Exhibit 10.01
CREDIT AGREEMENT
DATED AS OF September 6, 1996
BY AND AMONG
LASALLE PARTNERS MANAGEMENT LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
LASALLE PARTNERS LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP,
THE BANKS PARTY HERETO,
AND
XXXXXX TRUST AND SAVINGS BANK
AS AGENT
TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I DEFINITIONS.................................................
ARTICLE II THE CREDITS.................................................
Section 2.1. Facility A.............................................
Section 2.2. Facility B.............................................
Section 2.3. Facility C.............................................
Section 2.4. Letters of Credit......................................
Section 2.5. Rate Options...........................................
Section 2.6. Optional Principal Payments............................
Section 2.7. Reduction of Commitments...............................
Section 2.8. Disbursement of Loans..................................
Section 2.9. Method of Selecting Rate Options and Interest Periods..
Section 2.10. Minimum Amount of Each Loan............................
Section 2.11. Rate After Maturity....................................
Section 2.12. Place and Application of Payments......................
Section 2.13. The Notes..............................................
Section 2.14. Applicable Interest Rates..............................
Section 2.15. Lending Installation...................................
Section 2.16. Mandatory Prepayments..................................
Section 2.17. Fees...................................................
Section 2.18. Discretionary Extension of Revolving Credit
Termination Date.....................................
ARTICLE III CHANGE IN CIRCUMSTANCES.....................................
Section 3.1. Yield Protection.......................................
Section 3.2. Change of Law..........................................
Section 3.3. Unavailability of Deposits or Inability to Ascertain,
or Inadequacy of, IBOR...............................
Section 3.4. Funding Indemnity......................................
Section 3.5. Lender Certificate.....................................
ARTICLE IV CONDITIONS PRECEDENT........................................
Section 4.1. Effectiveness of Agreement.............................
Section 4.2. Each Loan..............................................
Section 4.3. New Supporting Subsidiary..............................
ARTICLE V REPRESENTATIONS AND WARRANTIES..............................
Section 5.1. Existence and Standing.................................
Section 5.2. Authorization and Validity.............................
Section 5.3. Compliance with Laws and Contracts.....................
Section 5.4. Financial Statements...................................
Section 5.5. Material Adverse Change................................
Section 5.6. Taxes..................................................
Section 5.7. Litigation.............................................
Section 5.8. Affiliates.............................................
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Section 5.9. ERISA..................................................
Section 5.10. Accuracy of Information................................
Section 5.11. Regulation U...........................................
Section 5.12. Material Agreements....................................
Section 5.13. Approvals..............................................
Section 5.14. Subordinated Indebtedness..............................
ARTICLE VI COVENANTS...................................................
Section 6.1. Financial Reporting....................................
Section 6.2. Use of Proceeds........................................
Section 6.3. Notice of Default......................................
Section 6.4. Conduct of Business....................................
Section 6.5. Taxes..................................................
Section 6.6. Insurance..............................................
Section 6.7. Compliance with Laws...................................
Section 6.8. Maintenance of Properties..............................
Section 6.9. Inspection.............................................
Section 6.10. Indebtedness...........................................
Section 6.11. Sale of Assets.........................................
Section 6.12. Sale and Leaseback.....................................
Section 6.13. Investments and Acquisitions...........................
Section 6.14. Guaranties.............................................
Section 6.15. Liens..................................................
Section 6.16. Rentals................................................
Section 6.17. Net Worth..............................................
Section 6.18. Letters of Credit......................................
Section 6.19. Related Person.........................................
Section 6.20. EBITDA.................................................
Section 6.21. Fixed Charge Coverage Ratio............................
Section 6.22. Maximum Leverage Ratio.................................
Section 6.23. Distributions..........................................
Section 6.24. Long-Term Receivables..................................
Section 6.25. The Dai-Ichi Indebtedness..............................
Section 6.26. New Supporting Subsidiaries............................
Section 6.27. Additional Co-Investments..............................
ARTICLE VII DEFAULTS....................................................
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES..............
Section 8.1. Non-Bankruptcy Defaults................................
Section 8.2. Bankruptcy Defaults....................................
Section 8.3. Collateral for Undrawn Letters of Credit...............
Section 8.4. Preservation of Rights.................................
ARTICLE IX THE AGENT...................................................
Section 9.1. Appointment and Authorization..........................
Section 9.2. Rights as a Lender.....................................
Section 9.3. Standard of Care.......................................
Section 9.4. Costs and Expenses.....................................
Section 9.5. Indemnity..............................................
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ARTICLE X GENERAL PROVISIONS.........................................
Section 10.1. Successors and Assigns.................................
Section 10.2. Survival of Representations............................
Section 10.3. Governmental Regulation................................
Section 10.4. Taxes..................................................
Section 10.5. Choice of Law..........................................
Section 10.6. Headings...............................................
Section 10.7. Entire Agreement.......................................
Section 10.8. Expenses; Indemnification..............................
Section 10.9. Accounting.............................................
Section 10.10. Severability of Provisions.............................
Section 10.11. Setoff.................................................
Section 10.12. Waivers, Modifications, and Amendments.................
Section 10.13. Assignment Agreements..................................
Section 10.14. Participants...........................................
Section 10.15. Joint and Several......................................
Section 10.16. Giving Notice..........................................
Section 10.17. Limitation of Liability................................
Section 10.18. Counterparts...........................................
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Opinion
Exhibit C-1 - Form of Borrowers' Security Agreement
Exhibit C-2 - Form of Supporting Subsidiaries' Security Agreement
Exhibit D - Form of Pledge Agreement
Exhibit E - Form of Guaranty Agreement
Exhibit F - Form of Compliance Certificate
Exhibit G - Form of Borrowing Base Certificate
Exhibit H - [Intentionally Omitted]
Exhibit I - Form of Collateral Assignment of Partnership Interests
Exhibit J - Form of Subsidiary Collateral Assignment of Partnership
Interests
SCHEDULES
Schedule I - List of Supporting Subsidiaries
Schedule II - List of Affiliates
Schedule III - List of Indebtedness
Schedule IV - List of Investments
Schedule V - List of Liens
Schedule VI - Existing L/Cs
Schedule VII - Co-Investments
Schedule VIII - Initial Facility B Loans
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CREDIT AGREEMENT
This Agreement, dated as of September 6, 1996, is among LaSalle Partners
Management Limited Partnership, a Delaware limited partnership, LaSalle Partners
Limited Partnership, a Delaware limited partnership, the banks from time to time
party hereto (each a "Lender" and, collectively, the "Lenders") and Xxxxxx Trust
and Savings Bank, as agent (the "Agent").
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related transactions,
consummated after the date of this Agreement, by which a Borrower or any of the
Affiliates (i) acquires any going business or all or substantially all of the
assets of any firm, corporation or division thereof, whether through purchase of
assets, merger or otherwise, or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions) at
least a majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors (other than securities
having such power only by reason of the happening of a contingency) or at least
a majority of the partnership interests of any partnership.
"Adjusted IBOR Rate" means a rate per annum determined pursuant to the
following formula:
Adjusted IBOR Rate = IBOR
-----------------------
100%-IBOR Reserve Percentage
"Affiliate" means any corporation (including any Subsidiary), partnership,
limited liability company or trust of which one or more of the Borrowers owns,
directly or indirectly, a majority of the securities which have ordinary voting
power for the election of directors (in the case of a corporation), a majority
of the partnership interests (in the case of a partnership), a majority of
ownership (in the case of a limited liability company) or a majority of the
beneficial interests (in the case of a trust).
"Agent" means Xxxxxx Trust and Savings Bank and any successor pursuant to
Section 9.1 hereof.
"Agreement" means this Credit Agreement, as it may be amended from time to
time.
"Agreement Accounting Principles" means generally accepted principles of
accounting from time to time in effect.
"Application" is defined in Section 2.4(d) hereof.
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"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Person" means such individual person or persons as may be
designated by the Borrowers in writing to the Agent from time to time to act as
an Authorized Person hereunder.
"Borrower" means each of LPL and LPML.
"Borrowers' Security Agreement" means the Security Agreement dated as of
September 6, 1996 in the form of Exhibit C-1 hereto.
"Borrowing" means the total of loans of a single type made to a Borrower by
all of the Lenders on a single date and for a single Interest Period.
Borrowings of Loans under a Facility are made ratably by the Lenders according
to their respective Commitments under that Facility.
"Borrowing Base" means, as of any time it is to be determined, 90% of the
then outstanding unpaid amount of Eligible Receivables.
"Borrowing Date" means a date on which a Borrowing is made hereunder.
"Borrowing Notice" is defined in Section 2.9.
"Business Day" means (i) with respect to borrowing, payment or rate
selection of Eurodollar Loans, a day on which banks are open for business in
Chicago and on which dealings in U.S. Dollars are carried on in the applicable
foreign interbank market and (ii) for all other purposes, a day on which banks
are open for business in Chicago.
"Capitalized Lease" of a Person means any lease of property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person, prepared in accordance with
Agreement Accounting Principles.
"Collateral" means all properties, rights, interests and privileges from
time to time subject to the Liens granted the Agent for the benefit of the
Lenders by the Security Agreements.
"Collateral Assignment of Partnership Interest" means the Collateral
Assignment of Partnership Interest dated as of September 6, 1996 in the form of
Exhibit I hereto.
"Combined Equity" means, as at any date of determination, the sum of the
consolidated owner's equity of LPML and its Subsidiaries and the consolidated
owner's equity of LPL and its Subsidiaries, determined in accordance with
Agreement Accounting Principles, plus
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the principal amount of the Dai-Ichi Indebtedness outstanding at such time.
"Combined Funded Indebtedness" means, as at any date of determination, the
sum of all Indebtedness described in clause (i) of the definition of
Indebtedness (x) of LPML and its Subsidiaries and (y) of LPL and its
Subsidiaries determined, in each case, on a consolidated basis in accordance
with Agreement Accounting Principles.
"Combined Net Income" means the sum of the consolidated Net Incomes of each
of the Borrowers (excluding income by reason of a dividend or Distribution from
the other Borrower).
"Commitment" means any Facility A Commitment, Facility B Commitment, or
Facility C Commitment and "Commitments" means any or all of the foregoing, as
the context may require.
"Dai-Ichi Entity" means Dai-ichi Life (U.S.A.), Inc. and any of its
affiliates.
"Dai-Ichi Indebtedness" means the sum of (i) LPL's obligations to DSA-LSPL,
Inc. evidenced by those two certain promissory notes each dated August 27, 1996
from LPL to DSA-LSPL, Inc. in the original principal amounts of $24,341,091 and
$4,878,895.96, respectively, of which $24,341,091 and $4,878,895.96,
respectively, are outstanding on the date hereof, and (ii) LPML's obligations to
DSA-LSAM, Inc. evidenced by those two certain promissory notes, each dated
August 27, 1996, from LPML to DSA-LSAM, Inc. in the original principal amounts
of $6,658,909 and $1,334,704.39, respectively of which $6,658,909 and
$1,334,704.39, respectively, are outstanding on the date hereof. It is
understood that such promissory notes so evidence obligations owed to DSA-LSPL,
Inc. and DSA-LSAM, Inc. and shall only constitute "Dai-Ichi Indebtedness" so
long as such promissory notes are owed to such Persons.
"Default" means an event described in Section 7.
"DEL-LPAML" means DEL-LPAML Limited Partnership, a Delaware limited
partnership.
"DEL-LPL" means DEL-LPL Limited Partnership, a Delaware limited
partnership.
"Distributions" means the payment or distribution of any asset of a
partnership to any of its partners, whether from capital, income or otherwise,
excepting, however, compensation and reimbursements that are paid to partners
and are unrelated to their partnership interests.
"Domestic Rate" means, for any day, the greater of:
(A) the rate of interest announced by the Agent from time to time as
its prime commercial rate, as in effect on such day; and
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(B) the sum of (x) the rate determined by the Agent to be the average
(rounded upwards, if necessary, to the next higher 1/100 of 1%) of the
rates per annum quoted to the Agent at approximately 10:00 a.m. (Chicago
time) (or as soon thereafter as is practicable) on such day (or, if such
day is not a Business Day, on the immediately preceding Business Day) by
two or more Federal funds brokers selected by the Agent for the sale to the
Agent at face value of Federal funds in an amount equal or comparable to
the principal amount owed to the Agent for which such rate is being
determined, plus (y) 1/2 of 1% (0.50%).
"Domestic Rate Loan" means a Loan which bears interest at the rate
specified in Section 2.14(a) hereof.
"Domestic Rate Interest Period" means, with respect to a Domestic Rate
Loan, a period commencing on a Business Day selected by the Borrower pursuant to
this Agreement (on which Business Day interest on such Domestic Rate Loan
commences accruing at the Domestic Rate) and ending on the day on which such
Domestic Rate Loan is paid in full.
"EBITDA" means, with reference to any period, Net Income for such period
plus all amounts deducted in arriving at such Net Income amount in respect of
(i) Interest Expense for such period, plus (ii) federal, state and local income
taxes for such period, plus (iii) all amounts properly charged for depreciation
and amortization of intangible assets during such period on the books of the
Borrowers.
"Eligible Receivables" means, on any given day, the total of all
Receivables included in the most recent certificate furnished under Section
6.1(d) hereof, and satisfying the following requirements: (a) the Agent has a
duly perfected first priority security interest in each such Receivable under
the Security Agreements; (b) each such Receivable represents moneys due solely
for services rendered in the ordinary course of business; (c) except as
otherwise provided in the next sentence of this definition, each such Receivable
is unconditionally due and payable, has been billed to the Person obligated to
pay the same or if not yet billed has remained unbilled for not more than 10
days following the end of the fiscal quarter during which such services were
performed and is due and payable in full not later than one year after such day,
provided, however, that, if such Receivable is due and payable later than one
year, but not later than 18 months, after such day, 75% (or such higher
percentage as the Agent may approve in its discretion) of the amount of such
Receivable may be included in the Eligible Receivables (subject to the
provisions of Section 6.24); (d) as of such day, no such Receivable is more than
120 days past due or is payable by a Person owing Receivables of which more than
15% are more than 120 days past due; (e) if the Person obligated to pay such
Receivable is a Related Person, the transaction giving rise to such Receivable
is in compliance with Section 6.19 hereof; (f) no Person obligated to pay any
such
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Receivable is the subject of a petition for bankruptcy or any other petition for
relief under the Bankruptcy Code, or has made an assignment for the benefit of
creditors, or has suspended its business operations, become insolvent, or
suffered a receiver or a trustee to be appointed for any of its assets or
affairs or has notified a Borrower, a Supporting Subsidiary or any Affiliate
that it will not or is not obligated to pay such Receivable in full (provided
that if such obligor admits liability for a portion of such Receivable, such
portion may, subject to satisfaction of the other eligibility criteria set forth
herein, constitute an Eligible Receivable); and (g) the Agent has not determined
that collection of such Receivable is insecure or that such Receivable may not
be paid. Notwithstanding the requirements of item (c) above, (i) a leasing
commission Receivable shall not be deemed conditional by reason of the fact that
the Tenant has not commenced occupancy of the leased premises, provided that
such premises are located in a building that is complete and is in operation;
and (ii) the Agent may, upon request by the Borrowers, include within the
Eligible Receivables, either the entire amount or such discounted percentage as
the Agent shall determine of any commission that is a Receivable that satisfies
the requirements (except item (c)) set forth above but is conditional (other
than upon performance by a Borrower) or is payable more than 18 months later, if
the Agent determines, based on factors deemed appropriate by it (such as, but
not limited to, the nature of the conditions to be satisfied, the status of and
other factors that might affect the satisfaction thereof, the ability (including
financial ability, experience and expertise) of the Person or Persons that are
or will be satisfying such conditions, the creditworthiness of the Person or
Persons obligated to pay such Receivable and the length of time before such
conditions will be fully satisfied and such Receivable will be paid) that there
is substantial certainty that such Receivable will be paid when due. The Agent
agrees to respond to a request made by the Borrowers under the preceding
sentence within 20 days of such request. It is specifically understood that in
no event shall "Eligible Receivables" include promissory notes from Borrowers'
or Supporting Subsidiaries' partners for the purchase of partnership interests
in the Borrowers or Supporting Subsidiaries or any obligation owed by any Dai-
Ichi Entity.
"ERISA" means the Employee Retirement Security Income Act of 1974, as
amended from time to time.
"Eurodollar Interest Period" means, with respect to a Eurodollar Loan, a
period of one, two, three or six months commencing on a Business Day selected by
a Borrower pursuant to this Agreement. Such Eurodollar Interest Period shall
end on the day in the applicable succeeding calendar month which corresponds
numerically to the beginning day of such Eurodollar Interest Period, provided,
however, that if there is no such numerically corresponding day in such
succeeding month, such Eurodollar Interest Period shall end on the last Business
Day of such succeeding month. If a Eurodollar Interest Period would otherwise
end on a day which is not a Business Day, such Eurodollar Interest Period shall
end on the next succeeding Business Day, provided,
9
however, that if said next succeeding Business Day falls in a new month, such
Eurodollar Interest Period shall end on the immediately preceding Business Day.
"Eurodollar Loan" means a Loan which bears interest at a rate specified in
Section 2.14(b) hereof.
"Eurodollar Margin" means (i) 0.50% per annum for each Eurodollar Loan made
under Facility A and Facility B and (ii) 0.75% per annum for each Eurodollar
Loan made under Facility C.
"Eurodollar Reserve Percentage" means, for any Borrowing of Eurodollar
Loans, the daily average for the applicable Interest Period of the maximum rate
at which reserves (including, without limitation, any supplemental, marginal and
emergency reserves) are imposed during such Interest Period by the Board of
Governors of the Federal Reserve System (or any successor) on "eurocurrency
liabilities," as defined in such Board's Regulation D, (or on any other category
of liabilities that includes deposits by reference to which the interest rate on
Eurodollar Loans is determined or any category of extension of credit or other
assets that include loans by non-United States offices of any Lender to United
States residents) subject to any amendments of such reserve requirement by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Eurodollar Loans shall be deemed
to be "eurocurrency liabilities" as defined in Regulation D without benefit or
credit for any prorations, exemptions or offsets under Regulation D.
"Facility" means any of the Facility A Commitments, the Facility B
Commitments, or the Facility C Commitments.
"Facility A Commitments" means the obligation of the Lenders under Section
2.1 hereof to make Loans to the Borrowers or to participate in Letters of Credit
in an aggregate amount not exceeding $30,000,000 as such amount may be modified
from time to time pursuant to the terms of this Agreement.
"Facility A Loans" is defined in Section 2.1 hereof.
"Facility B Commitments" means the obligation of the Lenders under Section
2.2 hereof to make Loans to the Borrowers in an aggregate amount not exceeding
$10,000,000 as such amount may be modified from time to time pursuant to the
terms of this Agreement.
"Facility B Loans" is defined in Section 2.2. hereof.
"Facility C Commitments" means the obligation of the Lenders under Section
2.3 hereof to make Loans to the Borrowers in an aggregate amount not exceeding
$40,000,000 as such amount may be modified from time to time pursuant to the
terms of this Agreement.
"Facility C Loans" is defined in Section 2.3 hereof.
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"Fixed Charge Coverage Ratio" means, with respect to the four most recent
fiscal quarters and calculated on the basis of the financial statements
submitted with respect to said period pursuant to Section 6.1, the ratio of (i)
EBITDA during said period less distributions to the partners of the Borrowers
and depreciation of fixed assets during said period to (ii) the sum of Fixed
Charges of each of the Borrowers during said period.
"Fixed Charges" means, for any Person with reference to any period, the sum
of (i) the aggregate amount of payments required to be made by such Person
during such period in respect of principal on all Indebtedness whether at
maturity, as a result of mandatory sinking fund redemption, mandatory
prepayment, acceleration or otherwise (other than the Dai-Ichi Indebtedness and
Loans that will mature at the end of their Interest Period before the Revolving
Credit Termination Date and are not required to be repaid in accordance with an
amortization schedule applicable to Loans under Facility B or C), plus (ii)
Interest Expense for such period.
"Guaranty" of a Person means any agreement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes liable upon, the obligation of any other
Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter or take-or-pay contract and shall include, without limitation, the
contingent liability of such Person in connection with any application for a
letter of credit.
"Guaranty Agreement" means the Guaranty Agreement dated as of September 6,
1996 in the form of Exhibit E hereto.
"IBOR" means, with respect to a Eurodollar Loan for a Eurodollar Interest
Period, the rate of interest per annum as determined by the Agent (rounded
upwards, if necessary to the nearest whole multiple of 1/16 of 1%) at which
deposits of United States dollars in immediately available and freely
transferable funds would be offered at 9:00 a.m. (Chicago time) two Business
Days prior to the commencement of such Eurodollar Interest Period by the
principal Nassau office of the Agent to major banks in the interbank market upon
request by such major banks for delivery on the first day of, and for a period
approximately equal to, such Eurodollar Interest Period and in an amount
approximately equal to the amount of the Eurodollar Loan.
"Indebtedness" of a Person means such Person's (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of property
other than accounts payable arising in the ordinary course of such Person's
business on terms customary in the trade, (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
property now or hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by notes, acceptances, or other instruments, (v) Capitalized
Lease Obligations, (vi) obligations for which such
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Person is obligated pursuant to a Guaranty and (vii) obligations for which such
Person is obligated pursuant to a letter of credit.
"Interest Expense" means for any Person for any period, the total interest
expense of such Person during such period with respect to its outstanding
Indebtedness, including, without limitation, all commissions and other fees and
charges owed with respect to Letters of Credit.
"Interest Period" means a Eurodollar Interest Period or a Domestic Rate
Interest Period.
"Investment" of a Person means any loan, advance, extension of credit
(excluding accounts receivable arising in the ordinary course of business),
deposit account or contribution of capital or any commitment to contribute
capital by such Person to any other Person or any investment in, or purchase or
other acquisition of, the stock, notes, debentures or other securities of any
other Person made by such Person (including, without limitation, notes payable
by such Person).
"Lending Installation" means any office, branch, subsidiary or affiliate of
any Lender.
"Letter of Credit" means a letter of credit which is issued upon the
application of one or both Borrowers and, if applicable, one or more Supporting
Subsidiaries.
"Lien" of a Person means any security interest, mortgage, pledge, lien,
claim, charge, encumbrance, title retention agreement, lessor's interest under a
Capitalized Lease or analogous instrument, in, of or on any property of such
Person.
"Loan" means any of the Facility A Loans, the Facility B Loans or the
Facility C Loans.
"Loan Documents" means this Agreement, the Notes, the Applications and the
Security Agreements.
"LPI Affiliate" means any corporation, partnership, limited liability
company or trust of which LPI owns, directly or indirectly, a majority of the
securities which have ordinary voting power for the election of directors (in
the case of a corporation), a majority of the partnership interests (in the case
of a partnership), a majority of ownership (in the case of a limited liability
company) or a majority of the beneficial interests (in the case of a trust).
"LPL" means LaSalle Partners Limited, a Delaware limited partnership.
"LPML" means LaSalle Partners Management Limited, a Delaware limited
partnership.
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"Net Income" means, with respect to any Person for any Period, the net
income (or loss) of such Person for such period, determined in accordance with
Agreement Accounting Principles.
"Net Operating Income" means, for the borrowers for any period, their Net
Income for such period before all extraordinary items and all interest expense
on the Dai-Ichi Indebtedness.
"Net Worth" means, for the Borrowers, at any time the amount reflected as
total partners' capital on the combined consolidated balance sheet of the
Borrowers at such time, prepared in accordance with Agreement Accounting
Principles ("Partners' Capital") plus the aggregate principal amount of the Dai-
Ichi Indebtedness outstanding at such time.
"Note" means any of the Facility A Notes, the Facility B Notes or the
Facility C Notes or any of them.
"Obligations" means all unpaid principal of and accrued and unpaid interest
on the Notes, all reimbursement and other obligations under the Applications and
all other obligations of the Borrowers to the Lenders or Agent arising under the
Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation and its successors
and assigns.
"Person" means any corporation, natural person, firm, joint venture,
partnership, limited liability company, trust, unincorporated organization,
enterprise, government or any department or agency of any government.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code as to which any Borrower or any Affiliate may have any
liability.
"Pledge Agreement" means the Pledge and Security Agreement dated as of
September 6, 1996 in the form of Exhibit D hereto.
"Rate Option" means the following two rate options provided for in Section
2.14 hereof: (a) the Domestic Rate; or (b) the Adjusted IBOR Rate.
"Receivables" means and includes all of the Borrowers' and the Supporting
Subsidiaries' present and future rights to payment for services rendered,
whether or not evidenced by instruments or chattel paper, and whether or not
they have been earned by performance; proceeds of any letters of credit on which
a Borrower or Supporting Subsidiary is named as beneficiary; contract rights;
chattel paper; instruments; documents; insurance proceeds; and all such
obligations whatsoever owing to a Borrower or Supporting Subsidiary, together
with all instruments and all documents of title representing any of the
foregoing.
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"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System from time to time in effect and shall include any successor or
other regulation or official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to member banks of the Federal Reserve System.
"Related Person" means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with a Borrower. A
Person shall be deemed to control another Person if the controlling Person owns
20% or more of any class of voting securities of the controlled Person (if the
controlled Person is a corporation) or 20% or more of the partnership or joint
venture interests (whether general, limited or both) of the controlled Person
(if the controlled Person is a partnership or joint venture) or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership, by
contract or otherwise.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property having an original term
(including any required renewals or any renewals at the option of the lessor or
lessee) of one year or more but does not include any amounts payable under
Capitalized Leases of such Person.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such Section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event (provided that a failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code and of Section 302
of ERISA shall be a reportable event regardless of the issuance of any such
waivers in accordance with Section 412(d) of the Internal Revenue Code).
"Required Lenders" means, as of the date of determination thereof, those
Lenders holding at least 66 2/3% of the Commitments or, in the event that no
Commitments are outstanding hereunder, holding at least 66 2/3% of the Loans and
credit risk on the Letters of Credit outstanding hereunder provided that anytime
there are fewer than three Lenders party hereto "Required Lenders" shall mean
all the Lenders.
"Revolving Credit Termination Date" means September 6, 1999 or September 6
of any later year that the Lenders, in their sole discretion, may establish
pursuant to Section 2.18 hereof.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Security Agreements" means the Borrowers' Security Agreement, the
Subsidiary Security Agreement, the Guaranty Agreement, the
14
Collateral Assignment of Partnership Interests, the Subsidiary Collateral
Assignment of Partnership Interests and the Pledge Agreement.
"Subsidiary" means a partnership or corporation that, under Agreement
Accounting Principles, is included in the consolidated financial statements of
LPML or LPL, as the case may be.
"Subsidiary Collateral Assignment of Partnership Interest" means the
Collateral Assignment of Partnership Interest dated as of September 6, 1996 in
the form of Exhibit J hereto.
"Subsidiary Security Agreement" means the Supporting Subsidiary Security
Agreement dated as of September 6, 1996 in the form of Exhibit C-2 hereto.
"Supporting Subsidiary" means all Subsidiaries (whether now or hereafter
existing) except for (i) LP International, a Limited Liability Company ("LPI")
and the LPI Affiliates and (ii) other Subsidiaries not party to the Subsidiary
Security Agreement that do not in the aggregate have outstanding more than 5% of
all Receivables owed to the Borrowers and Subsidiaries (excluding LPI and the
LPI Affiliates).
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested nonforfeitable benefits under a Plan exceeds the fair market value
of all Plan assets allocable to such benefits, all determined as of the then
most recent valuation date for such Plan.
"Unmatured Default" means an event or circumstance that, with passage of
time or notice or both, would constitute a Default.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
Section 2.1. Facility A. Until the Revolving Credit Termination Date, each
Lender agrees, on the terms and conditions set forth in this Agreement, to make
loans (individually, a "Facility A Loan" and, collectively, the "Facility A
Loans") to the Borrowers from time to time in a principal amount requested by
either Borrower up to the maximum amount of the Facility A Commitment which each
Lender agrees to extend to the Borrowers as set forth opposite such Lender's
signature hereto under the heading "Facility A Commitment" or as otherwise
provided in Section 10.13 hereof, as such amount may be reduced pursuant hereto.
The Facility A Commitments may be utilized by the Borrowers in the form of
Facility A Loans and Letters of Credit, all as more fully hereinafter set forth,
provided that the aggregate principal amount of Facility A Loans and Letters of
Credit outstanding at any one
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time under Facility A shall not exceed the lesser of (i) the Facility A
Commitments and (ii) the Borrowing Base as then determined and computed. During
the period from and including the date hereof to but not including the Revolving
Credit Termination Date, the Borrowers may use the Facility A Commitments by
borrowing, repaying and reborrowing Facility A Loans in whole or in part and/or
by having the Agent issue Letters of Credit, having such Letters of Credit
expire or otherwise terminate without having been drawn upon or, if drawn upon,
reimbursing the Agent for each such drawing, and having the Agent issue new
Letters of Credit, all in accordance with the terms and conditions of this
Agreement. For purposes of this Agreement, where a determination of the unused
or available amount of the Facility A Commitments is necessary, the Facility A
Loans, the Facility B Loans and the face amount of all Letters of Credit shall
be deemed to utilize the Facility A Commitments. The obligations of the Lenders
hereunder are several and not joint, and no Lender shall under any circumstances
be obligated to extend credit under the Facility A Commitments in excess of its
Facility A Commitment. Each Borrowing of Facility A Loans shall be made ratably
from the Lenders in accordance with their Facility A Commitments.
Section 2.2. Facility B. Until the Revolving Credit Termination Date, the
Borrowers may request the Lenders to make loans (each, a "Facility B Loan" and,
collectively, the "Facility B Loans") to the Borrowers from time to time in a
principal amount requested by either Borrower. In making such a request a
Borrower shall submit to the Lenders an explanation of the use of such Loan and
if all Lenders, in their reasonable discretion (based on each such Lender's then
existing policies and guidelines concerning the types of activities and
transactions it is then willing to finance and such other criteria as such
Lender deems relevant), agree to provide the requested financing for such use,
the Lenders shall make the requested Loan and the amount thereof shall be a use
of the Facility B Commitments. In no event shall the Lenders be obligated to
make any such requested Loan for a use that any Lender does not approve in its
reasonable discretion. The maximum amount of the Facility B Commitment which
each Lender agrees to consider extending to the Borrowers shall be as set forth
opposite such Lender's signature hereto under the heading "Facility B
Commitment" or as otherwise provided in Section 10.13 hereof, as such amount may
be reduced pursuant hereto. The Facility B Commitment may be utilized by the
Borrowers in the form of Facility B Loans, all as more fully hereinafter set
forth, provided that the aggregate principal amount of Facility B Loans
outstanding at any one time shall not exceed the Facility B Commitments and the
sum of the aggregate principal amount of Facility A Loans and Letters of Credit
outstanding under Facility A plus the aggregate principal amount of Facility B
Loans outstanding at any one time shall not exceed the Facility A Commitments.
The obligations of the Lenders hereunder are several and not joint, and no
Lender shall under any circumstances be obligated to extend credit under the
Facility B Commitments in excess of its Facility B Commitment. Each Borrowing
of Facility B Loans shall be made ratably by the Lenders in accordance with
their Facility B Commitments. Notwithstanding the
16
foregoing, each Lender agrees on the date hereof to advance its pro rata share
of the Facility B Loans listed on Schedule VIII hereto (the "Initial Facility B
Loans"). Until the Revolving Credit Termination Date, on the last day of an
Interest Period for any Borrowing of Initial Facility B Loans or any other
Facility B Loans, each Lender agrees, on the terms and conditions set forth in
this Agreement (and subject to any mandatory prepayment of a Facility B Loan
pursuant to Section 2.16(c) or any other provision of this Agreement), to make a
new Facility B Loan in an amount up to but not greater than the principal amount
of its outstanding Facility B Loan maturing on such date; provided that (i) on
each June 15 the Borrowers shall repay one-fourth (1/4th) of the original
principal amount of each Facility B Loan outstanding on the immediately
preceding March 31 (other than the Initial Facility B Loans) with the aggregate
principal amount of all Facility B Loans not sooner paid due and payable on the
Revolving Credit Termination Date and (ii) the Borrowers shall repay the Initial
Facility B Loans in accordance with the amortization schedule set forth on
Schedule VIII. In order to so repay the Facility B Loans in accordance with
clauses (i) and (ii) of the preceding sentence, the Borrowers shall select
Eurodollar Interest Periods that end on or before the dates for such payments or
have outstanding Domestic Rate Loans in an amount sufficient so that all such
required payments may be made on or before the required payment dates through
repayments of Domestic Rate Loans or repayments of Eurodollar Loans on the last
day of their Interest Periods, without refunding such Eurodollar Loans with new
Facility B Loans, and not through repayments of Eurodollar Loans before the last
day of their then applicable Interest Periods.
Section 2.3. Facility C. Until the Revolving Credit Termination Date, each
Lender agrees, on the terms and conditions set forth in this Agreement, to make
loans (each, a "Facility C Loan" and, collectively, the "Facility C Loans") to
the Borrowers from time to time in a principal amount requested by either
Borrower. The maximum amount of the Facility C Commitment which each Lender
agrees to extend to the Borrowers shall be as set forth opposite such Lender's
signature hereto under the heading "Facility C Commitment" or as otherwise
provided in Section 10.13 hereof, as such amount may be reduced pursuant hereto.
The Borrowers may use the Facility C Commitments by borrowing, repaying and
reborrowing Facility C Loans in whole or in part as more fully set forth herein,
provided that the aggregate principal amount of Facility C Loans outstanding at
any one time shall not exceed the Facility C Commitments. The obligations of the
Lenders hereunder are several and not joint, and no Lender shall under any
circumstances be obligated to extend credit under the Facility C Commitments in
excess of its Facility C Commitment. Each Borrowing of Facility C Loans shall be
made ratably by the Lenders in accordance with their Facility C Commitments. On
each June 15 occurring after the earlier to occur of (i) the date two years
after the date hereof and (ii) the date on which the Borrowers shall have
borrowed more than 50% of the Facility C Commitments (without giving effect to
any repayments thereof), the Borrowers shall repay one-seventh (1/7th) of the
original principal amount of each Facility C Loan
17
outstanding on the immediately preceding March 31 with the aggregate principal
amount of all Facility C Loans not sooner paid due and payable on the Revolving
Credit Termination Date. In order to so repay the Facility C Loans in accordance
with clauses (i) and (ii) of the preceding sentence, the Borrowers shall select
Eurodollar Interest Periods that end on or before the dates for such payments or
have outstanding Domestic Rate Loans in an amount sufficient so that all such
required payments may be made on or before the required payment dates through
repayments of Domestic Rate Loans or repayments of Eurodollar Loans on the last
day of their Interest Periods, without refunding such Eurodollar Loans with new
Facility C Loans, and not through repayments of Eurodollar Loans before the last
day of their then applicable Interest Periods.
Section 2.4. Letters of Credit.
(a) General Terms. Subject to the terms and conditions hereof, the
Facility A Commitments may be availed of by the Borrowers in the form of standby
letters of credit issued by the Agent at the application of either or both
Borrowers and, if applicable, one or more Supporting Subsidiaries (individually
a "Letter of Credit" and collectively the "Letters of Credit"), provided that
each requested Letter of Credit is in a form acceptable to the Agent and the
aggregate amount of Letters of Credit issued and outstanding hereunder shall not
at any time exceed $5,000,000. Notwithstanding anything herein to the contrary,
those letters of credit listed and described on Schedule VI hereto previously
issued by Xxxxxx Trust and Savings Bank for the account of the Borrowers (each,
an "Existing L/C") shall each constitute a "Letter of Credit" hereunder for all
purposes of this Agreement to the same extent, and with the same force and
effect, as if such Existing L/Cs had been issued at the request of a Borrower
hereunder. For purposes of this Agreement, a Letter of Credit shall be deemed
outstanding as of any time in an amount equal to the maximum amount which could
be drawn thereunder under any circumstances and over any period of time. If and
to the extent any Letter of Credit expires or otherwise terminates without
having been drawn upon, the availability under the Facility A Commitments shall
to such extent be reinstated. The Letters of Credit shall be issued by the
Agent, but each Lender shall be obligated to reimburse the Agent for such
Lender's pro rata share of the amount of each draft drawn under a Letter of
Credit in accordance with this Section 2.4 and, accordingly, each Letter of
Credit shall be deemed to utilize the Facility A Commitments of all Lenders pro
rata.
(b) Term. Each Letter of Credit issued hereunder shall expire not later
than the earlier of (i) twelve (12) months from the date of issuance (or be
cancelable not later than twelve (12) months from the date of issuance and each
renewal) or (ii) the Facility A Revolving Credit Termination Date. In the event
the Agent issues any Letter of Credit with an expiration date that is
automatically extended unless the Agent gives notice that the expiration date
will not so extend beyond its then scheduled expiration date, the
18
Agent will give such notice of non-renewal before the time necessary to prevent
such automatic extension if before such required notice date (i) the expiration
date of such Letter of Credit if so extended would be after the Revolving Credit
Termination Date, (ii) the Facility A Commitments have terminated or (iii) an
Event of Default exists and the Required Lenders have given the Agent
instructions not to so permit the extension of the expiration date of such
Letter of Credit.
(c) General Characteristics. Each Letter of Credit issued hereunder shall
be payable in U.S. Dollars, conform to the general requirements of the Agent for
the issuance of such a letter of credit as to form and substance, and be a
letter of credit which the Agent may lawfully issue.
(d) Applications. At the time either Borrower requests a Letter of Credit
to be issued (or prior to the first issuance of a Letter of Credit in the case
of a continuing application), such Borrower shall execute and deliver to the
Agent an application for such Letter of Credit in the form then customarily
prescribed by the Agent (individually an "Application" and collectively the
"Applications"). As set forth in Section 10.2, each Borrower shall be jointly
and severally liable under each such application for a Letter of Credit executed
by any Borrower. Subject to the other provisions of this subsection, the
obligation of the Borrowers to reimburse the Agent for drawings under a Letter
of Credit shall be governed by the Application for such Letter of Credit.
Anything contained in the Applications to the contrary notwithstanding, (i) in
the event the Agent is not reimbursed by the Borrowers for the amount the Agent
pays on any drawing under a Letter of Credit issued hereunder by 11:00 a.m.
(Chicago time) on the date when such drawing is paid, the Borrowers shall be
deemed to have requested a Domestic Rate Loan in the amount of such
reimbursement obligation, (ii) the Borrowers shall pay fees in connection with
each Letter of Credit as set forth in Section 2.17 hereof, (iii) prior to the
occurrence of a Default or an Event of Default the Agent will not call for
additional collateral security for the obligations of the Borrowers under the
Applications other than the collateral security contemplated by this Agreement
and the Security Agreements, and (iv) prior to the occurrence of a Default or an
event of Default the Agent will not call for the funding of a Letter of Credit
by such Borrower prior to being presented with a drawing thereunder (or, in the
event a time draft is presented, prior to its due date).
(e) Participations in Letters of Credit. Each Lender shall participate on
a pro rata basis in accordance with its Facility A Commitment in the Letters of
Credit issued by the Agent, which participation shall automatically arise upon
the issuance of each Letter of Credit. Each Lender unconditionally agrees that
in the event the Agent is not immediately reimbursed by the applicable Borrower
for the amount paid by the Agent on any draft presented under a Letter of
Credit, then in that event such Lender shall pay to the Agent such Lender's pro
rata share of the amount of each draft so paid and in return such Lender shall
automatically receive
19
an equivalent percentage participation in the rights of the Agent to obtain
reimbursement from such Borrower for the amount of such draft, together with
interest thereon as provided for herein. The obligations of the Lenders to the
Agent under this subsection shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever (except, without limiting the
Borrowers' obligations under each Application, to the extent the Borrowers are
relieved from their obligation to reimburse the Agent for a drawing under a
Letter of Credit because of the Agent's gross negligence or willful misconduct
in determining that documents received under a Letter of Credit comply with the
terms thereof) and shall not be subject to any set-off, counterclaim or defense
to payment which any Lender may have or have had against either Borrower, the
Agent, any other Lender or any other party whatsoever. In the event that any
Lender fails to honor its obligation to reimburse the Agent for its pro rata
share of the amount of any such draft, then in that event (i) each other Lender
shall pay to the Agent its pro rata share of the payment due the Agent from the
defaulting Lender, (ii) the defaulting Lender shall have no right to participate
in any recoveries from such Borrower in respect of such draft and (iii) all
amounts to which the defaulting Lender would otherwise be entitled under the
terms of this Agreement or any of the other Loan Documents shall first be
applied to reimbursing the Lenders for their respective pro rata shares of the
defaulting Lender's portion of the draft, together with interest thereon as
provided for herein. Upon reimbursement to the other Lenders (pursuant to clause
(iii) above or otherwise) of the amount advanced by them to the Agent in respect
of the defaulting Lender's share of the draft together with interest thereon,
the defaulting Lender shall thereupon be entitled to its participation in the
Agent's right of recovery against the applicable Borrower in respect of the
amount paid by the Agent under the Letter of Credit.
Section 2.5. Rate Options; Payment on Last Day of Interest Period. The
Loans may be Domestic Rate Loans or Eurodollar Loans, or a combination thereof,
selected by the Borrowers in accordance with Section 2.9. Each Loan shall be
paid in full by the Borrowers on the last day of the Interest Period applicable
thereto or, if earlier, on the Revolving Credit Termination Date.
Section 2.6. Optional Principal Payments. The Borrowers may from time to
time prepay Domestic Rate Loans in whole or in part, without premium or penalty,
upon notice to the Lender not later than 12:00 noon Chicago time on the day of
such prepayment (which shall be a Business Day). Any such partial prepayment of
Domestic Rate Loans outstanding under Facility A shall be in a minimum aggregate
amount of $100,000, or any integral multiple thereof. Any such partial
prepayment of Domestic Rate Loans outstanding under Facility B or Facility C
shall be in a minimum aggregate amount of $500,000, and in integral multiples of
$100,000. A Eurodollar Loan may not be paid prior to the last day of the
applicable Interest Period.
Section 2.7. Reduction of Commitments. The Borrowers may permanently
reduce the Commitments under any Facility, in whole or
20
in part, and in integral multiples of $5,000,000 if in part, upon at least five
Business Days' joint written notice to the Agent, which shall specify the amount
of any such reduction and the applicable Facility, provided, however, that the
amount of the Commitments under a Facility may not be reduced below an amount
such that the outstanding principal amount of the Loans and the aggregate
undrawn face amount of outstanding Letters of Credit under such Facility would
exceed the Commitments under such Facility as so reduced.
Section 2.8. Disbursement of Loans. Not later than 1:30 p.m. (Chicago
time) on each Borrowing Date, each Lender shall, subject to Article IV, make
available its Loan in funds immediately available in Chicago, Illinois at the
principal office of the Agent, except to the extent such Borrowing is a
reborrowing, in whole or in part, of the principal amount of a maturing
Borrowing of Loans (a "Refunding Borrowing"), in which case each Lender shall
record the Loan made by it as a part of such Refunding Borrowing on its books
and records or on a schedule to its applicable Note, as provided in Section
2.13, and shall effect the repayment, in whole or in part, as appropriate, of
its maturing Loan through the proceeds of such new Loan. The Agent shall make
the proceeds of each Borrowing available to the applicable Borrower at the
Agent's principal office in Chicago, Illinois.
Section 2.9. Method of Selecting Rate Options and Interest Periods.
(a) Notice to Agent. The Borrowers shall select the Rate Options and
Interest Periods applicable to each Loan from time to time. An Authorized
Person designated by a Borrower shall give telecopy or telephonic notice (a
"Borrowing Notice") to the Agent (which notice shall be irrevocable once given
and, if by telephone, shall be promptly confirmed in writing) not later than (i)
12:00 noon Chicago time on the Borrowing Date for each Domestic Rate Loan and
(ii) 10:00 a.m. Chicago time three Business Days before the Borrowing Date for
each Eurodollar Loan, specifying:
(i) the Borrower to which the Borrowing is to be made,
(ii) the Borrowing Date, which shall be a Business Day, of such
Borrowing,
(iii) the amount of such Borrowing,
(iv) the Rate Option selected for such Borrowing,
(v) the Facility under which such Borrowing shall apply, and, in the
case of Facility C Loans a description of the proposed Investment or
Acquisition to be financed with such Loan, and
(vi) in the case of each Eurodollar Loan, the Interest Period
applicable thereto.
21
The Borrowers may not select with respect to Eurodollar Loans for any Facility
an Interest Period that extends beyond the Revolving Credit Termination Date.
(b) Notice to the Lenders. The Agent shall give prompt telephonic, telex
or telecopy notice to each of the Lenders of any borrowing request received
pursuant to Section 2.9(a) and, if such notice requests the Lenders to make
Eurodollar Loans, the Agent shall give notice to the Borrower and each of the
Lenders by like means of the interest rate applicable thereto promptly after the
Agent has made such determination.
(c) Rate Determinations. The Agent shall determine each interest rate
applicable to the Loans hereunder, and its determination thereof shall be
conclusive and binding except in the case of manifest error or willful
misconduct.
Section 2.10. Minimum Amount of Each Loan. Each Loan shall be in the
minimum amount of $100,000 (and in multiples of $100,000 if in excess thereof),
provided, however, that any Domestic Rate Loan under the Facility A Commitments
may be in the aggregate amount of the unused portion of the Facility A
Commitments and any Facility A Loan may be in the amount of a drawing paid under
a Letter of Credit.
Section 2.11. Rate After Maturity. Except as provided in the next
sentence, any Loan not paid at maturity, whether by acceleration or otherwise,
shall bear interest until paid in full at a rate per annum equal to the Domestic
Rate plus 3% per annum. In the case of a Eurodollar Loan the maturity of which
is accelerated, such Eurodollar Loan shall bear interest, for the remainder of
the applicable Interest Period, at the higher of the rate otherwise applicable
to such Interest Period plus 3% per annum or the Domestic Rate plus 3% per
annum.
Section 2.12. Place and Application of Payments. All amounts payable under
this Agreement by the Borrowers shall be made to the Agent by no later than
12:00 noon (Chicago time) at the principal office of the Agent in Chicago,
Illinois (or such other location in the State of Illinois as the Agent may
designate to the Borrowers) for the benefit of the Lenders. Any payments
received after such time shall be deemed to have been received by the Agent on
the next Business Day. All such payments shall be made in lawful money of the
United States of America, in immediately available funds at the place of
payment, without setoff or counterclaim. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest on Loans or fees ratably to the Lenders and like funds relating to the
payment of any other amount payable to the Lender to such Lender, in each case
to be applied in accordance with the terms of this Agreement.
Section 2.13. The Notes. (a) Each Facility A Loan made to a borrower by a
Lender shall be evidenced by a single promissory note of the Borrowers payable
to such Lender in the amount of its Facility A Commitment and otherwise in the
form of Exhibit A-1
22
hereto. Each such promissory note is hereinafter referred to as a "Facility A
Note" and collectively as the "Facility A Notes".
(b) Each Facility B Loan made to a Borrower by a Lender shall be evidenced
by a single promissory note of the Borrowers payable to such Lender in the
amount of its Facility B Commitment and otherwise in the form of Exhibit A-2
hereto. Each such promissory note is hereinafter referred to as a "Facility B
Note" and collectively as the "Facility B Notes".
(c) Each Facility C Loan made to a Borrower by a Lender shall be evidenced
by a single promissory note of the Borrowers payable to such Lender in the
amount of its Facility C Commitment and otherwise in the form of Exhibit A-3
hereto. Each such promissory note is hereinafter referred to as a "Facility C
Note" and collectively as the "Facility C Notes".
(d) Each Lender shall record on its books and records or on a schedule to
its Note the amount of each Loan made by it to a Borrower, all payments of
principal and the principal balance from time to time outstanding thereon, the
type of such Loan and, for any Eurodollar Loan, the Interest Period and interest
rate applicable thereto; provided that upon the transfer of any Note all such
amounts shall be recorded on a schedule to such Note. The record thereof,
whether shown on such books and records of a Lender or on a schedule to any
Note, shall be prima facie evidence as to all such matters; provided, however,
that the failure of any Bank to record any of the foregoing or any error in any
such record shall not limit or otherwise affect the obligation of the Borrowers
to repay all Loans together with accrued interest thereon. At the request of
any Lender and upon such Lender tendering to the Borrowers the Note to be
replaced, the Borrowers shall furnish a new Note to such Lender to replace any
outstanding Note, and at such time the first notation appearing on a schedule on
the reverse side of, or attached to, such Note shall set forth the aggregate
unpaid principal amount of all Loans, if any, then outstanding thereon.
Section 2.14. Applicable Interest Rates.
(a) Domestic Rate Loans. Each Domestic Rate Loan made by a Lender shall
bear interest (computed (x) on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed or (y), at all times that the Domestic Rate
is based on the rate described in clause (B) of the definition thereof, on the
basis of a year of 360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is made until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the Domestic Rate from
time to time in effect, payable quarterly in arrears on the last day of each
March, June, September and December and on the last day of the applicable
Interest Period and at maturity (whether by acceleration or otherwise).
(b) Eurodollar Loans. Each Eurodollar Loan made by a Lender shall bear
interest (computed on the basis of a year of 360 days
23
and actual days elapsed) on the unpaid principal amount thereof from the date
such Loan is made until maturity (whether by acceleration or otherwise) at a
rate per annum equal to the sum of the applicable Eurodollar Margin plus the
Adjusted IBOR Rate applicable to such Loan, payable on the last day of the
applicable Interest Period, at maturity (whether by acceleration or otherwise)
and, if the applicable Interest Period is longer than three months, on each day
occurring every three months after the date such Loan is made.
Section 2.15. Lending Installation. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Note issued to a Lender shall be deemed held
by such Lender for the benefit of such Lending Installation. Subject to Section
3.5, a Lender may, by notice to the Borrowers, designate a Lending Installation
through which Loans will be made by it and for whose account payments on Loans
are to be made.
Section 2.16. Mandatory Prepayments.
(a) Borrowing Base Deficiency. Each Borrower covenants and agrees that if
at any time the sum of the aggregate principal amount of outstanding Facility A
Loans plus the then outstanding amount of Letters of Credit shall be in excess
of the Borrowing Base as then determined and computed, the Borrowers shall
immediately and without notice or demand pay over the amount of the excess to
the Agent for the account of the Lenders as and for a mandatory prepayment on
such Obligations, with each such prepayment first to be applied to the Facility
A Loans until payment in full thereof with any remaining balance to be held by
the Agent as collateral security for the Obligations owing under the
Applications.
(b) Cleanup Period. During each four month period commencing October 1 of
each year to and including February 1 of the following year, the Borrowers shall
reduce the Obligations (other than Letters of Credit) outstanding under the
Facility A Commitments to zero for a period of 30 consecutive days.
(c) Acquisitions and Investments. On the day either Borrower receives
proceeds from the sale of all or any portion of any Investment or Acquisition
which was purchased or acquired with the proceeds of any Facility B Loan or
Facility C Loan or from a prepayment of Notes or a liquidating dividend, the
Borrowers shall make a mandatory prepayment of the Loans the proceeds of which
were used to purchase or acquire such Investment or Acquisition to be applied to
the installments due on such Loan in the inverse order of maturity and
thereafter any remaining proceeds (net of taxes) shall be applied pro rata to
the installments of all other Facility B and Facility C Loans then outstanding
(except that the Borrowers may retain any such remaining proceeds that may be
derived from the direct or indirect sale of the Borrowers' interest in the New
Shorewood LP).
24
Section 2.17. Fees.
(a) Commitment Fee. For the period from and including the date hereof to
but not including the applicable Revolving Credit Termination Date, the
Borrowers shall pay to the Agent for the account of the Lenders a commitment fee
at the rate of 0.15% per annum (computed on the basis of a year of 360 days for
the actual number of days elapsed) on the average daily unused portion of the
Facility A Commitments and the Facility C Commitments. Such commitment fee shall
be payable quarterly in arrears on the last day of each March, June, September
and December in each year (commencing September 30, 1996) and on the Revolving
Credit Termination Date.
(b) Letter of Credit Fees. On the last day of each calendar quarter,
commencing on September 30, 1996, the Borrowers shall pay to the Agent for the
pro rata account of the Lenders a letter of credit fee computed at the rate of
0.50% per annum (computed on the basis of a year of 360 days for the actual
number of days elapsed) on the daily average face amount of Letters of Credit
outstanding during such quarter. In addition to the letter of credit fee called
for above, the Borrowers further agree to pay to the Agent for its own account
such processing and transaction fees and charges as the Agent from time to time
customarily imposes in connection with any amendment, cancellation, negotiation
and/or payment of letters of credit and drafts drawn thereunder.
(c) Agent's Fee. The Borrowers shall pay to the Agent, for its own use and
benefit, an Agent's fee as mutually agreed upon by the Borrowers and the Agent.
Section 2.18. Discretionary Extension of Revolving Credit Termination
Date. On or before June 1, 1998, the Borrowers may request in writing to the
Agent a two year extension of the Revolving Credit Termination Date. The Agent
will promptly give notice thereof to the Lenders. The Lenders will notify the
Borrowers in writing by August 1, 1998, whether they agree to provide such
extension of the Revolving Credit Termination Date. If a Lender fails to notify
the Borrowers or notifies them that no such extension will take place, the
Revolving Credit Termination Date will take place as scheduled. If each Lender
notifies the Borrowers that they agree to such extension, the Revolving Credit
Termination Date will automatically be extended to September 6, 2001.
ARTICLE III
CHANGE IN CIRCUMSTANCES
Section 3.1. Yield Protection. If any law or any governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any interpretation thereof, or compliance of any Lender with such,
25
(i) subjects a Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from the Borrowers
(excluding taxation of the overall net income of such Lender or applicable
Lending Installation), or changes the oasis of taxation of payments to such
Lender in respect of its Loans or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit, capital, or similar requirement against
assets of, deposits with or for the account of, commitments of, or credit
extended by, such Lender or any applicable Lending Installation (other than
reserves and assessments taken into account in determining the interest
rate applicable to Eurodollar Loans), or
(iii) imposes any other condition the result of which is to increase
the cost to a Lender or any applicable Lending Installation of making,
funding or maintaining loans or reduces any amount receivable by such
Lender or any applicable Lending Installation in connection with loans, or
requires a Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of loans held or interest
received by it, by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender (which demand shall set forth in
reasonable detail the basis for, and a computation of, the amount thereof), the
Borrowers shall pay such Lender that portion of such increased expense incurred
or reduction in an amount received, or (in the case of a capital requirement)
pay to such Lender such amount as shall compensate such Lender for the reduction
in its return on capital caused by such requirement, which such Lender
reasonably determines is attributable to making, funding and maintaining its
Loans and its Commitments.
Section 3.2. Change of Law. Notwithstanding any other provisions of this
Agreement or any Note, if at any time after the date hereof any change in
applicable law or regulation or in the interpretation thereof makes it unlawful
for any Lender to make or continue to maintain Eurodollar Loans or to give
effect to its obligations as contemplated hereby, such Lender shall promptly
give notice thereof to the Borrowers, with a copy to the Agent, and such
Lender's obligations to make or maintain Eurodollar Loans under this Agreement
shall terminate until it is no longer unlawful for such Lender to make or
maintain Eurodollar Loans. The Borrowers shall prepay on demand the outstanding
principal amount of any such affected Eurodollar Loans, together with all
interest accrued thereon and all other amounts then due and payable to such
Lender under this Agreement; provided, however, subject to all of the terms and
conditions of this Agreement, the Borrowers may then elect to borrow the
principal amount of the affected Eurodollar Loan from such Lender by means of a
Domestic Rate Loan from such
26
Lender that shall not be made ratably by the Lenders but only from such affected
Bank.
Section 3.3 Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, IBOR. If on or before the first day of any Interest Period for
any Borrowing of Eurodollar Loans:
(a) the Agent determines that deposits (in the applicable amount) are
not being offered to it in the eurodollar interbank market for such
Interest Period, or
(b) Lenders having 50% or more of the aggregate amount of the
Commitments advise the Agent that IBOR as determined by the Agent will not
adequately and fairly reflect the cost to such Banks of funding their
Eurodollar Loans for such Interest Period,
then the Agent shall forthwith give notice thereof to the Borrowers and the
Lenders, whereupon until the Agent notifies the Borrowers that the circumstances
giving rise to such suspension no longer exist, the obligations of the Lenders
to make Eurodollar Loans shall be suspended.
Section 1.4. Funding Indemnity. If any Lender incurs any loss, cost or
expense (including, without limitation, any loss of profit, and any loss, cost
or expense in the liquidation or re-employment of deposits or other funds
acquired by such Lender to fund or maintain any Eurodollar Loan or in relending
or reinvesting such deposits or amounts paid or prepaid to such Lender) as a
result of:
(a) any payment or prepayment of a Eurodollar Loan on a date other
than the last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions of
Article IV or otherwise) by the Borrowers to borrow a Eurodollar Loan on
the date specified in a notice given pursuant to Section 2.8, or
(c) any acceleration of the maturity of a Eurodollar Loan,
then, upon the demand of such Lender, the Borrower shall pay to the Lender such
amount as will reimburse the Lender for such loss, cost or expense. If any
Lender makes such a claim for compensation, it shall provide to the Borrowers
(with a copy to the Agent) a certificate executed by an officer of such Lender
setting forth the amount of such loss, cost or expense in reasonable detail and
the amount shown on such certificate, if reasonably calculated, shall be
conclusive.
Section 3.5. Lender Certificate; Survival of Indemnity. To the extent
reasonably possible, a Lender shall designate an alternate Lending Installation
with respect to its Eurodollar Loans to reduce any liability of the Borrowers to
the Lender under
27
Section 3.1 or to avoid the unavailability of a Rate Option under Section 3.3,
so long as such designation is not disadvantageous to the Lender. A certificate
of the Lender as to the amount due under Section 3.1 or 3.4 shall be final,
conclusive and binding on the Borrowers in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though the Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Adjusted IBOR applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the certificate shall be payable on demand after
receipt by the Borrowers of the certificate. The obligations of the Borrowers
under Sections 3.1 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1. Effectiveness of Agreement.
(a) This Agreement shall only become effective when, and the Lenders shall
not be required to make the initial Loan hereunder and the Agent shall not be
required to issue the initial Letter of Credit unless, the Borrowers have
furnished to the Agent for each Lender:
(i) Copies of the partnership agreements of each Borrower and
supporting Subsidiary that is a partnership, certified by a general partner
or other duly authorized officer thereof to be a true, correct and complete
copy thereof.
(ii) Copies, certified by the secretary or assistant secretary of each
Supporting Subsidiary that is a corporation, and of each corporate general
partner in the case of each Borrower and each Supporting Subsidiary that is
a partnership having a corporation as its general partner, of its board of
directors' resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for the Lender) authorizing the execution of the Loan
Documents.
(iii) Certificates, executed by a general partner of each Borrower and
each Supporting Subsidiary that is a partnership, and by the secretary or
assistant secretary of each Supporting Subsidiary that is a corporation,
and of each corporate general partner in the case of each Borrower and each
Supporting Subsidiary that is a partnership having a corporation as its
general partner, which shall identify by name and title and bear the
signature of the partners or officers authorized to sign
28
the Loan Documents and of the Authorized Persons and which shall designate
the Authorized Persons.
(iv) A written opinion of Xxxxx & Associates and XxxxXxxxx, Xxxxx &
Xxxxx or other counsel to the Borrowers and Supporting Subsidiaries
acceptable to the Lenders, addressed to the Lenders in substantially the
form of Exhibit B-1 and B-2 hereto.
(v) Such Lender's Notes executed by the Borrowers.
(vi) An executed copy of each Security Agreement together with any
financing statements requested by the Agent in connection therewith.
(vii) An executed Borrowing Base certificate in the form attached
hereto as Exhibit G showing the computation of the Borrowing Base in
reasonable detail as of the close of business on July 30, 1996.
(viii) The Liens granted to the Agent under the Security Agreements
shall have been perfected in a manner satisfactory to each Lender and the
Agent shall have a perfected security interest in the investments listed
under Item 1 on Schedule VII hereto.
(ix) The Borrowers shall have terminated the Amended and Restated
Credit Agreement dated as of June 15, 1994 among the Borrowers and Xxxxxx
Trust and Savings Bank, all amounts payable thereunder shall have been paid
or shall be paid with the proceeds of the first Borrowing hereunder and
Xxxxxx Trust and Savings Bank shall have released any Liens granted to it
by the Borrowers and any Supporting Subsidiary (by executing below Xxxxxx
Trust and Savings Bank waives compliance with the requirement for notice of
termination of the "Commitments" thereunder).
(x) DSA-LSPL, Inc. and DSA-LSAM, Inc. shall have consented to the
terms hereof in form and substance satisfactory to the Lenders.
(xi) Such other documents as the Agent or Its counsel may have
reasonably requested.
Section 4.2. Each Loan. The Lenders shall not be required to make any
Loan nor shall the Agent be obligated to issue any Letter of Credit unless on
the applicable Borrowing Date:
(a) There exists no Default or, solely in the case of a Loan that
would increase the aggregate principal amount of all outstanding Loans
(after giving effect to any concurrent repayment of Loans) or the increase
in or issuance of a Letter of Credit, Unmatured Default; provided that
notwithstanding Section 2.9, at any time
29
that an Unmatured Default exists the Borrowers may not request a Eurodollar
Loan and all Loans made while an Unmatured Default exists shall be made as
Domestic Rate Loans.
(b) In the case of a Loan that would increase the aggregate principal
amount of all outstanding Loans (after giving effect to any concurrent
repayment of Loans) or the increase in or issuance of a Letter of Credit,
the representations and warranties contained in Article V are true and
correct as of such Borrowing Date except for changes in the Schedules
hereto reflecting transactions permitted by this Agreement.
(c) All legal matters incident to the making of such Loan shall be
satisfactory to the Lenders and their counsel.
(d) Taking into account such Loan, no prepayment would be required
under Section 2.16.
(e) The aggregate outstanding principal amount of all Facility A Loans
and the aggregate face amount of all outstanding Letters of Credit shall
not exceed the lesser to the Facility A Commitments then in effect and the
Borrowing Base as then computed and determined.
(f) The aggregate outstanding principal amount of all Facility A Loans
and the aggregate face amount of all outstanding Letters of Credit plus the
aggregate principal amount of all Facility B Loans shall not exceed the
Facility A Commitments then in effect.
(g) In the case of the issuance of any Letter of Credit, the Agent
shall have received a properly completed Application therefor together with
the fees called for hereby.
Each Borrowing Notice with respect to each Loan shall constitute a
representation and warranty by the Borrowers that the conditions contained in
Sections 4.2(a), (b), (d) and, if applicable, (e) have been satisfied (and each
request by a Borrower for the issuance of a Letter of Credit shall constitute a
representation and warranty by the Borrowers that the conditions contained in
Sections 4.2 (a), (b), (d) and (e) for making a Loan on the date of issuance of
the Letter of Credit have been satisfied).
Section 4.3. New Supporting Subsidiary. As a condition to any Subsidiary
becoming a Supporting Subsidiary after the date hereof, the Borrowers shall have
delivered or caused such Subsidiary to deliver to the Agent for each Lender the
following documentation:
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(i) Copies of the partnership agreements of such Subsidiary, certified
by a general partner or other duly authorized officer thereof to be a true,
correct and complete copy thereof.
(ii) Copies, certified by the secretary or assistant secretary of each
corporate general partner (if any) of such Subsidiary of its board of
directors' resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for the Lender) authorizing the execution of the Loan
Documents to which such Subsidiary, as a Supporting Subsidiary, is a party.
(iii) Certificates, executed by a general partner of such Subsidiary
and by the secretary or assistant secretary of each corporate general
partner of such Subsidiary (if any), which shall identify by name and title
and bear the signature of the partners or officers authorized to sign the
Loan Documents to which such Subsidiary, as a Supporting Subsidiary, is a
party.
(iv) A written opinion of Xxxxx & Associates or other counsel to such
Subsidiary acceptable to the Lenders, addressed to the Lenders in form and
substance substantially similar to the opinions expressed in Exhibits B-1
and B-2 with respect to the Supporting Subsidiaries.
(v) A duly executed Assumption and supplemental Security Agreement in
the form attached as Exhibit A to the Subsidiary Security Agreement.
(vi) A duly executed Assumption and Supplemental Guaranty Agreement in
the form attached as Exhibit A to the Guaranty Agreement.
(vii) Financing statements duly executed by such subsidiary and duly
filed in all jurisdictions in which, in the judgment of the Agent, the same
are required to be filed in order to perfect the security interests created
by such Subsidiary, as a Supporting Subsidiary, under the Subsidiary
Security Agreement.
(viii) Current searches in such Uniform Commercial Code filing offices
as the Agent shall require, prepared by independent search companies
acceptable to the Agent, evidencing no filings against any of the
collateral pledged by such Subsidiary as a Supporting Subsidiary, under the
Security Documents.
(ix) Such other documents as the Agent or Its counsel may have
reasonably requested.
ARTICLE V
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Lenders that:
Section 5.1. Existence and Standing. Each of the Borrowers is a limited
partnership duly formed, validly existing and (where applicable) in good
standing under the laws of its jurisdiction of formation, and all such
partnerships have the requisite authority to conduct their businesses in each
jurisdiction in which conducted where the failure to have such authority could
have a material adverse effect on the business, financial condition or results
of operations of such entity. The general partners of LPL and LPML are limited
partnerships duly formed, validly existing and in good standing under the laws
of the jurisdiction of their formation.
Section 5.2. Authorization and Validity. The Borrowers have the power and
authority and legal right to execute and deliver the Loan Documents to which
they are parties and to perform their obligations thereunder. The execution and
delivery by the Borrowers of the Loan Documents to which they are parties and
the performance of their obligations thereunder have been duly authorized by
appropriate corporate or partnership proceedings and the Loan Documents executed
by the Borrowers constitute legal, valid and binding obligations of the
Borrowers enforceable against them in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
Section 5.3. Compliance with Laws and Contracts; Senior Liabilities.
Neither the execution and delivery of the Loan Documents, nor the consummation
of the transactions therein contemplated, nor compliance with the provisions
thereof will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrowers, the partnership agreement
of any Borrower or the provisions of any indenture, instrument or agreement to
which any Borrower is a party or is subject, or by which it, or its property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien (other than Liens permitted under Section
6.15(g) hereof) in, of or on the property of any Borrower pursuant to the terms
of any such indenture, instrument or agreement. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents except for filings and
recordings of such financing statements executed by the Borrowers and Supporting
Subsidiaries and delivered to the Agent required in connection with perfection
of the security interests and Liens granted pursuant to the Security Agreements.
The Obligations are and shall at all times constitute "Senior Liabilities" as
defined in Section 5 of each of the promissory notes evidencing the Dai-Ichi
Indebtedness and are
32
entitled to all of the benefits of the subordination provisions in such Section
5.
Section 5.4. Financial Statements. The December 31, 1995 combined
financial statements of LPL and LPML and their Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with Agreement Accounting Principles
and fairly present the financial condition and operations of LPL and LPML and
their Subsidiaries at such date and the results of their operations for the
period then ended.
Section 5.5. Material Adverse Change. No material adverse change in the
business, financial condition, prospects or results of operations of the
Borrowers has occurred since the date of the financial statements referred to in
Section 5.4 (except changes representing customary cyclical trends of the
Borrowers within the fiscal year and consistent with historical performance).
Section 5.6. Taxes. The Borrowers and the Affiliates have filed all
United States federal tax returns and all other tax returns, if any, which were
required to be filed and have paid all taxes, if any, due and payable by them
pursuant to said returns or pursuant to any assessment received by the Borrowers
or any Affiliate, except such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided. No tax liens have
been filed and no claims are being asserted with respect to any such taxes. The
charges, accruals and reserves on the books of the Borrowers and the Affiliates
in respect of any taxes or other governmental charges are adequate.
Section 5.7. Litigation. There is no proceeding pending or, to the
knowledge of any of the Borrowers, threatened against or affecting any Borrower
or any Affiliate or their assets which has a reasonable possibility of
materially adversely affecting the business, financial condition or results of
operations of any Borrower or Supporting Subsidiary or of the Borrowers and the
Affiliates, taken as a whole, or the ability of any Borrower or any Supporting
Subsidiary to perform its obligations under the Loan Documents.
Section 5.8. Affiliates. Schedule "II" hereto contains an accurate list
of the Affiliates, setting forth their respective jurisdictions of formation or
incorporation, the partners or shareholders thereof and the percentages of their
respective partnership or shareholder interests.
Section 5.9. ERISA. Neither the Borrower nor any Affiliate has a Plan.
Section 5.10. Accuracy of Information. No information, exhibit or report
furnished by any Borrower to the Lender in connection with a Loan or the
negotiation of the Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
33
Section 5.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of any Borrower or Affiliate which are
subject to any limitation on their sale or pledge, or any other restriction,
under any Loan Document.
Section 5.12. Material Agreements. None of the Borrowers nor any
Affiliate is a party to any agreement or instrument or subject to any charter or
other corporate restriction materially and adversely affecting its business,
properties or assets, operations or condition (financial or otherwise). None of
the Borrowers nor any Affiliate is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in (i)
any agreement to which it is a party, which default might have a material
adverse effect on the business, properties or assets, operations, or condition
(financial or otherwise) of any of the Borrowers or Supporting Subsidiaries or
of the Borrowers and the Affiliates taken as a whole or (ii) any agreement or
instrument evidencing or governing Indebtedness of any of the Borrowers or
Supporting Subsidiaries.
Section 5.13. Approvals. No authorization, consent, license, exemption or
filing or registration with any court or governmental department, agency or
instrumentality, or any approval or consent of any other Person, is or will be
necessary to the valid execution, delivery or performance of the Loan Documents
by the Borrowers except for such approvals and consents which have been obtained
and are in full force and effect.
Section 5.14. Subordinated Indebtedness. The subordination provisions of
the Dai-Ichi Indebtedness (including, without limitation, the subordination of
any Liens granted the holders of the Dai-Ichi Indebtedness) are enforceable
against the Borrowers and the holders thereof, and all Loans, reimbursements
obligations under Letters of Credit, and interest thereon are within the
definition of "Senior Liabilities" under the notes evidencing the Dai-Ichi
Indebtedness.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Lenders shall otherwise
consent in writing:
Section 6.1. Financial Reporting. The Borrowers will maintain and cause
each Affiliate to maintain a system of accounting established and administered
in accordance with generally accepted accounting principles, and furnish to the
Lenders:
(a) By March l of each calendar year, preliminary fiscal year end financial
statements for LPL, LPML and their Subsidiaries for the preceding fiscal year,
and as soon as available but in no event later than 120 days after the close of
each fiscal year, an
34
unqualified audit report certified by independent certified public accountants,
reasonably acceptable to the Lenders, prepared in accordance with Agreement
Accounting Principles on a combined basis for LPL and LPML and their
Subsidiaries including balance sheets as of the end of such period, related
profit and loss, reconciliation of surplus and cash flow statements, accompanied
by any management letter prepared by said accountants (whether for the partners
or any committee of the partners) and by a certificate of said accountants that,
in the course of their examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or Unmatured Default
with respect to Sections 6.10, 6.11, 6.12, 6.13, 6.14, 6.16, 6.17, 6.18, 6.19,
6.20, 6.21, 6.22, 7.12 and 7.13 of this Agreement, or if, in the opinion of such
accountants, any such Default or Unmatured Default shall exist, stating the
nature and status thereof.
(b) As soon as available but in no event later than 60 days after the close
of the first, second and third quarterly periods of each fiscal year, on a
consolidated basis for LPL and LPML and their Subsidiaries, unaudited balance
sheets as at the close of each such period and profit and loss and
reconciliation of surplus statements for the period from the beginning of such
fiscal year to the end of such quarter, all certified on behalf of the Borrowers
by the chief financial officers or treasurers (or designees acceptable to the
Lenders) of the Borrowers.
(c) Together with the financial statements required hereunder, a compliance
certificate in substantially the form of Exhibit F hereto signed on behalf of
the Borrowers by the chief financial officers or treasurers (or designees
acceptable to the Lenders) of the Borrowers, showing the calculations necessary
to determine compliance with this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured Default exists, stating
the nature and status thereof, and describing any existing or anticipated
material adverse change from the cash flow projections delivered pursuant to
clause (g) below for the period covered by such compliance certificate.
(d) Within 20 days after the close of each calendar month, a Borrowing Base
Certificate in the form of Exhibit G hereto executed by an Authorized Person of
either Borrower, showing the computation of the Borrowing Base in reasonable
detail as of the close of business on the last day of such month.
(e) Within 270 days after the close of each fiscal year, a statement of the
Unfunded Liabilities of each Plan (if any), certified as correct by an actuary
enrolled under ERISA.
(f) As soon as possible and in any event within 10 days after either
Borrower knows that any Reportable Event has occurred with respect to any Plan,
a statement, signed by a partner or chief financial officer of such Borrower,
describing said Reportable Event and the action which it proposes to take with
respect thereto.
35
(g) By March 31 of each calendar year a business plan for the then current
fiscal year and a projection by the Borrowers of their combined cash flows for
the current fiscal year, and promptly upon experiencing any material adverse
change from such projected cash flows a written description of such change.
(h) Promptly after execution of any amendment to the partnership agreement
of either Borrower a true and correct copy of such amendment.
(i) Such other information (including non-financial information) as any
Lender may from time to time reasonably request.
Section 6.2. Use of Proceeds. The Borrowers will use the proceeds of the
Loans under Facility A solely for general business purposes. The proceeds of
Loans under Facility B and Facility C will be used solely to fund Investments
and Acquisitions permitted under Section 6.13(k) or (l) or consented to by the
Required Lenders, in their absolute discretion, after receipt of pro forma
financial information of the type described in Section 6.13(1) and such other
information as any Lender may request (or, in the case of Facility B, any other
use consented to by the Lenders in their absolute discretion). The Borrowers
will not, nor will they permit any of their Affiliates to, use any of the
proceeds of the Loans to purchase or carry any "margin stock" (as defined in
Regulation U) or to make any other Acquisition or for any purpose other than as
set forth in the preceding two sentences. In no event will any proceeds from
Loans be used, directly or indirectly, to pay any of the principal of the Dai-
Ichi Indebtedness, all such payments to be made exclusively from capital
contributions made to LPL and LPML by their partners.
Section 6.3. Notice of Default. The Borrowers will, and will cause each
of their Affiliates to, give prompt notice in writing to each Lender of the
occurrence of any Default or Unmatured Default and of any other development,
financial or otherwise, which has a reasonable possibility of having a material
adverse effect on its business, properties or affairs or the ability of the
Borrowers to repay the Obligations.
Section 6.4. Conduct of Business. The Borrowers will, and will cause each
of their Affiliates to, carry on and conduct their business in substantially the
same manner and in substantially the same fields of enterprise as it is
presently conducted, or has been conducted, by the Borrowers and their
Affiliates and do all things necessary to remain validly existing and, where
applicable, in good standing in its jurisdiction of incorporation or formation
and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
Section 6.5. Taxes. The Borrowers will, and will cause each of their
Affiliates to, pay when due all taxes, assessments and governmental charges and
levies upon it or its income, profits or property to the extent payable by the
Borrowers or any of their
36
Affiliates, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside.
Section 6.6. Insurance. The Borrowers will, and will cause each of their
Affiliates to, maintain with financially sound and reputable insurance companies
insurance on all their property in such amounts and covering such risks as is
consistent with sound business practice, and the Borrowers will furnish to the
Lender upon request full information as to the insurance carried.
Section 6.7. Compliance with Laws. The Borrowers will, and will cause
each of their Affiliates to, comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject.
Section 6.8. Maintenance of Properties. The Borrowers will, and will
cause each of their Affiliates to, do all things necessary to maintain,
preserve, protect and keep its properties in good repair, working order and
condition, and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times.
Section 6.9. Inspection. The Borrowers will, and will cause each of their
Affiliates to, permit each Lender, by its representatives and agents, to inspect
any of the properties, corporate books and financial records of the Borrowers
and each of their Affiliates, to examine and make copies of the books of
accounts and other financial records of the Borrowers and each of their
Affiliates, and to discuss the affairs, finances and accounts of the Borrowers
and each of their Affiliates with, and to be advised as to the same by, their
respective officers, all at such reasonable times and intervals as the Lender
may designate.
Section 6.10. Indebtedness. The Borrowers will not, nor will they permit
any of their Affiliates to, create, incur or suffer to exist any Indebtedness,
except:
(a) the Loans;
(b) Indebtedness existing on the date hereof and described on Schedule
"III" hereto;
(c) Indebtedness of (i) a Borrower to the other Borrower or to a Supporting
Subsidiary, (ii) a Supporting Subsidiary to a Borrower or to another Supporting
Subsidiary, or (iii) Affiliates that are not Supporting Subsidiaries to other
Affiliates that are not Supporting Subsidiaries;
(d) Indebtedness of Affiliates that are not Supporting Subsidiaries to
Borrowers, or Borrowers to Affiliates that are not Supporting Subsidiaries, up
to an aggregate principal amount not to exceed $1,000,000 at any one time
outstanding;
37
(e) Indebtedness of LPML to its partners or of LPL to its partners not
exceeding $1,000,000 outstanding at any time in the aggregate for all such
Indebtedness;
(f) Capitalized Lease Obligations (in addition to that referred to in
Section 6.10(b)) not exceeding $500,000 outstanding at any time, provided,
however, that Capitalized Lease Obligations (in addition to that referred to in
Section 6.10(b)) exceeding $500,000 outstanding at any time may be incurred if,
prior to incurring such additional Capitalized Lease Obligations, the Borrowers
reduce the Facility A Commitments by the amount of such additional Capitalized
Lease Obligations in the manner set forth in Section 2.7 without regard to the
minimum amount required by Section 2.7;
(g) the Dai-Ichi Indebtedness;
(h) Guaranties permitted by Section 6.14; and
(i) Indebtedness of LPI and LP International, Inc. to Borrowers permitted
by Section 6.13(h).
Section 6.11. Sale of Assets. The Borrowers will not, nor will they
permit any of their Affiliates to, lease, sell or otherwise dispose of all, or a
substantial portion of, their property, assets or business to any other Person.
The Borrowers will not, nor will they permit any of their Affiliates to, sell or
otherwise dispose of any accounts receivable, with or without recourse, or any
Collateral (other than (x) fixed assets no longer used or useful in the conduct
of their business and (y) Investments and Acquisitions purchased with the
proceeds of Loans hereunder so long as the Borrowers comply with Section 2.16
hereof). Notwithstanding the foregoing provisions of this Section 6.11, any
Borrower or Affiliate of a Borrower may sell property or assets (including
Receivables) to a newly-formed Supporting Subsidiary which has been created for
the purpose of owning or holding such property and assets.
Section 6.12. Sale and Leaseback. The Borrowers will not, nor will they
permit any of their Affiliates to, sell or transfer any property in order to
concurrently or subsequently lease as lessee such or similar property.
Section 6.13. Investments and Acquisitions. The Borrowers will not, nor
will they permit any of their Affiliates to, make or suffer to exist any
Investments (including without limitation, loans and advances to, and other
investments in, Affiliates), or commitments therefor, or to become or remain a
partner in any partnership or joint venture, or to acquire any going business or
all or substantially all of the assets of any Person or any division or business
of a Person, whether through purchase of assets, merger or otherwise, except:
(a) Short-term obligations of, or fully guaranteed by, the United States of
America.
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(b) Commercial paper rated A-1 or better by Standard and Poor's Ratings
Group, a division of The XxXxxx-Xxxx Companies, Inc. or P-l or better by Xxxxx'x
Investors Service, Inc.
(c) Demand deposit accounts maintained in the ordinary course of business.
(d) Certificates of deposit issued by and time deposits with commercial
banks (whether domestic or foreign) having capital and surplus in excess of
$50,000,000.
(e) Certificates of deposit issued by and time deposits with commercial
banks (whether domestic or foreign) having capital and surplus in excess of
$10,000,000 but less than $50,000,000, which deposits shall not exceed
$1,500,000 in the aggregate.
(f) Advances to (x) their respective partners and to their respective
employees in an aggregate amount not to exceed $2,500,000 outstanding at any
time and (y) their employee relocation firms in an aggregate amount not to
exceed $1,500,000 outstanding at any time.
(g) Loans by LPML and LPL to employee investment partnerships they sponsor
in an aggregate amount not to exceed $300,000 at any time outstanding.
(h) Investments in LPI and LP International, Inc. through loans or other
advances not exceeding $2,700,000 in aggregate principal amount at any time
outstanding in addition to those shown on Schedule "IV" hereto which aggregate
Investment may be further advanced by LPI and LP International, Inc. to any LPI
Affiliate organized outside the United States.
(i) Investments in existence on the date hereof and described on Schedule
"IV" hereto.
(j) Loans, advances or other extensions of credit to or from a Borrower or
Affiliate permitted by Section 6.10(b)-(e).
(k) Investments (other than Investments that constitute Acquisitions) of
any Borrower or Affiliate not specified above provided that the aggregate amount
of all such Investments in any calendar year does not exceed $3,000,000 and the
aggregate amount of any one such Investment shall not exceed $1,000,000
outstanding at any time.
(l) Acquisitions by the Borrowers in substantially the same line of
business as conducted by the Borrowers on the date hereof not specified above
provided that the aggregate purchase price (including indebtedness and other
liabilities assumed) incurred or assumed by the Borrowers for all such
Acquisitions in any calendar year does not exceed $10,000,000 and the aggregate
purchase price (including indebtedness and other liabilities assumed) incurred
or assumed by the Borrowers of any one Acquisition shall not exceed $2,500,000;
provided further that 30 days prior to the consummation
39
or any such Acquisition the Borrowers shall deliver to the Lenders pro forma
financial statements of the Borrowers demonstrating that after giving effect to
such Acquisition the Borrowers would be in compliance with Sections 6.16, 6.17,
6.19, 6.20, 6.21 and 6.22, for the next succeeding 12 month period and, in the
case of Section 6.22, would be in compliance with such covenant after giving
effect to such Acquisition and its financing if such covenant were tested as of
such date.
Section 6.14. Guaranties. The Borrowers will not, nor will they permit
any of their Affiliates to, make or suffer to exist any Guaranty (including,
without limitation, any Guaranty of the obligations of an Affiliate), except by
endorsement of instruments for deposit or collection in the ordinary course of
business, the Letters of Credit, the Guaranty Agreement, Guaranties listed on
Schedule M, other Guaranties of monetary obligations not exceeding $250,000 in
the aggregate outstanding at any time, and Guaranties of performance and/or
payment obligations of Affiliates under contracts to construct tenant
improvements that in the aggregate have an outstanding contract value not
exceeding $5,000,000.
Section 6.15. Liens. The Borrowers will not, nor will they permit any of
their Affiliates to, create, incur, or suffer to exist any Lien in, of or on the
property (including, without limitation, Receivables and accounts) of the
Borrowers or any of their Affiliates, except:
(a) Liens for taxes, assessments or governmental charges or levies on its
property if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith and by appropriate
proceedings.
(b) Statutory Liens of landlords and other Liens imposed by law, such as
carriers', warehousemen's and mechanics' liens and other similar liens arising
in the ordinary course of business which secure payment of obligations not more
than 60 days past due.
(c) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation.
(d) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect
to properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the business
of the Borrower or the Affiliates.
(e) Liens existing on the date hereof and described in Schedule "V" hereto.
(f) Liens of lessors on property leased by a Borrower or Affiliate pursuant
to leases permitted by this Agreement.
40
(g) Liens in favor of DSA-LSPL, Inc. and DSA-LSAM, Inc. subordinated to the
Liens in favor of the Agent pursuant to documentation in form and substance
satisfactory to the Lenders in their sole discretion.
Section 6.16. Rentals. The Borrowers will not, nor will they permit any
Affiliate to, create, incur or suffer to exist obligations for Rentals in excess
of the following amounts during the following calendar years in the aggregate
for the Borrowers and their Affiliates:
CALENDAR YEAR AMOUNT
1996 $7,000,000
1997 $8,100,000
1998 $9,300,000
Section 6.17. Net Worth. The Borrowers shall not on the dates set forth
below permit Net Worth to be less than the amount set forth opposite such
amount:
NET WORTH SHALL
DATE NOT BE LESS THAN
----------------- ----------------
December 31, 1996 $50,000,000
December 31, 1997 $60,000,000
December 31, 1998 $70,000,000
Section 6.18. Letters of Credit. The Borrowers will not, nor will they
permit any of their Affiliates to, apply for or become liable upon any letter
of credit, except the Letters of Credit.
Section 6.19. Related Person. Except for Indebtedness to Related Persons
permitted under Section 6.10, Investments in Related Persons permitted under
Section 6.13 and Distributions to Related Persons permitted by Section 6.23, the
Borrowers will not, and will not permit any of their Affiliates to, enter into
any transaction (including, without limitation, the purchase or sale of any
property or service) with, or make any payment or transfer to, any Related
Person except in the ordinary course of business and pursuant to the reasonable
requirements of such Borrower's or such Affiliate's business and upon fair and
reasonable terms no more or less favorable to such Borrower or such Affiliate
than the Borrower or such Affiliate would obtain in a comparable arms-length
transaction.
Section 6.20. EBITDA. The Borrowers shall have EBITDA during the periods
specified below of at least the amount set forth opposite such period:
FROM AND INCLUDING TO AND INCLUDING MINIMUM EBITDA
------------------ ------------------ --------------
January 1, 1996 September 30, 1996 $20,250,000
January 1, 1996 December 31, 1996 $27,000,000
January 1, 1997 March 31, 1997 $ 2,560,000
41
January 1, 1997 June 30, 1997 $ 9,600,000
January 1, 1997 September 30, 1997 $20,800,000
January 1, 1997 December 31, 1997 $32,000,000
January 1, 1998 March 31, 1998 $ 2,960,000
January 1, 1998 June 30, 1998 $11,100,000
January 1, 1998 September 30, 1998 $24,000,000
January 1, 1998 December 31, 1998 $37,000,000
January 1, 1999 March 31, 1999 $ 3,200,000
January 1, 1999 June 30, 1999 $12,000,000
January 1, 1999 September 30, 1999 $26,000,000
Section 6.21. Fixed Charge Coverage Ratio. The Borrowers shall maintain,
or cause to be maintained, as of the last day of each fiscal quarter of the
Borrowers commencing December 31, 1996, a Fixed Charge Coverage Ratio greater
than or equal to 1.15 to 1.00.
Section 6.22. Maximum Leverage Ratio. The Borrowers shall not as of
December 31 of any year permit the ratio of Combined Funded Indebtedness minus
the Dai-Ichi Indebtedness included in such amount to the sum of (x) Combined
Equity and (y) Combined Funded Indebtedness minus the Dai-Ichi Indebtedness
included in such amount to be greater than 0.45 to 1.00.
Section 6.23. Distributions. LPML and LPL shall not make any
Distributions to any of their respective partners, except for Distributions made
in compliance with their partnership agreements as in effect on the date hereof
and delivered to the Lenders pursuant to Section 4.1(a)(i) hereof (the
"Partnership Agreements"); provided that immediately prior to and after giving
effect to any such Distribution no Default or Unmatured Default shall have
occurred and be continuing. Within 120 days after the end of each fiscal year,
the Borrowers will deliver to the Lenders a description of the Distributions for
such fiscal year as set forth on a cash flow distribution schedule in a form
consistent with the Partnership Agreements.
Section 6.24. Long-Term Receivables. The Borrowers shall, promptly upon
request of the Lender, deliver to the Lender true, correct and complete copies
of all documents evidencing (a) any Receivable that is in an amount in excess of
$100,000 and is not due and payable within one (1) year and (b) any Receivable
in excess of 18 months which Lender has determined constitutes an Eligible
Receivable.
Section 6.25. The Dai-Ichi Indebtedness. No payment of the Dai-Ichi
Indebtedness shall be made before the date such payment is due, and no Borrower
shall take any action to cause any such Indebtedness to become due before its
regularly scheduled due date. The Borrowers shall not amend or consent to any
amendments to the Dai-Ichi Indebtedness or any document evidencing the Dai-Ichi
Indebtedness. The Borrowers shall only repay the Dai-Ichi Indebtedness out of
the proceeds from the sale or issuance of additional equity of either Borrower.
42
Section 6.26. New Supporting Subsidiaries. To the extent required by the
definition of Supporting Subsidiary, the Borrowers shall cause their
Subsidiaries to become Supporting Subsidiaries by delivering to the Agent the
documents required by Section 4.3 hereof.
Section 6.27. Additional Co-Investments. Within 45 days of the date
hereof the Borrowers shall take all actions necessary in order to grant the
Agent a first prior perfected security interest in all investments listed under
Item 2 on Schedule VII hereto.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
Section 7.1. Any material representation or warranty made or deemed made
by or on behalf of any Borrower or Affiliate to the Lenders under or in
connection with this Agreement, any Loan, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall be
materially false as of the date on which made.
Section 7.2. Nonpayment or principal of, or interest upon, any Note at the
Revolving Credit Termination Date or, other than at the Revolving Credit
Termination Date, within two days after written notice that the same is due, or
nonpayment of any other obligations under any of the Loan Documents within five
days after written notice that the same is due, or violation by any Borrower of
the prohibitions in Section 6.25.
Section 7.3. The breach by any Borrower (other than a breach which
constitutes a Default under Section 7.1 or 7.2) of any of the terms or
provisions of this Agreement or any other Loan Document which is not remedied
within thirty days after written notice from the Agent or any Lender.
Section 7.4. Failure of any Borrower or any Affiliate to pay any
indebtedness when due or within any applicable cure or grace period; or the
default by any Borrower or any Affiliate in the performance of any term,
provision or condition contained in any agreement under which any Indebtedness
was created or is governed, the effect of which is to cause, or to permit the
holder or holders of such Indebtedness to cause, such Indebtedness to become due
prior to its stated maturity; or any Indebtedness shall be declared to be due
and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the stated maturity thereof; provided that the aggregate
amount of all Indebtedness affected by any or all of the foregoing is at least
$500,000.
Section 7.5. Any Borrower or any Affiliate shall (a) have an order for
relief entered with respect to it under the Federal
43
Bankruptcy Code, (b) not pay, or admit in writing its inability to pay, its
debts generally as they become due, (c) make an assignment for the benefit of
creditors, (d) apply for, seek, consent to, or acquiesce in, the appointment of
a receiver, custodian, trustee, examiner, liquidator or similar official for it
or any substantial part of its property, (e) institute any proceeding seeking an
order for relief under the Federal Bankruptcy Code or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (f) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.5 or (g) fail to contest in good faith any appointment or proceeding
described in Section 7.6.
Section 7.6 Without the application, approval or consent of the Borrower
or any Affiliate, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for any Borrower or any Affiliate or any substantial part of
its property, or a proceeding described in Section 7.5(e) shall be instituted
against any Borrower or any Affiliate, and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days.
Section 7.7. Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of, all or any
substantial portion of the property of any Borrower or any Supporting Subsidiary
or of the Borrowers and the Affiliates taken as a whole.
Section 7.8. Any Borrower or any Affiliate shall fail within 30 days to
pay, bond or otherwise discharge any judgment or order for the payment of money
in excess of $500,000, which is not stayed on appeal or otherwise being
appropriately contested in good faith.
Section 7.9. Unfunded Liabilities of any Plans shall exceed in the
aggregate $500,000 or any Reportable Event shall occur in connection with any
Plan.
Section 7.10. There shall occur a change in the business, financial
condition, prospects or results of operations of a Borrower that the Required
Lenders determine to be material and adverse.
Section 7.11. Both Xxxxxx and Xxxxxx shall cease, directly or indirectly
through a wholly owned "S" corporation, to be either Class A Limited Partners or
general partners of both DEL-LPAML and DEL-LPL having senior management
responsibility for such partnerships (other than by reason of death or
disability) (it being understood for purposes of this Section 7.11 that "S"
corporations majority controlled by an individual but in which related family
members hold minority interests will be considered "wholly owned" by such
controlling individual.
44
Section 7.12. At any time fewer than ten of the persons that, as of the
date of this Agreement, are members of the Board of Directors of DEL-LPAML shall
cease to be members of such Board of Directors (or such other board or committee
as shall succeed to the powers and authority of such Board of Directors) or
shall cease to be officers of one of the Borrowers active in the management of
such Borrower or ceases to be a partner in both Borrowers.
Section 7.13. At any time fewer than ten of the persons that, as of the
date of this Agreement, are members of the Board of Directors of DEL-LPL shall
cease to be members of such Board of Directors (or such other board or committee
as shall succeed to the powers and authority of such Board of Directors) or
shall cease to be officers of one of the Borrowers active in the management of
such Borrowers or cease to be a partner in both Borrowers.
Section 7.14. The occurrence of any "default," as defined in any Loan
Document (other than the Agreement or the Notes) or the breach of any of the
terms or provisions of any Loan Document (other than the Agreement or the
Notes), which default or breach continues beyond any period of grace therein
provided.
Section 7.15. At any time DEL-LPL Limited Partnership ceases to be the
sole general partner of LPL with the right to name a majority of the members of
the "Partnership Committee" (or equivalent governing body) of LPL or if at any
time DEL-LPAML Limited Partnership ceases to be the sole general partner of LPML
with the right to name a majority of the members of the "Partnership Committee"
(or equivalent governing body) of LPML or if either at any time ceases to own
and control at least 51% of all partnership interests in such Borrower in which
it is the sole general partner.
Section 7.16. At any time other than a regularly scheduled payment date
for the Dai-Ichi Indebtedness any payment becomes due or is made thereon.
Section 7.17. At any time either DEL-LPL or DEL-LPAML becomes liable on
any debt for borrowed money without the Required Lenders' written consent.
Section 7.18. At any time from and after the date hereof demand shall be
made upon either Borrower or any Affiliate for the payment of any portion of any
note or other indebtedness identified as a "Note Payable" on the Borrowers
Capitalization Summary as from time to time delivered to the Lenders pursuant to
Section 6.1 hereof in a face amount of $1,000,000 or more or more than two
"Notes Payable" regardless of the face amounts thereof.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
45
Section 8.1. Non-Bankruptcy Defaults. When any Event of Default other than
those described in Section 7.5 or 7.6 hereof has occurred and is continuing, the
Agent shall, by written notice to the borrowers: (a) if so directed by the
Required Lenders, terminate the remaining Commitments and all other obligations
of the Lenders hereunder on the date stated in such notice (which may be the
date thereof); (b) if so directed by the Required Lenders, declare the principal
of and the accrued interest on all outstanding Notes to be forthwith due and
payable and thereupon all outstanding Notes, including both principal and
interest thereon, shall be and become immediately due and payable together with
all other amounts payable under the Loan Documents without further demand,
presentment, protest or notice of any kind; and (c) if so directed by the
Required Lenders, demand that the Borrowers immediately pay to the Agent the
full amount then available for drawing under each or any Letter of Credit, and
the Borrowers agree to immediately make such payment and acknowledge and agree
that the Lenders would not have an adequate remedy at law for failure by the
Borrowers to honor any such demand and that the Agent, for the benefit of the
Lenders, shall have the right to require the Borrowers to specifically perform
such undertaking whether or not any drawings or other demands for payment have
been made under any Letter of Credit. The Agent, after giving notice to the
Borrower pursuant to this Section 8.1, shall also promptly send a copy of such
notice to the other Lenders, but the failure to do so shall not impair or annul
the effect of such notice.
Section 8.2. Bankruptcy Defaults. When any Event or Default described in
Section 7.5 or 7.6 hereof has occurred and is continuing, then all outstanding
Notes shall immediately become due and payable together with all other amounts
payable under the Loan Documents without presentment, demand, protest or notice
of any kind, the obligation of the Lenders to extend further credit pursuant to
any of the terms hereof shall immediately terminate and the Borrowers shall
immediately pay to the Agent the full amount then available for drawing under
all outstanding Letters of Credit, the Borrowers acknowledging that the Lenders
would not have an adequate remedy at law for failure by the Borrowers to honor
any such demand and that the Lenders, and the Agent on their behalf, shall have
the right to require the Borrowers to specifically perform such undertaking
whether or not any draws or other demands for payment have been made under any
of the Letters of Credit.
Section 8.3. Collateral for Undrawn Letters of Credit. If the prepayment
of the amount available for drawing under any or all outstanding Letters of
Credit is required under Section 2.15 or under Section 8.2, the Borrowers shall
forthwith pay the amount required to be so prepaid, to be held by the Agent as
additional Collateral (as defined in the Security Agreements) on the same terms
and conditions on which the Collateral is held.
Section 8.4. Preservation of Rights. No delay or omission of the Lender
to exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding
46
the existence of a Default or the inability of the Borrowers to satisfy the
conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other rights.
All remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Lenders until the Obligations have
been paid in full and all Commitments of the Lender hereunder have expired.
ARTICLE IX
AGENT
Section 9.1. Appointment and Authorization. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers hereunder and under the other Loan Documents as are
designated to the Agent by the terms hereof and thereof together with such
powers as are reasonably incidental thereto. The Lenders expressly agree that
the Agent is not acting as a fiduciary of the Lenders in respect of the Loan
Documents, the Borrowers or otherwise, and nothing herein or in any of the other
Loan Documents shall result in any duties or obligations on the Agent or any of
the Lenders except as expressly set forth herein. The Agent may resign at any
time by sending 20 days prior written notice to the Borrowers and the Lenders.
In the event of any such resignation, the Required Lenders may appoint a new
agent after consultation with the Borrowers, which shall succeed to all the
rights, powers and duties of the Agent hereunder and under the other Loan
Documents. Any resigning Agent shall be entitled to the benefit of all the
protective provisions hereof with respect to its acts as an agent hereunder, but
no successor Agent shall in any event be liable or responsible for any actions
of its predecessor. If the Agent resigns and no successor is appointed, the
rights and obligations of such Agent shall be automatically assumed by the
Required Lenders and (i) the Borrowers shall be directed to make all payments
due each Lender hereunder directly to such Lender and (ii) the Agent's rights in
the Collateral Documents shall be assigned without representation, recourse or
warranty to the Lenders as their interests may appear.
Section 9.2. Rights as a Lender. The Agent has and reserves all of the
rights, powers and duties hereunder and under the other Loan Documents as any
Lender may have and may exercise the same as though it were not the Agent and
the terms "Lender" or "Lenders" as used herein and in all of such documents
shall, unless the context otherwise expressly indicates, include the Agent in
its individual capacity as a Lender.
Section 9.3. Standard of Care. The Lenders acknowledge that they have
received and approved copies and acknowledge their agreement with the provisions
of the Loan Documents and such other information and documents concerning the
transactions contemplated and financed hereby as they have requested to receive
and/or review. The Agent makes no representations or warranties of any
47
kind or character to the Lenders with respect to the validity, enforceability,
genuineness, perfection, value, worth or collectibility hereof or of the Notes
or any of the other Obligations or of any of the other Loan Documents or of the
Liens provided for thereby or of any other documents called for hereby or
thereby or of the Collateral. The Agent need not verify the worth or existence
of the Collateral and may rely exclusively on reports of the Borrowers in
computing the Borrowing Base. Neither the Agent nor any director, officer,
employee, agent or representative thereof (including any security trustee
therefor) shall in any event be liable for any clerical errors or errors in
judgment, inadvertence or oversight, or for action taken or omitted to be taken
by it or them hereunder or under the other Loan Documents or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct. The Agent shall incur no liability under or in respect of this
Agreement or the other Loan Documents by acting upon any notice, certificate,
warranty, instruction or statement (oral or written) of anyone (including anyone
in good faith believed by it to be authorized to act on behalf of the
Borrowers), unless it has actual knowledge of the untruthfulness of same. The
Agent may execute any of its duties hereunder by or through employees, agents,
and attorneys-in-fact and shall not be answerable to the Lenders for the default
or misconduct of any such agents or attorneys-in-fact selected with reasonable
care. The Agent shall be entitled to advice of counsel concerning all matters
pertaining to the agencies hereby created and its duties hereunder, and shall
incur no liability to anyone and be fully protected in acting upon the advice of
such counsel. The Agent shall be entitled to assume that no Default or Event of
Default exists unless notified to the contrary by a Lender. The Agent shall in
all events be fully protected in acting or failing to act in accord with the
instructions of the Required Lenders. Upon the occurrence of an Event of
Default hereunder, the Agent shall take such action with respect to the
enforcement of the Liens on the Collateral and the preservation and protection
thereof as it shall be directed to take by the Required Lenders but unless and
until the Required Lenders have given such direction the Agent shall take or
refrain from taking such actions as it deems appropriate and in the best of
interest of all Lenders. The Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless it shall be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by the Agent by reason of taking or continuing to take any such
action. The Agent may treat the owner of any Note as the holder thereof until
written notice of transfer shall have been filed with the Agent signed by such
owner in form satisfactory to the Agent. Each Lender acknowledges that it has
independently and without reliance on the Agent or any other Lender and based
upon such information, investigations and inquiries as it deems appropriate made
its own credit analysis and decision to extend credit to the Borrowers. It
shall be the responsibility of each Lender to keep itself informed as to the
creditworthiness of the Borrowers and the Agent shall have no liability to any
Lender with respect thereto.
48
Section 9.4. Costs and Expenses. Each Lender agrees to reimburse the
Agent for all costs and expenses suffered or incurred by the Agent or any
security trustee in performing its duties hereunder and under the other Loan
Documents, or in the exercise of any right or power imposed or conferred upon
the Agent hereby or thereby, to the extent that the Agent is not promptly
reimbursed for same by the Borrowers or out of the Collateral, all such costs
and expenses to be borne by the Lenders ratably in accordance with the amounts
of their respective Commitments. If any Lender fails to reimburse the Agent for
such Lender's share of any such costs and expenses, such costs and expenses
shall be paid pro rata by the remaining Lenders, but without in any manner
releasing the defaulting Lender from its liability hereunder.
Section 9.5. Indemnity. The Lenders shall ratably indemnify and hold the
Agent, and its directors, officers, employees, agents and representatives
(including as such any security trustee therefor) harmless from and against any
liabilities, losses, costs and expenses suffered or incurred by them hereunder
or under the other Loan Documents or in connection with the transactions
contemplated hereby or thereby, regardless of when asserted or arising, except
to the extent they are promptly reimbursed for the same by the Borrowers or out
of the Collateral and except to the extent that any event giving rise to a claim
was caused by the gross negligence or willful misconduct of the party seeking to
be indemnified. If any Lender defaults in its obligations hereunder, its share
of the obligations shall be paid pro rata by the remaining Lenders, but without
in any manner releasing the defaulting Lender from its liability hereunder.
ARTICLE X
GENERAL PROVISIONS
Section 10.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that the
Borrowers shall not have the right to assign any of their rights or obligations
under this Agreement. No Lender shall disclose to any purchaser or prospective
purchaser of an interest in the Loans any financial or other information
pertaining to the Borrowers without the prior written consent of the Borrowers,
which shall not be unreasonably withheld. Any request, authority or consent of
any Person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
Section 10.2. Survival of Representations. All representations and
warranties of the Borrowers contained in this Agreement shall survive delivery
of the Notes and the making of the Loans herein contemplated.
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Section 10.3. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrowers in violation of any limitation or prohibition
provided by any applicable statute or regulation.
Section 10.4. Taxes. Any taxes (excluding taxes measured by the net
income of any Lender) payable or ruled payable by Federal or State authority in
respect of the Loan Documents shall be paid by the Borrowers, together with
interest and penalties, if any.
Section 10.5. Choice of Law. The Loan Documents (other than those
containing a contrary express choice of law provision) shall be construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Illinois, but giving effect to applicable federal laws. The Borrowers hereby
irrevocably submit to the non-exclusive jurisdiction of any United States
federal or Illinois state court sitting in Chicago in any action or proceedings
arising out of or relating to any Loan Documents and the Borrowers hereby
irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in any such court.
Section 10.6. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
Section 10.7. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrowers and the Lenders and supersede
all prior agreements and understandings among the Borrowers and the Lenders
relating to the subject matter thereof.
Section 10.8. Expenses; Indemnification. The Borrowers shall reimburse
the Agent for any costs, internal charges and out-of-pocket expenses (including,
except as hereinafter provided, attorneys' fees and time charges of attorneys
and paralegals for the Agent, which attorneys and paralegals may be employees of
the Agent) paid or incurred by the Agent in connection with the preparation,
review, execution, delivery, amendment, modification, administration, collection
and enforcement of the Loan Documents and in connection with the recording or
filing of any of the foregoing. The Borrowers further agree to indemnify the
Lenders, their directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
such Lender is a party thereto) which any of them may pay or incur arising out
of or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan hereunder, other than any of the
foregoing that result from the gross negligence or willful misconduct of such
Lender. The obligations of the Borrowers under this Section shall survive the
termination of this Agreement.
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Section 10.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
Section 10.10. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
Section 10.11. Setoff. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if any Default occurs and is
continuing, any indebtedness from the Lenders to the Borrowers (including all
account balances, whether provisional or final and whether or not collected or
available but excluding all accounts of any Borrower in a fiduciary capacity)
may be offset and applied toward the payment of the Obligations owing to the
Lenders, whether or not the Obligations, or any part hereof, shall then be due.
The Borrowers agree that any holder of a participation in a Loan may, to the
fullest extent permitted by law, exercise all its rights of payment with respect
to such participation as if such holder were the direct creditor of the
Borrowers in the amount of the participation.
Section 10.12. Waivers, Modifications and Amendments. Any provision
hereof or of any of the other Loan Documents may be amended, modified, waived or
released and any Default or Unmatured Default and its consequences may be
rescinded and annulled upon the written consent of the Required Lenders;
provided, however, that without the consent of all Lenders no such amendment,
modification or waiver shall increase the amount or extend the term of any
Lender's Commitment or reduce the amount of any principal of or interest rate
applicable to, or extend the maturity of, any obligation owed to it or reduce
the amount of the fees to which it is entitled hereunder or release any
substantial (in value) part of the collateral security afforded by the Security
Agreements (except in connection with a sale or other disposition required to be
effected by the provisions hereof or of the Security Agreement) or change this
Section or change the definition of "Required Lenders" or change the number of
Lenders required to take any action hereunder or under any of the other Loan
Documents. No amendment, modification or waiver of the Agent's protective
provisions shall be effective without the prior written consent of the Agent.
Section 10.13. Assignment Agreements. Each Lender may, from time to time
upon at least 5 Business Days' prior written notice to the Agent, assign to
other commercial lenders part of its rights and obligations under this Agreement
(including without limitation the indebtedness evidenced by the Notes then owned
by such assigning Lender, together with an equivalent proportion of its
Commitments to make Loans hereunder) pursuant to written agreements
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executed by such assigning Lender, such assignee lender or lenders, the
Borrowers and the Agent, which agreements shall specify in each instance the
portion of the indebtedness evidenced by the Notes which is to be assigned to
each such assignee lender and the portion of the Commitments of the assigning
Lender to be assumed by it (the "Assignment Agreements"); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of the assigning Lender's rights and obligations under this Agreement
and the assignment shall cover the same percentage of such Lender's Commitments,
Loans, Notes and credit risk with respect to Letters of Credit; (ii) unless the
Agent otherwise consents, the aggregate amount of the Commitments, Loans, Notes
and credit risk with respect to Letters of Credit of the assigning Lender being
assigned pursuant to each such assignment (determined as of the effective date
of the relevant Assignment Agreement) shall in no event be less than $5,000,000
and shall be an integral multiple of $1,000,000; (iii) the Agent and the
Borrowers must each consent, which consent of the Borrowers shall not be
unreasonably withheld, to each such assignment to a party which was not an
original signatory of this Agreement; and (iv) the assigning Lender must pay to
the Agent a processing and recordation fee of $5,000 and any out-of-pocket
expenses incurred by the Agent in connection with such Assignment Agreement.
Upon the execution of each Assignment Agreement by the assigning Lender
thereunder, the assignee lender thereunder, the Borrowers and the Agent and
payment to such assigning Lender by such assignee lender of the purchase price
for the portion of the indebtedness of the Borrowers being acquired by it, (i)
such assignee lender shall thereupon become a "Lender" for all purposes of this
Agreement with Commitments in the amounts set forth in such Assignment Agreement
and with all the rights, powers and obligations afforded a Lender hereunder,
(ii) such assigning Lender shall have no further liability for funding the
portion of its Commitments assumed by such other Lender and (iii) the address
for notices to such assignee Lender shall be as specified in the Assignment
Agreement executed by it. Concurrently with the execution and delivery of such
Assignment Agreement, the Borrowers shall execute and deliver Notes to the
assignee Lender in the respective amounts of its Commitment under each Facility
and new Notes to the assigning Lender in the respective amounts of its
Commitment under each Facility after giving effect to the reduction occasioned
by such assignment, all such Notes to constitute "Notes" for all purposes of
this Agreement and of the other Loan Documents.
Section 10.14. Participants. Each Lender shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and other Obligations and/or
Commitments held by such Bank at any time and from time to time to one or more
other Persons; provided that no such participation shall relieve any Lender of
any of its obligations under this Agreement, and, provided, further that no such
participant shall have any rights under this Agreement except as provided in
this Section 10.14, and the Agent shall have no obligation or responsibility to
such participant. Any agreement pursuant to which such participation is granted
shall provide that the granting Bank shall retain the sole
52
right and responsibility to enforce the obligations of the Borrowers, Guarantors
and Supporting Subsidiaries under this Agreement and the other Loan Documents
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of the Loan Documents, except that such agreement may
provide that such Lender will not agree to any modification, amendment or waiver
of the Loan Documents that would reduce the amount of or postpone any fixed date
for payment of any Obligation in which such participant has an interest. Any
party to which such a participation has been granted shall have the benefits of
Section 3.1 and Section 3.4 hereof but shall not be entitled to receive any
greater payment under either such Section than the Lender granting such
participation would have been entitled to receive with respect to the rights
transferred.
Section 10.15. Joint and Several. Each Borrower acknowledges that credit
is being extended by the Lenders under this Agreement based upon the joint and
several liability of each Borrower for all Obligations. Each Borrower's joint
and several liability on the Notes, under each Letter of Credit and for all
Obligations shall not in any manner be impaired or affected by who executes any
application for a Letter of Credit, who receives or uses the proceeds of the
Loans or the credit provided by the Letters of Credit or for what purposes such
proceeds or credit are used, and each Borrower waives notice of borrowing
requests issued by, and Loans made to, other Borrowers. The joint and several
liability of each Borrower for all Obligations is absolute and unconditional and
shall not be impaired or otherwise affected by any failure, neglect or omission
on the Lender's part to resort to one or all of the Borrowers, any of the
"Collateral" described in the Security Agreements, or any other Person or
collateral for payment of the Obligations.
Section 10.16. Giving Notice. Except for notices under Article II, any
notice required or permitted to be given under this Agreement shall be in
writing. Such written notices shall be deemed given when sent, if sent by
facsimile transmission, or when delivered, if sent by mail, overnight courier or
hand delivery, addressed, in the case of a notice to any one or more of the
Borrowers, to LPL at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000,
Attention: Treasurer (with a copy to Xxxxx & Associates at 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 60601) or, in the case of notice to the
Agent or any Lender, such address as set forth on the applicable signature page
hereof. The Borrowers and the Lenders may each change the address for service of
notice upon it by a notice in writing to the other parties hereto.
Section 10.17. Limitation of Liability. In addition to, and not in
limitation of, any limitation on liability provided by law or by any contract,
agreement, instrument or document, the liability of the Borrowers shall be
limited to the assets of the Borrowers, and no present or future partner of a
Borrower shall have any personal liability under this Agreement, except if such
partner is itself a Borrower.
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Section 10.18. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
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IN WITNESS WHEREOF, the Borrowers and the Lenders have executed this
Agreement as of the date first above written.
LASALLE PARTNERS LIMITED PARTNERSHIP, a
Delaware limited partnership
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------------
Name: Xxxxxxx X. XxXxxxxxx
------------------------------
Title: Vice President, Treasurer and
-----------------------------
Assistant Secretary
LASALLE PARTNERS MANAGEMENT LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
-------------------------------
Title: President, Managing Director,
------------------------------
Treasurer and Secretary
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Address for Notice and Amount
of Commitment:
000 Xxxx Xxxxxx XXXXXX TRUST AND SAVINGS BANK, in its
Xxxxxxx, Xxxxxxxx 00000 individual capacity as a Lender and as
Attention: Emerging Majors Agent
Telecopy: (000) 000-0000
Telephone: (000) 000-0000 By: /s/ M. Xxxxxxxxx Xxxxxxx
-------------------------------------
Name: M. Xxxxxxxxx Xxxxxxx
Title: Vice President
Facility A Commitment: $17,142,850
Facility B Commitment: $ 5,714,300
Facility C Commitment: $22,857,150
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Eurodollar Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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000 Xxxxx XXXxxxx Xxxxxx XXXXXXX NATIONAL BANK
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000 By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Facility A Commitment: $12,857,150
Facility B Commitment: $ 4,285,700
Facility C Commitment: $17,142,850
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Eurodollar Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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