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EXHIBIT 10.1
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of the 15th day of April, 1998, is made
by and between CRESTAR BANK, a Virginia banking corporation (the Lender),
XXXXXXXXX CORPORATION, a Maryland corporation (the Company), XXXXXXXXX
CORPORATION OF AMERICA, a Maryland corporation (ECA), EXECUTIVE AMENITIES,
INC., a Maryland corporation (Amenities), EXECUTIVE AMENITIES-WEST, INC., a
Maryland corporation (Amenities West), EXECUTIVE FURNITURE CENTRE, INC., a
Maryland corporation (Furniture), XXXXXX CORPORATE HOUSING, INC., a New York
corporation (Xxxxxx), CORPORATE ACCOMMODATIONS, INC., a Connecticut
corporation (Accommodations), and any Subsidiary (as defined herein) that
subsequently becomes a party to this Agreement, in accordance with the
provisions set forth below (together with the Company, ECA, Amenities,
Amenities West, Furniture, Xxxxxx and Accommodations, collectively, the
Borrowers, and individually, a Borrower).
RECITALS
The Lender has agreed to provide working capital and acquisition
financing to the Borrowers. The Borrowers are engaged as an integrated group
in the interim housing business. The integrated operation requires financing
on such a basis that the credit supplied to the Company be made available from
time to time to the other Borrowers, as required for the continued successful
operations of the Borrowers separately, and the integrated operation as a
whole. In that connection, the Borrowers have requested that the Lender extend
credit to the Borrowers to finance Permitted Acquisitions (as defined below)
and for other general corporate purposes of the Borrowers. Each Borrower
expects to derive substantial direct and indirect benefits from the credit
extended by the Lender to the other Borrowers, since the successful operation
of each of the Borrowers is dependent on the continued successful performance
of the functions of the integrated group.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the Lender, the Borrowers and any
Subsidiaries that may become parties to this Agreement agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings assigned to them below, which meanings shall be equally
applicable to the singular and plural forms of the terms defined.
"Acquired Assets" means the assets, stock or other ownership interests
to be purchased or acquired by an Acquisition Company pursuant to the terms of
an Acquisition Agreement.
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"Acquisition Agreement" means the agreement between an Acquisition
Company and a Target or the seller or sellers of a Target, pursuant to which
such Acquisition Company agrees to purchase substantially all of the assets,
stock or other ownership interests of a Target, or merge with a Target,
together with all amendments to such agreement.
"Acquisition Analysis" means, with respect to any proposed Acquisition
Agreement, an analysis, prepared by the chief financial officer of the Company,
of the structure and financial impact of the acquisition in question, including
the Target's most recent financial statements and a summary of the material tax
and accounting consequences related to the acquisition, which analysis shall be
in form and substance reasonably satisfactory to the Lender.
"Acquisition Company" means any Borrower or any Subsidiary of any
Borrower acquiring title to any of the Acquired Assets or merging with a
Target.
"Acquisition Facility Termination Date" means December 31, 2000.
"Acquisition Loan" means each loan to be made to the Borrowers by the
Lender pursuant to Section 23 of this Agreement.
"Acquisition Note" means each promissory note, in substantially the
form of Exhibit A attached to this Agreement, evidencing the joint and several
obligations of the Borrowers to repay each Acquisition Loan, together with
interest thereon, and all extensions, renewals, modifications and amendments
thereof.
"Affiliate" means, with respect to any specified Person, any other
Person that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of common stock, by contract or otherwise.
"Agreement" means this Loan Agreement, as the same may be amended,
modified or supplemented from time to time.
"Assumption Agreement" means each Assumption Agreement, substantially
in the form of Exhibit B attached to this Agreement, executed by a Subsidiary
that becomes a party to this Agreement, the Notes and other Loan Documents in
accordance with the provisions of Section 8.4 below.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized or required to close under the
laws of the State, and, with respect to the determination of LIBOR, on which
banks are open for business in the London interbank market.
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"Capital Lease" means any lease that has been or should be capitalized
on the books of the lessee in accordance with GAAP.
"Cash Management Agreement" means any applicable agreement between the
Company and the Lender pursuant to which funds are transferred automatically to
and from the Company's operating account or controlled disbursement account
with the Lender, as any such agreement may be amended, modified or supplemented
from time to time.
"Closing" means the initial disbursement of the Loans.
"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and all regulations issued pursuant thereto.
"Collateral" means, collectively, and includes all property of a
Borrower in which a Lien is granted to the Lender pursuant to a Security
Agreement or any other Loan Document.
"Covenant Compliance Certificate" means a certificate executed by a
Principal Officer of the Company, substantially in the form of Exhibit C
attached to this Agreement, containing a calculation of the financial covenants
contained in Section 7 below and certifying that no Default or Event of Default
has occurred.
"Date Affected Information Technology" means a system comprised of one
or more components including computer hardware, computer software or equipment
with computerized functions, which reads, produces or processes date data by
input, output or otherwise.
"Debt" means, collectively, and includes, without duplication, with
respect to any specified Person, (a) indebtedness or liability for borrowed
money (whether by loan, the issuance and sale of debt securities or the sale of
assets to another Person subject to an understanding or agreement, contingent
or otherwise, to repurchase such assets from such Person) or for the deferred
purchase price of property or services; (b) obligations as a lessee under a
Capital Lease; (c) obligations to reimburse the issuer of letters of credit or
acceptances; (d) all guaranties, endorsements (other than for collection or
deposit in the ordinary course of business) and other contingent obligations to
purchase, to provide funds for payment, to supply funds to invest in any other
Person or otherwise to assure a creditor against loss; (e) obligations under
interest rate swap, cap or collar agreements or similar agreements or
arrangements designed to protect that Person against fluctuations in interest
rates; (f) obligations under any foreign exchange contract, currency swap or
other similar agreements or arrangements designed to protect that Person
against fluctuations in currency values; and (g) obligations secured by any
Lien on property owned by the specified Person, whether or not the obligations
have been assumed.
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"Debt Coverage Ratio" means, at any time, the ratio of EBDA of the
Company and its Subsidiaries for the period of 12 months ended on the last day
of the most recently ended fiscal quarter of the Company to current maturities
of consolidated long-term Debt of the Company and its Subsidiaries then
outstanding, determined in accordance with GAAP.
"Default" means any event that, with the giving of notice, the lapse
of time, or both, would constitute an Event of Default.
"Default Rate" means the rate at which interest accrues on the loans
upon the occurrence of an Event of Default, determined in accordance with the
provisions of Section 2.4.
"Dollars" and "$" means the lawful currency of the United States of
America.
"EBDA" means, for any Person for any period, (a) consolidated Net
Income of such Person and its Subsidiaries for such period, plus (b) to the
extent deducted to determine such consolidated Net Income, depreciation and
amortization expenses, less (c) to the extent added to determine such
consolidated Net Income, extraordinary or unusual or other gains not incurred
in the ordinary course of business, less (d) dividends paid by such Person
during such period, less (e) Non-Financed Capital Expenditures of such Person
and its Subsidiaries during such period for such period, in each case
determined in accordance with GAAP.
"EBITDA" means, for any Person for any period, (a) consolidated Net
Income of such Person and its Subsidiaries for such period, plus, (b) to the
extent deducted to determine such consolidated Net Income, the sum of (1)
depreciation expense, (2) interest expense, (3) amortization expense, and (4)
tax expense, less (c) to the extent added to determine such consolidated Net
Income, extraordinary or unusual gains or other gains not incurred in the
ordinary course of business, less (d) Non-Financed Capital Expenditures of such
Person and its Subsidiaries during such period, in each case determined in
accordance with GAAP.
"Equity Issuance" means any issuance or sale by a Person of its
capital stock or other similar equity security, or any warrants, options or
similar rights to acquire, or securities convertible into or exchangeable for,
such capital stock or other similar equity security.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all regulations issued pursuant thereto.
"Event of Default" means any of the events specified as an "Event of
Default" under this Agreement, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition, has been satisfied.
"Fully Date Capable" means the ability to correctly process date data
(including, but not limited to, reading, producing, calculating, comparing, and
sequencing date data) from, into, and between the twentieth and twenty-first
centuries) without material degradation in performance
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and without unusual intervention, including correct and continuous processing
during the transition between 1999 and 2000, and correct processing if leap
years.
"Funded Debt" means, for any Person, the sum of the consolidated Debt
of such Person and its Subsidiaries for (a) borrowed money, the deferred
purchase price of property or services and obligations under repurchase
agreements, (b) Capital Lease obligations, (c) the amount of any outstanding
Debt guaranteed and (d) contingent or matured reimbursement obligations for
letters of credit issued for the account of such Person or any Subsidiary of
such Person, in each case determined in accordance with GAAP.
"Funded Debt Ratio" means, at any time, the ratio of (a) Funded Debt
of the Company and its Subsidiaries outstanding on the last day of the most
recently ended fiscal quarter of the Company to (b) EBITDA of the Company and
its Subsidiaries for the period of 12 months then ended.
"GAAP" means generally accepted accounting principles consistently
applied.
"Increased Costs" means any reserve, special deposit, capital adequacy
guideline or similar requirement relating to any extensions of credit or other
assets of the Lender, or the deposits with or other liabilities of the Lender,
that (a) is imposed as a result of any Regulatory Change or as a result of the
application of existing capital adequacy guidelines (including, without
limitation, any Regulatory Change or capital adequacy guideline that requires
that letters of credit issued, or lines of credit established, by the Lender be
classified as "risk assets" for purposes of, or otherwise be subject to the
provisions of, any capital adequacy guidelines applicable to the Lender), and
(b) increases the cost to the Lender of making, issuing or maintaining any
Loan, reduces the amount receivable by the Lender in connection with any Loan,
or reduces the rate of return on the Lender's capital as a consequence of its
obligations under this Agreement.
"Interest Payment Date" means the first day of each calendar month.
"LIBOR" means for each calendar month, the rate at which dollar
deposits with a one-month maturity are offered to leading banks in the London
interbank market at 11:00 a.m. (London time) on the first Business Day of such
calendar month, based on the British Bankers Association quotations published
by an On-Line Information Service, selected by the Lender, plus adjustments
(expressed as a percentage) for reserve requirements, all of the foregoing as
determined by the Lender's Funds Management Division in accordance with its
customary practices.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement, or preferential
arrangement, charge or encumbrance of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
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agreement, any Capital Lease and the filing of any financing statement under
the UCC or comparable law of any jurisdiction to evidence any of the
foregoing).
"Loan Documents" means this Agreement, the Notes, each Security
Agreement, any Cash Management Agreement, and any other document now or
hereafter executed or delivered in connection with the Obligations, in evidence
thereof or as security therefor, including, without limitation, any life
insurance assignment, pledge agreement, security agreement, deed of trust,
mortgage, guaranty, promissory note or subordination agreement.
"Loans" means the Revolving Loans, the Term Loans and the Acquisition
Loans to be made to the Borrowers under this Agreement.
"Maximum Amount" means $5,000,000; provided, however, that the Maximum
Amount shall be permanently reduced by an amount equal to the original
principal amount of each Term Loan made by the Lender, with each such reduction
becoming effective on the date of disbursement of each Term Loan.
"Minimum Net Worth Level" shall mean $30,000,000 through and
including March 31, 1998, and adjusted upward, effective as of June 30, 1998,
and as of the end of each fiscal quarter of the Company thereafter, by an
amount equal to the sum of (a) 75% of the Net Income of the Company and its
Subsidiaries for such fiscal quarter, with each of the foregoing increases being
fully cumulative, and with no reduction being made on account of any negative
Net Income of the Company and its Subsidiaries for any fiscal quarter, plus (b)
90% of the aggregate amount of the Net Equity Proceeds received by the Company
or any Subsidiary during such fiscal quarter.
"Net Equity Proceeds" means, with respect to an Equity Issuance by a
Person, the aggregate amount of all cash received by such Person in respect of
such Equity Issuance net of investment banking fees, legal fees, accountants
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred by such Person in connection with such Equity
Issuance.
"Net Income" means, for any Person for any period, the consolidated
gross revenues of such Person and its Subsidiaries for such period less all
consolidated operating and non-operating expenses (including taxes) of such
Person and its Subsidiaries for such period, all as determined in accordance
with GAAP.
"Non-Financed Capital Expenditures" means, for any Person for any
period, capital expenditures of such Person (including, without limitation,
expenditures for property on or held for lease) that are not financed
contemporaneously with the incurrence of such expenditure, or within 120 days
thereafter, with Debt incurred by such Person.
"Notes" means the Revolving Note, each Term Note and each Acquisition
Note.
"Net Worth" means, at time, amounts that would be included under
stockholders' equity on the consolidated balance sheet of the Company and its
Subsidiaries.
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"Obligations" means the Loans, the Notes, and all other indebtedness
and obligations of the Borrowers to the Lender, now existing or hereafter
arising, of every kind and description, direct or indirect, fixed or
contingent, liquidated or unliquidated, due or to become due, secured or
unsecured, joint, several or joint and several, as amended, modified, renewed,
extended or increased from time to time.
"On-Line Information Service" means a text line or other on-line
information service provided to the Lender by any of Reuters Information
Services, Inc., Xxxxxx-Xxxxxx Financial/Americas, Dow Xxxxx Telerate, Inc. or
Bloomberg Financial Markets News Services, or any comparable reporting service
selected by the Lender.
"Organizational Documents" means, with respect to any Person that is
an entity, such Person's articles or certificate of incorporation, bylaws,
partnership agreement and certificate, articles of organization and operating
agreement, trust agreement, or such other documents as may govern such Person's
formation, organization and management.
"Permitted Acquisition" means the purchase of Acquired Assets by an
Acquisition Company pursuant to an Acquisition Agreement provided that (a) the
Pro Forma Financials reflect that the Borrowers will be in compliance with all
of the financial covenants set forth in Section 7 of this Agreement as of the
closing of such purchase, (b) the Net Income of the Target, exclusive of
extraordinary or unusual gains or losses, or other gains or losses not incurred
in the ordinary course of business, to the extent added or subtracted to
determine such Net Income, for the most recent 12-month period is not less than
$0, unless otherwise approved by the Lender, (c) the Target is in substantially
the same line of business as the Company, (d) the Lender receives not less than
five days' prior written notice of the closing thereof, (e) no Default or Event
of Default shall occur after giving effect thereto, and (f) if such purchase is
for consideration of more than $5,000,000, it has been approved by the Lender.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority, limited liability company or other entity of whatever
nature.
"Primary Operating Account" means any deposit account or controlled
disbursement account on which a Borrower draws to pay all or substantially all
of its operating expenses.
"Prime Rate" means the rate of interest established and announced from
time to time by the Lender and recorded in its Central Credit Administration
Division as its Prime Rate, it being understood and agreed that the Prime Rate
is used as a reference for fixing the lending rate on commercial loans and is
not necessarily the lowest or most favorable rate of interest charged by the
Lender on such loans.
"Principal Officer" means the President, the Chief Executive Officer
or the Chief Financial Officer of the Company.
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"Pro Forma Financials" means, with respect to any Target or
Acquisition Company, consolidated and consolidating balance sheets and income
statements of the Company and Target or Acquisition Company, as applicable,
setting forth projections for the 12-month period following the acquisition
after giving effect to the closing of the related Acquisition Agreement and
Acquisition Loan, and setting forth in reasonable detail the assumptions
underlying such projections, which assumptions are acceptable to the Lender.
"Regulatory Change" means any change, after the date of this
Agreement, in any federal or state laws, rules and regulations, or
interpretations thereof, or the adoption after the date of this Agreement of
any rules, interpretations, directives or requests, applying to a class of
financial institutions including the Lender, under any federal or state laws or
regulations by any court or regulatory authority charged with the
interpretation or administration thereof.
"Reinvestment Loss" means, with respect to any Acquisition Loan or
Term Loan that bears interest based on the Treasury Rate and is being prepaid
in whole or in part, the amount by which the present value of the interest that
would have been earned on the prepaid amount for the remaining term of such
Loan exceeds the present value of the interest that would be earned by
reinvesting such prepaid amount at the Treasury Rate for such remaining Loan
term. To compute such present value, the applicable Treasury Rate for the
remaining Loan term shall be used as the discount rate.
"Related Acquisition Documents" means the documents described in any
Acquisition Agreement and related in any manner to the acquisition of any
Acquired Assets, including, but not limited to, the buy/sell agreement,
historical financial statements of the Target and a detailed description of the
Acquired Assets, and every other document, instrument or certificate executed
in connection with such Acquisition Agreement.
"Revolving Facility Termination Date" means December 31, 1998.
"Revolving Loans" means the loans to be made to the Borrowers by the
Lender pursuant to Section 2.1 of this Agreement.
"Revolving Note" means a $5,000,000 promissory note in substantially
the form of Exhibit D attached to this Agreement, evidencing the joint and
several obligations of the Borrowers to repay each Revolving Loan, together
with interest thereon, and all extensions, renewals, modifications and
amendments thereof.
"SEC" means the Securities and Exchange Commission.
"Security Agreement" means a Security Agreement, in the form of
Exhibit E attached to this Agreement, from the Company and any other Borrower
that at any time owns a Subsidiary, in favor of the Lender, and granting to the
Lender as security for the Obligations a first priority
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Lien in all stock or other ownership interests in all Subsidiaries at any time
owned by the Borrowers.
"Spread" shall mean the percentage corresponding to the Funded Debt
Ratio set forth below, as calculated by the Lender. The applicable Spreads on
the date hereof are .75% for the LIBOR option, and 1.00% for the Treasury Rate
option. The Spreads will be adjusted on a quarterly basis based on the table
set forth below:
Spread for Spread for
Funded Debt Ratio LIBOR Treasury Rate
----------------- ----- -------------
Less than or equal to 1.5 to 1 0.75% 1.00%
Greater than 1.50 to 1 but less than or equal 0.95% 1.20%
to 2.5 to 1
Greater than 2.5 to 1 but less than or equal 1.25% 1.50%
to 4.0 to 1
The Spread will be adjusted to the percentage corresponding to the applicable
Funded Debt Ratio in effect as of the last day of each fiscal quarter of the
Company. The adjustment will become effective as of the first day of the
calendar month next succeeding the last day of the 30-day period within which
the Company must deliver its financial statements to the Lender pursuant to
Section 58. No decrease in the Spread shall become effective if, at such time,
any Default or Event of Default has occurred and is continuing. If the
Company's financial statements are not delivered to the Lender within the
specified time periods, the Spread may be increased, at the option of the
Lender, to the highest applicable percentage from the date on which the
statements were due through the next adjustment date.
"State" means the State of Maryland.
"Subsidiary" as to any Person, means a corporation, partnership,
limited 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 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 Company.
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"Target" means any Person, all or substantially all of the stock (or
comparable ownership interests) or assets of which are being acquired by an
Acquisition Company, or which is being merged or consolidated with an
Acquisition Company, pursuant to the terms of an Acquisition Agreement.
"Term Loan" means each loan to be made to the Borrowers by the Lender
pursuant to Section 2.2 of this Agreement.
"Term Note" means each promissory note, in substantially the form of
Exhibit F attached to this Agreement, evidencing the joint and several
obligations of the Borrowers to repay each Term Loan, together with interest
thereon, and all extensions, renewals, modifications and amendments thereof.
"Treasury Rate" shall mean, with respect to any Loan, the rate per
annum (rounded upwards, if necessary, to the next higher 1/100th of 1%) which
is the weekly average yield on United States Treasury Securities, adjusted to a
constant maturity equal to the term of such Loan (or for purposes of
determining the Reinvestment Loss, the remaining term of such Loan), for the
most recent weekly reporting period covered in the weekly statistical release
(currently entitled "Weekly Summary of Banking and Credit Measures") published
by the Board of Governors of the Federal Reserve System on the Friday most
immediately preceding the date on which such Loan is disbursed (or for purposes
of determining the Reinvestment Loss, on which such Loan is prepaid in whole or
in part).
"UCC" means the Uniform Commercial Code as in effect in the State.
SECTION 2. LOANS.
SECTION 2.1. REVOLVING LOANS.
(a) Subject to the terms and conditions of this
Agreement, the Lender agrees to make Revolving Loans to the Borrowers from time
to time until the Revolving Facility Termination Date in an aggregate principal
amount not to exceed at any one time outstanding the Maximum Amount. Up to the
Maximum Amount, the Borrowers may borrow, repay without penalty and reborrow
hereunder from the date of this Agreement until the Termination Date.
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(b) The proceeds of the Revolving Loans shall be used for
short-term working capital purposes and capital expenditures and for no other
purposes.
(c) The Company authorizes the Lender to make Revolving
Loans from time to time in amounts sufficient to pay checks drawn on the
Company's operating accounts with the Lender, subject to the limitation set
forth in Section 21(?) above, all as more particularly described in the Cash
Management Agreement. In addition, the Company may request that a Revolving
Loan be made. Any request for a Revolving Loan must be received by the Lender
no later than 12:00 noon (Washington, D.C. time) on the date on which the
Revolving Loan is to be made. Each request must specify the amount and purpose
of the Revolving Loan. The Lender, in its sole discretion, may accept requests
from the Company by telephone. If required by the Lender, requests made by
telephone shall be confirmed in writing and delivered to the Lender within two
Business Days after the date of the request. Revolving Loans may be requested
by those individuals designated by the Company from time to time in written
instruments delivered to the Lender; provided, however, that the Borrowers
shall remain liable with respect to any Revolving Loan disbursed by the Lender
in good faith hereunder, even if such Revolving Loan is requested by an
individual who has not been so designated. The proceeds of each Revolving Loan
will be credited to a deposit account maintained with the Lender by the Company
pursuant to a Cash Management Agreement. The Company agrees to confirm in
writing from time to time, when and as requested by the Lender, the purpose for
which the proceeds of each Revolving Loan were used.
(d) The unpaid principal balance of the Revolving Loans
shall bear interest at a rate per annum equal to LIBOR plus the applicable
Spread in effect from time to time. The interest rate on the Revolving Loans
shall be determined based on LIBOR in effect as of the date of disbursement of
the initial Revolving Loan and shall be adjusted on the first Business Day of
each succeeding calendar month (to be effective as of the first day of such
calendar month if not a Business Day) to reflect LIBOR then in effect, and the
applicable Spread shall be adjusted from time to time as provided in the
definition of such term. Payments of interest on each Revolving Loan shall be
made on each Interest Payment Date, beginning on the Interest Payment Date next
succeeding the date of disbursement of such Revolving Loan.
(e) The obligation of the Borrowers to repay the
Revolving Loans, together with interest thereon, shall be evidenced by the
Revolving Note. The unpaid principal balance of the Revolving Note shall be
payable on the Revolving Facility Termination Date.
SECTION 2.2. TERM LOANS.
(a) Subject to the terms and conditions of this
Agreement, the Lender agrees to make Term Loans to the Borrowers from time to
time until the Revolving Facility Termination Date, in an aggregate principal
amount not to exceed $5,000,000. The minimum amount of each Term Loan shall be
$500,000.
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(b) The proceeds of the Term Loans shall be used to pay
for capital expenditures incurred by the Borrowers, or to refinance Revolving
Loans that were used to finance such capital expenditures. The Lender must
receive written notice of the Company of a request for a Term Loan, specifying
the amount requested, at least five Business Days prior to the date on which
the Term Loan is to be made. Such notice shall (1) include a specific
description of the capital expenditures incurred, (2) if requested by the
Lender, be accompanied by copies of receipts, invoices, canceled checks or
other satisfactory evidence of such expenditures, and (3) specify the interest
rate option selected by the Company.
(c) The unpaid principal balance of each Term Loan from
time to time outstanding shall bear interest at a per annum rate equal to (1)
the Treasury Rate most recently published prior to the date of disbursement of
such Term Loan plus the applicable Spread in effect on such date, or (2) LIBOR
plus the applicable Spread in effect from time to time, whichever is selected
by the Company. If the LIBOR option is selected, the interest rate on such
Term Loan shall be determined based on LIBOR in effect as of the date of
disbursement and shall be adjusted on the first Business Day of each succeeding
calendar month (to be effective as of the first day of such calendar month if
not a Business Day) to reflect LIBOR then in effect, and the applicable Spread
shall be adjusted from time to time as provided in the definition of such term.
If the Treasury Rate Option is selected, the interest rate on such Term Loan
shall be fixed for the entire term based on the Treasury Rate most recently
published prior to the date of disbursement and Spread in effect on the date of
disbursement. Payments of interest on each Term Loan shall be made on each
Interest Payment Date, beginning on the Interest Payment Date next succeeding
the date of disbursement of such Term Loan.
(d) The joint and several obligations of the Borrowers to
repay each Term Loan, together with interest thereon, shall be evidenced by a
Term Note. The aggregate principal amount of each Term Note shall be payable
in 24 equal consecutive monthly installments of principal due on the first day
of each calendar month beginning on the first such payment date next succeeding
the date on which such Term Loan has been disbursed. If not sooner paid, the
entire unpaid principal balance of each Term Note and all accrued and unpaid
interest thereon shall be due and payable in full on the date on which the last
scheduled principal installment under such Term Note is due. The amount of
each monthly installment of principal shall be equal to 1/24th of the original
principal amount of such Term Note. The Borrowers shall have the right to
prepay a Term Note in whole or in part at any time. Partial prepayments of a
Term Note shall be applied to installments due thereunder in the inverse order
of their maturities. If the Borrowers prepay, in whole or in part, a Term Note
that bears interest based on the Treasury Rate, the Borrowers shall pay a
prepayment premium equal to the Reinvestment Loss. Amounts prepaid with
respect to the Term Loans may not be reborrowed.
SECTION 2.3. ACQUISITION LOANS.
(a) Subject to the applicable terms and conditions of
this Agreement, the Lender agrees to make Acquisition Loans to the Borrowers
from time to time until the
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Acquisition Facility Termination Date in an aggregate principal amount not to
exceed $20,000,000.
(b) The proceeds of each Acquisition Loan shall be used
to finance the purchase or acquisition of a Permitted Acquisition by an
Acquisition Company pursuant to the terms of an Acquisition Agreement.
(c) Any request for an Acquisition Loan shall be made
upon written notice from the Company, which must be received by not later than
five days prior to the date on which an Acquisition Loan of $5,000,000 or more
is to be made, and not later than one days prior to the date on which an
Acquisition Loan of less than $5,000,000 is to be made. Such notice shall
specify the interest rate selected by the Company, the term of the Acquisition
Loan (which shall not exceed five years), and the number of monthly principal
installments in which such Acquisition Loan is to be repaid. Such notice for
an Acquisition Loan of $5,000,000 or more shall be accompanied by a description
of the applicable Acquisition Company, the purchase price therefor and
preliminary drafts of the documents and information described in Section 83.
The Lender shall have the right to approve or decline, in its sole discretion,
any Acquisition Loan of more than $5,000,000.
(d) Each Acquisition Loan shall bear interest on the
unpaid principal balance thereof from time to time outstanding at a rate per
annum equal to (1) the Treasury Rate most recently published prior to the date
of disbursement of such Acquisition Loan plus the applicable Spread in effect
on such date, or (2) LIBOR plus the applicable Spread in effect from time to
time, whichever is selected by the Company. If the LIBOR option is selected,
the interest rate on such Acquisition Loan shall be determined based on LIBOR
in effect as of the date of disbursement of such Acquisition Loan, and shall be
adjusted on the first Business Day of each succeeding calendar month (to be
effective as of the first day of such calendar month if not a Business Day) to
reflect LIBOR then in effect, and the Spread shall be adjusted from time to
time as provided in the definition of such term. If the Treasury Rate option
is selected, the interest rate on such Acquisition Loan shall be fixed for the
entire term based on the Treasury Rate most recently published prior to the
date of disbursement and Spread in effect on the date of disbursement.
Payments of interest on each Acquisition Loan shall be made on each Interest
Payment Date, beginning on the Interest Payment Date next succeeding the date
of disbursement of such Acquisition Loan.
(e) The joint and several obligations of the Borrowers
to repay each Acquisition Loan, together with interest thereon, shall be
evidenced by an Acquisition Note. The principal amount of each Acquisition
Note shall be payable in equal consecutive monthly installments of principal,
payable on the first day of each calendar month. The first principal payment
shall be made on such payment date as may be selected by the Company, but not
later than six months after the date on which such Acquisition Loan is
disbursed, and the final principal payment shall be due not later than five
years after the date on which such Acquisition Loan is disbursed. The amount
of each principal installment shall be equal to the original
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principal balance of Acquisition Loan divided by the scheduled number of
principal installments due. If not sooner paid, the entire unpaid principal
balance of each Acquisition Note and all accrued and unpaid interest thereon
shall be due and payable in full on the date on which the last scheduled
principal installment under such Acquisition Note is due. The Borrowers shall
have the right to prepay an Acquisition Note in whole or in part at any time.
Partial repayments of an Acquisition Note shall be applied to installments due
thereunder in the inverse order of their maturities. If the Borrowers prepay,
in whole or in part, an Acquisition Note that bears interest based on the
Treasury Rate, the Borrowers shall pay a prepayment premium equal to the
Reinvestment Loss.
(f) The closing of each transaction contemplated by an
Acquisition Agreement shall occur simultaneously with the making of an
Acquisition Loan. Each Acquisition Company shall be the owner of all of the
Acquired Assets free and clear of all Liens except Liens permitted by this
Agreement. No party to an Acquisition Agreement shall waive, except with the
consent of the Lender, any condition precedent to the obligation of such party
to close as set forth in such Acquisition Agreement. Each Acquisition Company
shall have performed all of its obligations to the sellers of the Target under
such Acquisition Agreement required to be performed on or before the closing
thereof. Each Acquisition Company shall become a Borrower pursuant to the
provisions of Section 84. If a Target remains as a surviving entity, the
Target also shall become a Borrower pursuant to the provisions of Section 8.4.
SECTION 2.4. PAYMENTS AND COMPUTATIONS. All payments due under this
Agreement (including any payment or prepayment of principal, interest, fees and
other charges) or with respect to the Notes or the Loans shall be made in
lawful money of the United States of America, in immediately available funds,
without defense, setoff or counterclaim, to the Lender at its office at
Commercial Loan Services, X.X. Xxx 00000, Xxxxxxxx, Xxxxxxxx 00000-0000, or at
such other place as the Lender may designate, and shall be applied first to
accrued fees, next to accrued late charges, next to accrued interest and then
to principal. If any payment of principal, interest or fees is due on a day
other than a Business Day, then the due date will be extended to the next
succeeding full Business Day and interest and fees will be payable with respect
to the extension. If any payment of principal, interest or fees is not made
within ten days of its due date, each Borrower agrees to pay to the Lender a
late charge equal to 5% of the amount of the payment; provided, however, that
as long as a Borrower makes payments of principal, interest and fees through
the Lender's automatic debit service, no late charge shall be payable if the
Lender fails to debit any such payment when it is due (if sufficient collected
funds are on deposit in such Borrower's account with the Lender), and such
failure shall not constitute an Event of Default hereunder. Upon the
occurrence of an Event of Default and during the continuation of such Event of
Default, interest shall accrue on the Loans at a per annum rate of 2% above the
rate of interest that otherwise would be applicable. Interest and fees shall
be computed on the basis of a year of 360 days and actual days elapsed. The
Lender may, but shall not be obligated to, debit the amount of any payment due
from a Borrower under this Agreement to any deposit or investment account of
such Borrower maintained with the Lender or any Affiliate of the Lender.
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No setoff, claim, counterclaim, reduction or diminution of any obligation of
any defense of any kind or nature that a Borrower has or may have against the
Lender (other than the defense of payment) shall be available against the
Lender in any suit or action brought by the Lender to enforce this Agreement or
any other Loan Document. The foregoing shall not be construed as a waiver by
the Borrowers of any rights or claims that the Borrowers may have against the
Lender, but any recovery upon such rights and claims shall be had from the
Lender separately, it being the intent of this Agreement and the other Loan
Documents that the Borrowers shall be obligated to pay, absolutely and
unconditionally, all amounts due hereunder and under the other Loan Documents.
SECTION 2.5. INCREASED COSTS. If, as a result of any Regulatory
Change or for any other reason, the Lender incurs Increased Costs, the
Borrowers agree to pay such Increased Costs to the Lender within ten Business
Days after receipt by the Borrowers of the Lender's invoice therefor. The
invoice will be accompanied by a written statement of the Lender setting forth
in reasonable detail the basis and the calculation of the Increased Costs. The
Lender's calculation shall include reasonable averaging and attribution methods
to determine the Increased Costs attributable to the Loans.
SECTION 2.6. COMMITMENT FEE. The Borrowers agree to pay to the
Lender on the first day of each January, April, July and October a fee of .35%
per annum of the average daily amount for the calendar quarter most recently
ended of the difference between $20,000,000 and the aggregate amount of
Acquisition Loans made by the Lender.
SECTION 2.7. PRIMARY DEPOSITORY RELATIONSHIP. If the Company fails
to maintain its Primary Operating Account with the Lender, interest shall
accrue on the Loans at a per annum rate of 1.0% above the rate of interest that
otherwise would be applicable, effective as of the first day following the day
on which the Company moves its Primary Operating Account.
SECTION 2.8. MANDATORY PREPAYMENT.
(a) The Borrowers shall prepay the Revolving Loans to the
extent that the aggregate amount of outstanding Revolving Loans exceeds the
Maximum Amount at any time.
(b) All Net Equity Proceeds received by any Borrower
shall be applied to the prepayment of the Loans, with such prepayments being
applied first to Acquisition Loans and then to Term Loans.
SECTION 2.9. COMPANY AS AGENT. Each Borrower appoints the Company as
its agent to request and receive the proceeds of the Loans on behalf of the
Borrowers, and to give all notices and consents on behalf of the Borrowers.
The Company agrees to distribute the proceeds of the Loans among the Borrowers
for the purposes contemplated by this Agreement.
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SECTION 3. COLLATERAL.
SECTION 3.1. SECURITY INTEREST. To secure the Obligations, each
Borrower shall grant to the Lender, its successors and assigns, a first
priority security interest in all stock and other ownership interests of such
Borrower in any Subsidiary, now owned or hereafter acquired, by executing and
delivering a Security Agreement to the Lender.
SECTION 3.2. PERFECTION OF SECURITY INTEREST. The Borrowers shall
perform any and all steps in all relevant or appropriate jurisdictions as may
be necessary or reasonably requested by the Lender to perfect, maintain and
protect the Lender's security interest in the Collateral. All instruments and
certificated securities that evidence the Collateral shall be delivered to the
Lender, duly endorsed in blank. The Borrowers shall pay the taxes and costs
of, or incidental to, any recording or filing of any financing statements
concerning the Lender's security interests.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrowers represent and
warrant that:
SECTION 4.1. INCORPORATION, GOOD STANDING AND DUE QUALIFICATION.
Each of the Borrowers (a) is a corporation or limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation; (b) has the power and authority
to own its assets and to transact the business in which it is now engaged or in
which it is proposed to be engaged; and (c) is duly qualified as a foreign
corporation or limited liability company and in good standing under the laws of
each other jurisdiction in which such qualification is required. As of the
date of this Agreement, ECA, Amenities, Amenities West, Furniture, Xxxxxx and
Accommodations are direct, wholly owned Subsidiaries of the Company and no
other Borrower owns any Subsidiaries.
SECTION 4.2. POWER AND AUTHORITY. The execution, delivery and
performance by the Borrowers of the Loan Documents to which each is a party
have been duly authorized by all necessary corporate actions and do not and
will not (a) require any consent or approval of, or filing or registration
with, any governmental agency or authority or the stockholders or members of
such Borrower; (b) contravene such Borrower's Organizational Documents; (c)
result in a breach of or constitute a default under any agreement or instrument
to which such Borrower is a party or by which it or its properties may be bound
or affected; (d) result in or require the creation or imposition of any Lien
upon or with respect to any of the properties now owned or hereafter acquired
by such Borrower; or (e) cause such Borrower to be in default under any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award applicable to such Borrower.
SECTION 4.3. LEGALLY ENFORCEABLE AGREEMENT. This Agreement is, and
each of the other Loan Documents when delivered under this Agreement will be,
legal, valid and binding obligations of the Borrowers, enforceable against the
Borrowers in accordance with their respective terms.
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SECTION 4.4. FINANCIAL STATEMENTS. The financial statements of the
Borrowers that have been furnished to the Lender in connection with this
Agreement are complete and correct and fairly present the financial condition
of the Borrowers as of the dates of such statements. Since the dates of such
statements, there has been no material adverse change in the condition
(financial or otherwise), business or operations of a Borrower. The Pro Forma
Financials, when and as delivered to the Lender, will represent the Company's
best estimate of the future operations of the applicable Acquisition Company
and Target and will be based on the assumptions stated therein, all of which
will be believed by the Company to be reasonable assumptions.
SECTION 4.5. LITIGATION. There is no pending or threatened action or
proceeding against or affecting any of the Borrowers before any court,
governmental agency or arbitrator, that, in any one case or in the aggregate,
may affect the financial condition, operations, properties or business of any
of the Borrowers in a materially adverse manner.
SECTION 4.6. OWNERSHIP AND LIENS. Each Borrower has title to all of
its assets, including the Collateral, and none of the Collateral or such assets
is subject to any Lien, except Liens permitted by this Agreement.
SECTION 4.7. ERISA. No Borrower has incurred any material
"accumulated funding deficiency" within the meaning of Section 302 of ERISA or
Section 412 of the Code, nor has a Borrower incurred any material liability to
the PBGC in connection with any "employee pension benefit plan" (as defined in
Section 3(2) of ERISA) established or maintained by any Borrower. None of the
employee pension benefit plans (as defined above) of a Borrower, nor any
trusts created thereunder, nor any trustee or administrator thereof, has
engaged in a "prohibited transaction," as such term is defined in Section 406
of ERISA or Section 4975 of the Code, that could subject such plans or any of
them, any such trust, or any trustee or administrator thereof, or any party
dealing with such plans or any such trust to any material liability or tax or
penalty on prohibited transactions imposed by such Sections 406 or 4975.
Neither a Borrower or an Affiliate of a Borrower is now, or at any time in the
past has been, obligated to make contributions to a "multiemployer plan," as
such term is defined in Section 4001(a)(3) of ERISA.
SECTION 4.8. TAXES. Each Borrower has filed all tax returns
(federal, state and local) required to be filed and has paid all taxes,
assessments and governmental charges and levies thereon to be due, including
interest and penalties.
SECTION 4.9. DEBT. No Borrower is in any manner directly or
contingently obligated with respect to any Debt that is not permitted by this
Agreement. No Borrower is in default with respect to any Debt.
SECTION 4.10. YEAR 2000. The Borrowers have undertaken reasonable
efforts to determine whether all material Date Affected Information Technology
used in the business operations of the Borrowers is Fully Date Capable, and, to
the extent necessary, the Borrowers
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have initiated efforts to make their material Date Affected Information
Technology Fully Date Capable prior to the date that the failure to be Fully
Date Capable would adversely affect the operation thereof.
SECTION 5. AFFIRMATIVE COVENANTS. The Borrowers jointly and severally
covenant and agree that:
SECTION 5.1. MAINTENANCE OF EXISTENCE. Each Borrower will preserve
and maintain its corporate or other legal existence and good standing in the
jurisdiction of its formation, and qualify and remain qualified to do business
in each jurisdiction in which such qualification is required.
SECTION 5.2. MAINTENANCE OF RECORDS. Each Borrower will keep
adequate records and books of account, in which complete entries will be made
in accordance with GAAP, reflecting all financial transactions of such
Borrower. The principal records and books of account, including those
concerning the Collateral, shall be kept at 0000 Xxxxxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000. No Borrower will move such records and books of
account or change its chief executive office or the name under which it does
business without giving the Lender at least 30 days' prior written notice.
SECTION 5.3. MAINTENANCE OF PROPERTIES. Each Borrower will maintain,
keep and preserve all of its properties (tangible and intangible) necessary or
useful in the proper conduct of its business in good working order and
condition, ordinary wear and tear excepted.
SECTION 5.4. CONDUCT OF BUSINESS. Each Borrower will continue to
engage in an efficient and economical manner in a business of the same general
type as conducted by it on the date of this Agreement and as otherwise defined
in its articles of incorporation or articles of organization, as applicable.
SECTION 5.5. MAINTENANCE OF INSURANCE. Each Borrower will maintain
insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated.
SECTION 5.6. COMPLIANCE WITH LAWS. Each Borrower will comply in all
respects with all applicable laws, rules, regulations and orders (including,
without limitation, ERISA), such compliance to include, without limitation,
paying, before the same become delinquent, all taxes, assessments and
governmental charges imposed upon it or upon its property.
SECTION 5.7. RIGHT OF INSPECTION. At any reasonable time and from
time to time, with reasonable notice, the Borrowers will permit the Lender or
any agent or representative of the Lender to make copies of and abstracts from
the records and books of account of, and visit the
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properties of, the Borrowers, and to discuss the affairs, finances and accounts
of the Borrowers with any of their respective officers and directors and the
Borrowers' independent accountants.
SECTION 5.8. REPORTING REQUIREMENTS. The Borrowers will furnish to
the Lender:
(a) Monthly Financial Statements of the Company. As soon
as available and in any event within 30 days after the end of each calendar
month, unaudited financial statements consisting of consolidated and
consolidating balance sheets of the Company and its Subsidiaries as of the end
of such month and consolidated and consolidating statements of income, cash
flows and stockholder's equity of the Company and its Subsidiaries for such
month and the period commencing at the end of the previous fiscal year and
ending with the end of such month, all in reasonable detail and stating in
comparative form the respective consolidated figures for the corresponding date
and period in the previous fiscal year, and all prepared in accordance with the
GAAP. Such financial statements shall be certified to be accurate by a
Principal Officer of the Company (subject to year-end adjustments) and, for the
last month in each fiscal quarter, shall be accompanied by a copy of the Form
10-Q filed by the Company with the SEC and a Covenant Compliance Certificate
for such period;
(b) Annual Financial Statements of the Company. As soon
as available and, in any event, within 90 days after the end of each fiscal
year of the Company, audited financial statements consisting of the
consolidated and consolidating balance sheets of the Company and its
Subsidiaries as of the end of such fiscal year, and consolidated and
consolidating statements of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for such fiscal year, all in reasonable detail and
all prepared in accordance with GAAP, accompanied by an opinion thereon
acceptable to the Lender of Xxxxx Xxxxxxxx LLP, or any other independent
certified public accounting firm selected by the Borrowers and acceptable to
the Lender, accompanied by the Form 10-K filed by the Company with the SEC for
such fiscal year;
(c) Management Letters. Promptly upon receipt thereof,
copies of any reports submitted to the Company by independent certified public
accountants in connection with examination of the financial statements of the
Company made by such accountants;
(d) Notice of Litigation. Promptly after the
commencement thereof, notice of all actions, suits and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting a Borrower, that seeks damages
of $500,000 or more or that, if determined adversely to such Borrower, could
have a material adverse effect on the financial condition, properties or
operations of such Borrower;
(e) Notice of Defaults and Events of Default. As soon as
possible and, in any event, within ten days after the occurrence of each
Default and Event of Default, a written notice setting forth the details of
such Default or Event of Default and the action that is proposed to be taken by
the Borrowers with respect thereto;
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(f) Proxy Statements, etc. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements and
reports that the Company files with the SEC or sends to its stockholders, other
than routine notices concerning the annual meetings of the Company;
(g) Press Release. Promptly after it is issued, any
press release concerning the Company or any of its Subsidiaries;
(h) Acquisition Analysis. Within 30 days after the
signing of an Acquisition Agreement, for which an Acquisition Loan of
$5,000,000 or more will be requested, Pro Forma Financials and an Acquisition
Analysis reflecting the consummation of each Acquisition Agreement and the
transactions incident thereto. The Pro Forma Financials shall be materially
correct and complete, and shall present fairly the financial condition of the
Borrowers as of the date immediately after consummation of such Acquisition
Agreement and the transactions incident thereto;
(i) Certain Acquisition Documents. Within 30 days of the
purchase of Acquired Assets for consideration of less than $5,000,000, the
documents described in Section 8.3 with respect to such purchase; and
(j) General Information. Such other information
respecting the condition or operations, financial or otherwise, of the
Borrowers as the Lender from time to time reasonably may request.
SECTION 5.9. YEAR 2000 COMPLIANCE. The Borrowers shall initiate and
maintain a program to identify any Date Affected Information Technology used in
the business operations of each of the Borrowers that is not Fully Date
Capable, and, in connection therewith, undertake in good faith to make all
material Date Affected Information Technology used in such business operations
Fully Date Capable prior to the date that the failure to be Fully Date Capable
would adversely affect the operation thereof. Each Borrower shall advise the
Lender in the event that such Borrower has reason to believe that any material
Date Affected Information Technology will not be Fully Date Capable prior to
the date that the failure to be Fully Date Capable would adversely affect the
operation thereof, and advise the Lender in the event that such Borrower has
reason to believe that it will be adversely affected by the failure of any
affiliated or nonaffiliated entity to have its Date Affected Information
Technology Fully Date Capable. The Borrowers agree to provide the Lender, upon
request, access to and copies of information necessary to permit the Lender to
determine whether each Borrower's Date Affected Information Technology is, or
will be, Fully Date Capable, including, without limitation, (i) minutes,
resolutions and reports to and from each Borrowers' Board of Directors or
committee thereof, (ii) internally generated reports, consultant reports or
auditor's report regarding the status of each Borrowers' Date Affected
Information Technology, (iii) all documents relating to a "Year 2000" program,
and (iv) officer certificates or other statements requested by the Lender
regarding status of Date Affected Information Technology. The Borrowers
acknowledge that the Lender's right to
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receive, or the Lender's receipt of, the foregoing information does not impose
any obligation on the Lender to assess the accuracy or effect of such
information, or to recommend or require remedial action of any kind. The
Borrowers hereby acknowledge that the actual or potential failure or
degradation of any material Date Affected Information Technology due to its
failure to be Fully Date Capable may constitute a material adverse change in
the Borrowers' business or financial condition.
SECTION 6. NEGATIVE COVENANTS. The Borrowers agree that, without first
obtaining the prior written consent of the Lender:
SECTION 6.1. LIENS. The Borrowers will not create, incur, assume or
permit to exist, any Lien upon or with respect to any of their properties, now
owned or hereafter acquired, except: (a) Liens in favor of the Lender; (b)
Liens that are incidental to the conduct of the business of a Borrower, are not
incurred in connection with the obtaining of credit and do not materially
impair the value or use of assets of such Borrower; and (c) purchase-money
Liens, whether now existing or hereafter arising (including those arising out
of a Capital Lease) on any fixed assets provided that (1) any property subject
to a purchase-money Lien is acquired by a Borrower in the ordinary course of
its respective business and the Lien on any such property is created
contemporaneously with such acquisition, (2) each such Lien shall attach only
to the property so acquired, (3) the Debt secured by all such Liens shall not
exceed the aggregate at any time outstanding $250,000 in the aggregate for all
of the Borrowers.
SECTION 6.2. DEBT. The Borrowers will not create, incur, assume or
permit to exist, any Debt, except: (a) the Obligations; (b) Debt of a Borrower
subordinated to the Obligations on terms satisfactory to the Lender; (c)
ordinary trade accounts payable; (d) Debt of a Borrower (including Debt arising
out of a Capital Lease) or any Subsidiary secured by purchase-money Liens
permitted by this Agreement; and (e) Debt of a Borrower to any other Borrower.
SECTION 6.3. MERGERS, ETC. No Borrower will merge or consolidate
with any Person, or permit any Subsidiary to do so, except that (a) one
Borrower may merge into or transfer assets to any other Borrower, and (b) an
Acquisition Company or a Target may merge with any Borrower or Subsidiary
provided that (1) the surviving entity becomes a Borrower pursuant to the
provisions of Section 84 of this Agreement, and (2) after giving effect
thereto, no Default or Event of Default shall occur.
SECTION 6.4. SALE AND LEASEBACK. No Borrower will sell, transfer or
otherwise dispose of, any real or personal property to any Person and
thereafter, directly or indirectly, lease back the same or similar property.
SECTION 6.5. DIVIDENDS AND DISTRIBUTIONS. The Company will not
declare or pay any dividends or distributions; or purchase, redeem, retire or
otherwise acquire for value any of its capital stock now or hereafter
outstanding; or make any distribution of assets to its stockholders as such
whether in cash, assets or obligations of the Company; or allocate or otherwise
set apart
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any sum for the payment of any dividend or distribution on, or for the
purchase, redemption or retirement of, any shares of its capital stock; or make
any other distribution by reduction of capital or otherwise in respect of any
shares of its capital stock; except that, subject to the compliance by the
Company with the provisions of Section 7 below, (a) the Company may declare and
deliver dividends and make distributions payable solely in common stock of the
Company, and (b) provided that after giving effect thereto, no Default or Event
of Default shall occur, the Company may pay cash dividends from retained
earnings.
SECTION 6.6. SALE OF ASSETS. No Borrower will sell, lease, assign,
transfer or otherwise dispose of, any of its now owned or hereafter acquired
assets, except for (a) goods sold or leased in the ordinary course of business
and (b) the sale or other disposition of assets other than Inventory no longer
used or useful in the conduct of its business and not exceeding $100,000 in the
aggregate for all Borrowers during any fiscal year; and (c) the sale, lease,
assignment or transfer of its assets by a Borrower to any other Borrower.
SECTION 6.7. LOANS. No Borrower will make any loan or advance to any
Person except for (a) travel advances or other advances in an aggregate amount
not to exceed $50,000 at any one time outstanding, which are made to any
employee of any Borrower in the ordinary course of such Borrower's business and
in furtherance of such employee's performance under a contract with a Customer
and (b) loans made to a Borrower by any other Borrower.
SECTION 6.8. GUARANTIES, ETC. No Borrower will assume, guarantee,
endorse or otherwise be or become directly or contingently responsible or
liable (including, but not limited to, any liability arising out of any
agreement to purchase any obligation, stock, assets, goods or services, or to
supply or advance any funds, assets, goods or services, or to maintain or cause
such Person to maintain a minimum working capital or net worth or otherwise to
assure the creditors of any Person against loss) for obligations of any Person,
or permit any such guaranties or liabilities to exist, except guaranties by
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business.
SECTION 6.9. ACQUISITIONS. No Borrower will form a Subsidiary,
become a partner or joint venturer with any person, or purchase or acquire all
or substantially all of the assets of any Person, or any capital stock of or
ownership interest in any other Person, except that an Acquisition Company may
purchase Acquired Assets in connection with a Permitted Acquisition provided
that (a) the applicable Acquisition Company and Target become Borrowers
pursuant to Section 84 and (b) after giving effect thereto, no Default or Event
of Default shall occur.
SECTION 6.10. TRANSACTIONS WITH AFFILIATES. No Borrower will enter
into any transaction, including, without limitation, the purchase, sale or
exchange of property or the rendering of any service, with any Affiliate,
except in the ordinary course of and pursuant to the reasonable requirements of
such Borrower's business and upon fair and reasonable terms no less favorable
to such Borrower than would be applicable in a comparable arm's-length
transaction with a Person not an Affiliate.
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SECTION 7. FINANCIAL COVENANTS. Until the Lender's obligation to make Loans
has been terminated and the Obligations have been paid in full, the Borrowers
agree that:
SECTION 7.1. NET WORTH. The Company shall maintain at all
times Tangible Net Worth of not less than the Minimum NET WORTH Level.
SECTION 7.2. FUNDED DEBT RATIO. The Company shall maintain for each
12-month period ending as of the last day of each fiscal quarter of the Company
a Funded Debt Ratio of not greater than 4.0 to 1.
SECTION 7.3. DEBT COVERAGE RATIO. The Company shall maintain for
each 12-month period ending as of the last day of each fiscal quarter of the
Company a Debt Coverage Ratio of not less than 1.5 to 1.
SECTION 8. CONDITIONS OF LENDING. The making of the Loans shall be subject
to the following conditions:
SECTION 8.1. CONDITIONS PRECEDENT TO CLOSING. The initial
disbursement of the Loans shall be subject to the following conditions
precedent:
(a) The Loan Documents shall have been appropriately
completed, duly executed by the parties thereto, recorded where necessary and
delivered to the Lender.
(b) No Default or Event of Default shall have occurred
and be continuing.
(c) All representations and warranties contained herein
shall be true and correct at the Closing Date.
(d) All legal matters incident to the Loans shall be
satisfactory to counsel for the Lender, and the Borrowers agree to execute and
deliver to the Lender such additional documents and certificates relating to
the Loans as the Lender reasonably may request.
(e) Financing statements in form and substance
satisfactory to the Lender shall have been properly filed in each office where
necessary to perfect the Lender's security interest in the Collateral,
termination statements shall have been filed with respect to any other
financing statements covering all or any portion of the Collateral and all
taxes and fees with respect to such recording and filing shall have been paid
by the Borrowers, and the Lender shall receive all instruments and certificates
evidencing the collateral, endorsed in blank.
(f) The Borrowers shall have delivered to the Lender (1)
certified copies of evidence of all corporate actions taken by the Borrowers to
authorize the execution and delivery of the Loan Documents, (2) certified
copies of the Organizational Documents of the Borrowers, (3) certificates of
incumbency and signatures for the officers of the Borrowers executing the Loan
Documents, (4) good standing certificates, dated not more than 30 days prior to
the Closing
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Date, from the appropriate state official of any state in which the Borrowers
are incorporated or qualified to do business, and (5) such additional
supporting documents as the Lender or counsel for the Lender reasonably may
request.
(g) The Lender shall have received the written opinion of
counsel to the Borrowers, issued by counsel acceptable to the Lender, and in
form and substance satisfactory to the Lender.
(h) The Lender shall have received financing statement,
judgment and tax lien searches reflecting that there are no Liens against the
Borrowers' assets other than those permitted by the Agreement.
SECTION 8.2. CONDITIONS PRECEDENT TO SUBSEQUENT DISBURSEMENTS. The
disbursement and issuance of subsequent Loans shall be subject to the following
conditions precedent:
(a) No Default or Event of Default shall have occurred
and be continuing.
(b) No material adverse change shall have occurred in the
financial condition of any Borrower.
(c) All representations and warranties shall be true and
correct at the date of such disbursement.
(d) No change shall have occurred in any law or
regulations thereunder or interpretations thereof that, in the opinion of
counsel for the Lender, would make it illegal for the Lender to make Loans
hereunder.
(e) For each Acquisition Loan and Term Loan, the Lender
shall receive an Acquisition Note or a Term Note, as applicable, appropriately
completed.
SECTION 8.3. ADDITIONAL CONDITIONS PRECEDENT TO SUBSEQUENT
DISBURSEMENTS OF ACQUISITION LOANS. In addition to the conditions precedent
stated in Section 8.2, the disbursement of any subsequent Acquisition Loan of
$5,000,000 or more shall be subject to the following conditions precedent:
(a) True and complete copies of the applicable
Acquisition Agreement, any Related Acquisition Documents (unless the Lender
otherwise elects not to require copies of the Related Acquisition Documents),
Pro Forma Financials and an Acquisition Analysis shall be delivered to the
Lender at least five Business Days prior to the disbursement of such
Acquisition Loan, with preliminary drafts thereof being delivered to the Lender
not less than 30 days prior to such disbursement.
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(b) The Acquisition Company shall deliver to the Lender a
certificate, dated as of the date of disbursement of the Acquisition Loan,
pursuant to which the Acquisition Company shall warrant and represent to the
Lender that (1) to the best of its knowledge, each of the representations and
warranties made by the sellers of the Target to the Acquisition Company under
such Acquisition Agreement is true and correct; (2) no broker or finder brought
about the making or closing of the Acquisition Loan made with respect to such
Acquisition Agreement, and neither the Borrowers nor the Lender have any
obligation to any Person in respect of any finder's or brokerage fees in
connection with such Acquisition Loan; (3) the parties to the Acquisition
Agreement have complied with all requirements of every bulk sales or transfer
law that may be applicable to the sale of the Acquired Assets to the
Acquisition Company, or the Acquisition Company has obtained indemnification
against any and all liability arising from the failure to so comply; (4) the
Acquisition Agreement and the Related Acquisition Documents approved by the
Lender have not been amended, (5) the applicable Acquisition Analysis and Pro
Forma Financials remain accurate and complete in all material respects; and (6)
as of the date immediately after the consummation of all the agreements and
transactions under and pursuant to such Acquisition Agreement, the Borrowers
will not have any material amount of liabilities, contingent or otherwise, not
reflected in the Pro Forma Financials.
(c) Termination statements shall have been filed with
respect to any financing statements covering all or any portion of the Acquired
Assets, except for financing statements perfecting Liens permitted by this
Agreement.
(d) The applicable Acquisition Company or Target, or
both, shall become Borrowers pursuant to the provisions of Section 8.4, unless
such Acquisition Company and Target, or either of them (1) has already become a
Borrower or (2) has been merged into a Borrower.
(e) The Lender shall have received evidence satisfactory
to it that, after giving effect to the Acquisition Loan, no Borrower is or will
be rendered insolvent within the meaning of Section 548 of the Federal
Bankruptcy Code and any applicable state fraudulent conveyance laws. This
condition may be satisfied by delivering to the Lender a Solvency Certificate,
in substantially the form of Exhibit G attached to this Agreement, dated as of
the disbursement date of the Acquisition Loan.
SECTION 8.4. CONDITIONS PRECEDENT TO SUBSIDIARIES BECOMING BORROWERS.
Each Acquisition Company and Target that is not a Borrower shall become a
Borrower under this Agreement, and any Subsidiary of the Company shall become a
Borrower under this Agreement, subject to the satisfaction of the following
conditions precedent:
(a) The Acquisition Company, Target or Subsidiary shall
execute and deliver to the Lender an Assumption Agreement.
(b) No Default or Event of Default shall have occurred
and be continuing.
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(c) All legal matters incident to such Acquisition
Company, Target or Subsidiary becoming a Borrower shall be satisfactory to
counsel for the Lender, and the Acquisition Company, Target or Subsidiary shall
execute and deliver to the Lender such additional documents and certificates
relating to the Loans as the Lender may reasonably request. Notwithstanding
the foregoing, the Lender and its counsel will not to attempt to renegotiate or
otherwise restructure the terms or conditions of any Acquisition Agreement.
(d) The Lender shall have received an opinion of counsel
to the Acquisition Company, Target or Subsidiary, addressed to the Lender,
covering such matters as the Lender may request, in form and substance
satisfactory to the Lender.
(e) Each Borrower with an ownership interest in the
Acquisition Company, Target or Subsidiary shall have executed and delivered to
the Lender a Security Agreement, financing statements in form and substance
satisfactory to the Lender shall have been properly filed in each office where
necessary to perfect the security interest of the Lender in the applicable
Collateral, termination statements shall have been filed with respect to any
other financing statements covering all or any portion of such Collateral, all
taxes and fees with respect to such recording and filing shall have been paid
by such Acquisition Company, Target or Subsidiary, the Lender shall have
received such lien searches or reports as it shall require confirming that the
foregoing filings and recordings have been completed, and the Lender shall
have received all instruments and certificated securities that evidence such
Collateral, endorsed in blank.
(f) The Acquisition Company, Target or Subsidiary shall
have delivered the following documents to the Lender, each of which shall be
certified as of the date on which it is to become a Borrower, by its secretary:
(1) copies of evidence of all actions taken by the Acquisition Company, Target
or Subsidiary to authorize the execution and delivery of the Assumption
Agreement and the other Loan Documents; (2) copies of the Organizational
Documents of the Acquisition Company, Target or Subsidiary; and (3) a
certificate as to the incumbency and signatures of the officers executing the
Assumption Agreement.
(g) The Lender shall have received a certificate of good
standing (or similar instrument) issued by the appropriate state official of
the state of incorporation of the Acquisition Company, Target or Subsidiary,
dated within 30 days of the date of the applicable Assumption Agreement.
SECTION 9. DEFAULT.
SECTION 9.1. EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default under this Agreement:
(a) Failure of a Borrower to pay any Obligation to the
Lender, including, without limitation, the principal of or interest on the
Notes or the Loans, when the same shall become due and payable, whether at
maturity, or otherwise, and such failure shall continue for a
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period of ten days after written notice to the Company from the Lender, which
may be a computer generated late payment notice; or
(b) Failure of the Borrowers to comply with any financial
covenant contained in Section 7 of this Agreement; or
(c) Failure of the Borrowers to perform or observe any
other term, condition, covenant, warranty, agreement or other provision
contained in this Agreement (except any such failure resulting in the
occurrence of another Event of Default described in this Section), within 30
days after receipt of notice from the Lender specifying such failure; or
(d) Discovery that any representation or warranty made or
deemed made by the Borrowers in this Agreement, any Loan Document or any
statement or representation made in any certificate, report or opinion
delivered pursuant to this Agreement (including any Borrowing Base Certificate
or financial statements) or in connection with any borrowing under this
Agreement was materially untrue or is breached in any material respect; or
(e) If, as a result of default, any other obligation of a
Borrower for the payment of any Debt in excess of $50,000 may be or is declared
to be due and payable prior to the expressed maturity thereof, unless and to
the extent that the declaration is being contested in good faith in a court of
appropriate jurisdiction; or
(f) A Borrower makes an assignment for the benefit of
creditors, files a petition in bankruptcy, petitions or applies to any tribunal
for any receiver or any trustee of such Borrower or any substantial part of its
property, or commences any proceeding relating to such Borrower under any
reorganization, arrangement, readjustments of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or
(g) If, within 60 days after the filing of a bankruptcy
petition or the commencement of any proceeding against a Borrower seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, the proceeding shall not have been dismissed, or, if, within 60
days after the appointment, without the consent or acquiescence of such
Borrower, of any trustee, receiver or liquidator of such Borrower or of all or
any substantial part of the properties of such Borrower, the appointment shall
not have been vacated; or
(h) Any judgment against a Borrower in excess of $50,000
or any attachment in excess of $50,000 against any property of a Borrower that
remains unpaid, undischarged, unbonded or undismissed for a period of 30 days,
unless and to the extent that the judgment or attachment is appealed in good
faith in a court of higher jurisdiction and the appeal remains pending; or
(i) If the Lender, in good faith, deems itself insecure
or determines that material adverse change occurs in the financial or business
condition of the Borrowers, and the
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cause for such determination is not cured to the Lender's satisfaction within
30 days after notice from the Lender to the Company specifying the Lender's
basis therefor; or
(j) The dissolution, liquidation or termination of
existence of a Borrower; or
(k) If the Borrowers fail to give the Lender any notice
required by this Agreement within ten days after the occurrence of the event
giving rise to the obligation to give such notice, provided that such failure
to give notice shall not constitute an Event of Default if the applicable Event
of Default or breach is cured within any grace period that otherwise would have
been applicable had the notice been timely given; or
(l) If the Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, and Xxxxxx
X. Xxxxx are no longer active in the management of the Borrowers; or
(m) The occurrence of an event of default under any other
Loan Document and the expiration of all applicable cure periods.
SECTION 9.2. REMEDIES UPON DEFAULT. Upon the occurrence of an Event
of Default, the following provisions shall be applicable:
(a) The Lender, at its option, may terminate its
obligation to make Loans under this Agreement and declare all Obligations,
whether incurred prior to, contemporaneous with or subsequent to the date of
this Agreement, and whether represented in writing or otherwise, immediately
due and payable and may exercise all of its rights and remedies against the
Borrowers and any Collateral.
(b) The Lender is hereby authorized at any time or from
time to time, without notice to the Borrowers (any such notice being expressly
waived by the Borrowers), to setoff and apply any deposit (general or special,
time or demand, provisional or final) or investment account at any time held,
including any certificate of deposit, and other indebtedness at any time owed
by the Lender or any of its affiliates, whether or not any such deposit or
indebtedness is then due, to or for the credit or account of a Borrower against
any and all of the Obligations.
(c) THE LENDER AND EACH BORROWER EXPRESSLY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 10. MISCELLANEOUS.
SECTION 10.1. COLLECTION COSTS. The Borrowers shall pay all of the
reasonable costs and expenses incurred by the Lender in connection with the
enforcement of this Agreement and the other Loan Documents, including, without
limitation, reasonable attorneys' fees and expenses.
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SECTION 10.2. MODIFICATION AND WAIVER. Except for the other
documents expressly referred to in this Agreement, this Agreement contains the
entire agreement between the parties and supersedes all prior agreements
between the Lender and the Borrowers. No modification or waiver of any
provision of this Agreement or any other Loan Document and no consent by the
Lender to any departure therefrom by the Borrowers shall be effective unless
such modification or waiver shall be in writing and signed by an officer of the
Lender with a title of vice president or any higher office, and the same shall
then be effective only for the period and on the conditions and for the
specific instances and purposes specified in such writing. No notice to or
demand on the Borrowers in any case shall entitle the Borrowers to any other or
further notice or demand in similar or other circumstances. No failure or
delay by the Lender in exercising any right, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies of the Lender contained in
this Agreement and the other Loan Documents are cumulative and not exclusive of
any rights or remedies otherwise provided by law.
SECTION 10.3. NOTICES. All notices, requests, demands or other
communications provided for in this Agreement (except for requests for
Revolving Loans made by telephone as described in Section 2.1 above) shall be in
writing and shall be delivered by hand, sent prepaid by Federal Express (or a
comparable overnight delivery service) or sent by the United States mail,
certified, postage prepaid, return receipt requested, to the Lender, at
Crestar Bank, , Attention: 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, or to the Borrowers at 0000 Xxxxxxxxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer. Any notice,
request, demand or other communication delivered or sent in the foregoing
manner shall be deemed given or made (as the case may be) upon the earliest of
(a) the date it is actually received, (b) the business day after the day on
which it is delivered by hand, (c) the business day after the day on which it
is properly delivered to Federal Express (or a comparable overnight delivery
service), or (d) the third business day after the day on which it is deposited
in the United States mail. A Borrower or the Lender may change its address by
notifying the other party of the new address in any manner permitted by this
Section 10.3. Rejection or other refusal to accept or the inability to deliver
because of a changed address of which no notice was given shall not affect the
date of such notice, election or demand sent in accordance with the foregoing
provisions.
SECTION 10.4. COUNTERPARTS. This Agreement may be executed by the
parties hereto individually or in any combination, in one or more counterparts,
each of which shall be an original and all of which together constitute one and
the same agreement.
SECTION 10.5. CAPTIONS. The captions of the various sections and
paragraphs of this Agreement have been inserted only for the purposes of
convenience; such captions are not a part of this Agreement and shall not be
deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of this Agreement.
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SECTION 10.6. SURVIVAL OF AGREEMENTS. All agreements,
representations and warranties made herein shall survive the delivery of this
Agreement and the making and renewal of the Loans hereunder.
SECTION 10.7. FEES AND EXPENSES. Whether or not any Loans are made
hereunder, the Borrowers shall pay on demand all out-of-pocket costs and
expenses incurred by the Lender in connection with the preparation,
negotiation, execution, delivery, filing, recording and enforcement of this
Agreement and any of the documents executed or delivered in connection
herewith, including, without limitation, the reasonable fees (up to $12,000)
and expenses of counsel to the Lender, and local counsel who may be retained by
the Lender, with respect to this Agreement and such documents and any
amendments thereof and with respect to advising the Lender as to its rights and
responsibilities thereunder.
SECTION 10.8. USE OF DEFINED TERMS. All terms defined in this
Agreement shall have the defined meanings when used in certificates, reports or
other documents made or delivered pursuant to this Agreement, unless the
context shall otherwise require.
SECTION 10.9. SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and bind the respective parties hereto and their successors and
assigns; provided, however, that no Borrower may assign its rights hereunder
without the prior written consent of the Lender.
SECTION 10.10. ACCOUNTING TERMS. All accounting terms used herein
that are not otherwise expressly defined in this Agreement shall have the
meanings respectively given to them in accordance with GAAP in effect on the
date of this Agreement. Except as otherwise provided herein, all financial
computations made pursuant to this Agreement shall be made in accordance with
GAAP and all balance sheets and other financial statements shall be prepared in
accordance with GAAP. Except as otherwise provided herein, whenever reference
is made in any provision of this Agreement to a balance sheet or other
financial statement or financial computation with respect to a Borrower, such
terms shall mean a consolidated balance sheet or other financial statement or
financial computation, as the case may be, with respect to such Borrower and
its Subsidiaries.
SECTION 10.11. CONFIDENTIALITY. Except as otherwise provided by
applicable law, the Lender shall utilize all non-public information obtained
pursuant to the requirements of this Agreement which has been identified as
confidential or proprietary by the Company in accordance with its customary
procedure for handling confidential information of this nature and in
accordance with safe and sound banking practices but in any event may make
disclosure: (a) to any of its affiliates (provided they shall agree to keep
such information confidential in accordance with the terms of this Section);
(b) as reasonably required by any bona fide assignee, participant or other
transferee in connection with the contemplated transfer of any Loan or
participations therein (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (c) as required by
any governmental authority or
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representative thereof or pursuant to legal process; (d) to the Lender's
independent auditors, counsel and other professional advisors (provided they
shall be notified of the confidential nature of the information); and (e) after
the happening and during the continuance of an Event of Default, to any other
Person, in connection with the exercise by the Lender of rights hereunder or
under any of the other Loan Documents.
SECTION 10.12. INTERPRETATION.
(a) This Agreement and the rights and obligations of the
parties hereunder shall be construed and interpreted in accordance with the
laws of the State of Maryland, without reference to conflict of laws
principles.
(b) The representations, warranties, covenants and
agreements contained in this Agreement shall be deemed to have been given and
undertaken by the Borrowers jointly and severally.
[SIGNATURES ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the Borrowers and the Lender have caused this
Agreement to be signed by their duly authorized representatives all as of the
day and year first above written.
LENDER:
------
CRESTAR BANK,
a Virginia banking corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
BORROWERS:
---------
XXXXXXXXX CORPORATION,
a Maryland corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
XXXXXXXXX CORPORATION OF AMERICA,
a Maryland corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXECUTIVE AMENITIES, INC.,
a Maryland corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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EXECUTIVE AMENITIES-WEST, INC.,
a Maryland corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
EXECUTIVE FURNITURE CENTRE, INC.,
a Maryland corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
XXXXXX CORPORATE HOUSING, INC.,
a New York corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
CORPORATE ACCOMMODATIONS, INC.,
a CONNECTICUT corporation
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
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LIST OF SCHEDULES & EXHIBITS
Exhibit A - Form of Acquisition Note
Exhibit B - Form of Assumption Agreement
Exhibit C - Covenant Compliance Certificate
Exhibit D - Form of Revolving Note
Exhibit E - Form of Security Agreement
Exhibit F - Form of Term Note
Exhibit G - Form of Solvency Certificate
34
