<PAGE>
Exhibit (b)(1)
________________________________________________________________________________
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 31, 2000
Among
GRUBB & ELLIS COMPANY
VARIOUS FINANCIAL INSTITUTIONS,
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent,
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
as Syndication Agent
and
BANK OF AMERICA, N.A.,
as Administrative Agent
Arranged By
BANC OF AMERICA SECURITIES LLC
Sole Lead Arranger and Sole Book Manager
________________________________________________________________________________
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TABLE OF CONTENTS
<TABLE>
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Page
<S> <C> <C>
SECTION 1. DEFINITIONS................................................. 1
1.1 Defined Terms............................................... 1
1.2 Other Definitional Provisions............................... 23
1.3 Reallocation of Percentages and Revolving Loans............. 24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS............................. 24
2.1 Commitments................................................. 24
2.2 Procedure for Borrowing.................................... 26
SECTION 3. LETTERS OF CREDIT........................................... 27
3.1 L/C Commitment.............................................. 27
3.2 Procedure for Issuance of Letter of Credit.................. 27
3.3 Commissions, Fees and Other Charges......................... 28
3.4 L/C Participants............................................ 28
3.5 Reimbursement Obligation of the Borrower.................... 29
3.6 Obligations Absolute........................................ 30
3.7 Letter of Credit Payments................................... 30
3.8 Applications................................................ 30
SECTION 4. GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT...................................... 31
4.1 Commitment Fees, etc........................................ 31
4.2 Termination or Reduction of Commitments..................... 31
4.3 Prepayments................................................. 32
4.4 Application of Prepayments of Term Loans.................... 33
4.5 Conversion and Continuation Options......................... 33
4.6 Minimum Amounts and Maximum Number of Eurodollar Tranches... 34
4.7 Interest Rates and Payment Dates............................ 34
4.8 Computation of Interest and Fees............................ 35
4.9 Inability to Determine Interest Rate........................ 35
4.10 Pro Rata Treatment and Payments............................. 36
4.11 Requirements of Law......................................... 37
4.12 Taxes....................................................... 38
4.13 Indemnity................................................... 39
4.14 Change of Lending Office.................................... 40
4.15 Replacement of Lenders under Certain Circumstances.......... 40
SECTION 5. REPRESENTATIONS AND WARRANTIES.............................. 40
5.1 Financial Condition......................................... 41
5.2 No Change................................................... 41
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<TABLE>
<S> <C> <C>
5.3 Corporate Existence; Compliance with Law.................... 41
5.4 Corporate Power; Authorization; Enforceable Obligations..... 41
5.5 No Legal Bar................................................ 42
5.6 No Material Litigation...................................... 42
5.7 No Default.................................................. 42
5.8 Ownership of Property; Liens................................ 42
5.9 Intellectual Property....................................... 42
5.10 Taxes....................................................... 42
5.11 Federal Regulations......................................... 43
5.12 Labor Matters............................................... 43
5.13 ERISA....................................................... 43
5.14 Investment Company Act; Other Regulations................... 44
5.15 Subsidiaries................................................ 44
5.16 Subsidiary Restrictions..................................... 44
5.17 Use of Proceeds............................................. 44
5.18 Environmental Matters....................................... 44
5.19 Accuracy of Information, etc................................ 45
5.20 Security Documents.......................................... 45
5.21 Solvency.................................................... 46
SECTION 6. EFFECTIVENESS............................................... 46
6.1 Effectiveness............................................... 46
6.2 Conditions to Each Extension of Credit...................... 48
SECTION 7. AFFIRMATIVE COVENANTS....................................... 48
7.1 Financial Statements........................................ 48
7.2 Certificates; Other Information............................. 49
7.3 Payment of Obligations...................................... 50
7.4 Conduct of Business and Maintenance of Existence, etc....... 50
7.5 Maintenance of Property; Insurance.......................... 51
7.6 Inspection of Property; Books and Records; Discussions...... 51
7.7 Notices..................................................... 51
7.8 Compliance with Laws........................................ 52
7.9 Additional Collateral, etc.................................. 52
7.10 Interest Rate Protection.................................... 54
7.11 Insurance................................................... 54
SECTION 8. NEGATIVE COVENANTS.......................................... 54
8.1 Financial Condition Covenants............................... 54
8.2 Limitation on Indebtedness.................................. 54
8.3 Limitation on Liens......................................... 56
8.4 Limitation on Fundamental Changes........................... 57
8.5 Limitation on Sale of Assets................................ 57
8.6 Limitation on Dividends; Restricted Payments................ 58
</TABLE>
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<TABLE>
<S> <C> <C>
8.7 Guaranties.................................................. 58
8.8 Limitation on Investments, Loans and Advances............... 58
8.9 Subsidiaries, Partnerships, Joint Ventures and Restricted
Investments................................................. 59
8.10 Limitation on Transactions with Affiliates.................. 60
8.11 Limitation on Payments and Modifications of Debt
Instruments, etc............................................ 60
8.12 Limitation on Sales and Leasebacks.......................... 61
8.13 Limitation on Changes in Fiscal Periods..................... 61
8.14 Limitation on Negative Pledge Clauses....................... 61
8.15 Limitation on Restrictions on Subsidiary Distributions...... 61
8.16 Limitation on Lines of Business............................. 61
SECTION 9. EVENTS OF DEFAULT........................................... 61
SECTION 10. THE ADMINISTRATIVE AGENT.................................... 65
10.1 Appointment and Authorization; "Administrative Agent"....... 65
10.2 Delegation of Duties........................................ 65
10.3 Exculpatory Provisions...................................... 66
10.4 Reliance by Administrative Agent............................ 66
10.5 Notice of Default........................................... 67
10.6 Independent Credit Decision................................. 67
10.7 Indemnification of Administrative Agent..................... 68
10.8 Administrative Agent in its Individual Capacity............. 68
10.9 Successor Administrative Agent.............................. 69
10.10 Withholding Tax............................................. 69
10.11 Collateral Matters.......................................... 70
SECTION 11. MISCELLANEOUS............................................... 71
11.1 Amendments and Waivers...................................... 71
11.2 Notices..................................................... 72
11.3 No Waiver; Cumulative Remedies.............................. 72
11.4 Survival of Representations and Warranties.................. 73
11.5 Payment of Expenses and Taxes............................... 73
11.6 Successors and Assigns; Participants and Assignments........ 73
11.7 Adjustments; Set-off........................................ 76
11.8 Counterparts................................................ 76
11.9 Severability................................................ 77
11.10 Integration................................................. 77
11.11 Governing Law............................................... 77
11.12 Submission To Jurisdiction: Waivers......................... 77
11.13 Acknowledgments............................................. 77
11.14 WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION............ 78
11.15 Confidentiality............................................. 78
11.16 Amendment and Restatement................................... 79
11.17 Other Agents................................................ 79
</TABLE>
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SCHEDULES
1.1A Mortgaged Property
1.1B Commitments
1.1C Executive Officers and Directors of the Borrower
2.1(f) Amortization of Term Loans
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 Borrowing Notice
A-2 Form of Conversion/Continuation Notice
B Form of Compliance Certificate
C Copy 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 Note
G-2 Form of Swingline Loan Note
H Form of Confirmation
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<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as
---------
of December 31, 2000 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"), LASALLE BANK NATIONAL ASSOCIATION, as documentation agent, AMERICAN
-------
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as syndication agent, and BANK OF
AMERICA, N.A. ("Bank of America"), as administrative agent (in such capacity,
---------------
the "Administrative Agent").
--------------------
WHEREAS, the Borrower, various financial institutions and Bank of
America, as administrative agent, have entered into a Credit Agreement dated as
of October 15, 1999 (the "Existing Agreement");
------------------
WHEREAS, the parties hereto have agreed to amend and restate the
Existing Agreement so as to, among other things, (a) add a term loan facility
and (b) amend certain covenants and various other provisions of the Existing
Agreement; and
WHEREAS, the parties hereto intend that this Agreement and the
documents executed in connection herewith not effect a novation of the
obligations under the Existing Agreement, but merely a restatement of and, where
applicable, an amendment to the terms governing such obligations;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Existing Agreement is amended and restated in its entirety, and the
parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms: As used in this Agreement, the following terms
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shall have the following meanings:
"Acquired Pro Forma EBITDA" means, for any period, the EBITDA
-------------------------
attributable during such period (i) to any Person, in the case of an Acquisition
of all or substantially all of the capital stock or equity of such Person, or
(ii) to any assets of a Person, in the case of an Acquisition of all or
substantially all of the assets of such Person, in each case in clauses (i) and
-----------
(ii) above, acquired in connection with a Permitted Acquisition to the extent
----
that the Administrative Agent, in its reasonable discretion, deems such EBITDA
to be appropriate given all the facts and circumstances surrounding such
Permitted Acquisition.
"Acquisition" means (i) the acquisition of all or substantially all of
-----------
the assets of another Person or of a business or division of another Person, or
of the capital stock or other equity
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interests of a Person unaffiliated with the Borrower and its Subsidiaries or
(ii) the merger, consolidation or amalgamation with one or more other Persons.
"Acquisition Indebtedness" means Indebtedness which is (i) a liability
------------------------
on the balance sheet of the Borrower as determined in accordance with GAAP,
incurred by a Loan Party in connection with a Permitted Acquisition by such Loan
Party, (ii) unsecured (except to the extent otherwise permitted by Section 8.2),
-----------
(iii) subordinated to Indebtedness incurred hereunder (except to the extent
otherwise permitted by Section 8.2), and (iv) in form and substance satisfactory
-----------
to the Administrative Agent.
"Adjusted EBITDA" means, for any period, Consolidated EBITDA for such
---------------
period; provided that in calculating Adjusted EBITDA, the consolidated net
--------
income of any Divested Entity (plus, to the extent deducted in determining such
consolidated net income, interest expense, income tax expense, depreciation and
amortization of such Divested Entity) shall be excluded on a pro forma basis for
--- -----
such period (assuming the consummation of such disposition occurred on the first
day of such period).
"Administrative Agent" means Bank of America as the administrative
--------------------
agent for the Lenders under this Agreement and the other Loan Documents,
together with any successor thereto in such capacity.
"Administrative Agent's Payment Office" means 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" means, 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" means Bank of America and any successor
---------------------
administrative agent pursuant to Section 10.9, together with their respective
------------
Affiliates (including, in the case of Bank of America, Banc of America
Securities LLC) and the officers, directors, employees, agents, advisors and
attorneys-in-fact of such Persons and Affiliates.
"Agreement" - see the preamble.
--------- --------
"Applicable Margin" means for each Type of Loan, the rate per annum
-----------------
determined in accordance with the pricing grid below:
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<TABLE>
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===============================================================================================================
Applicable Applicable Applicable
Margin Margin Margin for Commitment
for Eurodollar for Base Rate Swingline Fee
Leverage Ratio Loans Loans Loans Rate
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<S> <C> <C> <C> <C>
Greater than or equal to 2.25% 1.25% 0% 0.500%
1.75:1.00
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Greater than or equal to 2.00% 1.00% 0% 0.500%
1.25:1.00 but less than
1.75:1.00
---------------------------------------------------------------------------------------------------------------
Less than 1.75% 0.75% 0% 0.500%
1.25:1.00
===============================================================================================================
</TABLE>
The Applicable Margin shall be determined assuming a Leverage Ratio
greater than or equal to 1.75 to 1.00 from the Closing Date through April 30,
2001. Thereafter, the Applicable Margin shall be adjusted, to the extent
applicable, on each date on which financial statements are received by the
Administrative Agent pursuant to Section 7.1(a) or 7.1(b) (but, in any event, no
-------------- ------
later than the 45th day after the end of each of the three fiscal quarters of
each fiscal year beginning for purposes hereof with the fiscal quarter ending
March 31, 2001 or the 90th day after the end of each fiscal year beginning with
each fiscal year ending after March 31, 2001, 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, the 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 the 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.
"Arranger" means Banc of America Securities LLC in its capacity as sole
--------
lead arranger and book manager hereunder.
"Asset Sale" means any Disposition of Property (including 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" - see Section 11.6(c).
-------- ---------------
"Assignor" - see Section 11.6(c).
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3
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"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 Revolving Credit Commitment" means 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.
"Bank of America" - see the preamble.
--------------- --------
"Base Rate" means, 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" means Loans which bear interest at or by reference to
---------------
the Base Rate.
"Borrower" - see the preamble.
-------- --------
"Borrower Obligations" means, collectively, the unpaid principal of and
--------------------
interest on the Loans and Reimbursement Obligations and all other obligations
and liabilities of the Borrower (including 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, any other Loan Document, any Letter of Credit, 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 all
Attorney Costs of the Administrative Agent and 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" means Ernst & Young, LLP or other independent
---------------------
auditors of recognized standing selected by the Borrower and reasonably
acceptable to the Required Lenders.
4
<PAGE>
"Borrowing Date" means any Business Day specified by the Borrower in a
--------------
Borrowing Notice as a date on which the Borrower requests that Loans be made
hereunder.
"Borrowing Notice" means a 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.
"Business" - see Section 5.18(b).
-------- ---------------
"Business Day" means 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 eurodollar market.
"Capital Expenditures" means, 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" means, 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" means 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" means (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
5
<PAGE>
securities of the types described in clause (a) above entered into with any bank
----------
meeting the qualifications specified in clause (b) above; 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"- see Section 6.1.
------------ -----------
"Code" means the Internal Revenue Code of 1986.
----
"Collateral" means 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" means 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" means, as to any Lender, such Lender's obligation to make
----------
or maintain, or participate in, extensions of credit to the Borrower hereunder.
"Commitment Fee Rate" means the rate set forth under the "Commitment
-------------------
Fee Rate" column of the pricing chart under the definition of Applicable Margin.
"Commonly Controlled Entity" means 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" means 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.
"Confirmation" means the Confirmation to be executed and delivered by
------------
each Loan Party, substantially in the form of Exhibit H.
---------
"Consolidated EBITDA" means, 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 for
----
such period.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
----------------------------------------
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Fixed
Charges for such period.
"Consolidated Fixed Charges" means, 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
6
<PAGE>
principal payments made during such period on account of principal of
Indebtedness of the Borrower or any of its Restricted Subsidiaries (including
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 the Borrower during such
period.
"Consolidated Interest Expense" means, 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 all commissions, discounts and other fees and
charges owed with respect to letters of credit, bankers' acceptance financing
and other Indebtedness).
"Consolidated Net Income" means, for any period, the consolidated net
-----------------------
income of the Borrower and its Restricted Subsidiaries for such period
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 Restricted 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 the 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" means, 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" means 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-2.
-----------
"Default" means any of the events specified in Section 9, whether or
------- ---------
not any requirement for the giving of notice or the lapse of time, or both, has
been satisfied.
"Defaulting Lender" means any Lender with respect to which a Lender
----------------
Default is in effect.
"Disposition" means, 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.
"Divested Entity" means, with respect to any period, any Person (or
---------------
division or similar business unit) disposed of by the Borrower or any Subsidiary
during such period if, as of the last
7
<PAGE>
day of the fiscal quarter immediately preceding such disposition, the
contribution to EBITDA of such Person (or division or similar business unit)
accounted for 5% or more of Consolidated EBITDA for the 12 months preceding such
last day.
"Dollars" and "$" each means lawful currency of the United States of
------- -
America.
"Domestic Subsidiary" means any Subsidiary of the Borrower organized
-------------------
under the laws of any jurisdiction within the United States of America.
"Earnouts" means any cash payments (i) made by the Borrower to third
--------
party sellers in consideration for the purchase of assets or stock by the
Borrower from such seller and (ii) made subsequent to the consummation of such
purchase.
"EBITDA" means, for any period, Consolidated Net Income for such period
------
plus, without duplication and to the extent reflected as a charge in the
----
statement of Consolidated 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 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 Consolidated Net Income for such period, losses on sales of assets
outside of the ordinary course of business) and (f) any other non-cash charges
(including non-cash charges relating to Signing Bonus Payments); 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
Consolidated 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" means 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" means the Employee Retirement Income Security Act of 1974.
-----
"Eurocurrency Reserve Requirements" means, 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 basic, supplemental,
marginal and emergency reserves under any regulations of the FRB 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 FRB) maintained by a member
bank of the Federal Reserve System.
8
<PAGE>
"Eurodollar Base Rate" means, with respect to any Eurodollar Loan for
--------------------
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 page number 3750) 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 beginning of such Interest Period) of amounts in same day funds
comparable to the principal amount of the Eurodollar Loan of Bank of America
included in the Eurodollar Tranche 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" means Loans (other than Swingline Loans) that bear
----------------
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, with respect to any Eurodollar Loan for any
---------------
Interest Period, 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.
"Eurodollar Tranche" means 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" means any of the events specified in Section 9.
---------------- ---------
"Excess Cash Flow" means an amount as of each date for which the
----------------
Administrative Agent receives the 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
9
<PAGE>
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) Signing Bonus
Payments, to the extent made in such Calculation Period.
"Exchange Act" means the Securities Exchange Act of 1934.
------------
"Executive Officers and Directors of the Borrower" means, as of the
------------------------------------------------
Closing Date, those individuals listed as officers and directors on Schedule
--------
1.1C and, after the Closing Date, (i) all officers elected by the board of
----
directors of the 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
the Borrower and any Restricted Subsidiary who perform the role of inside
counsel and (iv) all members of the board of directors of the Borrower.
"Existing Agreement" - see the recitals.
------------------ --------
"Facility" means the facility to provide Revolving Credit Loans or the
--------
facility to provide Term Loans.
"Federal Funds Effective Rate" means, 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.
"Foreign Subsidiary" means any Subsidiary of the Borrower that is not a
------------------
Domestic Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System, and
---
any Governmental Authority succeeding to any of its principal functions.
"GAAP" means 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
10
<PAGE>
statements of the Borrower in respect of the fiscal year ended June 30, 2000
delivered pursuant to Section 5.1(b). If 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 Change with the desired result that the criteria for evaluating the
Borrower's financial condition shall be the same after such Accounting Change as
if such Accounting Change 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 Change had not occurred. "Accounting Change"
-----------------
refers to any change 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" means 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 and Collateral Agreement" means the Guaranty and Collateral
---------------------------------
Agreement executed and delivered by the Borrower and each Subsidiary Guarantor,
a copy of which is set forth as Exhibit C.
---------
"Guaranty Obligation" means, as to any Person (the "guarantying
-------------------
person"), any obligation of (a) the guarantying person or (b) another Person
(including 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 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 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 to 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
11
<PAGE>
person's maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"Inchoate Tax Liens" means 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.
"Indebtedness" means, as to 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 accounts and
contract rights) 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" means, with respect to any Multiemployer Plan, the
----------
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA; "Insolvent" has a correlative meaning.
---------
"Intellectual Property" means 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
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" means, (a) as to any Base Rate Loan, the last
---------------------
Business Day in each March, June, September and December, (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
12
<PAGE>
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" means, 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:
--------
(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 Revolving Credit Loans that would
otherwise extend beyond the Revolving Credit Termination Date, shall end on
the Revolving Credit Termination Date;
(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 use reasonable efforts to select Interest
Periods so as not to require a scheduled payment or prepayment of a
Eurodollar Loan during an Interest Period for such Loan; and
(v) the Borrower shall not select any Interest Period for a Term
Loan if, after giving effect to such selection, the aggregate principal
amount of all Term Loans having Interest Periods ending after any date on
which an installment of Term Loans is scheduled to be repaid would exceed
the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to such repayment.
"IRS" means the United States Internal Revenue Service.
---
"Issuing Lender" means (i) Bank of America in its capacity as issuer of any
--------------
Letter of Credit and (ii) any Lender approved as an issuer of any Letter of
Credit by the Administrative Agent (such approval not to be unreasonably
withheld) and by the Borrower.
13
<PAGE>
"L/C Application" means 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.
"L/C Commitment" means, at any time, the lesser of (a) $4,000,000, and (b)
--------------
the Total Revolving Credit Commitments.
"L/C Fee Payment Date" means the last Business Day of each March, June,
--------------------
September and December and the Revolving Credit Termination Date (and, if any
Letter of Credit remains outstanding after the Revolving Credit Termination
Date, any other date specified by the Administrative Agent).
"L/C Obligations" means, at any time, an amount equal to the sum of (a) the
---------------
aggregate 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" means the collective reference to all Revolving Credit
----------------
Lenders other than the Issuing Lender.
"Lender" - see the preamble.
------ --------
"Lender Default" means (i) the refusal (which has not been retracted) or
--------------
the failure of a Lender to make available its portion of any borrowing hereunder
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) or 3.4 or (iii) a Lender becoming subject to any receivership,
------ ------ ---
conservatorship or insolvency proceeding.
"Letters of Credit" - see Section 3.1(a).
----------------- --------------
"Leverage Ratio" means, at any time, the ratio of (a) Total Funded Debt to
--------------
(b) Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the
period of four consecutive fiscal quarters ending on the last day of the most
recent fiscal quarter for which the Borrower has submitted financial statements
pursuant to Section 7.1.
-----------
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other security
interest of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan" means any loan made by any Lender pursuant to this Agreement.
----
"Loan Documents" means this Agreement, the L/C Applications, the Security
--------------
Documents, each Subordination Agreement, each Note and all other instruments,
documents
14
<PAGE>
(including interest rate hedging or swap transaction documents) and agreements
executed and delivered by a Loan Party to the Administrative Agent or any Lender
in connection with this Agreement or the Loans.
"Loan Parties" means, collectively, the Borrower and each Subsidiary or
------------
Affiliate of the Borrower that is a party to a Loan Document.
"Loan Year" means each calendar year.
---------
"Mandatory Borrowing" - see Section 2.1(c).
------------------- --------------
"Margin Stock" means "margin stock" as such term is defined in Regulation
------------
T, U or X as promulgated by the FRB.
"Material Adverse Effect" means 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" means 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 asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Mortgaged Properties" means the real property listed on Schedule 1.1A, if
-------------------- -------------
any, as to which the Administrative Agent for the benefit of the Lenders has
been, and any other real property as to which the Administrative Agent for the
benefit of the Lenders is hereafter, granted a Lien pursuant to a Mortgage.
"Mortgage" means each mortgage and deed of trust, 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 the Administrative Agent.
"Multiemployer Plan" means a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means (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
15
<PAGE>
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 re serves 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); provided that Net Cash Proceeds
--------
shall not include any such proceeds which the Borrower anticipates will be, and
are, used within 180 days by a Loan Party to purchase assets which will replace
or substitute for the assets Disposed of pursuant to such Asset Sale or which
gave rise to such Recovery Event; 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
Attorney Costs, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
"Non-Excluded Taxes" - see Section 4.12(a).
------------------ ---------------
"Non-U.S. Lender" - see Section 4.12(b).
--------------- ---------------
"Note" means any promissory note evidencing Loans.
----
"Obligations" means, (a) in the case of the Borrower, the Borrower
-----------
Obligations and (b) in the case of each Subsidiary Guarantor, its Subsidiary
Guarantor Obligations.
"Participant" - see Section 11.6(b).
----------- ---------------
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition" means 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 such Acquisition and
any Indebtedness incurred in connection therewith, all applicable financial
covenants under this Agreement, (ii) the Administrative Agent shall have
received no later than 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 has then occurred and is continuing or would result
therefrom;
(c) the aggregate purchase price (including assumed Indebtedness, the
fair market value of any non-cash consideration and the maximum amount of any
contingent payments which the purchaser may be required to make within one year
following such Acquisition) for such Acquisition, together with the purchase
price of all other Acquisitions completed in the Loan Year of completion of such
Acquisition, will not exceed $5,000,000;
16
<PAGE>
(d) the company being acquired is in (or the assets being acquired
are used in) the real estate services business; and
(e) after giving effect to such Acquisition, the Total Revolving
Credit Commitments are at least $10,000,000 greater than the Total Revolving
Extensions of Credit.
"Permitted Liens" - see Section 8.3.
--------------- -----------
"Person" means 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" means, 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" means the pledge agreements by the Borrower and
-----------------
certain other Loan Parties in favor of the Administrative Agent which, among
other things, pledge the Pledged Stock.
"Pledged Stock" means stock pledged to the Administrative Agent
-------------
pursuant to the Pledge Agreements.
"Prime Rate" means the rate of interest announced from time to time by
----------
Bank of America as its "prime rate".
"Property" means any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including Capital Stock.
"Qualified Issuer" means 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" means 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 other Loan Party.
"Reimbursement Obligation" means the obligation of the Borrower to
------------------------
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
-----------
Letters of Credit.
"Reorganization" means, with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
17
<PAGE>
"Reportable Event" means 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 Lenders" means Lenders having an aggregate Total Percentage
----------------
of 66-2/3% or more.
"Requirement of Law" means, 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" means the chairman of the board of directors,
-------------------
chief executive officer, president, member of the Office of the President or
chief financial officer of the Borrower, but in any event, with respect to
financial matters, the president, a member of the Office of the President or the
chief financial officer of the Borrower.
"Restricted Investments" - see Section 8.9.
---------------------- -----------
"Restricted Payments" - see Section 8.6.
------------------- -----------
"Restricted Subsidiaries" means each Domestic Subsidiary of the
-----------------------
Borrower which is a Wholly Owned Subsidiary, 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; provided that,
--------
notwithstanding clauses (i) and (ii) above, Restricted Subsidiaries shall not
----------- ----
include those Subsidiaries designated as Unrestricted Subsidiaries on Schedule
--------
5.15 or as to which the Borrower has requested in writing to the Administrative
----
Agent that such Subsidiary not be categorized as a Restricted Subsidiary and
which the Administrative Agent, in its sole and absolute discretion, has agreed
in writing shall not be categorized as a Restricted Subsidiary.
"Revolving Credit Commitment" means, as to any Revolving Credit
---------------------------
Lender, such Lender's obligation to make Revolving Credit Loans, to issue or
participate in Letters of Credit and to participate in Swingline Loans (and, in
the case of the Swingline Lender, to 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
--------
1.1B, 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 $15,000,000.
"Revolving Credit Lender" means each Lender which has a Revolving
-----------------------
Credit Commitment or which has made Revolving Credit Loans.
"Revolving Credit Loan" - see Section 2.1(a).
--------------------- --------------
18
<PAGE>
"Revolving Credit Percentage" means, 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); provided that, if and so long as any Lender fails to
fund its participation in any Letter of Credit or Swingline Loan when required
by Section 3.4(a) or Section 2.1(c), such Lender's Revolving Credit Percentage
shall be deemed for purposes of this definition to be reduced to the extent of
the defaulted amount, and the Revolving Credit Percentage of the Issuing Lender
or the Swingline Lender, as applicable, shall be deemed for purposes of this
definition to be increased to such extent.
"Revolving Credit Termination Date" means the earlier of (a) the fifth
---------------------------------
anniversary of the Closing Date, and (b) the date on which the Revolving Credit
Commitments are terminated pursuant to Section 4 or Section 9.
"Revolving Extensions of Credit" means, 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) such Lender's Revolving Credit Percentage multiplied by the
aggregate principal amount of all Swingline Loans then outstanding.
"Security Documents" means, collectively, the Guaranty and Collateral
------------------
Agreement, the Pledge Agreements, the Mortgages, 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.
"Signing Bonus Payments" means up to $4,000,000 of payments by the
----------------------
Borrower in any fiscal year in connection with the hiring or engagement of
officers, employees or representatives of the Borrower.
"Single Employer Plan" means any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent" means, 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
19
<PAGE>
(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.
"Specified Percentage" means,
--------------------
(i) as of the date of delivery of the Compliance Certificate
as of the end of the fiscal years ending June 30, 2001 and June 30,
2002, 75%; provided that if the Leverage Ratio as shown on the
--------
applicable Compliance Certificate is less than 1.0 to 1, then the
"Specified Percentage" as of the date of delivery of such Compliance
Certificate shall be 50%; and
(ii) as of the date of delivery of the Compliance Certificate
as of the end of any fiscal year thereafter, 50%; provided that, with
--------
respect to the Compliance Certificates delivered as of the end of the
fiscal years ending June 30, 2004 and June 30, 2005, if (x) the
Leverage Ratio as shown on the applicable Compliance Certificate is
less than 1.0 to 1 and (y) the Total Revolving Extensions of Credit
are less than $10,000,000 as of the end of the applicable fiscal year,
then the "Specified Percentage" as of the date of delivery of such
Compliance Certificate shall be zero.
"Specified Revolver Proceeds" means, with respect to any Asset Sale or
---------------------------
Recovery Event, the Net Cash Proceeds of such Asset Sale or Recovery Event
multiplied by a fraction, the numerator of which is the Total Revolving Credit
Commitments and the denominator of which is the sum of (i) the Total Revolving
Credit Commitments and (ii) the aggregate principal amount of the outstanding
Term Loans.
"Specified Term Proceeds" means, with respect to any Asset Sale or
-----------------------
Recovery Event, the Net Cash Proceeds of such Asset Sale or Recovery Event
multiplied by a fraction, the numerator of which is the aggregate principal
amount of the Term Loans and the denominator of which is the sum of (i) the
Total Revolving Credit Commitments and (ii) the aggregate principal amount of
the outstanding Term Loans.
"Subject Properties" - see Section 5.18(a).
------------------ ---------------
"Subordinated Note Documents" means the collective reference to the
---------------------------
Subordination Agreements and the Subordinated Notes.
"Subordinated Noteholders" means the collective reference to the
------------------------
holders of the Subordinated Notes from time to time.
"Subordinated Notes" means any promissory notes issued by a Loan Party
------------------
to third parties in connection with Acquisition Indebtedness, together with all
instruments and other agreements
20
<PAGE>
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" means any Subordination Agreement required
-----------------------
by the Administrative Agent relating to Subordinated Notes.
"Subsidiary" means, as to any Person, a corporation, partnership,
----------
limited liability company 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 of
such corporation, partnership, limited liability company 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" means each Restricted Subsidiary of the
--------------------
Borrower other than any Foreign Subsidiary.
"Subsidiary Guarantor Obligations" means, with respect to any
--------------------------------
Subsidiary Guarantor, all obligations and liabilities of such Subsidiary
Guarantor arising 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 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" - see Section 8.15.
----------------------- ------------
"Swingline Lender" means Bank of America in its capacity as the maker
----------------
of Swingline Loans, and its successors in such capacity.
"Swingline Loan" - see Section 2.1(b).
-------------- --------------
"Tender Offer" means the self tender offer by the Borrower for
------------
approximately 7,000,000 shares of common stock of the Borrower for a purchase
price of not more than $7.00 per share that commenced on December 15, 2000.
"Tender Offer Expiration Date" means January 17, 2001, or such later
----------------------------
date to which the Tender Offer is extended (but in no event later than February
7, 2001).
21
<PAGE>
"Tender Offer Documents" means the Offer to Purchase dated December
----------------------
15, 2000, the Letter of Transmittal dated December 15, 2000, and other material
documents executed in connection with the Tender Offer.
"Term Commitment" means, as to any Term Lender, such Lender's
---------------
obligation to make a Term Loan in the aggregate principal amount set forth under
the heading "Term Commitment" opposite such Lender's name on Schedule 1.1B. The
-------------
Term Commitments shall terminate concurrently with the making of the Term Loans.
"Term Lender" means each Lender which (a) prior to the making of the
-----------
Term Loans, has a Term Commitment, and (b) after the making of the Term Loans,
is the holder of a Term Loan.
"Term Loan" - see Section 2.1(d).
--------- --------------
"Term Percentage" means, as to any Term Lender, the percentage which
---------------
(a) the principal amount of such Lender's Term Loan is of (b) the aggregate
principal amount of all Term Loans (or, prior to the making of the Term Loans,
the percentage which the amount of such Lender's Term Commitment is of the
aggregate amount of the Term Commitments).
"Title Insurance Company" means a nationally recognized title
-----------------------
insurance company satisfactory to the Administrative Agent.
"Total Funded Debt" means, at any date, the aggregate Indebtedness of
-----------------
the Borrower and its Restricted Subsidiaries, excluding (i) contingent
obligations in respect of undrawn letters of credit and Guaranty Obligations
(except, in each case, to the extent constituting Guaranty Obligations in
respect of Indebtedness of a Person other than the Borrower or any Restricted
Subsidiary) and (ii) Indebtedness of the Borrower to Restricted Subsidiaries and
Indebtedness of Restricted Subsidiaries to the Borrower or to other Restricted
Subsidiaries.
"Total Percentage" means, as to any Lender, the percentage which (a)
----------------
the Revolving Credit Commitment of such Lender (or, after termination of the
Revolving Credit Commitments, the amount of the Revolving Extensions of Credit
of such Lender) plus the unpaid principal amount of the Term Loans of such
Lender (or, prior to the making of the Term Loans, the amount of such Lender's
Term Commitment) is of (b) the sum of the Total Revolving Credit Commitments
(or, after the termination of the Revolving Credit Commitments, the Total
Revolving Extensions of Credit) plus the unpaid principal amount of all Term
Loans (or, prior to the making of the Term Loans, the amount of all Term
Commitments); provided that, if and so long as any Lender fails to fund its
--------
participation in any Letter of Credit or Swingline Loan when required by Section
-------
3.4(a) or 2.1(c), such Lender's Total Percentage shall be deemed for purposes of
------ ------
this definition to be reduced to the extent of the defaulted amount and the
Total Percentage of the Issuing Lender or the Swingline Lender, as applicable,
shall be deemed for purposes of this definition to be increased to such extent.
"Total Revolving Credit Commitments" means, at any time, the aggregate
----------------------------------
amount of the Revolving Credit Commitments at such time.
22
<PAGE>
"Total Revolving Extensions of Credit" means, at any time, the
------------------------------------
aggregate amount of the Revolving Extensions of Credit at such time.
"Transferee" - see Section 11.15.
---------- -----
"Type" means, as to any Loan, its nature as a Base Rate Loan or a
----
Eurodollar Loan.
"Uniform Customs" means the Uniform Customs and Practice for
---------------
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500.
"Unrestricted Subsidiary" means any Subsidiary that is not a
-----------------------
Restricted Subsidiary.
"Warburg" means Warburg, Pincus Investors, L.P. and its Affiliates.
-------
"Wholly Owned Subsidiary" means, 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.
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.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) The term "including" is not limiting and means "including without
limitation."
(f) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words "to"
and "until" each mean "to but excluding", and the word "through" means "to and
including."
(g) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and
23
<PAGE>
(ii) references to any statute or regulation are to be construed as including
all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such statute or regulation.
(h) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Borrower.
1.3 Reallocation of Percentages and Revolving Loans. (a) The Borrower
-----------------------------------------------
and each Lender agree that, effective on the Closing Date, (i) this Agreement
shall amend and restate in its entirety the Existing Agreement and (ii) the
Percentages of the Lenders shall be reallocated in accordance with the terms
hereof.
(b) To facilitate the reallocation described in clause (a), on the
----------
Closing Date, (i) all loans under the Existing Agreement shall be deemed to be
Loans hereunder, (ii) each Lender shall transfer to the Administrative Agent an
amount equal to the excess, if any, of such Lender's Revolving Credit Percentage
of all outstanding Revolving Credit Loans hereunder over the amount of all of
such Lender's revolving credit loans under the Existing Agreement, (iii) the
Administrative Agent shall apply the funds received from the Lenders pursuant to
clause (ii), first to pay to each Lender all interest, fees and other amounts
(including amounts payable to Section 4.13 of the Existing Agreement, assuming
for such purpose that the loans under the Existing Agreement were prepaid rather
than reallocated on the Closing Date) owed to such Lender under the Existing
Agreement (whether or not otherwise then due) and, second, as the Borrower shall
------
direct, and (iv) the Borrower shall select new Interest Periods to apply to all
Loans hereunder (or, to the extent the Borrower fails to do so, such Loans shall
be Base Rate Loans).
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 prior to the
----------------------
Revolving Credit Termination Date 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 the outstanding principal amount of the Swingline
Loans, does not exceed the amount of such Lender's Revolving Credit Commitment.
Prior to the Revolving Credit Termination Date, the Borrower may use the
Revolving Credit Commitments by borrowing, prepaying Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. At no time shall the sum of (i) the outstanding Revolving
Credit Loans, (ii) the L/C Obligations and (iii) the outstanding Swingline Loans
exceed the Total Revolving Credit Commitments.
(b) Subject to and upon the terms and conditions set forth herein,
the Swingline Lender agrees to make, at any time prior to the Revolving Credit
Termination Date, one or more 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
24
<PAGE>
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all outstanding Revolving Credit Loans and all L/C
Obligations, the Total Revolving Credit Commitments and (iv) shall not exceed
$4,000,000 in aggregate principal amount at any time outstanding.
Notwithstanding anything to the contrary contained in this Section 2.1(b), (x)
--------------
the Swingline Lender shall not be obligated to make any Swingline Loan 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 each Defaulting Lender's participation in such Swingline Loans,
including by cash collateralizing such Defaulting Lender's 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 exists and is continuing
until such time as the Swingline Lender shall have received written notice (I)
of rescission of each such notice from the party originally delivering such
notice or (II) of the waiver by the Required Lenders or cure of such Default.
(c) 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 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 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 Lender's Revolving Credit Percentage 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 then exists, (iv) the date of such Mandatory Borrowing and (v) the
amount of the Total Revolving Credit Commitments at such time. In the event that
any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including as a result of the commencement of any bankruptcy,
insolvency or reorganization proceeding 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; 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
25
<PAGE>
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.
(d) Each Term Lender will make a single term loan (each a "Term Loan") on
---------
the Tender Offer Expiration Date in such Lender's Term Percentage of
$40,000,000.
(e) Revolving Credit Loans may be, and Term Loans may be divided into
portions which are, Eurodollar Loans or Base Rate Loans, in each case as
selected by the Borrower and notified to the Administrative Agent pursuant to
Section 2.2 or 4.5. All Swingline Loans shall at all times be Base Rate Loans.
----------- ---
(f) (i) The Borrower hereby unconditionally promises to pay to the
Administrative Agent (x) 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 and (y) 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.
(ii) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Term Lenders in accordance with
their respective Term Percentages, the principal amount of the Term Loans in
installments on the dates, and in the amounts, set forth on Schedule 2.1(f).
---------------
Amounts repaid with respect to Term Loans may not be reborrowed.
2.2 Procedure for Borrowing.
------------------------
(a) Revolving Credit Borrowing. 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 Loans consisting of Eurodollar Loans on the Closing Date by appropriate
indemnification letters to protect the Administrative Agent and Revolving Credit
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 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 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 the Borrower's request prior to the end of business on the day
the
26
<PAGE>
Administrative Agent timely receives such notice from the 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 the Borrower
at the Administrative Agent's Payment Office prior to 1:00 P.M., Chicago time,
on the requested Borrowing Date 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) 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 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. Each
Swingline Loan shall be repaid in full on or before the date that is 15 days
subsequent to the date of such Swingline Loan. Not more than nine borrowings of
Swingline Loans shall be permitted in any 12-month period.
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(c), 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(c).
--------------
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
---------
27
<PAGE>
any Business Day prior to the Revolving Credit Termination Date 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 L/C 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
L/C Application and so long as it has not received a notice of the type referred
to in clause (ii) of the first sentence of Section 3.1(a), the Issuing Lender
----------- --------------
will process such L/C 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
L/C 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 following
the issuance thereof. The Administrative Agent shall furnish reports of
issuances of Letters of Credit 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 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 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,
28
<PAGE>
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 referred to in clause (a)
----------
above, 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 (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 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 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
29
<PAGE>
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. 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, 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. 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 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
30
<PAGE>
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 L/C 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.
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 a
commitment fee for the period from and including the Closing Date to the
Revolving Credit Termination Date computed at the Commitment Fee Rate on the
daily average of the sum of such Lender's Available Revolving Credit Commitment
plus such Lender's Revolving Credit Percentage of all outstanding Swingline
Loans, in each case 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 March 31, 2001, and on the Revolving Credit Termination
Date.
(b) The Borrower agrees to pay to the Administrative Agent and the
Arranger certain fees in the amounts and on the dates agreed to in writing from
time to time by the Borrower, the Administrative Agent and the Arranger.
4.2 Voluntary Reduction or Termination of the Revolving Credit
----------------------------------------------------------
Commitments. 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 after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the effective date thereof,
the Total
31
<PAGE>
Revolving Extensions of Credit would exceed the Total 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 Prepayments.
-----------
(a) Voluntary Prepayments of Loans. The Borrower may at any time and from
------------------------------
time to time prepay the Loans, in whole or in part, without premium or penalty
(but, in the case of Eurodollar Loans, subject to Section 4.13), upon
------------
irrevocable notice delivered to the Administrative Agent prior to Noon, Chicago
time, 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 the Loans to be prepaid.
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 which are Base Rate Loans) to such date on the amount prepaid. Partial
prepayments of 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 thereof. Prepayments made pursuant to this Section 4.3 shall be
-----------
made in accordance with Section 4.10.
------------
(b) Mandatory Prepayments of Term Loans.
-----------------------------------
(i) Concurrently with the receipt by the Borrower or any Subsidiary
of any Specified Term Proceeds, the Borrower shall make a prepayment of
principal of the Term Loans by an amount (rounded down, if necessary, to an
integral multiple of $500,000) equal to the aggregate amount of all Specified
Term Proceeds received on or after the Closing Date (including such Specified
Term Proceeds) minus all Specified Term Proceeds previously applied to prepay
Term Loans pursuant to this clause (b).
----------
(ii) Concurrently with the receipt by the Borrower or any Subsidiary
of any Net Cash Proceeds from the issuance of any Indebtedness (other than
Indebtedness permitted to be incurred pursuant to Section 8.2), the Borrower
------------
shall make a prepayment of principal of the Term Loans by an amount (rounded
down, if necessary, to an integral multiple of $500,000) equal to the aggregate
amount of Net Cash Proceeds received from all such issuances after the Closing
Date minus any portion thereof previously applied to prepay Term Loans.
(iii) Concurrently with the receipt by the Borrower or any Subsidiary
of any Net Cash Proceeds from the issuance of any equity securities (other than
any issuance of any equity securities in connection with a Permitted
Acquisition, the exercise of warrants or employee stock options or the
Borrower's employee stock purchase plan), the Borrower shall make a prepayment
of principal of the Term Loans by an amount (rounded down, if necessary, to an
integral multiple of $500,000) equal to 50% of the aggregate amount of Net Cash
Proceeds
32
<PAGE>
received from all such issuances after the Closing Date minus any portion
thereof previously applied to prepay Term Loans.
(iv) Concurrently with the delivery of the Compliance Certificate as
of the end of any fiscal year, the Borrower shall prepay Term Loans by an amount
(rounded down, if necessary, to an integral multiple of $500,000) equal to the
Specified Percentage of Excess Cash Flow for such fiscal year.
(c) Mandatory Prepayments of Revolving Credit Loans.
-----------------------------------------------
(i) Concurrently with the receipt by the Borrower or any Subsidiary
of any Specified Revolver Proceeds, the Borrower shall prepay Revolving Credit
Loans by an amount (rounded down, if necessary, to an integral multiple of
$500,000) equal to the aggregate amount of all Specified Revolver Proceeds
received on or after the Closing Date (including such Specified Revolver
Proceeds) minus all Specified Revolver Proceeds previously applied to prepay
Revolving Credit Loans pursuant to this clause (c).
----------
(ii) Concurrently with the receipt by the Borrower or any Subsidiary
of any Net Cash Proceeds from the issuance of any Indebtedness (other than
Indebtedness permitted to be incurred by Section 8.2), the Borrower shall prepay
-----------
Revolving Credit Loans by an amount (rounded down, if necessary, to an integral
multiple of $500,000) equal to the aggregate amount of all Net Cash Proceeds
received from all such issuances after the Closing Date minus any portion
thereof previously or concurrently applied to prepay Term Loans or to prepay
Revolving Credit Loans pursuant to this clause (c).
----------
(iii) Concurrently with the receipt by the Borrower or any Subsidiary
of any Net Cash Proceeds from the issuance of any equity securities (other than
any issuance of equity securities in connection with a Permitted Acquisition,
the exercise of warrants or employee stock options or the Borrower's employee
stock purchase plan), the Borrower shall prepay Revolving Credit Loans by an
amount (rounded down, if necessary, to an integral multiple of $500,000) equal
to 50% of the aggregate amount of all Net Cash Proceeds received from all such
issuances after the Closing Date minus any portion thereof previously or
concurrently applied to prepay Term Loans or to prepay Revolving Credit Loans
pursuant to this clause (c).
----------
(iv) Concurrently with the delivery of the Compliance Certificate as
of the end of any fiscal year, the Borrower shall prepay Revolving Credit Loans
by an amount (rounded down, if necessary, to an integral multiple of $500,000)
equal to the Specified Percentage of Excess Cash Flow for such fiscal year minus
any portion thereof required to be applied to prepay Term Loans.
The application of any prepayment pursuant to this Section 4.3 shall be made as
-----------
the Borrower shall direct or, in the absence of such direction, first to
applicable Base Rate Loans and second to applicable Eurodollar Loans. Each
prepayment of Loans under this Section 4.3 shall be accompanied by accrued
-----------
interest to the date of such prepayment on the amount prepaid. Prepayments made
pursuant to this Section 4.3 shall be made in accordance with Section 4.10.
----------- ------------
33
<PAGE>
4.4 Application of Prepayments of Term Loans. Each prepayment of Term
----------------------------------------
Loans shall be applied pro rata to the remaining installments of the Term Loans.
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 prior to Noon, Chicago time; 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 irrevocable
-----------
notice of such election specifying the length of the initial Interest Period
therefor prior to Noon, Chicago time, at least three Business Days prior to such
election; provided that no Base Rate Loan may be converted into a Eurodollar
--------
Loan when any Event of Default has occurred and is continuing, unless the
Required Lenders otherwise consent. 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 thereof (promptly confirmed in writing in a
Conversion/Continuation Notice) 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 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 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 with respect to such Loan, and provided,
--------
further, that, if the Borrower shall fail to give any required notice as
-------
described above in this Section 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.
---------------------------------------------------------
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 at a rate per annum equal to the Eurodollar Rate for each Interest
Period therefor plus the Applicable Margin.
----
34
<PAGE>
(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 Revolving Credit Loans which are 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, to the extent permitted by applicable law, bear
interest at a rate per annum equal to the rate applicable to Revolving Credit
Loans which are Base Rate Loans plus 2% 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 clause (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 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 applicable 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
35
<PAGE>
(b) the Administrative Agent shall have received notice from the Required
Lenders under a 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 Eurodollar Loans during such Interest Period,
then 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 and (ii) any Loans under the relevant Facility that were to have
been converted to or continued as Eurodollar Loans on the first day of such
Interest Period shall be continued as or converted to Base Rate Loans on such
day. 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 of Revolving
-------------------------------
Credit Loans, each payment by the Borrower on account of any commitment fee and
any reduction of the Revolving Credit Commitments shall be made pro rata
according to the respective Revolving Credit Percentages of the Revolving Credit
Lenders.
(b) (i) Except as otherwise expressly provided herein, each payment
(including each prepayment) by the Borrower on account of principal of and
interest on Revolving Credit Loans shall be made pro rata according to the
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 Term
Loans shall be made pro rata according to the respective outstanding principal
amounts of the Term Loans then held by the Term 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 Administrative 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 becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day (unless,
in the case of a Eurodollar Loan, such next succeeding Business Day is the first
Business Day of a calendar month, in which case such payment shall be due and
payable on the immediately preceding 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
36
<PAGE>
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 from
the Borrower such amount with interest thereon at the rate per annum applicable
to Base Rate Loans under the relevant Facility, on demand.
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) shall 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 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.
37
<PAGE>
(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 Person 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 Person'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 Person
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such Person'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 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, 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 clause (b) of
----------
38
<PAGE>
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 Governmental 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.
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 IRS Form W-8BEN or W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from 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
39
<PAGE>
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 or such of
its lending office(s) to suffer no economic, legal or regulatory disadvantage,
and provided, further, that nothing in this 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.
40
<PAGE>
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, as the case may be, 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
-------------------
the Borrower as at June 30, 1998, June 30, 1999 and June 30, 2000, 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, the Borrower has no material Guaranty Obligations, contingent
------------
liabilities or liabilities for taxes, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives. During the period from June 30, 2000 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.
------------
5.2 No Change. (i) As of the Closing Date, there has been no development
---------
or event since June 30, 2000 affecting Borrower and its Restricted Subsidiaries
which has had or is reasonably likely to have 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 Borrowing Date
which has had or is reasonably likely to have 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
41
<PAGE>
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, 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 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 the Borrower, threatened
by or against the Borrower or any other Loan Party or against any of their
respective Properties or revenues.
5.7 No Default. None of the Borrower or any other 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 has occurred and is continuing.
5.8 Ownership of Property; Liens. The Borrower and each other 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 for
Permitted Liens.
5.9 Intellectual Property. (a) The Borrower and each other Loan Party
---------------------
owns, or is licensed to use, all Intellectual Property that is material to the
continued conduct of its respective 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; and (c) the use of
Intellectual Property by the Borrower and each other Loan
42
<PAGE>
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 other 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. Except for purchases of stock of the Borrower
-------------------
which is immediately retired, no part of the proceeds of any Loans will be used
for "purchasing" or "carrying" (as each such term is defined in Regulation U of
the FRB) any Margin Stock or for any purpose which violates the provisions of
any regulation of the FRB.
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 other 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 other 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 other 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 (other than a
Permitted Lien) 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 the 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
43
<PAGE>
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. No Loan Party is
subject to regulation under any Requirement of Law (other than Regulation X of
the FRB and general 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.
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
---------------
shall be used (i) to finance Permitted Acquisitions and (ii) for the ongoing
working capital needs of the Borrower and the other Loan Parties (including the
refinancing of existing Indebtedness) in the ordinary course of business, for
capital expenditures and for other general corporate purposes (excluding the
financing of the Tender Offer).
(b) The proceeds of the Term Loans shall be used to finance the Tender
Offer.
(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.
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 other Loan Party (the "Subject 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.
44
<PAGE>
(b) The Subject Properties and all operations at the Subject 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 Subject Properties or violation of any Environmental Law with respect to the
Subject Properties or the business operated by the Borrower and any Loan Party
(the "Business") which could interfere with the continued operation of the
--------
Subject Properties or impair the fair saleable value thereof. Neither the
Borrower nor any other 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 Subject 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.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Subject 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 Subject 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 is or will be named as
a party with respect to the Subject 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 Subject Properties or the Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Subject Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in connection with
the Subject 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 the Borrower that is reasonably
likely to have a Material Adverse Effect that has not been expressly disclosed
herein, in the other Loan Documents or in any other
45
<PAGE>
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, together with stock powers executed in blank, 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 related stock powers
----------------
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 of such
Pledged Stock and related stock powers 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 for Permitted Liens.
(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 for Permitted Liens or Liens 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 Tender Offer. (a) The Tender Offer will comply in all material
------------
respects with all applicable legal requirements, and all necessary governmental,
regulatory, shareholder and other consents and approvals required for the
consummation of the Tender Offer will be duly obtained and in full force and
effect prior to the consummation thereof.
(b) The consummation of the Tender Offer will not violate any statute
or regulation of the United States or of any state or other applicable
jurisdiction, or any order, judgment or decree of any court or governmental
body, or result in a breach of, or constitute a default under, any material
agreement or indenture, or any order or decree, affecting the Borrower or any of
its Subsidiaries.
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<PAGE>
(c) The Borrower will not agree to any amendment, waiver or other
modification to the Tender Offer Documents which would have a Material Adverse
Effect.
SECTION 6. EFFECTIVENESS; CONDITIONS TO LOANS AND LETTERS OF CREDIT
6.1 Effectiveness. This Agreement shall become effective, and all loans
-------------
and letters of credit outstanding under the Existing Agreement shall be deemed
to be Loans made and Letters of Credit issued hereunder, on the date (the
"Closing Date") on which the following conditions shall have been satisfied:
------------
(a) Loan Documents. The Administrative Agent shall have received, in form
--------------
and substance satisfactory to the Administrative Agent, (i) the Confirmation,
executed and delivered by a duly authorized officer of the Borrower and each
Subsidiary Guarantor, (ii) 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 Borrower and (iii) such other
Security Documents (in addition to the documents referred to in the
Confirmation) as may be reasonably requested by the Administrative Agent.
(b) Financial Statements. The Lenders shall have received (i) audited
--------------------
consolidated financial statements of the Borrower for the 1998, 1999 and 2000
fiscal years and (ii) an unaudited consolidated balance sheet of the Borrower
and its Restricted Subsidiaries for the fiscal quarter ended September 30, 2000
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) Tender Offer. The Administrative Agent shall have reviewed and be
------------
satisfied with all Tender Offer Documents and shall be satisfied that, no later
than ten Business Days following the Tender Offer Expiration Date, the Borrower
will have purchased shares of Capital Stock of the Borrower pursuant to the
Tender Offer in an amount not more than the sum of the aggregate principal
amount of the Term Loans plus $11,000,000.
(e) 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 D, with appropriate
---------
insertions and attachments.
(f) Legal Opinions. The Administrative Agent shall have received the
--------------
executed legal opinions of:
47
<PAGE>
(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.
-----------
(g) Fees. The Administrative Agent shall have received the fees required
----
to be paid to it, the Arranger 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.
(h) Solvency Opinion. The Administrative Agent shall have received a
----------------
solvency opinion relating to the solvency of the Borrower after giving effect to
the transactions contemplated hereby, acceptable in form and substance to the
Administrative Agent from the chief financial officer of the Borrower.
(i) Insurance. The Administrative Agent shall have received insurance
---------
certificates, and all requested documentation relating to the 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.
(j) No Change. Since June 30, 2000, there shall have 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 other Loan Parties taken as a whole or (ii) in the facts and information
regarding the Borrower and each other Loan Party provided to the Administrative
Agent as of the date hereof.
(k) 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.
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 its
initial extension of credit) is subject to the satisfaction of the following
conditions precedent:
(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.
48
<PAGE>
(b) No Default. No Default shall have occurred and be continuing
----------
on such date or after giving effect to such extension of credit.
(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 other 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, 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 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 the Borrower's Accountant; and
(b) as soon as available, but in any event not later than 45 days after
the end of each of the first three fiscal quarters of each fiscal year,
commencing with the fiscal quarter ending December 31, 2000, 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) 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).
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
49
<PAGE>
and with prior periods (except as approved by the Borrower's Accountant or the
Responsible 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 Borrower's Accountant
--------------
stating that in making the examination necessary therefor such firm did not
discover the existence of any 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 has
occurred and is continuing, except, in each case, as specified in such
certificate, (ii) a Compliance Certificate in the form of Exhibit B, including
---------
information in reasonable detail for determining compliance by the Borrower and
each other Loan Party with the financial covenants set forth in this Agreement
as of the last day of the applicable fiscal quarter or fiscal year, as the case
may be, and (iii) to the extent not previously disclosed to the Administrative
Agent (or the Administrative Agent notifies the Borrower that such information
is no longer required hereunder), a listing of (x) any county or state within
the United States where any Loan Party keeps inventory or equipment, (y) 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 (iii) (or, in the
case of the first such list so delivered, since the Closing Date) and (z) any
change in the jurisdiction of organization of any Loan Party;
(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, in form and substance satisfactory to the Administrative
Agent;
(d) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year and 90 days after the end of each fiscal year, a
narrative discussion and analysis of the financial condition and results of
operations of the Borrower and its Subsidiaries for such fiscal quarter or
fiscal year and, in the case of each quarterly discussion and analysis, for the
period from the beginning of the then current fiscal year to the end of such
fiscal quarter;
(e) no later than five Business Days prior to the effectiveness
thereof, a copy of a substantially final draft of any proposed amendment,
supplement, waiver or other modification to any Subordinated Note Document;
(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
50
<PAGE>
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
material obligations of whatever nature, including 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, to the extent and for so long
as (i) the failure to make such payment, in the case of income, real estate or
other taxes would result in the attempted or actual foreclosure of a lien
against any of the Property of the 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 the 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 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 the Borrower's Accountant.
51
<PAGE>
7.7 Notices. Promptly after any Executive Officer or Director of the
-------
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;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any other Loan Party or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any other 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 (including any litigation or
proceeding under any Environmental Law) 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 Compliance with Laws. (a) Comply in all material respects with all
--------------------
applicable laws, regulations, decrees, orders, judgments, licenses, material
contracts and permits.
(b) Comply in all material respects with, and ensure compliance in all
material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain, and ensure that all tenants and
52
<PAGE>
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.
(c) 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 other Loan Party for over
$500,000 (other than (x) any Property described in clause (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 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 (k)), promptly (i) execute and deliver a first priority
-------------- ---
(except to the extent that such Liens 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 Administrative Agent the certificates, if any, representing such
Capital Stock together with undated stock powers, in blank, executed and
delivered by a duly authorized
53
<PAGE>
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 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 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 65% 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 Interest Rate Protection. Within 90 days following the Effective
------------------------
Date, enter into one or more interest rate protection agreements with
counterparties reasonably satisfactory to the Administrative Agent (each, an
"Interest Rate Protection Agreement") effectively fixing the interest rates (at
rates reasonably satisfactory to the Administrative Agent) on not less than 50%
of the aggregate principal amount of the Term Loans scheduled to be outstanding
for a period of not less than three years.
7.11 Insurance. Each Loan Party shall (i) keep all 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 the Administrative Agent. Policies
of insurance required hereunder shall inure to the benefit of the Lenders
through such endorsements and assignments as the Administrative Agent shall
reasonably deem necessary or appropriate.
54
<PAGE>
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) Maximum Leverage Ratio. Permit the Leverage Ratio to exceed (i)
----------------------
2.00 to 1.00 at any time during the calendar year ending December 31, 2001, (ii)
1.75 to 1.00 at any time during the calendar year ending December 31, 2002 and
(iii) 1.50 to 1.00 at any time thereafter.
(b) Consolidated Fixed Charge Coverage Ratio. Permit the
----------------------------------------
Consolidated Fixed Charge Coverage Ratio for the period of four consecutive
fiscal quarters ending on the last day of any fiscal quarter to be less than
1.10:1.00.
(c) Adjusted EBITDA. Permit Adjusted EBITDA for the four
---------------
consecutive fiscal quarters ending on the last day of any fiscal quarter to be
less than $31,000,000.
8.2 Limitation on Indebtedness. Create, incur, assume or suffer to
--------------------------
exist 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), or
--------------
8.3(k);
------
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 8.2(d) and any refinancings, refundings, renewals or extensions thereof
---------------
(but not any increase in the principal amount thereof);
(e) (i) Guaranty Obligations not prohibited by Section 8.7 hereof and
-----------
(ii) Guaranty Obligations arising 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) Capital Lease Obligations;
(h) any Indebtedness extending the maturity of, or refunding or
refinancing (but not any increase in the principal amount thereof), in whole or
in part, any Indebtedness otherwise permitted hereunder; provided that the terms
--------
(including principal amount, interest rate,
55
<PAGE>
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 the 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); and
(j) Indebtedness under the Subordinated Notes;
provided, however, that notwithstanding the provisions of subsections 8.2(a)
-------- ------- ------------------
through 8.2(j) above, (i) the aggregate amount of all Indebtedness 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 amount of an Indebtedness described
in subsections 8.2(c), (f), (g), (h) and (i) shall at no time exceed $6,000,000
------------------ --- --- --- ---
and (iii) the aggregate amount of all Indebtedness described in subsection
----------
8.2(j) shall at no time exceed $6,000,000.
------
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 the following (collectively,
"Permitted Liens"):
---------------
(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;
56
<PAGE>
(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) 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 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),
57
<PAGE>
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 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 the 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, the Disposition of other assets having Net
---------
Cash Proceeds not to exceed $1,000,000 in the aggregate in any fiscal year;
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 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; (iii) the Borrower may
repurchase shares of its
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common stock pursuant to the Tender Offer; and (iv) the Borrower may repurchase
additional shares of its Capital Stock for a purchase price not to exceed
$2,000,000 in the aggregate so long as no Default exists at the time of such
repurchase or would result therefrom.
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) Guaranty Obligations in respect
of obligations of the Loan Parties permitted hereunder, (ii) Guaranty
Obligations described on Schedule 8.7, (iii) Guaranty Obligations arising in
------------
connection with indemnity programs for employees and or agents provided that
such Guaranty Obligations do not exceed in the aggregate at any time $5,000,000,
(iv) Guaranty Obligations in respect 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 all Guaranty Obligations permitted by this
subsection (iv) plus the aggregate amount of loans and advances made pursuant to
---------------
subsections (f), (g) and (j) of Section 8.8 shall not exceed $6,000,000.
--------------- --- --- -----------
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 for:
-----------
(a) extensions of trade credit in the ordinary course of business;
(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;
---------------
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(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; 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 (i)
--------------
$8,000,000 at any time that the Leverage Ratio as shown on the Compliance
Certificate for the most recent fiscal quarter is less than 1.0 to 1 or (ii)
$5,000,000 at any other time; and provided, further, that the aggregate amount
-------- -------
of all Investments made pursuant to this Section 8.8(k) shall not exceed
--------------
$2,500,000 in any Loan Year 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 Guaranty Obligations permitted solely by subsection 8.7(iv),
------------------
shall not exceed $6,000,000.
8.9 Subsidiaries, Partnerships, Joint Ventures and Restricted
---------------------------------------------------------
Investments. Own or create, directly or indirectly, any Subsidiaries other than
-----------
(i) any Subsidiary listed on Schedule 5.15, (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 (x)
such Subsidiary shall grant a valid first priority (subject only to Permitted
Liens) security interest in favor of the Administrative Agent in the assets held
by such Subsidiary and (y) each applicable Loan Party shall grant a valid first
priority security interest in favor of the Administrative Agent in the stock or
other ownership interests held by the applicable Loan Party in such Subsidiary,
and (iii) any other Subsidiary formed after the Closing Date that has been
approved in writing by the Administrative Agent, in its sole and absolute
discretion. Neither the Borrower nor any other 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 another 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 the Borrower and the other 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, the Borrower and any
-----------
other Loan Party 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
60
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(except for Permitted Liens) 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 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 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,
any Subordinated Note except as expressly permitted by the applicable
Subordinated Note 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 terms of any Subordinated Note Document (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
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 90 days' prior
---------------------------------------
written notice to the Administrative Agent, permit any fiscal year 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
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<PAGE>
assets financed thereby), in any case 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 Subsidiary Restriction
----------
created by any agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby, in which case such Subsidiary
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.
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
------------ --- --- ---
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<PAGE>
(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 clauses (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
Executive Officer or Director of the 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 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 subclause (i), (ii) or (iii) of this clause (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 subclause (i), (ii) or (iii) of this clause (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; (ii) there shall be
commenced against any Loan Party any case, proceeding or other action of a
nature referred to in subclause (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; (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; (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
subclause (i), (ii) or (iii) above; or (v) any Loan Party shall generally not,
------------- ---- -----
shall be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
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<PAGE>
(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 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
64
<PAGE>
of the outstanding common stock of the Borrower that exceeds the percentage held
by Warburg; or
(l) Any Subordinated Note shall cease, for any reason, to be validly
subordinated to the obligations of the Borrower and the other Loan Parties 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 subclause (i) or (ii) of clause (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 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; 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 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.
65
<PAGE>
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 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 Revolving Credit 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 or other document referred to or provided for in,
or received by any
66
<PAGE>
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, 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
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<PAGE>
a Lender or the Borrower referring to this Agreement, describing such 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 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 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 an "Indemnified Person") (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 Total
Percentage 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 Total Percentage immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
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disbursements of any kind whatsoever which may at any time (including at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against such Indemnified Person 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 Indemnified Person
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 Indemnified Person'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. Bank of America
-----------------------------------------------
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 Bank of America
were not the Administrative Agent hereunder and without notice to or consent of
the Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America 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, Bank of America 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 Bank of America 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
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the term "Administrative Agent" shall mean such successor agent and the retiring
Administrative Agent's appointment, powers 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 W-8BEN 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 W-8BEN as no longer valid.
(c) If any Lender claiming exemption from United States withholding
tax by filing IRS Form W-8ECI 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 clause (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 payable under this
Agreement or any other Loan Document; (ii) constituting property (including
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 Section 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 clause (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, with respect to Permitted Liens,
------------- --------
the Lenders agree that the 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 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, 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 Total Revolving Credit Commitments without
the written consent of all Revolving Credit Lenders; (iv) amend, modify or waive
any condition precedent to any extension of credit set forth in Section 6.2
-----------
(including in connection with any waiver of an existing 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 waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
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
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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, or as set forth on the signature pages
hereto, 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 Company
2215 Sanders Road
Suite 400
Northbrook, Illinois 60062
Attn:General Counsel
Telephone: (847) 753-7500
Telecopy: (847) 753-9067
The Administrative Agent: For notices of borrowing and payments:
Bank of America, N.A.
One Independence Center
101 North Tryon Street
NC1-001-15-04
Charlotte, North Carolina 28255-0001
Attn: Ms. Kendall Odom
Telephone: (704) 386-9046
Telecopy: (704) 406-0026
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 statement
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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, Attorney Costs of the
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 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 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 Swingline 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 hereunder and
under the other Loan Documents. In the event of any such sale by a
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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 Administrative
Agent and, so long as no Default has occurred and is continuing, the Borrower
(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 (which
assignment and delegation shall be of a constant, and not a varying, percentage
of all the assigning Lender's Loans and Commitment) pursuant to an Assignment
and Acceptance, substantially in the form of Exhibit F, 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 (so long as no Default has
occurred and is continuing), 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 from a Lender to an
Affiliate of such Lender or to another Lender or an assignment of all of a
Lender's interests under this Agreement), unless otherwise agreed by the
Administrative Agent. Upon such execution, delivery,
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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 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 (so long as no Default has
occurred and is continuing) 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 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
-------
G-1 or G-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.
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(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, including 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
77
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such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
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;
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(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 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
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<PAGE>
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.
11.16 Amendment and Restatement. This Agreement amends and restates the
-------------------------
Existing Agreement in its entirety and, after the Closing Date, the Existing
Agreement shall be of no further force or effect (except for any provision
thereof which by its terms survives termination thereof).
11.17 Other Agents. No Lender identified on the facing page of this
------------
Agreement or otherwise herein, or in any amendment hereof or other document
related hereto, as being the "Documentation Agent" or the "Syndication Agent"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement in such capacity. Each Lender acknowledges that it has not
relied, and will not rely, on any Person so identified in deciding to enter into
this Agreement or in taking or refraining from taking any action hereunder or
pursuant hereto.
[signature pages follow]
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<PAGE>
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/ Blake W. Harbaugh
Name: Blake W. Harbaugh
Title: Senior Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ W. Thomas Barnett
Name: W. Thomas Barnett
Title: Managing Director
BANK OF AMERICA, N.A., as a Lender
By: /s/ W. Thomas Barnett
Name: W. Thomas Barnett
Title: Managing Director
S-1
<PAGE>
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ Julie Anne Thick
Name: Julie Anne Thick
Title: Vice President
Address for notices:
135 S. LaSalle Street
Suite 1211
Chicago, IL 60603
Attention: Julie Thick
Facsimile: (312) 904-5142
S-2
<PAGE>
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as Syndication Agent
and as a Lender
By: /s/ Ross Weigand
Name: Ross Weigand
Title: First Vice President
Address for notices:
900 75th St
Willowbrook, IL 60521
Attention: Ross Weigand
Facsimile: (630) 655-9601
S-3
<PAGE>
SCHEDULE 1.1B
COMMITMENTS
<TABLE>
<CAPTION> Revolving Credit Term
Lender Commitment Commitment Total Commitment
------ ---------- ---------- ----------------
<S> <C> <C> <C>
Bank of America, N.A. $ 5,454,545.46 $14,545,454.54 $20,000,000.00
American National Bank & Trust $ 5,454,545.45 $14,545,454.55 $20,000,000.00
Company of Chicago
LaSalle Bank National Association $ 4,090,909.09 $10,909,090.91 $15,000,000.00
TOTALS $15,000,000.00 $40,000,000.00 $55,000,000.00
</TABLE>
S-4
<PAGE>
SCHEDULE 2.1(f)
AMORTIZATION OF TERM LOANS
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------------------
DATE PRINCIPAL PAYMENT
---- -----------------
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
March 31, 2001 $ 1,000,000
---------------------------------------------------------------------------------------------------------------------
June 30, 2001 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
September 30, 2001 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
December 31, 2001 $ 3,000,000
---------------------------------------------------------------------------------------------------------------------
March 31, 2002 $ 1,000,000
---------------------------------------------------------------------------------------------------------------------
June 30, 2002 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
September 30, 2002 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
December 31, 2002 $ 3,000,000
---------------------------------------------------------------------------------------------------------------------
March 31, 2003 $ 1,000,000
---------------------------------------------------------------------------------------------------------------------
June 30, 2003 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
September 30, 2003 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
December 31, 2003 $ 3,000,000
---------------------------------------------------------------------------------------------------------------------
March 31, 2004 $ 1,000,000
---------------------------------------------------------------------------------------------------------------------
June 30, 2004 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
September 30, 2004 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
December 31, 2004 $ 3,000,000
---------------------------------------------------------------------------------------------------------------------
March 31, 2005 $ 1,000,000
---------------------------------------------------------------------------------------------------------------------
June 30, 2005 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
September 30, 2005 $ 2,000,000
---------------------------------------------------------------------------------------------------------------------
December __, 2005 $ 3,000,000
---------------------------------------------------------------------------------------------------------------------
TOTAL $40,000,000
---------------------------------------------------------------------------------------------------------------------
</TABLE>
