EXHIBIT 10.3
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AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Dated as of
October 27, 1999
Among
XXXXX XXXX LASALLE INCORPORATED,
THE GUARANTORS PARTY HERETO,
THE BANKS PARTY HERETO,
XXXXXX TRUST AND SAVINGS BANK.
as Administrative Agent,
Co-Lead Arranger and
Joint Book Runner,
THE CHASE MANHATTAN BANK,
as Documentation Agent,
BANK ONE, NA,
as Syndication Agent,
BANC ONE CAPITAL MARKETS, INC.,
as Co-Lead Arranger
and Joint Book Runner
AND
CHASE SECURITIES INC.,
as Co-Arrangers
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AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
This Multicurrency Credit Agreement, dated as of October 27, 1999, is
among Xxxxx Xxxx LaSalle Incorporated, a Maryland corporation (the
"Borrower"), the Guarantors (as hereinafter defined) party hereto, the
banks from time to time party hereto (each a "Bank" and, collectively, the
"Banks") and Xxxxxx Trust and Savings Bank, as Administrative Agent.
Preliminary Statement
The Borrower, the Banks party thereto and the Administrative Agent
are parties to a Multicurrency Credit Agreement, dated as of November 25,
1997 (as amended, modified or supplemented prior to the date hereof, the
"Original Credit Agreement"); and
Subject to and upon the terms and conditions set forth herein, the
parties desire to amend and restate the Original Credit Agreement in the
form of this Agreement;
Now, Therefore, in consideration of the mutual agreements contained
herein, and the other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. THE REVOLVING CREDIT.
SECTION 1.1. REVOLVING CREDIT COMMITMENTS. Subject to the terms
and conditions hereof, each Bank severally agrees to make a loan or loans
(individually a "Revolving Loan" and collectively "Revolving Loans") to the
Borrower from time to time on a revolving basis in U.S. Dollars and
Alternative Currencies in an aggregate outstanding Original Dollar Amount
up to the amount of its Revolving Credit Commitment subject to any
increases or reductions thereof pursuant to the terms hereof, before the
Revolving Credit Termination Date. The sum of the (i) aggregate Original
Dollar Amount of Revolving Loans, (ii) the aggregate Original Dollar Amount
of Swingline Loans, and (iii) L/C Obligations at any time outstanding shall
not exceed the Revolving Credit Commitments in effect at such time. The
sum of the aggregate Original Dollar Amount of all Revolving Loans
denominated in an Alternative Currency at any times outstanding shall not
exceed $75,000,000. Each Borrowing of Revolving Loans shall be made
ratably from the Banks in proportion to their respective Percentages. As
provided in Section 1.7(a) hereof, the Borrower may elect that each
Borrowing of Revolving Loans denominated in U.S. Dollars be either Domestic
Rate Loans or Eurocurrency Loans. All Revolving Loans denominated in an
Alternative Currency shall be Eurocurrency Loans. Revolving Loans may be
repaid and the principal amount thereof reborrowed before the Revolving
Credit Termination Date, subject to all the terms and conditions hereof.
SECTION 1.2. TERM LOAN COMMITMENTS. Subject to the terms and
conditions hereof, each Bank, by its acceptance hereof, severally agrees to
make a loan (individually a "Term Loan" and collectively for all the Banks,
the "Term Loans") in U.S. Dollars to the Borrower in the amount of such
Bank's Term Loan Commitment. The Term Loans shall be advanced in a single
Borrowing on the Effective Date (or, if the Term Loan Commitments are
increased pursuant to Section 1.15 hereof, on the date the increase in
Commitments become effective) and shall be made ratably by the Banks in
proportion to their respective Percentages. As provided in Section 1.7(a)
hereof, the Borrower may elect that the Term Loans be outstanding as
Domestic Rate Loans or Eurocurrency Loans. No amount repaid or prepaid on
any Term Loan may be borrowed again.
SECTION 1.3. THE SWINGLINE. (a) SWINGLINE LOANS. Subject to
all of the terms and conditions hereof, Xxxxxx Bank agrees to make loans in
U.S. Dollars to the Borrower ("Swingline Loans"), which shall not in the
aggregate at any time outstanding exceed the lesser of (i) the Swingline
Commitment or (ii) the difference between (x) the Revolving Credit
Commitments in effect at such time and (y) the Revolving Loans and
L/C Obligations outstanding at the time of computation. The Swingline
Commitment may be availed of by the Borrower from time to time and
borrowings thereunder may be repaid and used again during the period ending
on the day immediately preceding the Revolving Credit Termination Date.
(b) MINIMUM BORROWING AMOUNT. Each Swingline Loan shall be in an
amount not less than $100,000.
(c) INTEREST ON SWINGLINE LOANS. Each Swingline Loan shall bear
interest (computed on the basis of a year of 360 days and actual days
elapsed) for the Interest Period selected therefor at the Domestic Rate
plus the Applicable Margin for Domestic Rate Loans or at the rate quoted by
Xxxxxx Bank to the Borrower which is the interest rate determined in Xxxxxx
Bank's discretion at which the Xxxxxx Bank would be willing to make such
Swingline Loan available to the Borrower for such Interest Period (the rate
so quoted for a given Interest Period being herein referred to as the
"Quoted Rate"), provided that if any Swingline Loan is not paid when due
(whether by lapse of time, acceleration or otherwise) such Swingline Loan
shall bear interest whether before or after judgment, until payment in full
thereof through the end of the Interest Period then applicable thereto at
the rate set forth in Section 1.11 hereof. Interest on each Swingline Loan
shall be due and payable on the last day of each Interest Period applicable
thereto, and interest after maturity (whether by lapse of time,
acceleration or otherwise) shall be due and payable upon demand.
(d) REQUESTS FOR SWINGLINE LOANS. The Borrower shall give the
Administrative Agent and Xxxxxx Bank prior notice (which may be written or
oral) no later than 12:00 Noon (Chicago time) on the date upon which the
Borrower requests that any Swingline Loan be made, specifying in each case
the amount and date of such Swingline Loan and the Interest Period selected
therefor. Within thirty (30) minutes after receiving such notice, Xxxxxx
Bank shall quote the Quoted Rate for such Interest Period. The Borrower
acknowledges and agrees that the interest rate quote is given for immediate
and irrevocable acceptance, and if the Borrower does not so immediately
accept the Quoted Rate for the full amount requested by the Borrower for
such Swingline Loan, the Quoted Rate shall be deemed immediately withdrawn
and such Swingline Loan shall be made at the rate per annum equal to the
Domestic Rate from time to time in effect plus the Applicable Margin for
Domestic Rate Loans. Subject to all of the terms and conditions hereof,
the proceeds of such Swingline Loan shall be made available to the Borrower
on the date so requested at the offices of the Administrative Agent in
Chicago, Illinois. Anything contained in the foregoing to the contrary
notwithstanding, (i) the obligation of Xxxxxx Bank to make Swingline Loans
shall be subject to all of the terms and conditions of this Agreement and
(ii) Xxxxxx Bank shall not be obligated to make more than one Swingline
Loan during any one day.
(e) REFUNDING LOANS. In its sole and absolute discretion, Xxxxxx
Bank may at any time, on behalf of the Borrower (which hereby irrevocably
authorizes Xxxxxx Bank to act on its behalf for such purpose), request each
Bank to make a Revolving Loan in an amount equal to such Bank's Percentage
of the amount of the Swingline Loans outstanding on the date such notice is
given. Borrowings of Revolving Loans under this Section shall initially
constitute Domestic Rate Loans unless timely notice is given pursuant to
Section 1.7 hereof. Unless any of the conditions of Section 6 are not
fulfilled on such date, each Bank shall make the proceeds of its requested
Revolving Loan available to the Administrative Agent, in immediately
available funds, at the principal office of the Administrative Agent in
Chicago, Illinois, before 12:00 Noon (Chicago time) on the Business Day
following the day such notice is given. The proceeds of such Revolving
Loans shall be immediately applied to repay the outstanding Swingline
Loans.
(f) PARTICIPATIONS. If any Bank refuses or otherwise fails to make
a Revolving Loan when requested by Xxxxxx Bank pursuant to Section 1.3(e)
above (because the conditions in Section 6 are not satisfied or otherwise),
such Bank will, by the time and in the manner such Revolving Loan was to
have been funded to the Administrative Agent, purchase from Xxxxxx Bank an
undivided participating interest in the outstanding Swingline Loans in an
amount equal to its Percentage of the aggregate principal amount of
Swingline Loans that were to have been repaid with such Revolving Loans.
Each Bank that so purchases a participation in a Swingline Loan shall
thereafter be entitled to receive its Percentage of each payment of
principal received on the Swingline Loan and of interest received thereon
accruing from the date such Bank funded to the Administrative Agent its
participation in such Swingline Loan. The obligation of the Banks to
Xxxxxx Bank shall be absolute and unconditional and shall not be affected
or impaired by any Default or Event of Default which may then be continuing
hereunder.
(g) VOLUNTARY PREPAYMENT OF SWINGLINE LOANS. The Borrower may not
voluntarily prepay any Swingline Loan bearing interest at the Quoted Rate
before the last day of its Interest Period. The Borrower may voluntarily
prepay any Swingline Loan bearing interest computed by reference to the
Domestic Rate before the last day of its Interest Period at any time upon
notice delivered to the Administrative Agent by the Borrower no later than
12:00 Noon (Chicago time) on the date of prepayment, such prepayment to be
made by the payment of the principal amount to be prepaid and accrued
interest thereon to the date fixed for prepayment.
SECTION 1.4. LETTERS OF CREDIT. (a) GENERAL TERMS. Subject to
the terms and conditions hereof, as part of the Revolving Credit the
Administrative Agent shall issue standby letters of credit (each a "Letter
of Credit") for the Borrower's account in U.S. Dollars in an aggregate
undrawn face amount up to the L/C Commitment, provided that the aggregate
L/C Obligations at any time outstanding shall not exceed the difference
between the Revolving Commitments in effect at such time and the aggregate
Original Dollar Amount of Revolving Loans and Swingline Loans then
outstanding. Notwithstanding anything herein to the contrary, those
certain letters of credit issued for the account of the Borrower by Xxxxxx
Trust and Savings Bank and listed on Schedule 1.4 hereof (the "Existing
Letters of Credit") shall each constitute a "Letter of Credit" herein for
all purposes of this Agreement with the Borrower as the applicant therefor,
to the same extent, and with the same force and effect as if the Existing
Letters of Credit had been issued under this Agreement at the request of
the Borrower. Each Letter of Credit shall be issued by the Administrative
Agent, but each Bank shall be obligated to reimburse the Administrative
Agent for its Percentage of the amount of each drawing thereunder and,
accordingly, the undrawn face amount of each Letter of Credit shall
constitute usage of the Revolving Commitment of each Bank pro rata in
accordance with each Bank's Percentage.
(b) APPLICATIONS. At any time before the Revolving Credit
Termination Date, the Administrative Agent shall, at the request of the
Borrower, issue one or more Letters of Credit, in a form satisfactory to
the Administrative Agent, with expiration dates no later than the earlier
of (i) one year after the date of its issuance or (ii) the Revolving Credit
Termination Date, in an aggregate face amount as set forth above, upon the
receipt of a duly executed application for the relevant Letter of Credit in
the form customarily prescribed by the Administrative Agent for a standby
letter of credit (each an "Application"). Notwithstanding anything
contained in any Application to the contrary (i) the Borrower's obligation
to pay fees in connection with each Letter of Credit shall be as
exclusively set forth in Section 2.1(b) hereof, (ii) except during the
continuance of an Event of Default, the Administrative Agent will not call
for the funding by the Borrower of any amount under a Letter of Credit, or
any other form of collateral security for the Borrower's obligations in
connection with such Letter of Credit, before being presented with a
drawing thereunder, and (iii) if the Administrative Agent is not timely
reimbursed for the amount of any drawing under a Letter of Credit on the
date such drawing is paid, the Borrower's obligation to reimburse the
Administrative Agent for the amount of such drawing shall bear interest
(which the Borrower hereby promises to pay) from and after the date such
drawing is paid at a rate per annum equal to the sum of 2% plus the
Domestic Rate from time to time in effect plus the Applicable Margin for
Domestic Rate Loans that are Revolving Loans. The Administrative Agent
agrees to issue amendments to the Letter(s) of Credit increasing the
amount, or extending the expiration date, thereof at the request of the
Borrower subject to the conditions of Section 6.2 and the other terms of
this Section 1.4.
(c) THE REIMBURSEMENT OBLIGATIONS. Subject to Section 1.4(b)
hereof, the obligation of the Borrower to reimburse the Administrative
Agent for all drawings under a Letter of Credit (a Reimbursement
Obligation") shall be governed by the Application related to such Letter of
Credit, except that reimbursement of each drawing shall be made in
immediately available funds at the Administrative Agent's principal office
in Chicago, Illinois by no later than 12:00 Noon (Chicago time) on the date
when each drawing is paid or, if such drawing was paid after 11:30 a.m.
(Chicago time), by the end of such day. If the Borrower does not make any
such reimbursement payment on the date due and the Participating Banks fund
their participations therein in the manner set forth in Section 1.4(d)
below, then all payments thereafter received by the Administrative Agent in
discharge of any of the relevant Reimbursement Obligations shall be
distributed in accordance with Section 1.4(d) below.
(d) THE PARTICIPATING INTERESTS. Each Bank (other than the Bank
then acting as Administrative Agent in issuing Letters of Credit) severally
agrees to purchase from the Administrative Agent, and the Administrative
Agent hereby agrees to sell to each such Bank (a "Participating Bank"), an
undivided percentage participating interest (a "Participating Interest"),
to the extent of its Percentage, in each Letter of Credit issued by, and
each Reimbursement Obligation owed to, the Administrative Agent. Upon any
failure by the Borrower to pay any Reimbursement Obligation at the time
required on the date due, as set forth in Section 1.4(c) above, or if the
Administrative Agent is required at any time to return to the Borrower or
to a trustee, receiver, liquidator, custodian or other Person any portion
of any payment of any Reimbursement Obligation, each Participating Bank
shall, not later than the Business Day it receives a request from the
Administrative Agent to such effect, if such request is received before
1:00 p.m. (Chicago time), or not later than the following Business Day, if
such request is received after such time, pay to the Administrative Agent
an amount equal to its Percentage of such unpaid or recaptured
Reimbursement Obligation together with interest on such amount accrued from
the date the related payment was made by the Administrative Agent to the
date of such payment by such Participating Bank at a rate per annum equal
to (i) from the date the related payment was made by the Administrative
Agent to the date two (2) Business Days after payment by such Participating
Bank is due hereunder, the Federal Funds Rate for each such day and
(ii) from the date two (2) Business Days after the date such payment is due
from such Participating Bank to the date such payment is made by such
Participating Bank, the Domestic Rate in effect for each such day. Each
such Participating Bank shall thereafter be entitled to receive its
Percentage of each payment received in respect of the relevant
Reimbursement Obligation and of interest paid thereon, with the
Administrative Agent retaining its Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the
Administrative Agent under this Section 1.4 shall be absolute, irrevocable
and unconditional under any and all circumstances whatsoever (except,
without limiting the Borrower's obligations under each Application, to the
extent the Borrower is relieved from its obligation to reimburse the
Administrative Agent for a drawing under a Letter of Credit because of the
Administrative Agent's gross negligence or willful misconduct in
determining that documents received under the Letter of Credit comply with
the terms thereof) and shall not be subject to any set-off, counterclaim or
defense to payment which any Participating Bank may have or have had
against the Borrower, the Administrative Agent, any other Bank or any other
Person whatsoever. Without limiting the generality of the foregoing, such
obligations shall not be affected by any Default or Event of Default or by
any reduction or termination of any Revolving Commitment of any Bank, and
each payment by a Participating Bank under this Section 1.4 shall be made
without any offset, abatement, withholding or reduction whatsoever. The
Administrative Agent shall be entitled to offset amounts received for the
account of a Bank under this Agreement against unpaid amounts due from such
Bank to the Administrative Agent hereunder (whether as fundings of
participations, indemnities or otherwise), but shall not be entitled to
offset against amounts owed to the Administrative Agent by any Bank arising
outside this Agreement.
(e) INDEMNIFICATION. The Participating Banks shall, to the extent
of their respective Percentages, indemnify the Administrative Agent (to the
extent not reimbursed by the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from the Administrative Agent's gross
negligence or willful misconduct) that the Administrative Agent may suffer
or incur in connection with any Letter of Credit. The obligations of the
Participating Banks under this Section 1.4(e) and all other parts of this
Section 1.4 shall survive termination of this Agreement and of all other
L/C Documents.
SECTION 1.5. APPLICABLE INTEREST RATES. (a) DOMESTIC RATE
LOANS. Each Domestic Rate Loan made or maintained by a Bank shall bear
interest during each Interest Period it is outstanding (computed on the
basis of a year of 365 or 366 days, as applicable, and actual days elapsed)
on the unpaid principal amount thereof from the date such Loan is advanced,
continued or created by conversion from a Eurocurrency Loan until maturity
(whether by acceleration or otherwise) at a rate per annum equal to the sum
of the Applicable Margin plus the Domestic Rate from time to time in
effect, payable on the last day of its Interest Period and at maturity
(whether by acceleration or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Administrative
Agent from time to time as its prime commercial rate, or equivalent, as in
effect on such day, with any change in the Domestic Rate resulting from a
change in said prime commercial rate to be effective as of the date of the
relevant change in said prime commercial rate; and
(ii) the sum of (x) the rate determined by the Administrative
Agent to be the prevailing rate per annum (rounded upwards, if necessary,
to the nearest one hundred-thousandth of a percentage point) 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) for the purchase at face value of
overnight Federal Funds in an amount comparable to the principal amount
owed to the Banks for which such rate is being determined, plus (y) 1/2 of
1% (0.50%).
(b) EUROCURRENCY LOANS. Each Eurocurrency Loan made or maintained
by a Bank shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed except
for Eurocurrency Loans denominated in Pounds Sterling which shall be
computed on the basis of a year of 365 or 366 days, as applicable, and
actual days elapsed) on the unpaid principal amount thereof from the date
such Loan is advanced, continued, or created by conversion from a Domestic
Rate Loan until maturity (whether by acceleration or otherwise) at a rate
per annum equal to the sum of the Applicable Margin plus the Adjusted LIBOR
applicable for such Interest Period, payable on the last day of the
Interest Period and 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 commencement of such Interest
Period.
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a
rate per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
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1 - Eurocurrency Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurocurrency
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the
average rate of interest per annum (rounded upwards, if necessary, to the
nearest one hundred-thousandth of a percentage point) at which deposits in
U.S. Dollars or the relevant Alternative Currency, as appropriate, in
immediately available funds are offered to the Administrative Agent at
11:00 a.m. (London, England time) two (2) Business Days before the
beginning of such Interest Period by major banks in the interbank
eurocurrency market for delivery on the first day of and for a period equal
to such Interest Period in an amount equal or comparable to the principal
amount of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth
of a percentage point) for deposits in U.S. Dollars or the relevant
Alternative Currency, as appropriate, for a period equal to such Interest
Period, which appears on the appropriate Telerate Page for such currency,
as of 11:00 a.m. (London, England time) on the day two (2) Business Days
before the commencement of such Interest Period.
"Telerate Page" means the page designated on the Telerate Service (or
such other service as may be nominated by the British Bankers' Association
as the information vendor) for the purpose of displaying British Bankers'
Association Interest Settlement Rates for the applicable currency.
"Eurocurrency Reserve Percentage" means, for any Borrowing of
Eurocurrency Loans, the daily average for the applicable Interest Period of
the maximum rate, expressed as a decimal, 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 in respect of any other category
of liabilities that includes deposits by reference to which the interest
rate on Eurocurrency Loans is determined or any category of extensions of
credit or other assets that include loans by non-United States offices of
any Bank 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
Eurocurrency 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.
(c) Rate Determinations. The Administrative Agent shall determine
each interest rate applicable to the Loans, and a reasonable determination
thereof by the Administrative Agent shall be conclusive and binding except
in the case of manifest error or willful misconduct. The Original Dollar
Amount of each Eurocurrency Loan denominated in an Alternative Currency
shall be determined or redetermined, as applicable, effective as of the
first day of each Interest Period applicable to such Loan.
SECTION 1.6. MINIMUM BORROWING AMOUNTS. Each Borrowing of
Domestic Rate Loans shall be in an amount not less than $1,000,000 and in
integral multiples of $100,000. Each Borrowing of Eurocurrency Loans shall
be in an amount not less than an Original Dollar Amount of $3,000,000 and
in integral multiple of 100,000 units of the relevant currency as would
have the Original Dollar Amount most closely approximating $100,000 or an
integral multiple thereof.
SECTION 1.7. MANNER OF BORROWING LOANS AND DESIGNATING INTEREST
RATES APPLICABLE TO LOANS. (a) NOTICE TO THE ADMINISTRATIVE AGENT. The
Borrower shall give notice to the Administrative Agent by no later than
12:00 noon (Chicago time) (i) at least four (4) Business Days before the
date on which the Borrower requests the Banks to advance a Borrowing of
Eurocurrency Loans denominated in an Alternative Currency, (ii) at least
three (3) Business Days before the date on which the Borrower requests the
Banks to advance a Borrowing of Eurocurrency Loans denominated in U.S.
Dollars and (iii) at least one Business Day before on the date on which the
Borrower requests the Banks to advance a Borrowing of Domestic Rate Loans.
The Loans included in each Borrowing shall bear interest initially at the
type of rate specified in such notice of a new Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of
interest rate borne by each Borrowing or, subject to the minimum amount
requirement for each outstanding Borrowing contained in Section 1.6 hereof,
a portion thereof, as follows: (i) if such Borrowing is of Eurocurrency
Loans, on the last day of the Interest Period applicable thereto, the
Borrower may continue part or all of such Borrowing as Eurocurrency Loans
for an Interest Period or Interest Periods specified by the Borrower or, if
such Eurocurrency Loan is denominated in U.S. Dollars, convert part or all
of such Borrowing into Domestic Rate Loans, (ii) if such Borrowing is of
Domestic Rate Loans, on any Business Day, the Borrower may convert all or
part of such Borrowing into Eurocurrency Loans denominated in U.S. Dollars
for an Interest Period or Interest Periods specified by the Borrower. The
Borrower shall give all such notices requesting the advance, continuation,
or conversion of a Borrowing to the Administrative Agent by telephone or
telecopy (which notice shall be irrevocable once given and, if by
telephone, shall be promptly confirmed in writing). Notices of the
continuation of a Borrowing of Eurocurrency Loans denominated in U.S.
Dollars for an additional Interest Period or of the conversion of part or
all of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars into
Domestic Rate Loans or of Domestic Rate Loans into Eurocurrency Loans must
be given by no later than 12:00 noon (Chicago time) at least three (3)
Business Days before the date of the requested continuation or conversion.
Notices of the continuation of a Borrowing of Eurocurrency Loans
denominated in an Alternative Currency must be given no later than 12:00
noon (Chicago time) at least four (4) Business Days before the requested
continuation. All such notices concerning the advance, continuation, or
conversion of a Borrowing shall specify the date of the requested advance,
continuation or conversion of a Borrowing (which shall be a Business Day),
the amount of the requested Borrowing to be advanced, continued, or
converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurocurrency Loans,
the currency and Interest Period applicable thereto. The Borrower agrees
that the Administrative Agent may rely on any such telecopy notice given by
any person it in good faith believes is an Authorized Representative
without the necessity of independent investigation, and in the event any
such notice by telephone conflicts with any written confirmation, such
telephonic notice shall govern if the Administrative Agent has acted in
reliance thereon.
(b) NOTICE TO THE BANKS. The Administrative Agent shall give
prompt telephonic or telecopy notice to each Bank (which notice if by
telephone, shall be promptly confirmed in writing) of any notice from the
Borrower received pursuant to Section 1.7(a) above. The Administrative
Agent shall give notice to the Borrower and each Bank by like means of the
interest rate applicable to each Borrowing of Eurocurrency Loans and, if
such Borrowing is denominated in an Alternative Currency, shall give notice
by such means to the Borrower and each Bank of the Original Dollar Amount
thereof.
(c) BORROWER'S FAILURE TO NOTIFY. Any outstanding Borrowing of
Domestic Rate Loans shall, subject to Section 6.2 hereof, automatically be
continued for an additional Interest Period on the last day of its then
current Interest Period unless the Borrower has notified the Administrative
Agent within the period required by Section 1.7(a) that it intends to
convert such Borrowing into a Borrowing of Eurocurrency Loans or notifies
the Administrative Agent within the period required by Section 1.10(a) that
it intends to prepay such Borrowing. If the Borrower fails to give notice
pursuant to Section 1.7(a) above of the continuation or conversion of any
outstanding principal amount of a Borrowing of Eurocurrency Loans
denominated in U.S. Dollars before the last day of its then current
Interest Period within the period required by Section 1.7(a) and has not
notified the Administrative Agent within the period required by
Section 1.10(a) that it intends to prepay such Borrowing, such Borrowing
shall automatically be converted into a Borrowing of Domestic Rate Loans,
subject to Section 6.2 hereof. If the Borrower fails to give notice
pursuant to Section 1.7(a) above of the continuation of any outstanding
principal amount of a Borrowing of Eurocurrency Loans denominated in an
Alternative Currency before the last day of its then current Interest
Period within the period required by Section 1.7(a) and has not notified
the Administrative Agent within the period required by Section 1.10(a) that
it intends to prepay such Borrowing, such Borrowing shall automatically be
continued as a Borrowing of Eurocurrency Loans in the same Alternative
Currency with an Interest Period of one month, subject to Section 6.2
hereof, including the application of Section 1.5 and of the restrictions
contained in the definition of Interest Period.
(d) DISBURSEMENT OF LOANS. Not later than 11:00 a.m. (Chicago
time) on the date of any requested advance of a new Borrowing of
Eurocurrency Loans, and not later than 1:00 p.m. (Chicago time) on the date
of any requested advance of a new Borrowing of Domestic Rate Loans (other
than Domestic Rate Loans the proceeds of which are used to repay Swingline
Loans), subject to Section 6 hereof, each Bank shall make available its
Loan comprising part of such Borrowing in funds immediately available at
the principal office of the Administrative Agent in Chicago, Illinois,
except that if such Borrowing is denominated in an Alternative Currency
each Bank shall, subject to Section 1.5(c) and Section 6, make available
its Loan comprising part of such Borrowing at such office as the
Administrative Agent has previously specified in a notice to each Bank, in
such funds as are then customary for the settlement of international
transactions in such currency and no later than such local time as is
necessary for such funds to be received and transferred to the Borrower for
same day value on the date of the Borrowing. The Administrative Agent
shall make available to the Borrower Loans denominated in U.S. Dollars at
the Administrative Agent's principal office in Chicago, Illinois and Loans
denominated in Alternative Currencies at such office as the Administrative
Agent has previously agreed to with the Borrower, in each case in the type
of funds received by the Administrative Agent from the Banks.
(e) ADMINISTRATIVE AGENT RELIANCE ON BANK FUNDING. Unless the
Administrative Agent shall have been notified by a Bank before the date on
which such Bank is scheduled to make payment to the Administrative Agent of
the proceeds of a Loan (which notice shall be effective upon receipt) that
such Bank does not intend to make such payment, the Administrative Agent
may assume that such Bank has made such payment when due and the
Administrative Agent may in reliance upon such assumption (but shall not be
required to) make available to the Borrower the proceeds of the Loan to be
made by such Bank and, if any Bank has not in fact made such payment to the
Administrative Agent, such Bank shall, on demand, pay to the Administrative
Agent the amount made available to the Borrower attributable to such Bank
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Borrower and
ending on (but excluding) the date such Bank pays such amount to the
Administrative Agent at a rate per annum equal to the Federal Funds Rate
or, in the case of a Loan denominated in an Alternative Currency, the cost
to the Administrative Agent of funding the amount it advanced to fund such
Bank's Loan, as determined by the Administrative Agent. If such amount is
not received from such Bank by the Administrative Agent immediately upon
demand, the Borrower will, on demand, repay to the Administrative Agent the
proceeds of the Loan attributable to such Bank with interest thereon at a
rate per annum equal to the interest rate applicable to the relevant Loan,
but without such payment being considered a payment or prepayment of a Loan
under Section 1.13 hereof, so that the Borrower will have no liability
under such Section with respect to such payment.
SECTION 1.8. INTEREST PERIODS. As provided in Section 1.7(a)
hereof, at the time of each request to advance, continue, or create by
conversion a Borrowing of Eurocurrency Loans, the Borrower shall select an
Interest Period applicable to such Loans from among the available options.
The term "Interest Period" means the period commencing on the date a
Borrowing of Loans is advanced, continued, or created by conversion and
ending: (a) in the case of Domestic Rate Loans, on the last day of the
calendar quarter in which such Borrowing is advanced, continued, or created
by conversion (or on the last day of the following quarter if such Loan is
advanced, continued or created by conversion on the last day of a calendar
quarter), (b) in the case of Eurocurrency Loans, 1, 2, 3, or 6 months
thereafter, and (c) in the case of Swingline Loans, on the date, as the
Borrower may select, one to five days thereafter; provided, however, that:
(a) any Interest Period for a Borrowing of
Revolving Loans consisting of Domestic Rate Loans that otherwise would end
after the Revolving Credit Termination Date shall end on the Revolving
Credit Termination Date, and any Interest Period for a Borrowing of Term
Loans consisting of Domestic Rate Loans that otherwise would end after the
Term Loan Maturity Date shall end on the Term Loan Maturity Date;
(b) no Interest Period with respect to any
portion of the Revolving Loans shall extend beyond the Revolving Credit
Termination Date, no Interest Period with respect to any portion of the
Term Loans shall extend beyond the Term Loan Maturity Date;
(c) whenever the last day of any Interest Period
would otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
provided that, if such extension would cause the last day of an Interest
Period for a Borrowing of Eurocurrency Loans to occur in the following
calendar month, the last day of such Interest Period shall be the
immediately preceding Business Day; and
(d) for purposes of determining an Interest
Period for a Borrowing of Eurocurrency Loans, a month means a period
starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month; provided, however, that if
there is no numerically corresponding day in the month in which such an
Interest Period is to end or if such an Interest Period begins on the last
Business Day of a calendar month, then such Interest Period shall end on
the last Business Day of the calendar month in which such Interest Period
is to end.
SECTION 1.9. MATURITY OF LOANS. Each Revolving Loan shall
mature and become due and payable by the Borrower on the Revolving Credit
Termination Date. Each Swingline Loan shall mature and become due and
payable on the earlier of (i) the last day of its Interest Period and
(ii) the Revolving Credit Termination Date. Each Term Loan shall mature
and become due and payable by the Borrower on the Term Loan Maturity Date.
SECTION 1.10. PREPAYMENTS. (a) OPTIONAL. The Borrower may
prepay without premium or penalty and in whole or in part (but, if in part,
then: (i) if such Borrowing is of Domestic Rate Loans, in an amount not
less than $500,000, (ii) if such Borrowing is of Eurocurrency Loans
denominated in U.S. Dollars, in an amount not less than $1,000,000, (iii)
if such Borrowing is denominated in an Alternative Currency, an amount for
which the U.S. Dollar Equivalent is not less than $1,000,000 and (iv) in an
amount such that the minimum amount required for a Borrowing pursuant to
Section 1.6 hereof remains outstanding) any Borrowing of Eurocurrency Loans
upon three Business Days' (or, if such Eurocurrency Loan is denominated in
an Alternative Currency, upon four Business Days') prior notice to the
Administrative Agent or, in the case of a Borrowing of Domestic Rate Loans,
notice delivered to the Administrative Agent no later than 12:00 noon
(Chicago time) on the date of prepayment, such prepayment to be made by the
payment of the principal amount to be prepaid and, in the case of a
prepayment of a Eurocurrency Loan, accrued interest thereon to the date
fixed for prepayment; provided that in the case of any such prepayment of
Eurocurrency Loans, such prepayment shall be accompanied by amounts owing
under Section 1.13 hereof. The Administrative Agent will promptly advise
each Bank of any such prepayment notice it receives from the Borrower.
(b) MANDATORY. (i) No later than the Business Day occurring
immediately after the day on which the Borrower receives proceeds from the
sale (including a liquidating dividend) of all or any portion of any
Investment permitted under Section 7.14(k), the Borrower shall make a
mandatory prepayment of the Revolving Loans in the amount of such proceeds.
(ii) If on any March 31, June 30, September 30 or December 31
occurring after the date hereof the sum of (i) the U.S. Dollar Equivalent
of all outstanding Revolving Loans hereunder, (ii) the aggregate Original
Dollar Amount of all outstanding Swingline Loans hereunder, and (iii) the
L/C Obligations exceeds the Revolving Commitments as then in effect, the
Borrower shall immediately prepay Revolving Loans in an aggregate amount
such that after giving effect thereto the sum of (i) the U.S. Dollar
Equivalent of all outstanding Revolving Loans hereunder, (ii) the aggregate
Original Dollar Amount of all outstanding Swingline Loans hereunder, and
(iii) the outstanding L/C Obligations is less than or equal to the
Revolving Commitments as then in effect.
(iii) To the extent Term Loans remain outstanding, if after the
Effective Date the Borrower or any Subsidiary shall issue new equity
securities (whether common or preferred stock or otherwise), other than
equity securities issued in connection with the Borrower's Stock
Compensation Program, Employee Stock Purchase Plan, Stock Award and
Incentive Plan and any similar programs or plans, the Borrower shall
promptly notify the Administrative Agent of the estimated Net Cash Proceeds
of such issuance to be received by or for the account of the Borrower or
such Subsidiary in respect thereof. Promptly upon, and in no event later
than the Business Day after, receipt by the Borrower or such Subsidiary of
Net Cash Proceeds of such issuance, the Borrower shall prepay the Term
Loans in an aggregate amount equal to 100% of the amount of such Net Cash
Proceeds.
(iv) To the extent Term Loans remain outstanding, if after the
Effective Date the Borrower or any Subsidiary shall issue any indebtedness
for borrowed money (other than short-term working capital facilities in
local currencies), the Borrower shall promptly notify the Administrative
Agent of the estimated Net Cash Proceeds of such issuance to be received by
or for the account of the Borrower or such Subsidiary in respect thereof.
Promptly upon, and in no event later than the Business Day after, receipt
by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance,
the Borrower shall prepay the Term Loans in an aggregate amount equal to
100% of the amount of such Net Cash Proceeds.
(v) To the extent Term Loans remain outstanding, the Borrower
or any Subsidiary shall at any time or from time to time make or agree to
make a Disposition, then the Borrower shall promptly notify the
Administrative Agent of such proposed Disposition (including the amount of
the estimated Net Cash Proceeds to be received by the Borrower or such
Subsidiary in respect thereof) and (y) promptly upon, and in no event later
than the Business Day after, receipt by the Borrower or the Subsidiary of
the Net Cash Proceeds of such Disposition, the Borrower shall prepay the
Term Loans in an aggregate amount equal to 100% of the amount of such Net
Cash Proceeds.
SECTION 1.11. DEFAULT RATE. If any payment of principal on any
Loan is not made when due (whether by acceleration or otherwise), such Loan
shall bear interest (computed on the basis of a year of 360 days and actual
days elapsed or, if based on the Domestic Rate, on the basis of a year of
365 or 366 days, as applicable, and the actual number of days elapsed) from
the date such payment was due until paid in full, payable on demand, at a
rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two
percent (2%) plus the Domestic Rate from time to time in effect plus the
Applicable Margin for Domestic Rate Loans;
(b) for any Eurocurrency Loan, the sum of two
percent (2%) plus the rate of interest in effect thereon at the time of
such default until the end of the Interest Period applicable thereto and,
thereafter, if such Loan is denominated in U.S. Dollars, at a rate per
annum equal to the sum of two percent (2%) plus the Domestic Rate from time
to time in effect plus the Applicable Margin for Domestic Rate Loans or, if
such Loan is denominated in an Alternative Currency, at a rate per annum
equal to the sum of the Eurocurrency Margin, plus two percent (2%) plus the
rate of interest per annum as determined by the Administrative Agent
(rounded upwards, if necessary, to the next higher one hundred-thousandth
of a percentage point) at which overnight or weekend deposits (or, if such
amount due remains unpaid more than three Business Days, then for such
other period of time not longer than one month as the Administrative Agent
may elect in its absolute discretion) of the relevant Alternative Currency
for delivery in immediately available and freely transferable funds would
be offered by the Administrative Agent to major banks in the interbank
market upon request of such major banks for the applicable period as
determined above and in an amount comparable to the unpaid principal amount
of any such Eurocurrency Loan (or, if the Administrative Agent is not
placing deposits in such currency in the interbank market , then the
Administrative Agent's cost of funds in such currency for such period); and
(c) for any Swingline Loan, the sum of 2% plus
the rate of interest in effect thereon at the time of such default until
the end of the Interest Period applicable thereto and, thereafter, at a
rate per annum equal to 2% plus the Applicable Margin for Domestic Rate
Loans plus the Domestic Rate from time to time in effect.
SECTION 1.12. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (a)
Each Bank shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made by such Bank from time to time, including the
amounts of principal and interest payable and paid to such Bank from time
to time hereunder.
(b) The Administrative Agent shall also maintain accounts in
which it will record (a) the amount of each Loan made hereunder, the type
thereof and the Interest Period with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Bank hereunder and (c) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Bank's share
thereof.
(c) The entries maintained in the accounts maintained
pursuant to paragraphs (i) and (ii) above shall be prima facie evidence of
the existence and amounts of the Obligations therein recorded; provided,
however, that the failure of the Administrative Agent or any Bank to
maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Obligations in accordance with
their terms.
(d) Any Bank may request that its Loans be evidenced by a
promissory note or notes (each, a "Note"). In such event, the Borrower
shall prepare, execute and deliver to such Bank a Note or Notes payable to
the order of such Lender in a form supplied by the Administrative Agent.
Thereafter, the Loans evidenced by such Note or Notes and interest thereon
shall at all times (including after any assignment pursuant to
Section 12.12) be represented by one or more Notes payable to the order of
the payee named therein or any assignee pursuant to Section 12.12, except
to the extent that any such Bank or assignee subsequently returns any such
Note for cancellation and requests that such Loans once again be evidenced
as described in subsections (a) and (b) above.
SECTION 1.13. FUNDING INDEMNITY. If any Bank shall incur any
loss, cost or expense (including, without limitation, any loss of profit,
and any loss, cost or expense incurred by reason of the liquidation or re-
employment of deposits or other funds acquired by such Bank to fund or
maintain any Eurocurrency Loan or the relending or reinvesting of such
deposits or amounts paid or prepaid to such Bank) as a result of:
(a) any payment, prepayment or conversion of a
Eurocurrency 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 Section 6 or otherwise) by the Borrower to borrow or continue
a Eurocurrency Loan, or to convert a Domestic Rate Loan into a Eurocurrency
Loan, on the date specified in a notice given pursuant to Section 1.7(a) or
established pursuant to Section 1.7(c) hereof,
(c) any failure by the Borrower to make any
payment of principal on any Eurocurrency Loan when due (whether by
acceleration or otherwise), or
(d) any acceleration of the maturity of a
Eurocurrency Loan as a result of the occurrence of any Event of Default
hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank
such amount as will reimburse such Bank for such loss, cost or expense. If
any Bank makes such a claim for compensation, it shall provide to the
Borrower, with a copy to the Administrative Agent, a certificate executed
by an officer of such Bank setting forth the amount of such loss, cost or
expense in reasonable detail (including an explanation of the basis for and
the computation of such loss, cost or expense) and the amounts shown on
such certificate if reasonably calculated shall be conclusive absent
manifest error.
SECTION 1.14. COMMITMENT TERMINATIONS. The Borrower shall have
the right at any time and from time to time, upon five (5) Business Days'
prior written notice to the Administrative Agent, to terminate the
Revolving Credit Commitments without premium or penalty, in whole or in
part, any partial termination to be (i) in an amount not less than
$5,000,000, and (ii) allocated ratably among the Banks in proportion to
their respective Percentages, provided that the Revolving Credit
Commitments may not be reduced to an amount less than the sum of the
Original Dollar Amount of all Revolving Loans and Swingline Loans and all
L/C Obligations then outstanding. The Borrower shall have the right at any
time and from time to time, by notice to the Administrative Agent, to
reduce or terminate the L/C Commitment without premium or penalty, in whole
or in part; provided that the L/C Commitment may not be reduced to an
amount less than all L/C Obligations then outstanding. The Borrower shall
have the right at any time and from time to time, by notice to the
Administrative Agent, to reduce or terminate the Swingline Commitment
without premium or penalty, in whole or in part; provided that the
Swingline Commitment may not be reduced to an amount less than the
aggregate principal amount of the Swingline Loans then outstanding. Any
such termination of the L/C Commitment or the Swingline Commitment shall
not reduce the Revolving Credit Commitments unless the Borrower elects to
do so in the manner provided above. The Administrative Agent shall give
prompt notice to each Bank of any such termination of Commitments. Any
termination of Commitments pursuant to this Section 1.14 may not be
reinstated.
SECTION 1.15. INCREASE IN COMMITMENTS. The Borrower may, on any
Business Day prior to March 31, 2000, with the written consent of the
Administrative Agent, increase the aggregate amount of the Commitments by
delivering a Commitment Amount Increase Request at least 5 Business Days
prior to the desired effective date of such increase (the "Commitment
Amount Increase") identifying an additional Bank (or additional Commitments
for existing Bank(s)) and the amount of its Commitment (or additional
amount of its Commitment(s)); provided, however, that (i) any increase of
the aggregate amount of the Commitments to an amount in excess of
$425,000,000 will require the approval of all the Banks, (ii) any increase
in the Commitments will be applied pro rata to the Revolving Credit
Commitments and Term Loan Commitments, and (iii) any increase of the
aggregate amount of the Commitments shall be in an amount not less than
$5,000,000. The effective date of the Commitment Amount Increase shall be
agreed upon by the Borrower and the Administrative Agent. Upon the
effectiveness thereof, the new Bank (or, if applicable, existing Bank)
shall advance Term Loans and Revolving Loans in an amount sufficient such
that after giving effect to its Loans each Bank shall have outstanding its
pro rata share of Term Loans and Revolving Loans. It shall be a condition
to such effectiveness that no Eurocurrency Loans be outstanding on the date
of such effectiveness and that the Borrower shall not have terminated any
portion of the Commitments pursuant to Section 1.14 hereof. The Borrower
agrees to pay any fees or expenses of the Agent relating to any Commitment
Amount Increase.
SECTION 2. FEES.
SECTION 2.1. FEES. (a) COMMITMENT FEE. For the period from the
Effective Date to and including the Revolving Credit Termination Date, the
Borrower shall pay to the Administrative Agent for the ratable account of
the Banks in accordance with their Percentages a commitment fee (the
"Commitment Fee") on the average daily Unused Commitments at a rate of:
(i) 0.20% per annum for each day Level I Status exists, (ii) 0.25% per
annum for each day Level II Status exists, (iii) 0.30% per annum for each
day Level III Status exists, (iv) 0.35% per annum for each day Level IV
Status exists, and (v) 0.45% per annum for each day Level V status exists.
Accrued Commitment Fees shall be due and, payable in arrears on
December 31, 1999, on the last day of each calendar quarter thereafter and
on the Revolving Credit Termination Date, unless the Revolving Commitments
are terminated in whole on an earlier date, in which event the fee for the
period to but not including the date of such termination shall be paid in
whole on the date of such termination.
(b) LETTER OF CREDIT FEES. On the date of issuance or extension,
or increase in the amount, of any Standby Letter of Credit pursuant to
Section 1.4 hereof, the Borrower shall pay to the Administrative Agent an
issuance fee equal to 0.10% of the face amount of (or of the increase in
the face amount of) such Letter of Credit. Quarterly in arrears, on the
last day of each calendar quarter, commencing on December 31, 1999, the
Borrower shall pay to the Administrative Agent, for the ratable benefit of
the Banks in accordance with their Percentages, a letter of credit fee at a
rate per annum equal to the Applicable Margin for Eurocurrency Loans
advanced under the Revolving Credit in effect during each day of such
quarter applied to the daily average face amount of Standby Letters of
Credit outstanding during such quarter.
(c) CLOSING FEES. On the Effective Date the Borrower shall pay to
the Administrative Agent (i) for each Bank with a total Commitment of
$40,000,000 or more on the Effective Date, a closing fee equal to 0.45% of
each such Bank's Revolving Credit Commitment and 0.25% of each such Bank's
Term Loan Commitment, (ii) for each Bank with a total Commitment of less
than $40,000,000 but greater than or equal to $25,000,000 on the Effective
Date, a closing fee equal to 0.35% of each such Bank's Revolving Credit
Commitment and 0.20% of each such Bank's Term Loan Commitment and (iii) for
each Bank with a total Commitment of less than $25,000,000 on the Effective
Date, a closing fee equal to 0.25% of each such Bank's Revolving Credit
Commitment and 0.15% of each such Bank's Term Loan Commitment.
(d) ADMINISTRATIVE AGENT FEES. The Borrower shall pay to the
Administrative Agent the fees agreed to between the Administrative Agent
and the Borrower in a letter dated October 27, 1999 or as otherwise
subsequently agreed between them.
(e) FEE CALCULATIONS. All fees payable under Section 2.1(a) and
(b) shall be computed on the basis of a year of 365 or 366 days, as
applicable, for the actual number of days elapsed.
SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
SECTION 3.1. PLACE AND APPLICATION OF PAYMENTS. All payments of
principal of and interest on the Loans and the Reimbursement Obligations,
and of all other amounts payable by the Borrower under this Agreement,
shall be made by the Borrower to the Administrative Agent by no later than
12:00 Noon (Chicago time) on the due date thereof at the principal office
of the Administrative Agent in Chicago, Illinois (or such other location in
the State of Illinois as the Administrative Agent may designate to the
Borrower) or, if such payment is to be made in an Alternative Currency, no
later than 12:00 noon local time at the place of payment to such office as
the Administrative Agent has previously specified in a notice to the
Borrower for the benefit of the Person or Persons entitled thereto. Any
payments received after such time shall be deemed to have been received by
the Administrative Agent on the next Business Day. All such payments shall
be made (i) in U.S. Dollars, in immediately available funds at the place of
payment, or (ii) in the case of amounts payable hereunder in an Alternative
Currency, in such Alternative Currency in such funds then customary for the
settlement of international transactions in such currency, in each case
without setoff or counterclaim. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest on Loans or commitment fees ratably to the Banks and
like funds relating to the payment of any other amount payable to any
Person to such Person, in each case to be applied in accordance with the
terms of this Agreement.
SECTION 4. DEFINITIONS; INTERPRETATION.
SECTION 4.1. DEFINITIONS. The following terms when used herein
have the following meanings:
"Account" is defined in Section 8.4(b) hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (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 EBIT" means, for any period, Consolidated Net Income for
such period plus all amounts deducted in arriving at such Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal, state and
local income tax expense, (iii) reasonable non-recurring transition costs
incurred by the Borrower prior to December 31, 1999 in connection with the
Compass Acquisition as reasonably acceptable to the Administrative Agent,
(iv) all non-cash contributions or accruals to or with respect to deferred
profit sharing or compensation and (v) reasonable non-recurring transition
costs incurred by JLW or the Borrower prior to January 1, 2000 in
connection with the JLW Acquisition and the Integration Plan (as defined in
the JLW Purchase Agreement) as reasonably acceptable to the Administrative
Agent; provided that any amounts added to Consolidated Net Income pursuant
to clause (iv) above for any period shall be deducted from Consolidated Net
Income for the period, if ever, in which such amounts are paid in cash by
the Borrower or any of its Subsidiaries.
"Adjusted EBITDA" means, for any period, Consolidated Net Income for
such period plus all amounts deducted in arriving at such Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal, state and
local income tax expense, (iii) all amounts properly charged for
depreciation of fixed assets and amortization of intangible assets on the
books of the Borrower and its Restricted Subsidiaries, (iv) reasonable non-
recurring transition costs incurred by the Borrower prior to December 31,
1999 in connection with the Compass Acquisition as reasonably acceptable to
the Administrative Agent, (v) all non-cash contributions or accruals to or
with respect to deferred profit sharing or compensation, and
(vi) reasonable non-recurring transition costs incurred by JLW or the
Borrower prior to January 1, 2000 in connection with the JLW Acquisition
and the Integration Plan (as defined in the JLW Purchase Agreement) as
reasonably acceptable to the Administrative Agent; provided that any
amounts added to Consolidated Net Income pursuant to clause (v) above for
any period shall be deducted from Consolidated Net Income for the period,
if ever, in which such amounts are paid in cash by the Borrower or any of
its Subsidiaries.
"Adjusted LIBOR" is defined in Section 1.5(b) hereof.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (including, with
their correlative meanings, "controlled by" and "under common control
with") means possession, directly or indirectly, of power to direct or
cause the direction of management or policies of a Person (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event for purposes of this
definition: (i) any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors
or other governing body of a corporation or 5% or more of the partnership
or other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person; and (ii) each director and executive officer of the Borrower
or any Subsidiary shall be deemed an Affiliate of the Borrower and each
Subsidiary.
"Administrative Agent" means Xxxxxx Trust and Savings Bank and any
successor pursuant to Section 10.7 hereof.
"Alternative Currency" means any of Australian Dollars, Belgian
Francs, Deutsche Marks, Dutch Guilders, Euros, Hong Kong Dollars, Japanese
Yen, New Zealand Dollar, Pound Sterling, Spanish Pesetas, Canadian Dollars,
French Francs, Italian Lira, and Swiss Francs, and any other currency
approved by all the Banks, in each case for so long as such currency is
readily available to all the Banks and is freely transferable and freely
convertible to U.S. Dollars and the Dow Xxxxx Telerate Service or Reuters
monitor Money Rates Service (or any successor to either) reports a LIBOR
for such currency for interest periods of one, two, three and six calendar
months; provided that if any Bank provides written notice to the Borrower
(with a copy to the Administrative Agent) that any currency control or
other exchange regulations are imposed in the country in which any such
Alternative Currency is issued and that in the reasonable opinion of such
Bank funding a Loan in such currency is impractical, then such currency
shall cease to be an Alternative Currency hereunder until such time as all
the Banks reinstate such country's currency as an Alternative Currency.
"Applicable Margin" means, (i) on any date, for any Domestic Rate
Loan or Eurocurrency Loan advanced under the Revolving Credit, the rate per
annum set forth below, as in effect on such date as determined pursuant to
the provisions of the definition of Pricing Date provided that the
Applicable Margin for Revolving Loans shall be based on Level V Status
until the Pricing Date for the fiscal quarter ending December 31, 1999;
provided further so long as any Term Loan remains outstanding the
Applicable Margin shall not be reduced below Level IV Status:
Level Eurocurrency Loans Domestic
Rate Loans
Level I Status 1.00% 0%
Level II Status 1.25% 0%
Level III Status 1.50% 0%
Level IV Status 1.75% 0%
Level V Status 2.25% 0.50%
provided further that from and after the date the Borrower repays a
portion of the Term Loans in an aggregate principal amount of at least
$100,000,000 with the Net Cash Proceeds from the issuance of Subordinated
Debt, the Applicable Margin for Level IV Status for Eurocurrency Loans
shall be reduced by 0.15% per annum and Level V Status for both
Eurocurrency Loans and Domestic Rate Loans shall be reduced by 0.25% per
annum; and
(ii) on any date, for any Domestic Rate Loan or Eurocurrency Loan
advanced as a Term Loan, the rate per annum set forth below, as in effect
on such date as determined pursuant to the provisions of the definition of
Pricing Date; provided that the Applicable Margin for Term Loans shall be
based on Level V Status until the Pricing Date for the fiscal quarter
ending March 31, 2000:
Level Eurocurrency Loans Domestic
Rate Loans
Level I Status 1.75% 0%
Level II Status 1.75% 0%
Level III Status 1.75% 0%
Level IV Status 1.75% 0%
Level V Status 2.25% 0.50%
"Application" is defined in Section 1.4(b) hereof.
"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(g) hereof, or on
any updated such list provided by the Borrower to the Administrative Agent,
or any further or different officer of the Borrower so named by any
Authorized Representative of the Borrower in a written notice to the
Administrative Agent.
"Bank" is defined in the first paragraph of this Agreement and
includes the Administrative Agent in its capacity as issuer of Letters of
Credit and holder of L/C Obligations after giving effect to each
Participating Bank's interest therein.
"Borrower" means Xxxxx Xxxx LaSalle Incorporated, a Maryland
corporation.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different
type into such type by the Banks on a single date and for a single Interest
Period. Borrowings of Loans are made and maintained ratably from each of
the Banks according to their Percentages. A Borrowing is "advanced" on the
day Banks advance funds comprising such Borrowing to the Borrower, is
"continued" on the day a new Interest Period for the same type of Loans
commences for such Borrowing, and is "converted" on the day such Borrowing
is changed from one type of Loan to the other, all as requested by the
Borrower pursuant to Section 1.7(a).
"Business Day" means any day other than a Saturday or Sunday on which
Banks are not authorized or required to close in Chicago, Illinois and, if
the applicable Business Day relates to the borrowing or payment of a
Eurocurrency Loan, on which banks are dealing in U.S. Dollar deposits or
the relevant Alternative Currency in the interbank market in London,
England and, if the applicable Business Day relates to the borrowing or
payment of a Eurocurrency Loan denominated in an Alternative Currency, on
which banks and foreign exchange markets are open for business in the city
where disbursements of or payments on such Loan are to be made and, if such
Alternative Currency is the Euro or any national currency of a nation that
is a member of the European Economic and Monetary Union, which is a TARGET
Settlement Day.
"Capital Lease" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance
sheet of the lessee.
"Capitalized Lease Obligations" means, for any Person, the amount of
such Person's liabilities under Capital Leases determined at any date in
accordance with GAAP.
"Change of Control" means at any time:
(i) any Person becomes the beneficial owner of
securities of the Borrower representing 30% or more of the then outstanding
Voting Stock of the Borrower; or
(ii) during any period of twenty-four consecutive months
beginning after the date of this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the Borrower
(the "Board"), together with any new director (other than a director
designated by a person who has entered into an agreement with the Borrower
to effect a transaction described in clause (i) of this Change of Control
definition) whose election or nomination for election was approved by a
vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board.
For purposes of the definition of Change of Control Event, "Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act as supplemented by Section 13(d)(3) of the Exchange Act;
provided, however, that Person shall not include (i) the Borrower or any
Wholly-Owned Subsidiary, or (ii) any person who, as of the date of this
Agreement, was the Beneficial Owner of securities of the Borrower
representing 20% or more of the combined voting power.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment Amount Increase Request" means a Commitment Amount
Increase Request in the form of Exhibit E hereto.
"Commitments" means the Revolving Credit Commitments, Term Loan
Commitments, L/C Commitment and the Swingline Commitment.
"Compliance Certificate" means a certificate in the form of Exhibit C
hereto.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Borrower and its Restricted Subsidiaries for such period
computed on a consolidated basis in accordance with GAAP, but excluding any
extraordinary profits or losses; provided that there shall be included in
such determination for such period all such amounts attributable to any
Person acquired pursuant to an Acquisition to the extent such Person is not
subsequently sold or otherwise disposed of (other than in a transaction
pursuant to which the business of such Person is retained by the Borrower
or a Subsidiary of the Borrower) during such period for the portion of such
period prior to such Acquisition.
"Consolidated Net Worth" means, as of the date of any determination
thereof, the amount reflected as stockholders' equity upon a consolidated
balance sheet of the Borrower and its Restricted Subsidiaries for such date
computed on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated)
under common control that, together with the Borrower or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Documents" means this Agreement, the Notes, the Applications,
the Letters of Credit, each Subsidiary Guarantee Agreement delivered to the
Administrative Agent pursuant to Section 7.1 hereof and any security
agreement delivered pursuant to Section 7.25 hereof.
"Credit Event" means the advancing of any Loan, the continuation of
or conversion into a Eurocurrency Loan denominated in an Alternative
Currency, or the issuance of, or extension of the expiration date or
increase in the amount of, any Letter of Credit.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an
Event of Default.
"Disposition" means the sale, conveyance, or other disposition of
Property, other than sales, conveyances or other dispositions in the
ordinary course of business.
"Domestic Rate" is defined in Section 1.5(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity
at a rate specified in Section 1.5(a) hereof.
"Domestic Subsidiary" shall mean any Subsidiary which is not a
Foreign Subsidiary.
"Effective Date" means the date hereof.
"Environmental and Health Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, judgments,
permits and other governmental rules or restrictions relating to human
health, safety (including without limitation occupational safety and health
standards), or the environment or to emissions, discharges or releases of
pollutants, contaminants, hazardous or toxic substances, wastes or any
other controlled or regulated substance into the environment, including
without limitation ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous or toxic substances, wastes or any other controlled
or regulated substance or the clean-up or other remediation thereof.
"ERISA" is defined in Section 5.8 hereof.
"Eurocurrency Loan" means a Loan bearing interest prior to maturity
at the rate specified in Section 1.5(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.5(b)
hereof.
"Event of Default" means any of the events or circumstances specified
in Section 8.1 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Domestic Rate in
Section 1.3(a) hereof.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower which
is organized under the laws of a jurisdiction other than the United States
of America or any State thereof.
"GAAP" means generally accepted accounting principles as in effect on
the Effective Date, applied by the Borrower and its Subsidiaries on a basis
consistent with the preparation of the Borrower's financial statements
furnished to the Banks as described in Section 5.4 hereof.
"Guarantor" means (i) Xxxxx Lang LaSalle Americas, Inc., a Maryland
corporation, LaSalle Investment Management, Inc., a Maryland corporation,
Xxxxx Xxxx LaSalle International, Inc., a Delaware corporation, LP
International, a limited liability company, a Wyoming limited liability
company, Xxxxx Lang LaSalle Co-Investment, Inc., a Maryland corporation,
LaSalle Hotel Advisors, Inc., a Maryland corporation, Xxxxx Xxxx Xxxxxxx
USA, Inc. a Delaware corporation and (ii) any other Subsidiary of the
Borrower designated by the Borrower as a Guarantor as required by
Section 7.25 hereof.
"Guaranty" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend or other financial obligation
(including, without limitation, limited or full recourse obligations in
connection with sales of receivables or any other Property) of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through
an agreement, contingent or otherwise, by such Person: (i) to purchase
such Indebtedness or obligation or any Property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or obligation, or (y) to maintain working
capital or other balance sheet condition, or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or
obligation, or (iii) to lease property or to purchase Securities or other
property or services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of the primary obligor to
make payment of the Indebtedness or obligation, or (iv) otherwise to assure
the owner of the Indebtedness or obligation of the primary obligor against
loss in respect thereof. For the purpose of all computations made under
this Agreement, the amount of a Guaranty in respect of any obligation shall
be deemed to be equal to the maximum aggregate amount of such obligation at
the time the amount of the Guaranty is being determined or, if the Guaranty
is limited to less than the full amount of such obligation, the maximum
aggregate potential liability under the terms of the Guaranty at the time
the amount of the Guaranty is being determined.
"Xxxxxx Bank" means Xxxxxx Trust and Savings Bank, in its individual
capacity.
"Hazardous Material" means any substance or material which is
hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls, dioxins and petroleum or its by-products or
derivatives (including crude oil or any fraction thereof) and (b) any other
material or substance classified or regulated as "hazardous" or "toxic"
pursuant to any Environmental and Health Law.
"Indebtedness" means for any Person, (i) obligations of such Person
for borrowed money, (ii) obligations of such Person representing the
deferred purchase price of property or services other than accounts payable
arising in the ordinary course of business on terms customary in the trade,
(iii) obligations of such Person evidenced by notes, acceptances, or other
instruments of such Person or pursuant to letters of credit issued for such
Person's account, (iv) 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, (v) Capitalized Lease
Obligations of such Person and (vi) obligations for which such Person is
obligated pursuant to a Guaranty.
"Interest Coverage Ratio" means as of the last day of any calendar
quarter the ratio of ADJUSTED EBIT for the four calendar quarters then
ended to Interest Expense for the same four calendar quarters then ended.
"Interest Expense" means, for any period, the sum of all interest
charges of the Borrower and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Interest Period" is defined in Section 1.8 hereof.
"Investment" is defined in Section 7.14 hereof.
"JLW Acquisition" means the transactions contemplated by the Purchase
and Sale Agreements, dated as of October 21, 1998 (the "JLW Purchase
Agreements") providing for the acquisition by Borrower and its Subsidiaries
of the entities conducting business worldwide under the name Xxxxx Lang
Wootton (collectively, "JLW").
"L/C Commitment" means $30,000,000, as reduced pursuant to the terms
hereof.
"L/C Documents" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the
Applications and this Agreement.
"L/C Obligations" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"Lending Office" is defined in Section 9.4 hereof.
"Letter of Credit" is defined in Section 1.4(a) hereof.
"Level I Status" exists at any date if, at such date, the Total
Funded Debt to Adjusted EBITDA Ratio is less than 2.00 to 1.0.
"Level II Status" exists at any date if, at such date, Level I Status
does not exist and the Total Funded Debt to Adjusted EBITDA Ratio is less
than 2.50 to 1.0.
"Level III Status" exists at any date if, at such date, neither Level
I nor Level II Status exists and the Total Funded Debt to Adjusted EBITDA
Ratio is less than 3.00 to 1.0.
"Level IV Status" exists at any date if, at such date, neither Level
I nor Level II nor Level III Status exists and the Total Funded Debt to
Adjusted EBITDA Ratio is less than 3.50 to 1.0.
"Level V Status" exists at any date if, at such date, neither Level I
Status, Level II Status, Level III Status nor Level IV Status exists.
"LIBOR" is defined in Section 1.5(b) hereof.
"Lien" means any interest in Property securing an obligation owed to
a Person other than the owner of the Property, whether such interest is
based on the common law, statute or contract, including, but not limited
to, the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale, security agreement or trust receipt, or a lease,
consignment or bailment for security purposes. The term "Lien" shall also
include survey exceptions or encumbrances, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes,
or zoning or other restrictions as to the use of real properties. For the
purposes of this definition, a Person shall be deemed to be the owner of
any Property which it has acquired or holds subject to a conditional sale
agreement, Capital Lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person for
security purposes, and such retention of title shall constitute a "Lien."
"Liquidity Ratio" means, as of the last day of any calendar quarter,
the ratio of Adjusted EBITDA for the four calendar quarters then ended to,
for the same calendar quarters, the sum, for the Borrower and its
Restricted Subsidiaries, of (i) Interest Expense, (ii) capital expenditures
(as defined in GAAP), (iii) the component of the purchase price of any
Acquisition paid by cash, including the aggregate principal amount of all
liabilities assumed in connection with any such Acquisition, (iv) federal,
state and local taxes actually paid, (v) that portion of Indebtedness of
the Borrower or any of its Restricted Subsidiaries which is due and
payable, (vi) the aggregate amount of cash dividends and other cash
distributions on the capital stock of the Borrower including stock
repurchases for cash and (vii) the aggregate principal amount of all
Investments not constituting Acquisitions reduced by the amount of proceeds
of the disposition of all or any part of any Investment not constituting an
Acquisition received by the Borrower or any Restricted Subsidiary.
"Loan" means a Domestic Rate Loan or Eurocurrency Loan, each of which
is a "type" of Loan hereunder, outstanding as a Revolving Loan, Term Loan
or Swingline Loan, as applicable.
"Material Adverse Effect" means a material and adverse effect on the
business, operations, Property or financial or other condition of the
Borrower and its Subsidiaries, taken as a whole.
"Net Cash Proceeds" means, as applicable, (a) with respect to any
Disposition by a Person, cash and cash equivalent proceeds received by or
for such Person's account, net of (i) reasonable direct costs relating to
such Disposition and (ii) income, sale, use or other taxes paid or payable
by such Person as a direct result of such Disposition and (b) with respect
to any offering of equity securities of a Person or the issuance of any
indebtedness for borrowed money by a Person, cash and cash equivalent
proceeds received by or for such Person's account, net of reasonable legal,
underwriting, printing and other fees and expenses incurred as a direct
result thereof.
"Non-Real Estate Restricted Subsidiary" means a Restricted Subsidiary
which is not established solely for the purpose of making investments in
real estate and real estate related assets, including notes and other
securities, as permitted under Section 7.14(j) or Section 7.14(k) hereof.
"Note" means any Revolving Note or Term Note.
"Obligations" means all fees payable hereunder, all obligations of
the Borrower to pay principal or interest on Loans and L/C Obligations, and
all other payment obligations of the Borrower arising under or in relation
to any Credit Document.
"Original Dollar Amount" means the amount of any Obligation
denominated in U.S. Dollars and, in relation to any Loan denominated in an
Alternative Currency, the U.S. Dollar Equivalent of such Loan on the day it
is advanced or continued for an Interest Period.
"Participating Bank" is defined in Section 1.4(d) hereof.
"Participating Interest" is defined in Section 1.4(d) hereof.
"Percentage" means, for each Bank, the percentage of the Revolving
Credit Commitments represented by such Bank's Revolving Credit Commitment
or, if the Revolving Credit Commitments have been terminated, the
percentage held by such Bank (including through participation interests in
L/C Obligations and Swingline Loans) of the aggregate principal amount of
all outstanding Obligations.
"Person" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code that is either (i) maintained by a member of the
Controlled Group or (ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer makes
contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding
five plan years made contributions.
"PBGC" is defined in Section 5.8 hereof.
"Pricing Date" means, for any fiscal quarter of the Borrower ended
after the date hereof, the latest date by which the Borrower is required to
deliver a Compliance Certificate for such fiscal quarter pursuant to
Section 7.6(b). The Applicable Margin and Commitment Fee established on a
Pricing Date shall remain in effect until the next Pricing Date. If the
Borrower has not delivered a Compliance Certificate by the date such
Compliance Certificate is required to be delivered under Section 7.6(b),
Level V Status shall be deemed to exist from such required delivery date
until a Compliance Certificate is delivered before the next Pricing Date.
If the Borrower subsequently delivers such a Compliance Certificate before
the next Pricing Date, the Applicable Margin and Commitment Fee established
by such late delivered Compliance Certificate shall take effect from the
date of delivery until the next Pricing Date. In all other circumstances,
the Applicable Margin and Commitment Fee established by a Compliance
Certificate shall be in effect from the Pricing Date that occurs
immediately after the end of the Borrower's fiscal quarter covered by such
Compliance Certificate until the next Pricing Date.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now
owned or hereafter acquired.
"Reimbursement Obligation" is defined in Section 1.3(c) hereof.
"Required Banks" means, as of the date of determination thereof,
Banks whose outstanding Loans and interest in Letters of Credit and Unused
Commitments constitute more than 51% of the sum of the total outstanding
Loans, interests in Letters of Credit, and Unused Commitments of the Banks.
"Restricted Subsidiary" means any Subsidiary of the Borrower other
than an Unrestricted Subsidiary.
"Revolving Credit" means the credit facility for making Revolving
Loans and Swingline Loans and issuing Letters of Credit described in
Sections 1.1, 1.3 and 1.4 hereof.
"Revolving Credit Commitment" means, as to any Bank, the obligation
of such Bank to make Revolving Loans and to participate in Letters of
Credit issued for the account of the Borrower hereunder in an aggregate
principal or face amount at any one time outstanding not to exceed the
amount set forth opposite such Bank's name under the heading "Revolving
Credit Commitment" on Schedule 1 attached hereto and made a part hereof, as
the same may be reduced or modified at any time or from time to time
pursuant to the terms hereof.
"Revolving Credit Termination Date" means October 15, 2002.
"Revolving Loan" is defined in Section 1.1 hereof and, as so defined,
includes a Domestic Rate Loan or Eurocurrency Loan.
"Revolving Note" means any promissory note issued at the request of a
Bank pursuant to Section 1.12 in the form of Exhibit A-1 evidencing such
Bank's Revolving Loans.
"SEC" means the Securities and Exchange Commission.
"Security" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"Set-Off" is defined in Section 11.7 hereof.
"Subordinated Indebtedness" means any Indebtedness which is
subordinated in right of payment to the prior payment of the Loans and
other Obligations, in a principal amount and pursuant to documentation,
containing interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies and other material terms in form
and substance satisfactory to the Banks.
"Subsidiary" means, as to the Borrower, a corporation, partnership or
other entity that, under GAAP, is included in the consolidated financial
statements of the Borrower.
"Subsidiary Guarantee Agreement" means a letter to the Administrative
Agent in the form of Exhibit D hereto executed by a Subsidiary whereby it
acknowledges it is party hereto as a Guarantor under Section 11 hereof.
"Swingline Commitment" means $5,000,000 as the same may be reduced
from time to time pursuant to Section 1.14 hereof.
"Swingline Loan" is defined in Section 1.3 hereof.
TARGET Settlement Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is
open.
"Term Loan" is defined in Section 1.2 hereof.
"Term Loan Commitment" means, as to any Bank, the obligation of such
Bank to make its Term Loan in the principal amount not to exceed the amount
set forth opposite such Bank's name under the heading "Term Loan
Commitment" on Schedule 1 attached hereto and made a part hereof or in the
applicable Commitment Amount Increase Request.
"Term Loan Maturity Date" means October 15, 2000.
"Term Note" means any promissory note issued at the request of a Bank
pursuant to Section 1.12 in the form of Exhibit A-2 evidencing such Bank's
Term Loan.
"Total Funded Debt" means, at any time the same is to be determined,
the aggregate of all Indebtedness of the Borrower and its Restricted
Subsidiaries determined without duplication on a consolidated basis.
"Total Senior Funded Debt" means, at any time the same is to be
determined, Total Funded Debt minus the principal balance of Subordinated
Indebtedness then outstanding.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) 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, but only to the
extent that such excess represents a potential liability of a member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower (other
than a Guarantor) which (i) is established for the sole purpose of
investing in real estate and real estate related assets including notes and
other securities and (ii) is designated by the Borrower (with prior written
notice to the Administrative Agent) to be an Unrestricted Subsidiary;
provided that no Subsidiary may be an Unrestricted Subsidiary for more than
180 days.
"Unused Commitments" means, at any time, the difference between the
Revolving Credit Commitments then in effect and the aggregate outstanding
principal amount of Revolving Loans and L/C Obligations.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which would
be realized by converting an Alternative Currency into U.S. Dollars at the
exchange rate quoted to the Administrative Agent, at approximately 11:00
a.m. (London time) three Business Days prior to the date on which a
computation thereof is required to be made, by major banks in the interbank
foreign exchange market for the purchase of U.S. Dollars for such
Alternative Currency.
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary
voting power for the election of directors or similar governing body of
such Person, other than stock or other equity interests having such power
only by reason of the happening of a contingency.
"Welfare Plan" means a "welfare plan", as defined in Section 3(1) of
ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the
Borrower means a Subsidiary of which all of the issued and outstanding
shares of stock or other equity interests (other than directors' qualifying
shares as required by law) shall be owned by the Borrower and/or one or
more of its Wholly-Owned Subsidiaries.
SECTION 4.2. INTERPRETATION. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms
defined. All references to times of day in this Agreement shall be
references to Chicago, Illinois time unless otherwise specifically
provided. Where the character or amount of any asset or liability or item
of income or expense is required to be determined or any consolidation or
other accounting computation is required to be made for the purposes of
this Agreement, the same shall be done in accordance with GAAP, to the
extent applicable, except where such principles are inconsistent with the
specific provisions of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to each Bank as to itself
and, where the following representations and warranties apply to
Subsidiaries, as to each of its Subsidiaries, as follows:
SECTION 5.1. CORPORATE ORGANIZATION AND AUTHORITY. The Borrower
is duly organized and existing in good standing under the laws of the State
of Maryland; has all necessary corporate power to carry on its present
business; and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing,
qualification or good standing necessary and in which the failure to be so
licensed, qualified or in good standing would reasonably be expected to
have a Material Adverse Effect.
SECTION 5.2. SUBSIDIARIES. Schedule 5.2 (as updated from time
to time pursuant to Section 7.1) hereto identifies each Guarantor, the
jurisdiction of its organization, the percentage of issued and outstanding
shares of each class of its capital stock or equity interests, as the case
may be, owned by the Borrower and the Subsidiaries and, if such percentage
is not 100% (excluding directors' qualifying shares as required by law), a
description of each class of its authorized capital stock and other equity
interests and the number of shares of each class issued and outstanding.
Except to the extent that would not reasonably be expected to have a
Material Adverse Effect, each Subsidiary is duly incorporated or formed and
existing in good standing as a corporation, limited partnership, limited
liability company or other entity under the laws of the jurisdiction of its
incorporation or formation, has all necessary corporate or other power to
carry on its present business, and is duly licensed or qualified and in
good standing in each jurisdiction in which the nature of the business
transacted by it or the nature of the Property owned or leased by it makes
such licensing or qualification necessary. All of the issued and
outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and, if such
Subsidiary is a corporation, nonassessable except as set forth on Schedule
5.2 hereto. All such shares owned by the Borrower are owned beneficially,
and of record, free of any Lien. As of the Effective Date, each direct
Domestic Subsidiary of the Borrower is a Guarantor.
SECTION 5.3. CORPORATE AUTHORITY AND VALIDITY OF OBLIGATIONS.
The Borrower has full power and authority to enter into this Agreement and
the other Credit Documents to which it is a party, to make the borrowings
herein provided for, to issue its Notes in evidence thereof, to apply for
the issuance of the Letters of Credit, and to perform all of its
obligations under the Credit Documents to which it is a party. Each
Guarantor has full power and authority to enter into this Agreement as a
signatory hereto or pursuant to a Subsidiary Guarantee Agreement and to
perform all of its obligations hereunder. Each Credit Document to which
the Borrower is a party has been duly authorized, executed and delivered by
the Borrower and constitutes valid and binding obligations of the Borrower
in accordance with its terms. Each Credit Document to which a Guarantor is
a party has been duly authorized, executed and delivered by such Guarantor
and constitutes valid and binding obligations of such Guarantor in
accordance with its terms. No Credit Document to which the Borrower is a
party, nor the performance or observance by the Borrower of any of the
matters or things therein provided for, contravenes any provision of law or
any charter or by-law provision of the Borrower or (individually or in the
aggregate) any material Contractual Obligation of or binding upon the
Borrower or any of its Properties or results in or requires the creation or
imposition of any Lien on any of the Properties or revenues of the
Borrower. No Credit Document to which a Guarantor is a party, nor the
performance or observance by such Guarantor of any of the matters or things
therein provided for, contravenes any provision of law or any charter or
by-law provision of such Guarantor or (individually or in the aggregate)
any material Contractual Obligation of or binding upon such Guarantor or
any of its Properties or results in or requires the creation or imposition
of any Lien on any of the Properties or revenues of such Guarantor.
SECTION 5.4. FINANCIAL STATEMENTS. All financial statements
heretofore delivered to the Banks showing historical performance for each
of the Borrower's fiscal years ending on or before December 31, 1998, have
been prepared in accordance with GAAP applied on a basis consistent, except
as otherwise noted therein, with that of the previous fiscal year. Each of
such financial statements fairly presents on a consolidated basis the
financial condition of the Borrower and its Subsidiaries as of the dates
thereof and the results of operations for the periods covered thereby. The
Borrower and its Subsidiaries had, as of the date of the relevant financial
statements no material contingent liabilities other than those disclosed in
such financial statements referred to in this Section 5.4 or in comments or
footnotes thereto, or in any report supplementary thereto, heretofore
furnished to the Banks. The unaudited interim consolidated balance sheet
of the Borrower and its Subsidiaries as at June 30, 1999, and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the six (6) months then ended, heretofore
furnished to the Banks, fairly present the consolidated financial condition
of the Borrower and its Subsidiaries as at said date and the consolidated
results of their operations and cash flows for the periods then ended in
conformity with GAAP applied on a consistent basis. Neither the Borrower
nor any Subsidiary has contingent liabilities which are material to it
other than as indicated on such financial statements or, with respect to
future periods, on the financial statements furnished pursuant to
Section 7.6 hereof. Since June 30, 1999, there has been no material
adverse change which has not been disclosed to the Banks in the business,
operations, Property or financial or other condition, or business
prospects, of the Borrower and its Subsidiaries on a consolidated basis.
SECTION 5.5. NO LITIGATION; NO LABOR CONTROVERSIES. (a) There
is no litigation or governmental proceeding pending, or to the knowledge of
the Borrower or any Guarantor threatened, against the Borrower or any
Subsidiary which, if adversely determined, would reasonably be expected
(individually or in the aggregate) to have a Material Adverse Effect.
(b) There are no labor controversies pending or, to the best
knowledge of the Borrower or any Guarantor, threatened against the Borrower
or any Subsidiary which would reasonably be expected (insofar as the
Borrower may reasonably foresee) to have a Material Adverse Effect.
SECTION 5.6. TAXES. The Borrower and its Subsidiaries have
filed all United States federal tax returns, and all other tax returns,
required to be filed and have paid all taxes due pursuant to such returns
or pursuant to any assessment received by the Borrower or any Subsidiary,
except such taxes, if any, as are being contested in good faith and for
which adequate reserves have been provided. No notices of tax liens have
been filed and no claims are being asserted concerning any such taxes,
which liens or claims are material to the financial condition of the
Borrower and its Subsidiaries on a consolidated basis taken as a whole.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries for any taxes or other governmental charges are adequate.
SECTION 5.7. APPROVALS. No authorization, consent, license,
exemption, filing or registration with any court or governmental
department, agency or instrumentality, nor any approval or consent of the
stockholders of the Borrower or any Subsidiary or from any other Person, is
necessary to the valid execution, delivery or performance by the Borrower
or any Subsidiary of any Credit Document to which it is a party except for
such approvals and consents which have been obtained and are in full force
and effect.
SECTION 5.8. ERISA. With respect to each Plan, the Borrower and
each other member of the Controlled Group has fulfilled its obligations
under the minimum funding standards of and is in compliance in all material
respects with the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and with the Code to the extent applicable to it and has
not incurred any liability to the Pension Benefit Guaranty Corporation
("PBGC") or a Plan under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA. Neither the Borrower nor
any Subsidiary has any contingent liabilities for any post-retirement
benefits under a Welfare Plan, other than liability for continuation
coverage described in Part 6 of Title I of ERISA.
SECTION 5.9. GOVERNMENT REGULATION. Neither the Borrower nor
any Subsidiary is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or to the extent a Subsidiary
is an "investment company," it is properly registered with the SEC.
SECTION 5.10. MARGIN STOCK. Neither the Borrower nor any
Subsidiary is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock ("margin stock" to have the same meaning herein as in
Regulation U of the Board of Governors of the Federal Reserve System). The
Borrower will not use the proceeds of any Loan or Letter of Credit in a
manner that violates any provision of Regulation U or X of the Board of
Governors of the Federal Reserve System.
SECTION 5.11. LICENSES AND AUTHORIZATIONS; COMPLIANCE WITH
ENVIRONMENTAL AND HEALTH LAWS. (a) The Borrower and each of its
Subsidiaries has all necessary licenses, permits and governmental
authorizations to own and operate its Properties and to carry on its
business as currently conducted and contemplated, except to the extent the
failure to have such licenses, permits or authorizations would not
reasonably be expected to have a Material Adverse Effect.
(b) To the best of the Borrower's and each Guarantor's knowledge,
the business and operations of the Borrower and each Subsidiary comply in
all respects with all applicable Environmental and Health Laws, except
where the failure to so comply would not (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any Subsidiary has given, nor is it
required to give, nor has it received, any notice, letter, citation, order,
warning, complaint, inquiry, claim or demand to or from any governmental
entity or in connection with any court proceeding with respect to a matter
which would reasonably be expected to have a Material Adverse Effect
claiming that: (i) the Borrower or any Subsidiary has violated, or is
about to violate, any Environmental and Health Law; (ii) there has been a
release, or there is a threat of release, of Hazardous Materials from the
Borrower's or any Subsidiary's Property, facilities, equipment or vehicles;
(iii) the Borrower or any Subsidiary may be or is liable, in whole or in
part, for the costs of cleaning up, remediating or responding to a release
of Hazardous Materials; or (iv) any of the Borrower's or any Subsidiary's
property or assets are subject to a Lien in favor of any governmental
entity for any liability, costs or damages, under any Environmental and
Health Law arising from, or costs incurred by such governmental entity in
response to, a release of a Hazardous Materials.
SECTION 5.12. OWNERSHIP OF PROPERTY; LIENS. The Borrower and
each Subsidiary has good record and marketable title in fee simple to, or
valid leasehold interests in, all real property owned or leased by it, and
good title to or valid leasehold interests in all its other Property. None
of the Borrower's real property is subject to any Lien or Capitalized Lease
Obligation except as permitted in Section 7.9, and none of the Borrower's
or any Restricted Subsidiary's other Property is subject to any Lien,
except as permitted in Section 7.9.
SECTION 5.13. NO BURDENSOME RESTRICTIONS; COMPLIANCE WITH
AGREEMENTS. Neither the Borrower nor any Subsidiary is (a) party or
subject to any law, regulation, rule or order, or any Contractual
Obligation that (individually or in the aggregate) would reasonably be
expected to have a Material Adverse Effect or (b) in default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement to which it is a party, which
default would reasonably be expected to have a Material Adverse Effect.
SECTION 5.14. ACCURACY OF INFORMATION. No information, exhibit
or report furnished by the Borrower to any Bank or the Administrative Agent
in connection with a Loan or Letter of Credit or the negotiation of the
Credit Documents contained any material misstatement of fact or omitted to
state any fact necessary to make the statements contained therein not
misleading.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any
Loan, or of the Administrative Agent to issue, extend the expiration date
(including by not giving notice of non-renewal) of or increase the amount
of any Letter of Credit, shall be subject to the following conditions
precedent:
SECTION 6.1. INITIAL CREDIT EVENT. Before or concurrently with
the first Credit Event:
(a) The Administrative Agent shall have received for each
Bank the favorable written opinion of Xxxxx & Associates, counsel to the
Borrower and Guarantors substantially in the form of Exhibit C hereto;
(b) The Administrative Agent shall have received for each
Bank copies of (i) the Certificate of Incorporation, together with all
amendments, and a certificate of good standing, for the Borrower, both
certified as of a date not earlier than 20 days prior to the date hereof by
the appropriate governmental officer of the Borrower's jurisdiction of
incorporation and (ii) the Borrower's bylaws and any amendments thereto,
certified in each instance by its secretary or an assistant secretary;
(c) The Administrative Agent shall have received copies of
the partnership agreements of each Guarantor that is a partnership,
certified by a general partner or other duly authorized officer thereof to
be a true, correct and complete copy thereof;
(d) The Administrative Agent shall have received copies of
the Certificate of Incorporation and bylaws of each Guarantor that is a
corporation, certified in each instance by its secretary or an assistant
secretary;
(e) The Administrative Agent shall have received copies,
certified by the secretary or assistant secretary of each Guarantor that is
a corporation, and of each corporate general partner in the case of each
Guarantor that is a partnership having a corporation as its general
partner, of its board of directors' resolutions authorizing the execution
of the Credit Documents;
(f) The Administrative Agent shall have received
certificates, executed by a general partner of each Guarantor that is a
partnership, and by the secretary or assistant secretary of each Guarantor
that is a corporation, and of each corporate general partner in the case of
each Guarantor 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 the Credit Documents;
(g) The Administrative Agent shall have received to the
extent requested by any Bank, such Bank's duly executed Note of the
Borrower dated the date hereof and otherwise in compliance with the
provisions of Section 1.12(d) hereof;
(h) The Administrative Agent shall have received for each
Bank a list of the Borrower's Authorized Representatives;
(i) All legal matters incident to the execution and delivery
of the Credit Documents shall be satisfactory to the Banks;
(j) The $175,000,000 Credit Agreement dated as of
September 21, 1998 among Xxxxx Lang LaSalle, Incorporated, the Guarantors
party thereto, the Lenders party thereto and Bank One, NA, as
Administrative Agent, as amended, shall have been terminated and all
amounts payable thereunder shall have been paid or shall be paid with the
proceeds of such initial Credit Event; and
(k) The $45,000,000 Credit Agreement dated as of May 4, 1999
among Xxxxx Xxxx LaSalle Incorporated, the Banks party thereto and Xxxxxx
Trust and Savings Bank, as Administrative Agent, as amended, shall have
been terminated and all amounts payable thereunder shall have been paid or
shall be paid with the proceeds of such initial Credit Event.
SECTION 6.2. ALL CREDIT EVENTS. As of the time of each Credit Event
hereunder:
(a) In the case of a Borrowing, the Administrative Agent
shall have received the notice required by Section 1.7 hereof (or, in the
case of Swingline Loans, Section 1.3 hereof), in the case of the issuance
of any Letter of Credit the Administrative Agent shall have received a duly
completed Application for a Letter of Credit and, in the case of an
extension or increase in the amount of a Letter of Credit, a written
request therefor, in a form acceptable to the Administrative Agent;
(b) In the case of (i) a Borrowing of Loans that would
increase the aggregate principal amount of Loans outstanding (after giving
effect to concurrent repayment of Loans), (ii) a Borrowing of Eurocurrency
Loans denominated in an Alternative Currency or (iii) the increase in or
issuance of a Letter of Credit, each of the representations and warranties
set forth in Section 5 hereof shall be and remain true and correct in all
material respects as of said time, except that if any such representation
or warranty relates solely to an earlier date it need only remain true as
of such date, taking into account any amendments to such Section
(including, without limitation, any amendments to the Schedules referenced
therein) made after the date of this Agreement in accordance with the
provision hereof;
(c) In the case of (i) a Borrowing of Loans that would
increase the aggregate principal amount of Loans outstanding (after giving
effect to concurrent repayment of Loans), (ii) a Borrowing of Eurocurrency
Loans denominated in an Alternative Currency or (iii) the increase in or
issuance of a Letter of Credit, no Default or Event of Default shall have
occurred and be continuing or would occur as a result of such Credit Event;
and
(d) Such Credit Event shall not violate any order, judgment
or decree of any court or other authority or any provision of law or
regulation applicable to any Bank (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the
issuance of, increase in the amount of, or extension of the expiration date
of, a Letter of Credit shall be deemed to be a representation and warranty
by the Borrower on the date of such Credit Event as to the facts specified
in paragraphs (b) and (c) of this Section 6.2.
SECTION 7. COVENANTS.
The Borrower covenants and agrees that, so long as any Note or any
L/C Obligation is outstanding hereunder, or any Commitment is available to
or in use by the Borrower hereunder, except to the extent compliance in any
case is waived in writing by the Required Banks:
SECTION 7.1. CORPORATE EXISTENCE; SUBSIDIARIES. The Borrower
shall, and shall cause each of its Restricted Subsidiaries to, preserve and
maintain its existence, subject to the provisions of Section 7.12 hereof.
SECTION 7.2. MAINTENANCE. The Borrower will maintain, preserve
and keep its Property, necessary to the proper conduct of its business in
reasonably good repair, working order and condition and will from time to
time make all reasonably necessary repairs, renewals, replacements,
additions and betterments thereto so that at all times such plants,
properties and equipment shall be reasonably preserved and maintained, and
the Borrower will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; provided, however, that nothing in this
Section 7.2 shall prevent the Borrower or a Subsidiary from discontinuing
the operation or maintenance of any such Properties if such discontinuance
would not reasonably be expected to have a Material Adverse Effect.
SECTION 7.3. TAXES. The Borrower will duly pay and discharge,
and will cause each of its Subsidiaries duly to pay and discharge, all
taxes, assessments, and governmental charges or levies upon or against it
or against its Properties, in each case before the same becomes delinquent
and before penalties accrue thereon, unless and to the extent that the same
is being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor on the books of the
Borrower.
SECTION 7.4. ERISA. The Borrower will, and will cause each of
its Subsidiaries to, promptly pay and discharge all obligations and
liabilities arising under ERISA of a character which if unpaid or
unperformed might result in the imposition of a Lien against any of its
properties or assets and will promptly notify the Administrative Agent of
(i) the occurrence of any reportable event (as defined in ERISA) affecting
a Plan, other than any such event of which the PBGC has waived notice by
regulation, (ii) receipt of any notice from PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (iii) its or
any of its Subsidiaries' intention to terminate or withdraw from any Plan,
and (iv) the occurrence of any event affecting any Plan which could result
in the incurrence by the Borrower or any of its Subsidiaries of any
material liability, fine or penalty, or any material increase in the
contingent liability of the Borrower or any of its Subsidiaries under any
post-retirement Welfare Plan benefit. The Administrative Agent will
promptly distribute to each Bank any notice it receives from the Borrower
pursuant to this Section 7.4.
SECTION 7.5. INSURANCE. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain, insurance with good and
responsible insurance companies, covering insurable Property owned by it
with respect to such risks as is consistent with sound business practice.
The Borrower will upon request of any Bank furnish to such Bank a summary
setting forth the nature and extent of the insurance maintained pursuant to
this Section 7.5.
SECTION 7.6. FINANCIAL REPORTS AND OTHER INFORMATION. (a) The
Borrower will maintain a system of accounting in accordance with GAAP and
will furnish to the Banks and their respective duly authorized
representatives such information respecting the business and financial
condition of the Borrower and its Subsidiaries as any Bank may reasonably
request; and without any request, the Borrower will furnish each of the
following to each Bank:
(i) within 60 days after the end of each of the
first three quarterly fiscal periods of the Borrower, a copy of the
Borrower's Form 10-Q Report filed with the SEC;
(ii) within 120 days after the end of each fiscal
year of the Borrower, a copy of the Borrower's Form 10-K Report filed with
the SEC, prepared by the Borrower and containing or including as an exhibit
thereto the Borrower's financial statements for such fiscal year as
certified by independent public accountants of recognized national standing
selected by the Borrower in accordance with GAAP with such accountants'
unqualified opinion to the effect that the financial statements have been
prepared in accordance with GAAP and present fairly in all material
respects in accordance with GAAP the consolidated financial position of the
Company and its Subsidiaries as of the close of such fiscal year and the
results of their operations and cash flows for the fiscal year then ended
and that an examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances;
(iii) within the period provided in subsection (ii)
above, the written statement of the accountants who certified the audit
report thereby required that in the course of their audit they have
obtained no knowledge of any Default or Event of Default with respect to
Sections 7.11, 7.15, 7.16, 7.17, 7.18, 7.19 and 7.20 or, if such
accountants have obtained knowledge of any such Default or Event of
Default, they shall disclose in such statement the nature and period of the
existence thereof;
(iv) promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports the
Borrower sends to its shareholders, and copies of all other regular,
periodic and special reports and all registration statements the Borrower
files with the SEC or any successor thereto, or with any national
securities exchanges; and
(v) within 30 days of the beginning of each
fiscal year of the Borrower an operating budget for the Borrower and its
Subsidiaries for such fiscal year of the Borrower.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) or (ii) of this Section 7.6 shall be accompanied by a
Compliance Certificate in the form of Exhibit B hereto signed by the
Borrower's chief financial officer, treasurer or controller showing the
Borrower's compliance with the covenants set forth in Sections 7.14(k),
7.15, 7.16, 7.17, 7.18, 7.19 and 7.20 hereof.
(c) The Borrower will promptly (and in any event within three
Business Days after any of the President, chief executive officer, chief
financial officer, chief operating officer, treasurer, assistant treasurer,
or controller of the Borrower has knowledge thereof) give notice to the
Administrative Agent:
(i) of the occurrence of any Change of Control, Default or
Event of Default;
(ii) of any default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, except for a default
or event of default which is not reasonably expected to have a Material
Adverse Effect;
(iii) of the occurrence of an event or condition which would
reasonably be expected to result in a Material Adverse Effect; and
(iv) of any litigation or governmental proceeding of the type
described in Section 5.5 hereof.
SECTION 7.7. BANK INSPECTION RIGHTS. Upon reasonable notice
from any Bank, the Borrower will permit such Bank (and such Persons as any
Bank may designate) during normal business hours and under the Borrower's
guidance, to visit and inspect any of the properties of the Borrower or any
of its Subsidiaries, to examine all of their books of account, records,
reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their
respective officers and employees.
SECTION 7.8. CONDUCT OF BUSINESS. Neither the Borrower nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Borrower and its Subsidiaries taken as a
whole would be substantially changed from that conducted on the date
hereof.
SECTION 7.9. LIENS. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, permit to exist or to
be incurred any Lien of any kind on any Property owned by the Borrower or
any Restricted Subsidiary; provided, however, that this Section 7.9 shall
not apply to nor operate to prevent:
(a) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security obligations,
taxes, assessments, statutory obligations or other similar charges, good
faith deposits, pledges or Liens in connection with bids, tenders,
contracts or leases to which the Borrower or any Subsidiary is a party
(other than contracts for borrowed money), or other deposits required to be
made in the ordinary course of business; provided that in each case the
obligation secured is not overdue or, if overdue, is being contested in
good faith by appropriate proceedings and for which reserves in conformity
with GAAP have been provided on the books of the Borrower;
(b) mechanics', workmen's, materialmen's, landlords',
carriers' or other similar Liens arising in the ordinary course of business
(or deposits to obtain the release of such Liens) securing obligations not
due or, if due, being contested in good faith by appropriate proceedings
and for which reserves in conformity with GAAP have been provided on the
books of the Borrower;
(c) Liens for taxes or assessments or other government
charges or levies on the Borrower or any Subsidiary of the Borrower or
their respective Properties, not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in good
faith by appropriate proceedings and for which reserves in conformity with
GAAP have been provided on the books of the Borrower;
(d) Liens arising out of judgments or awards against the
Borrower or any Subsidiary of the Borrower, or in connection with surety or
appeal bonds in connection with bonding such judgments or awards, the time
for appeal from which or petition for rehearing of which shall not have
expired or with respect to which the Borrower or such Subsidiary shall be
prosecuting an appeal or proceeding for review, and with respect to which
it shall have obtained a stay of execution pending such appeal or
proceeding for review; provided that the aggregate amount of liabilities
(including interest and penalties, if any) of the Borrower and its
Subsidiaries secured by such Liens shall not exceed $1,000,000 at any one
time outstanding;
(e) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties which are necessary for the conduct of the activities of the
Borrower and any Subsidiary of the Borrower or which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair their use in the
operation of the business of the Borrower or any Subsidiary of the
Borrower;
(f) Liens existing on the date hereof and listed on Schedule
7.9 hereto; provided that, (i) such Liens do not at any time extend to the
Property of any other Person and (ii) such Liens shall be released no later
than March 10, 2000;
(g) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing paragraphs (a) through (f), inclusive,
provided, however, that the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of Indebtedness so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to the Property which
was subject to the Lien so extended, renewed or replaced; and
(h) Liens on property (not constituting Investments) of the
Borrower or any of its Subsidiaries created solely for the purpose of
securing Indebtedness permitted by Section 7.22(g) hereof, representing or
incurred to finance, refinance or refund the purchase price of Property,
provided that no such Lien shall extend to or cover other Property of the
Borrower or such Subsidiary other than the respective Property so acquired,
and the principal amount of Indebtedness secured by any such Lien shall at
no time exceed the original purchase price of such Property; and
(i) Liens not otherwise permitted under this Section 7.9 on
Property (other than (i) shares of stock in any Wholly-Owned Subsidiary and
(ii) receivables, inventory and similar working capital assets) securing
Indebtedness that, when combined with Capitalized Lease Obligations
permitted under Section 7.11, is in an aggregate principal amount not
exceeding $20,000,000 at any time outstanding; and
(j) Liens not otherwise permitted under this Section 7.9 on
any Property of any Person at the time such Person becomes a Subsidiary in
connection with the JLW Acquisition or any Person that is merged or
consolidated with or into the Borrower or any of its Subsidiaries in
connection with the JLW Acquisition which Liens do not, in the aggregate
for all such Liens, attach on Property with a fair market value in excess
of $5,000,000.
SECTION 7.10. USE OF PROCEEDS; REGULATION U. The proceeds of
each Borrowing, and the credit provided by Letters of Credit, will be used
by the Borrower and its Subsidiaries for working capital, repayment of
other Indebtedness, and other general corporate purposes including
acquisitions of businesses and other investments permitted by Section 7.14.
The Borrower will not use any part of the proceeds of any of the Borrowings
or of the Letters of Credit directly or indirectly to purchase or carry any
margin stock (as defined in Section 5.10 hereof) or to extend credit to
others for the purpose of purchasing or carrying any such margin stock.
SECTION 7.11. SALES AND LEASEBACKS. The Borrower will not, nor
will it permit any Restricted Subsidiary to, enter into any arrangement
with any bank, insurance company or other lender or investor providing for
the leasing by the Borrower or any Subsidiary of any Property theretofore
owned by it and which has been or is to be sold or transferred by such
owner to such lender or investor, except to the extent the aggregate
principal amount of Capitalized Lease Obligations under such leases plus
the outstanding principal amount of Indebtedness secured by Liens permitted
by Section 7.9(i) (and not separately permitted by other provisions of
Section 7.9) does not exceed $5,000,000 at any time outstanding;
SECTION 7.12. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS.
(a) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, (i) consolidate with or be a party to a merger with any
other Person or (ii) sell, lease or otherwise dispose of all or a
"substantial part" of the consolidated assets of the Borrower and its
Restricted Subsidiaries; provided, however, that:
(1) any Restricted Subsidiary of the Borrower may merge or
consolidate with or into or sell, lease or otherwise convey its assets to
the Borrower or any Restricted Subsidiary of which the Borrower directly or
indirectly holds at least the same percentage equity ownership or is
entitled through ownership of interests, contractually or otherwise, to at
least the same economic interest; provided that in any such merger or
consolidation involving the Borrower, the Borrower shall be the surviving
or continuing corporation;
(2) The Borrower and its Subsidiaries may dissolve or
liquidate any Restricted Subsidiary of the Borrower or of such Subsidiary
so long as all the assets of such dissolved or liquidated Restricted
Subsidiary are concurrently transferred to the Borrower or any Restricted
Subsidiary of which the Borrower directly or indirectly holds at least the
same percentage equity ownership or is entitled through ownership of
interests, contractually or otherwise, to at least the same economic
interest; provided that if any Guarantor is dissolved or liquidated all of
such Guarantor's assets shall be concurrently transferred to the Borrower
or another Guarantor;
(3) The Borrower or any Restricted Subsidiary of the Borrower
may consolidate or merge with any other Person if the Borrower or such
Restricted Subsidiary or, in the case of such a transaction involving the
Borrower, the Borrower is the surviving or continuing corporation and at
the time of such consolidation or merger, and after giving effect thereto,
no Default or Event of Default shall have occurred and be continuing;
(4) The Borrower and its Subsidiaries may sell or otherwise
dispose of any asset which, in the reasonable judgment of such Person, have
become obsolete or worn out; and
(5) The Borrower and its Subsidiaries may in a fair market
value transaction, sell or otherwise dispose of any direct or indirect
Investment in real estate or real estate related assets, including notes
and other securities.
As used in this Section 7.12(a), a sale, lease, transfer or disposition of
assets during any fiscal year shall be deemed to be of a "substantial part"
of the consolidated assets of the Borrower and its Restricted Subsidiaries
if the net book value of such assets, when added to the net book value of
all other assets (not including dispositions of stock in Subsidiaries
permitted under Section 7.12(b) hereof) sold, leased, transferred or
disposed of by the Borrower and its Restricted Subsidiaries during such
fiscal year (other than inventory in the ordinary course of business)
exceeds 5% of the total assets of the Borrower and its Restricted
Subsidiaries, determined on a consolidated basis as of the last day of the
immediately preceding fiscal year.
(b) Except with respect to the syndication or other disposition of
Subsidiaries or interests in Subsidiaries through which direct or indirect
Investments in real estate or real estate related assets, including notes
and other securities, are made, the Borrower will not sell, transfer or
otherwise dispose of, or permit any Restricted Subsidiary to issue, sell,
transfer or otherwise dispose of, any shares of stock of any class
(including as "stock" for purposes of this Section, any warrants, rights or
options to purchase or otherwise acquire stock or other Securities
exchangeable for or convertible into stock) of any Subsidiary, except to
the Borrower or any Restricted Subsidiary of which the Borrower directly or
indirectly holds at least the same percentage equity ownership or is
entitled through ownership of interests, contractually or otherwise, to at
least the same economic interest and except for the purpose of qualifying
directors.
SECTION 7.13. USE OF PROPERTY AND FACILITIES; ENVIRONMENTAL AND
HEALTH AND SAFETY LAWS. (a) The Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with the requirements of
all Environmental and Health Laws applicable to or pertaining to the
Properties or business operations of the Borrower or any Subsidiary of the
Borrower to the extent noncompliance would reasonably be expected to have a
Material Adverse Effect. Without limiting the foregoing, the Borrower will
not, and will not permit any Person to, except in accordance with
applicable law, dispose of any Hazardous Material into, onto or upon any
real property owned or operated by the Borrower or any of its Subsidiaries
if such disposal would reasonably be expected to have a Material Adverse
Effect.
(b) The Borrower will promptly provide the Banks with copies of any
notice or other instrument of the type described in Section 5.11(c) hereof,
and in no event later than five (5) Business Days after the President,
chief executive officer, chief financial officer, chief operating officer,
treasurer, assistant treasurer or controller of the Borrower receives such
notice or instrument.
SECTION 7.14. INVESTMENTS, ACQUISITIONS, LOANS, ADVANCES AND
GUARANTIES. The Borrower will not, nor will it permit any Subsidiary to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or
loans or advances to, any other Person (other than the Borrower or a
Subsidiary of the Borrower), or acquire all or any substantial part of the
assets or business of any other Person (other than the Borrower or a
Subsidiary of the Borrower) or division thereof, or be or become liable as
endorser, guarantor, surety or otherwise (such as liability as a general
partner) for any debt, obligation or undertaking of any other Person (other
than the Borrower or a Subsidiary of the Borrower), or otherwise agree to
provide funds for payment of the obligations of another (other than the
Borrower or a Subsidiary of the Borrower), or supply funds thereto or
invest therein or otherwise assure a creditor of another (other than the
Borrower or a Subsidiary of the Borrower) against loss, or apply for or
become liable to the issuer of a letter of credit which supports an
obligation of another (other than the Borrower or a Subsidiary of the
Borrower) (cumulatively, all of the foregoing, being "Investments");
provided, however, that the foregoing provisions shall not apply to nor
operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America provided that any such obligation matures within one year from the
date it is acquired by the Borrower or Subsidiary;
(b) investments in commercial paper rated at least P-1 by
Xxxxx'x Investors Services, Inc. or A-1 by Standard & Poor's Corporation
maturing within one year of its date of issuance;
(c) demand deposit accounts maintained in the ordinary course
of business;
(d) investments in certificates of deposit issued by and time
deposits with any commercial bank (whether domestic or foreign) having
capital and surplus of not less than $50,000,000 maturing within one year
from the date of issuance thereof or in banker's acceptances endorsed by
any Bank or other such commercial bank and maturing within six months of
the date of acceptance;
(e) investments in certificates of deposit issued by and time
deposits with any commercial bank (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 $500,000 in the aggregate;
(f) investments in repurchase obligations with a term of not
more than seven (7) days for underlying securities of the types described
in subsection (a) above entered into with any bank meeting the
qualifications specified in subsection (c) above, provided all such
agreements require physical delivery of the securities securing such
repurchase agreement, except those delivered through the Federal Reserve
Book Entry System;
(g) investments in money market funds that invest solely, and
which are restricted by their respective charters to invest solely, in
investments of the type described in the immediately preceding
subsections (a), (b), (c) and (d) above;
(h) endorsements of negotiable instruments for collection in
the ordinary course of business;
(i) loans and advances to employees and relocation companies
in the ordinary course of business not to exceed $8,000,000 in the
aggregate at any one time outstanding;
(j) Investments in existence on the date hereof and described
on Schedule 7.14 hereof;
(k) Acquisitions or Investments in a line of business related
to that of the Borrower and its Subsidiaries and Investments directly and
indirectly through Subsidiaries and other Persons in real estate and real
estate related assets, including notes and other securities, provided that
(i) no Default or Event of Default exists or would exist after giving
effect to such Acquisition or Investment, (ii) in the case of an
Acquisition, (I) the Board of Directors or other governing body or the
holders of 100% of the equity interests of such Person whose Property, or
Voting Stock or other interests in which, are being so acquired has
approved the terms of such Acquisition, (II) the portion of the purchase
price for all such Acquisitions paid by cash, including the aggregate
principal amount of all liabilities assumed in connection with such
Acquisitions, in any calendar year shall not exceed $20,000,000, and
(III) until the Liquidity Ratio as established pursuant to financial
statements delivered pursuant to Section 7.6(a) hereof exceeds 1.15 to 1.00
for two consecutive calendar quarters, the portion of the purchase price
for all such Acquisitions paid for with equity securities of the Borrower
or any Subsidiary in any calendar year shall not exceed $20,000,000, based
on the fair market value of such equity securities on the date such
Acquisitions are completed as reasonably determined by the Administrative
Agent (in the case of equity securities constituting common stock such fair
market value shall be determined based upon the closing price on the New
York Stock Exchange on the immediately preceding day as reported in THE
WALL STREET JOURNAL or other recognized financial publication acceptable to
the Administrative Agent in its sole discretion), (iii) in the case of
Investments not constituting Acquisitions, such Investment together with
all other Investments not constituting Acquisitions permitted under this
subsection (k) during the term of this Agreement reduced by the amount of
proceeds of the disposition of all or any part of any such Investments does
not exceed $150,000,000 in aggregate purchase price; provided that if the
aggregate purchase price for any Investment by the Borrower or any
Subsidiary in any one Person exceeds $20,000,000 the Borrower shall have
received the prior written consent of the Required Banks;
In determining the amount of Investments permitted under this Section
7.14, Investments shall always be taken at the original cost thereof
(regardless of any subsequent appreciation or depreciation therein), and
Investments in the form of loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and Investments in the form
of guarantees (including liabilities as a general partner) shall be taken
at the lesser of (i) amount of obligations guaranteed and (ii) the fair
market value of all the assets of such guarantor or general partner. A
change in the form of an Investment (e.g. from an interest as a limited
partner to making a direct loan to such limited partnership or a change in
the form of an entity from a limited partnership to a corporation) shall
not be regarded as a further Investment except to the extent the Borrower
or any of its Subsidiaries invests any further money.
SECTION 7.15. CONSOLIDATED NET WORTH. The Borrower will at all
times maintain a Consolidated Net Worth of not less than the Minimum
Required Amount. For purposes of this section, the "Minimum Required
Amount" shall mean (i) $250,000,000 for the period from and including the
Effective Date through and including December 30, 1999, (ii) $270,000,000
during the Annual Measurement Period commencing on December 31, 1999, and
(iii) during each Annual Measurement Period thereafter, an amount equal to
the sum of (x) the Minimum Required Amount for the immediately preceding
Annual Measurement Period plus (y) an amount equal to 50% of the cumulative
positive Consolidated Net Income earned in the fiscal year completed during
the immediately preceding Annual Measurement Period (but without
subtraction for any negative Consolidated Net Income for any such fiscal
year); provided, however, in each case such Minimum Required Amount shall
increase on the date of the issuance of capital securities (other than in
connection with the Borrower's Stock Compensation Program, Employee Stock
Purchase Plan, Stock Award and Incentive Plan and any similar programs or
plans and the JLW Acquisition) by the Borrower by an amount equal to 100%
of the Net Cash Proceeds of such issuance. As used herein the term "Annual
Measurement Period" shall mean each period commencing on December 31 of a
calendar year and ending on December 30 of the immediately subsequent
calendar year.
SECTION 7.16. FUNDED DEBT TO ADJUSTED EBITDA. The Borrower will
as of the last day of each calendar quarter maintain the ratio of Total
Funded Debt as of such day to Adjusted EBITDA for the four calendar
quarters then ended at not more than:
Total Funded
Debt to Adjusted
EBITDA
From and To and Ratio Shall Not Be
Including Including Greater Than
December 31, 1999 June 30, 2000 3.75 to 1.00
July 1, 2000 March 31, 2001 3.50 to 1.00
April 1, 2001 March 31, 2002 3.25 to 1.00
April 1, 2002 Thereafter 3.00 to 1.00
SECTION 7.17. SENIOR FUNDED DEBT TO ADJUSTED EBITDA. The
Borrower will as of the last day of each calendar quarter maintain the
ratio of Total Senior Funded Debt as of such day to Adjusted EBITDA for the
four calendar quarters then ended at not more than:
Total Senior
Funded Debt To
Adjusted EBITDA
From and To and Ratio Shall Not
Including Including Be Greater Than
December 31, 1999 June 30, 2000 3.75 to 1.00
July 1, 2000 March 31, 2001 3.50 to 1.00
April 1, 2001 March 31, 2002 3.00 to 1.00
April 1, 2002 Thereafter 2.75 to 1.00
SECTION 7.18. INTEREST COVERAGE RATIO. The Borrower will as of
the last day of each calendar quarter, commencing with the calendar quarter
ending December 31, 1999, maintain an Interest Coverage Ratio of not less
than 3.00 to 1.00.
SECTION 7.19. LIQUIDITY RATIO. The Borrower will as of the last
day of each calendar quarter maintain a Liquidity Ratio of not less than:
Liquidity Ratio
From and To and Shall Not Be
Including Including Less Than
January 1, 2000 December 31, 2000 1.00 to 1.00
January 1, 2001 December 31, 2001 1.10 to 1.00
January 1, 2002 Thereafter 1.15 to 1.00
SECTION 7.20. MINIMUM ADJUSTED EBITDA. The Borrower will for the
year ended December 31, 1999 have Adjusted EBITDA in an amount no less than
$95,000,000.
SECTION 7.21. DIVIDENDS AND OTHER SHAREHOLDER DISTRIBUTIONS. The
Borrower shall only declare or pay dividends or make a distribution (other
than dividends and distributions payable solely in its capital stock) of
any kind (including by redemption or purchase other than purchases of
outstanding capital stock (i) in connection with the Borrower's Stock
Compensation Program, Employee Stock Purchase Plan, Stock Award and
Incentive Plan and any similar programs or plans and (ii) in connection
with the satisfaction of taxes relating to the shares being allocated and
distributed under the Employee Stock Ownership Trust established in
connection with the acquisition by the Company of the businesses conducted
worldwide under the names "Xxxxx Lang Wootton" and "JLW") on its
outstanding capital stock, if (i) the Term Loans have been repaid in full
and (ii) no Default or Event of Default exists prior to or would result
after giving effect to such action.
SECTION 7.22. INDEBTEDNESS. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, have outstanding at any time
any Indebtedness other than:
(a) The Obligations of the Borrower and Guarantors owing to
the Banks and Administrative Agent hereunder;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower and any other Subsidiary;
(c) Capitalized Lease Obligations in an aggregate principal
amount outstanding not to exceed $20,000,000 on any date of determination;
(d) Subordinated Indebtedness;
(e) Investments (as defined in Section 7.14) permitted
pursuant to Section 7.14 in the form of Indebtedness;
(f) Guaranties by the Borrower and its Subsidiaries of
obligations of the Borrower and its Subsidiaries which obligations are not
prohibited under this Agreement;
(g) Indebtedness not otherwise permitted by this Section 7.22
of not more than $50,000,000 in aggregate principal amount outstanding on
any date of determination for the Borrower and its Restricted Subsidiaries.
SECTION 7.23. TRANSACTIONS WITH AFFILIATES. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into or be a
party to any material transaction or arrangement (where "material" means
material for the Borrower and its Subsidiaries taken as a whole) with any
Affiliate of such Person (other than the Borrower or any of its
Subsidiaries), including without limitation, the purchase from, sale to or
exchange of Property with, any merger or consolidation with or into, or the
rendering of any service by or for, any Affiliate, except in the ordinary
course of and pursuant to the reasonable requirements of the Borrower's or
such Subsidiary's business and upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary than could be obtained in a
comparable arm's-length transaction with a Person other than an Affiliate.
SECTION 7.24. COMPLIANCE WITH LAWS. Without limiting any of the
other covenants of the Borrower in this Section 7, the Borrower will, and
will cause each of its Subsidiaries to, conduct its business, and otherwise
be, in compliance with all applicable laws, regulations, ordinances and
orders of any governmental or judicial authorities; provided, however, that
neither the Borrower nor any Subsidiary of the Borrower shall be required
to comply with any such law, regulation, ordinance or order if (x) it shall
be contesting such law, regulation, ordinance or order in good faith by
appropriate proceedings and reserves in conformity with GAAP have been
provided therefor on the books of the Borrower or such Subsidiary, as the
case may be, or (y) the failure to comply therewith is not reasonably
expected to have, in the aggregate, a Material Adverse Effect.
SECTION 7.25. ADDITIONAL GUARANTORS. (a) If on the last day of
each calendar quarter ending December 31, 1999, September 30, 2000 and each
calendar quarter ending thereafter the portion of the Adjusted EBITDA for
the four calendar quarters then ended for the Borrower and its Non-Real
Estate Restricted Subsidiaries attributable to the Borrower and the
Guarantors is less than 70% of the Adjusted EBITDA for such four calendar
quarters of the Borrower and the Non-Real Estate Restricted Subsidiaries,
then the Borrower will, within 15 Business Days of the date on which the
balance sheet for such date is required to be delivered pursuant to
Section 7.6(i) or Section 7.6(ii), cause a Subsidiary or Subsidiaries to
become a Guarantor or Guarantors hereunder so that the portion of the
Adjusted EBITDA for the Borrower and its Non-Real Estate Restricted
Subsidiaries attributable to the Borrower and the Guarantors for such
period is equal to or in excess of 70% of the Adjusted EBITDA for the
Borrower and its Non-Real Estate Restricted Subsidiaries for such period.
To the extent any Subsidiary becomes a Guarantor as a result of the
requirements of this Section 7.25(a), the Guaranty of such Subsidiary shall
be released upon request of the Borrower if (i) on the last day of two
successive calendar quarters the portion of the Adjusted EBITDA for the
four calendar quarters then ended for the Borrower and its Non-Real Estate
Restricted Subsidiaries attributable to the Borrower and the Guarantors
(other than the Guarantor which the Borrower has requested be released) is
greater than 70% of the Adjusted EBITDA for each such period of the
Borrower and its Non-Real Estate Restricted Subsidiaries and (ii) no Event
of Default or Default is continuing. The Administrative Agent is hereby
authorized to execute all appropriate documents on behalf of the Lenders to
document the release of such Subsidiary from its Guaranty.
(b) In addition to the requirements of Section 7.25(a) the Borrower
will cause any Subsidiary to become a Guarantor hereunder within 15 days of
the date on which the balance sheet and income statement for any calendar
quarter is required to be delivered pursuant to Section 7.6(i), or
Section 7.6(ii), if for the four calendar quarters then ending the portion
of Adjusted EBITDA for the Borrower and its Non-Real Estate Restricted
Subsidiaries attributable solely to such Subsidiary for such period is
equal to or in excess of 5% of the Adjusted EBITDA for the Borrower and its
Non-Real Estate Restricted Subsidiaries for such period. To the extent any
such Subsidiary becomes a Guarantor, such Guaranty shall be released upon
request of the Borrower if on the last day of two successive calendar
quarters the portion of Adjusted EBITDA of the Borrower and its Non-Real
Estate Restricted Subsidiaries for such period attributable solely to such
Subsidiary was less than 5% of the total Adjusted EBITDA of the Borrower
and its Non-Real Estate Restricted Subsidiaries for such period, provided
that no Event of Default or Default is continuing. The Administrative
Agent is hereby authorized to execute all appropriate documents on behalf
of the Banks to document the release of such Guaranty.
(c) To the extent Section 7.25(a) or (b) would require that a
Foreign Subsidiary be added as a Guarantor, in lieu of having such
Subsidiary provide a Guaranty pursuant to Section 11, the Borrower may
elect to provide, and to cause its Subsidiaries to provide, within 60 days
of the date on which the Borrower is required by either Section 7.25(a) or
(b) above to cause such Foreign Subsidiary to become a Guarantor, the
Administrative Agent with a security interest in 65% of the issued and
outstanding capital stock owned by the Borrower and its Subsidiaries of
such Foreign Subsidiary pursuant to a security agreement in form and
substance reasonably acceptable to the Administrative Agent. Each Foreign
Subsidiary with respect to which a security interest is granted pursuant to
this Section 7.25(c) shall be regarded as a Guarantor for purposes of this
Section 7.25. To the extent a security interest in the stock of any
Foreign Subsidiary is provided pursuant to this Section 7.25(c), such
security interest shall be released upon request of the Borrower if after
giving effect to such release the Borrower is in compliance with
Sections 7.25(a) and (b) and provided that no Event of Default or Default
is continuing. The Administrative Agent is hereby authorized to execute
all appropriate documents on behalf of the Banks to document the release of
such security interest.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
SECTION 8.1. EVENTS OF DEFAULT. Any one or more of the
following shall constitute an Event of Default:
(a) default (x) in the payment when due of the principal
amount of any Loan or of any Reimbursement Obligation or (y) for a period
of three (3) days in the payment when due of interest or of any other
Obligation;
(b) default by the Borrower or any Subsidiary in the
observance or performance of any covenant set forth in the first sentence
of Section 7.1, Section 7.6(c), 7.9 through 7.12, or 7.14 through 7.21
hereof;
(c) default by the Borrower or any Subsidiary in the
observance or performance of any provision hereof or of any other Credit
Document not mentioned in (a) or (b) above, which is not remedied within
thirty (30) days after notice thereof to the Borrower by the Administrative
Agent (acting at the request of any Bank);
(d) (i) failure to pay when due Indebtedness in an aggregate
principal amount of $1,000,000 or more of the Borrower or any Subsidiary or
(ii) default shall occur under one or more indentures, agreements or other
instruments under which any Indebtedness of the Borrower or any Subsidiary
in an aggregate principal amount of $1,000,000 or more is outstanding and
such default shall continue for a period of time sufficient to permit the
holder or beneficiary of such Indebtedness or a trustee therefor to cause
the acceleration of the maturity of any such Indebtedness or any mandatory
unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any
other Credit Document by the Borrower or any Subsidiary, or in any
statement or certificate furnished pursuant hereto or pursuant to any other
Credit Document by the Borrower or any Subsidiary, or in connection with
any Credit Document, shall be untrue in any material respect as of the date
of the issuance or making, or deemed making or issuance, thereof;
(f) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, or any analogous action is taken under any
other applicable law relating to bankruptcy or insolvency, (ii) fail to
pay, or admit in writing its inability to pay, its debts generally as they
become due, (iii) make an assignment for the benefit of creditors,
(iv) 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, (v) institute any proceeding seeking to have entered against it
an order for relief under the United States Bankruptcy Code, as amended, to
adjudicate it 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 within the time allowed therefor to file an
answer or other pleading denying the material allegations of any such
proceeding filed against it, (vi) take any corporate action (such as the
passage by the Borrower's board of directors of a resolution) in
furtherance of any matter described in parts (i)-(v) above, or (vii) fail
to contest in good faith any appointment or proceeding described in
Section 8.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any Subsidiary or
any substantial part of any of their Property, or a proceeding described in
Section 8.1(f)(v) shall be instituted against the Borrower or any
Subsidiary, and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) days;
(h) the Borrower or any Subsidiary shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $2,500,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith in a manner that
stays execution thereon;
(i) the Borrower or any other member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess of
$200,000 which it shall have become liable to pay to the PBGC or to a Plan
under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Vested Liabilities in excess of $200,000
(collectively, a "Material Plan") shall be filed under Title IV of ERISA by
the Borrower or any Subsidiary or any other member of the Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan against
the Borrower or any other member of the Controlled Group to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within thirty (30) days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated; or
(j) the Borrower or any Subsidiary, or any Person acting on
behalf of the Borrower or a Subsidiary, or any governmental authority
challenges the validity of any Credit Document or the Borrower's or a
Subsidiary's obligations thereunder or any Credit Document ceases to be in
full force and effect; or
(k) a Change of Control shall have occurred.
SECTION 8.2. NON-BANKRUPTCY DEFAULTS. When any Event of Default
other than those described in subsections (f) or (g) of Section 8.1 hereof
has occurred and is continuing, the Administrative Agent shall, by written
notice to the Borrower: (a) if so directed by the Required Banks, terminate
the remaining Commitments and all other obligations of the Banks hereunder
on the date stated in such notice (which may be the date thereof); (b) if
so directed by the Required Banks, declare the principal of and the accrued
interest on all outstanding Loans and all other amounts due under the
Credit Documents to be forthwith due and payable and thereupon all
outstanding Loans, including both principal and interest thereon, shall be
and become immediately due and payable together with all other amounts
payable under the Credit Documents without further demand, presentment,
protest or notice of any kind; and (c) if so directed by the Required
Banks, demand that the Borrower immediately pay to the Administrative
Agent, subject to Section 8.4, the full amount then available for drawing
under each or any Letter of Credit, and the Borrower agrees to immediately
make such payment and acknowledges and agrees that the Banks would not have
an adequate remedy at law for failure by the Borrower to honor any such
demand and that the Administrative Agent, for the benefit of the Banks,
shall have the right to require the Borrower to specifically perform such
undertaking whether or not any drawings or other demands for payment have
been made under any Letter of Credit. The Administrative Agent, after
giving notice to the Borrower pursuant to Section 8.1(c) or this
Section 8.2, shall also promptly send a copy of such notice to the other
Banks, but the failure to do so shall not impair or annul the effect of
such notice.
SECTION 8.3. BANKRUPTCY DEFAULTS. When any Event of Default
described in subsections (f) or (g) of Section 8.1 hereof has occurred and
is continuing, then all outstanding Loans shall immediately become due and
payable together with all other amounts payable under the Credit Documents
without presentment, demand, protest or notice of any kind, the obligation
of the Banks to extend further credit pursuant to any of the terms hereof
shall immediately terminate and the Borrower shall immediately pay to the
Administrative Agent, subject to Section 8.4, the full amount then
available for drawing under all outstanding Letters of Credit, the Borrower
acknowledging that the Banks would not have an adequate remedy at law for
failure by the Borrower to honor any such demand and that the Banks, and
the Administrative Agent on their behalf, shall have the right to require
the Borrower 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 8.4. COLLATERAL FOR UNDRAWN LETTERS OF CREDIT. (a) If
the payment or prepayment of the amount available for drawing under any or
all outstanding Letters of Credit is required under Section 8.2 or 8.3
above, the Borrower shall forthwith pay the amount required to be so
prepaid, to be held by the Administrative Agent as provided in
subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be
held by the Administrative Agent in a separate collateral account (such
account, and the credit balances, properties and any investments from time
to time held therein, and any substitutions for such account, any
certificate of deposit or other instrument evidencing any of the foregoing
and all proceeds of and earnings on any of the foregoing being collectively
called the "Account") as security for, and for application by the
Administrative Agent (to the extent available) to, the reimbursement of any
payment under any Letter of Credit then or thereafter made by the
Administrative Agent, and to the payment of the unpaid balance of any Loans
and all other Obligations. The Account shall be held in the name of and
subject to the exclusive dominion and control of the Administrative Agent
for the benefit of the Administrative Agent and the Banks. If and when
requested by the Borrower, the Administrative Agent shall invest funds held
in the Account from time to time in direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by,
the United States of America with a remaining maturity of one year or less,
provided that the Administrative Agent is irrevocably authorized to sell
investments held in the Account when and as required to make payments out
of the Account for application to amounts due and owing from the Borrower
to the Administrative Agent or Banks; provided, however, that if (i) the
Borrower shall have made payment of all Obligations, (ii) all relevant
preference or other disgorgement periods relating to the receipt of such
payments have passed, and (iii) no Letters of Credit, Commitments, Loans or
other Obligations remain outstanding hereunder, then the Administrative
Agent shall repay to the Borrower any remaining amounts held in the
Account.
SECTION 8.5. NOTICE OF DEFAULT. The Administrative Agent shall
give notice to the Borrower under Section 8.1(c) hereof promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
SECTION 8.6. EXPENSES. The Borrower agrees to pay to the
Administrative Agent and each Bank, and any other holder of any Note
outstanding hereunder, all expenses reasonably incurred or paid by the
Administrative Agent and such Bank or any such holder, including reasonable
attorneys' fees and court costs, in connection with any Default or Event of
Default by the Borrower hereunder or in connection with the enforcement of
any of the Credit Documents.
SECTION 9. CHANGE IN CIRCUMSTANCES.
SECTION 9.1. 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 Bank to make or continue to maintain
Eurocurrency Loans or to perform its obligations as contemplated hereby,
such Bank shall promptly give notice thereof to the Borrower and such
Bank's obligations to make or maintain Eurocurrency Loans under this
Agreement shall terminate until it is no longer unlawful for such Bank to
make or maintain Eurocurrency Loans. The Borrower shall prepay on demand
the outstanding principal amount of any such affected Eurocurrency Loans,
together with all interest accrued thereon at a rate per annum equal to the
interest rate applicable to such Loan; provided, however, subject to all of
the terms and conditions of this Agreement, the Borrower may then elect to
borrow the principal amount of the affected Eurocurrency Loans from such
Bank by means of Domestic Rate Loans from such Bank, which Domestic Rate
Loans shall not be made ratably by the Banks but only from such affected
Bank.
SECTION 9.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO
ASCERTAIN, OR INADEQUACY OF, LIBOR. If on or prior to the first day of any
Interest Period for any Borrowing of Eurocurrency Loans:
(a) the Administrative Agent determines that deposits in U.S.
Dollars or the applicable Alternative Currency (in the applicable amounts)
are not being offered to it in the eurocurrency interbank market for such
Interest Period, or that by reason of circumstances affecting the interbank
eurocurrency market adequate and reasonable means do not exist for
ascertaining the applicable LIBOR, or
(b) Banks having 51% or more of the aggregate amount of the
Commitment reasonably determine and so advise the Administrative Agent that
LIBOR as reasonably determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks or Bank of funding
their or its Eurocurrency Loans or Loan for such Interest Period,
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligations of the Banks or of the relevant Bank to make
Eurocurrency Loans in the currency so affected shall be suspended; provided
that such suspension shall have no effect on any Eurocurrency Loan then
outstanding.
SECTION 9.3. INCREASED COST AND REDUCED RETURN. (a) If, on or
after the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request
or directive (whether or not having the force of law but, if not having the
force of law, compliance with which is customary in the relevant
jurisdiction) of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Eurocurrency Loans, its
Notes, its Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligations owed to it or its obligation to make Eurocurrency
Loans, issue a Letter of Credit, or to participate therein, or shall change
the basis of taxation of payments to any Bank (or its Lending Office) of
the principal of or interest on its Eurocurrency Loans, Letter(s) of
Credit, or participations therein or any other amounts due under this
Agreement in respect of its Eurocurrency Loans, Letter(s) of Credit, or
participations therein, any Reimbursement Obligations owed to it, or its
obligation to make Eurocurrency Loans, issue a Letter of Credit, or acquire
participations therein (except for changes in the rate of tax on the
overall net income or profits of such Bank or its Lending Office imposed by
the jurisdiction in which such Bank or its lending office is incorporated
in which such Bank's principal executive office or Lending Office is
located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit, capital or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding with respect to any Eurocurrency
Loans any such requirement included in an applicable Eurocurrency Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office) or shall impose on any
Bank (or its Lending Office) or on the interbank market any other condition
affecting its Eurocurrency Loans, its Notes, its Letter(s) of Credit, or
its participation in any thereof, any Reimbursement Obligation owed to it,
or its obligation to make Eurocurrency Loans, to issue a Letter of Credit,
or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Eurocurrency Loan,
issuing or maintaining a Letter of Credit, or participating therein, or to
reduce the amount of any sum received or receivable by such Bank (or its
Lending Office) under this Agreement or under its Notes with respect
thereto, by an amount deemed by such Bank to be material, then, within
fifteen (15) days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall be obligated to pay to such Bank
such additional amount or amounts as will compensate such Bank for such
increased cost or reduction; provided, however, that such Bank shall
promptly notify the Borrower of an event which might cause it to seek
compensation, and the Borrower shall be obligated to pay only such
compensation which is incurred or which arises after the date ninety (90)
days prior to the date such notice is given. In the event any law, rule,
regulation or interpretation described above is revoked, declared invalid
or inapplicable or is otherwise rescinded, and as a result thereof a Bank
is determined to be entitled to a refund from the applicable authority for
any amount or amounts which were paid or reimbursed by Borrower to such
Bank hereunder, such Bank shall refund such amount or amounts to Borrower
without interest.
(b) Each Bank that determines to seek compensation under this
Section 9.3 shall notify the Borrower and the Administrative Agent of the
circumstances that entitle the Bank to such compensation pursuant to this
Section 9.3 and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the reasonable judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section 9.3 and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 9.4. LENDING OFFICES. Each Bank may, at its option,
elect to make its Loans hereunder at the branch, office or affiliate
specified on the appropriate signature page hereof (each a "Lending
Office") for each type of Loan available hereunder or at such other of its
branches, offices or affiliates as it may from time to time elect and
designate in a written notice to the Borrower and the Administrative Agent.
SECTION 9.5. DISCRETION OF BANK AS TO MANNER OF FUNDING.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans
in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if
each Bank had actually funded and maintained each Eurocurrency Loan through
the purchase of deposits of U.S. Dollars or the applicable Alternative
Currency in the eurocurrency interbank market having a maturity
corresponding to such Loan's Interest Period and bearing an interest rate
equal to LIBOR for such Interest Period.
SECTION 10. THE ADMINISTRATIVE AGENT.
SECTION 10.1. APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE
AGENT. Each Bank hereby appoints Xxxxxx Trust and Savings Bank as the
Administrative Agent under the Credit Documents and hereby authorizes the
Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers under the Credit Documents as are
delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto.
SECTION 10.2. ADMINISTRATIVE AGENT AND ITS AFFILIATES. The
Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any other Bank and may exercise
or refrain from exercising the same as though it were not the
Administrative Agent, and the Administrative Agent and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Affiliate of the Borrower as if it were
not the Administrative Agent under the Credit Documents. The term "Bank"
as used herein and in all other Credit Documents, unless the context
otherwise clearly requires, includes the Administrative Agent in its
individual capacity as a Bank. References in Section 1 hereof to the
Administrative Agent's Loans, or to the amount owing to the Administrative
Agent for which an interest rate is being determined, refer to the
Administrative Agent in its individual capacity as a Bank.
SECTION 10.3. ACTION BY ADMINISTRATIVE AGENT. If the
Administrative Agent receives from the Borrower a written notice of an
Event of Default pursuant to Section 7.6(c) hereof, the Administrative
Agent shall promptly give each of the Banks written notice thereof. The
obligations of the Administrative Agent under the Credit Documents are only
those expressly set forth therein. Without limiting the generality of the
foregoing, the Administrative Agent shall not be required to take any
action hereunder with respect to any Default or Event of Default, except as
expressly provided in Sections 8.2 and 8.5. In no event, however, shall
the Administrative Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder or under any other Credit Document unless it
shall be first indemnified to its reasonable satisfaction by the Banks
against any and all costs, expense, and liability which may be incurred by
it by reason of taking or continuing to take any such action. The
Administrative Agent shall be entitled to assume that no Default or Event
of Default exists unless notified to the contrary by a Bank or the
Borrower. In all cases in which this Agreement and the other Credit
Documents do not require the Administrative Agent to take certain actions,
the Administrative Agent shall be fully justified in using its discretion
in failing to take or in taking any action hereunder and thereunder.
SECTION 10.4. CONSULTATION WITH EXPERTS. The Administrative
Agent may consult with legal counsel, independent public accountants and
other experts selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.
SECTION 10.5. LIABILITY OF ADMINISTRATIVE AGENT; CREDIT DECISION.
Neither the Administrative Agent nor any of its directors, officers,
agents, or employees shall be liable for any action taken or not taken by
it in connection with the Credit Documents (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Administrative Agent nor any
of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made in connection with this Agreement, any
other Credit Document or any Credit Event; (ii) the performance or
observance of any of the covenants or agreements of the Borrower or any
Guarantor contained herein or in any other Credit Document; (iii) the
satisfaction of any condition specified in Section 6 hereof, except receipt
of items required to be delivered to the Administrative Agent; or (iv) the
validity, effectiveness, genuineness, enforceability, perfection, value,
worth or collectibility hereof or of any other Credit Document or of any
other documents or writing furnished in connection with any Credit
Document; and the Administrative Agent makes no representation of any kind
or character with respect to any such matter mentioned in this sentence.
The Administrative Agent may execute any of its duties under any of the
Credit Documents by or through employees, agents, and attorneys-in-fact and
shall not be answerable to the Banks, the Borrower, or any Guarantor or any
other Person for the default or misconduct of any such agents or attorneys-
in-fact selected with reasonable care. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent,
certificate, other document or statement (whether written or oral)
reasonably believed by it to be genuine or to be sent by the proper party
or parties. In particular and without limiting any of the foregoing, the
Administrative Agent shall have no responsibility for confirming the
accuracy of any Compliance Certificate or other document or instrument
received by it under the Credit Documents. The Administrative Agent may
treat the payee of any Note as the holder thereof until written notice of
transfer shall have been filed with the Administrative Agent signed by such
payee in form satisfactory to the Administrative Agent. Each Bank
acknowledges that it has independently and without reliance on the
Administrative Agent or any other Bank, and based upon such information,
investigations and inquiries as it deems appropriate, made its own credit
analysis and decision to extend credit to the Borrower in the manner set
forth in the Credit Documents. It shall be the responsibility of each Bank
to keep itself informed as to the creditworthiness of the Borrower and the
Guarantors, and the Administrative Agent shall have no liability to any
Bank with respect thereto.
SECTION 10.6. INDEMNITY. The Banks shall ratably, in accordance
with their respective Percentages, indemnify and hold the Administrative
Agent, and its directors, officers, employees, agents and representatives
harmless from and against any liabilities, losses, costs or expenses
suffered or incurred by it under any Credit Document or in connection with
the transactions contemplated thereby, regardless of when asserted or
arising, except to the extent they are promptly reimbursed for the same by
the Borrower 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. The obligations of the Banks under this
Section 10.6 shall survive termination of this Agreement.
SECTION 10.7. RESIGNATION OF ADMINISTRATIVE AGENT AND SUCCESSOR
ADMINISTRATIVE AGENT. The Administrative Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower. Upon any such
resignation of the Administrative Agent, the Required Banks shall have the
right to appoint a successor Administrative Agent with the consent of the
Borrower. If no successor Administrative Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on
behalf of the Banks and with the consent of the Borrower, appoint a
successor Administrative Agent, which shall be any Bank hereunder or any
commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$200,000,000. Upon the acceptance of its appointment as the Administrative
Agent hereunder, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
or removed Administrative Agent under the Credit Documents, and the
retiring Administrative Agent shall be discharged from its duties and
obligations thereunder. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this
Section 10 and all protective provisions of the other Credit Documents
shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent.
SECTION 11. THE GUARANTEES.
SECTION 11.1. THE GUARANTEES. To induce the Banks to provide the
credits described herein and in consideration of benefits expected to
accrue to each Guarantor by reason of the Commitments and for other good
and valuable consideration, receipt of which is hereby acknowledged, each
Guarantor hereby unconditionally and irrevocably guarantees jointly and
severally to the Administrative Agent, the Banks, and each other holder of
an Obligation, the due and punctual payment of all present and future
indebtedness of the Borrower evidenced by or arising out of the Credit
Documents, including, but not limited to, the due and punctual payment of
principal of and interest on the Notes and the due and punctual payment of
all other Obligations now or hereafter owed by the Borrower under the
Credit Documents as and when the same shall become due and payable, whether
at stated maturity, by acceleration or otherwise, according to the terms
hereof and thereof. In case of failure by the Borrower punctually to pay
any indebtedness or other Obligations guaranteed hereby, each Guarantor
hereby unconditionally agrees jointly and severally to make such payment or
to cause such payment to be made punctually as and when the same shall
become due and payable, whether at stated maturity, by acceleration or
otherwise, and as if such payment were made by the Borrower.
SECTION 11.2. GUARANTEE UNCONDITIONAL. The obligations of each
Guarantor as a guarantor under this Section 11 shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not
be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower or of any other
Guarantor under this Agreement or any other Credit Document or by operation
of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Credit Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, the Borrower, any other Guarantor, or any of
their respective assets, or any resulting release or discharge of any
obligation of the Borrower or of any other Guarantor contained in any
Credit Document;
(d) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against the Administrative Agent, any
Bank or any other Person, whether or not arising in connection herewith;
(e) any failure to assert, or any assertion of, any claim or
demand or any exercise of, or failure to exercise, any rights or remedies
against the Borrower, any other Guarantor or any other Person or Property;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation of the Borrower, regardless of what
obligations of the Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or against
the Borrower or any other Guarantor for any reason of this Agreement or of
any other Credit Document or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower or any other Guarantor
of the principal of or interest on any Note or any other amount payable by
it under the Credit Documents; or
(h) any other act or omission to act or delay of any kind by
the Administrative Agent, any Bank or any other Person or any other
circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the obligations of
the Guarantor under this Section 11.
SECTION 11.3. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT
IN CERTAIN CIRCUMSTANCES. Each Guarantor's obligations under this
Section 11 shall remain in full force and effect until the Commitments are
terminated and the principal of and interest on the Notes and all other
amounts payable by the Borrower under this Agreement and all other Credit
Documents shall have been paid in full. If at any time any payment of the
principal of or interest on any Note or any other amount payable by the
Borrower under the Credit Documents is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of
the Borrower or of a Guarantor, or otherwise, each Guarantor's obligations
under this Section 11 with respect to such payment shall be reinstated at
such time as though such payment had become due but had not been made at
such time.
SECTION 11.4. WAIVERS. (a) GENERAL. Each Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action
be taken by the Administrative Agent, any Bank or any other Person against
the Borrower, another Guarantor or any other Person.
(b) SUBROGATION AND CONTRIBUTION. Unless and until the Obligations
have been fully paid and satisfied and the Commitments have terminated,
each Guarantor hereby irrevocably waives any claim or other right it may
now or hereafter acquire against the Borrower or any other Guarantor that
arises from the existence, payment, performance or enforcement of such
Guarantor's obligations under this Section 11 or any other Credit Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in
any claim or remedy of the Administrative Agent, any Bank or any other
holder of an Obligation against the Borrower or any other Guarantor whether
or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower or any other Guarantor directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or
security on account of such claim or other right.
SECTION 11.5. LIMIT ON RECOVERY. Notwithstanding any other
provision hereof, the right to recovery of the holders of the Obligations
against each Guarantor under this Section 11 shall not exceed $1.00 less
than the amount which would render such Guarantor's obligations under this
Section 11 void or voidable under applicable law, including without
limitation fraudulent conveyance law.
SECTION 11.6. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Borrower under this Agreement or
any other Credit Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement or the other Credit
Documents shall nonetheless be payable jointly and severally by the
Guarantors hereunder forthwith on demand by the Administrative Agent made
at the request of the Required Banks.
SECTION 12. MISCELLANEOUS.
SECTION 12.1. WITHHOLDING TAXES. (a) PAYMENTS FREE OF
WITHHOLDING. Except as otherwise required by law and subject to
Section 12.1(b) hereof, each payment by the Borrower and each Guarantor
under this Agreement or the other Credit Documents shall be made without
withholding for or on account of any present or future taxes (other than
overall net income taxes on the recipient) imposed by or within the
jurisdiction in which the Borrower or such Guarantor is domiciled, any
jurisdiction from which the Borrower or such Guarantor makes any payment,
or (in each case) any political subdivision or taxing authority thereof or
therein. If any such withholding is so required, the Borrower or relevant
Guarantor shall make the withholding, pay the amount withheld to the
appropriate governmental authority before penalties attach thereto or
interest accrues thereon and forthwith pay such additional amount as may be
necessary to ensure that the net amount actually received by each Bank and
the Administrative Agent free and clear of such taxes (including such taxes
on such additional amount) is equal to the amount which that Bank or the
Administrative Agent (as the case may be) would have received had such
withholding not been made. If the Administrative Agent or any Bank pays
any amount in respect of any such taxes, penalties or interest the Borrower
shall reimburse the Administrative Agent or that Bank for that payment on
demand in the currency in which such payment was made. If the Borrower or
any Guarantor pays any such taxes, penalties or interest, it shall deliver
official tax receipts evidencing that payment or certified copies thereof
to the Bank or Administrative Agent on whose account such withholding was
made (with a copy to the Administrative Agent if not the recipient of the
original) on or before the thirtieth day after payment. If any Bank or the
Administrative Agent determines it has received or been granted a credit
against or relief or remission for, or repayment of, any taxes paid or
payable by it because of any taxes, penalties or interest paid by the
Borrower or any Guarantor and evidenced by such a tax receipt, such Bank or
Administrative Agent shall, to the extent it can do so without prejudice to
the retention of the amount of such credit, relief, remission or repayment,
pay to the Borrower or such Guarantor as applicable, such amount as such
Bank or Administrative Agent determines is attributable to such deduction
or withholding and which will leave such Bank or Administrative Agent
(after such payment) in no better or worse position than it would have been
in if the Borrower had not been required to make such deduction or
withholding. Nothing in this Agreement shall interfere with the right of
each Bank and the Administrative Agent to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Bank or the Administrative
Agent to disclose any information relating to its tax affairs or any
computations in connection with such taxes.
(b) U.S. WITHHOLDING TAX EXEMPTIONS. Each Bank that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower and the Administrative Agent on or
before the earlier of the date the initial Borrowing is made hereunder and
thirty (30) days after the date hereof, two duly completed and signed
copies of either Form 1001 (relating to such Bank and entitling it to a
complete exemption from withholding under the Code on all amounts to be
received by such Bank, including fees, pursuant to the Credit Documents and
the Loans) or Form 4224 (relating to all amounts to be received by such
Bank, including fees, pursuant to the Credit Documents and the Loans) of
the United States Internal Revenue Service. Thereafter and from time to
time, each Bank shall submit to the Borrower and the Administrative Agent
such additional duly completed and signed copies of one or the other of
such Forms (or such successor forms as shall be adopted from time to time
by the relevant United States taxing authorities) as may be (i) requested
by the Borrower in a written notice, directly or through the Administrative
Agent, to such Bank and (ii) required under then-current United States law
or regulations to avoid or reduce United States withholding taxes on
payments in respect of all amounts to be received by such Bank, including
fees, pursuant to the Credit Documents or the Loans.
(c) INABILITY OF BANK TO SUBMIT FORMS. If any Bank determines, as
a result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit
to the Borrower or Administrative Agent any form or certificate that such
Bank is obligated to submit pursuant to subsection (b) of this
Section 12.1. or that such Bank is required to withdraw or cancel any such
form or certificate previously submitted or any such form or certificate
otherwise becomes ineffective or inaccurate, such Bank shall promptly
notify the Borrower and Administrative Agent of such fact and the Bank
shall to that extent not be obligated to provide any such form or
certificate and will be entitled to withdraw or cancel any affected form or
certificate, as applicable.
SECTION 12.2. NO WAIVER OF RIGHTS. No delay or failure on the
part of the Administrative Agent or any Bank or on the part of the holder
or holders of any Note in the exercise of any power or right under any
Credit Document shall operate as a waiver thereof, nor as an acquiescence
in any default, nor shall any single or partial exercise thereof preclude
any other or further exercise of any other power or right, and the rights
and remedies hereunder of the Administrative Agent, the Banks and the
holder or holders of any Notes are cumulative to, and not exclusive of, any
rights or remedies which any of them would otherwise have.
SECTION 12.3. NON-BUSINESS DAY. If any payment of principal or
interest on any Loan or of any other Obligation shall fall due on a day
which is not a Business Day, interest or fees (as applicable) at the rate,
if any, such Loan or other Obligation bears for the period prior to
maturity shall continue to accrue on such Obligation from the stated due
date thereof to but not including the next succeeding Business Day, on
which the same shall be payable.
SECTION 12.4. DOCUMENTARY TAXES. The Borrower agrees that it
will pay any documentary, stamp or similar taxes payable in respect to any
Credit Document, including interest and penalties, in the event any such
taxes are assessed, irrespective of when such assessment is made and
whether or not any credit is then in use or available hereunder.
SECTION 12.5. SURVIVAL OF REPRESENTATIONS. All representations
and warranties made herein or in certificates given pursuant hereto shall
survive the execution and delivery of this Agreement and the other Credit
Documents, and shall continue in full force and effect with respect to the
date as of which they were made as long as any credit is in use or
available hereunder.
SECTION 12.6. SURVIVAL OF INDEMNITIES. All indemnities and all
other provisions relative to reimbursement to the Banks of amounts
sufficient to protect the yield of the Banks with respect to the Loans,
including, but not limited to, Section 1.11, Section 9.3 and Section 12.15
hereof, shall survive the termination of this Agreement and the other
Credit Documents and the payment of the Loans and all other Obligations.
SECTION 12.7. SHARING OF SET-OFF. Each Bank agrees with each
other Bank a party hereto that if such Bank shall receive and retain any
payment, whether by set-off or application of deposit balances or otherwise
("Set-off"), on any of the Loans or Reimbursement Obligations in excess of
its ratable share of payments on all such obligations then outstanding to
the Banks, then such Bank shall purchase for cash at face value, but
without recourse, ratably from each of the other Banks such amount of the
Loans or Reimbursement Obligations, or participations therein, held by each
such other Banks (or interest therein) as shall be necessary to cause such
Bank to share such excess payment ratably with all the other Banks;
provided, however, that if any such purchase is made by any Bank, and if
such excess payment or part thereof is thereafter recovered from such
purchasing Bank, the related purchases from the other Banks shall be
rescinded ratably and the purchase price restored as to the portion of such
excess payment so recovered, but without interest. For purposes of this
Section 12.7, amounts owed to or recovered by, the Administrative Agent in
connection with Reimbursement Obligations in which Banks have been required
to fund their participation shall be treated as amounts owed to or
recovered by the Administrative Agent as a Bank hereunder.
SECTION 12.8. NOTICES. Except as otherwise specified herein, all
notices under the Credit Documents shall be in writing (including telecopy
or other electronic communication) and shall be given to a party hereunder
at its address or telecopier number set forth below or such other address
or telecopier number as such party may hereafter specify by notice to the
Administrative Agent and the Borrower, given by courier, by United States
certified or registered mail, or by other telecommunication device capable
of creating a written record of such notice and its receipt. Notices under
the Credit Documents to the Banks and the Administrative Agent shall be
addressed to their respective addresses, telecopier or telephone numbers
set forth on the signature pages hereof, and to the Borrower and the
Guarantors to:
Xxxxx Xxxx LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy of notices of Defaults
and Events of Defaults to: Xxxxx & Associates
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
and Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section 12.8 or on the signature pages
hereof and a confirmation of receipt of such telecopy has been received by
the sender, (ii) if given by courier, when delivered, (iii) if given by
mail, three business days after such communication is deposited in the
mail, registered with return receipt requested, addressed as aforesaid or
(iv) if given by any other means, when delivered at the addresses specified
in this Section 12.8 or on the signature pages hereof; provided that any
notice given pursuant to Section 1 hereof shall be effective only upon
receipt.
SECTION 12.9. COUNTERPARTS. This Agreement may be executed in
any number of counterpart signature pages, and by the different parties on
different counterparts, each of which when executed shall be deemed an
original but all such counterparts taken together shall constitute one and
the same instrument.
SECTION 12.10. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Borrower and its successors and assigns, and shall inure
to the benefit of each of the Banks and the benefit of their respective
successors and assigns, including any subsequent holder of any Note. The
Borrower may not assign any of its rights or obligations under any Credit
Document without the written consent of all of the Banks.
SECTION 12.11. PARTICIPANTS. Each Bank 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
Reimbursement 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 Bank 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 12.11, and
the Administrative 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 right
and responsibility to enforce the obligations of the Borrower and
Guarantors under this Agreement and the other Credit Documents including,
without limitation, the right to approve any amendment, modification or
waiver of any provision of the Credit Documents, except that such agreement
may provide that such Bank will not agree to any modification, amendment or
waiver of the Credit Documents that would reduce the amount of or postpone
any fixed date for payment of any Obligation in which such participant has
an interest or release (other than pursuant to the terms hereof) any
Guarantor from its guaranty of any Obligations. Any party to which such a
participation has been granted shall have the benefits of Section 1.11 and
Section 9.3 hereof.
SECTION 12.12. ASSIGNMENT OF COMMITMENTS BY BANKS. (a) Each Bank
shall have the right at any time, with the prior written consent of the
Borrower (which consent shall not be unreasonably withheld or delayed) and
the Administrative Agent, to assign, transfer or negotiate all or any part
of its rights and obligations under the Credit Documents (including,
without limitation, the indebtedness evidenced by the Notes then held by
such assigning Bank, together with an equivalent percentage of its
obligation to make Loans and participate in Letters of Credit) to one or
more Persons, provided that, unless otherwise agreed to by the
Administrative Agent, such assignment shall be of a fixed percentage (and
not by its terms of varying percentage) of the assigning Bank's rights and
obligations under the Credit Documents; provided that each such assignment
is in an amount of at least $5,000,000 or the entire Commitment of such
Bank; provided further that (i) the consent of the Borrower to any such
assignment shall not be required during the continuance of an Event of
Default and (ii) neither the consent of the Borrower nor of the
Administrative Agent shall be required if the assignee is an Affiliate of
the assigning Bank. Each such assignment shall set forth the assignee's
address for notices to be given under Section 12.8 hereof hereunder and its
designated Lending Office pursuant to Section 9.4 hereof. Upon any such
assignment, delivery to the Administrative Agent and the Borrower of an
executed copy of such assignment agreement and the forms referred to in
Section 11.1 hereof, if applicable, and, the payment of a $3,500
recordation fee to the Administrative Agent, the assignee shall become a
Bank hereunder, all Loans, participations in Letters of Credit and the
Commitment it thereby holds shall be governed by all the terms and
conditions hereof and the Bank granting such assignment shall have its
Commitment, and its obligations and rights in connection therewith, reduced
by the amount of such assignment. At the time of the assignment the
Borrower shall execute and deliver to the assignor and/or assignee new
Notes.
(b) Any Bank may at any time, without the consent of the
Borrower or Administrative Agent, assign all or a portion of its rights
under the Credit Documents to a Federal Reserve Bank; provided, however,
that no such assignment shall release the transferor Bank from its
obligations hereunder or cause such Federal Reserve Bank to become a "Bank"
hereunder.
SECTION 12.13. AMENDMENTS. Any provision of the Credit Documents
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by (a) the Borrower, (b) the Required Banks, and
(c) if the rights or duties of the Administrative Agent are affected
thereby, the Administrative Agent; provided that:
(i) no amendment or waiver pursuant to this Section 12.13
shall (A) increase or extend any Commitment of any Bank without the consent
of such Bank or (B) reduce the amount of or postpone any fixed date for
payment of any principal of or interest on any Loan or Reimbursement
Obligation or of any fee payable hereunder without the consent of each
Bank;
(ii) no amendment or waiver pursuant to this Section 12.13
shall, unless signed by each Bank, change any provision of this Section
12.13, or the definition of Required Banks, or affect the number of Banks
required to take any action under the Credit Documents, or release (other
than pursuant to the terms hereof) any Guarantor from its guaranty of any
Obligations; and
(iii) no amendment or waiver pursuant to this Section 12.13
shall, unless signed by Xxxxxx Bank, change any provision of Section 1.3 or
alter its rights or obligations with respect to Swingline Loans.
SECTION 12.14. HEADINGS. Section headings used in this Agreement
are for reference only and shall not affect the construction of this
Agreement.
SECTION 12.15. LEGAL FEES, OTHER COSTS AND INDEMNIFICATION. The
Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation and negotiation of
the Credit Documents, including without limitation, the reasonable fees and
disbursements of Xxxxxxx and Xxxxxx, counsel to the Administrative Agent,
in connection with the preparation and execution of the Credit Documents,
and any amendment, waiver or consent related hereto, whether or not the
transactions contemplated herein are consummated. The Borrower further
agrees to indemnify each Bank, the Administrative Agent, and their
respective 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 the indemnified Person is a party thereto) which any of them may incur
or reasonably pay arising out of or relating to any Credit Document or any
of the transactions contemplated thereby or the direct or indirect
application or proposed application of the proceeds of any Loan or Letter
of Credit, other than those which arise from the gross negligence or
willful misconduct of the party claiming indemnification. The Borrower,
upon demand by the Administrative Agent or a Bank at any time, shall
reimburse the Administrative Agent or Bank for any reasonable legal or
other expenses incurred in connection with investigating or defending
against any of the foregoing except if the same is directly due to the
gross negligence or willful misconduct of the party to be indemnified.
SECTION 12.16. SET OFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any
such rights, upon the occurrence and during the continuance of any Event of
Default, each Bank and each subsequent holder of any Note is hereby
authorized by the Borrower and each Guarantor at any time or from time to
time, without notice to the Borrower, to the Guarantors or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts or
other accounts of the Borrower or any Guarantor in a fiduciary capacity,
and in whatever currency denominated) and any other indebtedness at any
time held or owing by that Bank or that subsequent holder to or for the
credit or the account of the Borrower or any Guarantor, whether or not
matured, against and on account of the obligations and liabilities of the
Borrower or any Guarantor to that Bank or that subsequent holder under the
Credit Documents, including, but not limited to, all claims of any nature
or description arising out of or connected with the Credit Documents,
irrespective of whether or not (a) that Bank or that subsequent holder
shall have made any demand hereunder or (b) the principal of or the
interest on the Loans or Notes and other amounts due hereunder shall have
become due and payable pursuant to Section 8 and although said obligations
and liabilities, or any of them, may be contingent or unmatured.
SECTION 12.17. CURRENCY. Each reference in this Agreement to U.S.
Dollars or to an Alternative Currency (the "relevant currency") is of the
essence. To the fullest extent permitted by law, the obligation of the
Borrower and each Guarantor in respect of any amount due in the relevant
currency under this Agreement shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in the relevant currency that the Person
entitled to receive such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency (after any
premium and costs of exchange) on the Business Day immediately following
the day on which such Person receives such payment. If the amount of the
relevant currency so purchased is less than the sum originally due to such
Person in the relevant currency, the Borrower or relevant Guarantor agrees,
as a separate obligation and notwithstanding any such judgment, to
indemnify such Person against such loss, and if the amount of the specified
currency so purchased exceeds the sum of (a) the amount originally due to
the relevant Person in the specified currency plus (b) any amounts shared
with other Banks as a result of allocations of such excess as a
disproportionate payment to such Person under Section 12.7 hereof, such
Person agrees to remit such excess to the Borrower.
SECTION 12.18. ENTIRE AGREEMENT. The Credit Documents constitute
the entire understanding of the parties thereto with respect to the subject
matter thereof and any prior or contemporaneous agreements, whether written
or oral, with respect thereto are superseded thereby.
SECTION 12.19. GOVERNING LAW. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be
construed and determined in accordance with the internal laws of the State
of Illinois.
SECTION 12.20. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
The Borrower and each Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Northern District
of Illinois and of any Illinois State court sitting in the City of Chicago
for purposes of all legal proceedings arising out of or relating to this
Agreement, the other Credit Documents or the transactions contemplated
hereby or thereby. The Borrower and each Guarantor irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. THE BORROWER, EACH GUARANTOR,
THE ADMINISTRATIVE AGENT, AND EACH BANK HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO ANY CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 12.21. 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 each
Guarantor that is a partnership shall be limited to the assets of such
Guarantor, and no present or future partner of any such Guarantor shall
have any personal liability under this Agreement, except if such partner is
itself a Guarantor or the Borrower
SECTION 12.22. CONFIDENTIALITY. Each Bank agrees to keep
confidential any confidential written information provided to it by or on
behalf of the Borrower pursuant to or in connection with this Agreement;
provided that nothing herein shall prevent any Bank from disclosing any
such information (i) to the Administrative Agent or any other Bank, (ii) to
any participant or assignee or prospective participant or assignee so long
as such participant or assignee or prospective participant or assignee
agrees in writing to the requirement that such information be kept
confidential in the manner contemplated by this Section 12.22, (iii) to its
employees involved in the administration of this Agreement, directors,
attorneys, accountants and other professional advisors (each of which shall
be instructed to hold the same in confidence), (iv) in response to the
request or demand of any governmental authority, (v) in response to any
order of any court or other governmental authority or as may otherwise be
required pursuant to any law, regulation or legal process provided,
however, that such Bank, to the extent legally permitted to do so, will use
its best efforts to notify the Company prior to any disclosure of
information contemplated by this subparagraph (v), (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder or under any Credit
Document.
In Witness Whereof, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date
first above written.
XXXXX XXXX LASALLE INCORPORATED
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and Treasurer
------------------------------
XXXXX XXXX LASALLE CO-INVESTMENT, INC.,
as Guarantor
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and Treasurer
------------------------------
LP INTERNATIONAL, a limited liability
company, as Guarantor
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and Treasurer
------------------------------
XXXXX LANG LASALLE INTERNATIONAL, INC.,
as Guarantor
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and Treasurer
------------------------------
LASALLE INVESTMENT MANAGEMENT, INC.,
as Guarantor
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and Treasurer
------------------------------
XXXXX XXXX LASALLE AMERICAS, INC.,
as Guarantor
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and Treasurer
------------------------------
LASALLE HOTEL ADVISORS, INC., as Guarantor
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and
Assistant Treasurer
------------------------------
XXXXX LANG WOOTTON USA, INC., as Guarantor
By: /s/ Xxxxx X. Xxxx
------------------------------
Title: Vice President and Treasurer
------------------------------
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitments:
Address: XXXXXX TRUST AND SAVINGS BANK,
in its individual capacity as a
Bank and as Administrative Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 By: /s/ Xxxxx X. Xxxx
Attn.: Xxxxx Xxxx ------------------------------
Title: Managing Director
Telecopy: (000) 000-0000 ------------------------------
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxx
Eurocurrency Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxx
BANK ONE, NA
Address: (Main Office Chicago)
0 Xxxx Xxx, Xxxxx XXX-0000 By: /s/ Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn: Xxxxxxx Xxxxxxx and Title: Vice President
Xxxx Xxxxx ------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
1 Bank Xxx Xxxxx, XXX-0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx and
Xxxx Xxxxx
Eurocurrency Loans:
1 Bank Xxx Xxxxx, XXX-0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx and
Xxxx Xxxxx
THE CHASE MANHATTAN BANK
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx Xx /s/ Xxxxxxx X. Xxxxxxxx
New York, New York 10017 ------------------------------
Attn.: Xxxxxxx Xxxxxxxx Title Vice President
------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxxx
Eurocurrency Loans:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxxx
BANK OF AMERICA, N.A.
Address:
000 Xxxxx XxXxxxx Xxxxxx By /s/ Xxxxxxxxx X. Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn.: Xxxxxxxxx Xxxxxxx and Title Senior Vice President
Xxxx X. Xxxxxxxxx ------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxxxx Xxxxxxx and
Xxxx X. Xxxxxxxxx
Eurocurrency Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxxxx Xxxxxxx and
Xxxx X. Xxxxxxxxx
LASALLE BANK NATIONAL ASSOCIATION
Address:
000 Xxxxx XxXxxxx Xxxxxx By /s/ Xxxxx Xxxx Xxx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn.: Xxxxx Xxx Title Assistant Vice President
------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxx
Eurocurrency Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxx
FIRSTAR BANK, N.A.
Address:
000 Xxxxxx Xxxxxx, 0xx Xxxxx By /s/ Xxxxxx X. Xxxxxxx
Xxxxxxxxxx, Xxxx 00000 ------------------------------
Attn.: Xxxxxx Xxxxxxx Title Vice President
------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn.: Xxxx Xxxxxxx
Eurocurrency Loans:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn.: Xxxx Xxxxxxx
THE NORTHERN TRUST COMPANY
Address:
00 Xxxxx XxXxxxx Xxxxxx By /s/ Xxxxx X. Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn.: Xxxxx X. Xxxxxxxxx Title Vice President
------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxx
Eurocurrency Loans:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxx
MICHIGAN NATIONAL BANK
Address:
00000 Xxxxxxx Xxxx By /s/ Xxxxxxx X. Xxxxxx
Farmington Hills, Michigan ------------------------------
48333-9065 Title First Vice President
Attn.: Xxxxxx X. Xxxxxx ------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn.: Xxxxxx X. Xxxxxx
Eurocurrency Loans:
00000 Xxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn.: Xxxxxx X. Xxxxxx
NATIONAL WESTMINSTER BANK PLC
Address: NEW YORK BRANCH
P.O. Box 12264 By /s/ Xxxxx Xxxxxxx
0xx Xxxxx ------------------------------
Xxx Xxxxxxx Xxxxxx Name Xxxxx Xxxxxxx
London, England ------------------------------
EC2R8PB Title Corporate Manager
Attn.: Xxxxx X'Xxxx ------------------------------
NASSAU BRANCH
Telecopy: 011-0171-551-1094 By: /s/ Xxxxx Xxxxxxx
Telephone: 000-0000-000-0000 ------------------------------
E-Mail: xxxxx.xxxxx@xxxxxxx.xxx Name: Xxxxx Xxxxxxx
------------------------------
Title: Corporate Manager
------------------------------
Lending Offices:
Domestic Rate Loans:
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx Xxxxxxxx
Asst. Vice President
Eurocurrency Loans:
Commercial Loans, NatWest
Kings Cross House
200 Rentonville Road
London, NI 9HL U.K.
Attn.: Xxxx Xxxxxxx, Manager
