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:
==============================================================
Leverage Applicable Applicable Applicable Commitment
Ratio Margin for Margin for Margin for Fee Rate
Eurodollar Base Rate Swingline
Loans Loans Loans
--------------------------------------------------------------
Greater 3.75% 2.75% 2.75% 1.50%
than or
equal to
1.75:1.00
--------------------------------------------------------------
Greater 3.25% 2.50% 2.50% 1.50%
than or
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."
2
(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."
3
1.3. Deletion of Definition. The definition of "Acquired Pro Forma EBITDA"
is deleted in its entirety.
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."
1.5. 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."
(c) The first parenthetical phrase contained in Section 4.3(c)(ii) is
amended in its entirety to read as follows:
4
"(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."
1.6. 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."
1.7. 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;".
5
1.8. 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)."
1.9. 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:
"(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:
6
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."
1.10. 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;"
(b) 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."
1.11. 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".
1.12. 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".
7
1.13. 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."
1.14. 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 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)."
1.15. 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
March7, 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.
8
(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).
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."
1.16. 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
9
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 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 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
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ADDITIONAL TERM LENDER:
----------------------
WARBURG, XXXXXX INVESTORS, L.P.
By /s/ Xxxx X. Xxxxxxxxx
----------------------------
Title: Partner
12
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 ACredit Agreement") among Xxxxx & Xxxxx
Company, various financial institutions (the ALenders") and Bank of America,
N.A., as administrative agent (the AAdministrative Agent"); (b) the other ALoan
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 AThird 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: ______________________________________
Name: Xxx X. Xxxxx
Title: Chief Financial Officer
A-1
EXHIBIT B
FORM OF OPTION AGREEMENT
B-1
EXHIBIT C
FORM OF NOTE
C-1
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
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