) (i) to vote or consent with respect to the
Pledged Shares and to otherwise exercise the incidents of ownership thereof in
any manner not inconsistent with this Agreement, the Credit Agreement or any of
the other Loan Documents; and (ii) to receive cash dividends or other
distributions in the ordinary course made in respect of the Pledged Shares.
Pledgor hereby grants to Pledgee or its nominee, for the ratable benefit of
Lenders, an irrevocable proxy to exercise all voting and corporate rights
relating to the Pledged Shares in any instance, including, without limitation,
to approve any merger involving any Subsidiary as a constituent corporation,
which proxy shall be exercisable immediately upon the occurrence of an Event of
Default and for so long as such Event of Default is continuing. After the
occurrence and during the continuance of an Event of Default and upon request of
Pledgee, Pledgor agrees to deliver to Pledgee such further evidence of such
irrevocable proxy or such further irrevocable proxies to vote the Pledged Shares
as Pledgee may request.
(b) Upon the occurrence and during the continuance of an Event of
Default, in the event that Pledgor, as record and beneficial owner of the
Pledged Shares, shall have received or shall have become entitled to receive any
cash dividends or other distributions in the ordinary course, Pledgor shall
deliver to Pledgee, and Pledgee shall be entitled to receive and retain, on
behalf of Pledgee and Lenders, all such cash or other distributions as
additional collateral security for the Liabilities; provided, however, that upon
-------- -------
such Event of Default being cured (provided that no part of the Borrower
Obligations shall have been accelerated pursuant to subsection 8.3 of the Credit
Agreement), Pledgee shall return such portion of any such cash dividends or
other distributions received and retained by Pledgee as have not been applied to
cure such Event of Default to Pledgor.
(c) Subject to any sale or other disposition by Pledgee of the
Pledged Shares or other property pursuant to this Agreement, upon full payment,
satisfaction and
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termination of all of the Liabilities (other than contingent indemnification
obligations to the extent no unsatisfied claim giving rise thereto has been
asserted) and the termination pursuant to Section 15 hereof of the Liens hereby
granted, the Pledged Shares and any other property then held as part of the
collateral security for the Liabilities in accordance with the provisions of
this Agreement shall be returned to Pledgor.
6. Rights of Pledgee. Neither Pledgee nor Lenders shall be liable
-----------------
for any failure to collect or realize upon the Liabilities or any collateral
security or guaranty therefor, or any part thereof, or for any delay in so
doing, nor shall Pledgee or any Lender be under any obligation to take any
action whatsoever with regard thereto. Any or all of the Collateral held by
Pledgee hereunder may, if an Event of Default has occurred and is continuing,
without notice, be registered in the name of Pledgee or its nominee, for the
benefit of Pledgee and the Lenders, and Pledgee or its nominee may thereafter
without notice exercise all voting and corporate rights at any meeting with
respect to a Subsidiary whose shares are pledged hereunder and exercise any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to any of the Pledged Shares, for the benefit of Pledgee
and Lenders, as if Pledgee or its nominee were the absolute owner thereof,
including, without limitation, the right to vote in favor of, and to exchange at
its discretion any and all of the Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment with respect to a
Subsidiary whose shares are pledged hereunder or upon the exercise by a
Subsidiary whose shares are pledged hereunder or Pledgee, on behalf of Pledgee
and Lenders, of any right, privilege or option pertaining to any of the
Collateral, and in connection therewith, to deposit and deliver any and all of
the Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as Pledgee may determine,
all without liability except to account for property actually received by
Pledgee, but Pledgee shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.
7. Remedies. Upon the occurrence and during the continuance of an
--------
Event of Default, Pledgee, on behalf of Pledgee and Lenders, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
Pledgor or any other Person (all and each of which demands, advertisements
and/or notices are hereby expressly waived), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give an option or options to purchase, contract to sell
or otherwise dispose of (including any disposition in connection with a merger
of a Subsidiary) and deliver the Collateral, or any part thereof, in one or more
portions at public or private sale or sales or transactions, at any exchange,
broker's board or at any of Pledgee's offices or elsewhere upon such terms and
conditions as Pledgee may deem advisable and at such prices as it may deem best,
for any combination of cash and/or securities or other property or on credit or
for future delivery without assumption of any credit risk, with the right to
Pledgee upon any such sale or sales, public or private, to purchase, on behalf
of Pledgee and Lenders, the whole or any part of the Collateral so sold free of
any right or equity of redemption in Pledgor, which right or equity of
redemption Pledgor hereby expressly waives and releases. Pledgee shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization, sale or disposition, after deducting all costs and expenses of
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<PAGE>
every kind incurred therein or incidental to the safekeeping or otherwise of any
and all of the Collateral or in any way relating to the rights of Pledgee or
Lenders hereunder, including attorneys' fees and expenses, to the payment, in
whole or in part, of the Liabilities in such order (unless a court of competent
jurisdiction shall otherwise direct) as Pledgee may elect. Pledgor shall remain
liable for any deficiency remaining unpaid after such application. Only after
so paying over such net proceeds and after the payment by Pledgee of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Uniform Commercial Code of the State of Illinois, need
Pledgee account for the surplus, if any, to Pledgor. Pledgor agrees that
Pledgee need not give more than ten days' notice of the time and place of any
public sale or of the time after which a private sale or other intended
disposition is to take place and that such notice shall constitute commercially
reasonable notification of such matters. No notification need be given to
Pledgor if Pledgor has signed after default a statement renouncing any right to
notification of sale or other intended disposition. In addition to the rights
and remedies granted to Pledgee and Lenders in this Agreement and in any of the
other Loan Documents, Pledgee and Lenders shall have all the rights and remedies
of secured parties under the Uniform Commercial Code of the State of Illinois
and under any other applicable law. Pledgor further agrees to waive and agrees
not to assert any rights or privileges which it may acquire under Section 9-112
of the Uniform Commercial Code of the State of Illinois and Pledgor shall be
liable for the deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay the Liabilities in full.
8. No Disposition, Liens, etc. Except as expressly permitted
---------------------------
pursuant to the Credit Agreement, without the prior written consent of Pledgee,
Pledgor agrees that it will not sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, any of the Collateral, nor
create, incur or permit to exist any Lien (other than Inchoate Tax Liens) on any
of the Collateral, or any interest therein, or any proceeds thereof, except for
the Liens granted pursuant to this Agreement. Except as permitted under the
Credit Agreement, Pledgor agrees that it will not vote to enable, and will not
otherwise permit any Subsidiary to (a) issue any stock or other securities of
any nature in addition to or in exchange or substitution for the Pledged Shares
or (b) dissolve, liquidate, retire any of its capital stock, reduce its capital
or merge or consolidate with any other Person.
9. Sale of Pledged Shares. (a) Pledgor acknowledges that Pledgee may
----------------------
be unable to effect a public sale or disposition (including, without limitation,
any disposition in connection with a merger of a Subsidiary) of any or all the
Collateral by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Securities Act"), and applicable state securities laws,
but may be compelled to resort to one or more private sales or dispositions
thereof 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. Pledgor acknowledges
that any such private sale or disposition may result in prices and other terms
(including the terms of any securities or other property received in connection
therewith) less favorable to the seller than if such sale or disposition were a
public sale or disposition and, shall not be deemed commercially unreasonable
solely because such sale is a private sale. Pledgee shall be under no
obligation to delay a sale or disposition of any of the Collateral in order to
permit Pledgor or any Subsidiary to register such securities for public sale
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under the Securities Act, or under applicable state securities laws, even if
Pledgor or such Subsidiary would agree to do so.
(b) Pledgor further agrees to do or cause to be done all such
other reasonable acts and things as may be necessary to make any sale or other
disposition of all or any portion of the Collateral valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales or dispositions, all at Pledgor's expense.
(c) Pledgor further agrees to indemnify and hold harmless Pledgee
and each Lender and their respective successors and assigns, officers,
directors, employees and agents, and any Person in control of any thereof, from
and against any loss, liability, claim, damage and expense, including, without
limitation, attorneys' fees and expenses (in this paragraph collectively called
the "Indemnified Liabilities"), under federal and state securities laws or
otherwise insofar as such loss, liability, claim, damage or expense (i) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, prospectus or offering
memorandum, any preliminary prospectus or preliminary offering memorandum, any
amendment or supplement to any thereof or any other writing prepared in
connection with the offer, sale or resale of all or any portion of the
Collateral (collectively, the "Disclosure Documents") unless such untrue
statement of material fact was provided by Pledgee or such Lender specifically
for inclusion therein, or (ii) arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated or necessary to
make the statements in any of the Disclosure Documents not misleading, such
indemnification to remain operative regardless of any investigation made by or
on behalf of Pledgee, any Lender and their respective successors and assigns,
officers, directors, employees and agents, or any Person in control of any
thereof. In connection with a public sale or other distribution, Pledgor shall
provide customary indemnification to any underwriters and their respective
successors and assigns, officers and directors, and each Person who controls any
such underwriter (within the meaning of the Securities Act). If and to the
extent that any of the foregoing undertakings in this paragraph may be
unenforceable for any reason, Pledgor agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The obligations of Pledgor under this
paragraph (c) shall survive the termination of this Agreement.
(d) Pledgor further agrees to waive any and all rights of
subrogation it may have against any Subsidiary upon the sale or other
disposition of all or any portion of the Collateral by Pledgee.
10. Further Assurances. Pledgor agrees that at any time and from
------------------
time to time upon the written request of Pledgee, Pledgor will execute and
deliver all stock powers, financing statements and other documents and do such
further acts and things as Pledgee may reasonably request consistent with the
provisions hereof in order to effect the purposes of this Agreement.
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11. Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. No Waiver; Cumulative Remedies. Pledgee shall not by any act,
------------------------------
delay, omission or otherwise be deemed to have waived any of its remedies
hereunder, and no waiver by Pledgee shall be valid unless in writing and signed
by Pledgee, on behalf of the Lenders, and then only to the extent therein set
forth. A waiver by Pledgee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which Pledgee would
otherwise have on any subsequent occasion. No course of dealing between Pledgor
and Pledgee or any Lender and no failure to exercise, nor any delay by Pledgee
in exercising any right, power or privilege hereunder or under the Credit
Agreement, on behalf of Lenders, shall impair such right or remedy or operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
13. Successors and Assigns. This Agreement and all obligations of
----------------------
Pledgor hereunder shall be binding upon the successors and assigns of Pledgor,
and shall, together with the rights and remedies of Pledgee and Lenders
hereunder, inure to the benefit of Pledgee and Lenders and their successors and
assigns, except that Pledgor shall not have the right to assign its rights or
obligations under this Agreement or any interest herein without the prior
written consent of Pledgee.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
--------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS (WITHOUT REFERENCE TO CONFLICTS OF LAW PRINCIPLES).
15. Termination. This Agreement and the Liens granted hereunder
-----------
shall terminate upon the full and complete performance and satisfaction of the
Liabilities (other than contingent indemnification obligations to the extent no
unsatisfied claim giving rise thereto has been asserted).
16. Possession of Collateral. Beyond the exercise of reasonable care
------------------------
to assure the safe custody of the Collateral in the physical possession of
Pledgee pursuant hereto, neither Pledgee nor any Lender, nor any nominee of any
of them, shall have any duty or liability to collect any sums due in respect of
the Collateral or to protect, preserve or exercise any rights pertaining to the
Collateral, and Pledgee, each Lender and any nominee thereof shall be relieved
of all responsibility for any portion of the Collateral surrendered to Pledgor.
17. Survival of Representations. All representations and warranties
---------------------------
of Pledgor contained in this Agreement shall survive the execution and delivery
of this Agreement.
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18. Taxes and Expenses. Pledgor will upon demand pay to Pledgee, for
------------------
the benefit of Lenders, (a) any taxes (excluding income taxes, franchise taxes
or other taxes levied on gross earnings, profits or the like) payable or ruled
payable by any federal, state or other governmental authority in respect of this
Agreement, together with interest and penalties, if any, and (b) all expenses,
including the fees and expenses of attorneys, accountants, consultants or other
experts and agents that Pledgee or Lenders may retain in connection with (i) the
administration of this Agreement, (ii) the custody, preservation or sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights and remedies of Pledgee or Lenders
hereunder or (iv) the failure of Pledgor to perform or observe any of the
provisions hereof.
19. Pledgee Appointed Attorney-In-Fact. Pledgor hereby irrevocably
----------------------------------
appoints Pledgee as Pledgor's attorney-in-fact, with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from time to time
in Pledgee's discretion, to take any action and to execute any instrument that
Pledgee deems reasonably necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation, to receive, endorse and collect
all instruments made payable to Pledgor representing any dividend, interest
payment or other distribution in respect of the Collateral and to give full
discharge for the same, when and to the extent permitted by this Agreement.
20. Notices. Unless otherwise specifically provided herein, any
-------
notice or other communication required or permitted to be given shall be in
writing addressed and delivered to the respective party as set forth in the
Credit Agreement. A notice not given as provided above shall, if it is in
writing, be deemed given if and when actually received by the party to whom
given.
21. Changes in Writing. No amendment, modification, termination or
------------------
waiver of any provision of this Agreement or consent to any departure by Pledgor
therefrom, shall in any event be effective without the written concurrence of
Pledgee and Pledgor, and then only to the extent specifically set forth in such
writing.
22. Headings. Section and subsection headings in this Agreement are
--------
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
23. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
24. Entire Agreement. This Agreement embodies the entire agreement
----------------
and understanding among Pledgor, Pledgee and Lenders and supersedes all prior
oral and written agreements and understandings among Pledgor, Pledgee and
Lenders relating to the subject matter hereof.
25. WAIVER OF JURY TRIAL. PLEDGOR, PLEDGEE AND EACH LENDER HEREBY
--------------------
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
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CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE
OTTER LOAN DOCUMENTS. PLEDGOR, PLEDGEE AND EACH LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH
HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. PLEDGOR, PLEDGEE AND EACH LENDER WARRANT AND REPRESENT THAT
EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
- Signature Page Follows -
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers on the date
first above written.
GRUBB & ELLIS MANAGEMENT SERVICES, INC., a
Delaware corporation
By: /s/ Brian Parker
---------------------------------------
Its: Brian Parker, Chief Financial Officer
& Executive Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Devon Russell
Its: Devon Russell, Vice President
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<PAGE>
EXHIBIT 10.3
PLEDGE AGREEMENT
----------------
THIS PLEDGE AGREEMENT (this "Agreement") made as of this 15/th/ day of
October, 1999 is between HMS, INC., a Texas corporation having its principal
place of business and chief executive office at 14785 Preston Road, 1000
Signature Place II, Dallas, Texas 75240 ("Pledgor"), and BANK OF AMERICA, N.A.,
a national banking association having an office at 231 South LaSalle Street,
Chicago, Illinois 60697 ("Pledgee"), as Administrative Agent on behalf of itself
and all Lenders (as hereinafter defined).
RECITALS:
WHEREAS, Grubb & Ellis Company, a Delaware corporation ("Borrower"),
has entered into a Credit Agreement of even date herewith (as the same may
hereafter be amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement") with Pledgee for the benefit of all lenders
thereunder ("Lenders"), and the Lenders from time to time as parties thereto;
and
WHEREAS, Borrower owns 100% of the issued and outstanding capital
stock of Pledgor; and
WHEREAS, Pledgor is the legal and beneficial owner of the issued and
outstanding capital stock described on Exhibit A hereto; and
WHEREAS, Borrower has received, and may hereafter receive, loans and
other financial accommodations from Lenders under the Credit Agreement, as a
result of which it has incurred, and expects simultaneously with the delivery of
this Agreement to, and will hereafter, incur, "Borrower Obligations" (as that
term is defined in the Credit Agreement) to Lenders; and
WHEREAS, as a Wholly Owned Subsidiary of Borrower, Pledgor will derive
substantial benefit from the loans and other financial accommodations to
Borrower; and
WHEREAS, Pledgor wishes to grant further security and assurance to
Pledgee, for itself and the benefit of all Lenders, in order to secure the
performance of the Borrower Obligations to Pledgee and the Lenders under the
Credit Agreement and to that effect to pledge to Pledgee, for itself and the
benefit of all Lenders, all of the present and future capital stock of the
Subsidiaries owned by Pledgor;
NOW, THEREFORE, in consideration of the foregoing recitals (which are
incorporated herein by this reference thereto as though fully set forth below)
and in order to induce Pledgee and Lenders to extend credit and make other
financial accommodations under the Credit Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees with Pledgee, on behalf of and for the
ratable benefit of Lenders, as follows:
<PAGE>
1. Defined Terms. Unless otherwise defined herein, all capitalized
-------------
terms used herein shall have the meanings given to such terms in the Credit
Agreement. Terms defined in the Illinois Uniform Commercial Code which are not
otherwise defined in this Agreement or in the Credit Agreement are used in this
Agreement as defined in the Illinois Uniform Commercial Code as in effect on the
date hereof.
2. Pledge. Pledgor hereby pledges, assigns, hypothecates, transfers,
------
delivers and grants to Pledgee, for itself and the benefit of all Lenders, a
first lien (other than Inchoate Tax Liens) on and security interest in (a) all
of the capital stock of each Domestic Subsidiary, which is a corporation, except
those Domestic Subsidiaries described in Schedule I hereto and the capital stock
----------
of each Foreign Subsidiary, which is a corporation (in no event to exceed 66% of
the capital stock such Foreign Subsidiary), except those Foreign Subsidiaries
described in Schedule I hereto, in each case now or hereafter owned by Pledgor
----------
(the "Pledged Shares"), (b) all other property hereafter delivered to Pledgor in
substitution for or in addition to the Pledged Shares, (c) any other property of
Pledgor, as described in Section 4 below or otherwise, now or hereafter
delivered by Pledgor to Pledgee, and (d) any and all proceeds thereof (all such
property being hereinafter referred to collectively as the "Collateral"), as
collateral security for (i) the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise) of all of the
Borrower Obligations, and (iii) the due and punctual payment and performance by
Pledgor of its obligations and liabilities under, arising out of, or in
connection with this Agreement including, without limitation, any taxes and
expenses payable pursuant to Section 18 hereof (all of the foregoing being
hereinafter referred to collectively as the "Liabilities"). Other than with
respect to those Subsidiaries listed on Schedule I hereto, all of the issued and
----------
outstanding capital stock of each Domestic Subsidiary and up to 66% of the
capital stock of each Foreign Subsidiary presently owned by Pledgor is
represented by stock certificates listed on Exhibit A hereto, which stock
certificates, together with undated stock powers duly executed in blank by
Pledgor, are being delivered to Pledgee simultaneously herewith. Pledgee shall
maintain possession and custody of the certificates representing the Pledged
Shares in accordance with Section 5 below and shall return the Pledged Shares in
accordance with said section.
3. Representations and Warranties of Pledgor. Pledgor represents and
-----------------------------------------
warrants to Pledgee, for the benefit of the Lenders, that:
(a) With respect to each Subsidiary the shares of which are
pledged hereunder, Exhibit A sets forth (i) the authorized capital stock of each
such Subsidiary other than those Subsidiaries listed on Schedule I hereto, (ii)
----------
the number of shares of capital stock of each such Subsidiary that are issued
and outstanding as of the date hereof and (iii) the number of shares of capital
stock of each such Subsidiary held in its treasury. Pledgor is the record and
beneficial owner of, and has good and marketable title to, the Pledged Shares,
and the Collateral is free and clear of all Liens except the Liens created by
this Agreement;
(b) Pledgor has full power, authority and legal right to execute
the pledge provided for herein and to pledge the Collateral to Pledgee, for the
ratable benefit of Lenders;
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(c) this Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding obligation of
Pledgor enforceable in accordance with its terms;
(d) Pledgor holds no options, warrants or other agreements with
respect to the issuance of additional shares of capital stock of any Subsidiary
and, to the best of Pledgor's knowledge, no options, warrants or other
agreements with respect to issuance of additional shares of capital stock of any
Subsidiary exist;
(e) the Pledged Shares have been duly and validly authorized and
issued, are fully paid and non-assessable and represent the issued and
outstanding shares of capital stock of each Restricted Subsidiary as described
in Exhibit A;
(f) no consent, approval or authorization of or designation or
filing with any federal, state or other governmental authority or regulatory
body on the part of Pledgor is required in connection with the execution,
delivery and performance of this Agreement, the granting of Liens in the
Collateral by Pledgor or the exercise by Pledgee, for the benefit of Pledgee and
Lenders, of the voting and other rights provided for in this Agreement;
(g) the execution, delivery and performance of this Agreement by
Pledgor will not violate any provision of (i) any applicable law or regulation,
(ii) any order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, (iii) the charter or by-laws of
Pledgor or any Subsidiary, (iv) any securities issued by Pledgor or any
Subsidiary, or (v) any mortgage, indenture, lease, contract, or other agreement,
instrument or undertaking to which Pledgor or any; Subsidiary is a party or
which purports to be binding upon Pledgor or such Subsidiary or upon any of
their respective assets, and will not result in the creation or imposition of
any Lien on any of the assets of Pledgor or any Subsidiary except as
contemplated by this Agreement; and
(h) the pledge, assignment and delivery of the Collateral
pursuant to this Agreement creates a valid first Lien on the Collateral in favor
of Pledgee, for the benefit of Pledgee and Lenders, subject to no other Liens
nor to any agreement purporting to grant to any third party any Liens in the
property or assets of Pledgor which would include the Collateral (in each case,
other than Liens permitted by the Credit Agreement.) Pledgor covenants and
agrees that it will defend all of the right, title and interest of Pledgee in
and to the Collateral, for the benefit of Pledgee and the Lenders, against the
claims and demands of all persons whomsoever other than Liens permitted by the
Credit Agreement.
4. Stock Dividends, Distributions, etc. If, while this Agreement
------------------------------------
is in effect, Pledgor shall become entitled to receive or shall receive any
stock certificate (including, without limitation, any certificate representing a
stock dividend or a stock distribution in connection with any reclassification,
increase or reduction of capital, or issued in connection with any
reorganization, merger or consolidation), or any options or rights, whether as
an addition to, in substitution for, or in exchange for any of the Pledged
Shares or otherwise, Pledgor agrees to
3
<PAGE>
accept the same as Pledgee's agent and to hold the same in trust for Pledgee,
and to deliver the same forthwith to Pledgee in the exact form received, with
the indorsement of Pledgor when necessary and/or appropriate undated stock
powers duly executed in blank, to be held by Pledgee as additional collateral
security for the Liabilities. In case any distribution of capital shall be made
to Pledgor on or in respect of the Pledged Shares or any property shall be
distributed to Pledgor upon or with respect to the Pledged Shares pursuant to
the recapitalization or reclassification of the capital of the issuer thereof or
pursuant to the reorganization, merger or consolidation thereof, the property so
distributed shall be delivered, to the extent permitted pursuant to the Credit
Agreement and provided no Event of Default exists and is continuing, to Pledgor
and will constitute additional collateral security for the Liabilities. Upon the
occurrence and during the continuance of an Event of Default and at the
direction of Pledgee at the direction of the Required Lenders, all sums of money
and property so paid or distributed shall be paid to Pledgee and applied in
accordance with the terms and provisions of the Credit Agreement.
5. Administration of Security. The following provisions shall govern
--------------------------
the administration of the Pledged Shares:
(a) So long as no Event of Default has occurred and is
continuing, Pledgor shall be entitled (subject to the other provisions hereof
and the Credit Agreement, including, without limitation, Section 8 below and
Section 8 of the Credit Agreement) (i) to vote or consent with respect to the
Pledged Shares and to otherwise exercise the incidents of ownership thereof in
any manner not inconsistent with this Agreement, the Credit Agreement or any of
the other Loan Documents; and (ii) to receive cash dividends or other
distributions in the ordinary course made in respect of the Pledged Shares.
Pledgor hereby grants to Pledgee or its nominee, for the ratable benefit of
Lenders, an irrevocable proxy to exercise all voting and corporate rights
relating to the Pledged Shares in any instance, including, without limitation,
to approve any merger involving any Subsidiary as a constituent corporation,
which proxy shall be exercisable immediately upon the occurrence of an Event of
Default and for so long as such Event of Default is continuing. After the
occurrence and during the continuance of an Event of Default and upon request of
Pledgee, Pledgor agrees to deliver to Pledgee such further evidence of such
irrevocable proxy or such further irrevocable proxies to vote the Pledged Shares
as Pledgee may request.
(b) Upon the occurrence and during the continuance of an Event of
Default, in the event that Pledgor, as record and beneficial owner of the
Pledged Shares, shall have received or shall have become entitled to receive any
cash dividends or other distributions in the ordinary course, Pledgor shall
deliver to Pledgee, and Pledgee shall be entitled to receive and retain, on
behalf of Pledgee and Lenders, all such cash or other distributions as
additional collateral security for the Liabilities; provided, however, that upon
-------- -------
such Event of Default being cured (provided that no part of the Borrower
Obligations shall have been accelerated pursuant to subsection 8.3 of the Credit
Agreement), Pledgee shall return such portion of any such cash dividends or
other distributions received and retained by Pledgee as have not been applied to
cure such Event of Default to Pledgor.
(c) Subject to any sale or other disposition by Pledgee of the
Pledged Shares or other property pursuant to this Agreement, upon full payment,
satisfaction and
4
<PAGE>
termination of all of the Liabilities (other than contingent indemnification
obligations to the extent no unsatisfied claim giving rise thereto has been
asserted) and the termination pursuant to Section 15 hereof of the Liens hereby
granted, the Pledged Shares and any other property then held as part of the
collateral security for the Liabilities in accordance with the provisions of
this Agreement shall be returned to Pledgor.
6. Rights of Pledgee. Neither Pledgee nor Lenders shall be liable
-----------------
for any failure to collect or realize upon the Liabilities or any collateral
security or guaranty therefor, or any part thereof, or for any delay in so
doing, nor shall Pledgee or any Lender be under any obligation to take any
action whatsoever with regard thereto. Any or all of the Collateral held by
Pledgee hereunder may, if an Event of Default has occurred and is continuing,
without notice, be registered in the name of Pledgee or its nominee, for the
benefit of Pledgee and the Lenders, and Pledgee or its nominee may thereafter
without notice exercise all voting and corporate rights at any meeting with
respect to a Subsidiary whose shares are pledged hereunder and exercise any and
all rights of conversion, exchange, subscription or any other rights, privileges
or options pertaining to any of the Pledged Shares, for the benefit of Pledgee
and Lenders, as if Pledgee or its nominee were the absolute owner thereof,
including, without limitation, the right to vote in favor of, and to exchange at
its discretion any and all of the Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment with respect to a
Subsidiary whose shares are pledged hereunder or upon the exercise by a
Subsidiary whose shares are pledged hereunder or Pledgee, on behalf of Pledgee
and Lenders, of any right, privilege or option pertaining to any of the
Collateral, and in connection therewith, to deposit and deliver any and all of
the Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as Pledgee may determine,
all without liability except to account for property actually received by
Pledgee, but Pledgee shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.
7. Remedies. Upon the occurrence and during the continuance of an
--------
Event of Default, Pledgee, on behalf of Pledgee and Lenders, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
Pledgor or any other Person (all and each of which demands, advertisements
and/or notices are hereby expressly waived), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give an option or options to purchase, contract to sell
or otherwise dispose of (including any disposition in connection with a merger
of a Subsidiary) and deliver the Collateral, or any part thereof, in one or more
portions at public or private sale or sales or transactions, at any exchange,
broker's board or at any of Pledgee's offices or elsewhere upon such terms and
conditions as Pledgee may deem advisable and at such prices as it may deem best,
for any combination of cash and/or securities or other property or on credit or
for future delivery without assumption of any credit risk, with the right to
Pledgee upon any such sale or sales, public or private, to purchase, on behalf
of Pledgee and Lenders, the whole or any part of the Collateral so sold free of
any right or equity of redemption in Pledgor, which right or equity of
redemption Pledgor hereby expressly waives and releases. Pledgee shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization, sale or disposition, after deducting all costs and expenses of
5
<PAGE>
every kind incurred therein or incidental to the safekeeping or otherwise of any
and all of the Collateral or in any way relating to the rights of Pledgee or
Lenders hereunder, including attorneys' fees and expenses, to the payment, in
whole or in part, of the Liabilities in such order (unless a court of competent
jurisdiction shall otherwise direct) as Pledgee may elect. Pledgor shall remain
liable for any deficiency remaining unpaid after such application. Only after
so paying over such net proceeds and after the payment by Pledgee of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Uniform Commercial Code of the State of Illinois, need
Pledgee account for the surplus, if any, to Pledgor. Pledgor agrees that
Pledgee need not give more than ten days' notice of the time and place of any
public sale or of the time after which a private sale or other intended
disposition is to take place and that such notice shall constitute commercially
reasonable notification of such matters. No notification need be given to
Pledgor if Pledgor has signed after default a statement renouncing any right to
notification of sale or other intended disposition. In addition to the rights
and remedies granted to Pledgee and Lenders in this Agreement and in any of the
other Loan Documents, Pledgee and Lenders shall have all the rights and remedies
of secured parties under the Uniform Commercial Code of the State of Illinois
and under any other applicable law. Pledgor further agrees to waive and agrees
not to assert any rights or privileges which it may acquire under Section 9-112
of the Uniform Commercial Code of the State of Illinois and Pledgor shall be
liable for the deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay the Liabilities in full.
8. No Disposition, Liens, etc. Except as expressly permitted
---------------------------
pursuant to the Credit Agreement, without the prior written consent of Pledgee,
Pledgor agrees that it will not sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, any of the Collateral, nor
create, incur or permit to exist any Lien (other than Inchoate Tax Liens) on any
of the Collateral, or any interest therein, or any proceeds thereof, except for
the Liens granted pursuant to this Agreement. Except as permitted under the
Credit Agreement, Pledgor agrees that it will not vote to enable, and will not
otherwise permit any Subsidiary to (a) issue any stock or other securities of
any nature in addition to or in exchange or substitution for the Pledged Shares
or (b) dissolve, liquidate, retire any of its capital stock, reduce its capital
or merge or consolidate with any other Person.
9. Sale of Pledged Shares. (a) Pledgor acknowledges that Pledgee may
----------------------
be unable to effect a public sale or disposition (including, without limitation,
any disposition in connection with a merger of a Subsidiary) of any or all the
Collateral by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Securities Act"), and applicable state securities laws,
but may be compelled to resort to one or more private sales or dispositions
thereof 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. Pledgor acknowledges
that any such private sale or disposition may result in prices and other terms
(including the terms of any securities or other property received in connection
therewith) less favorable to the seller than if such sale or disposition were a
public sale or disposition and, shall not be deemed commercially unreasonable
solely because such sale is a private sale. Pledgee shall be under no
obligation to delay a sale or disposition of any of the Collateral in order to
permit Pledgor or any Subsidiary to register such securities for public sale
6
<PAGE>
under the Securities Act, or under applicable state securities laws, even if
Pledgor or such Subsidiary would agree to do so.
(b) Pledgor further agrees to do or cause to be done all such
other reasonable acts and things as may be necessary to make any sale or other
disposition of all or any portion of the Collateral valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales or dispositions, all at Pledgor's expense.
(c) Pledgor further agrees to indemnify and hold harmless Pledgee
and each Lender and their respective successors and assigns, officers,
directors, employees and agents, and any Person in control of any thereof, from
and against any loss, liability, claim, damage and expense, including, without
limitation, attorneys' fees and expenses (in this paragraph collectively called
the "Indemnified Liabilities"), under federal and state securities laws or
otherwise insofar as such loss, liability, claim, damage or expense (i) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement, prospectus or offering
memorandum, any preliminary prospectus or preliminary offering memorandum, any
amendment or supplement to any thereof or any other writing prepared in
connection with the offer, sale or resale of all or any portion of the
Collateral (collectively, the "Disclosure Documents") unless such untrue
statement of material fact was provided by Pledgee or such Lender specifically
for inclusion therein, or (ii) arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated or necessary to
make the statements in any of the Disclosure Documents not misleading, such
indemnification to remain operative regardless of any investigation made by or
on behalf of Pledgee, any Lender and their respective successors and assigns,
officers, directors, employees and agents, or any Person in control of any
thereof. In connection with a public sale or other distribution, Pledgor shall
provide customary indemnification to any underwriters and their respective
successors and assigns, officers and directors, and each Person who controls any
such underwriter (within the meaning of the Securities Act). If and to the
extent that any of the foregoing undertakings in this paragraph may be
unenforceable for any reason, Pledgor agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The obligations of Pledgor under this
paragraph (c) shall survive the termination of this Agreement.
(d) Pledgor further agrees to waive any and all rights of
subrogation it may have against any Subsidiary upon the sale or other
disposition of all or any portion of the Collateral by Pledgee.
10. Further Assurances. Pledgor agrees that at any time and from
------------------
time to time upon the written request of Pledgee, Pledgor will execute and
deliver all stock powers, financing statements and other documents and do such
further acts and things as Pledgee may reasonably request consistent with the
provisions hereof in order to effect the purposes of this Agreement.
7
<PAGE>
11. Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. No Waiver; Cumulative Remedies. Pledgee shall not by any act,
------------------------------
delay, omission or otherwise be deemed to have waived any of its remedies
hereunder, and no waiver by Pledgee shall be valid unless in writing and signed
by Pledgee, on behalf of the Lenders, and then only to the extent therein set
forth. A waiver by Pledgee of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which Pledgee would
otherwise have on any subsequent occasion. No course of dealing between Pledgor
and Pledgee or any Lender and no failure to exercise, nor any delay by Pledgee
in exercising any right, power or privilege hereunder or under the Credit
Agreement, on behalf of Lenders, shall impair such right or remedy or operate as
a waiver thereof; nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided are cumulative and may be exercised singly or concurrently, and are not
exclusive of any rights or remedies provided by law.
13. Successors and Assigns. This Agreement and all obligations of
----------------------
Pledgor hereunder shall be binding upon the successors and assigns of Pledgor,
and shall, together with the rights and remedies of Pledgee and Lenders
hereunder, inure to the benefit of Pledgee and Lenders and their successors and
assigns, except that Pledgor shall not have the right to assign its rights or
obligations under this Agreement or any interest herein without the prior
written consent of Pledgee.
14. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND BE
--------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS (WITHOUT REFERENCE TO CONFLICTS OF LAW PRINCIPLES).
15. Termination. This Agreement and the Liens granted hereunder
-----------
shall terminate upon the full and complete performance and satisfaction of the
Liabilities (other than contingent indemnification obligations to the extent no
unsatisfied claim giving rise thereto has been asserted).
16. Possession of Collateral. Beyond the exercise of reasonable care
------------------------
to assure the safe custody of the Collateral in the physical possession of
Pledgee pursuant hereto, neither Pledgee nor any Lender, nor any nominee of any
of them, shall have any duty or liability to collect any sums due in respect of
the Collateral or to protect, preserve or exercise any rights pertaining to the
Collateral, and Pledgee, each Lender and any nominee thereof shall be relieved
of all responsibility for any portion of the Collateral surrendered to Pledgor.
17. Survival of Representations. All representations and warranties
---------------------------
of Pledgor contained in this Agreement shall survive the execution and delivery
of this Agreement.
8
<PAGE>
18. Taxes and Expenses. Pledgor will upon demand pay to Pledgee, for
------------------
the benefit of Lenders, (a) any taxes (excluding income taxes, franchise taxes
or other taxes levied on gross earnings, profits or the like) payable or ruled
payable by any federal, state or other governmental authority in respect of this
Agreement, together with interest and penalties, if any, and (b) all expenses,
including the fees and expenses of attorneys, accountants, consultants or other
experts and agents that Pledgee or Lenders may retain in connection with (i) the
administration of this Agreement, (ii) the custody, preservation or sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights and remedies of Pledgee or Lenders
hereunder or (iv) the failure of Pledgor to perform or observe any of the
provisions hereof.
19. Pledgee Appointed Attorney-In-Fact. Pledgor hereby irrevocably
----------------------------------
appoints Pledgee as Pledgor's attorney-in-fact, with full authority in the place
and stead of Pledgor and in the name of Pledgor or otherwise, from time to time
in Pledgee's discretion, to take any action and to execute any instrument that
Pledgee deems reasonably necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation, to receive, endorse and collect
all instruments made payable to Pledgor representing any dividend, interest
payment or other distribution in respect of the Collateral and to give full
discharge for the same, when and to the extent permitted by this Agreement.
20. Notices. Unless otherwise specifically provided herein, any
-------
notice or other communication required or permitted to be given shall be in
writing addressed and delivered to the respective party as set forth in the
Credit Agreement. A notice not given as provided above shall, if it is in
writing, be deemed given if and when actually received by the party to whom
given.
21. Changes in Writing. No amendment, modification, termination or
------------------
waiver of any provision of this Agreement or consent to any departure by Pledgor
therefrom, shall in any event be effective without the written concurrence of
Pledgee and Pledgor, and then only to the extent specifically set forth in such
writing.
22. Headings. Section and subsection headings in this Agreement are
--------
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
23. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
24. Entire Agreement. This Agreement embodies the entire agreement
----------------
and understanding among Pledgor, Pledgee and Lenders and supersedes all prior
oral and written agreements and understandings among Pledgor, Pledgee and
Lenders relating to the subject matter hereof.
25. WAIVER OF JURY TRIAL. PLEDGOR, PLEDGEE AND EACH LENDER HEREBY
--------------------
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
9
<PAGE>
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE
OTTER LOAN DOCUMENTS. PLEDGOR, PLEDGEE AND EACH LENDER ACKNOWLEDGE THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH
HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. PLEDGOR, PLEDGEE AND EACH LENDER WARRANT AND REPRESENT THAT
EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
- Signature Page Follows -
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers on the date
first above written.
HMS, INC., a Texas corporation
By: /s/ Brian Parker
------------------
Name: Brian Parker
Title: Chief Financial Officer &
Executive Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Devon Russell
------------------
Name: Devon Russell
Title: Vice President
<PAGE>
EXHBIT 10.4
- --------------------------------------------------------------------------------
GUARANTEE AND COLLATERAL AGREEMENT
made by
GRUBB & ELLIS COMPANY
and certain of its Subsidiaries
in favor of
BANK OF AMERICA, N.A.,
as Administrative Agent
Dated as of October 15, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 1. DEFINED TERMS..................................................................................... 1
1.1 Definitions....................................................................................... 1
-----------
1.2 Other Definitional Provisions..................................................................... 5
-----------------------------
SECTION 2. GUARANTEE......................................................................................... 5
2.1 Guarantee......................................................................................... 5
---------
2.2 Right of Contribution............................................................................. 6
---------------------
2.3 No Subrogation.................................................................................... 6
--------------
2.4 Amendments, etc. with respect to the Borrower Obligations......................................... 7
---------------------------------------------------------
2.5 Guarantee Absolute and Unconditional.............................................................. 7
------------------------------------
2.6 Reinstatement..................................................................................... 8
-------------
2.7 Payments.......................................................................................... 8
--------
SECTION 3. GRANT OF SECURITY INTEREST........................................................................ 8
SECTION 4. REPRESENTATIONS AND WARRANTIES.................................................................... 9
4.1 Representations in Credit Agreement............................................................... 9
-----------------------------------
4.2 Title; No Other Liens............................................................................. 9
---------------------
4.3 Perfected First Priority Liens.................................................................... 10
------------------------------
4.4 Chief Executive Office............................................................................ 10
----------------------
4.5 Inventory and Equipment........................................................................... 10
-----------------------
4.6 Farm Products..................................................................................... 10
-------------
4.7 Pledged Securities................................................................................ 10
------------------
4.8 Receivables....................................................................................... 11
-----------
4.9 Intellectual Property............................................................................. 11
---------------------
SECTION 5. COVENANTS......................................................................................... 11
5.1 Covenants in Credit Agreement..................................................................... 12
-----------------------------
5.2 Delivery of Instruments and Chattel Paper......................................................... 12
-----------------------------------------
5.3 Maintenance of Insurance.......................................................................... 12
------------------------
5.4 Payment of Obligations............................................................................ 12
----------------------
5.5 Maintenance of Perfected Security Interest; Further Documentation................................. 12
-----------------------------------------------------------------
5.6 Changes in Locations, Name, etc................................................................... 13
-------------------------------
5.7 Notices........................................................................................... 13
-------
5.8 Pledged Securities................................................................................ 14
------------------
5.9 Receivables....................................................................................... 15
-----------
5.10 Intellectual Property............................................................................. 15
---------------------
SECTION 6. REMEDIAL PROVISIONS............................................................................... 17
6.1 Certain Matters Relating to Receivables........................................................... 17
---------------------------------------
6.2 Communications with Obligors; Grantors Remain Liable.............................................. 17
----------------------------------------------------
6.3 Pledged Stock..................................................................................... 18
-------------
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
6.4 Proceeds to be Turned Over to Administrative Agent................................................ 19
--------------------------------------------------
6.5 Application of Proceeds........................................................................... 19
-----------------------
6.7 Registration Rights............................................................................... 20
-------------------
6.8 Waiver, Deficiency................................................................................ 21
------------------
SECTION 7. THE ADMINISTRATIVE AGENT.......................................................................... 22
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc....................................... 22
-----------------------------------------------------------
7.2 Duty of Administrative Agent...................................................................... 23
----------------------------
7.3 Execution of Financing Statements................................................................. 24
---------------------------------
7.4 Authority of Administrative Agent................................................................. 24
---------------------------------
SECTION 8. MISCELLANEOUS..................................................................................... 24
8.1 Amendments in Writing............................................................................. 24
---------------------
8.2 Notices........................................................................................... 24
-------
8.4 Enforcement Expenses; Indemnification............................................................. 25
-------------------------------------
8.5 Successors and Assigns............................................................................ 25
----------------------
8.6 Set-Off........................................................................................... 25
-------
8.7 Counterparts...................................................................................... 26
------------
8.8 Severability...................................................................................... 26
------------
8.9 Section Headings.................................................................................. 26
----------------
8.10 Integration....................................................................................... 26
-----------
8.11 GOVERNING LAW..................................................................................... 26
-------------
8.12 Submission To Jurisdiction; Waivers............................................................... 26
-----------------------------------
8.13 Acknowledgments................................................................................... 27
---------------
8.14 WAIVER OF JURY TRIAL.............................................................................. 27
--------------------
8.15 Additional Grantors............................................................................... 27
-------------------
8.16 Releases.......................................................................................... 28
--------
</TABLE>
ii
<PAGE>
SCHEDULES:
1 Notice Addresses of Guarantors
2 Description of Pledged Securities
3 Filings and Other Actions Required to Perfect Security Interests
4 Location of Jurisdiction of Organization and Chief Executive Office
5 Location of Inventory and Equipment
6 Intellectual Property
ANNEX:
1 Assumption Agreement
iii
<PAGE>
GUARANTEE AND COLLATERAL AGREEMENT
----------------------------------
This GUARANTEE AND COLLATERAL AGREEMENT, dated as of October 15, 1999, made
by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the "Grantors"), in favor of BANK OF
--------
AMERICA, N.A., as Administrative Agent (in such capacity, the "Administrative
--------------
Agent") for the banks and other financial institutions or entities (as more
- -----
specifically defined below, the "Lenders") from time to time parties to the
-------
Credit Agreement, dated as of even date herewith (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
----------------
among GRUBB & ELLIS COMPANY, a Delaware corporation (the "Borrower"), the
--------
Administrative Agent and the Lenders.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein:
WHEREAS, the Borrower is a member of an affiliated group of companies that
includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the other Grantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in related
businesses, and each Grantor will derive substantial direct and indirect benefit
from the making of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective extensions of credit to the Borrower under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the Administrative Agent, for itself and the benefit of all Lenders.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Administrative Agent, for itself
the benefit of all Lenders, as follows:
1
<PAGE>
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in
-----------
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of Illinois on the date hereof are used
herein as so defined: Accounts, Chattel Paper, Documents, Equipment, Farm
Products, Instruments and Inventory.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the same may
---------
be amended, supplemented or otherwise modified from time to time.
"Borrower Obligations": the collective reference to the unpaid
--------------------
principal of and interest on the Loans and Reimbursement Obligations and
all other obligations and liabilities of the Borrower (including, without
limitation, interest accruing at the then applicable rate provided in the
Credit Agreement after the maturity of the Loans and Reimbursement
Obligations and interest accruing at the then applicable rate provided in
the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) to the Administrative Agent or any
Lender (or, in the case of any Hedge Agreement referred to below, any
Affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit Agreement,
this Agreement, the other Loan Documents, any Letter of Credit or any Hedge
Agreement entered into by the Borrower with any Lender (or any Affiliate of
any Lender) or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest,
reimbursement obligations, guarantee obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that
are required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"Collateral": as defined in Section 3.
----------
"Collateral Account": any collateral account established by the
------------------
Administrative Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights arising under the laws of the United
----------
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished (including,
without limitation, those listed in Schedule 6), all registrations and
----------
recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) the right to
obtain all renewals thereof.
2
<PAGE>
"Copyright Licenses": any written agreement naming any Grantor as
------------------
licensor or licensee (including, without limitation, those listed in
Schedule 6), granting any right under any Copyright, including, without
----------
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"General Intangibles": all "general intangibles" as such term is
-------------------
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of Illinois on the date hereof and, in any event, including, without
limitation, with respect to any Grantor, all contracts, agreements,
instruments and indentures in any form, and portions thereof, to which such
Grantor is a party or under which such Grantor has any right, title or
interest or to which such Grantor or any property of such Grantor is
subject, as the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation, (i) all rights of such
Grantor to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of such Grantor to damages arising
thereunder and (iii) all rights of such Grantor to perform and to exercise
all remedies thereunder, in each case to the extent the grant by such
Grantor of a security interest pursuant to this Agreement in its right,
title and interest in such contract, agreement, instrument or indenture is
not prohibited by such contract agreement, instrument or indenture without
the consent of any other party thereto, would not give any other party to
such contract agreement, instrument or indenture the right to terminate its
obligations thereunder, or is permitted with consent if all necessary
consents to such grant of a security interest have been obtained from the
other parties thereto (it being understood that the foregoing shall not be
deemed to obligate such Grantor to obtain such consents); provided, that
--------
the foregoing limitation shall not affect, limit, restrict or impair the
grant by such Grantor of a security interest pursuant to this Agreement in
any Receivable or any money or other amounts due or to become due under any
such contract, agreement, instrument or indenture.
"Guarantor Obligations": with respect to any Guarantor, the
---------------------
collective reference to, without duplication, (i) the Borrower Obligations
and (ii) all obligations and liabilities of such Guarantor which may arise
under or in connection with this Agreement or any other Loan Document to
which such Guarantor is a party, in each case whether on account of
guarantee obligations, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that
are required to be paid by such Guarantor pursuant to the terms of this
Agreement or any other Loan Document).
"Guarantors": the collective reference to each Grantor other than the
----------
Borrower.
"Hedge Agreements": as to any Person, all interest rate swaps, caps
----------------
or collar agreements or similar arrangements entered into by such Person
providing for protection against fluctuations in interest rates or currency
exchange rates or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Intellectual Property": the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, the Copyrights,
3
<PAGE>
the Copyright Licenses, the Patents, the Patent Licenses, the Trademarks
and the Trademark Licenses, and all rights to sue at law or in equity for
any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made by any
-----------------
Grantor to the Borrower or any of its Subsidiaries.
"Issuers": the collective reference to each issuer of a Pledged
-------
Security.
"Illinois UCC": the Uniform Commercial Code as from time to time in
------------
effect in the State of Illinois.
"Obligations": (i) in the case of the Borrower, the Borrower
-----------
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States, any other
-------
country or any political subdivision thereof and all goodwill associated
therewith, all reissues and extensions thereof, including, without
limitation, any of the foregoing referred to in Schedule 6, (ii) all
----------
applications for letters patent of the United States or any other country
and all divisions, continuations and continuations-in-part thereof,
including, without limitation, any of the foregoing referred to in Schedule
--------
6, and (iii) all rights to obtain any reissues or extensions of the
-
foregoing.
"Patent License": all agreements, whether written or oral, providing
--------------
for the grant by or to any Grantor of any right to manufacture, use or sell
any invention covered in whole or in part by a Patent, including, without
limitation, any of the foregoing referred to in Schedule 6.
----------
"Pledged Notes": all promissory notes listed on Schedule 2, all
------------- ----------
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held by any Grantor (other than promissory
notes issued in connection with extensions of trade credit by any Grantor
in the ordinary course of business).
"Pledged Securities": the collective reference to the Pledged Notes
------------------
and the Pledged Stock.
"Pledged Stock": the shares of Capital Stock listed on Schedule 2,
------------- ----------
together with any other shares, stock certificates, options or rights of
any nature whatsoever in respect of the Capital Stock of any Person that
may be issued or granted to, or held by, any Grantor while this Agreement
is in effect; provided that Pledged Stock shall not include more than 66%
--------
of the issued and outstanding Capital Stock of any Foreign Subsidiary.
"Proceeds": all "proceeds" as such term is defined in Section 9-
--------
306(l) of the Uniform Commercial Code in effect in the State of Illinois on
the date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Securities, collections thereon
or distributions or payments with respect thereto.
4
<PAGE>
"Receivable": any right to payment for goods sold or leased or for
----------
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
--------------
"Trademarks": (i) all trademarks, trade names, corporate names,
----------
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including, without
limitation, any of the foregoing referred to in Schedule 6, and (ii) the
----------
right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
-----------------
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred to
in Schedule 6.
----------
1.2 Other Definitional Provisions. (a) The words "hereof', "herein",
-----------------------------
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
---------
unconditionally and irrevocably guarantees to the Administrative Agent, for
itself and the benefit of all Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under
5
<PAGE>
applicable federal and state laws relating to the insolvency of debtors (after
giving effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Section 2 or
affecting the rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
indefeasibly satisfied by payment in full, no Letter of Credit shall be
outstanding and the Commitments shall be terminated, notwithstanding that from
time to time during the term of the Credit Agreement the Borrower may be free
from any Borrower Obligations.
(e) No payment made by the Borrower, any Guarantor, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any Lender from the Borrower, any Guarantor, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor
hereunder which shall notwithstanding any such payment (other than any payment
made by such Guarantor in respect of the Borrower Obligations or any payment
received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letter of Credit shall be outstanding and the Commitments are
terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
---------------------
extent that a Guarantor shall have paid an amount hereunder which would, but for
this provision, render such Guarantor insolvent for purposes of state or federal
fraudulent conveyance laws, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder to the extent such
contribution would not render such other Guarantor insolvent. Each Guarantor's
right of contribution shall be subject to the terms and conditions of Section
2.3. The provisions of this Section 2.2 shall in no respect limit the
obligations and liabilities of any Guarantor to the Administrative Agent and the
Lenders, and each Guarantor shall remain liable to the Administrative Agent and
the Lenders for the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
--------------
hereunder or any set-off or application of funds of any Guarantor by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrower on
account of the Borrower Obligations are indefeasibly paid in full, no Letter of
Credit shall be
6
<PAGE>
outstanding and the Commitments are terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights at any time when all of the
Borrower Obligations shall not have been indefeasibly paid in full, such amount
shall be held by such Guarantor in trust for the Administrative Agent and the
Lenders, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Administrative Agent in
the exact form received by such Guarantor (duly indorsed by such Guarantor to
the Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
2.4 Amendments, etc. with respect to the Borrower Obligations. Each
---------------------------------------------------------
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender and any of the Borrower Obligations
continued, and the Borrower Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and the
Credit Agreement and the other Loan Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Lender for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither
the Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and
------------------------------------
all notice of the creation, renewal, extension or accrual of any of the Borrower
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Borrower Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Administrative Agent and the Lenders,
on the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 2. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or any of the Guarantors with
respect to the Borrower Obligations. Each Guarantor understands and agrees that
the guarantee contained in this Section 2 shall be construed as a continuing,
absolute and unconditional guarantee of payment, and not of collection, without
regard to (a) the validity or enforceability of the Credit Agreement or any
other Loan Document, any of the Borrower Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by the Administrative Agent or any Lender, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower
7
<PAGE>
or any other Person against the Administrative Agent or any Lender, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Borrower
Obligations, or of such Guarantor under the guarantee contained in this Section
2, in bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against the Borrower, any other Guarantor or any other Person or against
any collateral security or guarantee for the Borrower Obligations or any right
of offset with respect thereto, and any failure by the Administrative Agent or
any Lender to make any such demand, to pursue such other rights or remedies or
to collect any payments from the Borrower, any other Guarantor or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or
any Lender against any Guarantor. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
-------------
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
the Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervener or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments hereunder
--------
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the payment office of the Administrative Agent referred to in Section
11.2 of the Credit Agreement.
SECTION 3. GRANT OF SECURITY INTEREST
(a) Each Grantor hereby grants to the Administrative Agent, for
itself and for the benefit of all Lenders, a security interest in (and pledges
of ownership and other interests, as applicable) all of the following property
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Collateral"), as collateral security for the prompt
----------
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of such Grantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
8
<PAGE>
(c) all Documents;
(d) all Equipment (other than Equipment secured by a Lien permitted
pursuant to Sections 8.3(f), 8.3(g), 8.3(h) and 8.3(k) of the Credit
Agreement);
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
(i) all Pledged Securities;
(j) all books and records pertaining to the Collateral; and
(k) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing to the contrary, Collateral shall not include
ownership or other interests in the Persons listed in Schedule I hereto property
which is subject to an agreement that expressly prohibits the granting of a Lien
that is permitted under Section 8.3 of the Credit Agreement, or which would, as
a result of granting a Lien in such property, cause a default under any such
permitted Lien.
(b) To further secure the payment, performance and observance of the
Obligations of each Grantor hereunder, each Grantor hereby collaterally assigns
to Administrative Agent all of such Grantor's right, title and interest in,
under and to any Leases to which such Grantor is a party, except to the extent
that such collateral assignment, in and of itself, is prohibited by the terms of
such Lease or would constitute a default under such lease. This Assignment is
for collateral security purposes only. So long as no Event of Default has
occurred and is continuing, such Grantor shall have the right to retain, use and
enjoy all rights under each such Lease, including the right to use and occupy
the premises subject to the Lease.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to the Borrower thereunder, each Grantor hereby represents and warrants
to the Administrative Agent and each Lender that:
4.1 Representations in Credit Agreement. In the case of each Guarantor,
-----------------------------------
the representations and warranties set forth in Section 5 of the Credit
Agreement as they relate to such
9
<PAGE>
Guarantor or to the Loan Documents to which such Guarantor is a party, each of
which is hereby incorporated herein by reference, are true and correct, and the
Administrative Agent and each Lender shall be entitled to rely on each of them
as if they were fully set forth herein, provided that each reference in each
--------
such representation and warranty to the Borrower's knowledge shall, for the
purposes of this Section 4.1, be deemed to be a reference to such Guarantor's
knowledge.
4.2 Title; No Other Liens. Except for the security interest granted to
---------------------
the Administrative Agent for the benefit of the Lenders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Grantor owns each item of the Collateral free and clear of any
and all Liens or claims of others. No financing statement or other public
notice with respect to all or any part of the Collateral is on file or of record
in any public office, except such as have been filed in favor of the
Administrative Agent, for the benefit of the Lenders, pursuant to this Agreement
or as are permitted by the Credit Agreement or as relate to obligations being
paid on or about the date hereof (all of which obligations are being paid in
full on the Closing Date.)
4.3 Perfected First Priority Liens. The security interests granted
------------------------------
pursuant to this Agreement (a) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
----------
referred to on said Schedule, have been delivered to the Administrative Agent in
completed and duly executed form) will constitute valid, and to the extent liens
thereon can be perfected by the filings and actions specified on Schedule 3,
perfected security interests in all of the Collateral in favor of the
Administrative Agent, for the benefit of the Lenders, as collateral security for
such Grantor's Obligations, enforceable in accordance with the terms hereof
against all creditors of such Grantor and any Persons purporting to purchase any
Collateral from such Grantor and (b) are prior to all other Liens on the
Collateral in existence on the date hereof other than Liens permitted by the
Credit Agreement which have priority over the Liens on the Collateral by
operation of law and the Liens listed on Schedule 8.3(f) to the Credit
Agreement.
4.4 Chief Executive Office. On the date hereof, such Grantor's
----------------------
jurisdiction of organization and the location of such Grantor's chief executive
office or sole place of business are specified on Schedule 4.
----------
4.5 Inventory and Equipment. On the date hereof the Inventory and the
-----------------------
Equipment (other than mobile goods) are kept at the locations listed on Schedule
--------
5.
- -
4.6 Farm Products. None of the Collateral constitutes, or is the
-------------
Proceeds of, Farm Products.
4.7 Pledged Securities. (a) The shares of Pledged Stock pledged by such
------------------
Grantor hereunder constitute all the issued and outstanding shares of all
classes of the Capital Stock of each Subsidiary owned by such Grantor or, in
the case of any Subsidiary that is a Foreign Subsidiary, 66% of the issued and
outstanding shares of Capital Stock of such Subsidiary.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
10
<PAGE>
(c) Each of the Pledged Notes executed by Borrower or a Restricted
Subsidiary constitutes a legal, valid and binding obligation, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(d) Such Grantor is the record and beneficial owner of, and has good
and marketable title to, the Pledged Securities pledged by it hereunder, free of
any and all Liens or options in favor of, or claims of, any other Person, except
the security interest created by this Agreement and Liens not prohibited by the
Credit Agreement.
4.8 Receivables. (a) No amount payable to such Grantor under or in
-----------
connection with any Receivable is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Administrative Agent.
(b) The amounts represented by such Grantor to the Lenders from time
to time as owing to such Grantor in respect of the Receivables will at such
times be accurate in all material respects.
4.9 Intellectual Property. (a) Schedule 6 lists all material
--------------------- ----------
Intellectual Property owned by such Grantor in its own name on the date hereof.
(b) On the date hereof, all material Intellectual Property owned or
used by such Grantor is valid, subsisting, unexpired and enforceable, has not
been abandoned; and to the Grantor's knowledge, does not, and has not been
alleged to, infringe the intellectual property rights of any other Person.
(c) Except to the extent granted in the ordinary course of business,
on the date hereof none of the Intellectual Property owned or used by such
Grantor is the subject of any licensing or franchise agreement pursuant to which
such Grantor is the licensor or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question the validity of, or
such Grantor's rights in, any Intellectual Property owned or used by such
Grantor in any respect that is reasonably likely to have a Material Adverse
Effect.
(e) Except as set forth in Schedule 5.9 to the Credit Agreement, no
action or proceeding is pending, or, to the knowledge of such Grantor,
threatened, on the date hereof (i) seeking to limit, cancel or question the
validity of any material Intellectual Property owned or used by such Grantor or
such Grantor's ownership interest therein, and (ii) which is reasonably likely
to have a Material Adverse Effect on the value of any Intellectual Property
owned or used by such Grantor.
11
<PAGE>
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent and the
Lenders, that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Commitments shall have terminated:
5.1 Covenants in Credit Agreement. In the case of each Guarantor, such
-----------------------------
Guarantor shall take, or shall refrain from taking, as the case may be, each
action that is necessary to be taken or not taken, as the case may be, so that
no Default or Event of Default is caused by the failure to take such action or
to refrain from taking such action by such Guarantor or any of its Subsidiaries.
5.2 Delivery of Instruments and Chattel Paper. If any amount payable
-----------------------------------------
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument or Chattel Paper, such Instrument or Chattel Paper shall be
immediately delivered to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent, to be held as Collateral pursuant to
this Agreement.
5.3 Maintenance of Insurance. (a) Such Grantor will, or will cause
------------------------
Borrower to, comply with the terms and provisions of the Credit Agreement
governing the maintenance of insurance.
5.4 Payment of Obligations. Except to the extent otherwise expressly
----------------------
permitted by the Credit Agreement, such Grantor will pay and discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all taxes, assessments and governmental charges or levies imposed
upon the Collateral or in respect of income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if the amount or validity thereof is currently being
contested in good faith by appropriate proceedings, reserves in conformity with
GAAP with respect thereto have been provided on the books of such Grantor and
such proceedings could not reasonably be expected to result in the sale,
forfeiture or loss of any material portion of the Collateral or any interest
therein.
5.5 Maintenance of Perfected Security Interest; Further Documentation.
-----------------------------------------------------------------
(a) Such Grantor shall maintain the security interest created by this Agreement
as a perfected (to the extent perfected by the actions or filings described in
Schedule 3 hereto) security interest having at least the priority described in
- ----------
Section 4.3 and shall defend such security interest against the claims and
demands of all Persons whomsoever other than the holders of Liens permitted by
the Credit Agreement.
(b) Such Grantor will furnish to the Administrative Agent and the
Lenders from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral in each case as the Administrative Agent may reasonably request, all
in reasonable detail.
12
<PAGE>
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of such Grantor, such Grantor
will promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further actions as the Administrative
Agent may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or continuation
statements under the Uniform Commercial Code (or other similar laws) in effect
in any jurisdiction with respect to the security interests created hereby.
5.6 Changes in Locations, Name, etc. Such Grantor will not, except upon
-------------------------------
15 days' prior written notice to the Administrative Agent and delivery to the
Administrative Agent of (a) all additional executed financing statements and
other documents reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests provided for herein
and (b) if applicable, a written supplement to Schedule 5 showing any additional
----------
location at which Inventory or Equipment shall be kept:
(i) permit any of the Inventory or Equipment to be kept at a
location other than those listed on Schedule 5 (or such other location
----------
where appropriate filings have been made);
(ii) change the location of its chief executive office or sole place
of business from that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the Administrative Agent in
connection with this Agreement would become misleading.
5.7 Notices. Such Grantor will advise the Administrative Agent and the
-------
Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
adversely affect the ability of the Administrative Agent to exercise any of its
remedies hereunder; and
(b) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
5.8 Pledged Securities. (a) If such Grantor shall become entitled to
------------------
receive or shall receive any stock certificate (including, without limitation,
any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights in respect of
the Capital Stock of any Issuer, whether in addition to, in substitution of, as
a conversion of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Grantor shall accept the same as the agent of
the Administrative Agent and the Lenders, hold the same in trust for the
Administrative Agent and the Lenders and deliver the same forthwith to the
Administrative
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Agent in the exact form received, duly indorsed by such Grantor to the
Administrative Agent, if required, together with an undated stock power covering
such certificate duly executed in blank by such Grantor and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer shall be deemed to
be Dispositions and shall be treated in accordance with the terms and provisions
of the Credit Agreement. Notwithstanding anything to the contrary herein, in no
event shall any Grantor be required to pledge more than 66% of the outstanding
Capital Stock of any Foreign Subsidiary.
(b) To the extent prohibited by the Credit Agreement, such Grantor
will not (i) vote to enable, or take any other action to permit, any Issuer to
issue any stock or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or exchange for
any stock or other equity securities of any nature of any Issuer, (ii) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Pledged Securities or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement), (iii) create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Pledged Securities or Proceeds thereof, or any interest
therein, except for the security interests created by this Agreement and Liens
permitted pursuant to Section 8.3 of the Credit Agreement, or (iv) enter into
any agreement or undertaking (other than the Loan Documents) restricting the
right or ability of such Grantor or the Administrative Agent to sell, assign or
transfer any of the Pledged Securities or Proceeds thereof.
(c) Concurrently with the pledge of Pledged Stock in respect of any
Issuer that is a partnership or limited liability company, the relevant Grantor
will send to such Issuer written instructions confirming that such Pledged Stock
has been pledged to Administrative Agent and requesting such Issuer to deliver
to the Administrative Agent an acknowledgment in form and substance satisfactory
to Administrative Agent confirming that such Issuer has registered the pledge
effected by this Agreement on its books.
(d) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.8(a) with respect to the Pledged Securities issued by it and (iii) the terms
of Sections 6.3(c) and 6.7 shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 6.3(c) or 6.7 with
respect to the Pledged Securities issued by it.
5.9 Receivables. (a) Other than in the ordinary course of business
-----------
consistent with its past practice, such Grantor will not (i) grant any extension
of the time of payment of any Receivable, (ii) compromise or settle any
Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable, (iv) allow any
credit or discount whatsoever on any Receivable or (v) amend, supplement or
modify any Receivable in any manner that could adversely affect the value
thereof.
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(b) Such Grantor will deliver to the Administrative Agent a copy of
each material demand, notice or document received by it that questions or calls
into doubt the validity or enforceability of more than 5% of the aggregate
amount of the then outstanding Receivables of the Borrower and the Restricted
Subsidiaries taken as whole.
5.10 Intellectual Property. For so long as no Event of Default has
---------------------
occurred and is continuing, such Grantor shall protect and enhance the value of
all Intellectual Property in accordance with prudent business practices;
provided that at no time shall Borrower permit the tradename "Grubb & Ellis" to
- --------
be abandoned or altered in any manner. Upon the occurrence and during the
continuance of an Event of Default:
(a) Such Grantor (either itself or through its licensees) will (i)
continue to use each material Trademark now or hereafter owned or used by such
Grantor in order to maintain such material Trademark in full force free from any
claim of abandonment for non-use, (ii) maintain as in the past the quality of
products and services offered under such Trademark, (iii) use such Trademark
with the appropriate notice of registration and all other notices and legends
required by applicable Requirements of Law, (iv) not adopt or use any mark which
is confusingly similar or a colorable imitation of such material Trademark
unless the Administrative Agent, for itself and the benefit of all Lenders,
shall obtain a perfected security interest in such mark pursuant to this
Agreement, and (v) not (and not permit any licensee or sublicensee thereof to)
do any act or knowingly omit to do any act whereby such material Trademark may
become invalidated or impaired in any way.
(b) Such Grantor (either itself or through its licensees) will not do
any act, or omit to do any act, whereby any material Patent owned or used by
such Grantor may become forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through its licensees) (i) will
employ each material Copyright owned or used by such Grantor and (ii) will not
(and will not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any material portion of such Copyrights may
become invalidated or otherwise impaired. Such Grantor will not (either itself
or through its licensees) do any act whereby any material portion of such
Copyrights may fall into the public domain.
(d) Such Grantor (either itself or through licensees) will not do any
act that knowingly uses any material Intellectual Property owned or used by such
Grantor to infringe the intellectual property rights of any other Person.
(e) Such Grantor will notify the Administrative Agent and the Lenders
immediately if it knows, or has reason to know, that any application or
registration relating to any material Intellectual Property owned or used by
such Grantor may become forfeited, abandoned or dedicated to the public, or of
any adverse determination or development (including, without limitation, the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any court or tribunal in any country) regarding such Grantor's
ownership of, or the validity of, any material Intellectual Property owned or
used by such Grantor or such Grantor's right to register the same or to own and
maintain the same.
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(f) Whenever such Grantor, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any Intellectual Property with the United States Patent and Trademark Office,
the United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, such Grantor shall report such
filing to the Administrative Agent within five (5) Business Days after the last
day of the fiscal quarter in which such filing occurs. Upon request of the
Administrative Agent, such Grantor shall execute and deliver, and have recorded,
any and all agreements, instruments, documents, and papers as the Administrative
Agent may request to evidence the Administrative Agent's and the Lenders'
security interest in any Copyright, Patent or Trademark and the goodwill and
general intangibles of such Grantor relating thereto or represented thereby.
(g) Such Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United States Patent
and Trademark Office, the United States Copyright Office or any similar office
or agency in any other country or any political subdivision thereof, to maintain
and pursue each application (and to obtain the relevant registration) and to
maintain each registration of the material Intellectual Property, including,
without limitation, as to Trademarks, filing of applications for renewal,
affidavits of use and affidavits of incontestability and, as to Patents, paying
maintenance fees.
(h) In the event that any material Intellectual Property owned or
used by such Grantor is infringed, misappropriated or diluted by a third party,
such Grantor shall (i) take such actions as such Grantor shall reasonably deem
appropriate under the circumstances to protect such Intellectual Property and
(ii) if such Intellectual Property is of material economic value, promptly
notify the Administrative Agent after it learns thereof and sue for
infringement, misappropriation or dilution, to seek injunctive relief where
appropriate and to recover any and all damages for such infringement,
misappropriation or dilution.
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SECTION 6. REMEDIAL PROVISIONS
6.1 Certain Matters Relating to Receivables. (a) At any time and from
---------------------------------------
time to time after the occurrence and during the continuance of an Event of
Default, the Administrative Agent shall have the right to make test
verifications of the Receivables in any manner and through any medium that it
reasonably considers advisable, and each Grantor shall furnish all such
assistance and information as the Administrative Agent may require in connection
with such test verifications. At any time and from time to time after the
occurrence and during the continuation of an Event of Default, upon the
Administrative Agent's request and at the expense of the relevant Grantor, such
Grantor shall cause independent public accountants or others satisfactory to the
Administrative Agent to furnish to the Administrative Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Receivables. Notwithstanding anything else to the contrary contained herein, at
any time other than during the occurrence and continuation of an Event of
Default, at the expense of the Administrative Agent and the Lenders, (i) the
Administrative Agent shall have the right to make test verifications of the
Receivables in any manner and through any medium that it reasonably considers
advisable, and each Grantor shall furnish all such assistance and information as
the Administrative Agent may require in connection with such test verifications,
and (ii) upon the Administrative Agent's request such Grantor shall cause
independent public accountants or others satisfactory to the Administrative
Agent to furnish to the Administrative Agent reports showing reconciliations,
aging and test verifications of, and trial balances for, the Receivables.
(b) The Administrative Agent hereby authorizes each Grantor to
collect such Grantor's Receivables, subject to the Administrative Agent's
direction and control and the Administrative Agent may curtail or terminate said
authority at any time after the occurrence and during the continuance of an
Event of Default. At Administrative Agent's request, any payments of
Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any
event, within two Business Days) deposited by such Grantor in the exact form
received, duly endorsed by such Grantor to the Administrative Agent if required,
in a Collateral Account maintained under the sole dominion and control of the
Administrative Agent, subject to withdrawal by the Administrative Agent for the
account of the Lenders only as provided in Section 6.5, and (ii) until so turned
over, shall be held by such Grantor in trust for the Administrative Agent and
the Lenders, segregated from other funds of such Grantor. Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the deposit.
(c) At the Administrative Agent's request, each Grantor shall deliver
to the Administrative Agent all original and other documents evidencing, and
relating to, the agreements and transactions which gave rise to the Receivables,
including, without limitation, all original orders, invoices and shipping
receipts.
6.2 Communications with Obligors; Grantors Remain Liable. (a) The
----------------------------------------------------
Administrative Agent in its own name or in the name of others may at any time
after the occurrence and during the continuance of an Event of Default
communicate with obligors under the Receivables to verify
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with them to the Administrative Agent's satisfaction the existence, amount and
terms of any Receivables.
(b) Upon the request of the Administrative Agent at any time after
the occurrence and during the continuance of an Event of Default, each Grantor
shall notify obligors on the Receivables that the Receivables have been assigned
to the Administrative Agent for itself and the benefit of all Lenders and that
payments in respect thereof shall be made directly to the Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Grantor
shall remain liable under each of the Receivables to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Administrative Agent nor any Lender shall have any obligation or liability under
any Receivable (or any agreement giving rise thereto) by reason of or arising
out of this Agreement or the receipt by the Administrative Agent or any Lender
of any payment relating thereto, nor shall the Administrative Agent or any
Lender be obligated in any manner to perform any of the obligations of any
Grantor under or pursuant to any Receivable (or any agreement giving rise
thereto), to make any payment, to make any inquiry as to the nature or the
sufficiency of any payment received by it or as to the sufficiency of any
performance by any party thereunder, to present or file any claim, to take any
action to enforce any performance or to collect the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
6.3 Pledged Stock. (a) Unless an Event of Default shall have occurred
-------------
and be continuing and the Administrative Agent shall have given notice to the
relevant Grantor of the Administrative Agent's intent to exercise its
corresponding rights pursuant to Section 6.3(b), each Grantor shall be permitted
to receive all cash dividends paid in respect of the Pledged Stock and all
payments made in respect of the Pledged Notes, in each case paid in the normal
course of business of the relevant Issuer and consistent with past practice, to
the extent permitted in the Credit Agreement, and to exercise all voting and
corporate rights with respect to the Pledged Securities; provided, however, that
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no vote shall be cast or corporate right exercised or other action taken which
would be inconsistent with or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to the
Obligations in such order as the Administrative Agent may determine, and (ii)
any or all of the Pledged Securities shall be registered in the name of the
Administrative Agent or its nominee, and the Administrative Agent or its nominee
may thereafter exercise (x) all voting, corporate and other rights pertaining to
such Pledged Securities at any meeting of shareholders of the relevant Issuer or
Issuers or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged Securities as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Securities upon the merger, consolidation reorganization, recapitalization
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or other fundamental change in the corporate structure of any Issuer, or upon
the exercise by any Grantor or the Administrative Agent of any right, privilege
or option pertaining to such Pledged Securities, and in connection therewith,
the right to deposit and deliver any and all of the Pledged Securities with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and condition as the Administrative Agent may determine), all without
liability except to account for property actually received by it, but the
Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the Administrative Agent.
6.4 Proceeds to be Turned Over to Administrative Agent. If an Event of
--------------------------------------------------
Default shall occur and be continuing, in addition to the rights of the
Administrative Agent and the Lenders specified in Section 6.1 with respect to
payments of Receivables, all Proceeds received by any Grantor consisting of
cash, checks and other near-cash items shall be held by such Grantor for the
Administrative Agent and the Lenders and shall, forthwith upon receipt by such
Grantor and upon the request of the Administrative Agent and the direction of
the Required Lenders, be turned over to the Administrative Agent in the exact
form received by such Grantor (duly indorsed by such Grantor to the
Administrative Agent, if required). All Proceeds received by the Administrative
Agent hereunder shall be held by the Administrative Agent in a Collateral
Account maintained under its sole dominion and control. All Proceeds while held
by the Administrative Agent in a Collateral Account (or by such Grantor in trust
for the Administrative Agent and the Lenders) shall continue to be held as
collateral security for all the Obligations and shall not constitute payment
thereof until applied as provided in Section 6.5.
6.5 Application of Proceeds. If an Event of Default shall have occurred
-----------------------
and be continuing, the Administrative Agent shall apply all or any part of
Proceeds held in any Collateral Account in payment of the Obligations in such
order as the Administrative Agent may elect. Any balance of such Proceeds
remaining after the Obligations shall have been paid in full, no Letters of
Credit shall be outstanding and the Commitments shall have terminated shall be
paid over to the Borrower or to whomsoever may be lawfully entitled to receive
the same.
6.6 Code and Other Remedies. If an Event of Default shall occur and be
-----------------------
continuing, the Administrative Agent, on behalf of the Lenders, may exercise, in
addition to all other rights and remedies granted to them in this Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Illinois UCC
or any other applicable law. Without limiting the generality of the foregoing,
the Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law
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referred to below) to or upon any Grantor or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Administrative Agent or any Lender or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. The Administrative Agent or any Lender shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in any Grantor, which right
or equity is hereby waived and released. Each Grantor further agrees, at the
Administrative Agent's request, to assemble the Collateral and make it available
to the Administrative Agent at places which the Administrative Agent shall
reasonably select, whether at such Grantor's premises or elsewhere. The
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 6.6, after deducting all reasonable costs and expenses
of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Administrative Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the Administrative
Agent may elect, and only after such application and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(l)(c) of the Illinois UCC, need the
Administrative Agent account for the surplus, if any, to any Grantor. To the
extent permitted by applicable law, each Grantor waives all claims, damages and
demands it may acquire against the Administrative Agent or any Lender arising
out of the reasonable exercise by them of any rights hereunder. If any notice of
a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition.
6.7 Registration Rights. (a) Each Grantor recognizes that the
-------------------
Administrative Agent may be unable to effect a public sale of any or all the
Pledged Stock, by reason of certain prohibitions contained in the Securities Act
and applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of purchasers
which 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 Grantor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner. The Administrative Agent shall be under no obligation to delay a sale
of any of the Pledged Stock for the period of time necessary to permit the
Issuer thereof to register such securities for public sale under the Securities
Act, or under applicable state securities laws, even if such Issuer would agree
to do so.
(b) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged
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Stock pursuant to this Section 6.7 valid and binding and in compliance with any
and all other applicable Requirements of Law. Each Grantor further agrees that a
breach of any of the covenants contained in this Section 6.7 will cause
irreparable injury to the Administrative Agent and the Lenders, that the
Administrative Agent and the Lenders have no adequate remedy at law in respect
of such breach and, as a consequence, that each and every covenant contained in
this Section 6.7 shall be specifically enforceable against such Grantor, and
such Grantor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense that no
Event of Default has occurred under the Credit Agreement.
6.8 Waiver, Deficiency. Each Grantor waives and agrees not to assert
------------------
any rights or privileges which it may acquire under Section 9-112 of the
Illinois UCC. Each Grantor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to
pay its Obligations and the Attorney Costs incurred by the Administrative Agent
or any Lender to collect such deficiency.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc. (a)
-----------------------------------------------------------
Each Grantor hereby irrevocably constitutes and appoints the Administrative
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Grantor and in the name of such Grantor or in its
own name, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, each
Grantor hereby gives the Administrative Agent the power and right, on behalf of
such Grantor, without notice to or assent by such Grantor, to do any or all of
the following:
(i) in the name of such Grantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Administrative Agent for the purpose of
collecting any and all such moneys due under any Receivable or with respect
to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver,
and have recorded, any and all agreements, instruments, documents and
papers as the Administrative Agent may request to evidence the
Administrative Agent's and the Lenders' security interest in such
Intellectual Property and the goodwill and general intangibles of such
Grantor relating thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
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(iv) execute, in connection with any sale provided for in Section 6.6
or 6.7, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Administrative Agent or as the Administrative
Agent shall direct; (2) ask or demand for, collect, and receive payment of
and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (3)
sign and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect
of any Collateral; (5) defend any suit, action or proceeding brought
against such Grantor with respect to any Collateral; (6) settle, compromise
or adjust any such suit, action or proceeding and, in connection therewith,
give such discharges or releases as the Administrative Agent may deem
appropriate; (7) assign any Copyright, Patent or Trademark (along with the
goodwill of the business to which any such Copyright, Patent or Trademark
pertains), throughout the world for such term or terms, on such conditions,
and in such manner, as the Administrative Agent shall in its sole
discretion determine; and (8) generally, sell, transfer, pledge and make
any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems necessary to
protect, preserve or realize upon the Collateral and the Administrative
Agent's and the Lenders' security interests therein and to effect the
intent of this Agreement, all as fully and effectively as such Grantor
might do.
Anything in this Section 7.1(a) to the contrary notwithstanding, the
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 7.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement and shall use its best efforts to
provide notice to Grantor of such action.
(c) The expenses of the Administrative Agent incurred in connection
with actions undertaken as provided in this Section 7.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due Base Rate Loans under the Credit Agreement, from the
date of payment by the Administrative Agent to the date reimbursed by the
relevant Grantor, shall be payable by such Grantor to the Administrative Agent
on demand.
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(d) Each Grantor hereby ratifies all that said attorneys shall
reasonably and lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until this Agreement is terminated and the security
interests created hereby are released.
7.2 Duty of Administrative Agent. The Administrative Agent's sole duty
----------------------------
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Illinois UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, any Lender nor any of their respective officers,
directors, employees or agents shall be liable for failure to demand, collect or
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Administrative Agent and the Lenders hereunder are solely to
protect the Administrative Agent's and the Lenders' interests in the Collateral
and shall not impose any duty upon the Administrative Agent or any Lender to
exercise any such powers. The Administrative Agent and the Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7.3 Execution of Financing Statements. Pursuant to Section 9-402 of the
---------------------------------
Illinois UCC and any other applicable law, each Grantor authorizes the
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the
Administrative Agent under this Agreement and the execution and delivery of
deposit account agreements in form and substance satisfactory to Administrative
Agent that perfect Administrative Agent's security interest in each Grantor's
deposit accounts to the extent permitted under applicable law. A photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement or other filing or recording document or instrument for filing or
recording in any jurisdiction.
7.4 Authority of Administrative Agent. Each Grantor acknowledges that
---------------------------------
the rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, voting right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Agreement shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Grantors, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and no Grantor shall be under any
obligation or entitlement to make any inquiry respecting such authority.
23
<PAGE>
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing. None of the terms or provisions of this
---------------------
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 11.1 of the Credit Agreement.
8.2 Notices. All notices, requests and demands to or upon the
-------
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in Section 11.2 of the Credit Agreement; provided that any such
--------
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
----------
8.3 No Waiver by Course of Conduct, Cumulative Remedies. Neither the
---------------------------------------------------
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 8.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
8.4 Enforcement Expenses; Indemnification. (a) To the same extent as
-------------------------------------
the Borrower would be required to do so pursuant to Section 11.5 of the Credit
Agreement, each Guarantor agrees to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses incurred in collecting
against such Guarantor under the guarantee contained in Section 2 or otherwise
enforcing or preserving any rights under this Agreement and the other Loan
Documents to which such Guarantor is a party, including, without limitation, the
fees and disbursements of counsel to each Lender and of counsel to the
Administrative Agent.
(b) To the same extent as the Borrower would be required to do so
pursuant to Section 11.5 of the Credit Agreement, each Guarantor agrees to pay,
and to save the Administrative Agent and the Lenders harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and all
stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement to the
same extent as the Borrower would be required to do so pursuant to Section 11.5
of the Credit Agreement.
24
<PAGE>
(d) The agreements in this Section 8.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
8.5 Successors and Assigns. This Agreement shall be binding upon the
----------------------
successors and assigns of each Grantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; provided
--------
that no Grantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
8.6 Set-Off. Each Grantor hereby irrevocably authorizes the
-------
Administrative Agent and each Lender at any time and from time to time without
notice to such Grantor or any other Grantor, any such notice being expressly
waived by each Grantor, to set-off and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such Lender
to or for the credit or the account of such Grantor, or any part thereof in such
amounts as the Administrative Agent or such Lender may elect, against and on
account of the obligations and liabilities of such Grantor to the Administrative
Agent or such Lender hereunder and claims of every nature and description of the
Administrative Agent or such Lender against such Grantor, in any currency,
whether arising hereunder, under the Credit Agreement any other Loan Document or
otherwise, as the Administrative Agent or such Lender may elect, whether or not
the Administrative Agent or any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Administrative Agent and each Lender shall notify such Grantor
promptly of any such set-off and the application made by the Administrative
Agent or such Lender of the proceeds thereof, provided that the failure to give
--------
such notice shall not affect the validity of such set-off and application. The
rights of the Administrative Agent and each Lender under this Section 8.6 are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Lender may have.
8.7 Counterparts. This Agreement may be executed by one or more of the
------------
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
8.8 Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating 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.
8.9 Section Headings. The Section headings used in this Agreement are
----------------
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
8.10 Integration. This Agreement and the other Loan Documents represent
-----------
the agreement of the Grantors, the Administrative Agent and the Lenders with
respect to the subject
25
<PAGE>
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender relative
to subject matter hereof and thereof not expressly set forth or referred to
herein or in the other Loan Documents.
8.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
-------------
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS WITHOUT
REGARD FOR ITS CONFLICTS OF LAW PRINCIPLES.
8.12 Submission To Jurisdiction; Waivers. Each Grantor and the
-----------------------------------
Administrative Agent hereby irrevocably and unconditionally:
(a submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of Illinois, the courts of the United States of America for the
Northern District of Illinois, and appellate courts from any thereof;
(b consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 8.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
8.13 Acknowledgments. Each Grantor hereby acknowledges that:
---------------
(a it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Grantor arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the
26
<PAGE>
Grantors, on the one hand, and the Administrative Agent and Lenders, on the
other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Grantors and the Lenders.
8.14 WAIVER OF JURY TRIAL. EACH GRANTOR, EACH LENDER AND THE
--------------------
ADMINISTRATIVE AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15 Additional Grantors. Each Subsidiary of the Borrower that is
-------------------
required to become a party to this Agreement pursuant to Section 7.9(c) of the
Credit Agreement shall become a Grantor for all purposes of this Agreement upon
execution and delivery by such Subsidiary of an Assumption Agreement in the form
of Annex 1 hereto.
8.16 Releases. (a) At such time as the Loans, the Reimbursement
--------
Obligations and the other Obligations shall have been paid in full, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created hereby, and this
Agreement and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors. At
the request and sole expense of any Grantor following any such termination, the
Administrative Agent shall deliver to such Grantor any Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Grantor such
documents (including, without limitation, UCC termination statements) as such
Grantor shall reasonably request to evidence such termination.
(b If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement or
is subject to a Lien permitted pursuant to any or all of the Sections 8.3(g),
8.3(h) and/or 8.3(k), then the Administrative Agent, at the request and sole
expense of such Grantor, shall execute and deliver to such Grantor all releases
or other documents reasonably necessary or desirable for the release of the
Liens created hereby on such Collateral, including, without limitation,
amendments to UCC financing statements. At the request and sole expense of the
Borrower, a Guarantor shall be released from its obligations hereunder in the
event that all the Capital Stock of such Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Borrower shall have delivered to the Administrative Agent, at
- --------
least ten Business Days prior to the date of the proposed release, a written
request for release identifying the relevant Guarantor and the terms of the sale
or other disposition in reasonable detail, including the price thereof and any
expenses in connection therewith, together with a certification by the Borrower
stating that such transaction is in compliance with the Credit Agreement and the
other Loan Documents.
27
<PAGE>
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
- Signature Page Follows -
28
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
GRUBB & ELLIS COMPANY, a Delaware corporation
By: /s/ Brian Parker
Title: Chief Financial Officer & Executive Vice
President
GRUBB & ELLIS COLORADO, INC., a California
corporation
By: /s/ Brian Parker
Title: Chief Financial Officer & Executive Vice
President
GRUBB & ELLIS NEW YORK, INC., a New York
corporation
By: /s/ Brian Parker
Title: Senior Vice President & Chief Financial
Officer
GRUBB & ELLIS OF MICHIGAN, INC., a Michigan
corporation
By: /s/ Brian Parker
Title: Chief Financial Officer & Executive Vice
President
GRUBB & ELLIS OF OREGON, INC., a Washington
corporation
By: /s/ Brian Parker
Title: Senior Vice President & Chief Financial
Officer
GRUBB & ELLIS AFFILIATES, INC., a Delaware
corporation
By: /s/ Brian Parker
Title: Chief Financial Officer & Executive Vice
President
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
GRUBB & ELLIS EUROPE, INC., a California
corporation
By: /s/ Brian Parker
Title: Senior Vice President & Chief Financial
Officer
GRUBB & ELLIS MORTGAGE GROUP, INC., a California
corporation
By: /s/ Brian Parker
Title: Senior Vice President & Chief Financial
Officer
GRUBB & ELLIS MANAGEMENT SERVICES, INC., a
Delaware corporation
By: /s/ Brian Parker
Title: Chief Financial Officer & Executive Vice
President
GRUBB & ELLIS MANAGEMENT SERVICES OF COLORADO,
INC., a Colorado corporation
By: /s/ Brian Parker
Title: Senior Vice President & Chief Financial
Officer
GRUBB & ELLIS MANAGEMENT SERVICES OF MICHIGAN,
INC., a Michigan corporation
By: /s/ Brian Parker
Title: Chief Financial Officer & Executive Vice
President
LANDAUER REALTY GROUP, INC., a Florida corporation
By: /s/ Brian Parker
Title: Senior Vice President & Chief Financial
Officer
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee and
Collateral Agreement to be duly executed and delivered as of the date first
above written.
HSM, INC., a Texas corporation
By: /s/ Brian Parker
Title: Senior Vice President & Chief Financial
Officer
<PAGE>
EXHIBIT 10.5
COLLATERAL TRADEMARK SECURITY AGREEMENT
---------------------------------------
THIS COLLATERAL TRADEMARK SECURITY AGREEMENT ("Security Agreement") made as
of the 15/th/ day of October, 1999 by GRUBB & ELLIS COMPANY, a Delaware
corporation, having its principal office at 2215 Sanders Road, Suite 400,
Northbrook, Illinois 60062 ("Borrower") in favor of BANK OF AMERICA, N.A., a
national banking association, as administrative agent (in such capacity
"Administrative Agent"), having an office at 231 South LaSalle Street, Chicago,
Illinois 60697 for itself and the benefit of the banks and other financial
institutions or entities (the "Lenders") from time to time parties to the Credit
Agreement of even date herewith (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Borrower,
Administrative Agent and the Lenders.
W I T N E S S E T H:
WHEREAS, Lenders and Borrower have entered into the Credit Agreement
providing for Lenders to make certain Loans and extend other financial
accommodations to Borrower (Capitalized terms used but not otherwise defined
herein shall have the meaning given such terms in the Credit Agreement.); and
WHEREAS, it is a condition precedent to the making of the Loans under the
Credit Agreement by Lenders that Borrower shall have granted the security
interest and made the collateral assignment contemplated by this Security
Agreement;
NOW, THEREFORE, in consideration of the premises and in order to induce
Lenders to make Loans under the Credit Agreement, Borrower hereby agrees with
Administrative Agent and its successors, transferees and assigns as follows:
1. Grant of Security Interest. To secure the prompt and complete payment,
--------------------------
observance and performance of all of the Borrower Obligations, Borrower hereby
grants, bargains, assigns, mortgages, pledges, sells and creates a security
interest in and transfers and conveys the same to Administrative Agent, and its
successors, transferees and assigns, for itself and the benefit of the Lenders,
as and by way of a first mortgage and security interest having priority over all
other security interests, with power of sale as hereinafter provided, to the
extent permitted by law, with respect to all of the following property of
Borrower, whether now owned or existing or hereafter acquired or arising
(collectively, the "Collateral"):
(a) all of Borrower's rights, title and interests in its
trademarks and trademark registrations and all rights and interests
under trademark license agreements, trade names and trademark
applications for which registrations have been issued or applied for
in the United States Patent and Trademark Office, or used in the
United States or any state, territory or possession thereof,
including, without limitation, the trademarks, trademark registrations
and applications listed
<PAGE>
on Annex A attached hereto and made a part hereof and the trademark
-------
license agreements (both as licensee and licensor), other than those
trademark license agreements with independently owned and operated
companies with whom Grantor or its Subsidiaries has entered into
commercial real estate brokerage affiliation agreements, listed on
Annex B attached hereto and made a part hereof and (i) all renewals
-------
thereof, (ii) all income, royalties, damages and payments now or
hereafter due and/or payable under and with respect thereto,
including, without limitation, payments under all licenses entered
into in connection therewith and damages and payments for past or
future infringements thereof but excluding attorneys' fees and court
costs payable to Borrower in respect thereto, (iii) the right to sue
for past, present and future infringements thereof, and (iv) all
rights corresponding thereto throughout the world (all of the
foregoing trademark, trademark registrations, and interests under
trademark license agreements, trade names and applications, together
with the items described in clauses (i) through (iv) in this
-----------
subparagraph (a), are sometimes hereinafter individually and/or
----------------
collectively referred to as the "Trademarks"); and
(b) the goodwill of Borrower's business connected with the
Trademarks.
2. Collateral Assignment. Notwithstanding the terms and provisions of
---------------------
Section 1 above, this grant shall be for collateral purposes only. Unless an
Event of Default shall have occurred and be continuing, Borrower shall retain
the right to use the Collateral, for Borrower's own benefit and account. Upon
the occurrence and during the continuance of any Event of Default, Borrower's
rights to the Collateral as set forth in this paragraph shall terminate
automatically without any requirement of notice to Borrower of such termination,
and the Administrative Agent shall thereupon have, in addition to all other
rights and remedies given it by this Agreement, those allowed by the federal
laws of the United States and the rights and remedies of a secured party under
the Uniform Commercial Code as enacted in any jurisdiction in which any of the
Collateral may be located.
3. Restrictions on Future Agreements. Borrower agrees that during the
---------------------------------
existence and continuation of an Event of Default and until all Borrower
Obligations shall have been satisfied in full and the Credit Agreement shall
have been terminated, Borrower will not, without Administrative Agent's prior
written consent, abandon any Trademark or enter into any agreement, except with
Borrower's Affiliates, including, without limitation, any license agreement,
which is inconsistent with Borrower's obligations under this Security Agreement
if such actions would materially adversely affect the fair market value of the
Collateral or the benefits of this Security Agreement granted to Administrative
Agent including, without limitation, the priority or perfection of the security
interest granted herein or the remedies of Administrative Agent hereunder, and
Borrower further agrees that during the existence and continuation of an Event
of Default it will not take any action, or permit any action to be taken by
others subject to its control, including licensees, or fail to take any action,
which would affect the validity or enforcement of the rights transferred or
granted to Administrative Agent under this Security Agreement and any such
agreement or action if it shall take place shall be null and void and of no
effect whatsoever.
2
<PAGE>
4. New Trademarks. Borrower represents and warrants that the Trademarks
--------------
listed on Annex A and the license agreements listed on Annex B constitute all of
------- -------
the Trademarks and applications now owned by or licensed to or by Borrower for
which registrations have been issued or applied for in the United States Patent
and Trademark Office. If, before the Borrower Obligations have been satisfied
in full and the Credit Agreement terminated, Borrower shall (i) obtain rights to
any new trademarks, trademark registrations or applications or trade names used
in the United States or any state, territory or possession thereof, or (ii)
become entitled to the benefit of any trademark application, trademark,
trademark registration or trade name used in the United States or any state,
territory or possession thereof, the provisions of Section 1 above shall
---------
automatically apply thereto and Borrower shall give to Administrative Agent
prompt written notice thereof. Borrower hereby authorizes Administrative Agent
to modify this Security Agreement by amending Annex A and Annex B to include any
------- -------
future trademarks, trademark registrations, trademark applications, trade names
and license agreements which are Trademarks, as applicable, under Section 1
---------
above or under this Section 4.
---------
5. Additional Representations and Warranties. Borrower hereby represents,
-----------------------------------------
warrants, covenants and agrees that:
(a) Except as otherwise provided herein or in the Credit Agreement,
including, without limitation, dispositions of Collateral in connection
with dispositions of assets permitted under the Credit Agreement, it is and
will continue to be the owner of all right, title and interest in the
Collateral so long as the Trademarks shall continue in force, free from any
lien or security interest in favor of any Person except for the security
interest granted to Administrative Agent.
(b) It has the full right and power to grant the security interest in
the Collateral made hereby.
(c) Except to its Affiliates, it has made no previous assignment,
transfer or agreements in conflict herewith or constituting a present or
future assignment, transfer, or encumbrance on any of the Collateral except
for license agreements to use such Trademarks granted to licensees
described on Annex B hereto.
-------
(d) (i) There is no financing statement or other document or
instrument now signed or on file in any public office covering any part of
the Collateral, except those showing Administrative Agent as secured party,
and so long as any Borrower Obligations remain outstanding under the Credit
Agreement or the Credit Agreement has not terminated, and (ii) it will not
execute, and it shall not permit there to be on file in any public office,
any such financing statement or other document or instruments, except
financing statements on file or to be filed in favor of Administrative
Agent.
(e) Subject to any limitations stated therein or in connection
therewith, all information furnished to Administrative Agent or the other
Lenders concerning the Collateral and proceeds thereof, for the purpose of
obtaining credit or an extension of
3
<PAGE>
credit, is, or will be at the time the same is furnished, accurate and
correct in all material respects.
(f) To the best of Borrower's knowledge and belief after due inquiry,
no material infringement or unauthorized use presently is being made of any
of the Trademarks which would materially adversely affect the fair market
value of the Collateral or the benefits of this Security Agreement granted
to Administrative Agent including, without limitation, the priority or
perfection of the security interest granted herein or the remedies of
Administrative Agent hereunder.
6. Royalties; Terms. Borrower hereby agrees that any rights to use
----------------
granted hereunder by Administrative Agent and its successors, transferees and
assigns with respect to all Collateral as described above shall be worldwide (to
the extent Borrower has such rights) and without any liability for royalties or
other related charges from Administrative Agent or Lenders, ratably, to
Borrower. The term of the assignments of security interests granted herein
shall extend until the earlier of (i) the expiration or termination of each of
the Trademarks assigned hereunder or (ii) all Borrower Obligations have been
paid in full and the Credit Agreement has been terminated.
7. Administrative Agent's Right to Inspect. Administrative Agent shall
---------------------------------------
have the right, upon reasonable notice and from time to time, to inspect
Borrower's premises and to examine Borrower's books, records and operations.
During the existence and continuation of an Event of Default, Borrower agrees
not to sell or assign its interest in, or grant any license under, any of the
Collateral without the prior written consent of Administrative Agent. Unless
Administrative Agent reasonably determines that to do so would be adverse to its
interests, Administrative Agent will give Borrower reasonable advance notice and
make any inspections during Borrower's normal business hours.
8. Release of Security Interest.
----------------------------
(a) This Security Agreement is made for collateral purposes only.
Upon payment in full of all Borrower Obligations and termination of the
Credit Agreement, Administrative Agent shall, at Borrower's sole cost and
expense, execute and deliver to Borrower all termination statements,
assignments and other instruments as may be necessary or proper to re-vest
in Borrower full title to the Collateral granted hereby, subject to any
disposition thereof which may have been made by Administrative Agent
pursuant hereto or pursuant to the Credit Agreement.
(b) Upon any sale, assignment, lease or other disposition of all or
any part of the Collateral permitted by the Credit Agreement or in
connection with the sale, assignment, lease or other disposition of assets
permitted by the Credit Agreement, with application of the proceeds thereof
made in accordance with the Credit Agreement, Administrative Agent
acknowledges and agrees that the security interest in the Collateral
granted hereby shall be released and that it shall execute and deliver to
Borrower all termination statements, assignments and other documents and
instruments as may be
4
<PAGE>
necessary or desirable to fully release the security interest in such
Collateral granted hereby.
9. Duties of Borrower. During the existence and continuation of an Event
------------------
of Default Borrower agrees: (a) Borrower shall have the duty (i) to prosecute
diligently any trademark application that is part of the Trademarks pending as
of the date hereof or thereafter until all Borrower Obligations shall have been
paid in full and the Credit Agreement shall have been terminated, (ii) to make
application on Trademarks as appropriate and (iii) to preserve and maintain all
rights in trademark applications, trademarks, trade names, interests under
trademark license agreements and trademark registrations that are part of the
Trademarks, the fair market value of the Collateral, in each case to the extent
such items are still used or useful in the business of Borrower, or the benefits
of this Security Agreement granted to Administrative Agent including, without
limitation, the priority or perfection of the security interest granted herein
or the remedies of Administrative Agent hereunder; (b) any expenses incurred in
connection with such applications shall be borne by Borrower; (c) Borrower
agrees to retain an experienced trademark attorney approved by Administrative
Agent for the filing and prosecution of all such applications and other
proceedings at the time of such filing of prosecution; and (d) Borrower shall
not abandon any right to file a trademark application or any pending trademark
application without the consent of Administrative Agent.
If Borrower fails to comply with any of the foregoing duties,
Administrative Agent may do so in Borrower's name to the extent permitted by
law, but at Borrower's expense, and Borrower hereby agrees to reimburse
Administrative Agent in full for all expenses, including the reasonable fees and
disbursements of counsel incurred by Administrative Agent in protecting,
defending and maintaining the Collateral, which counsel may be the employee of
the Administrative Agent.
In the event that Borrower shall fail to pay when due any fees required to
be paid by it hereunder, or shall fail to discharge any lien or security
interest prohibited hereby, or shall fail to comply with any other duty
hereunder, Administrative Agent may, but shall not be required to, pay, satisfy,
discharge or bond the same for the account of Borrower, and all moneys so paid
out shall be Borrower Obligations repayable on demand, together with interest at
the rate of interest applicable to Loans under the Credit Agreement.
Borrower further agrees that for so long as no Event of Default exists
Borrower will at all times maintain, preserve and protect the Collateral to the
extent consistent with prudent and reasonable business practices.
10. Remedies; Right to Sue. Upon the occurrence and during the
----------------------
continuance of an Event of Default, Administrative Agent's remedies shall be as
set forth in Section 6.6 of that certain Guaranty and Collateral Agreement of
even date herewith by and among, inter alia, Borrower and Administrative Agent.
In addition to the foregoing, upon the occurrence and during the continuance of
an Event of Default, Administrative Agent and its successors, transferees and
assigns and shall have the right, but shall in no way be obligated, to bring
suit in their own name to enforce the Trademarks, and any licenses thereunder,
and, if Administrative Agent or any such
5
<PAGE>
other party shall commence any such suit, Borrower shall, at the request of
Administrative Agent or such other party, do any and all lawful acts and execute
any and all proper documents required by Administrative Agent or such other
party in aid of such enforcement and Borrower shall promptly, upon demand,
reimburse and indemnify Administrative Agent or such other party for all costs
and expenses incurred by Administrative Agent or such other party in the
exercise of their rights under this Section 10.
----------
11. Waivers. No course of dealing between Borrower and Administrative
-------
Agent or any of their respective successors, transferees and assigns, nor any
failure to exercise, nor any delay in exercising, on the part of Administrative
Agent or any such other party, any right, power or privilege hereunder or under
the Credit Agreement 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.
12. Severability. The provisions of this Security Agreement are
------------
severable, and if any clause or provision shall be held invalid and
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 of this Security
Agreement in any jurisdiction.
13. Modification. This Security Agreement cannot be altered, amended or
------------
modified in any way, except as specifically provided in Section 4 hereof or by a
writing signed by the parties hereto.
14. Cumulative Remedies; Power of Attorney; Effect on Credit Agreement.
------------------------------------------------------------------
All of the rights and remedies of Administrative Agent, the other Lenders and
their successors, transferees and assigns with respect to the Collateral,
whether established hereby or by the Credit Agreement, or by any other
agreements or by law shall be cumulative and may be exercised singularly or
concurrently. Borrower hereby authorizes Administrative Agent to make,
constitute and appoint any officer or agent of Administrative Agent as
Administrative Agent may select, in its sole discretion, as Borrower's true and
lawful attorney-in-fact, with power (i) at any time after the occurrence of an
Event of Default, to endorse Borrower's name on all applications, documents,
papers and instruments necessary or desirable for Administrative Agent in the
use of the Collateral, or to grant or issue any exclusive or non-exclusive
license under the Collateral to anyone, or to assign, pledge, convey or
otherwise transfer title in or dispose of the Collateral to anyone free and
clear of any encumbrance upon title thereof created after the date of this
Security Agreement, and (ii) at any time and from time to time to take any other
actions with respect to the Collateral as Administrative Agent reasonably deems
in its best interests. Administrative Agent hereby ratifies all that such
attorney-in-fact shall lawfully do or cause to be done by virtue hereof. This
power of attorney, being coupled with an interest, shall be irrevocable until
all Borrower Obligations shall have been paid in full and the Credit Agreement
has been terminated. Borrower acknowledges and agrees that this Security
Agreement is not intended to limit or restrict in any way the rights and
remedies of Administrative Agent, the other Lenders or their successors,
transferees and assigns under the Credit Agreement but rather is intended to
facilitate the exercise of such rights and remedies. Administrative Agent and
such other parties shall have, in addition
6
<PAGE>
to all other rights and remedies given it or them by the terms of this Security
Agreement, all rights and remedies allowed by law and the rights and remedies of
a secured party under the Uniform Commercial Code as enacted in any jurisdiction
in which the Trademarks may be located. Recourse to security will not be
required at any time.
15. Care of Collateral. Administrative Agent shall be deemed to have
------------------
exercised reasonable care in the custody and preservation of the Collateral if
it takes such action for that purpose as Borrower shall request in writing, but
failure of Administrative Agent to comply with any such request shall not of
itself be deemed a failure to exercise reasonable care, and no failure of
Administrative Agent to preserve or protect any rights with respect to the
Collateral against prior parties, or to do any act with respect to preservation
of the Collateral not so requested by Borrower shall be deemed a failure to
exercise reasonable care in the custody or preservation of the Collateral unless
such failure is the result of gross negligence or willful misconduct.
16. Certain Rights Regarding Collateral and Borrower Obligations.
------------------------------------------------------------
Administrative Agent may, upon the occurrence and during the continuance of an
Event of Default, without notice to Borrower, take all or any of the following
actions: (a) transfer all or any part of the Collateral into the name of
Administrative Agent or its nominee, with or without disclosing that such
Collateral is subject to the lien and security interest hereunder, (b) notify
the parties obligated on any of the Collateral to make payment to Administrative
Agent of any amounts due or to become due hereunder, (c) enforce collection of
any of the Collateral by suit or otherwise, and surrender, release or exchange
all or any part thereof, or compromise or extend or renew for any period
(whether or not longer than the original period) any obligations of any nature
of any party with respect thereto and (d) take control of any proceeds of the
Collateral. Administrative Agent may, furthermore, from time to time, whether
before or after any of the Borrower Obligations shall become due and payable,
without notice to Borrower, take all or any of the following actions: (a) retain
or obtain a security interest in any property, in addition to the Collateral, to
secure any of the Borrower Obligations, (b) retain or obtain the primary or
secondary liability of any party or parties, in addition to Borrower with
respect to any of the Borrower Obligations, (c) extend or renew for any period
(whether or not longer than the original period) or exchange any of the Borrower
Obligations or release or compromise any obligation of any nature of any party
with respect thereto, (d) surrender, release or exchange all or any part of any
property, in addition to the Collateral, securing any of the Borrower
Obligations, or compromise or extend or renew for any period (whether or not
longer than the original period) any obligations of any nature of any party with
respect to any such property, and (e) resort to the Collateral for payment of
any of the Borrower Obligations whether or not it shall have resorted to any
other property securing the Borrower Obligations or shall have proceeded against
any party primarily or secondarily liable on any of the Borrower Obligations.
17. Binding Effect; Benefits. This Security Agreement shall be binding
------------------------
upon Borrower and its respective successors and assigns, and shall inure to the
benefit of Administrative Agent and its respective successors, transferees and
assigns.
7
<PAGE>
18. Governing Law. This Security Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Illinois as further
provided in Section 11.11 of the Credit Agreement.
19. Notice. Whenever it is provided herein that any notice, demand,
------
request, consent, approval, declaration or other communication shall or may be
given to or served upon either of the parties by the other, or whenever either
of the parties desires to give or serve upon the other any communication with
respect to this Security Agreement, each such notice, demand, request, consent,
approval, declaration or other communication shall be in writing and shall be
delivered in accordance with the provisions of the Credit Agreement.
20. Consent to Jurisdiction; Waiver of Jury Trial. To induce
---------------------------------------------
Administrative Agent to accept this Security Agreement, Borrower irrevocably
agrees that this Security Agreement incorporates herein Section 11.12 of the
Credit Agreement, with respect to submission to jurisdiction and Section 11.14
of the Credit Agreement, with respect to waiver of jury trial.
[signature page follows]
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Security Agreement as of the day first above written.
GRUBB & ELLIS COMPANY, a Delaware
corporation
By: /s/ Brian Parker
------------------------------------
Name: Brian Parker
Title: Chief Financial Officer & Executive
Vice President
Address: 2215 Sanders Road, Suite 400
Northbrook, IL 60062
Attention: General Counsel
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent
By: /s/ Devon Russell
------------------------------------
Name: Devon Russell
Title: Vice President
Address: 100 North Tyron St.,
NC-1-007-13-06
Charlotte, NC 28255
Attention: W. Thomas Barnett
<PAGE>
STATE OF Illinois )
----------
) ss.:
COUNTY OF Cook )
-----
The foregoing Collateral Trademark Security Agreement was executed and
acknowledged before me this 15/th/ day of October, 1999, by Brian Parker
---------------------,
personally known to me to be the Executive VP/CFO of Grubb & Ellis
---------------------------
Company, a Delaware corporation, on behalf of such corporation.
(SEAL)
/s/ Rebecca L. Foley
--------------------------------------------
Notary Public
Cook County, Illinois
--------------- --------------------
My Commission expires:
9/28/02
--------------------------------------------
<PAGE>
STATE OF ___________ )
) ss.:
COUNTY OF _________ )
The foregoing Collateral Trademark Security Agreement was executed and
acknowledged before me this 15/th/ day of October, 1999, by Devon Russell
--------------------,
personally known to me to be the Vice President Bank of America, N.A., a
--------------
national banking association, as Administrative Agent, on behalf of such Bank.
(SEAL)
Rebecca L. Foley
-------------------------------------
Notary Public
Cook County, Illinois
------- --------------
My Commission expires:
9/28/02
------------------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND> This schedule contains summary financial information extracted from
the Condensed Consolidated Financial Statements and is qualified in its entirety
by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 8,869
<SECURITIES> 0
<RECEIVABLES> 10,260
<ALLOWANCES> 2,689
<INVENTORY> 0
<CURRENT-ASSETS> 25,652
<PP&E> 40,599
<DEPRECIATION> 20,309
<TOTAL-ASSETS> 83,738
<CURRENT-LIABILITIES> 25,495
<BONDS> 0
0
0
<COMMON> 198
<OTHER-SE> 48,331
<TOTAL-LIABILITY-AND-EQUITY> 83,738
<SALES> 0
<TOTAL-REVENUES> 95,452
<CGS> 0
<TOTAL-COSTS> 48,176
<OTHER-EXPENSES> 41,515
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 192
<INCOME-PRETAX> 5,569
<INCOME-TAX> 2,228
<INCOME-CONTINUING> 3,341
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,341
<EPS-BASIC> 0.17
<EPS-DILUTED> 0.16
</TABLE>
