EXHIBIT 10.4
SECOND AMENDMENT AND WAIVER
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SECOND AMENDMENT AND WAIVER (this "Amendment"), dated as of
March 26, 2001, among HQ GLOBAL HOLDINGS, INC., a Delaware corporation (the
"Parent"), HQ GLOBAL WORKPLACES, INC., a Delaware corporation (the "Borrower"),
the financial institutions party to the Credit Agreement referred to below (the
"Banks"), ING (U.S.) CAPITAL LLC, as managing agent (the "Managing Agent"),
BANKERS TRUST COMPANY, as syndication agent and co-arranger (the "Syndication
Agent"), CITICORP REAL ESTATE, INC., as documentation agent and co-arranger (the
"Documentation Agent"), and BNP PARIBAS (formerly known as Paribas) as
administrative agent and arranger (the "Administrative Agent" and, together with
the Managing Agent, the Syndication Agent and the Documentation Agent, the
"Agents" and each, an "Agent"). All capitalized terms used herein and not
otherwise defined herein shall have the respective meanings provided such terms
in the Credit Agreement referred to below.
W I T N E S S E T H :
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WHEREAS, the Parent, the Borrower, the Banks and the Agents
are parties to the Credit Agreement, dated as of January 16, 1997, amended and
restated as of November 6, 1998, further amended and restated as of August 3,
1999, and further amended and restated as of May 31, 2000 (as so amended and
restated and as further amended, modified, restated and/or supplemented through,
but not including, the date hereof, the "Credit Agreement");
WHEREAS, the Parent and the Borrower have requested, and the
Agents and the Banks have agreed, to the amendment and waiver provided herein on
the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. The Banks hereby waive any Event of Default that has arisen
under the Credit Agreement solely as a result of the Borrower and its
Subsidiaries failing to be in compliance with the requirements of Section 8.08
of the Credit Agreement for the fiscal year of the Parent ended December 31,
2000. The preceding waiver is not a waiver of compliance with the provisions
referred to above in any other respect or with respect to any accounting period
other than that specifically referred to and such waiver is subject to
satisfaction of the condition set forth in Paragraph 6 below.
2. Section 8.08(a) of the Credit Agreement is hereby amended
by inserting the text ", but excluding the amount of any type of tenant
improvement allowances that (I) are treated as expenditures by the Borrower or
any of its Subsidiaries in accordance with generally accepted accounting
principles and (II) are either (A) paid directly by a landlord of either the
Borrower's or a Subsidiary's Leasehold or (B) paid by the Borrower or any of its
Subsidiaries and subsequently reimbursed by a landlord of the Borrower's or such
Subsidiary's Leasehold" at the end of the first parenthetical in said Section.
3. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
4. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
5. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
6. This Amendment shall become effective on the date (the
"Second Amendment Effective Date") when the Parent, the Borrower and the
Required Banks shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at the Notice Office.
7. In order to induce the Banks to enter into this Amendment,
the Parent and the Borrower hereby represent and warrant that (i) no Default or
Event of Default exists as of the Second Amendment Effective Date, after giving
effect to this Amendment, and (ii) on the Second Amendment Effective Date, both
before and after giving effect to this Amendment, all representations and
warranties contained in the Credit Agreement and in the other Credit Documents
are true and correct in all material respects (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be true and correct in all material respects only as of such
specified date).
8. From and after the Second Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
-2-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
HQ GLOBAL HOLDINGS, INC.
By:
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Name:
Title:
HQ GLOBAL WORKPLACES, INC.
By:
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Name:
Title:
BNP PARIBAS, Individually and as
Administrative Agent
By:
--------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, Individually
and as Syndication Agent
By:
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Name:
Title:
CITICORP REAL ESTATE INC., Individually
and as Documentation Agent
By:
-------------------------------------
Name:
Title:
ING (U.S.) CAPITAL LLC, Individually and
as Managing Agent
By:
-------------------------------------
Name:
Title:
FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc.,
its Agent/Manager
By:
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Name:
Title:
IBJ WHITEHALL BANK & TRUST
COMPANY (formerly, IBJ Xxxxxxxx Bank
& Trust Company)
By:
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Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its investment manager
By:
-------------------------------------
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By:
-------------------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By:
---------------------------------------
Name:
Title:
BHF (USA) CAPITAL CORPORATION
By:
---------------------------------------
Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.
By:
--------------------------------------
Name:
Title:
By:
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Name:
Title:
XXXXXX FINANCIAL, INC.
By:
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Name:
Title:
BALANCED HIGH-YIELD FUND II LIMITED
By: BHF (USA) Capital Corporation,
as attorney-in-fact
By:
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Name:
Title:
SRF TRADING, INC.
By:
---------------------------------------
Name:
Title:
XXXXX XXX & XXXXXXX CLO1 LTD.,
By: Xxxxx Xxx & Farnham Incorporated,
as Portfolio Manager
By:
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Name:
Title:
KZH ING-2 LLC
By:
---------------------------------------
Name:
Title:
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING Capital Advisors LLC,
as Investment Manager
By:
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Name:
Title:
THE PROVIDENT BANK
By:
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Name:
Title:
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management, as
Investment Manager
By:
---------------------------------------
Name:
Title:
LIBERTY-XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND, by Xxxxx Xxx
& Farnham Incorporated As Advisor
By:
-------------------------------------
Name:
Title:
SRF 2000 LLC
By:
-------------------------------------
Name:
Title:
SRF 2000 LLC
By:
-------------------------------------
Name:
Title:
LIBERTY-XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND
By:
-------------------------------------
Name:
Title:
