WAIVER
AGREEMENT dated as of August 5, 2009 (this “
Waiver Agreement ”), among HOLLIDAY FENOGLIO FOWLER,
L.P., a Texas limited partnership (the “ Borrower
”), the lenders party to the Credit Agreement (as defined
below) (collectively, the “ Lenders ”), and BANK
OF AMERICA, N.A., as Administrative Agent (the “
Administrative Agent ”).
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(1)
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The
Borrower, the Lenders signatory thereto and the Administrative
Agent are parties to an Amended and Restated Credit Agreement,
dated as of February 5, 2007 (the “ Original
Agreement ”), as amended by that certain First Amendment
to Amended and Restated Credit Agreement dated as of
October 30, 2007 (the “ First Amendment ”)
and that certain Second Amendment to Amended and Restated Credit
Agreement, dated as of June 27, 2008 (the “ Second
Amendment ”). The Original Agreement as amended by the
First Amendment and the Second Amendment, is referred to in this
Waiver Agreement as the “ Credit Agreement ”.
Capitalized terms used but not defined in this Waiver Agreement
shall have the meanings assigned to them in the Credit
Agreement.
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(2)
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The
Borrower has informed the Lenders that for the Reference Periods
ended June 30, 2009 and that will end on September 30, 2009
and December 31, 2009, it is anticipated that the Borrower
will not maintain levels of either its Consolidated Leverage Ratio
or its Consolidated Fixed Charge Coverage Ratio (the “
Financial Covenants ”) as required under
Section 7.18 of the Credit Agreement.
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(3)
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The
failure to meet the Financial Covenants as required under the
Credit Agreement would result in an Event of Default.
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(4)
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The
Borrower has requested the Lenders waive the requirements set forth
in Section 7.18(a) and (b) of the Credit Agreement for
the Reference Period ended June 30, 2009, and for the
Reference Periods ending September 30, 2009 and
December 31, 2009.
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(5)
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The
Required Lenders are willing to grant the waiver described in
Preliminary Statement (4) above on the terms, and to the
extent, expressly set forth in this Waiver Agreement.
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NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree
as follows:
SECTION 1.01.
Waiver . For the Reference Period ended June 30, 2009
and for the Reference Periods that will end on September 30,
2009 and December 31, 2009 only , except as set forth
in Section 1.02 below (and subject to the terms of
Section 1.04 below), the Required Lenders hereby waive the
requirement of Section 7.18 of the Credit Agreement that
the
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Borrower
maintain a Consolidated Leverage Ratio of equal to or less than
3.00 to 1.0, and maintain a Consolidated Fixed Charge Coverage
Ratio of equal to or greater than 1.65 to 1.0. The waiver described
in this Section 1.01 does not apply to any period other than
the Reference Periods ending June 30, 2009, September 30,
2009 and December 31, 2009, respectively. For the sake of
clarity, at all times at which Borrower shall have no Borrowings
outstanding as a result of the terms and provisions of
Section 1.02 below, (i) the Required Lenders hereby waive
any requirement that Borrower be in compliance with
Section 7.18 on a Pro Forma Basis both before and after giving
effect to any proposed Restricted Payment that would otherwise be
permitted pursuant to Section 7.06, and (ii) the Required
Lenders waive the requirement that the Borrower be in compliance
with Section 7.18 for purposes of exercising the Extension
Option as set forth in Section 2.12.
SECTION 1.02.
Conditions to Future Extensions of Credit . Notwithstanding
the waiver granted pursuant to Section 1.01 above, no Lender
shall have any further obligation to make Credit Extensions under
the Credit Agreement unless and until (i) the Borrower
complies with the terms of Section 7.18(a) and (b) for
the Reference Period most recently ended immediately preceding the
date on which such Borrowing will occur and (ii) the Borrower
satisfies all other terms and conditions of Section 4.02 of
the Credit Agreement. Once all conditions to further Credit
Extensions have been satisfied, then all obligat
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