Exhibit 10.1




 





 


 


CREDIT AGREEMENT


 


dated as of June 2, 2004


 


among


 


STANDARD PARKING CORPORATION,


 


as the Company


 


THE VARIOUS FINANCIAL INSTITUTIONS PARTY
HERETO,


 


as Lenders,


 


LASALLE BANK NATIONAL ASSOCIATION,


 


as Administrative Agent,


 


and


 


WELLS FARGO BANK, N.A.,


 


As Syndication Agent


 




 





 


LASALLE BANK NATIONAL ASSOCIATION,


 


WELLS FARGO BANK, N.A.


As Co-Lead Arrangers


 

















 


	
  SECTION 1

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  1.2

  	
  Other Interpretive Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2

  	
  COMMITMENTS OF THE LENDERS; BORROWING,
  CONVERSION AND LETTER OF CREDIT PROCEDURES

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1.1                        Revolving Commitment

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1.2                        L/C Commitment

  	
   

  
	
   

  	
   

  	
   

  
	
  2.2

  	
  Loan Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.2.1                        Various Types of Loans

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.2.2                        Borrowing Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.2.3                        Conversion and Continuation Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.2.4                        Swing Line Facility

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.2.5                        Defaulting Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  2.3

  	
  Letter of Credit Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.3.1                        L/C Applications

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.3.2                        Participations in Letters of Credit and
  Existing Letters of Credit

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.3.3                        Reimbursement Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.3.4                        Funding by Lenders to Issuing Lender and
  LaSalle

  	
   

  
	
   

  	
   

  	
   

  
	
  2.4

  	
  Commitments Several

  	
   

  
	
   

  	
   

  	
   

  
	
  2.5

  	
  Certain Conditions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3

  	
  EVIDENCING OF LOANS

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  3.2

  	
  Recordkeeping

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4

  	
  INTEREST

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Interest
  Rates

  	
   

  
	
   

  	
   

  	
   

  
	
  4.2

  	
  Interest Payment Dates

  	
   

  
	
   

  	
   

  	
   

  
	
  4.3

  	
  Setting and Notice of LIBOR Rates

  	
   

  
	
   

  	
   

  	
   

  
	
  4.4

  	
  Computation of Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5

  	
  FEES

  	
   

  



 


i

















 


	
  5.1

  	
  Non-Use
  Fee

  	
   

  
	
   

  	
   

  	
   

  
	
  5.2

  	
  Letter of Credit Fees

  	
   

  
	
   

  	
   

  	
   

  
	
  5.3

  	
  Administrative Agent’s Fees

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6

  	
  INCREASE, REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT;
  PREPAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Increase,
  Reduction or Termination of the Revolving Commitment

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1.1                        Increase of the Revolving Commitment

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1.2                        Voluntary Reduction or Termination of the
  Revolving Commitment

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1.3                        All Reductions of the Revolving Commitment

  	
   

  
	
   

  	
   

  	
   

  
	
  6.2

  	
  Repayments

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.2.1                        Voluntary Repayments

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.2.2                        Mandatory Repayments

  	
   

  
	
   

  	
   

  	
   

  
	
  6.3

  	
  Manner of Repayments

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.3.1                        Partial Repayments

  	
   

  
	
   

  	
   

  	
   

  
	
  6.4

  	
  Final Repayment

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.4.1                        Revolving Loans

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7

  	
  MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Making of Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  7.2

  	
  Application of Certain Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  7.3

  	
  Due Date Extension

  	
   

  
	
   

  	
   

  	
   

  
	
  7.4

  	
  Setoff

  	
   

  
	
   

  	
   

  	
   

  
	
  7.5

  	
  Proration of Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  7.6

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 8

  	
  INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Increased Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  8.2

  	
  Basis for Determining Interest Rate
  Inadequate or Unfair

  	
   

  
	
   

  	
   

  	
   

  
	
  8.3

  	
  Changes in Law Rendering LIBOR Loans
  Unlawful

  	
   

  
	
   

  	
   

  	
   

  
	
  8.4

  	
  Funding
  Losses

  	
   

  
	
   

  	
   

  	
   

  
	
  8.5

  	
  Right of Lenders to Fund through Other
  Offices

  	
   

  



 


ii

















 


	
  8.6

  	
  Discretion of Lenders as to Manner of
  Funding

  	
   

  
	
   

  	
   

  	
   

  
	
  8.7

  	
  Mitigation of Circumstances; Replacement of
  Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  8.8

  	
  Conclusiveness of Statements; Survival of
  Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 9

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Organization

  	
   

  
	
   

  	
   

  	
   

  
	
  9.2

  	
  Authorization; No Conflict

  	
   

  
	
   

  	
   

  	
   

  
	
  9.3

  	
  Validity and Binding Nature

  	
   

  
	
   

  	
   

  	
   

  
	
  9.4

  	
  Financial Condition

  	
   

  
	
   

  	
   

  	
   

  
	
  9.5

  	
  No Material Adverse Change

  	
   

  
	
   

  	
   

  	
   

  
	
  9.6

  	
  Litigation and Contingent Liabilities

  	
   

  
	
   

  	
   

  	
   

  
	
  9.7

  	
  Ownership of Properties; Liens

  	
   

  
	
   

  	
   

  	
   

  
	
  9.8

  	
  Equity Ownership; Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  9.9

  	
  Pension
  Plans

  	
   

  
	
   

  	
   

  	
   

  
	
  9.10

  	
  Investment Company Act

  	
   

  
	
   

  	
   

  	
   

  
	
  9.11

  	
  Public Utility Holding Company Act

  	
   

  
	
   

  	
   

  	
   

  
	
  9.12

  	
  Regulation
  U

  	
   

  
	
   

  	
   

  	
   

  
	
  9.13

  	
  Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  9.14

  	
  Solvency,
  etc

  	
   

  
	
   

  	
   

  	
   

  
	
  9.15

  	
  Environmental Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  9.16

  	
  Insurance

  	
   

  
	
   

  	
   

  	
   

  
	
  9.17

  	
  Real Property; Facility Leases and Facility
  Management Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  9.18

  	
  Information

  	
   

  
	
   

  	
   

  	
   

  
	
  9.19

  	
  Intellectual Property

  	
   

  
	
   

  	
   

  	
   

  
	
  9.20

  	
  Burdensome Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  9.21

  	
  Labor
  Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  9.22

  	
  No
  Default

  	
   

  
	
   

  	
   

  	
   

  
	
  9.23

  	
  Related Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  9.24

  	
  Subordinated Debt

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 10

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Reports,
  Certificates and Other Information

  	
   

  



 


iii

















 


	
   

  	
  10.1.1                  Annual Report

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.2                  Interim Reports

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.3                  Compliance Certificates

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.4                  Reports to the SEC and to Shareholders

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.5                  Notice of Default, Litigation and ERISA
  Matters

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.6                  Intentionally Omitted

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.7                  Management Reports

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.8                  Projections

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.9                  Subordinated Debt Notices

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.10            Schedules

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1.11            Other Information

  	
   

  
	
   

  	
   

  	
   

  
	
  10.2

  	
  Books,
  Records and Inspections

  	
   

  
	
   

  	
   

  	
   

  
	
  10.3

  	
  Maintenance of Property; Insurance

  	
   

  
	
   

  	
   

  	
   

  
	
  10.4

  	
  Compliance with Laws; Payment of Taxes and
  Liabilities

  	
   

  
	
   

  	
   

  	
   

  
	
  10.5

  	
  Maintenance
  of Existence, etc

  	
   

  
	
   

  	
   

  	
   

  
	
  10.6

  	
  Use
  of Proceeds

  	
   

  
	
   

  	
   

  	
   

  
	
  10.7

  	
  Employee Benefit Plans

  	
   

  
	
   

  	
   

  	
   

  
	
  10.8

  	
  Environmental
  Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  10.9

  	
  Further Assurances

  	
   

  
	
   

  	
   

  	
   

  
	
  10.10

  	
  Deposit Accounts; Lockbox Account

  	
   

  
	
   

  	
   

  	
   

  
	
  10.11

  	
  Syndication

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 11

  	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Debt

  	
   

  
	
   

  	
   

  	
   

  
	
  11.2

  	
  Liens

  	
   

  
	
   

  	
   

  	
   

  
	
  11.3

  	
  Restricted Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  11.4

  	
  Mergers,
  Consolidations, Sales

  	
   

  
	
   

  	
   

  	
   

  
	
  11.5

  	
  Modification of Organizational Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  11.6

  	
  Transactions with Affiliates

  	
   

  
	
   

  	
   

  	
   

  
	
  11.7

  	
  Unconditional Purchase Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  11.8

  	
  Inconsistent Agreements

  	
   

  



 


iv

















 


	
  11.9

  	
  Business Activities; Issuance of Equity

  	
   

  
	
   

  	
   

  	
   

  
	
  11.10

  	
  Investments,
  Loans and Advances

  	
   

  
	
   

  	
   

  	
   

  
	
  11.11

  	
  Restriction of Amendments to Certain
  Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  11.12

  	
  Fiscal
  Year

  	
   

  
	
   

  	
   

  	
   

  
	
  11.13

  	
  Financial Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.13.1            Fixed
  Charge Coverage Ratio

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.13.2            Senior
  Debt to EBITDA Ratio

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.13.3            Total
  Debt to EBITDA Ratio

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.13.4            Net Capital Expenditures

  	
   

  
	
   

  	
   

  	
   

  
	
  11.14

  	
  Repayment or Redemption of Debt; Cancellation of Debt

  	
   

  
	
   

  	
   

  	
   

  
	
  11.15

  	
  Affiliate Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 12

  	
  EFFECTIVENESS; CONDITIONS OF LENDING, ETC

  	
   

  
	
   

  	
   

  	
   

  
	
  12.1

  	
  Initial Credit Extension

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.1                  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.2                  Authorization Documents

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.3                  Consents, etc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.4                  Letter of Direction

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.5                  Guaranty and Collateral Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.6                  Perfection Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.7                  Obligations Senior

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.8                  Opinions of Counsel

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.9                  Insurance

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.10            Copies of Documents

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.11            Payment of Fees

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.12            Solvency Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.13            Pro Forma

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.14            Intentionally Omitted

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.15            Search Results; Lien Terminations

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.16            Filings, Registrations and Recordings

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.1.17            Closing Certificate, Consents and Permits

  	
   

  



 


v

















 


	
   

  	
  12.1.18            Other

  	
   

  
	
   

  	
   

  	
   

  
	
  12.2

  	
  Conditions

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.2.1                  Compliance with Warranties, No Default, etc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.2.2                  Confirmatory Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  12.2.3                  Real Estate Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 13

  	
  EVENTS OF DEFAULT AND THEIR EFFECT

  	
   

  
	
   

  	
   

  	
   

  
	
  13.1

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.1                  Non-Payment of the Loans, etc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.2                  Non-Payment of Other Debt

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.3                  Other Material Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.4                  Bankruptcy, Insolvency, etc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.5                  Non-Compliance with Loan Documents

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.6                  Representations; Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.7                  Pension Plans

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.8                  Judgments

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.9                  Invalidity of Collateral Documents, etc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.10            Invalidity of Subordination Provisions, etc

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.11            Change of Control

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.12            Material Adverse Effect

  	
   

  
	
   

  	
   

  	
   

  
	
  13.2

  	
  Effect of Event of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 14

  	
  THE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  14.1

  	
  Appointment and Authorization

  	
   

  
	
   

  	
   

  	
   

  
	
  14.2

  	
  Issuing Lender and LaSalle

  	
   

  
	
   

  	
   

  	
   

  
	
  14.3

  	
  Delegation of Duties

  	
   

  
	
   

  	
   

  	
   

  
	
  14.4

  	
  Exculpation of Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  14.5

  	
  Reliance by Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  14.6

  	
  Notice
  of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  14.7

  	
  Credit Decision

  	
   

  
	
   

  	
   

  	
   

  
	
  14.8

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  14.9

  	
  Administrative Agent in Individual Capacity

  	
   

  



 


vi

















 


	
  14.10

  	
  Successor Administrative Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  14.11

  	
  Collateral Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  14.12

  	
  Administrative Agent May File Proofs of
  Claim

  	
   

  
	
   

  	
   

  	
   

  
	
  14.13

  	
  Other
  Agents; Arrangers and Managers

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 15

  	
  GENERAL

  	
   

  
	
   

  	
   

  	
   

  
	
  15.1

  	
  Waiver;
  Amendments

  	
   

  
	
   

  	
   

  	
   

  
	
  15.2

  	
  Confirmations

  	
   

  
	
   

  	
   

  	
   

  
	
  15.3

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  15.4

  	
  Computations

  	
   

  
	
   

  	
   

  	
   

  
	
  15.5

  	
  Costs,
  Expenses and Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  15.6

  	
  Assignments;
  Participations

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  15.6.1                  Assignments

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  15.6.2                  Participations

  	
   

  
	
   

  	
   

  	
   

  
	
  15.7

  	
  Register

  	
   

  
	
   

  	
   

  	
   

  
	
  15.8

  	
  GOVERNING
  LAW

  	
   

  
	
   

  	
   

  	
   

  
	
  15.9

  	
  Confidentiality

  	
   

  
	
   

  	
   

  	
   

  
	
  15.10

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  15.11

  	
  Nature of Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  15.12

  	
  Entire Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  15.13

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  15.14

  	
  Successors and Assigns

  	
   

  
	
   

  	
   

  	
   

  
	
  15.15

  	
  Captions

  	
   

  
	
   

  	
   

  	
   

  
	
  15.16

  	
  Patriot Act Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  15.17

  	
  INDEMNIFICATION BY THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  15.18

  	
  Nonliability of Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  15.19

  	
  FORUM SELECTION AND CONSENT TO JURISDICTION

  	
   

  
	
   

  	
   

  	
   

  
	
  15.20

  	
  WAIVER OF JURY TRIAL

  	
   

  



 


vii

















 


ANNEXES


 


	
  ANNEX A

  	
  Lenders
  and Pro Rata Shares

  	
   

  
	
  ANNEX B

  	
  Addresses
  for Notices

  	
   

  



 


SCHEDULES


 


	
  SCHEDULE 1.1

  	
  Non-Guarantor Joint Ventures

  	
   

  
	
  SCHEDULE 9.6

  	
  Litigation and Contingent Liabilities

  	
   

  
	
  SCHEDULE 9.8

  	
  Equity Ownership; Subsidiaries

  	
   

  
	
  SCHEDULE 9.15

  	
  Underground Storage Tanks

  	
   

  
	
  SCHEDULE 9.16

  	
  Insurance

  	
   

  
	
  SCHEDULE 9.17

  	
  Real Property; Facility Leases and Facility Management Agreements

  	
   

  
	
  SCHEDULE 9.21

  	
  Labor Matters

  	
   

  
	
  SCHEDULE 11.1

  	
  Existing Debt

  	
   

  
	
  SCHEDULE 11.2

  	
  Existing Liens

  	
   

  
	
  SCHEDULE 11.11

  	
  Investments

  	
   

  
	
  SCHEDULE 11.15

  	
  Management Fees

  	
   

  
	
  SCHEDULE 12.1

  	
  Debt to be Repaid

  	
   

  



 


EXHIBITS


 


	
  EXHIBIT
  A

  	
  Form
  of Note (Section 3.1)

  	
   

  
	
  EXHIBIT
  B

  	
  Form
  of Compliance Certificate (Section 10.1.3)

  	
   

  
	
  EXHIBIT
  C

  	
  Form
  of Assignment Agreement (Section 15.6.1)

  	
   

  
	
  EXHIBIT
  D

  	
  Form
  of Notice of Borrowing (Section 2.2.2)

  	
   

  
	
  EXHIBIT
  E

  	
  Form
  of Notice of Conversion/Continuation (Section 2.2.3)

  	
   

  
	
  EXHIBIT F

  	
  Forms of Statement of Operation, Balance Sheet and Cash Flow

  	
   

  



 

















 


CREDIT AGREEMENT


 


THIS CREDIT AGREEMENT dated as of
June 2, 2004 (this “Agreement”) is entered into among STANDARD PARKING CORPORATION  (the
“Company”), the financial institutions that are or may from time to time
become parties hereto, which, unless the context indicates otherwise, shall
include LaSalle in its capacity as the issuer of any Existing Letters of Credit
(LaSalle and such other parties hereto, together with their respective successors
and assigns, are referred to herein as the “Lenders”), LASALLE BANK
NATIONAL ASSOCIATION (in its individual capacity, “LaSalle”), as a
Lender and as Administrative Agent for the Lenders, and WELLS FARGO BANK, N.A.
(in its individual capacity, “Wells”), as a Lender and as Syndication
Agent for the Lenders.


 


The Lenders have agreed to make available to
the Company a revolving credit facility
(which includes letters of credit) upon the terms and conditions set
forth herein.


 


The parties hereto acknowledge that the
Commitments hereunder are being extended and up to $90,000,000 may be borrowed
hereunder (i) in amounts necessary to repay in full and terminate in full all
outstanding Term Loan Debt under the Former Credit Agreement, (ii) in an
additional amount of $40,000,000 to refinance and increase hereunder the
revolving credit facility under the Former Credit Agreement, and (iii) with the
remainder as an additional borrowing facility hereunder for the purposes
expressly set forth herein.


 


In consideration of the mutual agreements
herein contained, the parties hereto agree as follows:


 


SECTION 1                                   DEFINITIONS.


 


1.1                                 Definitions. 
When used herein the following terms shall have the following meanings:


 


Account Debtor is
defined in the Guaranty and Collateral Agreement.


 


Account or Accounts
is defined in the UCC.


 


Acquired Debt means
mortgage Debt or Debt with respect to Capital Leases of a Person existing at
the time such Person became a Subsidiary or assumed by the Company or a
Subsidiary of the Company pursuant to an Acquisition permitted hereunder (and
not created or incurred in connection with or in anticipation of such
Acquisition).


 


Acquisition means
any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of all or substantially all of
any business or division of a Person, (b) the acquisition of in excess of 50%
of the Capital Securities of any Person, or otherwise causing any Person to
become a Subsidiary, or (c) the acquisition of another Person pursuant to a
merger or


 

















 


consolidation or any other
combination with such Person (other than a Person that is already a
Subsidiary).


 


Adjusted Off-Balance Sheet Liabilities
of a Person means, Off-Balance Sheet Liabilities of such Person and its
Subsidiaries, excluding (i) all Facility Leases, Ordinary Course Equipment
Leases and Facility Management Agreements of such Person’s and its
Subsidiaries’ businesses, and (ii) payments required pursuant to that certain
Executive Parking Management Agreement dated as of May 1, 1998, together with
the First Amendment thereto dated as of August 1, 1999, by and among the
Company, D&E Parking, Inc., Edward E. Simmons and Dale G. Stark.


 


Administrative Agent
means LaSalle in its capacity as administrative agent for the Lenders hereunder
and any successor thereto in such capacity.


 


Affected Loan - see Section 8.3.


 


Affiliate of any
Person means (a) any other Person which, directly or indirectly, controls or is
controlled by or is under common control with such Person, (b) any “executive”
officer (as defined under the Exchange Act and the Regulations thereunder) or
director of such Person and (c) with respect to any Lender, any entity
administered or managed by such Lender or an Affiliate or investment advisor
thereof and which is engaged in making, purchasing, holding or otherwise
investing in commercial loans.  A Person
shall be deemed to be “controlled by” any other Person if such Person
possesses, directly or indirectly, power to vote 10% or more of the securities
(on a fully diluted basis) having ordinary voting power for the election of
directors or managers or power to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.  Unless expressly stated otherwise herein,
neither the Administrative Agent nor any Lender shall be deemed an Affiliate of
any Loan Party.


 


Agreement - see the
Preamble.


 


Applicable Margin
means, for any day, the rate per annum set forth below opposite the level (the
“Level”) then in effect, it being understood that the Applicable Margin
for (i) LIBOR Loans shall be the percentage set forth under the column “LIBOR
Margin”, (ii) Base Rate Loans shall be the percentage set forth under the
column “Base Rate Margin”, (iii) the Non-Use Fee Rate shall be the percentage
set forth under the column “Non-Use Fee Rate” and (iv) the L/C Fee shall be the
percentage set forth under the column “L/C Fee Rate”:


 


	
  Level

  	
   

  	
  Total Debt

  to EBITDA Ratio

  	
   

  	
  LIBOR

  Margin

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Non-Use

  Fee Rate

  	
   

  	
  L/C Fee

  Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  Greater than or equal to 4.5:1

  	
   

  	
  3.25

  	
  %

  	
  1.75

  	
  %

  	
  .375

  	
  %

  	
  3.25

  	
  %

  
	
  II

  	
   

  	
  Greater than or equal to 4.0:1 but less than 4.5:1

  	
   

  	
  3.00

  	
  %

  	
  1.50

  	
  %

  	
  .375

  	
  %

  	
  3.00

  	
  %

  



 


2

















 


	
  Level

  	
   

  	
  Total Debt

  to EBITDA Ratio

  	
   

  	
  LIBOR

  Margin

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Non-Use

  Fee Rate

  	
   

  	
  L/C Fee

  Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III

  	
   

  	
  Greater than or equal to 3.5:1 but less than 4.0:1

  	
   

  	
  2.75

  	
  %

  	
  1.25

  	
  %

  	
  .375

  	
  %

  	
  2.75

  	
  %

  
	
  IV

  	
   

  	
  Less than 3.5:1

  	
   

  	
  2.50

  	
  %

  	
  1.00

  	
  %

  	
  .375

  	
  %

  	
  2.50

  	
  %

  



 


The LIBOR Margin, the Base Rate Margin, the
Non-Use Fee Rate and the L/C Fee Rate shall be adjusted, to the extent
applicable, on the fifth (5th) Business Day after the Company provides or is
required to provide the annual and quarterly financial statements and other
information pursuant Section 10.1.1 or 10.1.2, as
applicable, and the related Compliance Certificate, pursuant to Section 10.1.3.  Notwithstanding anything contained in this
paragraph to the contrary, (a) if the Company fails to deliver such financial
statements and Compliance Certificate in accordance with the provisions of
Section 10.1.1, 10.1.2 and 10.1.3, the LIBOR Margin,
the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate shall be based
upon Level I above beginning on the date such financial statements and
Compliance Certificate were required to be delivered until the fifth (5th)
Business Day after such financial statements and Compliance Certificate are
actually delivered, whereupon the Applicable Margin shall be determined by the
then current Level; (b)  no reduction to
any Applicable Margin shall become effective at any time when an Event of
Default has occurred and is continuing; and (c) the initial Applicable Margin
on the Closing Date shall be based on Level I until the date on which the
financial statements and Compliance Certificate are required to be delivered
for the Fiscal Quarter ending June 30, 2004.


 


Asset Disposition –
see Section 11.4(b).


 


Assignee - see Section 15.6.1.


 


Assignment Agreement
- see Section 15.6.1.


 


Attorney Costs
means, with respect to any Person, all reasonable fees and charges of any
external counsel to such Person, all reasonable disbursements of such counsel
and all court costs and similar legal expenses.


 


Bank Product Agreements
means those certain cash management service agreements entered into from time
to time between any Loan Party and a Lender or its Affiliates in connection
with any of the Bank Products.


 


Bank Product Obligations
means all obligations, liabilities, contingent reimbursement obligations, fees,
and expenses owing by the Loan Parties to any Lender or its Affiliates pursuant
to or evidenced by the Bank Product Agreements and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due
or to become due, now existing or


 


3

















 


hereafter arising, and
including all such amounts that a Loan Party is obligated to reimburse to the
Administrative Agent or any Lender as a result of the Administrative Agent or
such Lender purchasing participations or executing indemnities or reimbursement
obligations with respect to the Bank Products provided to the Loan Parties
pursuant to the Bank Product Agreements.


 


Bank Products means
any service or facility extended to any Loan Party by any Lender or its
Affiliates including:  (a) credit cards,
(b) credit card processing services, (c) debit cards, (d) purchase cards, (e)
ACH Transactions, (f) cash management, including controlled disbursement,
accounts or services, or (g) Hedging Agreements.


 


Base Rate means at any time the greater of
(a) the Federal Funds Rate plus 0.5% and (b) the Prime Rate.


 


Base Rate Loan means
any Loan which bears interest at or by reference to the Base Rate.


 


Base Rate Margin -
see the definition of Applicable Margin.


 


BSA - see Section 10.4.


 


Business Day means
any day on which LaSalle is open for commercial banking business in Chicago,
Illinois and, in the case of a Business Day which relates to a LIBOR Loan, on
which dealings are carried on in the London interbank eurodollar market.


 


Capital Expenditures
means all expenditures which, in accordance with GAAP, would be required to be
capitalized and shown on the consolidated balance sheet of the Company,
including expenditures in respect of Capital Leases, but excluding expenditures
made in connection with the replacement, substitution or restoration of assets
to the extent financed (a) from insurance proceeds (or other similar
recoveries) paid on account of the loss of or damage to the assets being
replaced or restored or (b) with awards of compensation arising from the taking
by eminent domain or condemnation of the assets being replaced.


 


Capital Lease means,
with respect to any Person, any lease of (or other agreement conveying the
right to use) any real or personal property by such Person that, in accordance
with GAAP, is accounted for as a capital lease on the balance sheet of such
Person.


 


Capital Securities
means, with respect to any Person, all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting) of such
Person’s capital, whether now outstanding or issued or acquired after the
Closing Date, including common shares, preferred shares, membership interests
in a limited liability company, limited or general partnership interests in a
partnership, interests in a Trust, interests in other unincorporated
organizations or any other equivalent of such ownership interest.


 


Cash Collateralize
means to deliver cash collateral to the Administrative Agent, to be held as
cash collateral for outstanding Letters of Credit, outstanding Existing Letters
of Credit


 


4

















 


and other Obligations, pursuant
to documentation reasonably satisfactory to the Administrative Agent, the
Issuing Lender (with respect to Letters of Credit) and LaSalle (with respect to
Existing Letters of Credit). 
Derivatives of such term have corresponding meanings.


 


Cash Equivalent Investment
means, at any time, (a) any evidence of Debt, maturing not more than one year
after such time, issued or guaranteed by the United States Government or any
agency thereof, (b) commercial paper, maturing not more than one year from the
date of issue, or corporate demand notes, in each case (unless issued by a
Lender or its holding company) rated at least A-l by Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc. or P-l by
Moody’s Investors Service, Inc., (c) any certificate of deposit, time deposit
or banker’s acceptance, maturing not more than one year after such time, or any
overnight Federal Funds transaction that is issued or sold by any Lender or its
holding company (or by a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000), (d) any repurchase agreement entered
into with any Lender (or commercial banking institution of the nature referred
to in clause (c)) which (i) is secured by a fully perfected security
interest in any obligation of the type described in any of clauses (a)
through (c) above and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the repurchase
obligation of such Lender (or other commercial banking institution) thereunder
and (e) money market accounts or mutual funds which invest exclusively in
assets satisfying the foregoing requirements, and (f) other short term liquid
investments approved in writing by the Administrative Agent.


 


Change of Control means the occurrence of any
of the following:  (i) the sale, lease,
transfer, conveyance or other disposition (other than in a transaction
described in clause (vi) below), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, to any “person” (as such term is used in
subsection 13(d)(3) of the Exchange Act), (ii) the adoption of a plan
relating to the liquidation or dissolution of the Company, (iii) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as defined above),
other than John V. Holten and/or his Related Parties, becomes the “beneficial
owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except that a person shall be deemed to have “beneficial ownership” of all
securities that such person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition), directly or indirectly, of more than 50% of the Voting
Stock of the Company (measured by voting power rather than number of shares),
(iv) the first day on which a majority of the members of the Board of Directors
of the Company are not Continuing Directors, (v) the occurrence of any “Change
of Control” as defined in the 9 1/4% Note Documents or any change of control or
similar provision in any other Subordinated Debt, the Preferred Stock or any other
preferred Capital Stock of the Company, or (vi) the Company consolidates with,
or merges with or into, any Person or sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets to any
Person, or any Person consolidates with, or merges with or into, the Company,
in any such event pursuant to a transaction in which more than thirty percent


 


5

















 


(30%) of the outstanding Voting Stock of the Company is converted into
or exchanged for cash, securities or other property.


 


Closing Date - see Section 12.1.


 


Code means the
Internal Revenue Code of 1986.


 


Collateral Access Agreement
means an agreement in form and substance reasonably satisfactory to the
Administrative Agent pursuant to which a mortgagee or lessor of real property
on which collateral is stored or otherwise located, or a warehouseman,
processor or other bailee of Inventory or other property owned by any Loan
Party, acknowledges the Liens of the Administrative Agent and waives any Liens
held by such Person on such property, and, in the case of any such agreement
with a mortgagee or lessor, permits the Administrative Agent reasonable access
to and use of such real property following the occurrence and during the
continuance of an Event of Default to assemble, complete and sell any
collateral stored or otherwise located thereon.


 


Collateral Documents
means, collectively, the Guaranty and Collateral Agreement, each Mortgage, each
Collateral Access Agreement, each Perfection Certificate, each control
agreement and any other agreement or instrument pursuant to which the Company,
any Subsidiary or any other Person grants or purports to grant collateral to
the Administrative Agent for the benefit of the Lenders or otherwise relates to
such collateral.


 


Commitment means, as
to any Lender, such Lender’s commitment to make Loans, and to issue or
participate in Letters of Credit and Existing Letters of Credit, under this
Agreement.  The initial amount of each
Lender’s commitment to make Loans is set forth on Annex A.


 


Company - see the Preamble.


 


Compliance Certificate
means a Compliance Certificate in substantially the form of Exhibit B.


 


Computation Period
means each period of four consecutive Fiscal Quarters ending on the last day of
a Fiscal Quarter.


 


Consolidated Net Income
means, with respect to the Company and its Subsidiaries for any period, the net
income (or loss) of the Company and its Subsidiaries for such period,
determined in accordance with GAAP.


 


Contingent Liability
means, with respect to any Person, each obligation and liability of such Person
and all such obligations and liabilities of such Person incurred pursuant to
any agreement, undertaking or arrangement by which such Person:  (a) guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or


 


6

















 


otherwise to assure a creditor
against loss) the indebtedness, dividend, obligation or other liability of any
other Person in any manner (other than by endorsement of instruments in the
course of collection), including any indebtedness, dividend or other obligation
which may be issued or incurred at some future time; (b) guarantees the payment
of dividends or other distributions upon the Capital Securities of any other
Person; (c) undertakes or agrees (whether contingently or otherwise):  (i) to purchase, repurchase, or otherwise
acquire any indebtedness, obligation or liability of any other Person or any
property or assets constituting security therefore, (ii) to advance or provide
funds for the payment or discharge of any indebtedness, obligation or liability
of any other Person (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain solvency, assets, level of
income, working capital or other financial condition of any other Person, or
(iii) to make payment to any other Person other than for value received; (d)
agrees to lease property or to purchase securities, property or services from
another Person with the purpose or intent of assuring any owner of indebtedness
or obligations of such other Person of the ability of such other Person to make
payment of such indebtedness or obligations; (e) to induce the issuance of, or
in connection with the issuance of, any letter of credit for the benefit of
such other Person; or (f) undertakes or agrees otherwise to assure a creditor
against loss; provided, however, for purposes of calculating
compliance with Section 11.13, Contingent Liabilities shall exclude
indorsements of instruments for deposit or collection in the ordinary course of
business and all Off-Balance Sheet Liabilities of such Person, except for the
Adjusted Off-Balance Sheet Liabilities. 
The amount of any Contingent Liability shall (subject to any limitation
set forth herein) be deemed to be the outstanding principal amount (or maximum
permitted principal amount, if larger) of the indebtedness, obligation or other
liability guaranteed or supported thereby.


 


Continuing Directors means, as of any date of
determination, any member of the Board of Directors of the Company who (i) was
a member of such Board of Directors on the Closing Date or (ii) was nominated
for election or elected to such Board of Directors with the approval of (a) a
majority of the Continuing Directors who were members of such Board at the time
of such nomination or election, or (b) John V. Holten and/or his Related
Parties as holder of a majority of the Voting Stock of the Company prior to any
other Change of Control.


 


Controlled Group
means all members of a controlled group of corporations, all members of a
controlled group of trades or businesses (whether or not incorporated) under
common control and all members of an affiliated service group which, together
with the Company or any of its Subsidiaries, are treated as a single employer
under Section 414 of the Code or Section 4001 of ERISA.


 


Debt of any Person
means, without duplication, (a) all indebtedness of such Person, for borrowed
money, whether or not evidenced by bonds, debentures, notes or similar
instruments, (b) all obligations of such Person as lessee under Capital Leases
which have been or should be recorded as liabilities on a balance sheet of such
Person in accordance with GAAP, (c) all obligations of such Person to pay the
deferred purchase price of property or services (excluding trade accounts
payable in the ordinary course of business), (d) all indebtedness secured by a
Lien


 


7

















 


on the property of such Person,
whether or not such indebtedness shall have been assumed by such Person;
provided that if such Person has not assumed or otherwise become liable for
such indebtedness, such indebtedness shall be measured at the fair market value
of such property securing such indebtedness at the time of determination, (e)
all obligations, contingent or otherwise, with respect to the face amount of
all letters of credit (whether or not drawn), bankers’ acceptances and similar
obligations issued for the account of such Person (including the Letters of
Credit and the Existing Letters of Credit), (f) all Hedging Obligations of such
Person, (g) all Contingent Liabilities of such Person, (h) any liability of
such Person for Earnouts, (i) Off-Balance Sheet Liabilities of such Person, (j)
all Debt of any partnership of which such Person is a general partner, and (k)
all Disqualified Stock of such Person (provided that other Capital Securities
that do not constitute Disqualified Stock shall not constitute Debt, regardless
of any changes in GAAP). 
Notwithstanding the foregoing, Debt shall not include advances to the
Company from customers in connection with Facility Leases and Facility
Management Agreements of the Company in the ordinary course of business.


 


Debt to be Repaid
means Debt listed on Schedule 12.1.


 


Defaulting Lender -
see Section 2.2.5.  


 


Defaulted Loan - see
Section 2.2.5.


 


Designated Proceeds
- see Section 6.2.2(a).


 


Disqualified Stock means any class of Capital
Security that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, or otherwise has any distributions or other payments which
are mandatory or otherwise required at any time on or prior to the date that is
one year after the Termination Date, provided that any payment that is
required solely due to a customary change of control provision not more
restrictive than the Change of Control default in this Agreement shall not
cause such class of Capital Security to be deemed Disqualified Stock.


 


Dollar and the sign
“$” mean lawful money of the United States of America.


 


Domestic Subsidiary
means each present and future Subsidiary of the Company which is not a Foreign
Subsidiary.


 


Earnouts means any
payment which may be owing by any Person in connection with any Permitted
Acquisition, which payment is contingent upon the earnings or other financial
performance of the assets or stock being acquired pursuant to such Permitted
Acquisition.


 


EBITDA means, for
any Computation Period, the sum of (A) Consolidated Net Income for such
Computation Period, excluding, to the extent reflected in determining such
Consolidated


 


8

















 


Net Income:  (i) the income of any Person accrued prior
to the date it becomes a Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Subsidiaries or that Person’s
assets are acquired by the Company or any of its Subsidiaries, (ii) the proceeds
of any insurance policy, (iii) gains (but not losses) from the sale, exchange,
transfer or other disposition of property or assets not in the ordinary course
of business of the Company and its Subsidiaries, and related tax effects in
accordance with GAAP, (iv) any other extraordinary or non-recurring gains or
other gains not from continuing operations of the Company or its Subsidiaries,
and related tax effects in accordance with GAAP, (v) the income of any Person
(including without limitation any Subsidiary or Joint Venture, but excluding
any Wholly Owned Subsidiary) in which any Person other than the Company or any
of its Subsidiaries has a joint interest or partnership interest or other
ownership interest, to the extent that the declaration or payment of dividends
or similar distributions by that Subsidiary or Joint Venture is not at the time
permitted by operation of the terms of its charter or of any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or Joint Venture, except to the extent of the
amount of dividends or other distributions that are actually paid in cash to
the Company during such period, (vi) extraordinary non-cash losses and
non-recurring non-cash charges, (vii) income taxes, (viii) minority interests,
(ix) interest income net of Interest Expense, as defined in accordance with
GAAP, (x) depreciation and amortization expense, (xi) restructuring and other
special charges of up to $750,000 incurred by the Company in calendar year
2003, (xii) special charges of up to $5,025,000 incurred by the Company in
calendar year 2004 as a result of consummating the Related Transactions and
entering into and closing under this Agreement, (xiii) any other extraordinary
or non-recurring amounts or other amounts received by the Company or any of its
Subsidiaries from, or in respect of, any disposition or termination of any
Facility Lease or Facility Management Agreement of the Company or its
Subsidiaries, provided that, any such amount arising from a single transaction
shall only be excluded from Consolidated Net Income if it equals or exceeds
$250,000; and (xiv) management fees pursuant to subsection 5.2(l)(2) of
the Former Credit Agreement deducted in arriving at Consolidated Net Income,
(xv) any non-cash gains or losses under any Hedging Obligation, and (xvi) a
non-cash charge of up to $2,700,000 in calendar year 2003 of amounts due to the
Company relating to the Company’s operation of the parking facilities at the
Bradley International Airport in Hartford, Connecticut, plus (B) EBITDA,
as calculated herein, of any Person related to any Permitted Acquisition
consummated during such Computation Period, calculated, upon the Administrative
Agent’s reasonable consent, as if such Permitted Acquisition had occurred on
the first day of the relevant Computation Period.


 


Environmental Claims
means all claims, however asserted, by any governmental, regulatory or judicial
authority or other Person alleging potential liability or responsibility for
violation of any Environmental Law, or for release or injury to the
environment.


 


Environmental Laws
means all present or future federal, state or local laws, statutes, common law
duties, rules, regulations, ordinances and codes, together with all
administrative or judicial orders, consent agreements, directed duties,
requests, licenses, authorizations and permits of, and agreements with, any
governmental authority, in each case relating to any matter


 


9

















 


arising out of or relating to
public health and safety, or pollution or protection of the environment or
workplace, including any of the foregoing relating to the presence, use,
production, generation, handling, transport, treatment, storage, disposal,
distribution, discharge, emission, release, threatened release, control or
cleanup of any Hazardous Substance.


 


ERISA means the
Employee Retirement Income Security Act of 1974.


 


Event of Default
means any of the events described in Section 13.1.


 


Exchange Act means
the Securities Exchange Act of 1934, as amended.


 


Excluded Taxes means
taxes based upon, or measured by, the Lender’s or Administrative Agent’s (or a
branch of the Lender’s or Administrative Agent’s) overall net income, overall
net receipts, or overall net profits (including franchise taxes imposed in lieu
of such taxes).


 


Existing Letter of Credit
means any letter of credit, as it may be amended or modified from time to time,
issued by LaSalle pursuant to the Former Credit Agreement prior to the Closing
Date which has not expired or been drawn in full and reimbursed as of the
Closing Date.


 


Facility Leases means agreements for the lease
by the Company or any of its Subsidiaries or Joint Ventures of real estate
utilized as a vehicle parking facility and/or for ancillary parking and
transportation services.


 


Facility Management Agreement
means any agreement (other than the Facility Leases), for the provision by the
Company or any of its Subsidiaries or Joint Ventures of services for the
management or operation of a vehicle parking facility and/or ancillary parking
and transportation services, including without limitation any such agreement
designated as a management agreement, parking enforcement agreement, operating
agreement or license agreement.


 


Federal Funds Rate
means, for any day, a fluctuating interest rate equal for each day during such
period to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent. 
The Administrative Agent’s determination of such rate shall be binding
and conclusive absent manifest error.


 


Fee Letter means the
fee letter dated as of May 4, 2004 between the Company, LaSalle (in its
capacity as co-lead arranger) and Wells (in its capacity as co-lead arranger).


 


Fiscal Quarter means
a fiscal quarter of a Fiscal Year.


 


10

















 


Fiscal Year means
the fiscal year of the Company and its Subsidiaries, which period shall be the
12-month period ending on December 31
of each year.  References to a Fiscal
Year with a number corresponding to any calendar year (e.g., “Fiscal Year
2003”) refer to the Fiscal Year ending on December 31  of such calendar year.


 


Fixed Charge Coverage Ratio
means, for any Computation Period, the ratio of (a) the total for such period
of EBITDA minus the sum of income taxes paid or payable in cash by the
Loan Parties and all Unfinanced
Capital Expenditures to (b) the sum for such Computation Period of (i)
cash Interest Expense net of any cash interest income plus (ii) required
payments of principal of Funded Debt (excluding the Revolving Loans) plus
(iii) any dividends paid by any Loan Party in cash to anyone other than the
Company or one of its Wholly-Owned Subsidiaries.  Notwithstanding the foregoing, for purposes of this definition,
(x) cash Interest Expense for the Computation Period ending September 30,
2004 shall be equal to actual cash Interest Expense for the Fiscal Quarter then
end multiplied by four, and (y) cash Interest Expense for the Computation
Period ending December 31, 2004 shall be equal to actual cash Interest
Expense for the two Fiscal Quarters period then ended multiplied by two, and
(z) cash Interest Expense for the Computation Period ending March 31, 2004
shall be equal to actual cash Interest Expense for the three Fiscal Quarters
period then ended multiplied by four-thirds (4/3).


 


Foreign Subsidiary
means any present or future Subsidiary of the Company incorporated or formed in
any jurisdiction other than any State or other political subdivision of the
United States of America.


 


Former Credit Agreement means that certain
Second Amended and Restated Credit Agreement dated as of August 28, 2003
by and among the Company, LaSalle Bank National Association and the other
lenders thereunder, as amended.


 


Former Loan Documents means the “Loan
Documents” as such term is defined in the Former Credit Agreement.


 


14% Note Documents means the 14% Note
Indenture, the 14% Notes and all agreements, instruments and documents executed
in connection therewith at any time.


 


14% Notes means the 14% Senior Subordinated
Second Lien Notes issued by the Company in the original aggregate principal
amount of $59,295,000 due 2006 issued pursuant to the 14% Note Indenture.


 


14% Note Indenture means the Indenture among
the Company, each of the “Guarantors” named therein and Wilmington Trust
Company as trustee thereunder, dated as of January 11, 2002.


 


FRB means the Board
of Governors of the Federal Reserve System or any successor thereto.


 


11

















 


Funded Debt means,
as to any Person, all Debt of such Person that matures more than one year from
the date of its creation (or is renewable or extendible, at the option of such
Person, to a date more than one year from such date).


 


Funded Default - see
Section 2.2.5.


 


GAAP means generally
accepted accounting principles set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the U.S. accounting profession) and the Securities
and Exchange Commission, which are applicable to the circumstances as of the
date of determination.


 


Group - see Section 2.2.1.


 


Guarantor means each
present and future Domestic Subsidiary of the Company (other than Atrium
Parking, Inc., a Delaware corporation, H&T Investment Group, Inc., an Ohio
corporation, and S&J Parking Company, an Illinois corporation), each
present and future Joint Venture of the Company (other than any present or
future Joint Venture of the Company which is prohibited by its organizational
documents from becoming a Guarantor, and which shall be identified on Schedule 1.1
attached hereto), or any other Person executing a Guaranty and Collateral
Agreement at any time.


 


Guaranty and Collateral Agreement
means the Guaranty and Collateral Agreement dated as of the date hereof
executed and delivered by the Company and each existing, new or future
Guarantor, together with any joinders thereto and any other guaranty and
collateral agreement executed by the Company and each existing, new or future
Guarantor, in each case in form and substance satisfactory to the
Administrative Agent.


 


Hazardous Substances
means (a) any petroleum or petroleum products, radioactive materials,
asbestos in any form that is or could become friable, urea formaldehyde foam
insulation, dielectric fluid containing levels of polychlorinated biphenyls,
radon gas and mold; (b) any chemicals, materials, pollutant or substances
defined as or included in the definition of “hazardous substances”, “hazardous
waste”, “hazardous materials”, “extremely hazardous substances”, “restricted
hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”,
“pollutants” or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, the exposure to,
or release of which is prohibited, limited or regulated by any governmental
authority or for which any duty or standard of care is imposed pursuant to, any
Environmental Law.


 


Hedging Agreement
means any interest rate, currency or commodity swap agreement, cap agreement or
collar agreement, and any other agreement or arrangement designed to protect a
Person against fluctuations in interest rates, currency exchange rates or
commodity prices.


 


12

















 


Hedging Obligation
means, with respect to any Person, any liability of such Person under any
Hedging Agreement.  The amount of any Person’s
obligation in respect of any Hedging Obligation shall be deemed to be the
incremental obligation that would be reflected in the financial statements of
such Person in accordance with GAAP.


 


Indemnified Liabilities
- see Section 15.17.


 


Interest Expense
means for any period the consolidated interest expense of the Company and its
Subsidiaries for such period (including all imputed interest on Capital
Leases).


 


Interest Period
means, as to any LIBOR Loan, the period commencing on the date such Loan is
borrowed or continued as, or converted into, a LIBOR Loan and ending on the
date one, two, three or six months thereafter as selected by the Company
pursuant to Section 2.2.2 or 2.2.3, as the case may be; provided
that:


 


(a)                                  if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the following Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the preceding
Business Day;


 


(b)                                 any
Interest Period that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period
shall end on the last Business Day of the calendar month at the end of such
Interest Period; and


 


(c)                                  the
Company may not select any Interest Period for a Revolving Loan which would
extend beyond the scheduled Termination Date.


 


Inventory is defined
in the Guaranty and Collateral Agreement.


 


Investment means, with
respect to any Person, any investment in another Person, whether by acquisition
of any debt or Capital Security, by making any loan or advance, by becoming
obligated with respect to a Contingent Liability in respect of obligations of
such other Person (other than travel and similar advances to employees in the
ordinary course of business) or by making an Acquisition.


 


IPO means the
underwritten public offering of shares of the Company’s common stock pursuant
to a registration statement on Form S-1 which has been declared effective by
the SEC.


 


Issuing Lender means
Wells Fargo Bank, N.A., in its capacity as the issuer of Letters of Credit
hereunder, or any Affiliate of Wells Fargo Bank, N.A. that may from time to
time issue Letters of Credit, and their successors and assigns in such
capacity.


 


Joint Venture means
any corporation, limited or general partnership, limited liability company,
association, trust or other business entity of which the Company or one or more
of its


 


13

















 


Subsidiaries owns beneficially
at least 25% but less than 100% of the Capital Securities of such Person.


 


LaSalle - see the Preamble.


 


L/C Application
means, with respect to any request for the issuance of a Letter of Credit, a
letter of credit application in the form being used by the Issuing Lender at
the time of such request for the type of letter of credit requested.


 


L/C Fee Rate - see
the definition of Applicable Margin.


 


Lender - see the Preamble.  References to the “Lenders” shall include
the Issuing Lender; for purposes of clarification only, to the extent that
Wells Fargo Bank, N.A. (or any successor Issuing Lender) may have any rights or
obligations in addition to those of the other Lenders due to its status as
Issuing Lender, its status as such will be specifically referenced.  In addition to the foregoing, for the
purpose of identifying the Persons entitled to share in the Collateral and the
proceeds thereof under, and in accordance with the provisions of, this
Agreement and the Collateral Documents, the term “Lender” shall include
Affiliates of a Lender providing a Bank Product.


 


Lender Party - see Section 15.17.


 


Letter of Credit -
see Section 2.1.2.


 


LIBOR Loan means any
Loan which bears interest at a rate determined by reference to the LIBOR Rate.


 


LIBOR Margin - see
the definition of Applicable Margin.


 


LIBOR Office means
with respect to any Lender the office or offices of such Lender which shall be
making or maintaining the LIBOR Loans of such Lender hereunder.  A LIBOR Office of any Lender may be, at the
option of such Lender, either a domestic or foreign office.


 


LIBOR Rate means a
rate of interest equal to (a) the per annum rate of interest at which United
States dollar deposits in an amount comparable to the amount of the relevant
LIBOR Loan and for a period equal to the relevant Interest Period are offered
in the London Interbank Eurodollar market at 11:00 A.M. (London time) two (2)
Business Days prior to the commencement of such Interest Period (or three (3)
Business Days prior to the commencement of such Interest Period if banks in
London, England were not open and dealing in offshore United States dollars on
such second preceding Business Day), as displayed in the Bloomberg Financial Markets system (or
other authoritative source selected by the Administrative Agent in its sole
discretion) or, if the Bloomberg Financial
Markets system or another authoritative source is not available, as
the LIBOR Rate is otherwise determined by the Administrative Agent in its sole
and absolute discretion, divided by (b) a number determined by subtracting from
1.00 the


 


14

















 


then stated maximum reserve
percentage for determining reserves to be maintained by member banks of the
Federal Reserve System for Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D),
such rate to remain fixed for such Interest Period.  The Administrative Agent’s determination of the LIBOR Rate shall
be conclusive, absent manifest error.


 


Lien means, with
respect to any Person, any interest granted by such Person in any real or
personal property, asset or other right owned or being purchased or acquired by
such Person (including an interest in respect of a Capital Lease) which secures
payment or performance of any obligation and shall include any mortgage, lien,
encumbrance, title retention lien, charge or other security interest of any
kind, whether arising by contract, as a matter of law, by judicial process or
otherwise.


 


Loan Documents means
this Agreement, the Notes, the Letters of Credit, the Existing Letters of
Credit, the Master Letter of Credit Agreement, the L/C Applications, the Fee
Letter, the Collateral Documents, any Subordination Agreements and all
documents, instruments and agreements delivered in connection with the
foregoing.


 


Loan Party means the
Company and each Subsidiary.


 


Loan or Loans means,
as the context may require, Revolving Loans, and/or Swing Line Loans.


 


Mandatory Repayment Event
- see Section 6.2.2(a).


 


Margin Stock means
any “margin stock” as defined in Regulation U.


 


Master Letter of Credit Agreement
means, at any time, with respect to the issuance of Letters of Credit and
Existing Letters of Credit, a master letter of credit agreement or
reimbursement agreement in the form, if any, being used by the Issuing Lender
(with respect to Letters of Credit) and LaSalle (with respect to Existing
Letters of Credit) at such time.


 


Material Adverse Effect
means (i) a material adverse effect on the property, business, operations,
financial condition, liabilities, prospects or capitalization of the Company
and its Subsidiaries, taken as a whole, (ii) a material adverse effect on the
ability of the Loan Parties to perform their collective obligations under the
Loan Documents taken as a whole, or (iii) a material adverse effect on the
rights and remedies of the Administrative Agent, the Issuing Lender or the
Lenders under the Loan Documents.


 


Minority Shareholders
means, collectively, the Carol R. Warshauer GST Exempt Trust, Waverly Partners,
L.P., and SP Associates.


 


Minority Shareholder Redemption and Note
Assumption means (a) the purchase by the Company from
the Minority Shareholders of all shares of the Company’s common stock held by


 


15

















 


the Minority Shareholders for a
purchase price of approximately $11,000,000, of which up to $6,340,000 shall be
paid in cash and $5,000,000 shall be paid by the delivery of the Company’s
promissory note; (b) the immediate assumption of the Company’s obligations
under such promissory note by Steamboat Industries LLC and concurrent release
of the Company from such obligation; and (c) the purchase by the Company from
Myron C. Warshauer and cancellation of all options to purchase shares of common
stock of the Company for a purchase price of $300,000.


 


Mortgage means a
mortgage, deed of trust, leasehold mortgage or similar instrument granting the
Administrative Agent a Lien on real property of any Loan Party.


 


Multiemployer Pension Plan
means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to
which the Company or any other member of the Controlled Group may have any
liability.


 


Net Capital Expenditures
shall mean Capital Expenditures, exclusive of (i) any such Capital Expenditures
financed on a non-recourse basis (i.e., on customary non-recourse terms and
with recourse solely to the asset being financed with such non-recourse debt)
by third parties which are not Affiliates of the Company, and (ii) Capital
Expenditures which are incurred to complete a Permitted Acquisition.


 


Net Cash Proceeds
means:


 


(d)                                 with
respect to any Asset Disposition, the aggregate cash proceeds (including cash
proceeds received pursuant to policies of insurance or by way of deferred
payment of principal pursuant to a note, installment receivable or otherwise,
but only as and when received) received by any Loan Party pursuant to such
Asset Disposition net of (i) the direct costs relating to such sale, transfer
or other disposition (including sales commissions and legal, accounting and
investment banking fees), (ii) taxes paid or reasonably estimated by the
Company to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (iii)
amounts required to be applied to the repayment of any Debt secured by a Lien
on the asset subject to such Asset Disposition (other than the Loans);


 


(e)                                  with
respect to any issuance of Capital Securities, the aggregate cash proceeds
received by any Loan Party pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and underwriters’ commissions and
legal, accounting and investment banking fees); and


 


(f)                                    with
respect to any issuance of Debt, the aggregate cash proceeds received by any
Loan Party pursuant to such issuance, net of the direct costs of such issuance
(including up-front, underwriters’ and placement fees, closing and commitment
fees, and legal, accounting and investment banking fees).


 


16

















 


9 1⁄4% Note Indenture means that certain
Indenture dated March 30, 1998, by and among the Company, “Subsidiary
Guarantors” (as named therein), and U.S. Bank (as successor to State Street
Bank and Trust Company) as trustee thereunder.


 


9 1/4% Notes” shall mean the 9 1/4% Senior
Subordinated Notes issued by the Company in the original aggregate principal
amount of $140,000,000 due 2008 issued pursuant to the 9-1/4% Note Indenture.


 


9 1/4% Note Documents means the 9-1/4% Note
Indenture, the 9 1/4% Notes and all agreements, instruments and documents
executed in connection therewith at any time.


 


Non-U.S. Participant
- see Section 7.6(d).


 


Non-Use Fee Rate -
see the definition of Applicable Margin.


 


Note
means a promissory note
substantially in the form of Exhibit A.


 


Notice of Borrowing
- see Section 2.2.2.


 


Notice of Conversion/Continuation
- see Section 2.2.3.


 


Obligations means
all obligations (monetary (including post-petition interest, allowed or not) or
otherwise) of any Loan Party under this Agreement and any other Loan Document
including Attorney Costs and any reimbursement obligations of each Loan Party
in respect of Letters of Credit, Existing Letters of Credit and surety bonds,
all Hedging Obligations permitted hereunder which are owed to any Lender or its Affiliate, and all Bank
Products Obligations, all in each case howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due.


 


OFAC - see Section 10.4.


 


Off-Balance Sheet Liabilities
of a Person means, without duplication, (a) Receivables Facility Attributed
Indebtedness and any repurchase obligation or liability of such Person or any
of its Subsidiaries with respect to Accounts or notes receivable sold by such
Person or any of its Subsidiaries (calculated to include the unrecovered
investment of purchasers or transferees of Accounts or any other obligation of
such Person or such transferor to purchasers/transferees of interests in
Accounts or notes receivable or the agent for such purchasers/transferees), (b)
any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated
balance sheet of such Person, (c) any liability of such Person or any of its
Subsidiaries under any financing lease or so-called “synthetic” lease
transaction, or (d) any obligations of such Person or any of its Subsidiaries
arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheets of such Person and its
Subsidiaries.


 


17

















 


Operating Lease
means any lease of (or other agreement conveying the right to use) any real or
personal property by any Loan Party, as lessee, other than any Capital Lease.


 


Ordinary Course Capital Lease means a Capital
Lease of equipment or motor vehicles entered into by the Company or its
Subsidiaries or Joint Ventures in the ordinary course of business in connection
with performing its obligations under a Facility Management Agreement or a
Facility Lease.


 


Ordinary Course Equipment Lease means an
Operating Lease of equipment or motor vehicles entered into by the Company or
its Subsidiaries or Joint Ventures in the ordinary course of business in
connection with performing its obligations under a Facility Management
Agreement or a Facility Lease.


 


Ordinary Course Lease Termination means (i)
the termination of an Ordinary Course Equipment Lease or an Ordinary Course
Capital Lease pursuant to either (a) the termination of the related Facility
Management Agreement or Facility Lease, or (b) a material modification of the
related Facility Management Agreement or Facility Lease such that the items of
equipment or motor vehicles which are leased under such Ordinary Course
Equipment Lease or Ordinary Course Capital Lease are no longer needed or useful
for the purposes of performance under such Facility Management Agreement or
Facility Lease by the Company or the applicable Subsidiary, and (ii)
termination of a Facility Lease or Facility Management Agreement that is no
longer needed or useful in the business judgment of the Company.


 


Ordinary Course Lease Termination Payments
means payments of liquidated damages or accelerated rentals or similar amounts
which are paid under the terms of an Ordinary Course Equipment Lease, Ordinary
Course Capital Lease, Facility Management Agreement or Facility Lease pursuant
to an Ordinary Course Lease Termination thereof at or prior to expiration of
the then-applicable respective terms thereunder.


 


PBGC means the
Pension Benefit Guaranty Corporation and any entity succeeding to any or all of
its functions under ERISA.


 


Participant - see Section 15.6.2.


 


Pension Plan means a
“pension plan”, as such term is defined in Section 3(2) of ERISA, which is
subject to Title IV of ERISA or the minimum funding standards of ERISA (other
than a Multiemployer Pension Plan), and as to which the Company or any member
of the Controlled Group may have any liability, including any liability by
reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by
reason of being deemed to be a contributing sponsor under Section 4069 of
ERISA.


 


Perfection Certificate
means a perfection certificate executed and delivered to the Administrative
Agent by a Loan Party.


 


18

















 


Permitted Acquisition means an Acquisition by
the Company or a Guarantor which meets the requirements set forth in
Section 11.4 of this Agreement.


 


Permitted Lien means
a Lien expressly permitted hereunder pursuant to Section 11.2.


 


Person means any
natural person, corporation, partnership, trust, limited liability company,
association, governmental authority or unit, or any other entity, whether
acting in an individual, fiduciary or other capacity.


 


Preferred Stock means the Series C Preferred
Stock and the Series D Preferred Stock.


 


Preferred Stock Documents means all of the
agreements, documents and instruments relating in any way to the Preferred
Stock.


 


Prime Rate means,
for any day, the rate of interest in effect for such day as publicly announced
from time to time by the Administrative Agent as its prime rate (whether or not
such rate is actually charged by the Administrative Agent), which is not
intended to be the Administrative Agent’s lowest or most favorable rate of
interest at any one time.  Any change in
the Prime Rate announced by the Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such
change; provided that the Administrative Agent shall not be obligated to
give notice of any change in the Prime Rate.


 


Principals means (i) John V. Holten, Holberg
Industries, Inc., a Delaware corporation, AP Holdings, Inc., a Delaware
corporation, Steamboat Industries LLC, a New York limited liability company and
Steamboat Industries N.V., a corporation organized pursuant to the laws of The
Netherlands Antilles, (ii) the Related Parties of all the Persons described in
the foregoing clause (i), and (c) the Affiliates of all the Persons
described in the foregoing clauses (i) and (ii).


 


Pro Rata Share
means:


 


(g)                                 with
respect to a Lender’s obligation to make Revolving Loans, participate in
Letters of Credit and Existing Letters of Credit, reimburse the Issuing Lender
(with respect to Letters of Credit) and LaSalle (with respect to Existing
Letters of Credit), and receive payments of principal, interest, fees, costs,
and expenses with respect thereto, (x) prior to the Revolving Commitment
being terminated or reduced to zero, the percentage obtained by dividing (i)
such Lender’s Revolving Commitment, by (ii) the aggregate Revolving Commitment
of all Lenders and (y) from and after the time the Revolving Commitment has
been terminated or reduced to zero, the percentage obtained by dividing (i) the
aggregate unpaid principal amount of such Lender’s Revolving Outstandings
(after settlement and repayment of all Swing Line Loans by the Lenders) by (ii)
the aggregate unpaid principal amount of all Revolving Outstandings;


 


(h)                                 with
respect to all other matters as to a particular Lender, the percentage obtained
by dividing (i) such Lender’s Revolving Commitment by (ii) the aggregate
amount of Revolving Commitment of all Lenders; provided that in the
event the Commitments have been terminated


 


19

















 


or reduced to zero, Pro Rata Share shall be the
percentage obtained by dividing (A) the principal amount of such Lender’s
Revolving Outstandings (after settlement and repayment of all Swing Line Loans
by the Lenders) by (B) the principal amount of all outstanding Revolving
Outstandings.


 


Receivables Facility Attributed Indebtedness
means the amount of obligations outstanding under a receivables purchase
facility on any date of determination that would be characterized as principal
if such facility were structured as a secured lending transaction rather than
as a purchase.


 


Refunded Swing Line Loan
- see Section 2.2.4(c).


 


Regulation D means
Regulation D of the FRB.


 


Regulation U means
Regulation U of the FRB.


 


Related Agreements means the agreements, instruments and
documents pursuant to which the Related Transactions shall be consummated.


 


Related Party with respect to any Person means
(a) any controlling stockholder, 80% (or more) owned Subsidiary, or spouse or
immediate family member (in the case of an individual) of such Person, or (b)
any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Person and/or such other Persons referred
to in the immediately preceding clause (a).


 


Related Transactions
means the consummation of the following transactions:  (a) issuance of 4,500,000 or more shares by the Company pursuant
to closing of the IPO;  (b) closing of
the Series C Preferred Transaction and the concurrent contribution of all other
outstanding shares of Series C Preferred Stock to the capital of the Company
and retirement thereof; (c) closing of the Minority Shareholder Redemption and
Note Assumption; (d) all outstanding shares of Series D Preferred Stock shall
have been contributed to the capital of the Company and retired, other than 10
shares which shall be held of record by Fiducia Ltd. or one or more Principals,
and one share of which shall be pledged by Fiducia Ltd. to a creditor bank; (e)
all outstanding options, warrants and similar rights to purchase shares of
Series D Preferred Stock shall have been exchanged for options, warrants or
similar rights to purchase shares of common stock of the Company and no
options, warrants or other rights to purchase any shares of Preferred Stock
shall remain outstanding; (f) the Company shall have irrevocably tendered a
purchase price of no more than $62,300,000 (plus the accreted value from and
after April 1, 2004) to the trustee of the 14% Notes for the redemption,
and/or purchase and retirement, of all of the outstanding 14% Notes, and the
trustee shall have issued a payoff letter to the Company stating that upon the
redemption or purchase of all of the outstanding 14% Notes, the trustee shall
release all of its Liens on the assets of the Company that secure the 14%
Notes; and (g)


 


20

















 


repayment in full of all
obligations of the Loan Parties to the lenders under the Former Credit
Agreement and the other Former Loan Documents.


 


Replacement Lender - see Section 8.7(b).


 


Reportable Event
means a reportable event as defined in Section 4043 of ERISA and the
regulations issued thereunder as to which the PBGC has not waived the
notification requirement of Section 4043(a), or the failure of a Pension
Plan to meet the minimum funding standards of Section 412 of the Code
(without regard to whether the Pension Plan is a plan described in
Section 4021(a)(2) of ERISA) or under Section 302 of ERISA.


 


Required Lenders
means, at any time, Lenders whose Pro Rata Shares equal or exceed 662/3%
as determined pursuant to clause (d) of the definition of “Pro Rata Share”.


 


Revolving Commitment
means $90,000,000, as increased or reduced from time to time pursuant to Section 6.1.


 


Revolving Loan - see
Section 2.1.1.


 


Revolving Loan Availability
means, at any time, the Revolving Commitment less the sum of Revolving
Outstandings plus Swingline Loans.


 


Revolving Outstandings
means, at any time, the sum of (a) the aggregate principal amount of all
outstanding Revolving Loans, plus (b) the Stated Amount of all Letters of
Credit and Existing Letters of Credit.


 


SEC means the
Securities and Exchange Commission or any other governmental authority
succeeding to any of the principal functions thereof.


 


Senior Debt means
all Total Debt of the Company and its Subsidiaries other than Subordinated
Debt.


 


Senior Debt to EBITDA Ratio
means, as of the last day of any Fiscal Quarter, the ratio of (a) Senior Debt
outstanding as of such day to (b) EBITDA for the Computation Period ending on
such day.


 


Senior Officer
means, with respect to any Loan Party, any of the chief executive officer, the
chief financial officer, the chief operating officer or the treasurer of such
Loan Party.


 


Series C Preferred Transaction
means the exchange by the Company of shares of its common stock for all of the
outstanding shares of Series C Preferred Stock which are held by Steamboat
Industries LLC, and the concurrent retirement of such shares of Series C Preferred
Stock.


 


21



















Series C Preferred Stock
means the Series C preferred stock of the Company.


 


Series D Preferred Stock
means the Series D preferred stock of the Company.


 


Stated Amount means,
with respect to any Letter of Credit at any date of determination, (a) the
maximum aggregate amount available for drawing thereunder under any and all
circumstances plus (b) the aggregate amount of all unreimbursed payments and
disbursements under such Letter of Credit.


 


Subordinated Debt means, for any Person, any
Indebtedness of such Person which is fully subordinated to all Indebtedness of
such Person owing to the Administrative Agent and the Lenders, by written
agreements and documents in form and substance satisfactory to the Required
Lenders and which is governed by terms and provisions, including without
limitation maturities, covenants, defaults, rates and fees, acceptable to the
Agent and the Required Lenders, and shall include, without limitation, all
Indebtedness owing pursuant to the 9 1/4% Notes.


 


Subordinated Debt Documents means the 9 1/4%
Note Documents and any other agreement or document evidencing or relating to
any Subordinated Debt, in each case, as the same may be amended, restated,
modified or supplemented and in effect from time to time as permitted by the
terms hereof.


 


Subsidiary means,
with respect to any Person, a corporation, partnership, limited liability
company or other entity of which such Person owns, directly or indirectly, such
number of outstanding Capital Securities as have more than 50% of the ordinary
voting power for the election of directors or other managers of such
corporation, partnership, limited liability company or other entity.  Unless the context otherwise requires, each
reference to Subsidiaries herein shall be a reference to Subsidiaries of the
Company.


 


Swing Line Availability
means the lesser of (a) the Swing Line Commitment Amount and (b) Revolving Loan
Availability at such time.


 


Swing Line Commitment Amount
means $5,000,000, as reduced
from time to time pursuant to Section 6.1, which commitment
constitutes a subfacility of the Revolving Commitment of the Swing Line Lender.


 


Swing Line Lender
means LaSalle.


 


Swing Line Loan -
see Section 2.2.4.


 


Syndication Agent
means Wells in its capacity as syndication agent for the Lenders hereunder and
any successor thereto in such capacity.


 


22

















 


Taxes means any and
all present and future taxes, duties, levies, imposts, deductions, assessments,
charges or withholdings, and any and all liabilities (including interest and
penalties and other additions to taxes) with respect to the foregoing, but
excluding Excluded Taxes.


 


Termination Date
means the earlier to occur of (a) June 2, 2007 or (b) such other date on
which the Commitments terminate pursuant to Section 6 or 13.


 


Termination Event
means, with respect to a Pension Plan that is subject to Title IV of ERISA, (a)
a Reportable Event, (b) the withdrawal of Company or any other member of the
Controlled Group from such Pension Plan during a plan year in which Company or
any other member of the Controlled Group was a “substantial employer” as
defined in Section 4001(a)(2) of ERISA, (c) the termination of such
Pension Plan, the filing of a notice of intent to terminate the Pension Plan or
the treatment of an amendment of such Pension Plan as a termination under
Section 4041 of ERISA, (d) the institution by the PBGC of proceedings to
terminate such Pension Plan or (e) any event or condition that might constitute
grounds under Section 4042 of ERISA for the termination of, or appointment
of a trustee to administer, such Pension Plan.


 


Total Assets shall
mean, at any time, the consolidated assets of the Company and its Subsidiaries,
determined in accordance with GAAP.


 


Total Debt means all
Debt of the Company and its Subsidiaries, determined on a consolidated basis,
excluding (a) contingent obligations in respect of Contingent Liabilities
(except to the extent constituting Contingent Liabilities in respect of Debt of
a Person other than any Loan Party and except for any Contingent Liabilities in
respect of Disqualified Stock of the Company or any of its Subsidiaries), (b)
Hedging Obligations, (c) obligations to pay Earnouts, (d) Off-Balance Sheet
Liabilities (including without limitation, the D&E, Central Parking-Chicago
and Pacific Rim payment obligations identified on Schedule 11.1), (e) Debt of the Company to
Subsidiaries and Debt of Subsidiaries to the Company or to other Subsidiaries,
(f) the deferred compensation obligations to Myron Warshauer and Sidney Warshauer
on Schedule 11.1, and (g) amounts recorded as “carrying value in excess of
principal due to recapitalization” with respect to the 9 1⁄4% Notes consistent
with historical financial statements.


 


Total Debt to EBITDA Ratio
means, as of the last day of any Fiscal Quarter, the ratio of (a) Total Debt
outstanding as of such day to (b) EBITDA for the Computation Period ending on
such day.


 


Total Plan Liability
means, at any time, the present value of all vested and unvested accrued
benefits under all Pension Plans, determined as of the then most recent
valuation date for each Pension Plan, using PBGC actuarial assumptions for
single employer plan terminations.


 


type - see Section 2.2.1.


 


UCC is defined in
the Guaranty and Collateral Agreement.


 


23

















 


Unfinanced Capital Expenditures
means Capital Expenditures which are incurred and not financed with Funded Debt
(other than Obligations), and Capital Expenditures which are incurred to
complete a Permitted Acquisition.


 


Unfunded Liability means the amount (if any) by which the present value of all vested and
unvested accrued benefits under all Pension Plans exceeds the fair
market value of all assets allocable to those benefits, all determined as of
the then most recent valuation date for each Pension Plan, using PBGC actuarial
assumptions for single employer plan terminations.


 


Unmatured Event of Default
means any event that, if it continues uncured, will, with lapse of time or
notice or both, constitute an Event of Default.


 


Voting Stock means
any class of Capital Securities, the holders of which are at the time entitled,
as such holders, to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association, trust or
other business entity involved, whether or not the right so to vote exists by
reasoning of the happening of a contingency.


 


Withholding Certificate
- see Section 7.6(d).


 


Wholly-Owned Subsidiary
means, as to any Person, a Subsidiary all of the Capital Securities of which
(except directors’ qualifying Capital Securities) are at the time directly or
indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such
Person.


 


1.2                                 Other Interpretive Provisions.  (a) 
The meanings of defined terms are equally applicable to the singular and
plural forms of the defined terms.


 


(b)                                 Section,
Annex, Schedule and Exhibit references are to this Agreement unless
otherwise specified.


 


(c)                                  The
term “including” is not limiting and means “including without limitation.”


 


(d)                                 In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including”; the words “to” and “until”
each mean “to but excluding”, and the word “through” means “to and including.”


 


(e)                                  Unless
otherwise expressly provided herein, (i) references to agreements
(including this Agreement and the other Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
supplements and other modifications thereto, but only to the extent such
amendments, restatements, supplements and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation shall be construed as including all statutory and
regulatory provisions amending, replacing, supplementing or interpreting such
statute or regulation.


 


24

















 


(f)                                    This
Agreement and the other Loan Documents may use several different limitations,
tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurements
are cumulative and each shall be performed in accordance with its terms.


 


(g)                                 This
Agreement and the other Loan Documents are the result of negotiations among and
have been reviewed by counsel to the Administrative Agent, the Company, the
Lenders and the other parties thereto and are the products of all parties.  Accordingly, they shall not be construed
against the Administrative Agent the Issuing Lender or the Lenders merely
because of the Administrative Agent’s or Lenders’ involvement in their
preparation.


 


SECTION 2                                   COMMITMENTS OF THE
LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES.


 


2.1                                 Commitments. 
On and subject to the terms and conditions of this Agreement, each of
the Lenders, severally and for itself alone, agrees to make loans to, and to
issue or participate in letters of credit for the account of, the Company as
follows:


 


2.1.1                        Revolving
Commitment.  Each Lender with a
Revolving Commitment agrees to make loans on a revolving basis (“Revolving
Loans”) from time to time until the Termination Date in such Lender’s Pro
Rata Share of such aggregate amounts as the Company may request from all
Lenders; provided that the Revolving Outstandings will not at any time
exceed an amount equal to the Revolving Commitment less the amount of any Swing
Line Loans outstanding at such time.


 


2.1.2                        L/C
Commitment.  Subject to Section 2.3.1,
the Issuing Lender agrees to issue letters of credit, in each case containing
such terms and conditions as are permitted by this Agreement and are reasonably
satisfactory to the Issuing Lender (each, a “Letter of Credit”), at the
request of and for the account of the Company from time to time before the
scheduled Termination Date and, as more fully set forth in Section 2.3.2,
each Lender agrees to purchase a participation in each Letter of Credit or
Existing Letter of Credit; provided that (a) the aggregate Stated Amount
of all Letters of Credit and Existing Letters of Credit shall not at any time
exceed $30,000,000 and (b) the Revolving Outstandings shall not at any
time exceed an amount equal to the Revolving Commitment less the amount of any
Swing Line Loans outstanding at such time.


 


2.2                                 Loan Procedures.


 


2.2.1                        Various
Types of Loans.  Each Revolving
Loan shall be either a Base Rate Loan or a LIBOR Loan (each a “type” of
Loan), as the Company shall specify in the related notice of borrowing or
conversion pursuant to Section 2.2.2 or 2.2.3.  LIBOR Loans having the same Interest Period
which expire on the same day are sometimes called a “Group” or
collectively “Groups”.  Base Rate
Loans and LIBOR Loans may be outstanding at the same time, provided that
not more than five (5) different Groups of LIBOR Loans shall be outstanding at
any one time.  All borrowings,
conversions and repayments of Revolving Loans shall be effected so that


 


25

















 


each Lender will have a ratable share (according to
its Pro Rata Share) of all types and Groups of Loans.


 


2.2.2                        Borrowing
Procedures.  The Company shall
give written notice (each such written notice, a “Notice of Borrowing”)
substantially in the form of Exhibit D or telephonic notice (followed
immediately by a Notice of Borrowing) to the Administrative Agent of each
proposed borrowing not later than (a) in the case of a Base Rate
borrowing, Noon, Chicago time, on the proposed date of such borrowing, and
(b) in the case of a LIBOR borrowing, Noon, Chicago time, at least three
Business Days prior to the proposed date of such borrowing.  Each such notice shall be effective upon
receipt by the Administrative Agent, shall be irrevocable, and shall specify
the date, amount and type of borrowing and, in the case of a LIBOR borrowing,
the initial Interest Period therefore. 
Promptly upon receipt of such notice, the Administrative Agent shall
advise each Lender thereof.  Not later
than 2:00 P.M., Chicago time, on the date of a proposed borrowing, each Lender
shall provide the Administrative Agent at the office specified by the
Administrative Agent with immediately available funds covering such Lender’s
Pro Rata Share of such borrowing and, so long as the Administrative Agent has
not received written notice that the conditions precedent set forth in Section 12
with respect to such borrowing have not been satisfied, the Administrative
Agent shall pay over the funds received by the Administrative Agent to the
Company on the requested borrowing date. 
Each borrowing shall be on a Business Day.  Each Base Rate borrowing shall be in an aggregate amount of at
least $250,000 and an integral multiple of $50,000, and each LIBOR borrowing
shall be in an aggregate amount of at least $2,000,000 and an integral multiple
of at least $500,000.


 


2.2.3                        Conversion and Continuation
Procedures.  (a)  Subject to Section 2.2.1, the
Company may, upon irrevocable written notice to the Administrative Agent in
accordance with clause (b) below:


 


(A)                              elect,
as of any Business Day, to convert any Loans (or any part thereof in an aggregate
amount not less than $2,000,000 a higher integral multiple of $500,000) into
Loans of the other type; or


 


(B)                                elect,
as of the last day of the applicable Interest Period, to continue any LIBOR
Loans having Interest Periods expiring on such day (or any part thereof in an
aggregate amount not less than $2,000,000 or a higher integral multiple of
$500,000) for a new Interest Period;


 


provided that after
giving effect to any prepayment, conversion or continuation, the aggregate
principal amount of each Group of LIBOR Loans shall be at least $ 2,000,000 and
an integral multiple of $500,000.


 


(b)                                 The
Company shall give written notice (each such written notice, a “Notice of
Conversion/Continuation”) substantially in the form of Exhibit E or
telephonic notice (followed immediately by a Notice of Conversion/Continuation)
to the Administrative Agent of each


 


26

















 


proposed conversion or continuation not later than (i)
in the case of conversion into Base Rate Loans, Noon, Chicago time, on the
proposed date of such conversion and (ii) in the case of conversion into or
continuation of LIBOR Loans, Noon, Chicago time, at least three Business Days
prior to the proposed date of such conversion or continuation, specifying in each
case:


 


(A)                              the
proposed date of conversion or continuation;


 


(B)                                the
aggregate amount of Loans to be converted or continued;


 


(C)                                the
type of Loans resulting from the proposed conversion or continuation; and


 


(D)                               in
the case of conversion into, or continuation of, LIBOR Loans, the duration of
the requested Interest Period therefore.


 


(c)                                  If
upon the expiration of any Interest Period applicable to LIBOR Loans, the
Company has failed to select timely a new Interest Period to be applicable to
such LIBOR Loans, the Company shall be deemed to have elected to convert such
LIBOR Loans into Base Rate Loans effective on the last day of such Interest
Period.


 


(d)                                 The
Administrative Agent will promptly notify each Lender of its receipt of a
notice of conversion or continuation pursuant to this Section 2.2.3
or, if no timely notice is provided by the Company, of the details of any
automatic conversion.


 


(e)                                  Any
conversion of a LIBOR Loan on a day other than the last day of an Interest
Period therefore shall be subject to Section 8.4.


 


2.2.4                        Swing
Line Facility.


 


(a)                                  The
Administrative Agent shall notify the Swing Line Lender upon the Administrative
Agent’s receipt of any Notice of Borrowing. 
Subject to the terms and conditions hereof, the Swing Line Lender may,
in its sole discretion upon the Company’s request, make available from time to
time until the Termination Date advances (each, a “Swing Line Loan”) in
accordance with any such notice, notwithstanding that after making a requested
Swing Line Loan, the sum of the Swing Line Lender’s Pro Rata Share of the
Revolving Outstandings and all outstanding Swing Line Loans, may exceed the
Swing Line Lender’s Pro Rata Share of the Revolving Commitment.  The provisions of this Section 2.2.4
shall not relieve Lenders of their obligations to make Revolving Loans under Section 2.1.1;
provided that if the Swing Line Lender makes a Swing Line Loan pursuant
to any such notice, such Swing Line Loan shall be in lieu of any Revolving Loan
that otherwise may be made by the Lenders pursuant to such notice.  The aggregate amount of Swing Line Loans
outstanding shall not exceed at any time Swing Line Availability.  Until the Termination Date, the Company may
from time to time borrow, repay and reborrow under this Section 2.2.4.  Each Swing Line Loan shall be made pursuant
to a Notice of Borrowing delivered by the Company to the Administrative Agent
in accordance with


 


27

















 


Section 2.2.2.  Any such notice must be given no later than
2:00 P.M., Chicago time, on the Business Day of the proposed Swing Line
Loan.  Unless the Swing Line Lender has
received at least one Business Day’s prior written notice from the Required
Lenders instructing it not to make a Swing Line Loan, the Swing Line Lender
shall, notwithstanding the failure of any condition precedent set forth in Section 12.2,
be entitled to fund that Swing Line Loan, and to have such Lender make
Revolving Loans in accordance with Section 2.2.4(c) or purchase
participating interests in accordance with Section 2.2.4(d).   Notwithstanding any other provision of this
Agreement or the other Loan Documents, each Swing Line Loan shall constitute a
Base Rate Loan.  The Company shall repay
the aggregate outstanding principal amount of each Swing Line Loan upon demand
therefore by the Administrative Agent.


 


(b)                                 The
entire unpaid balance of each Swing Line Loan and all other noncontingent
Obligations shall be immediately due and payable in full in immediately
available funds on the Termination Date if not sooner paid in full.


 


(c)                                  The
Swing Line Lender, at any time and from time to time no less frequently than
once weekly, shall on behalf of the Company (and the Company hereby irrevocably
authorizes the Swing Line Lender to so act on its behalf) request each Lender
with a Revolving Commitment (including the Swing Line Lender) to make a
Revolving Loan to the Company (which shall be a Base Rate Loan) in an amount
equal to that Lender’s Pro Rata Share of the principal amount of all Swing Line
Loans (the “Refunded Swing Line Loan”) outstanding on the date such
notice is given.  Unless any of the
events described in Section 13.1.4 has occurred (in which event the
procedures of Section 2.2.4(d) shall apply) and regardless of
whether the conditions precedent set forth in this Agreement to the making of a
Revolving Loan are then satisfied, each Lender shall disburse directly to the
Administrative Agent, its Pro Rata Share on behalf of the Swing Line Lender,
prior to 2:00 P.M., Chicago time, in immediately available funds on the date
that notice is given (provided that such notice is given by 12:00 p.m.,
Chicago time, on such date).  The
proceeds of those Revolving Loans shall be immediately paid to the Swing Line
Lender and applied to repay the Refunded Swing Line Loan.


 


(d)                                 If,
prior to refunding a Swing Line Loan with a Revolving Loan pursuant to Section 2.2.4(c),
one of the events described in Section 13.1.4 has occurred, then,
subject to the provisions of Section 2.2.4(e) below, each Lender
shall, on the date such Revolving Loan was to have been made for the benefit of
the Company, purchase from the Swing Line Lender an undivided participation
interest in the Swing Line Loan in an amount equal to its Pro Rata Share of
such Swing Line Loan.  Upon request,
each Lender shall promptly transfer to the Swing Line Lender, in immediately
available funds, the amount of its participation interest.


 


(e)                                  Each
Lender’s obligation to make Revolving Loans in accordance with Section 2.2.4(c)
and to purchase participation interests in accordance with Section 2.2.4(d)
shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender may have against the Swing Line Lender, the Company
or any other Person for any reason whatsoever; (ii) the


 


28

















 


occurrence or continuance of any Unmatured Event of
Default or Event of Default; (iii) any inability of the Company to satisfy the
conditions precedent to borrowing set forth in this Agreement at any time or
(iv) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.  If and
to the extent any Lender shall not have made such amount available to the Administrative
Agent or the Swing Line Lender, as applicable, by 2:00 P.M., Chicago time, the
amount required pursuant to Sections 2.2.4(c) or 2.2.4(d), as the case
may be, on the Business Day on which such Lender receives notice from the
Administrative Agent of such payment or disbursement (it being understood that
any such notice received after noon, Chicago time, on any Business Day shall be
deemed to have been received on the next following Business Day), such Lender
agrees to pay interest on such amount to the Administrative Agent for the Swing
Line Lender’s account forthwith on demand, for each day from the date such
amount was to have been delivered to the Administrative Agent to the date such
amount is paid, at a rate per annum equal to (a) for the first three days after
demand, the Federal Funds Rate from time to time in effect and (b) thereafter,
the Base Rate from time to time in effect.


 


2.2.5                        Defaulting
Lenders.  Anything contained
herein to the contrary notwithstanding, in the event that any Lender, at the
direction or request of any regulatory agency or authority, defaults (a “Defaulting
Lender”) in its obligation to fund (a “Funding Default”) any
Revolving Loan or its portion of any unreimbursed payment under Section 2.2.2
(in each case, a “Defaulted Loan”), then (a) during any Default Period
with respect to such Defaulting Lender, such Defaulting Lender shall be deemed
not to be a “Lender” for purposes of voting on any matters the granting of any
amendments, consents or waivers) with respect to any of the Loan Documents; (b)
to the extent permitted by applicable law, until such time as the Default
Excess with respect to such Defaulting Lender shall have been reduced to zero,
(i) any voluntary repayment of the Revolving Loans shall, if the Company so
directors at the time of making such voluntary repayment, be applied to the
Revolving Loans of other Lenders as if such Defaulting Lender had no Revolving
Loans outstanding and the Revolving Outstandings of such Defaulting Lender were
zero, and (ii) except as otherwise expressly provided herein, any mandatory
repayment of the Revolving Loans shall, if the Company so directors at the time
of making such mandatory repayment, be applied to the Revolving Loans of other
Lenders (but not to the Revolving Loans of such Defaulting Lender) as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it
being understood and agreed that the Company shall be entitled to retain any
portion of any mandatory repayment of the Revolving Loans that is not paid to
such Defaulting Lender solely as a result of the operation of the provisions of
this clause (b); (c) such Defaulting Lender’s Revolving Commitment and
outstanding Revolving Loans and such Defaulting Lender’s Pro Rata Share of the
undrawn amount of outstanding Letters of Credit shall be excluded for purposes
of calculating the non-use fee under Section 5.1 hereof in respect
of any day during any Default Period with respect to such Defaulting Lender,
and such Defaulting Lender shall not be entitled to receive any such non-use
fee pursuant to Section 5.1 with respect to such Defaulting Lender’s
Revolving Commitment in respect of any Default Period with respect to such
Defaulting Lender; and (d) the total utilization of Revolving Commitments as of
any date of determination shall be calculated as if such Defaulting Lender


 


29

















 


had funded all Defaulted Loans of such Defaulting
Lender.  No Revolving Commitment of any
Lender shall be increased or otherwise affected, and, except as otherwise
expressly provided in this Section 2.2.5, performance by the
Company of its obligations hereunder and under the other Loan Documents shall
not be excused or otherwise modified as a result of any Funding Default under
this Section 2.2.5.  The
rights and remedies against a Defaulting Lender under this Section 2.2.5
are in addition to other rights and remedies which the Company, the
Administrative Agent and the other Lenders may have against such Defaulting
Lender with respect to any Funding Default.


 


2.3                                 Letter of Credit Procedures.


 


2.3.1                        L/C
Applications.  The Company shall
execute and deliver to the Issuing Lender the Master Letter of Credit Agreement
from time to time in effect.  The
Company shall give notice to the Administrative Agent and the Issuing Lender of
the proposed issuance of each Letter of Credit on a Business Day which is at
least three Business Days (or such lesser number of days as the Administrative
Agent and the Issuing Lender shall agree in any particular instance in their
sole discretion) prior to the proposed date of issuance of such Letter of
Credit.  Each such notice shall be
accompanied by an L/C Application, duly executed by the Company and in all
respects satisfactory to the Administrative Agent and the Issuing Lender,
together with such other documentation as the Administrative Agent or the
Issuing Lender may request in support thereof, it being understood that each
L/C Application shall specify, among other things, the date on which the proposed
Letter of Credit is to be issued, the expiration date of such Letter of Credit
(which shall not be later than the scheduled Termination Date (unless such
Letter of Credit is Cash Collateralized)) and whether such Letter of Credit is
to be transferable in whole or in part. 
Any Letter of Credit or Existing Letter of Credit outstanding after the
scheduled Termination Date which is Cash Collateralized for the benefit of the
Issuing Lender or LaSalle shall be the sole responsibility of the Issuing
Lender or LaSalle, as applicable.  So
long as the Issuing Lender has not received written notice that the conditions
precedent set forth in Section 12 with respect to the issuance of
such Letter of Credit have not been satisfied, the Issuing Lender shall issue
such Letter of Credit on the requested issuance date.  The Issuing Lender shall promptly advise the Administrative Agent
of the issuance of each Letter of Credit and of any amendment thereto,
extension thereof or event or circumstance changing the amount available for
drawing thereunder.  In the event of any
inconsistency between the terms of the Master Letter of Credit Agreement, any
L/C Application and the terms of this Agreement, the terms of this Agreement
shall control.


 


2.3.2                        Participations in Letters of Credit
and Existing Letters of Credit. 
Concurrently with the issuance of each Letter of Credit, and upon the
Closing Date with respect to each Existing Letter of Credit, the Issuing Lender
and LaSalle shall be deemed to have sold and transferred to each Lender with a
Revolving Commitment, and each such Lender shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Lender and
LaSalle, without recourse or warranty, an undivided interest and participation,
to the extent of such Lender’s Pro Rata Share, in such Letter of Credit and
each Existing Letter of Credit and


 


30

















 


the Company’s reimbursement obligations with respect
thereto.  If the Company does not pay
any reimbursement obligation when due, the Company shall be deemed to have
immediately requested that the Lenders make a Revolving Loan which is a Base
Rate Loan in a principal amount equal to such reimbursement obligations.  The Administrative Agent shall promptly notify
such Lenders of such deemed request and, without the necessity of compliance
with the requirements of Section 2.2.2, 12.2 or otherwise
each Lender shall make available to the Administrative Agent its Pro Rata Share
of such Loan.  The proceeds of such Loan
shall be paid over by the Administrative Agent to the Issuing Lender or
LaSalle, as applicable, for the account of the Company in satisfaction of such
reimbursement obligations.  For the
purposes of this Agreement, the unparticipated portion of each Letter of Credit
or Existing Letter of Credit shall be deemed to be the Issuing Lender’s or
LaSalle’s, respectively, “participation” therein.  The Issuing Lender and LaSalle each hereby agree, upon request of
the Administrative Agent or any Lender, to deliver to the Administrative Agent
or such Lender a list of all outstanding Letters of Credit issued by the
Issuing Lender and Existing Letters of Credit issued by LaSalle, together with
such information related thereto as the Administrative Agent or such Lender may
reasonably request.


 


2.3.3                        Reimbursement Obligations.  (a) 
The Company hereby unconditionally and irrevocably agrees to reimburse
(i) the Issuing Lender for each payment or disbursement made by the Issuing
Lender under any Letter of Credit, and (ii) LaSalle for each payment or
disbursement made by LaSalle under any Existing Letter of Credit, honoring any
demand for payment made by the beneficiary thereunder, in each case on the date
that such payment or disbursement is made. 
Any amount not reimbursed on the date of such payment or disbursement
shall bear interest from the date of such payment or disbursement to the date
that the Issuing Lender or LaSalle, as applicable, is reimbursed by the Company
therefore, payable on demand, at a rate per annum equal to the Base Rate from
time to time in effect plus the Base Rate Margin from time to time in
effect plus, beginning on the third Business Day after receipt of notice
from the Issuing Lender or LaSalle, as applicable, of such payment or
disbursement, 2% per annum (meaning a year of 360 days and actual days
elapsed).  The Issuing Lender or
LaSalle, as applicable, shall notify the Company and the Administrative Agent
whenever any demand for payment is made under any Letter of Credit or Existing
Letter of Credit by the beneficiary thereunder; provided that the
failure of the Issuing Lender or LaSalle, as applicable, to so notify the
Company or the Administrative Agent shall not affect the rights of the Issuing
Lender, LaSalle or the Lenders in any manner whatsoever.


 


(b)                                 The
Company’s reimbursement obligations hereunder shall be irrevocable and
unconditional under all circumstances, including (a) any lack of validity or
enforceability of any Letter of Credit or Existing Letter of Credit, this
Agreement or any other Loan Document, (b) the existence of any claim, set-off,
defense or other right which any Loan Party may have at any time against a
beneficiary named in a Letter of Credit or an Existing Letter of Credit, any
transferee of any Letter of Credit or Existing Letter of Credit (or any Person
for whom any such transferee may be acting), the Administrative Agent, the
Issuing Lender, LaSalle or any Lender or any other Person, whether in
connection with any Letter of Credit, Existing Letter of Credit,


 


31

















 


this Agreement, any other Loan Document, the
transactions contemplated herein or any unrelated transactions (including any
underlying transaction between any Loan Party and the beneficiary named in any
Letter of Credit or Existing Letter of Credit), (c) the validity, sufficiency
or genuineness of any document which the Issuing Lender or LaSalle, as
applicable, has determined complies on its face with the terms of the
applicable Letter of Credit or Existing Letter of Credit, even if such document
should later prove to have been forged, fraudulent, invalid or insufficient in
any respect or any statement therein shall have been untrue or inaccurate in
any respect, or (d) the surrender or impairment of any security for the
performance or observance of any of the terms hereof.  Without limiting the foregoing, no action or omission whatsoever
by the Administrative Agent or any Lender (excluding any Lender in its capacity
as the Issuing Lender, or LaSalle in its capacity as the issuer of the Existing
Letters of Credit) under or in connection with any Letter of Credit or Existing
Letter of Credit or any related matters shall result in any liability of the
Administrative Agent or any Lender to the Company, or relieve the Company of
any of its obligations hereunder to any such Person, except for the Issuing
Lender’s or LaSalle’s (in its capacity as the issuer of the Existing Letters of
Credit), as applicable, gross negligence or willful misconduct.


 


2.3.4                        Funding by Lenders to Issuing Lender
and LaSalle.  If the Issuing
Lender makes any payment or disbursement under any Letter of Credit, or LaSalle
makes any payment or disbursement under any Existing Letter of Credit, and (a)
the Company has not reimbursed the Issuing Lender or LaSalle, as applicable, in
full for such payment or disbursement by Noon, Chicago time, on the date of
such payment or disbursement, (b) a Revolving Loan may not be made in
accordance with Section 2.3.2 or (c) any reimbursement received by
the Issuing Lender or LaSalle from the Company is or must be returned or
rescinded upon or during any bankruptcy or reorganization of the Company or
otherwise, each other Lender with a Revolving Commitment shall be obligated to
pay to the Administrative Agent for the account of the Issuing Lender or
LaSalle, as applicable, in full or partial payment of the purchase price of its
participation in such Letter of Credit or Existing Letter of Credit, its Pro
Rata Share of such payment or disbursement (but no such payment shall diminish
the obligations of the Company under Section 2.3.3), and, upon
notice from the Issuing Lender or LaSalle, the Administrative Agent shall
promptly notify each other Lender thereof. 
Each other Lender irrevocably and unconditionally agrees to so pay to
the Administrative Agent in immediately available funds for the Issuing
Lender’s or LaSalle’s account, as applicable, the amount of such other Lender’s
Pro Rata Share of such payment or disbursement.  If and to the extent any Lender shall not have made such amount
available to the Administrative Agent by 2:00 P.M., Chicago time, on the
Business Day on which such Lender receives notice from the Administrative Agent
of such payment or disbursement (it being understood that any such notice
received after noon, Chicago time, on any Business Day shall be deemed to have
been received on the next following Business Day), such Lender agrees to pay
interest on such amount to the Administrative Agent for the Issuing Lender’s or
LaSalle’s account, as applicable, forthwith on demand, for each day from the
date such amount was to have been delivered to the Administrative Agent to the
date such amount is paid, at a rate per annum equal to (a) for the first three
days after demand, the Federal Funds Rate from time to time in effect and (b)
thereafter, the Base Rate from time to time in


 


32

















 


effect.  Any
Lender’s failure to make available to the Administrative Agent its Pro Rata
Share of any such payment or disbursement shall not relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent such
other Lender’s Pro Rata Share of such payment, but no Lender shall be
responsible for the failure of any other Lender to make available to the Administrative
Agent such other Lender’s Pro Rata Share of any such payment or disbursement.


 


2.4                                 Commitments Several.  The failure of any Lender to make a
requested Loan on any date shall not relieve any other Lender of its obligation
(if any) to make a Loan on such date, but no Lender shall be responsible for
the failure of any other Lender to make any Loan to be made by such other
Lender.


 


2.5                                 Certain Conditions.  Except as otherwise provided in Sections 2.2.4, 2.3.2 and 2.3.4
of this Agreement, no Lender shall have an obligation to make any Loan, or to
permit the continuation of or any conversion into any LIBOR Loan, and the
Issuing Lender shall not have any obligation to issue any Letter of Credit, if
an Event of Default or Unmatured Event of Default exists.


 


SECTION 3                                   EVIDENCING OF LOANS.


 


3.1                                 Notes.  The Loans
of each Lender shall be evidenced by a Note, with appropriate insertions,
payable to the order of such Lender in a face principal amount equal to the sum
of such Lender’s Revolving Commitment.


 


3.2                                 Recordkeeping. 
The Administrative Agent, on behalf of each Lender, shall record in its
records, the date and amount of each Loan made by each Lender, each repayment
or conversion thereof and, in the case of each LIBOR Loan, the dates on which
each Interest Period for such Loan shall begin and end.  The aggregate unpaid principal amount so
recorded shall be rebuttably presumptive evidence of the principal amount of
the Loans owing and unpaid.  The failure
to so record any such amount or any error in so recording any such amount shall
not, however, limit or otherwise affect the Obligations of the Company
hereunder or under any Note to repay the principal amount of the Loans
hereunder, together with all interest accruing thereon.


 


SECTION 4                                   INTEREST.


 


4.1                                 Interest Rates. 
The Company promises to pay interest on the unpaid principal amount of
each Loan for the period commencing on the date of such Loan until such Loan is
paid in full as follows:


 


(a)                                  at
all times while such Loan is a Base Rate Loan, at a rate per annum equal to the
sum of the Base Rate from time to time in effect plus the Base Rate Margin from
time to time in effect; and


 


33

















 


(b)                                 at
all times while such Loan is a LIBOR Loan, at a rate per annum equal to the sum
of the LIBOR Rate applicable to each Interest Period for such Loan plus the
LIBOR Margin from time to time in effect;


 


provided that at any
time an Event of Default exists, unless the Required Lenders otherwise consent,
the interest rate applicable to each Loan shall be increased by 2% per annum
(and, in the case of Obligations not bearing interest, such Obligations shall
bear interest at the Base Rate applicable to Revolving Loans plus 2% per
annum), provided  further that such increase may thereafter be
rescinded by the Required Lenders, notwithstanding Section 15.1.  Notwithstanding the foregoing, upon the
occurrence of an Event of Default under Section 13.1.1 or 13.1.4,
such increase shall occur automatically.


 


4.2                                 Interest Payment Dates.  Accrued interest on each Base Rate Loan
shall be payable in arrears on the last day of each calendar quarter and at
maturity.  Accrued interest on each
LIBOR Loan shall be payable on the last day of each Interest Period relating to
such Loan (and, in the case of a LIBOR Loan with an Interest Period in excess
of three months, on the three-month anniversary of the first day of such
Interest Period), upon a prepayment of such Loan, and at maturity.  After maturity, and at any time an Event of
Default exists, accrued interest on all Loans shall be payable on demand.


 


4.3                                 Setting and Notice of LIBOR Rates.  The applicable LIBOR Rate for each Interest
Period shall be determined by the Administrative Agent, and notice thereof
shall be given by the Administrative Agent promptly to the Company and each
Lender.  Each determination of the
applicable LIBOR Rate by the Administrative Agent shall be conclusive and
binding upon the parties hereto, in the absence of demonstrable error.  The Administrative Agent shall, upon written
request of the Company or any Lender, deliver to the Company or such Lender a
statement showing the computations used by the Administrative Agent in
determining any applicable LIBOR Rate hereunder.


 


4.4                                 Computation of Interest.  Interest shall be computed for the actual
number of days elapsed on the basis of a year of 360 days.  The applicable interest rate for each Base
Rate Loan shall change simultaneously with each change in the Base Rate.


 


SECTION 5                                   FEES.


 


5.1                                 Non-Use Fee. 
The Company agrees to pay to the Administrative Agent for the account of
each Lender a non-use fee, for the period from the Closing Date to the
Termination Date, at the Non-Use Fee Rate in effect from time to time of such
Lender’s Pro Rata Share (as adjusted from time to time) of the unused amount of
the Revolving Commitment.  For purposes
of calculating usage under this Section, the Revolving Commitment shall be
deemed used to the extent of Revolving Outstandings.  Such non-use fee shall be payable in arrears on the last day of
each calendar quarter and on the Termination Date for any period then ending
for which such


 


34

















 


non-use fee shall not have previously been paid.  The non-use fee shall be computed for the
actual number of days elapsed on the basis of a year of 360 days.


 


5.2                                 Letter of Credit Fees.  (a)  
The Company agrees to pay to the Administrative Agent for the account of
each Lender a letter of credit fee for each Letter of Credit and Existing
Letter of Credit equal to the L/C Fee Rate in effect from time to time of such
Lender’s Pro Rata Share (as adjusted from time to time) of the undrawn amount
of such Letter of Credit or Existing Letter of Credit, as applicable (computed
for the actual number of days elapsed on the basis of a year of 360 days); provided
that, unless the Required Lenders otherwise consent, the rate applicable to
each Letter of Credit and each Existing Letter of Credit shall be increased by
2% per annum at any time that an Event of Default exists.  Such letter of credit fee shall be payable
in arrears on the last day of
each calendar quarter and on the Termination Date (or such later date on which
such Letter of Credit or Existing Letter of Credit expires or is terminated)
for the period from the date of the issuance of each Letter of Credit (or the
last day on which the letter of credit fee was paid with respect thereto), and
from the Closing Date with respect to the Existing Letters of Credit, to the
date such payment is due or, if earlier, the date on which such Letter of
Credit or Existing Letter of Credit expired or was terminated.


 


(b)                                 In
addition, (i) with respect to each Letter of Credit, the Company agrees to pay
to the Issuing Lender, for its own account, (a) such fees and expenses as the
Issuing Lender customarily requires in connection with the issuance,
negotiation, processing and/or administration of letters of credit in similar
situations and (b) a letter of credit fronting fee in the amount and at the
times agreed to by the Company in the Fee Letter, and (ii) with respect to each
Existing Letter of Credit, the Company agrees to pay to LaSalle, for its own
account, such fees and expenses as LaSalle customarily requires in connection
with the processing and/or administration of letters of credit in similar
situations.


 


5.3                                 Administrative Agent’s Fees.  The Company agrees to pay to the
Administrative Agent such agent’s fees as are mutually agreed to from time to
time by the Company and the Administrative Agent including the fees set forth
in the Fee Letter.


 


SECTION 6                                   INCREASE,
REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS.


 


6.1                                 Increase, Reduction or Termination of the Revolving
Commitment.


 


6.1.1                        Increase of the Revolving Commitment.  From time to time after the Closing Date and
prior to the Termination Date, the Company may, at its option, with the
approval of LaSalle and Wells, and subject to the following conditions, request
to increase the aggregate Revolving Commitment by up to an additional
$15,000,000.  In addition to the
approval of LaSalle and Wells, any such increase shall be conditioned upon each
of the following:


 


35

















 


(a)                                  The
Company shall have obtained a commitment to participate as an additional Lender
hereunder from a financial institution which is reasonably acceptable to the
Administrative Agent and the Required Lenders, which commitment shall be in
writing and be in a minimum amount of $5,000,000 or an integral multiple
thereof;


 


(b)                                 Such
proposed additional Lender shall have executed an amendment to this Agreement
in form and substance satisfactory to the Administrative Agent and the Required
Lenders pursuant to which such additional Lender shall become a Lender
hereunder with a Revolving Commitment; and


 


(c)                                  The
Loan Parties shall have executed and/or delivered to the Administrative Agent
such additional instruments, documents, certificates and agreements as the
Administrative Agent shall reasonably request in connection with the foregoing
and to confirm that such increase in the Revolving Commitment hereunder has
been duly authorized and approved by each of the Loan Parties.


 


Upon satisfaction of all such conditions precedent, such proposed
additional Lender shall become a Lender hereunder on and subject to the terms
and conditions of this Agreement.


 


6.1.2                        Voluntary Reduction or Termination
of the Revolving Commitment. 
The Company may from time to time on at least five Business Days’ prior
written notice received by the Administrative Agent (which shall promptly
advise each Lender thereof) permanently reduce the Revolving Commitment to an
amount not less than the Revolving Outstandings plus the outstanding
amount of all Swing Line Loans.  Any
such reduction shall be in an amount not less than $5,000,000 or a higher
integral multiple of $1,000,000. 
Concurrently with any reduction of the Revolving Commitment to zero, the
Company shall pay all interest on the Revolving Loans, all non-use fees and all
letter of credit fees and shall Cash Collateralize in full all obligations
arising with respect to the Letters of Credit and Existing Letters of Credit.


 


6.1.3                        All Reductions of the Revolving
Commitment.  All reductions of
the Revolving Commitment shall reduce the Commitments ratably among the Lenders
according to their respective Pro Rata Shares.


 


6.2                                 Repayments.


 


6.2.1                        Voluntary
Repayments.  The Company may
from time to time repay the Loans (without any corresponding reduction in the
Revolving Commitment) in whole or in part; provided that the Company
shall give the Administrative Agent (which shall promptly advise each Lender)
notice thereof not later than Noon, Chicago time, on the day of such repayment
(which shall be a Business Day), specifying the Loans to be repaid and the date
and amount of repayment.  Any such
partial repayment shall be in an amount equal to $250,000 or a higher integral
multiple of $50,000.  Any partial
repayment of a Group of LIBOR Loans shall be subject to the proviso to Section 2.2.3(a).


 


36

















 


6.2.2                        Mandatory
Repayments.


 


(a)                                  The
Company shall make a repayment of the Loans (without any corresponding
reduction in the Revolving Commitment) upon the occurrence of any of the
following (each a “Mandatory Repayment Event”) at the following times
and in the following amounts (such applicable amounts being referred to as “Designated
Proceeds”):


 


(i)                                     Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any Asset
Disposition, in an amount equal to 100% of such Net Cash Proceeds.


 


(ii)                                  Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any issuance
of Capital Securities of any Loan Party (excluding (x) any issuance of Capital
Securities pursuant to any employee or director option program, benefit plan or
compensation program or pursuant to the exercise of the underwriter’s
over-allotment option in the IPO, and (y) any issuance by a Subsidiary to the
Company or another Subsidiary), in an amount equal to 100% of such Net Cash
Proceeds.


 


(iii)                               Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any issuance
of any Debt of any Loan Party (excluding Debt permitted by of Section 11.1),
in an amount equal to 100% of such Net Cash Proceeds.


 


(b)                                 If
on any day on which the Revolving Outstandings plus the outstanding
amount of the Swing Line Loan exceeds the Revolving Commitment, the Company
shall immediately repay Revolving Loans or Cash Collateralize the outstanding
Letters of Credit and/or Existing Letters of Credit, or do a combination of the
foregoing, in an amount sufficient to eliminate such excess.


 


6.3                                 Manner of Repayments.


 


6.3.1                        Partial
Repayments.  Any partial
repayment of a Group of LIBOR Loans shall be subject to the proviso to Section 2.2.3(a).  Any repayment of a LIBOR Loan on a day other
than the last day of an Interest Period therefore shall include interest on the
principal amount being repaid and shall be subject to Section 8.4.   Except as otherwise provided by this Agreement and the other Loan
Documents, and unless otherwise directed in writing by the Borrower, all
principal payments in respect of the Loans (other than the Swing Line Loans)
shall be applied first, to repay outstanding Base Rate Loans and then to repay
outstanding LIBOR Rate Loans in direct order of Interest Period maturities.


 


6.4                                 Final Repayment.


 


6.4.1                        Revolving
Loans.  The Revolving Loans of
each Lender shall be paid in full and the Revolving Commitment shall terminate
on the Termination Date.


 


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SECTION 7                                   MAKING
AND PRORATION OF PAYMENTS; SETOFF; TAXES.


 


7.1                                 Making of Payments.  All payments of principal or interest on the Notes, and of all
fees, shall be made by the Company to the Administrative Agent in immediately
available funds at the office specified by the Administrative Agent not later
than 1:00 P.M., Chicago time, on the date due; and funds received after that
hour shall be deemed to have been received by the Administrative Agent on the
following Business Day.  The
Administrative Agent shall promptly remit to each Lender its share of all such
payments received in collected funds by the Administrative Agent for the
account of such Lender.  All payments
under Section 8.1 shall be made by the Company directly to the Lender
entitled thereto without setoff, counterclaim or other defense.


 


7.2                                 Application of Certain Payments.  So long as no Event of Default has occurred
and is continuing, (a) payments matching specific scheduled payments then due
shall be applied to those scheduled payments and (b) voluntary and mandatory
prepayments shall be applied as set forth in Sections 6.2 and 6.3.  After the occurrence and during the
continuance of an Event of Default, all amounts collected or received by the
Administrative Agent or any Lender as proceeds from the sale of, or other
realization upon, all or any part of the collateral shall be applied as the
Administrative Agent shall determine in its discretion or, in the absence of a
specific determination by the Administrative Agent, as set forth in the
Guaranty and Collateral Agreement. 
Concurrently with each remittance to any Lender of its share of any such
payment, the Administrative Agent shall advise such Lender as to the
application of such payment.


 


7.3                                 Due Date Extension.  If any payment of principal or interest with respect to any of
the Loans, or of any fees, falls due on a day which is not a Business Day, then
such due date shall be extended to the immediately following Business Day
(unless, in the case of a LIBOR Loan, such immediately following Business Day
is the first Business Day of a calendar month, in which case such due date
shall be the immediately preceding Business Day) and, in the case of principal,
additional interest shall accrue and be payable for the period of any such
extension.


 


7.4                                 Setoff.  The
Company agrees that the Administrative Agent and each Lender have all rights of
set-off and bankers’ lien provided by applicable law, and in addition thereto,
the Company agrees that at any time any Event of Default exists, the
Administrative Agent and each Lender may apply to the payment of any
Obligations of the Company hereunder, whether or not then due, any and all
balances, credits, deposits, accounts or moneys of the Company then or
thereafter with the Administrative Agent or such Lender.


 


7.5                                 Proration of Payments.  If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of offset or
otherwise, on account of (a) principal of or interest on any Loan, but
excluding (i) any payment pursuant to Section 8.7 or 15.6
and (ii) payments of interest on any Affected Loan) or (b) its participation in
any Letter of Credit or Existing Letter of Credit) in excess of its applicable
Pro Rata Share of payments and other recoveries obtained by all Lenders on
account of principal of and interest on the Loans (or such


 


38

















 


participation) then held by them, then such Lender
shall purchase from the other Lenders such participations in the Loans (or
sub-participations in Letters of Credit or Existing Letters of Credit) held by
them as shall be necessary to cause such purchasing Lender to share the excess
payment or other recovery ratably with each of them; provided that if
all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery.


 


7.6                                 Taxes.


 


(a)                                  All
payments made by the Company hereunder or under any Loan Documents shall be
made without setoff, counterclaim, or other defense.  To the extent permitted by applicable law, all payments hereunder
or under the Loan Documents (including any payment of principal, interest, or
fees) to, or for the benefit, of any person shall be made by the Company free
and clear of and without deduction or withholding for, or account of, any Taxes
now or hereinafter imposed by any taxing authority.


 


(b)                                 If
the Company makes any payment hereunder or under any Loan Document in respect
of which it is required by applicable law to deduct or withhold any Taxes, the
Company shall increase the payment hereunder or under any such Loan Document
such that after the reduction for the amount of Taxes withheld (and any taxes
withheld or imposed with respect to the additional payments required under this
Section 7.6(b)), the amount paid to the Lenders or the
Administrative Agent equals the amount that was payable hereunder or under any
such Loan Document without regard to this Section 7.6(b).  To the extent the Company withholds any
Taxes on payments hereunder or under any Loan Document, the Company shall pay
the full amount deducted to the relevant taxing authority within the time
allowed for payment under applicable law and shall deliver to the
Administrative Agent within 30 days after it has made payment to such authority
a receipt issued by such authority (or other evidence satisfactory to the
Administrative Agent) evidencing the payment of all amounts so required to be
deducted or withheld from such payment.


 


(c)                                  If
any Lender or the Administrative Agent is required by law to make any payments
of any Taxes on or in relation to any amounts received or receivable hereunder
or under any other Loan Document, or any Tax is assessed against a Lender or
the Administrative Agent with respect to amounts received or receivable
hereunder or under any other Loan Document, the Company will indemnify such
person against (i) such Tax (and any reasonable counsel fees and expenses
associated with such Tax) and (ii) any taxes imposed as a result of the receipt
of the payment under this Section 7.6(c).  A certificate prepared in good faith as to the amount of such
payment by such Lender or the Administrative Agent shall, absent manifest
error, be final, conclusive, and binding on all parties.


 


(d)                                 (i)                                     To
the extent permitted by applicable law, each Lender that is not a United States
person within the meaning of Code section 7701(a)(30) (a “Non-U.S.
Participant”) shall deliver to the Company and the Administrative Agent on
or prior to the Closing Date (or in the


 


39

















 


case of a Lender that is an Assignee, on the date of
such assignment to such Lender) two accurate and complete original signed
copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other
applicable form prescribed by the IRS) certifying to such Lender’s entitlement
to a complete exemption from, or a reduced rate in, United States withholding
tax on interest payments to be made hereunder or any Loan.  If a Lender that is a Non-U.S. Participant
is claiming a complete exemption from withholding on interest pursuant to
Sections 871(h) or 881(c) of the Code, the Lender shall deliver (along with two
accurate and complete original signed copies of IRS Form W-8BEN) a certificate
in form and substance reasonably acceptable to Administrative Agent (any such
certificate, a “Withholding Certificate”).  In addition, each Lender that is a Non-U.S. Participant agrees
that from time to time after the Closing Date, (or in the case of a Lender that
is an Assignee, after the date of the assignment to such Lender), when a lapse
in time (or change in circumstances occurs) renders the prior certificates
hereunder obsolete or inaccurate in any material respect, such Lender shall, to
the extent permitted under applicable law, deliver to the Company and the
Administrative Agent two new and accurate and complete original signed copies
of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other applicable
forms prescribed by the IRS), and if applicable, a new Withholding Certificate,
to confirm or establish the entitlement of such Lender or the Administrative
Agent to an exemption from, or reduction in, United States withholding tax on
interest payments to be made hereunder or any Loan.


 


(ii)                                  Each
Lender that is not a Non-U.S. Participant (other than any such Lender which is
taxed as a corporation for U.S. federal income tax purposes) shall provide two
properly completed and duly executed copies of IRS Form W-9 (or any successor
or other applicable form) to the Company and the Administrative Agent
certifying that such Lender is exempt from United States backup withholding
tax.  To the extent that a form provided
pursuant to this Section 7.6(d)(ii) is rendered obsolete or
inaccurate in any material respect as result of change in circumstances with
respect to the status of a Lender, such Lender shall, to the extent permitted
by applicable law, deliver to the Company and the Administrative Agent revised
forms necessary to confirm or establish the entitlement to such Lender’s or
Agent’s exemption from United States backup withholding tax.


 


(iii)                               The
Company shall not be required to pay additional amounts to a Lender, or
indemnify any Lender, under this Section 7.6 to the extent that
such obligations would not have arisen but for the failure of such Lender to
comply with Section 7.6(d).


 


(iv)                              Each
Lender agrees to indemnify the Administrative Agent and hold the Administrative
Agent harmless for the full amount of any and all present or future Taxes and
related liabilities (including penalties, interest, additions to tax and
expenses, and any Taxes imposed by any jurisdiction on amounts payable to the
Administrative Agent under this Section 7.6) which are imposed on
or with respect to principal, interest or fees payable to such Lender hereunder
and which are not paid by the Company pursuant to this Section 7.6,
whether or not such Taxes or related liabilities were correctly or legally


 


40

















 


asserted.  This indemnification shall be made within 30
days from the date the Administrative Agent makes written demand therefore.


 


SECTION 8                                   INCREASED
COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.


 


8.1                                 Increased Costs.  (a)  If, after the date
hereof, the adoption of, or any change in, any applicable law, rule or
regulation, or any change in the interpretation or administration of any
applicable law, rule or regulation by any governmental authority, central bank
or comparable agency charged with the interpretation or administration thereof,
or compliance by any Lender with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:  (i) shall impose, modify or
deem applicable any reserve (including any reserve imposed by the FRB, but
excluding any reserve included in the determination of the LIBOR Rate pursuant
to Section 4), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by any
Lender; or (ii) shall impose on any Lender any other condition affecting its
LIBOR Loans, its Note or its obligation to make LIBOR Loans; and the result of
anything described in clauses (i) and (ii) above is to increase the cost to (or
to impose a cost on) such Lender (or any LIBOR Office of such Lender) of making
or maintaining any LIBOR Loan, or to reduce the amount of any sum received or
receivable by such Lender (or its LIBOR Office) under this Agreement or under
its Note with respect thereto, then upon demand by such Lender (which demand
shall be accompanied by a statement setting forth the basis for such demand and
a calculation of the amount thereof in reasonable detail, a copy of which shall
be furnished to the Administrative Agent), the Company shall pay directly to such
Lender such additional amount as will compensate such Lender for such increased
cost or such reduction, so long as such amounts have accrued on or after the
day which is 180 days prior to the date on which such Lender first made demand
therefore.


 


(b)                                 If
any Lender shall reasonably determine that any change in, or the adoption or
phase-in of, any applicable law, rule or regulation regarding capital adequacy,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or the compliance by any Lender or
any Person controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender’s or such controlling Person’s
capital as a consequence of such Lender’s obligations hereunder or under any
Letter of Credit or Existing Letter of Credit to a level below that which such
Lender or such controlling Person could have achieved but for such change,
adoption, phase-in or compliance (taking into consideration such Lender’s or
such controlling Person’s policies with respect to capital adequacy) by an
amount deemed by such Lender or such controlling Person to be material, then
from time to time, upon demand by such Lender (which demand shall be
accompanied by a statement setting forth the basis for such demand and a calculation
of the amount thereof in reasonable detail, a copy of which shall be furnished
to the Administrative Agent), the Company shall pay to such Lender such
additional amount as will compensate such


 


41

















 


Lender or such controlling Person for such reduction
so long as such amounts have accrued on or after the day which is 180 days
prior to the date on which such Lender first made demand therefore.


 


42

















 


8.2                                 Basis for Determining Interest Rate
Inadequate or Unfair.  If


 


(a)                                  the
Administrative Agent reasonably determines (which determination shall be
binding and conclusive on the Company) that by reason of circumstances
affecting the interbank LIBOR market adequate and reasonable means do not exist
for ascertaining the applicable LIBOR Rate; or


 


(b)                                 the
Required Lenders advise the Administrative Agent that the LIBOR Rate as
determined by the Administrative Agent for any Interest Period will not
adequately and fairly reflect the cost to such Lenders of maintaining or
funding LIBOR Loans for such Interest Period (taking into account any amount to
which such Lenders may be entitled under Section 8.1) or that the
making or funding of LIBOR Loans has become impracticable as a result of an
event occurring after the date of this Agreement which in the opinion of such
Lenders materially affects such Loans;


 


then the
Administrative Agent shall promptly notify the other parties thereof and, so
long as such circumstances shall continue, (i) no Lender shall be under any
obligation to make or convert any Base Rate Loans into LIBOR Loans and (ii) on
the last day of the current Interest Period for each LIBOR Loan, such Loan
shall, unless then repaid in full, automatically convert to a Base Rate Loan.


 


8.3                                 Changes in Law Rendering LIBOR Loans
Unlawful.  If any change in, or
the adoption of any new, law or regulation, or any change in the interpretation
of any applicable law or regulation by any governmental or other regulatory
body charged with the administration thereof, should make it (in the good faith
judgment of any Lender) unlawful for any Lender to make, maintain or fund LIBOR
Loans, then such Lender shall promptly notify each of the other parties hereto
and, so long as such circumstances shall continue, (a) such Lender shall have
no obligation to make or convert any Base Rate Loan into a LIBOR Loan (but
shall make Base Rate Loans concurrently with the making of or conversion of
Base Rate Loans into LIBOR Loans by the Lenders which are not so affected, in
each case in an amount equal to the amount of LIBOR Loans which would be made
or converted into by such Lender at such time in the absence of such
circumstances) and (b) on the last day of the current Interest Period for each LIBOR
Loan of such Lender (or, in any event, on such earlier date as may be required
by the relevant law, regulation or interpretation), such LIBOR Loan shall,
unless then repaid in full, automatically convert to a Base Rate Loan.  Each Base Rate Loan made by a Lender which,
but for the circumstances described in the foregoing sentence, would be a LIBOR
Loan (an “Affected Loan”) shall remain outstanding for the period
corresponding to the Group of LIBOR Loans of which such Affected Loan would be
a part absent such circumstances.


 


8.4                                 Funding Losses. 
The Company hereby agrees that upon written demand by any Lender (which
demand shall be accompanied by a statement setting forth in reasonable detail
the basis for the amount being claimed, a copy of which shall be furnished to
the Administrative Agent), the Company will indemnify such Lender against any
net loss or expense which such


 


43

















 


Lender may sustain or incur (including any net loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain any LIBOR Loan), as
reasonably determined by such Lender, as a result of (a) any payment,
prepayment or conversion of any LIBOR Loan of such Lender on a date other than
the last day of an Interest Period for such Loan (including any conversion
pursuant to Section 8.3) or (b) any failure of the Company to
borrow, convert or continue any Loan on a date specified therefore in a notice
of borrowing, conversion or continuation pursuant to this Agreement; provided
that written notice of such loss is given to the Company within 180 days of its
incurrence.  For this purpose, all
notices to the Administrative Agent pursuant to this Agreement shall be deemed
to be irrevocable.


 


8.5                                 Right of Lenders to Fund through
Other Offices.  Each Lender may,
if it so elects, fulfill its commitment as to any LIBOR Loan by causing a
foreign branch or Affiliate of such Lender to make such Loan; provided
that in such event for the purposes of this Agreement such Loan shall be deemed
to have been made by such Lender and the obligation of the Company to repay
such Loan shall nevertheless be to such Lender and shall be deemed held by it,
to the extent of such Loan, for the account of such branch or Affiliate.


 


8.6                                 Discretion of Lenders as to Manner of Funding.  Notwithstanding any provision of this
Agreement to the contrary, except with regard to the obligation to mitigate
increased costs, each Lender shall be entitled to fund and maintain its funding
of all or any part of its Loans in any manner it sees fit, it being understood,
however, that for the purposes of this Agreement all determinations hereunder
shall be made as if such Lender had actually funded and maintained each LIBOR
Loan during each Interest Period for such Loan through the purchase of deposits
having a maturity corresponding to such Interest Period and bearing an interest
rate equal to the LIBOR Rate for such Interest Period.


 


8.7                                 Mitigation of Circumstances;
Replacement of Lenders. 
(a)  Each Lender shall promptly
notify the Company and the Administrative Agent of any event of which it has
knowledge which will result in, and will use reasonable commercial efforts
available to it (and not, in such Lender’s reasonable good faith judgment,
otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any
obligation by the Company to pay any amount pursuant to Section 7.6
or 8.1 or (ii) the occurrence of any circumstances described in Section 8.2
or 8.3 (and, if any Lender has given notice of any such event described
in clause (i) or (ii) above and thereafter such event ceases to exist, such
Lender shall promptly so notify the Company and the Administrative Agent).  Without limiting the foregoing, each Lender
will designate a different funding office if such designation will avoid (or
reduce the cost to the Company of) any event described in clause (i) or (ii)
above and such designation will not, in such Lender’s reasonable good faith
judgment, be otherwise disadvantageous to such Lender.


 


(b)                                 If
(i) the Company becomes obligated to pay additional amounts to any Lender
pursuant to Section 7.6 or 8.1, or (ii) any Lender gives
notice of the occurrence of any circumstances described in Section 8.2
or 8.3, or (iii) any Lender becomes a Defaulting Lender,


 


44

















 


the Company may designate another bank which is
acceptable to the Administrative Agent and the Issuing Lender in their
reasonable discretion (such other bank being called a “Replacement Lender”)
to purchase the Loans of such Lender and such Lender’s rights hereunder,
without recourse to or warranty by, or expense to, such Lender, for a purchase
price equal to the outstanding principal amount of the Loans payable to such Lender
plus any accrued but unpaid interest on such Loans and all accrued but unpaid
fees owed to such Lender and any other amounts payable to such Lender under
this Agreement, and to assume all the obligations of such Lender hereunder,
and, upon such purchase and assumption (pursuant to an Assignment Agreement),
such Lender shall no longer be a party hereto or have any rights hereunder
(other than rights with respect to indemnities and similar rights applicable to
such Lender prior to the date of such purchase and assumption) and shall be
relieved from all obligations to the Company hereunder, and the Replacement
Lender shall succeed to the rights and obligations of such Lender hereunder.


 


8.8                                 Conclusiveness of Statements;
Survival of Provisions. 
Determinations and statements of any Lender pursuant to Section 8.1,
8.2, 8.3 or 8.4 shall be conclusive absent demonstrable
error.  Lenders may use reasonable
averaging and attribution methods in determining compensation under Sections
8.1 and 8.4, and the provisions of such Sections shall survive
repayment of the Obligations, cancellation of any Notes, expiration or
termination of the Letters of Credit and/or Existing Letters of Credit and
termination of this Agreement.


 


SECTION 9                                   REPRESENTATIONS
AND WARRANTIES.


 


To induce the Administrative Agent and the
Lenders to enter into this Agreement and to induce the Lenders to make Loans
and issue and participate in Letters of Credit and Existing Letters of Credit
hereunder, the Company represents and warrants to the Administrative Agent and
the Lenders that, both before and after
giving effect to the Related Transactions:


 


9.1                                 Organization. 
Each Loan Party and each Guarantor is validly existing and in good
standing under the laws of its jurisdiction of organization; and each Loan
Party is duly qualified to do business in each jurisdiction where, because of
the nature of its activities or properties, such qualification is required,
except for such jurisdictions where the failure to so qualify could not
reasonably be expected to have a Material Adverse Effect.


 


9.2                                 Authorization; No Conflict.  Each Loan Party and each Guarantor is duly
authorized to execute and deliver each Loan Document to which it is a party,
the Company is duly authorized to borrow monies hereunder and each Loan Party
and each Guarantor is duly authorized to perform its Obligations under each
Loan Document to which it is a party. 
The execution, delivery and performance by each Loan Party and each
Guarantor of each Loan Document to which it is a party, and the borrowings by
the Company hereunder, do not and will not (a) require any consent or approval
of any governmental agency or authority (other than any consent or approval
which has been obtained and is in full force and effect), (b) conflict with (i)
any provision of law, (ii) the charter, by-laws or other organizational
documents of any Loan


 


45

















 


Party or Guarantor or (iii) any agreement, indenture,
instrument or other document, or any judgment, order or decree, which is
binding upon any Loan Party or Guarantor or any of their respective properties
or (c) require, or result in, the creation or imposition of any Lien on any
asset of any Loan Party or Guarantor (other than Liens in favor of the
Administrative Agent created pursuant to the Collateral Documents).


 


9.3                                 Validity and Binding Nature.  Each of this Agreement and each other Loan
Document to which any Loan Party is a party is the legal, valid and binding
obligation of such Person, enforceable against such Person in accordance with
its terms, subject to bankruptcy, insolvency and similar laws affecting the
enforceability of creditors’ rights generally and to general principles of
equity.


 


9.4                                 Financial Condition.  The audited consolidated financial statements
of the Company and its Subsidiaries as at December 31, 2003 and the
unaudited consolidated financial statements of the Company and the Subsidiaries
as at March 31, 2004, copies of each of which have been delivered to each
Lender, were prepared in accordance with GAAP (subject, in the case of such
unaudited statements, to the absence of footnotes and to normal year-end
adjustments) and present fairly in all material respects the consolidated
financial condition of the Company and its Subsidiaries as at such dates and
the results of their operations for the periods then ended.


 


9.5                                 No Material Adverse Change.  Since December 31, 2003, there has been
no Material Adverse Effect. 
Consummation of the Related Transactions will not result in a Material
Adverse Effect.


 


9.6                                 Litigation and Contingent
Liabilities.  No litigation
(including derivative actions), arbitration proceeding or governmental
investigation or proceeding is pending or, to the Company’s knowledge,
threatened, against any Loan Party or Guarantor which could reasonably be
expected to have a Material Adverse Effect, except as set forth in Schedule 9.6.  Other than any liability incident to such
litigation or proceedings, no Loan Party or Guarantor has any material
contingent liabilities not listed on Schedule 9.6 or permitted by Section 11.1
that could reasonably be expected to result in a Material Adverse Effect.


 


9.7                                 Ownership of Properties; Liens.  Each Loan Party and each Guarantor owns good
and, in the case of real property, marketable title to all of its properties
and assets, real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens, charges and claims (including
infringement claims with respect to patents, trademarks, service marks,
copyrights and the like) except Permitted Liens.


 


9.8                                 Equity Ownership; Subsidiaries.   Except as otherwise set forth on Schedule 9.8,
all issued and outstanding Capital Securities of the Company and each
Subsidiary and Joint Venture are duly authorized and validly issued, fully
paid, non-assessable, and (in the case of


 


46

















 


Subsidiaries and Joint Ventures) free and clear of all
Liens other than those in favor of the Administrative Agent, and such
securities were issued in compliance with all applicable state and federal laws
concerning the issuance of securities.  Schedule 9.8
sets forth the authorized Capital Securities and jurisdiction of organization
of each Subsidiary and Joint Venture as of the Closing Date.  All of the issued and outstanding Capital
Securities of the Company are owned as set forth in the Registration Statement
of the Company under “Principal and Selling Stockholders” (other than the
shares sold in the IPO) as of the Closing Date, and all of the issued and
outstanding Capital Securities of each Wholly-Owned Subsidiary is, directly or
indirectly, owned by the Company.  As of
the Closing Date, except as set forth on Schedule 9.8, there are no
pre-emptive or other outstanding rights, options, warrants, conversion rights
or other similar agreements or understandings for the purchase or acquisition
of any Capital Securities of any Loan Party.


 


9.9                                 Pension Plans. 
(a)  The Unfunded Liability of
all Pension Plans does not in the aggregate exceed twenty percent of the Total
Plan Liability for all such Pension Plans. 
Each Pension Plan complies in all material respects with all applicable
requirements of law and regulations.  No
contribution failure under Section 412 of the Code, Section 302 of
ERISA or the terms of any Pension Plan has occurred with respect to any Pension
Plan, sufficient to give rise to a Lien under Section 302(f) of ERISA, or
otherwise to have a Material Adverse Effect. 
There are no pending or, to the knowledge of Company, threatened,
claims, actions, investigations or lawsuits against any Pension Plan, any
fiduciary of any Pension Plan, or Company or other any member of the Controlled
Group with respect to a Pension Plan or a Multiemployer Pension Plan which
could reasonably be expected to have a Material Adverse Effect.  Neither the Company nor any other member of
the Controlled Group has engaged in any prohibited transaction (as defined in
Section 4975 of the Code or Section 406 of ERISA) in connection with
any Pension Plan or Multiemployer Pension Plan which could reasonably be
expected to have a Material Adverse Effect. 
Within the past five years, neither the Company nor any other member of
the Controlled Group has engaged in a transaction which resulted in a Pension
Plan with an Unfunded Liability being transferred out of the Controlled Group,
which could reasonably be expected to have a Material Adverse Effect.  No Termination Event has occurred or is
reasonably expected to occur with respect to any Pension Plan, which could
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 All
contributions (if any) have been made to any Multiemployer Pension Plan that
are required to be made by the Company or any other member of the Controlled
Group under the terms of the plan or of any collective bargaining agreement or
by applicable law; neither the Company nor any other member of the Controlled
Group has withdrawn or partially withdrawn from any Multiemployer Pension Plan,
incurred any withdrawal liability with respect to any such plan or received
notice of any claim or demand for withdrawal liability or partial withdrawal
liability from any such plan, and no condition has occurred which, if
continued, could result in a withdrawal or partial withdrawal from any such
plan, if any such withdrawal could reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any other member of the Controlled
Group has received any notice that any Multiemployer Pension Plan is in
reorganization, that increased contributions may be required to avoid a
reduction in plan benefits


 


47

















 


or the imposition of any excise tax if such increased
contributions could reasonably be expected to have a Material Adverse Effect,
that any such plan is or has been funded at a rate less than that required
under Section 412 of the Code, that any such plan is or may be terminated,
or that any such plan is or may become insolvent.


 


9.10                           Investment Company Act.  No Loan Party is an “investment company” or
a company “controlled” by an “investment company” or a “subsidiary” of an
“investment company,” within the meaning of the Investment Company Act of 1940.


 


9.11                           Public Utility Holding Company Act.  No Loan Party is a “holding company”, or a
“subsidiary company” of a “holding company,” or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company,” within the
meaning of the Public Utility Holding Company Act of 1935.


 


9.12                           Regulation U. 
The Company is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying Margin Stock.


 


9.13                           Taxes.  Each Loan
Party has timely filed all tax returns and reports required by law to have been
filed by it and has paid all taxes and governmental charges due and payable
with respect to such return, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books.  The Loan Parties have made
adequate reserves on their books and records in accordance with GAAP for all
taxes that have accrued but which are not yet due and payable.  No Loan Party has participated in any
transaction that relates to a year of the taxpayer (which is still open under
the applicable statute of limitations) which is a “reportable transaction”
within the meaning of Treasury Regulation Section 1.6011-4(b)(2)
(irrespective of the date when the transaction was entered into).


 


9.14                           Solvency, etc. 
On the Closing Date, and immediately prior to and after giving effect to
the issuance of each Letter of Credit, participation in each Existing Letter of
Credit and each borrowing hereunder and the use of the proceeds thereof, with
respect to each Loan Party, individually, (a) the fair value of its assets is
greater than the amount of its liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated on a going concern basis in accordance with GAAP, (b) the present
fair saleable value of its assets is not less than the amount that will be
required to pay the probable liability on its debts as they become absolute and
matured, (c) it is able to realize upon its assets and pay its debts and other
liabilities (including disputed, contingent and unliquidated liabilities) as
they mature in the normal course of business, (d) it does not intend to, and does
not believe that it will, incur debts or liabilities beyond its ability to pay
as such debts and liabilities mature and (e) it is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
its property would constitute unreasonably small capital.


 


48

















 


9.15                           Environmental Matters.  The on-going operations of the Company, its
Subsidiaries and the Joint Ventures comply in all respects with all
Environmental Laws, except such non-compliance which could not (if enforced in
accordance with applicable law) reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect.  Each of the Company, its Subsidiaries and
the Joint Ventures has obtained, and maintained in good standing, all licenses,
permits, authorizations, registrations and other approvals required under any
Environmental Law and required for their respective ordinary course operations,
and for their reasonably anticipated future operations, and each of the
Company, its Subsidiaries and the Joint Ventures is in compliance with all
terms and conditions thereof, except where the failure to do so could not
reasonably be expected to result in material liability to any of the Company,
its Subsidiaries and the Joint Ventures and could not reasonably be expected to
result, either individually or in the aggregate, in a Material Adverse
Effect.  None of the Company, its
Subsidiaries or the Joint Ventures or any of its properties or operations is
subject to, or reasonably anticipates the issuance of, any written order from
or agreement with any Federal, state or local governmental authority, nor
subject to any judicial or docketed administrative or other proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous
Substance.  There are no Hazardous
Substances or other conditions or circumstances existing with respect to any
property, arising from operations prior to the Closing Date, or relating to any
waste disposal, of any of the Company, its Subsidiaries and the Joint Ventures
that would reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect. 
Except as listed on Schedule 9.15, none of the Company, its
Subsidiaries and the Joint Ventures owns or operates any underground storage
tanks that are not properly registered or permitted under applicable
Environmental Laws or that (i) at any time while any of the Company, its
Subsidiaries or the Joint Ventures has owned or operated them, and (ii) at any
time while any Person other than any of the Company, its Subsidiaries and the
Joint Ventures owned or operated them, to the Company’s best knowledge without
independent investigation or inquiry, have released, leaked, disposed of or
otherwise discharged Hazardous Substances.


 


9.16                           Insurance. 
Set forth on Schedule 9.16 is a complete and accurate
summary of the property and casualty insurance program of the Loan Parties as
of the Closing Date (including the names of all insurers, policy numbers,
expiration dates, amounts and types of coverage, annual premiums, deductibles,
self-insured retention, and a description in reasonable detail of any
self-insurance program, retrospective rating plan, fronting arrangement or
other risk assumption arrangement involving any Loan Party).  Each Loan Party and its properties are
insured with financially sound and reputable insurance companies which are not
Affiliates of the Loan Parties, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where such Loan Parties
operate.


 


9.17                           Real Property; Facility Leases and
Facility Management Agreements. 
Except as set forth on Schedule 9.17, the Company does not,
and its Subsidiaries do not, own any real property.  Schedule 9.17 also sets forth a listing of each
Facility Lease and each Facility Management Agreement to which the Company or
any of its Subsidiaries or Joint Ventures is a


 


49

















 


party as lessee or manager and specifies the city and
state where the parking facility subject to such lease or management agreement
is located.


 


9.18                           Information. 
All information heretofore or contemporaneously herewith furnished in
writing by any Loan Party or Guarantor to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement and the
transactions contemplated hereby is, and all written information hereafter furnished
by or on behalf of any Loan Party or Guarantor to the Administrative Agent or
any Lender pursuant hereto or in connection herewith will be, true and accurate
in every material respect on the date as of which such information is dated or
certified, and none of such information is or will be incomplete by omitting to
state any material fact necessary to make such information not misleading in
light of the circumstances under which made (it being recognized by the
Administrative Agent and the Lenders that any projections and forecasts
provided by the Company are based on good faith estimates and assumptions
believed by the Company to be reasonable as of the date of the applicable
projections or assumptions and that actual results during the period or periods
covered by any such projections and forecasts may differ from projected or
forecasted results).


 


9.19                           Intellectual Property.  Each Loan Party and each Guarantor owns and
possesses or has a license or other right to use all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service mark rights and copyrights as are necessary for the conduct of the
businesses of the Loan Parties or Guarantors, as applicable, without any
infringement upon rights of others which could reasonably be expected to have a
Material Adverse Effect.


 


9.20                           Burdensome Obligations.  No Loan Party or Guarantor is a party to any
agreement or contract or subject to any restriction contained in its
organizational documents which could reasonably be expected to have a Material
Adverse Effect.


 


9.21                           Labor Matters. 
Except as set forth on Schedule 9.21, no Loan Party is
subject to any labor or collective bargaining agreement.  There are no existing or threatened strikes,
lockouts or other labor disputes involving any Loan Party that singly or in the
aggregate could reasonably be expected to have a Material Adverse Effect.  Hours worked by and payment made to
employees of the Loan Parties are not in violation in any material respect of
the Fair Labor Standards Act or any other applicable law, rule or regulation
dealing with such matters.


 


9.22                           No Default. 
No Event of Default or Unmatured Event of Default exists or would result
from the incurrence by any Loan Party or Guarantor of any Debt hereunder or
under any other Loan Document.


 


9.23                           Related
Agreements.  (a) 
The Company has heretofore furnished the Administrative Agent a true and
correct copy of the Related Agreements.


 


50

















 


(b)                                 Each Loan Party and each Guarantor and, to
the Company’s knowledge, each other party to the Related Agreements, has duly
taken all necessary corporate, partnership or other organizational action to
authorize the execution, delivery and performance of the Related Agreements and
the consummation of transactions contemplated thereby.


 


(c)                                  The
Related Transactions will comply with all applicable legal requirements, and
all necessary governmental, regulatory, creditor, shareholder, partner and
other material consents, approvals and exemptions required to be obtained by
the Loan Parties and the Guarantors and, to the Company’s knowledge, each other
party to the Related Agreements in connection with the Related Transactions
will be, prior to consummation of the Related Transactions, duly obtained and
will be in full force and effect.


 


(d)                                 The
execution and delivery of the Related Agreements did not, and the consummation
of the Related Transactions will not, violate any statute or regulation of the
United States (including any securities law) or of any state or other
applicable jurisdiction, or any order, judgment or decree of any court or
governmental body binding on any Loan Party or Guarantor or, to the Company’s
knowledge, any other party to the Related Agreements, or result in a breach of,
or constitute a default under, any material agreement, indenture, instrument or
other document, or any judgment, order or decree, to which any Loan Party or
Guarantor is a party or by which any Loan Party or Guarantor is bound or, to
the Company’s knowledge, to which any other party to the Related Agreements is
a party or by which any such party is bound.


 


(e)                                  No
statement or representation made in the Related Agreements by any Loan Party or
Guarantor or, to the Company’s knowledge, any other Person, contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they are made, not misleading.


 


9.24                           Subordinated Debt.  The subordination provisions of the Subordinated Debt are
enforceable against the holders of the Subordinated Debt by the Administrative
Agent and the Lenders.  All Obligations
constitute senior Debt entitled to the benefits of the subordination provisions
contained in the Subordinated Debt.  The
Company acknowledges that the Administrative Agent and each Lender are entering
into this Agreement and are extending the Commitments and making the Loans in
reliance upon the subordination provisions of the Subordinated Debt and this Section 9.24.


 


SECTION 10                             AFFIRMATIVE
COVENANTS.


 


Until the expiration or termination of the
Commitments and thereafter until all Obligations hereunder and under the other
Loan Documents are paid in full and all Letters of Credit and Existing Letters
of Credit have been terminated, the Company agrees that, unless at any time the
Required Lenders shall otherwise expressly consent in writing, it will:


 


51



















10.1                           Reports, Certificates and Other Information.  Furnish to the Administrative Agent and each
Lender:


 


10.1.1                  Annual Report.  Promptly when available and in any event
within 90 days after the close of each Fiscal Year: a copy of the annual
audited financial statements of the Company and its Subsidiaries for such
Fiscal Year, including therein consolidated balance sheets and statements of
earnings and cash flows of the Company and its Subsidiaries as at the end of
such Fiscal Year,  certified without
adverse reference to going concern value and without qualification by Ernst
& Young, or any of the four largest independent certified public accounting
firms in the United States.


 


10.1.2                  Interim
Reports.  (a)  Upon filing with the SEC, and in any event
within 45 days after the end of each Fiscal Quarter, consolidated balance
sheets of the Company and its Subsidiaries as of the end of such Fiscal
Quarter, together with consolidated statements of earnings and cash flows for
such Fiscal Quarter and for the period beginning with the first day of such
Fiscal Year and ending on the last day of such Fiscal Quarter, together with a
comparison of such financial statements with the corresponding period of the
previous Fiscal Year, certified by a Senior Officer of the Company as having
been prepared in accordance with GAAP (subject to the absence of footnotes and
year-end audit adjustments); and (b) promptly when available and in any event
no later than the end of the next month following the month of determination,
internally-prepared monthly statements of operation, balance sheets and cash
flow statements substantially consistent in form and content with the example
attached hereto as Exhibit F (which statements need not be prepared in
accordance with GAAP), certified by a Senior Officer of the Company.


 


10.1.3                  Compliance
Certificates.  Contemporaneously
with the furnishing of a copy of each annual audit report pursuant to
Section 10.1.1 and each set of quarterly statements pursuant to
Section 10.1.2, a duly completed compliance certificate in the form of
Exhibit B, with appropriate insertions, dated the date of such annual report or
such quarterly statements and signed by a Senior Officer of the Company,
containing a computation of each of the financial ratios and restrictions set
forth in Section 11.13 and to the effect that such officer has not become
aware of any Event of Default or Unmatured Event of Default that has occurred
and is continuing or, if there is any such event, describing it and the steps,
if any, being taken to cure it.


 


10.1.4                  Reports to the SEC and to Shareholders.  Promptly upon the filing or sending thereof,
copies of all regular, periodic or special reports of any Loan Party filed with
the SEC; copies of all registration statements of any Loan Party filed with the
SEC (other than on Form S-8); and copies of all proxy statements, financial
statements or other communications made to security holders generally, or filed
with any securities exchange.


 


10.1.5                  Notice of
Default, Litigation and ERISA Matters.  Within 5 Business Days, after becoming aware
of any of the following, written notice describing the same and the steps being
taken by the Company or the Subsidiary affected thereby with respect thereto:


 


52

















 


(a)                                  the
occurrence of an Event of Default or an Unmatured Event of Default;


 


(b)                                 any
litigation, arbitration or governmental investigation or proceeding not
previously disclosed by the Company to the Lenders which has been instituted
or, to the knowledge of the Company, is threatened against any Loan Party or to
which any of the properties of any thereof is subject which could reasonably be
expected to have a Material Adverse Effect;


 


(c)                                  the
institution of any steps by any member of the Controlled Group or any other
Person to terminate any Pension Plan in other than a standard termination, as
defined under Title IV of ERISA, or the failure of any member of the Controlled
Group to make a required contribution to any Pension Plan (if such failure is sufficient
to give rise to a Lien under Section 302(f) of ERISA) or to any
Multiemployer Pension Plan, or the taking of any action with respect to a
Pension Plan which could result in the requirement that the Company furnish a
bond or other security to the PBGC or such Pension Plan, or the occurrence of
any event with respect to any Pension Plan or Multiemployer Pension Plan which
could result in the incurrence by any member of the Controlled Group of any
liability, fine or penalty (including any claim or demand for withdrawal
liability or partial withdrawal from any Multiemployer Pension Plan), or any
material increase in the contingent liability of the Company with respect to
any post-retirement welfare benefit plan or other employee benefit plan of the
Company or another member of the Controlled Group, or any notice that any
Multiemployer Pension Plan is in reorganization, that increased contributions
may be required to avoid a reduction in plan benefits or the imposition of an
excise tax if such increased contributions could reasonably be expected to have
a Material Adverse Effect, that any such plan is or has been funded at a rate
less than that required under Section 412 of the Code, that any such plan
is or may be terminated in other than a standard termination, as defined under
Title IV of ERISA, or that any such plan is or may become insolvent, or the
occurrence of a Reportable Event as described in Section 4043(b) of ERISA
including without limitation those events as to which the thirty (30) day notice
period is waived under Part 2615 of the regulations promulgated by the PBGC
under ERISA;


 


(d)                                 any
cancellation or material change in any insurance maintained by any Loan Party,
or the entering into any material contract or undertaking that is not entered
into in the ordinary course of business; or


 


(e)                                  any
other event (including (i) any violation of any Environmental Law or the
assertion of any Environmental Claim or (ii) the enactment or effectiveness of
any law, rule or regulation) which might reasonably be expected to have a
Material Adverse Effect.


 


10.1.6                  Intentionally
Omitted.


 


10.1.7                  Management
Reports.  Promptly and in any
event within 10 Business Days of receipt thereof, copies of all detailed
financial and management reports submitted to the


 


53

















 


Company by independent auditors in connection with
each annual or interim audit made by such auditors of the books of the Company
or any of its Subsidiaries.


 


10.1.8                  Projections.  Not later than January 31 of each
Fiscal Year, financial projections for the Company and its Subsidiaries for
such Fiscal Year and for the two consecutive Fiscal Years thereafter (including
quarterly operating and cash flow budgets) prepared in a manner consistent with
the projections delivered by the Company to the Lenders prior to the Closing
Date or otherwise in a manner reasonably satisfactory to the Administrative
Agent, accompanied by a certificate of a Senior Officer of the Company on
behalf of the Company to the effect that (a) such projections were prepared by
the Company in good faith, (b) the Company has a reasonable basis for the
assumptions contained in such projections and (c) such projections have been
prepared in accordance with such assumptions. 
All parties hereto acknowledge that the Company cannot and does not make
any warranty or assurance that any such projections will be attained.


 


10.1.9                  Subordinated
Debt Notices.  Promptly
following receipt, copies of any notices (including notices of default or
acceleration) received from any holder or trustee of, under or with respect to
any Subordinated Debt.


 


10.1.10            Schedules.  On an annual basis, and concurrently with
the delivery of any reports or statements referenced in Section 10.1.1
above, the Company shall deliver to the Administrative Agent any necessary
revisions to schedules to this Agreement, revised to reflect all information
described in such schedules that is material and new or changed from the prior
year, and each schedule hereto shall, for purposes of Section 12.2.1(a)
speak only as of the date last revised, there being no implied obligation to
update the schedules as of the time of each disbursement in order to make the
representations and warranties contained in Section 9 true and
correct as of the time of such disbursement, except for Schedules 9.6,  9.8
and 9.17, which shall be revised and delivered to the Administrative
Agent within 10 Business Days of any material change in the information
contained in any such schedule, further subject to any requirement, contained
in this Agreement or in the Collateral Documents, to give prior notice to the
Administrative Agent or the Lenders with respect to the information contained
in any such schedule; provided, however, that notwithstanding that any such
supplement to a schedule may disclose the existence or occurrence of
events, facts or circumstances which are either prohibited by the terms of this
Agreement or any other Loan Documents or which result in the breach of any
representation or warranty, such supplement to such schedule or
representation shall not be deemed either an amendment thereof or a waiver of
such breach unless expressly consented to in writing by the Administrative
Agent and the Required Lenders, and no such amendments, except as the same may
be consented to in a writing which expressly includes a waiver, shall be or be
deemed a waiver by the Administrative Agent or any Lender of any Event of
Default disclosed therein, and provided, further, any items disclosed in any
such supplemental disclosures shall be included in the calculation of any
limits, baskets or similar restrictions contained in this Agreement or any of
the other Loan Documents.


 


54

















 


10.1.11            Other
Information.  Promptly from time
to time, such other information concerning the Loan Parties and the Guarantors
as any Lender or the Administrative Agent may reasonably request.


 


10.2                           Books, Records and Inspections.  Keep, and cause each other Loan Party and
Guarantor to keep, its books and records in accordance with sound business
practices sufficient to allow the preparation of financial statements in
accordance with GAAP; permit, and cause each other Loan Party and Guarantor to
permit, any Lender (at such Lender’s own expense) or the Administrative Agent
or any representative thereof to inspect the properties and operations of the
Loan Parties and the Guarantors; and permit, and cause each other Loan Party to
permit, at any reasonable time and with reasonable notice (or at any time
without notice if an Event of Default exists), any Lender (at such Lender’s own
expense) or the Administrative Agent or any representative thereof to visit any
or all of its offices, to discuss its financial matters with its officers and
its independent auditors (and the Company hereby authorizes such independent
auditors to discuss such financial matters with any Lender or the
Administrative Agent or any representative thereof), and to examine (and, at
the expense of the Loan Parties and Guarantors, photocopy extracts from) any of
its books or other records; and permit, and cause each other Loan Party and
Guarantor to permit, the Administrative Agent and its representatives to
inspect the Inventory and other tangible assets of the Loan Parties and
Guarantors, to perform appraisals of the equipment of the Loan Parties and
Guarantors, and to inspect, audit, check and make copies of and extracts from
the books, records, computer data, computer programs, journals, orders,
receipts, correspondence and other data relating to Inventory, Accounts and any
other collateral.  All such inspections
or audits by the Administrative Agent shall be at the Company’s expense, provided
that so long as no Event of Default or Unmatured Event of Default exists, the
Company shall not be required to reimburse the Administrative Agent for
inspections or audits more frequently than twice each Fiscal Year.


 


10.3                           Maintenance of Property; Insurance.  (a) 
Keep, and cause each other Loan Party and Guarantor to keep, all
property useful and necessary in the business of the Loan Parties and the
Guarantors in good working order and condition, ordinary wear and tear
excepted, and from time to time make, or cause to be made, all needful repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times in accordance with customary and prudent business practices for
similar businesses.


 


(b)                                 Maintain,
and cause each other Loan Party and Guarantor to maintain, with responsible
insurance companies, such insurance coverage as may be required by any law or
governmental regulation or court decree or order applicable to it (including,
without limitation, liability insurance for the directors and officers of such
Loan Party or Guarantor) and such other insurance, to such extent and against
such hazards and liabilities as is customarily maintained by companies
similarly situated, but which shall insure against all risks and liabilities of
the type identified on Schedule 9.16 and shall have insured amounts
no less than, and deductibles no higher than, those set forth on such
schedule (as such schedule may change upon the reasonable


 


55

















 


consent of the Administrative Agent); and, upon
request of the Administrative Agent or any Lender, furnish to the
Administrative Agent or such Lender a certificate setting forth in reasonable
detail the nature and extent of all insurance maintained by the Loan Parties
and the Guarantors.  The Company shall
cause each issuer of an insurance policy to provide the Administrative Agent
with an endorsement (i) showing the Administrative Agent as lender loss payee
or mortgagee, as applicable, with respect to each policy of property or casualty
insurance or business interruption insurance and naming the Administrative
Agent and each Lender as an additional insured with respect to each policy of
liability insurance, (ii) providing that 30 days’ notice will be given to the
Administrative Agent prior to any cancellation of, material reduction or change
in coverage provided by or other material modification to such policy and (iii)
reasonably acceptable in all other respects to the Administrative Agent.


 


(c)                                  UNLESS
THE COMPANY PROVIDES THE ADMINISTRATIVE AGENT WITH EVIDENCE OF THE INSURANCE
COVERAGE REQUIRED BY THIS AGREEMENT, THE ADMINISTRATIVE AGENT MAY, FOLLOWING
PRIOR NOTICE TO THE COMPANY, PURCHASE INSURANCE AT THE COMPANY’S EXPENSE TO
PROTECT THE ADMINISTRATIVE AGENT’S AND THE LENDERS’ INTERESTS IN THE
COLLATERAL.  THIS INSURANCE MAY, BUT
NEED NOT, PROTECT ANY LOAN PARTY’S OR GUARANTOR’S INTERESTS.  THE COVERAGE THAT THE ADMINISTRATIVE AGENT
PURCHASES MAY NOT PAY ANY CLAIM THAT IS MADE AGAINST ANY LOAN PARTY OR
GUARANTOR IN CONNECTION WITH THE COLLATERAL. 
THE COMPANY MAY LATER CANCEL ANY INSURANCE PURCHASED BY THE
ADMINISTRATIVE AGENT, BUT ONLY AFTER PROVIDING THE ADMINISTRATIVE AGENT WITH
EVIDENCE THAT THE COMPANY HAS OBTAINED INSURANCE AS REQUIRED BY THIS
AGREEMENT.  IF THE ADMINISTRATIVE AGENT
PURCHASES INSURANCE FOR THE COLLATERAL, THE COMPANY WILL BE RESPONSIBLE FOR THE
COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT MAY BE
IMPOSED WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE
CANCELLATION OR EXPIRATION OF THE INSURANCE. 
THE COSTS OF THE INSURANCE MAY BE ADDED TO THE PRINCIPAL AMOUNT OF THE
LOANS OWING HEREUNDER.  THE COSTS OF THE
INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE THE LOAN PARTIES AND
GUARANTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.


 


10.4                           Compliance with Laws; Payment of
Taxes and Liabilities.  (a)  Comply, and cause each other Loan Party and
Guarantor to comply, in all material respects with all applicable laws, rules,
regulations, decrees, orders, judgments, licenses and permits, except where
failure to comply could not reasonably be expected to have a Material Adverse
Effect; (b) without limiting clause (a) above, ensure, and cause each
other Loan Party and Guarantor to ensure, that no person who owns a controlling
interest in or otherwise controls a Loan Party or Guarantor is or shall be (i)
listed on the Specially Designated Nationals and Blocked Person List maintained
by the Office of Foreign Assets Control (“OFAC”), Department of the
Treasury, and/or any other


 


56

















 


similar lists maintained by OFAC pursuant to any
authorizing statute, Executive Order or regulation or (ii) a person designated
under Section 1(b), (c) or (d) of Executive Order No. 13224
(September 23, 2001), any related enabling legislation or any other
similar Executive Orders, (c) without limiting clause (a) above, comply,
and cause each other Loan Party and Guarantor to comply, with all applicable
Bank Secrecy Act (“BSA”) and anti-money laundering laws and regulations
and (d) pay, and cause each other Loan Party and Guarantor to pay, prior to
delinquency, all taxes and other governmental charges against it or any
collateral, as well as claims of any kind which, if unpaid, could become a Lien
(other than Permitted Liens) on any of its property; provided that the
foregoing shall not require any Loan Party to pay any such tax or charge so
long as it shall contest the validity thereof in good faith by appropriate
proceedings and shall set aside on its books adequate reserves with respect
thereto in accordance with GAAP and, in the case of a claim which could become
a Lien (other than a Permitted Lien) on any collateral, such contest
proceedings shall stay the foreclosure of such Lien (other than a Permitted
Lien) or the sale of any portion of the collateral to satisfy such claim.


 


10.5                           Maintenance of Existence, etc.  (a) Maintain and preserve, and (subject to Section 11.5)
cause each other Loan Party and Guarantor to maintain and preserve, (i) its
existence and good standing in the jurisdiction of its organization, (ii) its
qualification to do business and good standing in each jurisdiction where the
nature of its business makes such qualification necessary (other than such
jurisdictions in which the failure to be qualified or in good standing could
not reasonably be expected to have a Material Adverse Effect, and other than in
connection with any merger permitted pursuant to Sections 11.4 or 11.6
other than any dissolution or liquidations of any Subsidiary if the assets of
such Subsidiary are transferred to the Company or any Guarantor in connection
with such dissolution or liquidation) and (iii) the rights, licenses, permits
(including those required under applicable Environmental Laws), franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
businesses; provided, however, that the Loan Parties and the Guarantors shall
not be required to preserve any such right, license or franchise, or its
corporate, partnership or other existence, if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries and Guarantors,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Administrative Agent or the Lenders; and (b) defend all of the
foregoing against all claims, actions, demands, suits or proceedings at law or
in equity or by or before any governmental instrumentality or other agency or
regulatory authority.


 


10.6                           Use of Proceeds. 
Use the proceeds of the Loans, and the Letters of Credit and Existing
Letters of Credit, solely to finance the Related Transactions, for working
capital purposes, for Permitted Acquisitions, for Capital Expenditures and for
other general business purposes; and not use or permit any proceeds of any Loan
to be used, either directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of “purchasing or carrying” any Margin Stock.


 


57

















 


10.7                           Employee Benefit Plans.


 


(a)                                  Maintain,
and use good faith efforts to cause each other member of the Controlled Group
to maintain, each Pension Plan in substantial compliance with all applicable
requirements of law and regulations.


 


(b)                                 Make,
and use good faith efforts to cause each other member of the Controlled Group
to make, on a timely basis, all required contributions to any Multiemployer
Pension Plan.


 


(c)                                  Not,
and use good faith efforts to not permit any other member of the Controlled
Group to (i) seek a waiver of the minimum funding standards of ERISA, (ii)
terminate or withdraw from any Pension Plan or Multiemployer Pension Plan,
(iii) take any other action with respect to any Pension Plan that would
reasonably be expected to entitle the PBGC to terminate, impose liability in
respect of, or cause a trustee to be appointed to administer, any Pension Plan,
or (iv) permit to occur a Reportable Event as described in Section 4043(b)
of ERISA including without limitation those events as to which the thirty (30)
day notice period is waived under Part 2615 of the regulations promulgated by
the PBGC under ERISA, unless the actions or events described in clauses (i),
(ii), (iii) and (iv) individually or in the aggregate would not have a Material
Adverse Effect.


 


10.8                           Environmental Matters.  If any release or threatened release or
other disposal of Hazardous Substances shall occur or shall have occurred on
any real property or any other assets of any Loan Party or Guarantor, the Company
shall, or shall cause the applicable Loan Party or Guarantor to, cause the
prompt containment and removal of such Hazardous Substances and the remediation
of such real property or other assets as necessary to comply with all
Environmental Laws and to preserve the value of such real property or other
assets.  Without limiting the generality
of the foregoing, the Company shall, and shall cause each other Loan Party and
Guarantor to, comply with any Federal or state judicial or administrative order
requiring the performance at any real property of any Loan Party or Guarantor
of activities in response to the release or threatened release of a Hazardous
Substance.  To the extent that the
transportation of Hazardous Substances is permitted by this Agreement, the
Company shall, and shall cause its Subsidiaries to, dispose of such Hazardous
Substances, or of any other wastes, only at licensed disposal facilities
operating in compliance with Environmental Laws.


 


10.9                           Further Assurances.  (a)  Within 30 days from the
request therefore by the Administrative Agent, take, and cause each other Loan
Party and Guarantor to take, such actions as are necessary or as the
Administrative Agent or the Required Lenders may reasonably request from time
to time to give effect to the intent of, and to aid in the exercise and
enforcement of the rights and remedies of the Administrative Agent and the
Lenders under the Loan Documents, and to ensure that the Obligations of each
Loan Party and Guarantor under the Loan Documents are secured by substantially
all of the assets of the Company, each Domestic Subsidiary and each Joint
Venture which meets the definition of a Guarantor (as well as all Capital
Securities of each Domestic Subsidiary and each such Joint Venture and 65% of
all Capital Securities of each direct Foreign Subsidiary) and guaranteed by
each Domestic Subsidiary and each Joint Venture which meets the definition of a
Guarantor (including, within 30 days after the acquisition or


 


58

















 


creation thereof, any Domestic Subsidiary or Joint
Venture acquired or created after the Closing Date), in each case as the
Administrative Agent may determine, including without limitation (i) the
execution and delivery of guaranties, security agreements, pledge agreements,
Mortgages, financing statements and other documents, and the filing or
recording of any of the foregoing and (ii) the delivery of certificated
securities and other collateral with respect to which perfection is obtained by
possession.  Notwithstanding the
foregoing, the Company shall not be required to pledge the Capital Stock of any
future Domestic Subsidiary so long as those entities do not have any assets or
operations valued in excess of $100,000.


 


(b)                                 The
Company shall notify the Lenders and the Administrative Agent, within ten (10)
days after the occurrence thereof, of the acquisition of any material property
by the Company or any Guarantor that is not subject to the existing Collateral
Documents, any Person becoming a Subsidiary or the creation of any Joint
Venture and any other event or condition, other than the passage of time, that
may require additional action of any nature in order to create or preserve the
effectiveness and perfected status of the liens and security interests of the
Lenders and the Administrative Agent with respect to such property pursuant to
the Collateral Documents, including without limitation delivering the originals
of all promissory notes and other instruments payable to the Company or any
Guarantor to the Administrative Agent and delivering the originals of all stock
certificates or other certificates evidencing the Capital Securities owned by
the Company or any Guarantor at any time, which are required by the foregoing Section 10.9(a)
to be pledged to the Administrative Agent for the benefit of the Lenders.


 


10.10                     Deposit
Accounts; Lockbox Account. 
(a) The Company shall maintain all of its and its Subsidiaries’ deposit
and disbursement accounts with the Administrative Agent or any Lender, and
shall open all new deposit and disbursement accounts with the Administrative
Agent or any Lender, and shall otherwise maintain the Administrative Agent or a
Lender as its primary depository bank and provider of cash management services,
provided that the Company and its Subsidiaries may maintain (i) an account with
U.S. Bank (formerly known as, Firstar Bank, NA) for collection of credit card
receipts (the “U.S. Bank Account”), provided, that such account is swept
daily to a concentration account in the name of the Company maintained with the
Administrative Agent or a Lender, (ii) local depository and disbursement
accounts with other financial institutions in Canada, as necessary to the
conduct of the Company’s or its Subsidiaries’ businesses there, and (iii) local
depository and disbursement accounts in the United States of America as
necessary to pay payroll expenses or otherwise necessary to the conduct of
business, in the locations where the Company or its Subsidiaries are doing
business, which accounts shall be with a Lender where practicable, but may be
with non-Lender financial institutions. 
All such accounts shall be swept (net of amounts necessary to pay
payroll expenses) daily, where daily electronic wire transfers are available
and cost effective, to a concentration account maintained with the
Administrative Agent or any Lender, or swept (net of amounts necessary to pay
payroll expenses) to such concentration account no less often than three times
a week where daily wire transfers are not available or are not cost
effective.  The Administrative Agent and
the Lenders shall use commercially reasonable efforts to cooperate with the
Company


 


59

















 


in complying with this Section 10.10.  At all times on and after the Closing Date,
the Company and its Subsidiaries shall sweep funds from all its and their
respective accounts, wheresoever located, to the concentration account
maintained by the Administrative Agent or any Lender, and all amounts received
in such concentration account shall be (A) further swept into the Company’s
disbursement accounts maintained by LaSalle or any other Lender, provided no
Event of Default has occurred or is continuing, or (B) applied to the
Obligations on such terms required by the Administrative Agent at any time
after the occurrence and during the continuance of an Event of Default.  The Company and its Subsidiaries shall
obtain blocked account or other tri-party agreements satisfactory to the Administrative
Agent for all accounts (other than accounts maintained by the Administrative
Agent) used by the Company and its Subsidiaries, except that (x) the Company
shall obtain a blocked account or tri-party agreement for the account with U.S.
Bank for the U.S. Bank Account within 120 days of the Closing Date, or, if such
agreement is not obtained or obtainable in such period, the Company shall close
the U.S. Bank Account and open an account with a Lender for collection of
credit card receipts of the Company within 12 months from the Closing Date, (y)
no such blocked account or tri-party agreements shall be required for accounts
located in Canada, and (z) no such blocked account or tri-party agreements
shall be required for accounts of the type described in the foregoing subsection 10.10(a)(iii)
(other than those which are maintained with Bank of America, for which the
Company and its Subsidiaries shall use their best efforts to obtain such
blocked account or other tri-party agreements) where obtaining such an
agreement is not practicable.


 


(b)                                 At
all times on and after the occurrence, and during the continuation, of an Event
of Default, the Company and the Guarantors shall direct all clients and other
Account Debtors to make all payments in connection with any obligations to the
Company or any Guarantor (other than obligations with respect to credit card
payments, which shall be collected in accordance with Section 10.10(a)
hereof) directly to a lockbox in the name, and under the control, of the
Administrative Agent, and all amounts received in such lockbox shall be applied
to the Obligations on such terms required by the Administrative Agent, and the
Company and the Guarantors shall promptly execute such documents and agreements
required by the Administrative Agent in connection therewith, each in form and
substance satisfactory to the Administrative Agent.


 


10.11                     Syndication.  Enter into such modifications to the Loan
Documents as agreed pursuant to the terms of that certain commitment letter and
term sheet dated May 4, 2004, entered into by the Company, LaSalle and Wells.


 


SECTION 11                             NEGATIVE
COVENANTS.


 


Until the expiration or termination of the
Commitments and thereafter until all Obligations (other than contingent and
unmatured indemnification obligations) hereunder and under the other Loan Documents
are paid in full and all Letters of Credit and Existing Letters of Credit have
been terminated, the Company agrees that, unless at any time the Required
Lenders shall otherwise expressly consent in writing, it will:


 


60

















 


11.1                           Debt.  Not, and not
permit any other Loan Party to, create, incur, assume or suffer to exist any
Debt, except:


 


(a)                                  Obligations
under this Agreement and the other Loan Documents;


 


(b)                                 Debt
of any Guarantor owing to the Company or to any other Guarantor; provided
that to the extent such Debt shall be evidenced by any note or instrument, such
instrument shall be a demand note in form and substance reasonably satisfactory
to the Administrative Agent and pledged and delivered to the Administrative
Agent pursuant to the Collateral Documents as additional collateral security
for the Obligations, and the obligations under such demand note shall be
subordinated to the Obligations of the Company hereunder in a manner reasonably
satisfactory to the Administrative Agent;


 


(c)                                  Subordinated
Debt, provided that (A) immediately before and after (on a pro forma basis
acceptable to the Administrative Agent and supported by such certificates
required by the Administrative Agent) the incurrence of any such Subordinated
Debt, no Unmatured Event of Default or Event of Default shall exist and the
Company shall be in pro forma compliance with all financial and other covenants
contained herein as of the date of incurrence of such Subordinated Debt and for
the following year and (B) all agreements, documents and instruments relating
to such Subordinated Debt shall have been delivered to and approved by the
Administrative Agent and the Required Lenders prior to the incurrence of such
Subordinated Debt;


 


(d)                                 Hedging
Obligations;


 


(e)                                  Debt
described on Schedule 11.1 and any extension, renewal or
refinancing thereof so long as the principal amount thereof is not increased
(and as such amount is reduced from time to time) and no modifications of the
terms thereof which are less favorable to the Company or more restrictive on
the Company in any material manner shall be permitted;


 


(f)                                    the
Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the
proceeds of the initial Loans hereunder);


 


(g)                                 Contingent
Liabilities arising with respect to customary indemnification obligations in
favor of sellers in connection with Permitted Acquisitions and purchasers in
connection with dispositions permitted under Section 11.4;


 


(h)                                 Earnouts
with respect to Permitted  Acquisitions
made by the Company;


 


(i)                                     Trade
accounts payable and accrued expenses arising in the ordinary course which are
current or past due only in an amount which is not material in the aggregate
for the Company and its Subsidiaries on a consolidated basis, or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves are maintained on the books of the Company;


 


61

















 


(j)                                     Debt
which is non-recourse to the Company or its Subsidiaries, provided that the
aggregate amount of such non-recourse Indebtedness does not exceed $10,000,000
and such non-recourse terms and the other terms of such financing are
acceptable to the Administrative Agent;


 


(k)                                  Debt
incurred to finance insurance premiums in the ordinary course of business
consistent with past practices of the Company;


 


(l)                                     Debt
of Subsidiaries and Joint Ventures which are not Guarantors owing to the
Company or a Guarantor not exceeding an aggregate amount equal to the book
value of three percent (3%) of Total Assets; provided, that any such Debt shall
reduce, dollar for dollar, the available transactions permitted by Section 11.6(g);


 


(m)                               Debt
represented by the subtraction of Adjusted Off-Balance Sheet Liabilities from Off-Balance
Sheet Liabilities;


 


(n)                                 Debt
(other than Debt to the Principals) other than as described in clauses (a)
through (m) above and (p) below not exceeding an aggregate amount equal to the
book value of three percent (3%) of Total Assets, provided that not more than
50% of the Debt incurred or otherwise outstanding pursuant to this clause (n)
may be secured by Permitted Liens;


 


(o)                                 Debt
which may otherwise be permitted pursuant to Section 11.6; and


 


(p)                                 Debt
arising from Ordinary Course Capital Leases.


 


11.2                           Liens.  Not, and
not permit any other Loan Party to, create or permit to exist any Lien on any
of its real or personal properties, assets or rights of whatsoever nature
(whether now owned or hereafter acquired), except:


 


(a)                                  Liens
arising under the Loan Documents;


 


(b)                                 Liens
imposed by law (other than liens imposed by ERISA or Section 412 of the
Code), carriers’, warehousemen’s or mechanic’s Liens, operators’ or drillers’
Liens and Liens to secure claims for labor, material or supplies arising in the
ordinary course of business, but only to the extent that payment thereof shall
not at the time be due or shall be contested in good faith by appropriate
proceedings diligently conducted, with respect to which appropriate reserves
have been set aside and as to which there has been no seizure of or foreclosure
upon assets subject to such Liens;


 


(c)                                  deposits
or pledges to secure payment of worker’s compensation, unemployment insurance,
old age pensions or other social security, or to secure the performance of
bids, tenders, contracts (other than those relating to borrowed money) or
leases or to secure statutory obligations or surety or appeal bonds, or to
secure indemnity, performance or other similar bonds in the ordinary course of
business, or in connection with contests, to the extent that payment thereof
shall not at the time be due or shall be contested in good faith by appropriate
proceedings


 


62

















 


diligently conducted and there have been set aside on
its books appropriate reserves with respect thereto;


 


(d)                                 Liens
securing taxes, assessments, levies or other governmental charges which are not
overdue or which, in an amount not exceeding $1,000,000 in the aggregate, are
being contested in good faith by appropriate proceedings diligently conducted,
with respect to which reasonable reserves have been set aside and as to which
there has been no seizure of or foreclosure upon assets subject to the Liens;


 


(e)                                  Liens
consisting of encumbrances, easements or reservations of, or rights of others
for, rights-of-way, sewers, electric lines, telecommunications lines and other
similar purposes, zoning restrictions, restrictions on the use of real property
and minor defects and irregularities in the title thereto, and other similar
encumbrances, none of which in the reasonable opinion of the Administrative
Agent interferes with the use of the property subject thereto by the Company or
such Subsidiary in the ordinary conduct of its business;


 


(f)                                    Liens
described on Schedule 11.2 as of the Closing Date, and any
extensions or renewals of the foregoing, provided that neither the Debt secured
by any such existing Liens nor the property subject thereto shall increase;


 


(g)                                 Liens
on the daily revenues in favor of Persons other than the Company or its
Affiliates who are parties to the Facility Leases and Facility Management
Agreements for the amounts due to them pursuant thereto;


 


(h)                                 purported
Liens in the ordinary course of business on fixtures to the extent applicable
law permits a mortgagee to claim an interest therein, provided that such
purported Liens do not secure any Debt of the Company or any of its Affiliates;


 


(i)                                     any
Lien created to secure payment of a portion of the purchase price of, or
existing at the time of acquisition of, any tangible fixed asset (including
Liens granted in connection with Ordinary Course Capital Leases) acquired by
the Company or any of its Subsidiaries, may be created or suffer to exist upon
such tangible fixed asset if the outstanding principal amount of the Debt
secured by such Lien does not exceed the purchase price paid by the Company or
such Subsidiary for such tangible fixed asset provided that (i) such Lien does
not encumber any other asset at any time owned by the Company or such
Subsidiary, (ii) not more than one such Lien shall encumber such tangible fixed
asset at any one time, and (iii) the aggregate amount of Debt secured by all
such Liens shall not exceed the amounts permitted by Sections 11.1(e) and
(n);


 


(j)                                     Liens
on unearned insurance premiums to secure Debt referred to in Section 11.1(k);


 


(k)                                  Liens
arising by applicable law in respect of employees’ wages, salaries or
commissions not overdue; and


 


63

















 


(l)                                     Liens
arising out of judgments or awards not exceeding $1,000,000 in the aggregate
against the Company or its Subsidiaries with respect to which the Company or
such Subsidiary shall be in good faith prosecuting an appeal or a proceeding or
review and the enforcement of such Lien is stayed pending such appeal or
review.


 


11.3                           Restricted Payments.  Make, pay, declare or authorize any
dividend, payment or other distribution in respect of any class of its Capital
Securities or any dividend, payment or distribution in connection with the redemption,
purchase, retirement or other acquisition, directly or indirectly, of any
shares of its Capital Securities, other than such dividends, payments or other
distributions made (i) to the extent payable solely in shares of Capital
Securities (other than Disqualified Stock) of the Company, and (ii) as
permitted pursuant to Section 11.6.  The Company will not issue Disqualified Stock.


 


11.4                           Mergers, Consolidations, Sales.  (a) Make any Acquisition; nor merge or
consolidate or amalgamate with any other Person or take any other action having
a similar effect, nor enter into any joint venture or similar arrangement with
any other Person, except (i) any Acquisition by the Company or any Guarantor
where (collectively, “Permitted Acquisitions”):


 


(A)                              the
business or division acquired are for use, or the Person acquired is engaged,
in businesses similar to those engaged in by the Loan Parties on the Closing
Date;


 


(B)                                immediately
before and after giving effect to such Acquisition, no Event of Default or
Unmatured Event of Default shall exist;


 


(C)                                the
aggregate consideration to be paid by the Loan Parties (including any Debt
assumed or issued in connection therewith, the amount thereof to be calculated
in accordance with GAAP) in connection with such Acquisition (or any series of
related Acquisitions) shall not exceed $5,000,000, and all such Acquisitions in
any Fiscal Year shall not exceed $15,000,000;


 


(D)                               immediately
after giving effect to such Acquisition, the Company is in pro forma compliance
with all the financial ratios and restrictions set forth in Section 11.13;


 


(E)                                 in
the case of the Acquisition of any Person, the Board of Directors of such
Person has approved such Acquisition;


 


(F)                                 after
giving effect to any Acquisition and after giving effect to the working capital
needs of the acquired business, the Revolving Loan Availability shall equal or
exceed $7,000,000;


 


(G)                                reasonably
prior to such Acquisition, the Administrative Agent shall have received
complete executed or conformed copies of each material document, instrument and
agreement to be executed in connection with such Acquisition together with all
lien search reports and lien release letters and other documents as the
Administrative Agent may require to


 


64

















 


evidence the termination of Liens on the assets or
business to be acquired, provided that the Lien termination may occur
simultaneously with the closing of such Acquisition;


 


(H)                               not
less than ten Business Days prior to such Acquisition, the Administrative Agent
shall have received an acquisition summary with respect to the Person and/or
business or division to be acquired, such summary to include a reasonably
detailed description thereof (including financial information) and operating
results (including financial statements for the most recent 12 month period for
which they are available and as otherwise available), the material terms and
conditions, including economic terms, of the proposed Acquisition, and the
Company’s calculation of pro forma EBITDA relating thereto;


 


(I)                                    the
Administrative Agent and Required Lenders shall have approved the Company’s
computation of pro forma EBITDA;


 


(J)                                   consents
have been obtained in favor of the Administrative Agent and the Lenders to the
collateral assignment of rights and indemnities under the related acquisition
documents and opinions of counsel for the Loan Parties and (if delivered to the
Loan Party) the selling party in favor of the Administrative Agent and the
Lenders have been delivered; and


 


(K)                               the
provisions of Section 10.10 have been satisfied;


 


and (ii) as may be otherwise permitted pursuant to Sections
11.6, 11.10(b) and 11.10(l).


 


(b)                                 Sell,
lease, license, transfer, assign or otherwise dispose of all or any portion of
its business, assets, rights, revenues or property, real, personal or mixed,
tangible or intangible, whether in one or a series of transactions, other than
inventory sold in the ordinary course of business upon customary credit terms
and sales of material or equipment no longer useful in the business, and shall
not permit or suffer any Subsidiary to do any of the foregoing (an “Asset
Disposition”); provided, however, that this Section 11.4(b)
shall not prohibit any sale, lease, license, transfer, assignment or other
disposition otherwise permitted pursuant to Section 11.6 or if (i)
the aggregate book value (disregarding any write-downs of such book value other
than ordinary depreciation and amortization) of all of the business, assets,
rights, revenues and property disposed of after the Closing Date of this
Agreement (other than in reliance on clauses (ii) and (iii) below) shall be
less than 1% of the Total Assets at such time and if, immediately before and
after such transaction, no Unmatured Event if Default or Event of Default shall
exist, (ii) sales of equipment as to which proceeds are used within 180 days to
purchase equipment of at least equivalent value to those sold and if,
immediately before and after such transaction, no Unmatured Event of Default or
Event of Default shall exist, (iii) sales as to which proceeds are used to make
optional repayments on the Revolving Loan, provided that such prepayments on
the Revolving Loans shall also permanently reduce the Revolving Commitment by
the amount of such payments, (iv) investments which consist of transfers of
assets instead of cash and which are permitted by Section 11.10  or (v) transfers of assets  pursuant to a loan or advance permitted
pursuant to Section 11.10;  provided,
however, in the case of any of the foregoing permitted sales,


 


65

















 


leases, licenses, transfers, assignments or other
dispositions described in clauses (i), (ii) and (iii) the Company shall not,
and shall not permit any of its Subsidiaries to, consummate an Asset Disposition
unless (A) the Company (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Disposition at least equal to the fair
market value (as determined by the Board of Directors of such Person and
evidenced by a resolution of the Board of Directors of such Person set forth in
an officer’s certificate delivered to the Administrative Agent) of the assets
and (B) at least 75% of the consideration therefore received by the Company or
such Subsidiary is in the form of cash; provided that the amount of (x) any
liabilities (as shown on the Company’s or such Subsidiary’s most recent balance
sheet), of the Company or any Subsidiary that are assumed by the transferee of
any such assets such that the Company or such Subsidiary have no further
liability and (y) any securities, notes or other obligations received by the
Company or any such Subsidiary from such transferee that are converted by the
Company or such Subsidiary into cash (to the extent of the cash received),
shall be deemed to be cash for purposes of this provision and the definition of
Net Cash Proceeds, and (C) the Administrative Agent promptly shall obtain a
first priority security interest in any non-cash consideration for any Asset
Disposition.


 


11.5                           Modification of Organizational
Documents.  Not permit the
charter, by-laws or other organizational documents of any Loan Party to be
amended or modified in any way which could reasonably be expected to materially
adversely affect the interests of the Lenders.


 


11.6                           Transactions with Affiliates.  Take any actions, nor enter into any  transactions, of the types described in
Sections 11.1, 11.2, 11.3, 11.4, 11.10, 11.14 or 11.15, directly or indirectly,
with, or for the benefit of, the Principals and any other Affiliates of the Company
(each of the foregoing, an “Affiliate Transaction”) except as may otherwise be
specifically permitted by those sections, and except as follows:


 


(a)                                  transactions
between or among the Company and/or the Guarantors shall be permitted;


 


(b)                                 the
Company shall consummate the Related Transactions;


 


(c)                                  any
Subsidiary may merge with or into another Subsidiary or into the Company,
provided that (i) there is no Unmatured Event of Default or Event of Default
either existing before, or which would arise from, such merger, (ii) if any
such merger involves a Guarantor, the Guarantor shall be the surviving Person,
(iii) if any such merger involves the Company, the Company shall be the
surviving Person and (iv) if any such merger involves the Company or any
Guarantor, the net worth of the Company or such Guarantor involved in such
merger immediately after the merger would be equal to or greater than its net
worth immediately preceding such merger;


 


(d)                                 upon
notice to and consent of the Administrative Agent, any Subsidiary may merge
with or into a newly-created Subsidiary which is incorporated, formed or
otherwise


 


66

















 


organized pursuant to the laws of the State of
Delaware, solely for the purpose of re-organizing the previously existing
Subsidiary under the laws of the State of Delaware, provided that (i) there is
no Unmatured Event of Default or Event of Default either existing before, or
which would arise from, such merger, (ii) if any such merger involves a
Guarantor, the surviving Subsidiary shall become a Guarantor, and the net worth
of such surviving Subsidiary immediately after the merger shall be equal to or
greater than the Guarantor’s net worth immediately preceding such merger, and
(iii) all other terms and conditions of such merger shall be acceptable to the
Administrative Agent in its reasonable discretion;


 


(e)                                  transfers
of assets, including without limitation Capital Securities, between Guarantors
or between the Company and Guarantors shall be permitted, provided that the
Administrative Agent maintains its first priority perfected Lien on any and all
collateral security;


 


(f)                                    Affiliate
Transactions, Facility Management Agreements and Facility Leases entered into
in the ordinary course of business shall be permitted that are on terms that
are no less favorable to the Company or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person; and


 


(g)                                 the
Company or any Guarantor may purchase or otherwise acquire any Capital
Securities of or other ownership interest in, or debt securities of or other
evidences of Debt of, any Subsidiary or Joint Venture that is not a Guarantor;
or make any loan or advance of any of its funds or property or make any other
extension of credit to, or make any other investment or contribution or acquire
any interest whatsoever in, any Subsidiary or Joint Venture that is not a
Guarantor, not exceeding an aggregate amount equal to the book value of 3% of
Total Assets; provided, that any of the foregoing transactions shall reduce,
dollar for dollar, the available Debt permitted by Section 11.1(l).


 


11.7                           Unconditional Purchase Obligations.  Not, and not permit any other Loan Party to,
enter into or be a party to any contract for the purchase of materials,
supplies or other property or services if such contract requires that payment
be made by it regardless of whether delivery is ever made of such materials,
supplies or other property or services.


 


11.8                           Inconsistent Agreements.  Not, and not permit any other Loan Party to,
enter into any agreement, including without limitation any amendments to
existing agreements, containing any provision which would (a) be violated or
breached by any borrowing by the Company hereunder or by the performance by any
Loan Party of any of its Obligations hereunder or under any other Loan
Document, (b) prohibit any Loan Party from granting to the Administrative Agent
and the Lenders, a Lien on any of its assets, now or hereafter acquired, or (c)
(except with respect to the 9 1⁄4% Note Documents) create or permit to exist or
become effective any encumbrance or restriction on the ability of any
Subsidiary to (i) pay dividends or make other distributions to the Company or
any other Subsidiary, or pay any Debt owed to the Company or any other
Subsidiary, (ii) make loans or advances to any Loan Party or (iii) transfer any
of its


 


67

















 


assets or properties to any Loan Party; other than (A)
customary restrictions and conditions contained in agreements relating to the
sale of all or a substantial part of the assets of any Subsidiary pending such
sale, provided that such restrictions and conditions apply only to the
Subsidiary to be sold and such sale is permitted hereunder
(B) restrictions or conditions imposed by any agreement relating to
purchase money Debt, Capital Leases and other secured Debt permitted by this
Agreement if such restrictions or conditions apply only to the property or assets
securing such Debt and (C) customary provisions in leases, Joint Venture
agreements (created in the ordinary course consistent with past practices) and
other contracts restricting the assignment thereof.  The Company shall use its best efforts to avoid entering into
Joint Venture agreements which would violate the foregoing terms of this Section 11.8.


 


11.9                           Business Activities; Issuance of Equity.  Not, and not permit any other Loan Party to,
engage in any line of business other than the businesses engaged in on the date
hereof and businesses reasonably related thereto.  Not, and not permit any other Loan Party to, issue any Capital
Securities other than (a) any issuance of shares of the Company’s Capital
Securities (provided any such issued shares shall not be Disqualified Stock),
or (b) any issuance by a Subsidiary to the Company or another Subsidiary in
accordance with Section 11.3.


 


11.10                     Investments,
Loans and Advances.  Purchase or
otherwise acquire any Capital Securities of or other ownership interest in, or
debt securities of or other evidences of Debt of, any other Person; nor make
any loan or advance of any of its funds or property or make any other extension
of credit to, or make any other investment or contribution or acquire any
interest whatsoever in, any other Person; nor incur any Contingent Liability
except to the extent permitted under Section 11.1; nor permit any
Subsidiary to do any of the foregoing; other than:


 


(a)                                  contributions
by the Company to the capital of any Wholly-Owned Subsidiary, or by any
Subsidiary to the capital of any other domestic Wholly-Owned Subsidiary, so
long as the recipient of any such capital contribution has guaranteed the
Obligations and such guaranty is secured by a pledge of all of its Capital
Securities and substantially all of its real and personal property, in each
case in accordance with Section 10.9;


 


(b)                                 contributions
to non-Wholly-Owned Subsidiaries and Joint Ventures in the ordinary course of
business consistent with past practices not in excess of $1,000,000 in the
aggregate;


 


(c)                                  investments
constituting Debt permitted by Section 11.1;


 


(d)                                 Contingent
Liabilities constituting Debt permitted by Section 11.1 or Liens
permitted by Section 11.2;


 


(e)                                  investments
in Cash Equivalents;


 


(f)                                    bank
deposits in the ordinary course of business;


 


68

















 


(g)                                 investments
in securities of Account Debtors received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
account debtors;


 


(h)                                 investments
to consummate Permitted Acquisitions;


 


(i)                                     those
investments, loans, advances and other transactions described in Schedule 11.11
as of the Closing Date, but no extension or renewal thereof shall be permitted;


 


(j)                                     extensions
of trade credit made in the ordinary course of business on customary credit
terms and commission, relocation, travel and similar advances made to officers,
employees and to Shoreline Enterprises, LLC, a Delaware limited liability
company (the majority ownership of which is held by Myron C. Warshauer) (“Shoreline”),
for consulting services and reimbursable expenses, all in the ordinary course
of business, provided that advances to officers, employees and Shoreline for
purposes other than commission, relocation and travel shall not exceed $250,000
in aggregate amount;


 


(k)                                  acquire
and own stock, obligations or securities received in settlement of debts owing
to the Company or its Subsidiaries or as consideration for Asset Dispositions
otherwise permitted under Section 11.4;


 


(l)                                     advances
made by the Company or its Subsidiaries or Joint Ventures to customers in
connection with Facility Leases and Facility Management Agreements of the
Company in the ordinary course of business consistent with past practices;


 


(m)                               other
loans, advances or investments (except to (i) the Principals, or (ii) other
Affiliates of the Company) in an aggregate amount not to exceed three percent
(3%) of Total Assets;  and


 


(n)                                 as
otherwise permitted pursuant to Sections 11.6.


 


provided that (x)
any Investment which when made complies with the requirements of the definition
of the term “Cash Equivalent Investment” may continue to be held
notwithstanding that such Investment if made thereafter would not comply with
such requirements; (y) no new Investment which would otherwise be permitted by clause (c), (d), or (h) shall be
permitted to be made if, immediately before or after giving effect thereto, any
Event of Default or Unmatured Event of Default exists.


 


11.11                     Restriction of Amendments to
Certain Documents.  Not amend or
otherwise modify, or waive any rights under, the Related Agreements or the
Subordinated Debt Documents if, in any case, such amendment, modification or
waiver could reasonably be expected to be material and adverse to the interests
of the Lenders.


 


11.12                     Fiscal Year.  Not change its Fiscal Year.


 


69

















 


11.13                     Financial
Covenants.


 


11.13.1            Fixed
Charge Coverage Ratio.  Not
permit the Fixed Charge Coverage Ratio for any Computation Period to be less
than 1.75 to 1.00.


 


11.13.2            Senior
Debt to EBITDA Ratio.  Not
permit the Senior Debt to EBITDA Ratio as of the last day of any Computation
Period to exceed the applicable ratio set forth below for such Computation
Period:


 


	
  Computation

  Period Ending

  	
   

  	
  Maximum
  Senior Debt

  to EBITDA Ratio

  	
   

  
	
  6/30/04

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  9/30/04

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  12/31/04

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  3/31/05

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  6/30/05

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  9/30/05

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  12/31/05

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  3/31/06

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  6/30/06

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  9/30/06

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  12/31/06

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  3/31/07

  	
   

  	
  2.75 to 1.00

  	
   

  



 


11.13.3            Total
Debt to EBITDA Ratio.  Not
permit the Total Debt to EBITDA Ratio as of the last day of any Computation
Period to exceed the applicable ratio set forth below for such Computation
Period:


 


	
  Computation

  Period Ending

  	
   

  	
  Maximum
  Total Debt to

  EBITDA Ratio

  	
   

  
	
  6/30/04

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  9/30/04

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  12/31/04

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  3/31/05

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  6/30/05

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  9/30/05

  	
   

  	
  5.00 to 1.00

  	
   

  
	
  12/31/05

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  3/31/06

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  6/30/06

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  9/30/06

  	
   

  	
  4.50 to 1.00

  	
   

  
	
  12/31/06

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  3/31/07

  	
   

  	
  4.00 to 1.00

  	
   

  



 


70

















 


11.13.4            Net
Capital Expenditures.  Make, or
permit any Subsidiary to make, Net Capital Expenditures (minus the amount of
any Ordinary Course Capital Leases used to finance such Net Capital
Expenditures, such resulting amount referred to in this section as
“Adjusted Net Capital Expenditures”) that exceed $7,500,000 in any Fiscal Year
in the aggregate for the Company and its Subsidiaries.


 


11.14                     Repayment or Redemption of Debt;
Cancellation of Debt.  Make, or
permit any Subsidiary to make, any optional payment, defeasance (whether a
covenant defeasance, legal defeasance or other defeasance), prepayment or
redemption of any of its or any of its Subsidiaries’ Subordinated Debt or other
Debt (except for payments made in Capital Securities which could not create an
Event of Default, and except for Ordinary Course Lease Termination Payments); or
amend or modify, or consent or agree to any amendment or modification of, any
instrument or agreement under which any of its Subordinated Debt is issued or
created or otherwise related thereto; or enter into any agreement or
arrangement providing for any defeasance of any kind of any of its Subordinated
Debt; except as may otherwise be permitted pursuant to Sections 11.3 and
11.6.  Not, and not permit any other
Loan Party to, cancel any claim or debt owing to it, except for reasonable
consideration or in the ordinary course of business.


 


11.15                     Affiliate
Amounts.  Except as set
forth on Schedule 11.15, the Company will not pay, or permit any
Subsidiary to pay, directly or indirectly, any management, consulting,
investment banking, advisory or other fees or payments, fees or payments under
any leases, any expense reimbursement or similar payments, or any other
payments of any kind (including, without limitation, any amounts paid or
payable by the Company or any of its Subsidiaries to the Principals and/or to any
other Affiliates of the Company, in respect of overhead expense allocations
among members of the Affiliate corporate group) to the Principals and/or to any
other Affiliates of the Company, other than the Company or any Guarantor.  The foregoing sentence shall not restrict
the Company from (i) paying salaries, bonuses or other compensation to, or
reimbursing travel or other business expenses of, officers or employees (other
than any such Person who is also a Principal) in the ordinary course of business
and (ii) reimbursing travel or other business expenses of any officer or
director of the Company who is also a Principal, to the extent such
reimbursements or such expenses are customarily paid or reimbursed for all
officers and/or directors (as applicable) of the Company in the ordinary course
of the Company’s business, consistent with past practices.


 


SECTION 12                             EFFECTIVENESS;
CONDITIONS OF LENDING, ETC.


 


The obligation of each Lender to make its
Loans and participate in the Existing Letters of Credit, and of the Issuing
Lender to issue Letters of Credit, is subject to the following conditions
precedent:


 


12.1                           Initial Credit Extension.  The obligation of the Lenders to make the
initial Loans and to participate in the Existing Letters of Credit, and the obligation
of the Issuing Lender to


 


71

















 


issue its initial Letter of Credit (whichever first
occurs) is, in addition to the conditions precedent specified in Section 12.2,
subject to the conditions precedent that (a) all Debt to be Repaid (as
described on Schedule 12.1) has been (or concurrently with the
initial borrowing will be) paid in full, and that all agreements and
instruments governing the Debt to be Repaid and that all Liens securing such
Debt to be Repaid have been (or concurrently with the initial borrowing will
be) terminated and (b) the Administrative Agent shall have received (i)
evidence, reasonably satisfactory to the Administrative Agent, that the Company
has received gross cash proceeds (prior to underwriter’s discount and
commissions) from the underwritten sale of Company common stock pursuant to the
IPO in an amount not less than $51,750,000; (ii) evidence, reasonably
satisfactory to the Administrative Agent, that the Company has completed, or concurrently
with the initial credit extension hereunder will complete, the Related
Transactions in accordance with the terms of the Related Agreements (without
any amendment thereto or waiver thereunder unless consented to by the Lenders);
and (iii) all of the following, each duly executed and dated the Closing Date
(or such earlier date as shall be satisfactory to the Administrative Agent), in
form and substance reasonably satisfactory to the Administrative Agent (and the
date on which all such conditions precedent have been satisfied or waived in
writing by the Administrative Agent and the Lenders is called the “Closing
Date”):


 


12.1.1                  Notes.  A Note for each Lender.


 


12.1.2                  Authorization
Documents.  For the Company and
each Guarantor, such Person’s (a) charter (or similar formation document),
certified by the appropriate governmental authority; (b) good standing
certificates in its state of incorporation (or formation) and in each other
state requested by the Administrative Agent; (c) bylaws (or similar governing
document); (d) resolutions of its board of directors (or similar governing
body) approving and authorizing such Person’s execution, delivery and
performance of the Loan Documents to which it is party and the transactions
contemplated thereby; and (e) signature and incumbency certificates of its
officers executing any of the Loan Documents (it being understood that the
Administrative Agent and each Lender may conclusively rely on each such
certificate until formally advised by a like certificate of any changes
therein), all certified by its secretary or an assistant secretary (or similar
officer) as being in full force and effect without modification.


 


12.1.3                  Consents,
etc.  Certified copies of all
documents evidencing any necessary corporate or partnership action,
consents and governmental approvals (if any) required for the execution,
delivery and performance by the Company and each Guarantor of the documents
referred to in this Section 12.


 


12.1.4                  Letter
of Direction.  A letter of
direction containing funds flow information with respect to the proceeds of the
Loans on the Closing Date.


 


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12.1.5                  Guaranty and Collateral Agreement.  A counterpart of the Guaranty and Collateral
Agreement executed by the Company and each Guarantor, together with all
instruments, transfer powers and other items required to be delivered in
connection therewith.


 


12.1.6                  Perfection
Certificate.  A Perfection
Certificate completed and executed by the Company and each Guarantor.


 


12.1.7                  Obligations
Senior.  Evidence satisfactory
to the Administrative Agent and the Lenders that the Loans and other
Obligations hereunder shall be Senior Debt under the 9 1⁄4% Note Documents.


 


12.1.8                  Opinions
of Counsel.  Opinions of counsel
for the Company and each Guarantor, including local counsel reasonably
requested by the Administrative Agent, and to the extent requested by the
Administrative Agent, copies of all other opinions, if any, issued pursuant to
the Related Transactions.


 


12.1.9                  Insurance.  Evidence of the existence of insurance
required to be maintained pursuant to Section 10.3(b), together
with evidence that the Administrative Agent has been named as a lender’s loss
payee and an additional insured on all related insurance policies.


 


12.1.10            Copies of
Documents.  Copies of the
Related Agreements certified by the secretary or assistant secretary (or
similar officer) of the Company as being true, accurate and complete.


 


12.1.11            Payment of Fees.  Evidence of payment by the Company of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with all Attorney Costs of the Administrative Agent and
the Co-Lead Arrangers to the extent invoiced prior to the Closing Date, plus
such additional amounts of Attorney Costs as shall constitute the
Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be
incurred by the Administrative Agent through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between the Company and the Administrative Agent).


 


12.1.12            Solvency
Certificate.  A Solvency
Certificate executed by a Senior Officer of the Company.


 


12.1.13            Pro Forma.  A consolidated pro forma
balance sheet of the Company as at June 30, 2004, adjusted to give effect
to the consummation of the Related Transactions and the financings contemplated
hereby as if such transactions had occurred on such date, consistent in all
material respects with the sources and uses of cash as previously described to
the Lenders and the forecasts previously provided to the Lenders.


 


12.1.14            Intentionally
Omitted.


 


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12.1.15            Search Results;
Lien Terminations.  Certified copies
of Uniform Commercial Code search reports dated a date reasonably near to the
Closing Date, listing all effective financing statements which name the Company
and each Guarantor (under their present names and any previous names) as
debtors, together with (a) copies of such financing statements, (b) payoff
letters that definitively speak to repayment in full of all Debt to be Repaid,
the termination of all agreements relating thereto and the release of all Liens
granted in connection therewith, and, where feasible prior to the Closing Date,
together with Uniform Commercial Code or other appropriate termination
statements and documents effective to evidence the foregoing (other than Liens
permitted by Section 11.2) and such other Uniform Commercial Code
termination statements as the Administrative Agent may reasonably request.


 


12.1.16            Filings,
Registrations and Recordings.  The
Administrative Agent shall have received each document (including Uniform
Commercial Code financing statements) required by the Collateral Documents or
under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Lenders, a perfected Lien on the collateral described
therein, prior to any other Liens (subject only to Liens permitted pursuant to Section 11.2),
in proper form for filing, registration or recording.


 


12.1.17            Closing
Certificate, Consents and Permits.  A certificate executed by an officer of the Company on behalf of
the Company in such capacity but not individually certifying (a) the matters
set forth in Section 12.2.1 as of the Closing Date and (b) the
occurrence of the closing of the Related Transactions and that such closing has
been consummated in accordance with the terms of the Related Agreements without
waiver of any material condition thereof; together with evidence that all
necessary governmental, regulatory, creditor, shareholder, partner and other
material consents, approvals and exemptions required to be obtained by the Company
in connection with the Related Transactions have been duly obtained and are in
full force and effect.


 


12.1.18            Other.  Such other documents as the Administrative
Agent or any Lender may reasonably request.


 


12.2                           Conditions. 
The obligation (a) of each Lender to make each Loan and participate
in each Existing Letter of Credit, and (b) of the Issuing Lender to issue each
Letter of Credit is subject to the following further conditions precedent that:


 


12.2.1                  Compliance
with Warranties, No Default, etc.  Both before and after giving effect to any borrowing and the
issuance of any Letter of Credit, the following statements shall be true and
correct:


 


(a)                                  the
representations and warranties of each Loan Party set forth in this Agreement
and the other Loan Documents shall be true and correct in all respects with the
same effect as if


 


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then made (except to the extent stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); and


 


(b)                                 no
Event of Default or Unmatured Event of Default shall have then occurred and be
continuing.


 


12.2.2                  Confirmatory
Certificate.  If requested by
the Administrative Agent or any Lender, the Administrative Agent shall
have received (in sufficient counterparts to provide one to each Lender) a
certificate dated the date of such requested Loan or Letter of Credit and
signed by a duly authorized representative of the Company in such capacity but
not individually as to the matters set out in Section 12.2.1 (it
being understood that each request by the Company for the making of a Loan or
the issuance of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Company that the conditions precedent set
forth in Section 12.2.1 will be satisfied at the time of the making
of such Loan or the issuance of such Letter of Credit), together with such
other documents as the Administrative Agent or any Lender may reasonably
request in support thereof.


 


12.2.3                  Real
Estate Documents.  If requested
by the Administrative Agent or any Lender, with respect to each parcel of real
property, at any time owned by the Company or any Guarantor, a duly executed
Mortgage providing for a fully perfected Lien, in favor of the Administrative
Agent, in all right, title and interest of the Company or such Guarantor in
such real property, together with:


 


(a)                                  an
ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the
Administrative Agent, insuring the Administrative Agent’s Lien on such real
property and containing such endorsements as the Administrative Agent may
reasonably require (it being understood that the amount of coverage, exceptions
to coverage and status of title set forth in such policy shall be acceptable to
the Administrative Agent);


 


(b)                                 copies
of all documents of record concerning such real property as shown on the
commitment for the ALTA Loan Title Insurance Policy referred to above;


 


(c)                                  original
or certified copies of all insurance policies required to be maintained with
respect to such real property by this Agreement, the applicable Mortgage or any
other Loan Document;


 


(d)                                 a
survey certified to the Administrative Agent meeting such standards as the
Administrative Agent may reasonably establish and otherwise reasonably
satisfactory to the Administrative Agent;


 


(e)                                  a
flood insurance policy concerning such real property, if required by the Flood
Disaster Protection Act of 1973; and


 


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(f)                                    an
appraisal, prepared by an independent appraiser engaged directly by the
Administrative Agent, of such parcel of real property or interest in real
property, which appraisal shall satisfy the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act, if applicable, and shall
evidence compliance with the supervisory loan-to-value limits set forth in the
Federal Deposit Insurance Corporation Improvement Act of 1991, if applicable.


 


Additionally, (i) in the case of any leased real property (other than
the Company’s office located at 900 North Michigan Avenue, Suite 1600, Chicago,
Illinois) on which are located any assets or improvements (having a value of
$1,000,000 or more with respect to each real property address) owned by the Company
and/or any of its Subsidiaries and/or Joint Ventures, at any time upon the
request of the Administrative Agent or the Required Lenders, the Company and/or
its Subsidiary and/or Joint Venture, as applicable, shall use their best
efforts to provide a Collateral Access Agreement from the landlord of such
property waiving any landlord’s Lien in respect of personal property kept at
the premises subject to such lease, and (ii) in the case of any mortgaged real
property, a waiver from the mortgagee thereof waiving any Lien in respect of
personal property kept at the premises subject to such Mortgage.


 


SECTION 13                             EVENTS
OF DEFAULT AND THEIR EFFECT.


 


13.1                           Events of Default.  Each of the following shall constitute an Event of Default
under this Agreement:


 


13.1.1                  Non-Payment
of the Loans, etc. 
Default in the payment when due of the principal of any Loan; or
default, and continuance thereof for five days, in the payment when due of any
interest, fee, reimbursement obligation with respect to any Letter of Credit or
Existing Letter of Credit or other amount payable by the Company hereunder or
under any other Loan Document.


 


13.1.2                  Non-Payment
of Other Debt.  Any default
shall occur under the terms applicable to any Debt of any Loan Party or
Guarantor (other than (i) Debt of APCOA-Atrium Parking Venture L.P., an Ohio
limited partnership (“Atrium”), with respect to its obligations to the holders
of its Ten-Year Debentures bearing interest at a rate of 12% per annum, issued
in original principal amount of $1,775,000 pursuant to the terms of a
Confidential Private Placement memorandum dated May 24, 1995, and (ii) other
non-recourse Debt of the Company or any of its Subsidiaries or any Guarantor as
the Administrative Agent shall consent, such consent not to be unreasonably
withheld) in an aggregate amount (for all such Debt so affected and including
undrawn committed or available amounts and amounts owing to all creditors under
any combined or syndicated credit arrangement) exceeding $1,000,000 and such
default shall (a) consist of the failure to pay such Debt when due, whether by
acceleration or otherwise, or (b) accelerate the maturity of such Debt or
permit the holder or holders thereof, or any trustee or agent for such holder
or holders, to cause such Debt to become due and payable (or require any Loan
Party or Guarantor to purchase or redeem such Debt or post cash collateral in
respect thereof) prior to its expressed maturity.


 


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13.1.3                  Other
Material Obligations.  Default
in the payment when due, or in the performance or observance of, any material
obligation of, or condition agreed to by, any Loan Party or Guarantor with
respect to any material purchase or lease of goods or services where such
default, singly or in the aggregate with all other such defaults, could
reasonably be expected to have a Material Adverse Effect.


 


13.1.4                  Bankruptcy,
Insolvency, etc.  Any Loan Party or
Guarantor becomes insolvent or generally fails to pay, or admits in writing its
inability or refusal to pay, debts as they become due; or any Loan Party or
Guarantor applies for, consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for such Loan Party or Guarantor or any
property thereof, or makes a general assignment for the benefit of creditors;
or, in the absence of such application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for any Loan Party or Guarantor or for
a substantial part of the property of any thereof and is not discharged within
60 days; or any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, is commenced in respect of any Loan Party or Guarantor,
and if such case or proceeding is not commenced by such Loan Party or
Guarantor, it is consented to or acquiesced in by such Loan Party or Guarantor,
or remains for 60 days undismissed; or any Loan Party or Guarantor takes any
action to authorize, or in furtherance of, any of the foregoing.


 


13.1.5                  Non-Compliance with Loan Documents.  (a) Failure by any Loan Party or Guarantor
to comply with or to perform any covenant set forth in Section 10.1.5,
10.3(b) or 10.5 or Section 11; or (b) failure by
any Loan Party or Guarantor to comply with or to perform any other provision of
this Agreement or any other Loan Document (and not constituting an Event of
Default under any other provision of this Section 13) and
continuance of such failure described in this clause (b) for 30 days.


 


13.1.6                  Representations;
Warranties.  Any representation or
warranty made by any Loan Party or Guarantor herein or any other Loan Document
is breached or is false or misleading in any material respect, or any schedule,
certificate, financial statement, report, notice or other writing furnished by
any Loan Party or Guarantor to the Administrative Agent or any Lender in
connection herewith is false or misleading in any material respect on the date
as of which the facts therein set forth are stated or certified.


 


13.1.7                  Pension Plans.  (a) Any Person institutes steps to
terminate a Pension Plan if as a result of such termination the Company or any
member of the Controlled Group could be required to make a contribution to such
Pension Plan, or could incur a liability or obligation to such Pension Plan,
which contribution or liability could reasonably be expected to have a Material
Adverse Effect; (b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA; (c) the Unfunded Liability exceeds $1,000,000; or (d) there
shall occur any withdrawal or partial withdrawal from a Multiemployer Pension
Plan and the withdrawal liability (without unaccrued interest) to Multiemployer
Pension Plans as a result of such withdrawal (including any outstanding


 


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withdrawal liability that the Company or any member of
the Controlled Group have incurred on the date of such withdrawal) could
reasonably be expected to have a Material Adverse Effect.


 


13.1.8                  Judgments.  Final judgments which exceed an aggregate of
$1,000,000 shall be rendered against any Loan Party or Guarantor and shall
not have been paid, discharged or vacated or had execution thereof stayed pending
appeal within 30 days after entry or filing of such judgments.


 


13.1.9                  Invalidity of Collateral Documents,
etc.  Any Collateral Document shall
cease to be in full force and effect other than pursuant to the terms thereof;
or any of the Company or the Guarantors (or any Person by, through or on behalf
of any of the Company or the Guarantors) shall contest in any manner the
validity, binding nature or enforceability of any Collateral Document.


 


13.1.10            Invalidity of Subordination
Provisions, etc.  Any
subordination provision in any document or instrument governing Subordinated
Debt, or any subordination provision in any guaranty by any Subsidiary of any
Subordinated Debt, shall cease to be in full force and effect other than
pursuant to the terms thereof, or any Loan Party or Guarantor or any other
Person (including the holder of any applicable Subordinated Debt) shall contest
in any manner the validity, binding nature or enforceability of any such
provision.


 


13.1.11            Change of
Control.  A Change of Control shall
occur.


 


13.1.12            Material
Adverse Effect.  The occurrence
of any event having a Material Adverse Effect.


 


13.2                           Effect of Event of Default.  If any Event of Default described in Section 13.1.4
shall occur in respect of the Company, the Commitments shall immediately
terminate and the Loans and all other Obligations hereunder shall become
immediately due and payable and the Company shall become immediately obligated
to Cash Collateralize all Letters of Credit and Existing Letters of Credit, all
without presentment, demand, protest or notice of any kind; and, if any other
Event of Default shall occur and be continuing, the Administrative Agent may
(and, upon the written request of the Required Lenders shall) declare the
Commitments to be terminated in whole or in part and/or declare all or any part
of the Loans and all other Obligations hereunder to be due and payable and/or
demand that the Company immediately Cash Collateralize all or any Letters of
Credit and Existing Letters of Credit, whereupon the Commitments shall
immediately terminate (or be reduced, as applicable) and/or the Loans and other
Obligations hereunder shall become immediately due and payable (in whole or in
part, as applicable) and/or the Company shall immediately become obligated to
Cash Collateralize the Letters of Credit and Existing Letters of Credit (all or
any, as applicable), all without presentment, demand, protest or notice of any
kind.  The Administrative Agent shall
promptly advise the Company of any such declaration, but failure to do so shall
not impair the effect of such declaration. 
Any cash collateral delivered hereunder shall be held by the
Administrative


 


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Agent (without liability for interest thereon) and
applied to the Obligations arising in connection with any drawing under a
Letter of Credit or Existing Letter of Credit. 
After the expiration or termination of all Letters of Credit and
Existing Letters of Credit, such cash collateral shall be applied by the
Administrative Agent to any remaining Obligations hereunder and any excess
shall be delivered to the Company or as a court of competent jurisdiction may
elect.


 


SECTION 14                             THE
AGENT.


 


14.1                           Appointment and Authorization.  Each Lender hereby irrevocably (subject to Section 14.10)
appoints, designates and authorizes the Administrative Agent to take such
action on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the
contrary contained elsewhere in this Agreement or in any other Loan Document,
the Administrative Agent shall not have any duty or responsibility except those
expressly set forth herein, nor shall the Administrative Agent have or be
deemed to have any fiduciary relationship with any Lender or participant, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.  Without limiting the generality of the foregoing sentence, the
use of the term “agent” herein and in other Loan Documents with reference to
the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.


 


14.2                           Issuing Lender and LaSalle.   (a) The Issuing Lender shall act on behalf
of the Lenders (according to their Pro Rata Shares) with respect to any Letters
of Credit issued by it and the documents associated therewith.  The Issuing Lender shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Section 14
with respect to any acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit issued by it or proposed to be issued by it
and the applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term “Administrative Agent”, as used in
this Section 14, included the Issuing Lender with respect to such
acts or omissions, and (ii) as additionally provided in this Agreement with
respect to the Issuing Lender.


 


(b)                                 LaSalle,
in its capacity as the issuer of the Existing Letters of Credit, shall act on
behalf of the Lenders (according to their Pro Rata Shares) with respect to any
Existing Letters of Credit issued by it and the documents associated
therewith.  LaSalle, in such capacity,
shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Section 14 with respect to any acts
taken or omissions suffered by LaSalle in connection with Existing Letters of
Credit issued by it and the agreements for letters of credit pertaining to such
Existing Letters of Credit as fully as if the term “Administrative Agent”, as
used in this Section 14,


 


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included LaSalle in such capacity with respect to such
acts or omissions, and (ii) as additionally provided in this Agreement with
respect to LaSalle in such capacity.


 


14.3                           Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to
such duties.  The Administrative Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.


 


14.4                           Exculpation of Administrative Agent.  None of the Administrative Agent nor any of
its directors, officers, employees or agents shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document or the transactions contemplated hereby
(except to the extent resulting from its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein as determined
by a final, nonappealable judgment by a court of competent jurisdiction), or
(b) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party, any Guarantor or
Affiliate of the Company, or any officer thereof, contained in this Agreement
or in any other Loan Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document (or the creation,
perfection or priority of any Lien or security interest therein), or for any failure
of the Company or any other party to any Loan Document to perform its
Obligations hereunder or thereunder. 
The Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Company or any
of the Company’s Subsidiaries or Affiliates or the Guarantors.


 


14.5                           Reliance by Administrative Agent.  The Administrative Agent shall be entitled
to rely, and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent,
certificate, electronic mail message, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to the Company), independent accountants and other
experts selected by the Administrative Agent. 
The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, confirmation from the Lenders of
their obligation to indemnify the Administrative Agent against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.  The
Administrative Agent shall in all cases be fully protected in acting, or in


 


80

















 


refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders and such request and any action taken or failure to act pursuant
thereto shall be binding upon each Lender. 
For purposes of determining compliance with the conditions specified in Section 12,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
written notice from such Lender prior to the proposed Closing Date specifying
its objection thereto.


 


14.6                           Notice of Default.  The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default or Unmatured Event of Default
except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Company referring to this Agreement, describing such Event
of Default or Unmatured Event of Default and stating that such notice is a
“notice of default”.  The Administrative
Agent will notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such
action with respect to such Event of Default or Unmatured Event of Default as
may be requested by the Required Lenders in accordance with Section 13;
provided that unless and until the Administrative Agent has received any
such request, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default or Unmatured Event of Default as it shall deem advisable or in the best
interest of the Lenders.


 


14.7                           Credit Decision.  Each Lender acknowledges that the Administrative Agent has not
made any representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any consent and acceptance of any assignment
or review of the affairs of the Loan Parties, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender as to any
matter, including whether the Administrative Agent has disclosed material
information in its possession.  Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Loan Parties or the Guarantors, and
made its own decision to enter into this Agreement and to extend credit to the
Company hereunder.  Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Company.  Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial


 


81

















 


or other condition or creditworthiness of the Company
which may come into the possession of the Administrative Agent.


 


14.8                           Indemnification.  Whether or not the transactions contemplated hereby are
consummated, each Lender shall indemnify upon demand the Administrative Agent
and its directors, officers, employees and agents (to the extent not reimbursed
by or on behalf of the Company and without limiting the obligation of the
Company to do so), according to its applicable Pro Rata Share, from and against
any and all Indemnified Liabilities (as hereinafter defined); provided
that no Lender shall be liable for any payment to any such Person of any
portion of the Indemnified Liabilities to the extent determined by a final,
nonappealable judgment by a court of competent jurisdiction to have resulted from
the applicable Person’s own gross negligence or willful misconduct.  No action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section.  Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs and
Taxes) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Company.  The
undertaking in this Section shall survive repayment of the Loans,
cancellation of the Notes, expiration or termination of the Letters of Credit
and/or the Existing Letters of Credit, any foreclosure under, or modification,
release or discharge of, any or all of the Collateral Documents, termination of
this Agreement and the resignation or replacement of the Administrative Agent.


 


14.9                           Administrative Agent in Individual
Capacity.  LaSalle and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
the Loan Parties or the Guarantors and their respective Affiliates as though
LaSalle were not the Administrative Agent hereunder and without notice to or
consent of any Lender.  Each Lender
acknowledges that, pursuant to such activities, LaSalle or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Company or such Affiliate) and acknowledge that the Administrative Agent shall
be under no obligation to provide such information to them.  With respect to their Loans (if any),  LaSalle and its Affiliates shall have the
same rights and powers under this Agreement as any other Lender and may
exercise the same as though LaSalle were not the Administrative Agent, and the
terms “Lender” and “Lenders” include LaSalle and its Affiliates, to the extent
applicable, in their individual capacities.


 


14.10                     Successor Administrative Agent.  The Administrative Agent may resign as
Administrative Agent upon 30 days’ notice to the Lenders.  If the Administrative Agent resigns under
this Agreement, the Required Lenders shall, with (so long as no Event of
Default exists)


 


82

















 


the consent of the Company (which shall not be
unreasonably withheld or delayed), appoint from among the Lenders a successor
agent for the Lenders.  If no successor
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company, a successor agent from among the
Lenders.  Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Administrative Agent and the
term “Administrative Agent” shall mean such successor agent, and the retiring
Administrative Agent’s appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Section 14
and Sections 15.5 and 15.16 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.  If no successor
agent has accepted appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.


 


14.11                     Collateral
Matters.  The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion, (a) to release any Lien granted to or held by the Administrative
Agent under any Collateral Document (i) upon termination of the Commitments
and payment in full of all Loans and all other obligations of the Company
hereunder and the expiration or termination of all Letters of Credit and
Existing Letters of Credit; (ii) constituting property sold or to be sold or
disposed of as part of or in connection with any disposition permitted
hereunder; or (iii) subject to Section 15.1, if approved,
authorized or ratified in writing by the Required Lenders; or (b) to
subordinate its interest in any collateral to any holder of a Lien on such
collateral which is permitted by Section 11.2(d)(i) or (d)(iii)  (it being understood that the Administrative
Agent may conclusively rely on a certificate from the Company in determining
whether the Debt secured by any such Lien is permitted by Section 11.1(b)).  Upon request by the Administrative Agent at
any time, the Lenders will confirm in writing the Administrative Agent’s
authority to release, or subordinate its interest in, particular types or items
of collateral pursuant to this Section 14.11.  Each Lender hereby authorizes the
Administrative Agent to give blockage notices in connection with any
Subordinated Debt at the direction of Required Lenders and agrees that it will
not act unilaterally to deliver such notices.


 


14.12                     Administrative Agent May File Proofs
of Claim.  In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party or Guarantor, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Company)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


 


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(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 5, 15.5 and 15.16) allowed in such judicial
proceedings; and


 


(b)                                 to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender to make such payments
to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 5,
15.5 and 15.16.


 


Nothing contained herein shall be deemed to
authorize the Administrative Agent  to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


 


14.13                     Other
Agents; Arrangers and Managers. 
None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger”
or “co-arranger”, if any, shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the Lenders or other
Persons so identified shall have or be deemed to have any fiduciary
relationship with any Lender.  Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement
or in taking or not taking action hereunder.


 


SECTION 15                             GENERAL.


 


15.1                           Waiver; Amendments.  No delay on the part of the Administrative Agent or any Lender in
the exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy.  No amendment,
modification or waiver of, or consent with respect to, any provision of this
Agreement or the


 


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other Loan Documents shall in any event be effective
unless the same shall be in writing and acknowledged by the Company and the
Lenders having aggregate Pro Rata Shares of not less than the aggregate Pro Rata
Shares expressly designated herein with respect to such amendment,
modification, waiver or consent or, in the absence of such designation as to
any provision of this Agreement, by the Required Lenders, and then any such
amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.  No amendment, modification, waiver or
consent shall (a) extend or increase the Commitment of any Lender without the
written consent of such Lender, (b) extend the date scheduled for payment of
any principal (excluding mandatory prepayments) of or interest on the Loans or
any fees payable hereunder without the written consent of each Lender directly
affected thereby, (c) reduce the principal amount of any Loan, the rate of
interest thereon (excluding waivers of any increases due to existence of an
Event of Default) or any fees payable hereunder, without the consent of each
Lender directly affected thereby; or (d) release any party from its obligations
under the Guaranty or all or any substantial part of the collateral granted
under the Collateral Documents, change the definition of Required Lenders, any
provision of this Section 15.1 or reduce the aggregate Pro Rata
Share required to effect an amendment, modification, waiver or consent,
without, in each case, the written consent of all Lenders.  No provision of Sections 6.2.2 or 6.3
with respect to the timing or application of mandatory prepayments of the Loans
shall be amended, modified or waived without the consent of Lenders having a
majority of the aggregate Pro Rata Shares of the Loans affected thereby.  No provision of Section 14 or
other provision of this Agreement affecting the Administrative Agent in its
capacity as such shall be amended, modified or waived without the consent of
the Administrative Agent.  No provision
of this Agreement relating to the rights or duties of the Issuing Lender in its
capacity as such shall be amended, modified or waived without the consent of
the Issuing Lender.  No provision of
this Agreement relating to the rights or duties of the Swing Line Lender in its
capacity as such shall be amended, modified or waived without the consent of
the Swing Line Lender.


 


15.2                           Confirmations. 
The Company and each holder of a Note agree from time to time, upon
written request received by it from the other, to confirm to the other in
writing (with a copy of each such confirmation to the Administrative Agent) the
aggregate unpaid principal amount of the Loans then outstanding under such Note.


 


15.3                           Notices.  Except
as otherwise provided in Sections 2.2.2 and 2.2.3, all
notices hereunder shall be in writing (including facsimile transmission) and
shall be sent to the applicable party at its address shown on Annex B or
at such other address as such party may, by written notice received by the
other parties, have designated as its address for such purpose.  Notices sent by facsimile transmission shall
be deemed to have been given when sent; notices sent by mail shall be deemed to
have been given three Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand delivery or overnight
courier service shall be deemed to have been given when received.  For purposes of Sections 2.2.2 and 2.2.3,
the Administrative Agent shall be entitled to rely on telephonic instructions
from any person that the Administrative Agent in good faith believes is an
authorized officer or


 


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employee of the Company, and the Company shall hold
the Administrative Agent and each other Lender harmless from any loss, cost or
expense resulting from any such reliance.


 


15.4                           Computations. 
Where the character or amount of any asset or liability or item of
income or expense is required to be determined, or any consolidation or other
accounting computation is required to be made, for the purpose of this
Agreement, such determination or calculation shall, to the extent applicable
and except as otherwise specified in this Agreement, be made in accordance with
GAAP, consistently applied; provided that if the Company notifies the
Administrative Agent that the Company wishes to amend any covenant in
Section 10 (or any related definition) to eliminate or to take into
account the effect of any change in GAAP on the operation of such covenant (or
if the Administrative Agent notifies the Company that the Required Lenders wish
to amend Section 10 (or any related definition) for such purpose), then
the Company’s compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant (or related definition)
is amended in a manner satisfactory to the Company and the Required Lenders.


 


15.5                           Costs, Expenses and Taxes.  The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Administrative Agent and the
Issuing Lenders (including Attorney Costs and any Taxes) in connection with the
preparation, execution, syndication, delivery and administration (including
perfection and protection of any collateral and the costs of Intralinks (or
other similar service), if applicable) of this Agreement, the other Loan
Documents and all other documents provided for herein or delivered or to be
delivered hereunder or in connection herewith (including any amendment,
supplement or waiver to any Loan Document), whether or not the transactions
contemplated hereby or thereby shall be consummated, and all reasonable out-of-pocket
costs and expenses (including Attorney Costs and any Taxes) incurred by the
Administrative Agent and each Lender after an Event of Default in connection
with the collection of the Obligations or the enforcement of this Agreement the
other Loan Documents or any such other documents or during any workout,
restructuring or negotiations in respect thereof.  In addition, the Company agrees to pay, and to save the
Administrative Agent and the Lenders harmless from all liability for, any fees
of the Company’s auditors in connection with any reasonable exercise by the
Administrative Agent and the Lenders of their rights pursuant to Section 10.2.  All Obligations provided for in this Section 15.5
shall survive repayment of the Loans, cancellation of the Notes, expiration or
termination of the Letters of Credit and/or the Existing Letters of Credit and
termination of this Agreement.


 


15.6                           Assignments; Participations.


 


15.6.1                  Assignments.  (a) 
Any Lender may at any time assign to one or more Persons (any such
Person, an “Assignee”) all or any portion of such Lender’s Loans and
Commitments, with the prior written consent of the Administrative Agent, the
Issuing Lender (for an assignment of the Revolving Loans and the Revolving
Commitment) and, so long as no Event of Default exists, the Company (which
consent shall not be unreasonably withheld or delayed and shall not


 


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be required for an assignment by a Lender to a Lender
or an Affiliate of a Lender).  Except as
the Administrative Agent may otherwise agree, any such assignment shall be in a
minimum aggregate amount equal to $5,000,000 or, if less, the remaining
Commitment and Loans held by the assigning Lender.  The Company and the Administrative Agent shall be entitled to
continue to deal solely and directly with such Lender in connection with the
interests so assigned to an Assignee until the Administrative Agent shall have
received and accepted an effective assignment agreement in substantially the
form of Exhibit C hereto (an “Assignment Agreement”) executed,
delivered and fully completed by the applicable parties thereto and a
processing fee of $3,500.  No assignment
may be made to any Person if at the time of such assignment the Company would
be obligated to pay any greater amount under Section 7.6 or 8
to the Assignee than the Company is then obligated to pay to the assigning
Lender under such Sections (and if any assignment is made in violation of the
foregoing, the Company will not be required to pay such greater amounts).  Any attempted assignment not made in
accordance with this Section 15.6.1 shall be treated as the sale of
a participation under Section 15.6.2.  The Company shall be deemed to have granted its consent to any
assignment requiring its consent hereunder unless the Company has expressly
objected to such assignment within three Business Days after notice thereof.


 


(b)                                 From
and after the date on which the conditions described above have been met, (i)
such Assignee shall be deemed automatically to have become a party hereto and,
to the extent that rights and obligations hereunder have been assigned to such
Assignee pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (ii) the assigning Lender, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment Agreement, shall be released from its rights (other than its
indemnification rights) and obligations hereunder.  Upon the request of the Assignee (and, as applicable, the
assigning Lender) pursuant to an effective Assignment Agreement, the Company
shall execute and deliver to the Administrative Agent for delivery to the
Assignee (and, as applicable, the assigning Lender) a Note in the principal
amount of the Assignee’s Pro Rata Share of the Revolving Commitment (and, as
applicable, a Note in the principal amount of the Pro Rata Share of the
Revolving Commitment retained by the assigning Lender.  Each such Note shall be dated the effective
date of such assignment.  Upon receipt
by the assigning Lender of such Note, the assigning Lender shall return to the
Company any prior Note held by it.


 


(c)                                  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


15.6.2                  Participations.  Any Lender may at any time sell to one or
more Persons participating interests in its Loans, Commitments or other
interests hereunder (any such Person, a “Participant”).  In the event of a sale by a Lender of a
participating interest to a Participant, (a)


 


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such Lender’s obligations hereunder shall remain
unchanged for all purposes, (b) the Company and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations hereunder and (c) all amounts payable by
the Company shall be determined as if such Lender had not sold such
participation and shall be paid directly to such Lender.  No Participant shall have any direct or
indirect voting rights hereunder except with respect to any event described in Section 15.1
expressly requiring the unanimous vote of all Lenders or, as applicable, all
affected Lenders.  Each Lender agrees to
incorporate the requirements of the preceding sentence into each participation
agreement which such Lender enters into with any Participant.  The Company agrees that if amounts
outstanding under this Agreement are due and payable (as a result of
acceleration or otherwise), each Participant shall be deemed to have the right
of set-off in respect of its participating interest in amounts owing under this
Agreement and with respect to any Letter of Credit or Existing Letter of Credit
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement; provided that such
right of set-off shall be subject to the obligation of each Participant to
share with the Lenders, and the Lenders agree to share with each Participant,
as provided in Section 7.5. 
The Company also agrees that each Participant shall be entitled to the
benefits of Section 7.6 or 8 as if it were a Lender (provided
that on the date of the participation no Participant shall be entitled to any
greater compensation pursuant to Section 7.6 or 8 than would
have been paid to the participating Lender on such date if no participation had
been sold and that each Participant complies with Section 7.6(d) as
if it were an Assignee).


 


15.7                           Register.  The
Administrative Agent shall maintain a copy of each Assignment Agreement
delivered and accepted by it and register (the “Register”) for the
recordation of names and addresses of the Lenders and the Commitment of each
Lender from time to time and whether such Lender is the original Lender or the
Assignee.  No assignment shall be
effective unless and until the Assignment Agreement is accepted and registered
in the Register. All records of transfer of a Lender’s interest in the Register
shall be conclusive, absent manifest error, as to the ownership of the
interests in the Loans. The Administrative Agent shall not incur any liability
of any kind with respect to any Lender with respect to the maintenance of the
Register.


 


15.8                           GOVERNING LAW.  THIS
AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.


 


15.9                           Confidentiality.  As required by federal law
and the Administrative Agent’s policies and practices, the Administrative Agent
may need to obtain, verify, and record  certain customer identification
information and documentation in connection with opening or maintaining
accounts, or establishing or continuing to provide services.  The Administrative Agent and each
Lender agree to use commercially reasonable efforts (equivalent to the efforts
the Administrative Agent or such Lender applies to maintain the confidentiality
of its own


 


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confidential information) to maintain as confidential
all information provided to them by any Loan Party or Guarantor and designated
as confidential, except that the Administrative Agent and each Lender may
disclose such information (a) to Persons employed or engaged by the
Administrative Agent or such Lender in evaluating, approving, structuring or
administering the Loans and the Commitments; (b) to any assignee or participant
or potential assignee or participant that has agreed to comply with the
covenant contained in this Section 15.9 (and any such assignee or
participant or potential assignee or participant may disclose such information
to Persons employed or engaged by them as described in clause (a) above); (c)
as required or requested by any federal or state regulatory authority or
examiner, or any insurance industry association, or as reasonably believed by
the Administrative Agent or such Lender to be compelled by any court decree,
subpoena or legal or administrative order or process; (d) as, on the advice of
the Administrative Agent’s or such Lender’s counsel, is required by law; (e) in
connection with the exercise of any right or remedy under the Loan Documents or
in connection with any litigation to which the Administrative Agent or such
Lender is a party; (f) to any nationally recognized rating agency that requires
access to information about a Lender’s investment portfolio in connection with
ratings issued with respect to such Lender; (g) to any Affiliate of the
Administrative Agent, the Issuing Lender or any other Lender who may provide
Bank Products to the Loan Parties or Guarantors; or (h) that ceases to be
confidential through no fault of the Administrative Agent or any Lender.  Notwithstanding the foregoing, the Company
consents to the publication by the Administrative Agent or any Lender of a
tombstone or similar advertising material relating to the financing
transactions contemplated by this Agreement, and the Administrative Agent
reserves the right to provide to industry trade organizations information
necessary and customary for inclusion in league table measurements.


 


15.10                     Severability.  Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.  All obligations of the
Company and rights of the Administrative Agent and the Lenders expressed herein
or in any other Loan Document shall be in addition to and not in limitation of
those provided by applicable law.


 


15.11                     Nature
of Remedies.  All Obligations of
the Company and rights of the Administrative Agent and the Lenders expressed
herein or in any other Loan Document shall be in addition to and not in
limitation of those provided by applicable law.  No failure to exercise and no delay in exercising, on the part of
the Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege.


 


15.12                     Entire
Agreement.  This Agreement,
together with the other Loan Documents, embodies the entire agreement and
understanding among the parties hereto and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written,


 


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relating to the subject matter hereof and thereof
(except as relates to the fees described in Section 5.3) and any
prior arrangements made with respect to the payment by the Company of (or any
indemnification for) any fees, costs or expenses payable to or incurred (or to
be incurred) by or on behalf of the Administrative Agent or the Lenders.


 


15.13                     Counterparts.  This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
Agreement.  Receipt of an executed
signature page to this Agreement by facsimile or other electronic transmission
shall constitute effective delivery thereof. 
Electronic records of executed Loan Documents maintained by the Lenders
shall deemed to be originals.


 


15.14                     Successors
and Assigns.  This Agreement
shall be binding upon the Company, the Lenders and the Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of the Company, the Lenders and the Administrative Agent and the
successors and assigns of the Lenders and the Administrative Agent.  No other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action
or claim in connection with, this Agreement or any of the other Loan Documents.  The Company may not assign or transfer any
of its rights or Obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.


 


15.15                     Captions.  Section captions used in this
Agreement are for convenience only and shall not affect the construction
of this Agreement.


 


15.16                     Patriot
Act Notice.  As required by
federal law and LaSalle’s or any other Lender’s policies and practices, LaSalle
or any other Lender may need to collect certain customer identification
information and documentation in connection with opening or maintaining
accounts or establishing or continuing to provide services.


 


15.17                     INDEMNIFICATION BY THE COMPANY.  IN CONSIDERATION OF THE EXECUTION AND
DELIVERY OF THIS AGREEMENT BY THE ADMINISTRATIVE AGENT, THE ISSUING LENDER AND
THE LENDERS AND THE AGREEMENT TO EXTEND THE COMMITMENTS PROVIDED HEREUNDER, THE
COMPANY HEREBY AGREES TO INDEMNIFY, EXONERATE AND HOLD THE ADMINISTRATIVE
AGENT, THE ISSUING LENDER EACH LENDER AND EACH OF THE OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES AND AGENTS OF THE ADMINISTRATIVE AGENT, THE ISSUING
LENDER AND EACH LENDER (EACH A “LENDER PARTY”) FREE AND HARMLESS FROM AND
AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES,
DAMAGES AND EXPENSES, INCLUDING ATTORNEY COSTS (COLLECTIVELY, THE “INDEMNIFIED
LIABILITIES”), INCURRED BY THE LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR
ARISING OUT OF, OR RELATING TO (A) ANY TENDER OFFER, MERGER, PURCHASE OF
CAPITAL SECURITIES, PURCHASE


 


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OF
ASSETS (INCLUDING THE RELATED TRANSACTIONS) OR OTHER SIMILAR TRANSACTION
FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, WITH THE PROCEEDS OF ANY OF THE LOANS, (B) THE USE, HANDLING,
RELEASE, EMISSION, DISCHARGE, TRANSPORTATION, STORAGE, TREATMENT OR DISPOSAL OF
ANY HAZARDOUS SUBSTANCE AT ANY PROPERTY OWNED OR LEASED BY ANY LOAN PARTY, (C)
ANY VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS AT ANY
PROPERTY OWNED OR LEASED BY ANY LOAN PARTY OR THE OPERATIONS CONDUCTED THEREON,
(D) THE INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE LOCATIONS AT WHICH ANY
LOAN PARTY OR THEIR RESPECTIVE PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR
INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES OR (E) THE EXECUTION,
DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE LENDER PARTY’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A FINAL, NONAPPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION. 
IF AND TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE UNENFORCEABLE
FOR ANY REASON, THE COMPANY HEREBY AGREES TO MAKE THE MAXIMUM CONTRIBUTION TO
THE PAYMENT AND SATISFACTION OF EACH OF THE INDEMNIFIED LIABILITIES WHICH IS
PERMISSIBLE UNDER APPLICABLE LAW.  ALL
OBLIGATIONS PROVIDED FOR IN THIS SECTION 15.17 SHALL SURVIVE
REPAYMENT OF THE LOANS, CANCELLATION OF THE NOTES, EXPIRATION OR TERMINATION OF
THE LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR ANY MODIFICATION, RELEASE OR
DISCHARGE OF, ANY OR ALL OF THE COLLATERAL DOCUMENTS AND TERMINATION OF THIS
AGREEMENT.


 


15.18                     Nonliability
of Lenders.  The relationship
between the Company on the one hand and the Lenders and the Administrative
Agent and the Issuing Lender on the other hand shall be solely that of borrower
and lender.  Neither the Administrative
Agent , the Issuing Lender, LaSalle as the issuer of the Existing Letters of
Credit nor any Lender has any fiduciary relationship with or duty to any Loan
Party or Guarantor arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the Loan Parties and
the Guarantors, on the one hand, and the Administrative Agent, the Issuing
Lender, LaSalle as the issuer of the Existing Letters of Credit and the
Lenders, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor.  Neither the
Administrative Agent, the Issuing Lender, LaSalle as the issuer of the Existing
Letters of Credit nor any Lender undertakes any responsibility to any Loan
Party or Guarantor to review or inform any Loan Party or Guarantor of any
matter in connection with any phase of any Loan Party’s or Guarantor’s business
or operations.  The Company agrees, on
behalf of itself and each other Loan Party and Guarantor, that neither the
Administrative Agent, the Issuing Lender, LaSalle as the issuer of the


 


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Existing Letters of Credit nor any Lender shall have liability
to any Loan Party or Guarantor (whether sounding in tort, contract or
otherwise) for losses suffered by any Loan Party or Guarantor in connection
with, arising out of, or in any way related to the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from
which recovery is sought.  NO LENDER PARTY OR LOAN PARTY OR GUARANTOR SHALL BE
LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR
OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION
TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY LENDER
PARTY OR LOAN PARTY OR GUARANTOR HAVE ANY LIABILITY WITH RESPECT TO, EXCEPT AS
A RESULT OF ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.  The Company acknowledges that it has been
advised by counsel in the negotiation, execution and delivery of this Agreement
and the other Loan Documents to which it is a party.  No joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Loan Parties, Guarantors and the Lenders


 


15.19                     FORUM
SELECTION AND CONSENT TO JURISDICTION.  ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE ADMINISTRATIVE
AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION.  THE COMPANY HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE.  THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS.  THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.


 


15.20                     WAIVER OF JURY TRIAL.  EACH OF THE
COMPANY, THE ADMINISTRATIVE AGENT, THE ISSUING LENDER, LASALLE AS THE ISSUER OF


 


92

















 


THE EXISTING LETTERS OF CREDIT AND
EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY
OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


[signature pages follow]


 


93

















 


The parties hereto have caused this Agreement
to be duly executed and delivered by their duly authorized officers as of the
date first set forth above.


 


	
   

  	
  STANDARD PARKING
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Daniel R. Meyer

  	
   

  
	
   

  	
  Name:

  	
  Daniel R. Meyer

  
	
   

  	
  Title:

  	
  Senior Vice President, Corporate Controller

  and Assistant Treasurer

  
						



 

















 


	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION,

  as Administrative Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Sean P. Silver

  	
   

  
	
   

  	
  Name:

  	
  Sean P. Silver

  
	
   

  	
  Title:

  	
  First Vice President

  
						



 

















 


	
   

  	
  WELLS FARGO BANK, N.A.,

  as Issuing Lender, Syndication Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Steven Nickas

  	
   

  
	
   

  	
  Name:

  	
  Steven Nickas

  
	
   

  	
  Title:

  	
  Assistant Vice President

  
						



 

















 


ANNEX A


 


LENDERS AND PRO RATA SHARES


 


	
  Lender

  	
   

  	
  Revolving

  Commitment Amount

  	
   

  	
  Pro Rata
  Share*/

  	
   

  
	
  LaSalle Bank National Association

  	
   

  	
  $

  	
  45,000,000

  	
  **/

  	
  50

  	
  %

  
	
  Wells
  Fargo Bank, N.A.

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  50

  	
  %

  
	
  [Other Lenders]

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TOTALS

  	
   

  	
  $

  	
  90,000,000

  	
   

  	
  100

  	
  %

  
								



 












*/                                     Carry
out to nine decimal places.


 


**/                              Includes
Swing Line Commitment Amount of $5,000,000.


 

















 


ANNEX B


 


ADDRESSES
FOR NOTICES


 


	
  STANDARD PARKING CORPORATION

  
	
  900 North Michigan Avenue

  
	
  Suite 1600

  	
   

  
	
  Chicago, Illinois 60611

  
	
  Attention:

  	
      Marc Baumann

  	
   

  
	
  Telephone:

  	
     (312) 274-2199

  	
   

  
	
  Facsimile:

  	
   (312) 646-6165

  	
   

  
						



 


 


	
  LASALLE BANK NATIONAL ASSOCIATION, as
  Administrative Agent, and a Lender

  
	
   

  
	
  Notices of
  Borrowing , Conversion, Continuation and Letter of Credit Issuance

  
	
   

  
	
  135 South LaSalle Street

  
	
  Chicago, Illinois 60603

  
	
  Attention:

  	
      Denise Christy, Commercial Loan Services

  	
   

  
	
  Telephone:

  	
    (312) 904-8210

  	
   

  
	
  Facsimile:

  	
   (312) 904-4448

  	
   

  
					



 


 


	
  All Other Notices

  
	
   

  
	
  135 South LaSalle Street

  
	
  Chicago, Illinois 60603

  
	
  Attention: Sean P. Silver

  	
   

  
	
  Telephone: (312) 904-9028

  	
   

  
	
  Facsimile:  (312) 904-0432

  	
   

  
	
   

  
	
   

  
	
  WELLS FARGO
  BANK, N.A., as Issuing Lender, Syndication Agent, and a
  Lender

  
	
   

  
	
  Notices of Borrowing , Conversion,
  Continuation and Letter of Credit Issuance

  
	
   

  
	
  1700 Lincoln, 3rd Floor

  
	
  Denver, Colorado 80203

  
	
  Attention:  Patricia Flores
  Del Real

  
	
  Telephone:  (303) 863-5183

  
	
  Facsimile:  (303) 863-2729

  



 


 

















 


	
  All Other Notices

  
	
   

  
	
  230 West Monroe

  
	
  Suite 2900

  
	
  Chicago, Illinois 60606

  
	
  Attention: Steven Nickas

  
	
  Telephone: (312) 762-9009

  
	
  Facsimile:  (312) 795-9388

  
	
   

  
	
  [OTHER LENDERS]

  



 

















 


EXHIBIT A


 


FORM OF


NOTE


 


	
   

  	
   

  	
                ,        

  
	
  $                    

  	
   

  	
  Chicago, Illinois

  



 


The undersigned,
for value received, promises to pay to the order of
                      
(the “Lender”) at the principal office of LaSalle Bank National
Association (the “Administrative Agent”) in Chicago, Illinois the
aggregate unpaid amount of all Loans made to the undersigned by the Lender
pursuant to the Credit Agreement referred to below (as shown on the
schedule attached hereto (and any continuation thereof) or in the records
of the Lender), such principal amount to be payable on the dates set forth in
the Credit Agreement.


 


The undersigned
further promises to pay interest on the unpaid principal amount of each Loan
from the date of such Loan until such Loan is paid in full, payable at the
rate(s) and at the time(s) set forth in the Credit Agreement.  Payments of both principal and interest are
to be made in lawful money of the United States of America.


 


This Note
evidences indebtedness incurred under, and is subject to the terms and
provisions of, the Credit Agreement, dated as of [Date of Agreement] (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”; terms not otherwise defined herein are used herein as defined
in the Credit Agreement), among the undersigned, certain financial institutions
(including the Lender) and the Administrative Agent, to which Credit Agreement
reference is hereby made for a statement of the terms and provisions under
which this Note may or must be paid prior to its due date or its due date
accelerated.


 


This Note is made
under and governed by the laws of the State of Illinois applicable to contracts
made and to be performed entirely within such State.


 


	
   

  	
  [COMPANY
  ALL CAPS]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 

















 


EXHIBIT B


 


FORM
OF COMPLIANCE CERTIFICATE


 


To:                                                                              LaSalle
Bank National Association, as Administrative Agent


 


Please refer to
the Credit Agreement dated as of [Date of Agreement]  (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”) among [Company]
(the “Company”), various financial institutions and LaSalle Bank
National Association, as Administrative Agent. 
Terms used but not otherwise defined herein are used herein as defined
in the Credit Agreement.


 


I.                                                                                         Reports.  Enclosed herewith is a copy of the [annual
audited/quarterly/monthly] report of the Company as at
                          ,
       (the “Computation Date”), which
report fairly presents in all material respects the financial condition and
results of operations [(subject to the absence of footnotes and to normal
year-end adjustments)] of the Company as of the Computation Date and
has been prepared in accordance with GAAP consistently applied.


 


II.                                                                                     Financial
Tests.  The Company hereby certifies
and warrants to you that the following is a true and correct computation as at
the Computation Date of the following ratios and/or financial restrictions
contained in the Credit Agreement:


 


[REVISE AS APPROPRIATE]


 


	
  A.

  	
   

  	
  Section 11.13.1
  - Minimum Fixed Charge Coverage Ratio

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  EBITDA

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  Income taxes paid

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
  Unfinanced Capital Expenditures

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Sum of (2) and (3)

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.

  	
  Remainder of (1) minus (4)

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.

  	
  Interest Expense

  	
   

  
	
   

  	
   

  	
   

  	
  (net of cash interest income)

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.

  	
  Required payments of

  	
   

  
	
   

  	
   

  	
   

  	
  principal of Funded Debt

  	
   

  
	
   

  	
   

  	
   

  	
  (including Term Loans but

  	
   

  
	
   

  	
   

  	
   

  	
  excluding Revolving Loans)

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  8.

  	
  cash dividends

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.

  	
  Sum of (6) and (7)

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.

  	
  Ratio of (5) to (9)

  	
          to 1

  



 

















 


	
   

  	
   

  	
  11.

  	
  Minimum Required

  	
          to 1

  
	
   

  	
   

  	
   

  
	
  B.

  	
   

  	
  Section 11.13.2
  - Maximum Senior Debt to EBITDA Ratio

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Senior Debt

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  EBITDA

  	
  $                

  
	
   

  	
   

  	
   

  	
  (from Item A(1) above)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
  Ratio of (1) to (2)

  	
          to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Maximum allowed

  	
          to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.

  	
   

  	
  Section 11.13.3
  - Maximum Total Debt to EBITDA Ratio

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Total Debt

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  EBITDA

  	
  $                

  
	
   

  	
   

  	
   

  	
  (from Item A(1) above)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.

  	
  Ratio of (1) to (2)

  	
          to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.

  	
  Maximum allowed

  	
          to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.

  	
   

  	
  Section 11.13.4
  – Net Capital Expenditures

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.

  	
  Net Capital Expenditures for the

  	
   

  
	
   

  	
   

  	
   

  	
  Fiscal Year

  	
  $                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.

  	
  Maximum Permitted Net Capital

  	
   

  
	
   

  	
   

  	
   

  	
  Expenditures

  	
  $                

  



 


The Company
further certifies to you that no Event of Default or Unmatured Event of Default
has occurred and is continuing.


 


The Company has
caused this Certificate to be executed and delivered by its duly authorized
officer on
                 ,
         .


 


	
   

  	
  [COMPANY ALL CAPS]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 

















 


EXHIBIT C


 


FORM OF


ASSIGNMENT AGREEMENT


 


Date:                             


 


To:                              [Company
Lower Case]


 


and


 


LaSalle Bank National Association, as Administrative Agent


 


Re:                               Assignment
under the Credit Agreement referred to below


 


Gentlemen and Ladies:


 


Please refer to Section 15.6.1 of the Credit Agreement dated as of
[Date of Agreement] (as amended or otherwise modified from time to time, the “Credit
Agreement”) among Standard Parking Corporation (the “Company”),
various financial institutions and LaSalle Bank National Association, as
administrative agent (in such capacity, the “Administrative Agent”).  Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.


 


                     
(the “Assignor”) hereby sells and assigns, without recourse, to
           (the “Assignee”),
and the Assignee hereby purchases and assumes from the Assignor, that interest
in and to the Assignor’s rights and obligations under the Credit Agreement as
of the date hereof equal to     % of all of the Loans, of
the participation interests in the Letters of Credit, Existing Letters of
Credit and of the Commitments, such sale, purchase, assignment and assumption
to be effective as of
          ,
      , or such later date on which the Company
and the Administrative Agent shall have consented hereto (the “Effective
Date”).  After giving effect to such
sale, purchase, assignment and assumption, the Assignee’s and the Assignor’s
respective Percentages for purposes of the Credit Agreement will be as set
forth opposite their names on the signature pages hereof.


 


The Assignor hereby instructs the Administrative Agent to make all
payments from and after the Effective Date in respect of the interest assigned
hereby directly to the Assignee.  The
Assignor and the Assignee agree that all interest and fees accrued up to, but
not including, the Effective Date are the property of the Assignor, and not the
Assignee.  The Assignee agrees that,
upon receipt of any such interest or fees, the Assignee will promptly remit the
same to the Assignor.


 

















 


The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim.


 


The Assignee represents and warrants to the Company and the
Administrative Agent that, as of the date hereof, the Company will not be
obligated to pay any greater amount under Section 7.6 or 8 of the Credit
Agreement than the Company is obligated to pay to the Assignor under such
Section.  [The Assignee has delivered,
or is delivering concurrently herewith, to the Company and the Administrative
Agent the forms required by Section 7.6 of the Credit Agreement.] [INSERT
IF ASSIGNEE IS ORGANIZED UNDER THE LAWS OF A JURISDICTION OTHER THAN THE UNITED
STATES OF AMERICA OR A STATE THEREOF.] 
The [Assignee/Assignor] [Borrower] shall pay the fee payable to the
Administrative Agent pursuant to Section 15.6.1.


 


The Assignee hereby confirms that it has received a copy of the Credit
Agreement.  Except as otherwise provided
in the Credit Agreement, effective as of the Effective Date:


 


(a)                                  the
Assignee (i) shall be deemed automatically to have become a party to the Credit
Agreement and to have all the rights and obligations of a “Lender” under the
Credit Agreement as if it were an original signatory thereto to the extent
specified in the second paragraph hereof; and (ii) agrees to be bound by the
terms and conditions set forth in the Credit Agreement as if it were an
original signatory thereto; and


 


(b)                                 the
Assignor shall be released from its obligations under the Credit Agreement to
the extent specified in the second paragraph hereof.


 


The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loans and Commitment:


 


(A)                              Institution
Name:


 


Address:


 


Attention:


 


Telephone:


 


Facsimile:


 


(B)                                Payment
Instructions:


 


This Assignment shall be governed by and construed in accordance with
the laws of the State of Illinois


 

















 


Please evidence your receipt hereof and your consent to the sale,
assignment, purchase and assumption set forth herein by signing and returning
counterparts hereof to the Assignor and the Assignee.


 


 


	
  Percentage =     %

  	
   

  	
  [ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Adjusted Percentage =     %

  	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 


 


ACKNOWLEDGED AND CONSENTED TO


 


this          day of
              ,
        


 


	
  LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND CONSENTED TO

  	
   

  
	
  this    day of
              ,

  	
   

  
	
   

  	
   

  
	
  STANDARD PARKING CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
						



 

















 


EXHIBIT D


 


FORM OF NOTICE OF BORROWING


 


To:                                                                              LaSalle
Bank National Association, as Administrative Agent


 


Please refer to
the Credit Agreement dated as of [Date of Agreement] (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Standard Parking Corporation
(the “Company”), various financial institutions and LaSalle Bank
National Association, as Administrative Agent. 
Terms used but not otherwise defined herein are used herein as defined
in the Credit Agreement.


 


The undersigned
hereby gives irrevocable notice, pursuant to Section 2.2.2 of the
Credit Agreement, of a request hereby for a borrowing as follows:


 


(ii)                                  The
requested borrowing date for the proposed borrowing (which is a Business Day)
is
              ,
        .


 


(iii)                               The
aggregate amount of the proposed borrowing is
$                     .


 


(iv)                              The
type of Revolving Loans comprising the proposed borrowing are [Base Rate]
[LIBOR] Loans.


 


(v)                                 The
duration of the Interest Period for each LIBOR Loan made as part of the
proposed borrowing, if applicable, is
                   
months (which shall be 1, 2 or 3 months).


 


The undersigned
hereby certifies that on the date hereof and on the date of borrowing set forth
above, and immediately after giving effect to the borrowing requested hereby:
(i) there exists and there shall exist no Unmatured Event of Default or Event
of Default under the Credit Agreement; and (ii) each of the representations and
warranties contained in the Credit Agreement and the other Loan Documents is
true and correct as of the date hereof, except to the extent that such
representation or warranty expressly relates to another date and except for
changes therein expressly permitted or expressly contemplated by the Credit
Agreement.


 


The Company has
caused this Notice of Borrowing to be executed and delivered by its officer
thereunto duly authorized on
                 ,
           .


 


	
   

  	
  STANDARD PARKING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 

















 


EXHIBIT E


 


FORM OF NOTICE OF CONVERSION/CONTINUATION


 


To:                                                                              LaSalle
Bank National Association, as Administrative Agent


 


Please refer to
the Credit Agreement dated as of [Date of Agreement] (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”)
among Standard Parking Corporation (the “Company”), various financial
institutions and LaSalle Bank National Association, as Administrative
Agent.  Terms used but not otherwise
defined herein are used herein as defined in the Credit Agreement.


 


The undersigned
hereby gives irrevocable notice, pursuant to Section 2.2.3 of the
Credit Agreement, of its request to:


 


(c)                                  on
[    date    ] convert
$[            ]of
the aggregate outstanding principal amount of the
[            ]
Loan, bearing interest at the
[            ]
Rate, into a(n)
[            ] Loan
[and, in the case of a LIBOR Loan, having an Interest Period of [            ]
month(s)];


 


(d)                                 [           on
[    date    ] continue
$[            ]of
the aggregate outstanding principal amount of the
[            ]
Loan, bearing interest at the LIBOR Rate, as a LIBOR Loan having an Interest
Period of
[            ] month(s)].


 


The undersigned hereby represents and warrants that all of the
conditions contained in Section 12.2 of the Credit Agreement have
been satisfied on and as of the date hereof, and will continue to be satisfied
on and as of the date of the conversion/continuation requested hereby, before
and after giving effect thereto.


 


The Company has
caused this Notice of Conversion/Continuation to be executed and delivered by
its officer thereunto duly authorized on
                       ,
            .


 


	
   

  	
  STANDARD PARKING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title: