EX. 1
THIRD AMENDMENT
THIS THIRD AMENDMENT dated as of March 7, 2002 (this "Amendment")
amends the Amended and Restated Credit Agreement dated as of December 31, 2000
(as previously amended, the "Credit Agreement") among Xxxxx & Xxxxx Company (the
"Borrower"), various financial institutions (the "Lenders") and Bank of America,
N.A., as administrative agent (in such capacity, the "Administrative Agent").
Terms defined in the Credit Agreement are, unless otherwise defined herein or
the context otherwise requires, used herein as defined therein.
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Subject to the satisfaction of the conditions
precedent set forth in SECTION 4 of this Amendment, the Credit Agreement is
amended as follows:
1.1 AMENDMENTS TO DEFINITIONS.
(a) The pricing grid set forth in the definition of "Applicable
Margin" is amended in its entirety to read as follows:
==========================================================================================
Applicable Margin Applicable Applicable Margin
Leverage for Eurodollar Margin for Base for Swingline Commitment Fee
Ratio Loans Rate Loans Loans Rate
------------------------------------------------------------------------------------------
Greater than or 3.75% 2.75% 2.75% 1.50%
equal to
1.75:1.00
------------------------------------------------------------------------------------------
Greater than or 3.25% 2.50% 2.50% 1.50%
equal to
1.25:1.00 but
less than
1.75:1.00
------------------
Less than 3.00% 2.25% 2.25% 1.50%
1.25:1.00
==========================================================================================
(b) The definition of "Consolidated EBITDA" is amended in its
entirety to read as follows:
"'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 the
EBITDA attributable during such period (a) to any Person, in the case
of an Acquisition of all or substantially all of the capital stock or
equity of such Person, or (b) 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 (A) and (B) 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."
(c) The definition of "EBITDA" is amended in its entirety to read
as follows:
"`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
non-cash Restructuring Charges and (f) non-cash charges relating to
Signing Bonus Payments; MINUS, to the extent included in the statement
of such Consolidated Net Income for such period, the sum of (i)
interest income, (ii) 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 (iii) any other
non-cash income, all as determined in accordance with GAAP."
(d) The definition of "Excess Cash Flow" is amended in its
entirety to read as follows:
"`EXCESS CASH FLOW' means, for any period an amount equal to
the result of (a) Consolidated EBITDA for such period LESS (b)
Consolidated Fixed Charges for such period."
(e) The definition of "Permitted Acquisition" is amended in its
entirety to read as follows:
"`PERMITTED ACQUISITION' means any Acquisition approved in
writing by all Lenders."
(f) The definition of "Revolving Credit Commitment" is amended by
deleting the reference to "$15,000,000" therein and substituting "$6,000,000"
therefor.
(g) The definition of "Specified Percentage" is amended in its
entirety to read as follows:
"'SPECIFIED PERCENTAGE' means 50%."
(h) The definition of "Subordination Agreement" is amended in its
entirety to read as follows:
"'SUBORDINATION AGREEMENT' means any subordination agreement
relating to Subordinated Debt."
1.2 ADDITION OF DEFINITIONS. The following new definitions are
added to the Credit Agreement in appropriate alphabetical sequence to read as
follows:
"'ADDITIONAL TERM LENDER' means Warburg, Xxxxxx Investors,
L.P. and its successors and assigns.
'DEFERRED INSTALLMENT AMOUNTS' means (a) $625,000 of the
principal amount of Term Loans scheduled to be repaid on Xxxxx 00,
0000, (x) $1,250,000 of the principal amount of Term Loans scheduled to
be repaid on June 30, 2004, (c) $1,250,000 of the principal amount of
Term Loans scheduled to be repaid on September 30, 2004 and (d)
$1,875,000 of the principal amount of Term Loans scheduled to be repaid
on December 31, 2004.
'EQUITY OFFERING' means the issuance of equity of the Borrower
to one or more Persons in an amount not less than $11,000,000 having
terms reasonably acceptable to the Required Lenders.
'OPTION AGREEMENT' means the Option Agreement dated as of
March 7, 2002 among the Borrower, Warburg, Xxxxxx Investors, L.P. and
various other parties.
'RESTRUCTURING CHARGES' means charges taken by the Borrower in
connection with the closing of various locations of the Borrower and
its Subsidiaries.
'SUBORDINATED DEBT' means (a) the Subordinated Notes and (b)
any other Indebtedness of the Borrower which has maturities and other
terms, and which is subordinated to the obligations of the Borrower and
its Subsidiaries hereunder and under the other Loan Documents in a
manner, approved in writing by the Required Lenders."
1.3 DELETION OF DEFINITION. The definition of "Acquired Pro
Forma EBITDA" is deleted in its entirety.
-3-
1.4 AMENDMENTS TO SECTION 4.2. Section 4.2 is amended in its
entirety to read as follows:
"4.2 REDUCTION OR TERMINATION OF THE REVOLVING CREDIT
COMMITMENTS.
(a) 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 the 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
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.
(b) The amount of the Revolving Credit Commitments shall be
permanently reduced to $5,000,000 upon the earlier to occur of (i) June
3, 2002 or (ii) the receipt by the Borrower of the proceeds of the
Equity Offering."
1.4 AMENDMENTS TO SECTION 4.3.
(a) The first parenthetical phrase contained in Section 4.3(b)
(iii) is amended in its entirety to read as follows:
"(other than the issuance of any equity securities in connection with
the Equity Offering, the exercise of warrants or employee stock options
or the Borrower's employee stock purchase plan)".
(b) Section 4.3(b)(iv) is amended in its entirety to read as
follows:
"(iv) Within 60 days following the end of (A) the six-month
period ending September 30, 2002, (B) the calendar year ending December
31, 2002 (but only if Consolidated EBITDA for such year is greater than
$8,000,000) and (C) each period beginning with January 1st of any
calendar year (beginning January 1, 2003) and ending on the last day of
a calendar quarter in such calendar year, the Borrower shall prepay
Term Loans by an amount (rounded down, if necessary, to an integral
multiple of $50,000) equal to the Specified Percentage of Excess Cash
Flow for such period MINUS (x) in the case of CLAUSE (B), any
prepayment previously made pursuant to CLAUSE (A) and (y) in the case
of CLAUSE (C), any prepayment previously made pursuant to CLAUSE (C)
during such calendar year."
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(c) The first parenthetical phrase contained in Section 4.3(c)
(ii) is amended in its entirety to read as follows:
"(other than (x) the first $5,000,000 of Net Cash Proceeds from the
issuance of Subordinated Indebtedness after the effectiveness of the
Third Amendment to this Agreement (less the amount of Net Cash Proceeds
referred to in CLAUSE (Y) of the first parenthetical phrase of SECTION
4.3(C)(III)) and (y) Net Cash Proceeds from the issuance of other
Indebtedness permitted by SECTION 8.2)".
(d) The first parenthetical phrase contained in Section
4.3(c)(iii) is amended in its entirety to read as follows:
"(other than (x) Net Cash Proceeds from the issuance of equity
securities issued in connection with the Equity Offering, the exercise
of warrants or employee stock options or the Borrower's employee stock
purchase plan and (y) the first $5,000,000 of Net Cash Proceeds from
the issuance of other equity securities after the effectiveness of the
Third Amendment to this Agreement (less the amount of Net Cash Proceeds
referred to in CLAUSE (X) of the first parenthetical phrase of SECTION
4.3(C)(II))".
(e) Section 4.3(c)(iv) is amended in its entirety to read as
follows:
"(iv) Within 60 days following the end of (A) the six-month
period ending September 30, 2002, (B) the calendar year ending December
31, 2002 (but only if Consolidated EBITDA for such year is greater than
$8,000,000) and (C) each period beginning with January 1st of any
calendar year (beginning January 1, 2003) and ending on the last day of
a calendar quarter in such calendar year, the Borrower shall prepay
Revolving Loans by an amount (rounded down, if necessary, to an
integral multiple of $50,000) equal to the Specified Percentage of
Excess Cash Flow for such period MINUS (x) in the case of CLAUSE (A),
any prepayment required to be made pursuant to SECTION 4.3(B)(IV)(A);
(y) in the case of CLAUSE (B), any prepayment previously made pursuant
to SECTION 4.3(B)(IV)(A) or (B) or pursuant to CLAUSE (A) above; and
(z) in the case of CLAUSE (C), any prepayment previously made, or
concurrently required to be made, pursuant to SECTION 4.3(B)(IV)(C) or
pursuant to CLAUSE (C) above during such calendar year."
1.5 AMENDMENT TO SECTION 4.4. Section 4.4 is amended in its
entirety to read as follows:
"4.4 APPLICATION OF PREPAYMENTS OF TERM LOANS. Each prepayment
of Term Loans shall be applied FIRST, pro rata to repay the Deferred
Installment Amounts until paid in full and, THEN, pro rata to the
remaining installments of the Term Loans."
-5-
1.6 AMENDMENTS TO SECTION 7.2. Section 7.2 is amended by (a)
redesignating clause "(g)" as clause "(i)", (b) deleting the word "and" at the
end of clause (f) and (c) inserting the following new clauses (g) and (h) in
proper sequence:
"(g) Within 30 days after the end of each month, monthly
operating and cash flow statements for such month, including a
comparison of actual results against those set forth in the applicable
budget delivered pursuant to CLAUSE (C); and
(h) Within seven days after the end of each week, a rolling
13-week cash flow forecast in form and substance acceptable to the
Administrative Agent;".
1.7 ADDITION OF NEW SECTIONS 7.12 AND 7.13. The following new
Sections 7.12 and 7.13 are added to the Credit Agreement in proper sequence:
"7.12 CLEANDOWN OF REVOLVING CREDIT LOANS. Cause the aggregate
principal amount of all Revolving Credit Loans to be zero for at least
30 consecutive days during December of each year.
7.13 FINANCIAL ADVISOR. Pay the reasonable expenses of a
financial advisor retained by counsel to the Administrative Agent to
provide, without limitation, (a) an evaluation of the forecast
delivered to the Administrative Agent and the Lenders prior to the
execution and delivery of the Third Amendment to this Agreement and a
report to the Administrative Agent and the Lenders setting forth a
detailed analysis of such forecast, (b) a monthly report to the
Administrative Agent and the Lenders which shall include (i) a
comparison of the financial results for such month (as set forth in the
operating and cash flow statements delivered by the Borrower pursuant
to SECTION 7.2(G)) against the forecast described in CLAUSE (A) and
(ii) an evaluation of the financial condition of the Borrower and its
Subsidiaries and (c) such other information as the Administrative Agent
or any Lender may reasonably request in connection with the foregoing;
PROVIDED that, so long as no Event of Default exists, the Borrower
shall have the right to approve the scope of the services to be
performed by the financial advisor (such approval not to be
unreasonably withheld)."
1.8 AMENDMENTS TO SECTION 8.1.
(a) Section 8.1(a) is amended in its entirety to read as follows:
"(a) [Intentionally Deleted]."
(b) Section 8.1(b) is amended in its entirety to read as follows:
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"(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 the applicable ratio set forth below:
Minimum Consolidated Fixed
Fiscal Quarter Ending Charge Coverage Ratio
--------------------- --------------------------
12/31/03 1.00 to 1.0
3/31/04 and thereafter 1.05 to 1.0."
(c) Section 8.1(c) is amended in its entirety to read as follows:
"(c) ADJUSTED EBITDA. Permit Adjusted EBITDA for any
period set forth below to be less than the applicable amount
set forth below:
Period (Inclusive) Minimum Adjusted Ebitda
------------------ -----------------------
1/1/02 through 3/31/02 $ (8,700,000)
1/1/02 through 6/30/02 $(10,400,000)
1/1/02 through 9/30/02 $ (7,600,000)
1/1/02 through 12/31/02 $ 4,200,000
4/1/02 through 3/31/03 $ 7,500,000
7/1/02 through 6/30/03 $ 12,100,000
10/1/02 through 9/30/03 $ 16,600,000
Any period of four
consecutive fiscal
quarters ending thereafter $ 18,800,000."
1.9 AMENDMENT TO SECTION 8.2. Section 8.2 is amended by:
(a) amending clause (j) in its entirety to read as follows:
"(j) other Subordinated Debt not to exceed $5,000,000 at any
time outstanding having subordination provisions and other terms
reasonably acceptable to the Required Lenders;"
(d) amending the proviso at the end thereof to read in its
entirety as follows:
"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 $250,000 and (ii) the
aggregate amount of an Indebtedness described in SUBSECTIONS 8.2(C),
(F), (G), (H) and (I) shall at no time exceed $750,000."
-7-
1.10 AMENDMENT TO SECTION 8.8. Section 8.8 is amended by (a) deleting
the word "and" at the end of clause (j), (b) inserting a semicolon and the word
"and" at the end of clause (k) and (c) inserting the following new clause (l):
"(l) deposit accounts maintained with any Lender and deposit
accounts maintained on the effective date of the Third Amendment to
this Agreement; PROVIDED that, notwithstanding the foregoing, the
Borrower may not maintain after June 3, 2002 any deposit account with
any financial institution that is not a Lender unless such financial
institution shall have executed an account control agreement in form
and substance reasonably satisfactory to the Administrative Agent".
1.11 AMENDMENT TO SECTION 8.11. Clause (a)(i) of Section 8.11 is
amended in its entirety to read as follows:
"(a) (i) Make or offer to make any payment, prepayment,
purchase or redemption of, or otherwise defease or segregate funds with
respect to the principal of, any Subordinated Debt; PROVIDED that the
Borrower may convert convertible notes pursuant to, and pay with the
proceeds of the Equity Offering (or with the proceeds of the issuance
of any other Indebtedness or equity of the Borrower having terms
reasonably satisfactory to the Required Lenders) any Subordinated Debt
issued in connection with, the Option Agreement".
1.12 AMENDMENT TO SECTION 8.17. Section 8.17 is amended in its
entirety to read as follows:
"8.17 CAPITAL EXPENDITURES. The Borrower will not permit the
aggregate amount of all Capital Expenditures made by the Borrower and
its Subsidiaries during either of the 2002 or the 2003 calendar year to
exceed $5,000,000."
1.13 AMENDMENT TO SECTION 11.6. Clause (c) of Section 11.6 is
amended in its entirety to read as follows:
"(c) Any Lender (an "ASSIGNOR") may, in accordance with
applicable law, at any time and from time to time assign, with the
consent of the Administrative Agent (and, in the case of assignments of
Revolving Credit Commitments, the Issuing Lender), which consent in
each case will not be unreasonably withheld or delayed, to any other
Person (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, 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
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of less than $1,000,000 (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, 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)."
1.14 ADDITION OF NEW SECTION 12. The following new Section 12 is
added to the Credit Agreement in proper sequence:
"SECTION 12. AMOUNT AND TERMS OF
ADDITIONAL TERM LOAN
12.1 MAKING AND PAYMENT OF ADDITIONAL TERM LOAN. (a) The
Additional Term Lender will make a single term loan (the "ADDITIONAL
TERM LOAN") on March 7, 2002 in the principal amount of $5,000,000. The
Additional Term Loan shall be evidenced by a promissory note
substantially in the form of Exhibit C to the Third Amendment to this
Agreement.
(b) Subject to SECTIONS 12.2 and 12.3, the Borrower hereby
unconditionally promises to pay to the Administrative Agent for the
account of the Additional Term Lender the principal amount of the
Additional Term Loan on January 2, 2006. Amounts repaid with respect to
the Additional Term Loan may not be reborrowed.
12.2 SUBORDINATION OF ADDITIONAL TERM LOAN. Notwithstanding
anything to the contrary contained in this Agreement, but subject to
SECTION 12.3, the Additional Term Lender hereby acknowledges and agrees
that no payment of any Borrower Obligations owing in respect of the
Additional Term Loan (other than any payment of interest by an increase
in the principal amount of the Additional Term Loans) shall be made
prior to the payment in full in cash of all other Borrower Obligations
(collectively, the "SENIOR CLAIMS"). If any amount paid to the
Additional Term Lender in violation of the preceding sentence at any
time prior to the payment in full in cash of all Senior Claims, such
amount shall be held in trust for the benefit of the Lenders (other
than the Additional Term Lender) and shall promptly be paid to the
Administrative Agent for the ratable benefit of the Lenders (other than
the Additional Term Lender).
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12.3 PREPAYMENT OF ADDITIONAL TERM LOAN. The Borrower may
prepay the Additional Term Loan (a) after all other Borrower
Obligations have been paid in full in cash; or (b) so long as no
Default or Event of Default exists or would result therefrom, with the
proceeds of the Equity Offering.
12.4 INCORPORATION BY REFERENCE OF CERTAIN DEFINED TERMS AND
AGREEMENT SECTIONS. Other than in respect of (i) the terms "Required
Lenders", "Specified Revolver Proceeds", "Specified Term Proceeds",
"Term Commitment", "Term Percentage" and "Total Percentage" contained
in SECTION 1 and (ii) SECTIONS 1.3(B), 2.1(F)(II), 4.3(A) and (B), 4.7,
4.8, 4.10(B), 5.17(B), 7.10, 11.1 (other than with respect to CLAUSE
(I) of the proviso to the second sentence thereof), 11.6(B), (C) and
(D) and 11.7, (x) references to the terms "Lenders" and "Term Lenders"
shall be deemed to include by reference the Additional Term Lender and
(y) references to the terms "Loans" and "Term Loans" shall be deemed to
include by reference the Additional Term Loan, in each appropriate case
as the context permits."
1.15 AMENDMENT TO SCHEDULE 2.1(F). Schedule 2.1(f) is amended to
read as set forth as SCHEDULE 2.1(F) hereto.
SECTION 2 WAIVERS. Subject to the satisfaction of the conditions
precedent set forth in SECTION 4, the Required Lenders hereby waive any Event of
Default arising from (a) the Borrower's non-compliance with Section 8.1(a)
(maximum Leverage Ratio) of the Credit Agreement at any time prior to the date
hereof and (b) the Borrower's non-compliance with Sections 8.1(b) (minimum Fixed
Charge Coverage Ratio) and 8.1(c) (minimum Adjusted EBITDA) of the Credit
Agreement for the fiscal quarter ended December 31, 2001.
SECTION 3 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Administrative Agent and the Lenders that, after giving effect
to the effectiveness hereof, (a) each warranty set forth in Section 5 of the
Credit Agreement (other than those which speak as of a particular earlier date)
is true and correct as of the date of the execution and delivery of this
Amendment by the Borrower, with the same effect as if made on such date, and (b)
no Event of Default or Default exists.
SECTION 4 EFFECTIVENESS. The amendments set forth in SECTION 1 and the
waivers set forth in SECTION 2 above shall become effective when the
Administrative Agent shall have received (a) counterparts of this Amendment
executed by the Borrower and the Required Lenders, (b) a Confirmation,
substantially in the form of EXHIBIT A, signed by the Borrower and each
Subsidiary Guarantor, (c) an amendment fee for each Lender which, on or before
March 7, 2002, executes and delivers to the Administrative Agent a counterpart
hereof, such fee to be in an amount equal to 0.375% of such Lender's Commitment
as of the date of this Amendment (after giving effect to this Amendment), (d) an
option agreement substantially in the form of EXHIBIT B (the "Option Agreement")
executed by Warburg, Xxxxxx Investors, L.P. ("Warburg"), the
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Borrower and various other Persons and (e) evidence that Warburg has made an
additional term loan under the Credit Agreement in the amount of $5,000,000.
SECTION 5 MISCELLANEOUS.
5.1 CONTINUING EFFECTIVENESS, ETC. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the effectiveness of this Amendment, all
references in the Credit Agreement and the other Loan Documents to "Credit
Agreement" or similar terms shall refer to the Credit Agreement as amended
hereby.
5.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 GOVERNING LAW. This Amendment shall be a contract made under
and governed by the laws of the State of Illinois applicable to contracts made
and to be performed entirely within such state.
5.4 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon the
Borrower, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Borrower, the
Lenders and the Administrative Agent and the respective successors and assigns
of the Lenders and the Administrative Agent.
5.5 OPTION AGREEMENT. The Required Lenders consent to the
execution and delivery by the Company of the Option Agreement, and authorize
the Administrative Agent to enter into the Option Agreement on behalf of the
Lenders.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXX & XXXXX COMPANY
By /s/ Xxx X. Xxxxx
--------------------------------------------------------
Title: Chief Financial Officer
BANK OF AMERICA, N.A., as Administrative Agent
By /s/ W. Xxxxxx Xxxxxxx
--------------------------------------------------------
Title Managing Director
-----------------------------------------------------
LENDERS:
BANK OF AMERICA, N.A., as a Lender
By /s/ W. Xxxxxx Xxxxxxx
--------------------------------------------------------
Title Managing Director
-----------------------------------------------------
LASALLE BANK NATIONAL ASSOCIATION, as Documentation Agent
and as a Lender
By /s/ Xxxxx Xxxxxx
--------------------------------------------------------
Title Loan Officer
------------------------------------------------------
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as
Syndication Agent and as a Lender
By /s/ Xxxxxx Xxxxxxx
--------------------------------------------------------
Title First Vice President
-----------------------------------------------------
S-1
ADDITIONAL TERM LENDER:
WARBURG, XXXXXX INVESTORS, L.P.
By /s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Title Partner
----------------------------------------
S-2
Exhibit A
CONFIRMATION
Dated as of March 7, 2002
To: Bank of America, N.A., individually and as Agent, and the other financial
institutions party to the Credit Agreement referred to below
Please refer to (a) the Amended and Restated Credit Agreement dated as
of December 31, 2000 (as amended, the "Credit Agreement") among Xxxxx & Xxxxx
Company, various financial institutions (the "Lenders") and Bank of America,
N.A., as administrative agent (the "Administrative Agent"); (b) the other "Loan
Documents" (as defined in the Credit Agreement), including the Guaranty and
Collateral Agreement; and (c) the Third Amendment dated as of the date hereof to
the Credit Agreement (the "Third Amendment").
Each of the undersigned hereby confirms to the Administrative Agent and
the Lenders that, after giving effect to the Third Amendment and the
transactions contemplated thereby, each Loan Document to which such undersigned
is a party continues in full force and effect and is the legal, valid and
binding obligation of such undersigned, enforceable against such undersigned in
accordance with its terms.
XXXXX & XXXXX COMPANY
XXXXX & XXXXX NEW YORK, INC.
XXXXX & XXXXX OF MICHIGAN, INC.
XXXXX & XXXXX OF NEVADA, INC.
XXXXX & XXXXX OF OREGON, INC.
XXXXX & XXXXX AFFILIATES, INC.
XXXXX & XXXXX MANAGEMENT SERVICES, INC.
XXXXX & XXXXX MANAGEMENT SERVICES OF MICHIGAN, INC.
HSM INC.
XXXXXXXX HOSPITALITY INTERNATIONAL, INC.
XXXXXXXX REALTY GROUP, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------------
Name: Xxx X. Xxxxx
Title: Chief Financial Officer
EXHIBIT B
FORM OF OPTION AGREEMENT
EXHIBIT C
FORM OF NOTE
A-5
SCHEDULE 2.1(f)
AMORTIZATION OF TERM LOANS
-------------------------------------------------------------------------------
DATE PRINCIPAL PAYMENT
-------------------------------------------------------------------------------
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 0
-------------------------------------------------------------------------------
June 30, 2002 $250,000
-------------------------------------------------------------------------------
July 31, 2002 $150,000
-------------------------------------------------------------------------------
August 31, 2002 $150,000
-------------------------------------------------------------------------------
September 30, 2002 $150,000
-------------------------------------------------------------------------------
October 31, 2002 $150,000
-------------------------------------------------------------------------------
November 30, 2002 $150,000
-------------------------------------------------------------------------------
December 31, 2002 $2,000,000
-------------------------------------------------------------------------------
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 $1,625,000
-------------------------------------------------------------------------------
June 30, 2004 $3,250,000
-------------------------------------------------------------------------------
September 30, 2004 $3,250,000
-------------------------------------------------------------------------------
December 31, 2004 $4,875,000
-------------------------------------------------------------------------------
March 31, 2005 $1,000,000
-------------------------------------------------------------------------------
June 30, 2005 $2,000,000
-------------------------------------------------------------------------------
September 30, 2005 $2,000,000
-------------------------------------------------------------------------------
December 31, 2005 $3,000,000
-------------------------------------------------------------------------------
TOTAL $40,000,000
-------------------------------------------------------------------------------
