EXHIBIT 10.1
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MULTICURRENCY CREDIT AGREEMENT
DATED AS OF
SEPTEMBER 21, 2001
AMONG
XXXXX XXXX LASALLE FINANCE B.V.,
THE GUARANTORS PARTY HERETO,
THE BANKS PARTY HERETO,
XXXXXX TRUST AND SAVINGS BANK,
as Administrative Agent
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XXXXXX TRUST AND SAVINGS BANK,
as Lead Arranger,
LASALLE BANK NATIONAL ASSOCIATION,
as Syndication Agent
AND
THE CHASE MANHATTAN BANK,
BANK OF AMERICA, N.A.,
AND
ROYAL BANK OF SCOTLAND,
as Co-Documentation Agents
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TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
SECTION HEADING PAGE
SECTION 1. THE REVOLVING CREDIT . . . . . . . . . . . . . . . . 1
Section 1.1. Commitments. . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. The Swingline. . . . . . . . . . . . . . . . . . . . 1
Section 1.3. Letters of Credit. . . . . . . . . . . . . . . . . . 3
Section 1.4. Applicable Interest Rates. . . . . . . . . . . . . . 5
Section 1.5. Minimum Borrowing Amounts. . . . . . . . . . . . . . 6
Section 1.6. Manner of Borrowing Loans and Designating
Interest Rates Applicable to Loans . . . . . . . . . 6
Section 1.7. Interest Periods . . . . . . . . . . . . . . . . . . 9
Section 1.8. Maturity of Loans. . . . . . . . . . . . . . . . . . 9
Section 1.9. Prepayments. . . . . . . . . . . . . . . . . . . . . 9
Section 1.10. Default Rate . . . . . . . . . . . . . . . . . . . . 10
Section 1.11. Noteless Agreement; Evidence of
Indebtedness . . . . . . . . . . . . . . . . . . . . 11
Section 1.12. Funding Indemnity. . . . . . . . . . . . . . . . . . 11
Section 1.13. Commitment Terminations. . . . . . . . . . . . . . . 12
SECTION 2. FEES . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.1. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3. PLACE AND APPLICATION OF PAYMENTS. . . . . . . . . . 13
Section 3.1. Place and Application of Payments. . . . . . . . . . 13
SECTION 4. DEFINITIONS; INTERPRETATION. . . . . . . . . . . . . 14
Section 4.1. Definitions. . . . . . . . . . . . . . . . . . . . . 14
Section 4.2. Interpretation . . . . . . . . . . . . . . . . . . . 23
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 23
Section 5.1. Corporate Organization and Authority . . . . . . . . 23
Section 5.2. Subsidiaries . . . . . . . . . . . . . . . . . . . . 23
Section 5.3. Corporate Authority and Validity of
Obligations. . . . . . . . . . . . . . . . . . . . . 24
Section 5.4. Financial Statements . . . . . . . . . . . . . . . . 00
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XXXXXXX XXXXXXX PAGE
Section 5.5. No Litigation; No Labor Controversies. . . . . . . . 25
Section 5.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.7. Approvals. . . . . . . . . . . . . . . . . . . . . . 25
Section 5.8. ERISA. . . . . . . . . . . . . . . . . . . . . . . . 25
Section 5.9. Government Regulation. . . . . . . . . . . . . . . . 25
Section 5.10. Margin Stock . . . . . . . . . . . . . . . . . . . . 25
Section 5.11. Licenses and Authorizations; Compliance
with Environmental and Health Laws . . . . . . . . . 26
Section 5.12. Ownership of Property; Liens . . . . . . . . . . . . 26
Section 5.13. No Burdensome Restrictions; Compliance
with Agreements. . . . . . . . . . . . . . . . . . . 26
Section 5.14. Accuracy of Information. . . . . . . . . . . . . . . 26
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . 27
Section 6.1. Initial Credit Event . . . . . . . . . . . . . . . . 27
Section 6.2. All Credit Events. . . . . . . . . . . . . . . . . . 27
SECTION 7. COVENANTS. . . . . . . . . . . . . . . . . . . . . . 28
Section 7.1. Corporate Existence; Subsidiaries. . . . . . . . . . 28
Section 7.2. Maintenance. . . . . . . . . . . . . . . . . . . . . 28
Section 7.3. Taxes. . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.4. ERISA. . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.5. Insurance. . . . . . . . . . . . . . . . . . . . . . 29
Section 7.6. Financial Reports and Other Information. . . . . . . 29
Section 7.7. Bank Inspection Rights . . . . . . . . . . . . . . . 30
Section 7.8. Conduct of Business. . . . . . . . . . . . . . . . . 30
Section 7.9. Liens. . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.10. Use of Proceeds; Regulation U. . . . . . . . . . . . 32
Section 7.11. Sales and Leasebacks . . . . . . . . . . . . . . . . 32
Section 7.12. Mergers, Consolidations and Sales
of Assets. . . . . . . . . . . . . . . . . . . . . . 32
Section 7.13. Use of Property and Facilities;
Environmental and Health and Safety Laws . . . . . . 34
Section 7.14. Investments, Acquisitions, Loans, Advances
and Guaranties . . . . . . . . . . . . . . . . . . . 34
Section 7.15. Consolidated Net Worth . . . . . . . . . . . . . . . 36
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SECTION HEADING PAGE
Section 7.16. Funded Debt to Adjusted EBITDA . . . . . . . . . . . 36
Section 7.17. Interest Coverage Ratio. . . . . . . . . . . . . . . 36
Section 7.18. Liquidity Ratio. . . . . . . . . . . . . . . . . . . 36
Section 7.19. Dividends and Other Shareholder
Distributions. . . . . . . . . . . . . . . . . . . . 36
Section 7.20. Indebtedness . . . . . . . . . . . . . . . . . . . . 37
Section 7.21. Transactions with Affiliates . . . . . . . . . . . . 37
Section 7.22. Compliance with Laws . . . . . . . . . . . . . . . . 37
Section 7.23. Additional Guarantors. . . . . . . . . . . . . . . . 38
SECTION 8. EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . 38
Section 8.1. Events of Default. . . . . . . . . . . . . . . . . . 38
Section 8.2. Non-Bankruptcy Defaults. . . . . . . . . . . . . . . 40
Section 8.3. Bankruptcy Defaults. . . . . . . . . . . . . . . . . 40
Section 8.4. Collateral for Undrawn Letters of Credit . . . . . . 40
Section 8.5. Notice of Default. . . . . . . . . . . . . . . . . . 41
Section 8.6. Expenses . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 9. CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . . . . 41
Section 9.1. Change of Law. . . . . . . . . . . . . . . . . . . . 41
Section 9.2. Unavailability of Deposits or Inability
to Ascertain, or Inadequacy of, LIBOR. . . . . . . . 41
Section 9.3. Increased Cost and Reduced Return. . . . . . . . . . 42
Section 9.4. Lending Offices. . . . . . . . . . . . . . . . . . . 43
Section 9.5. Discretion of Bank as to Manner of Funding . . . . . 43
SECTION 10. THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . 43
Section 10.1. Appointment and Authorization of
Administrative Agent . . . . . . . . . . . . . . . . 43
Section 10.2. Administrative Agent and its Affiliates. . . . . . . 43
Section 10.3. Action by Administrative Agent . . . . . . . . . . . 44
Section 10.4. Consultation with Experts. . . . . . . . . . . . . . 44
Section 10.5. Liability of Administrative Agent;
Credit Decision. . . . . . . . . . . . . . . . . . . 44
Section 10.6. Indemnity. . . . . . . . . . . . . . . . . . . . . . 45
Section 10.7. Resignation of Administrative Agent
and Successor Agent. . . . . . . . . . . . . . . . . 45
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SECTION HEADING PAGE
SECTION 11. THE GUARANTEES . . . . . . . . . . . . . . . . . . . 45
Section 11.1. The Guarantees . . . . . . . . . . . . . . . . . . . 45
Section 11.2. Guarantee Unconditional. . . . . . . . . . . . . . . 46
Section 11.3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances . . . . . . . 46
Section 11.4. Waivers. . . . . . . . . . . . . . . . . . . . . . . 47
Section 11.5. Limit on Recovery. . . . . . . . . . . . . . . . . . 47
Section 11.6. Stay of Acceleration . . . . . . . . . . . . . . . . 47
SECTION 12. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . 47
Section 12.1. Payments Free of Withholding Taxes . . . . . . . . . 47
Section 12.2. No Waiver of Rights. . . . . . . . . . . . . . . . . 48
Section 12.3. Non-Business Day . . . . . . . . . . . . . . . . . . 48
Section 12.4. Documentary Taxes. . . . . . . . . . . . . . . . . . 48
Section 12.5. Survival of Representations. . . . . . . . . . . . . 48
Section 12.6. Survival of Indemnities. . . . . . . . . . . . . . . 48
Section 12.7. Sharing of Set-Off . . . . . . . . . . . . . . . . . 49
Section 12.8. Notices. . . . . . . . . . . . . . . . . . . . . . . 49
Section 12.9. Counterparts . . . . . . . . . . . . . . . . . . . . 50
Section 12.10. Successors and Assigns . . . . . . . . . . . . . . . 50
Section 12.11. Participants . . . . . . . . . . . . . . . . . . . . 50
Section 12.12. Assignment of Commitments by Banks . . . . . . . . . 50
Section 12.13. Amendments . . . . . . . . . . . . . . . . . . . . . 51
Section 12.14. Headings . . . . . . . . . . . . . . . . . . . . . . 51
Section 12.15. Legal Fees, Other Costs and Indemnification. . . . . 51
Section 12.16. Set Off. . . . . . . . . . . . . . . . . . . . . . . 52
Section 12.17. Currency . . . . . . . . . . . . . . . . . . . . . . 52
Section 12.18. Entire Agreement . . . . . . . . . . . . . . . . . . 52
Section 12.19. Governing Law. . . . . . . . . . . . . . . . . . . . 52
Section 12.20. Submission to Jurisdiction;
Waiver of Jury Trial . . . . . . . . . . . . . . . . 52
Section 12.21. Limitation of Liability. . . . . . . . . . . . . . . 53
Section 12.22. Confidentiality. . . . . . . . . . . . . . . . . . . 53
Signature . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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EXHIBITS
A - Form of Note
B - Form of Compliance Certificate
C-1 - Form of Legal Opinion of
U.S. Counsel to the Borrower and Guarantors
C-2 - Form of Legal Opinion of Dutch Counsel
to the Borrower
C-3 - Form of Legal Opinion of English Counsel
to Xxxxx Xxxxx LaSalle Limited
D - Form of Subsidiary Guarantee Agreement
SCHEDULE 1 Commitments
SCHEDULE 1.4 Existing Letters of Credit
SCHEDULE 5.2 Guarantors
SCHEDULE 7.14 Existing Investments
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MULTICURRENCY CREDIT AGREEMENT
This Multicurrency Credit Agreement, dated as of September 21, 2001,
is among Xxxxx Lang LaSalle Finance B.V., a private company with limited
liability organized under the laws of The Netherlands (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.
WHEREAS, subject to and upon the terms and conditions set forth
herein, the Banks are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. THE REVOLVING CREDIT.
SECTION 1.1. COMMITMENTS. Subject to the terms and conditions hereof,
each Bank severally agrees to make a loan or loans (individually a "Loan"
and collectively "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 Commitment
subject to any increases or reductions thereof pursuant to the terms
hereof, before the Termination Date. The sum of the (i) aggregate Original
Dollar Amount of Loans, (ii) the aggregate Original Dollar Amount of
Swingline Loans, and (iii) L/C Obligations at any time outstanding shall
not exceed the Commitments in effect at such time. The sum of the aggregate
Original Dollar Amount of all Loans denominated in an Alternative Currency
at any times outstanding shall not exceed $75,000,000. Each Borrowing of
Loans shall be made ratably from the Banks in proportion to their
respective Percentages. As provided in Section 1.6(a) hereof, the Borrower
may elect that each Borrowing of Loans denominated in U.S. Dollars be
either Domestic Rate Loans or Eurocurrency Loans. All Loans denominated in
an Alternative Currency shall be Eurocurrency Loans. Loans may be repaid
and the principal amount thereof reborrowed before the Termination Date,
subject to all the terms and conditions hereof.
SECTION 1.2. 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 Commitments in effect at such time and (y) the
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 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 1.10 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 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 Loans under this Section shall
initially constitute Domestic Rate Loans unless timely notice is given
pursuant to Section 1.6 hereof. Unless any of the conditions of Section 6
are not fulfilled on such date, each Bank shall make the proceeds of its
requested 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 Loans
shall be immediately applied to repay the outstanding Swingline Loans.
(f) PARTICIPATIONS. If any Bank refuses or otherwise fails to
make a Loan when requested by Xxxxxx Bank pursuant to Section 1.2(e) above
(because the conditions in Section 6 are not satisfied or otherwise), such
Bank will, by the time and in the manner such 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 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 1.3. 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 Commitments in
effect at such time and the aggregate Original Dollar Amount of Loans and
Swingline Loans then outstanding. Notwithstanding anything herein to the
contrary, those certain letters of credit issued for the account of the
Parent 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 Commitment of each Bank pro rata in
accordance with each Bank's Percentage.
(b) APPLICATIONS. At any time before the 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 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. 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 1.3.
(c) THE REIMBURSEMENT OBLIGATIONS. Subject to Section 1.3(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 1.3(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 1.3(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 1.3(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 1.3 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 Commitment of any Bank, and each
payment by a Participating Bank under this Section 1.3 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 1.3(e) and all
other parts of this Section 1.3 shall survive termination of this Agreement
and of all other L/C Documents.
SECTION 1.4. 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 days 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
-----------------------------------
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 1.5. 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 1.6. 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 (i) 12:00 noon (Chicago
time) 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) 12:00 noon (Chicago time) 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) 10:00 a.m. (Chicago time) 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 1.5 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 1.6(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 1.6(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 1.9(a) that
it intends to prepay such Borrowing. If the Borrower fails to give notice
pursuant to Section 1.6(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 1.6(a) and has not
notified the Administrative Agent within the period required by Section
1.9(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 1.6(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 1.6(a) and has not notified the Administrative
Agent within the period required by Section 1.9(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 1.4 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 2:00 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 1.4(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 or,
in the case of a Borrowing of Base Rate Loans prior to 11:00 a.m. (Chicago
time) on 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 1.12 hereof, so
that the Borrower will have no liability under such Section with respect to
such payment.
SECTION 1.7. INTEREST PERIODS. As provided in Section 1.6(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 Loans consisting of
Domestic Rate Loans that otherwise would end after the Termination Date
shall end on the Termination Date;
(b) 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
(c) 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 1.8. MATURITY OF LOANS. Each Loan shall mature and become
due and payable by the Borrower on the 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 Termination Date.
SECTION 1.9. 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 1.5 hereof
remains outstanding) any Borrowing of Eurocurrency Loans upon one Business
Day's 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 1.12 hereof; provided further
that any amounts not repaid on the date fixed for prepayment shall be
converted (subject to Sections 1.5 and 6.2 hereof) into a Borrowing of
Domestic Rate Loans. 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 Parent or any Subsidiary 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 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 Loans hereunder, (ii) the aggregate Original
Dollar Amount of all outstanding Swingline Loans hereunder, and (iii) the
L/C Obligations exceeds the Commitments as then in effect, the Borrower
shall immediately prepay Loans in an aggregate amount such that after
giving effect thereto the sum of (i) the U.S. Dollar Equivalent of all
outstanding 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 Commitments as then in effect.
(iii) The Borrower shall, on each date the Commitments
are reduced pursuant to Section 1.13 hereof, prepay the Loans and, if
necessary, prefund the L/C Obligations by the amount, if any, necessary to
reduce the sum of the aggregate principal amount of Loans and of L/C
Obligations then outstanding to the amount to which the Commitments have
been so reduced.
SECTION 1.10. 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 1.11. 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
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 1.12. 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 1.6(a) or
established pursuant to Section 1.6(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 1.13. COMMITMENT TERMINATIONS.
(a) 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 Commitments without premium or
penalty, in whole or in part, any partial termination to be in an amount
not less than $5,000,000, provided that the Commitments may not be reduced
to an amount less than the sum of the Original Dollar Amount of all 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 Commitments unless the Borrower elects to
do so in the manner provided above.
(b) If after the Effective Date the Parent or any Subsidiary
shall issue new equity securities (whether common or preferred stock or
otherwise), other than equity securities issued to the Parent or any
Subsidiary or in connection with the Parent'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 Parent or such Subsidiary in
respect thereof. On the Business Day occurring immediately after receipt by
the Parent or such Subsidiary of the Net Cash Proceeds of any such
issuance, the Commitments shall reduce in an aggregate amount equal to 50%
of the amount of such Net Cash Proceeds.
(c) If after the Effective Date the Parent 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 Parent or such
Subsidiary in respect thereof. On the Business Day occurring immediately
after receipt by the Parent or such Subsidiary of Net Cash Proceeds of any
such issuance, the Commitments shall reduce in an aggregate amount equal to
100% of the amount of such Net Cash Proceeds.
(d) If the Parent or any Subsidiary shall at any time or from
time to time make or agree to make a Disposition in excess of $5,000,000 on
a cumulative basis in any fiscal year of the Parent, 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 Parent or such Subsidiary in respect thereof). On the Business Day
occurring immediately after receipt by the Parent or the Subsidiary of the
Net Cash Proceeds of any such Disposition, the Commitments shall reduce in
an aggregate amount equal to 100% of the amount of such Net Cash Proceeds.
(e) The Administrative Agent shall give prompt notice to each
Bank pursuant to this Section 1.13 of any termination of Commitments. Any
such termination of Commitments (i) shall be allocated ratably among the
Banks in proportion to their respective Percentage and (ii) may not be
reinstated. Any termination of the Commitments to an aggregate amount less
than the L/C Commitment then in effect shall reduce the L/C Commitment to
an amount equal to the Commitments. Any termination of the Commitments to
an aggregate amount less than the Swingline Commitment then in effect shall
reduce the Swingline Commitment to an amount equal to the Commitments.
SECTION 2. FEES.
SECTION 2.1. FEES.
(a) COMMITMENT FEE. For the period from the Effective Date to
and including the 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, and (iii) 0.30% per annum for each day Level III Status
exists. Accrued Commitment Fees shall be due and, payable in arrears on
September 30, 2001, on the last day of each calendar quarter thereafter and
on the Termination Date, unless the 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
September 30, 2001, 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 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) ADMINISTRATIVE AGENT FEES. The Borrower shall pay to the
Administrative Agent the fees agreed to between the Administrative Agent
and the Parent in a letter dated September 11, 2001 or as otherwise
subsequently agreed between them.
(d) 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
Parent 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, and (iii) all non-cash contributions or accruals
to or with respect to deferred profit sharing or compensation; provided
that any amounts added to Consolidated Net Income pursuant to clause (iii)
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 Parent 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 Parent and its Restricted Subsidiaries, and (iv) all non-cash
contributions or accruals to or with respect to deferred profit sharing or
compensation; 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 Parent or any of its Subsidiaries.
"Adjusted LIBOR" is defined in Section 1.4(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 Parent or
any Subsidiary shall be deemed an Affiliate of the Parent 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, Singapore Dollars, 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, on any date for any Domestic Rate Loan or
Eurocurrency 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:
DOMESTIC
LEVEL EUROCURRENCY LOANS RATE LOANS
Level I Status 1.00% 0%
Level II Status 1.25% 0%
Level III Status 1.50% 0%
; provided that from the Closing Date until the first Pricing Date the
Borrower shall be in Level III.
"Application" is defined in Section 1.3(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 Parent to the Administrative Agent,
or any further or different officer of the Borrower so named by any
Authorized Representative of the Parent 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 Lang LaSalle Finance B.V., a private company
with limited liability organized under the laws of The Netherlands.
"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 1.6(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) the Parent ceases to be the ultimate "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of at least 99% of the total voting power of the
Voting Stock of the Borrower;
(ii) any Person becomes the beneficial owner of securities of
the Parent representing 30% or more of the then outstanding Voting Stock of
the Parent; or
(iii) 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 Parent
(the "Board"), together with any new director (other than a director
designated by a person who has entered into an agreement with the Parent to
effect a transaction described in clause (ii) 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,"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 Parent 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 Parent representing 20% or more
of the combined voting power.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to any Bank, the obligation of such Bank to
make Loans and to participate in Swingline Loans and 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 "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.
"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 Parent 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 Parent or
a Subsidiary of the Parent) 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 Parent 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 Parent 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 and each Subsidiary Guarantee Agreement delivered to
the Administrative Agent pursuant to Section 7.1 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 (i) in the
ordinary course of business or (ii) to the Parent or a Subsidiary.
"Domestic Rate" is defined in Section 1.4(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity
at a rate specified in Section 1.4(a) hereof.
"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 1.4(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.4(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 1.2(a) hereof.
"GAAP" means generally accepted accounting principles as in effect on
the Effective Date, applied by the Parent and its Subsidiaries on a basis
consistent with the preparation of the Parent's financial statements
furnished to the Banks as described in Section 5.4 hereof.
"Guarantor" means (i) the Parent, Xxxxx Xxxx LaSalle Americas, Inc.,
a Maryland corporation, LaSalle Investment Management, Inc., a Maryland
corporation, Xxxxx Lang LaSalle International, Inc., a Delaware
corporation, Xxxxx Xxxx LaSalle Co-Investment, Inc., a Maryland
corporation, Xxxxx Lang LaSalle Limited, a company organized under the laws
of England and Wales and (ii) any other Subsidiary of the Borrower
designated by the Borrower as a Guarantor as required by Section 7.23
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.
"Indenture" means the Indenture dated as of July 26, 2000 among the
Borrower, the Guarantors and The Bank of New York, as Trustee.
"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 Parent and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Interest Period" is defined in Section 1.7 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 Parent and its Subsidiaries
of the entities conducting business worldwide under the name Xxxxx Xxxx
Xxxxxxx (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 1.3(a) hereof.
"Level I Status" exists at any date if, at such date, the Total
Funded Debt to Adjusted EBITDA Ratio is less than 1.75 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 2.25 to 1.0.
"Level III Status" exists at any date if, at such date, neither
Level I nor Level II Status exists.
"LIBOR" is defined in Section 1.4(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 Parent 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 Parent 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 Parent including stock repurchases for cash and
(vii) the aggregate principal amount of all Investments reduced by the
amount of proceeds of the disposition of all or any part of any Investment
received by the Parent or any Restricted Subsidiary.
"Loan" is defined in Section 1.1 hereof and, as so defined, includes
a Domestic Rate Loan or Eurocurrency Loan, each of which is a "type" of
Loan hereunder.
"Material Adverse Effect" means a material and adverse effect on the
business, operations, Property or financial or other condition of the
Parent 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 promissory note issued at the request of a Bank
pursuant to Section 1.11 in the form of Exhibit A evidencing such Bank's
Loans.
"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 or any Guarantor 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.
"Parent" means Xxxxx Lang LaSalle Incorporated, a Maryland
corporation.
"Participating Bank" is defined in Section 1.3(d) hereof.
"Participating Interest" is defined in Section 1.3(d) hereof.
"Percentage" means, for each Bank, the percentage of the Commitments
represented by such Bank's Commitment or, if the 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 Parent ended
after the date hereof, the latest date by which the Parent 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
Parent has not delivered a Compliance Certificate by the date such
Compliance Certificate is required to be delivered under Section 7.6(b),
Level III Status shall be deemed to exist from such required delivery date
until a Compliance Certificate is delivered before the next Pricing Date.
If the Parent 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 Parent'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 1.2(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 Parent other than
an Unrestricted Subsidiary.
"Revolving Credit" means the credit facility for making Loans and
Swingline Loans and issuing Letters of Credit described in Sections 1.1,
1.2 and 1.3 hereof.
"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 12.7 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 a corporation, partnership or other entity that,
under GAAP, is included in the consolidated financial statements of the
Parent.
"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 $5,000,000 as the same may be reduced
from time to time pursuant to Section 1.13 hereof.
"Swingline Loan" is defined in Section 1.2 hereof.
"TARGET Settlement Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is
open.
"Termination Date" means September 21, 2004.
"Total Funded Debt" means, at any time the same is to be determined,
the aggregate of all Indebtedness of the Parent and its Restricted
Subsidiaries determined without duplication on a consolidated basis.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of a member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
"Unrestricted Subsidiary" means any Subsidiary of the Parent (other
than a Guarantor or the Borrower) which (i) is established for the sole
purpose of investing in real estate and real estate related assets
including notes and other securities and (ii) is designated by the Parent
(with prior written notice to the Administrative Agent) to be an
Unrestricted Subsidiary; provided that no Subsidiary may be an Unrestricted
Subsidiary for more than 180 days.
"Unused Commitments" means, at any time, the difference between the
Commitments then in effect and the aggregate outstanding principal amount
of Loans and L/C Obligations.
"U.S. Dollars" and "$" 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
Parent 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 Parent 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.
Each of the Borrower and the Parent 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 Parent 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. The Borrower is duly incorporated and
existing under the laws of The Netherlands as a private company with
limited liability (a besloten vennootschap met beperkte aansprakelijkheid);
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 Parent 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 Parent are owned
beneficially, and of record, free of any Lien.
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 provision of the articles of association ("statuten") 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 Parent's fiscal years ending on or before December 31, 2000, 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 Parent and its Subsidiaries as of the dates
thereof and the results of operations for the periods covered thereby. The
Parent 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 Parent and its Subsidiaries as at June 30, 2001, and the related
consolidated statements of income, retained earnings and cash flows of the
Parent and its Subsidiaries for the six (6) months then ended, heretofore
furnished to the Banks, fairly present the consolidated financial condition
of the Parent 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 Parent 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, 2001, 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
Parent 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 Parent or any Guarantor threatened, against the
Parent 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, Parent or any Guarantor, threatened against the
Parent or any Subsidiary which would reasonably be expected (insofar as the
Borrower or Parent may reasonably foresee) to have a Material Adverse
Effect.
SECTION 5.6. TAXES. The Parent 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 Parent 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 Parent and its Subsidiaries
on a consolidated basis taken as a whole. The charges, accruals and
reserves on the books of the Parent 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 Parent or any Subsidiary or from any other Person, is
necessary to the valid execution, delivery or performance by the Parent 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent 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
Parent's or any Subsidiary's Property, facilities, equipment or vehicles;
(iii) the Parent 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 Parent'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 Parent 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 Parent's real property is subject to any Lien or Capitalized Lease
Obligation except as permitted in Section 7.9, and none of the Parent'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 Parent 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 Parent or 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 nonrenewal) 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 (i) Xxxxx X. Xxxxxxxxxx, Esquire, Global
General Counsel to the Borrower and Guarantors substantially in the form of
Exhibit C-1 hereto, (ii) Loyens & Loeff, Dutch counsel to the Borrower
substantially in the form of Exhibit C-2 hereto and (iii) Xxxxxxxxx and
May, English counsel to Xxxxx Xxxx LaSalle Limited;
(b) The Administrative Agent shall have received for each Bank
copies of the notarial deed of incorporation (including the articles of
association) of the Borrower, certified by a Dutch civil law notary to be
true copies and an original extract of the commercial register of the
chamber of commerce of Amsterdam relating to the Borrower;
(c) The Administrative Agent shall have received copies of the
Certificate of Incorporation and bylaws (or equivalent) of each Guarantor
that is a corporation, certified in each instance by its secretary or an
assistant secretary (or its equivalent);
(d) The Administrative Agent shall have received copies,
certified by the secretary or assistant secretary (or its equivalent) of
each Guarantor, of its board of directors' resolutions (or its equivalent)
authorizing the execution of the Credit Documents to which it is a party;
(e) The Administrative Agent shall have received certificates,
executed the secretary or assistant secretary of each Guarantor, which
shall identify by name and title and bear the signature of the partners or
officers authorized to sign the Credit Documents to which it is a party;
(f) The Administrative Agent shall have received to the extent
requested by any Bank, such Bank's duly executed Notes of the Borrower
dated the date hereof and otherwise in compliance with the provisions of
Section 1.11(d) hereof;
(g) The Administrative Agent shall have received for each Bank
a list of the Borrower's Authorized Representatives;
(h) All legal matters incident to the execution and delivery
of the Credit Documents shall be satisfactory to the Banks; and
(i) The Second Amended and Restated Multicurrency Credit
Agreement dated as of July 26, 2000 among the Borrower, the Guarantors
party thereto, the Banks party thereto and Xxxxxx Trust and Savings Bank,
as Administrative Agent 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 1.6 hereof (or, in the case of
Swingline Loans, Section 1.2 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.
Each of the Borrower and the Parent 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 Parent shall,
and shall cause each of its Restricted Subsidiaries to, preserve and
maintain its existence, subject to the provisions of Section 7.12 hereof;
provided that the Parent shall not be required to preserve the existence of
any Restricted Subsidiary if the maintenance or preservation thereof, as
determined by the Board of Directors of the Parent, is no longer desirable
in the conduct of the business of the Parent and its Subsidiaries, taken as
a whole.
SECTION 7.2. MAINTENANCE. The Parent 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 Parent 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 Parent 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 Parent 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
Parent.
SECTION 7.4. ERISA. The Parent 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
Parent or any of its Subsidiaries of any material liability, fine or
penalty, or any material increase in the contingent liability of the Parent
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 Parent pursuant to this Section 7.4.
SECTION 7.5. INSURANCE. The Parent 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 Parent
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 Parent 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 Parent and its Subsidiaries as any Bank may
reasonably request; and without any request, the Parent 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 Parent, a copy of the Parent's Form 10-Q
Report filed with the SEC;
(ii) within 120 days after the end of each fiscal year of the
Parent, a copy of the Parent's Form 10-K Report filed with the SEC,
prepared by the Parent and containing or including as an exhibit thereto
the Parent's financial statements for such fiscal year as certified by
independent public accountants of recognized national standing selected by
the Parent 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 Parent 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 and 7.18 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 Parent sends to
its shareholders, and copies of all other regular, periodic and special
reports and all registration statements the Parent files with the SEC or
any successor thereto, or with any national securities exchanges; and
(v) within 30 days after the beginning of each fiscal year of
the Parent an operating budget for the Parent and its Subsidiaries for such
fiscal year of the Parent.
(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
Parent's chief financial officer, treasurer or controller showing the
Parent's compliance with the covenants set forth in Sections 7.14(k), 7.15,
7.16, 7.17 and 7.18 hereof.
(c) The Parent 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 Parent 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 Parent 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 Parent will permit such Bank (and such Persons as any Bank
may designate) during normal business hours and under the Parent's
guidance, to visit and inspect any of the properties of the Parent 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 Parent nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Parent and its Subsidiaries taken as a whole
would be substantially changed from that conducted on the date hereof.
SECTION 7.9. LIENS. The Parent 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 Parent 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 Parent 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 Parent;
(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 Parent;
(c) Liens for taxes or assessments or other government charges
or levies on the Parent or any Subsidiary of the Parent 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 Parent;
(d) Liens arising out of judgments or awards against the
Parent or any Subsidiary of the Parent, 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 Parent 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 Parent 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
Parent and any Subsidiary of the Parent 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 Parent or any Subsidiary of the Parent;
(f) 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 (e), 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;
(g) Liens on property (not constituting Investments) of the
Parent or any of its Subsidiaries created solely for the purpose of
securing Indebtedness permitted by Section 7.20(h) 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
Parent 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
(h) 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 $25,000,000 at any time outstanding.
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, the Parent and the Parent's 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 Parent 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 Parent 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 (i) the aggregate principal
amount of Capitalized Lease Obligations under such leases does not exceed
$25,000,000 at any time outstanding and (ii) 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(h) (and not separately permitted by other provisions of Section 7.9)
does not exceed $25,000,000 at any time outstanding;
SECTION 7.12. MERGERS, Consolidations and Sales of Assets. (a) The
Parent 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 Parent and its Restricted Subsidiaries;
provided, however, that:
(1) any Restricted Subsidiary of the Parent may merge or
consolidate with or into or sell, lease or otherwise convey its assets to
the Parent or any Restricted Subsidiary of which the Parent 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 or the Parent shall be
the surviving or continuing corporation;
(2) The Parent and its Subsidiaries may dissolve or liquidate
any Restricted Subsidiary of the Parent (other than the Borrower) or of
such Subsidiary so long as all the assets of such dissolved or liquidated
Restricted Subsidiary (i) were either investments in real estate, or real
estate related assets, including notes and other securities all of which
have been sold or (ii) are concurrently transferred to the Parent or any
Restricted Subsidiary of which the Parent 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 (other than the Parent) is
dissolved or liquidated all of such Guarantor's assets shall be
concurrently transferred to the Borrower or another Guarantor;
(3) The Parent or any Restricted Subsidiary of the Parent 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 Parent or 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent 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 Parent or any Restricted Subsidiary of which the Parent 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 Parent 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 Parent or any Subsidiary of the Parent to the extent
noncompliance would reasonably be expected to have a Material Adverse
Effect. Without limiting the foregoing, the Parent 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 Parent or any of its Subsidiaries if such disposal would
reasonably be expected to have a Material Adverse Effect.
(b) The Parent 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 Parent receives such
notice or instrument.
SECTION 7.14. INVESTMENTS, ACQUISITIONS, LOANS, ADVANCES AND
GUARANTIES. The Parent 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 Parent or a
Subsidiary of the Parent), or acquire all or any substantial part of the
assets or business of any other Person (other than the Parent or a
Subsidiary of the Parent) 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 Parent or a Subsidiary of the Parent), or otherwise agree to
provide funds for payment of the obligations of another (other than the
Parent or a Subsidiary of the Parent), or supply funds thereto or invest
therein or otherwise assure a creditor of another (other than the Parent or
a Subsidiary of the Parent) 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 Parent or a Subsidiary of the Parent) (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 Parent 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 Parent 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, and (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) in the case of Investments not constituting Acquisitions, such
Investment together with all other Investments not constituting
Acquisitions (excluding up to $20,000,000 of Investments in the aggregate
that are in the form of a Guaranty) permitted under this subsection (k)
since the Effective Date 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 Parent or any Subsidiary in any
one Person exceeds $20,000,000 the Parent 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 Parent or
any of its Subsidiaries invests any further money.
SECTION 7.15. CONSOLIDATED NET WORTH. The Parent 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) $280,000,000 during the Annual Measurement Period commencing on
December 31, 2000, and (ii) 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 Parent'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 Parent 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 Parent 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 (the "Total Funded Debt to Adjusted EBITDA Ratio") at not more than:
TOTAL FUNDED
DEBT TO ADJUSTED
EBITDA
FROM AND TO AND RATIO SHALL NOT BE
INCLUDING INCLUDING GREATER THAN
June 30, 2001 March 31, 2002 3.00 to 1.00
April 1, 2002 Thereafter 2.75 to 1.00
SECTION 7.17. INTEREST COVERAGE RATIO. The Parent will as of the
last day of each calendar quarter, commencing with the calendar quarter
ending June 30, 2001, maintain an Interest Coverage Ratio of not less than
2.75 to 1.00.
SECTION 7.18. LIQUIDITY RATIO. The Parent will as of the last day
of each calendar quarter maintain a Liquidity Ratio of not less than:
LIQUIDITY
FROM AND TO AND RATIO SHALL NOT BE
INCLUDING INCLUDING LESS THAN
June 30, 2001 December 31, 2001 1.05 to 1.00
January 1, 2002 Thereafter 1.10 to 1.00
SECTION 7.19. DIVIDENDS AND OTHER SHAREHOLDER DISTRIBUTIONS. The
Parent 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 Parent'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 JLW Acquisition) on its outstanding capital stock, if
no Default or Event of Default exists prior to or would result after giving
effect to such action.
SECTION 7.20. INDEBTEDNESS. The Parent 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 (i) the Borrower to the Parent or any
Subsidiary, (ii) any Subsidiary to the Parent or any other Subsidiary and
(iii) the Parent to any Subsidiary;
(c) Capitalized Lease Obligations in an aggregate principal
amount outstanding not to exceed $25,000,000 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 Parent and its Subsidiaries of
obligations of the Parent and its Subsidiaries which obligations are not
prohibited under this Agreement;
(g) The obligations of the Borrower and the Guarantors under
the Indenture in an aggregate principal amount not in excess of Euro
165,000,000; or
(h) Indebtedness not otherwise permitted by this Section 7.20
of not more than $50,000,000 in aggregate principal amount outstanding on
any date of determination for the Parent and its Restricted Subsidiaries.
SECTION 7.21. TRANSACTIONS WITH AFFILIATES. The Parent 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 Parent and its Subsidiaries taken as a whole) with any Affiliate of
such Person (other than the Parent 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 Parent's or such
Subsidiary's business and upon fair and reasonable terms no less favorable
to the Parent or such Subsidiary than could be obtained in a comparable
arm's-length transaction with a Person other than an Affiliate.
SECTION 7.22. COMPLIANCE WITH LAWS. Without limiting any of the
other covenants of the Parent in this Section 7, the Parent 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 Parent nor any Subsidiary of the Parent 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 Parent 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 7.23. ADDITIONAL GUARANTORS. (a) If on the last day of the
calendar quarter ending September 30, 2001 and each calendar quarter ending
thereafter the total liabilities of the non-Guarantor Subsidiaries of the
Parent equal or exceed 20% of the book value of the total consolidated
assets of the Parent and its Subsidiaries, then the Parent 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 an additional Subsidiary or additional Subsidiaries to become a
Guarantor or Guarantors hereunder such that the total liabilities of the
non-Guarantor Subsidiaries of the Parent are less than 20% of the book
value of the total consolidated assets of the Parent and its Subsidiaries.
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, the Parent 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
7.20 hereof;
(c) default by the Borrower, the Parent 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 Parent 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, Parent or any
Subsidiary or (ii) default shall occur under one or more indentures,
agreements or other instruments under which any Indebtedness of the
Borrower, the Parent 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, the Parent or any Subsidiary, or in any
statement or certificate furnished pursuant hereto or pursuant to any other
Credit Document by the Borrower, the Parent 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, the Parent 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 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, the Parent 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, the Parent 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, the Parent 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 Parent 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 Parent 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 Parent 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;
(j) the Borrower, the Parent or any Subsidiary, or any Person
acting on behalf of the Borrower, the Parent or a Subsidiary, or any
governmental authority challenges the validity of any Credit Document or
the Borrower's, the Parent's or a Subsidiary's obligations thereunder or
any Credit Document ceases to be in full force and effect;
(k) an "Event of Default" (as defined in the Indenture) shall
have occurred and be continuing; or
(l) 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 Parent: (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. PAYMENTS FREE OF WITHHOLDING TAXES. Except as
otherwise required by law, 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.
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 1.12, 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 Finance B.V.
c/o Jones Lang LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
with a copy of notices of Defaults
and Events of Default to:
Xxxxx Xxxx LaSalle Finance B.V.
c/o Jones Lang LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx,
General Counsel
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 described in clauses (i) and (ii) of Section 12.13 hereof. Any
party to which such a participation has been granted shall have the
benefits of Section 1.12 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 Xxxxxx Bank (so long as Xxxxxx Bank is providing the
Swingline Loans under Section 1.2 hereof), the Administrative Agent and, so
long as no Event of Default shall have occurred and be continuing, the
Borrower (which consent of the Borrower shall not be unreasonably withheld
or delayed), 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
forswth 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
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, if requested, 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, Xxxxxx Bank 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 1.2 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.
The Borrower and each Guarantor (other than the Parent) hereby irrevocably
designates, appoints and empowers the Parent as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding.
If for any reason the Parent shall cease to be available to act as such,
the Borrower and each Guarantor (other than the Parent) agrees to designate
a new designee, appointee and agent in Chicago, Illinois on the terms and
for the purposes of this provision satisfactory to the Administrative Agent
under this Agreement. The Borrower and each Guarantor hereby irrevocably
waives any objection to such service of process and further irrevocably
waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document that service of
process was in any way invalid or ineffective. Nothing herein shall affect
the right of the Administrative Agent, any Bank or the holder of any Note
to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower or any Guarantor in
any other jurisdiction.
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 or the Parent 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 Parent 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 FINANCE B.V.
By
------------------------------
Title
------------------------------
XXXXX LANG LASALLE INCORPORATED,
as Guarantor
By
------------------------------
Title
------------------------------
XXXXX XXXX LASALLE CO-INVESTMENT, INC.,
as Guarantor
By
------------------------------
Title
------------------------------
XXXXX LANG LASALLE INTERNATIONAL, INC.,
as Guarantor
By
------------------------------
Title
------------------------------
LASALLE INVESTMENT MANAGEMENT, INC.,
as Guarantor
By
------------------------------
Title
------------------------------
XXXXX XXXX LASALLE AMERICAS, INC.,
as Guarantor
By
------------------------------
Its
------------------------------
XXXXX LANG LASALLE LIMITED,
as Guarantor
By
------------------------------
Title
------------------------------
XXXXXX TRUST AND SAVINGS BANK,
in its individual capacity as a Bank
and as Administrative Agent
Address:
000 Xxxx Xxxxxx Xxxxxx Xx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn.: M. Xxxxx Xxxxx
Title
Telecopy: (000) 000-0000 ------------------------------
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: M. Xxxxx Xxxxx
Eurocurrency Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: X. Xxxxx Xxxxx
XXXXXXX BANK NATIONAL ASSOCIATION
Address:
000 Xxxxx XxXxxxx Xxxxxx Xx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn.: Xxxxx Xxxx Thick
Title:
Telecopy: (000) 000-0000 ------------------------------
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxx Thick
Eurocurrency Loans:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxx Thick
ROYAL BANK OF SCOTLAND PLC
Address:
London Corporate Centre By
3rd Floor ------------------------------
0 Xxxxxxxxxx Xxxxxx
000-000 Xxxxxxx
Xxxxxx XX0X 2TH Title
Attn.: Xxxx Xxxxxx ------------------------------
Telecopy: 00 00 0000 0000
Telephone: 00 00 0000 0000
Lending Offices:
Domestic Rate Loans:
London Xxxxxxxxx Xxxxxx
0xx Xxxxx
0 Xxxxxxxxxx Xxxxxx
000-000 Xxxxxxx
Xxxxxx XX0X 0XX
Attn.: Xxxx Xxxxxx
Eurocurrency Loans:
London Xxxxxxxxx Xxxxxx
0xx Xxxxx
0 Xxxxxxxxxx Xxxxxx
000-000 Xxxxxxx
Xxxxxx XX0X 0XX
Attn.: Xxxx Xxxxxx
BANK OF AMERICA, N.A.
Address:
000 Xxxxx XxXxxxx Xxxxxx Xx
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn.: Xxxxxxxxx Xxxxxxx and
Xxxx X. Xxxxxxxxx Title
------------------------------
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
THE CHASE MANHATTAN BANK
Address:
000 Xxxx Xxxxxx, Xx
31st Floor ------------------------------
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxxxx Title
------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxxxx
Eurocurrency Loans:
000 Xxxx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxxxx
US BANK NATIONAL ASSOCIATION d/b/a
FIRSTAR BANK, N.A.
Address:
000 Xxxx Xxxxxxxxx Xxxxxx By
Xxxxxxxxx, Xxxxxxxxx 00000 ------------------------------
Attn.: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000 Title
Telephone: (000) 000-0000 ------------------------------
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn.: Xxxxx Xxxxxxx
Eurocurrency Loans:
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn.: Xxxxx Xxxxxxx
THE BANK OF NEW YORK
Address:
One Wall Street, 19th Floor By
Xxx Xxxx, XX 00000 ------------------------------
Attn.: Xxxx X'Xxxxxx
Title
Telecopy: (000) 000-0000 ------------------------------
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxx X'Xxxxxx
Eurocurrency Loans:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X'Xxxxxx
THE BANK OF EAST ASIA LIMITED
Address:
000 Xxxxx Xxxxxx, 0xx Xxxxx Xx
Xxx Xxxx, XX 00000 ------------------------------
Attn.: Xxxxx Xx and
Xxx Xxxx Title
------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx Xx and
Xxx Xxxx
Eurocurrency Loans:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx Xx and
Xxx Xxxx
BANK ONE, NA
(Main Office Chicago)
Address:
0 Xxxx Xxx, Xxxxx XXX-0000 By
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn: Xxx Xxxxxx
Title
Telecopy: (000) 000-0000 ------------------------------
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
1 Bank Xxx Xxxxx, XXX-0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxx
Eurocurrency Loans:
1 Bank Xxx Xxxxx, XXX-0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxx
THE NORTHERN TRUST COMPANY
Address:
00 Xxxxx XxXxxxx Xxxxxx By
Xxxxxxx, Xxxxxxxx 00000 ------------------------------
Attn.: Xxxx Xxxxx
Title
Telecopy: (000) 000-0000 ------------------------------
Telephone: (000) 000-0000
Lending Offices:
Domestic Rate Loans:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxx Xxxxx
Eurocurrency Loans:
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxx Xxxxx
BANK HAPOALIM B.M.
Address:
000 Xxxxx Xxxxxxxx Xxxxxx By
Suite 900 ------------------------------
Xxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxx Title
------------------------------
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
By
------------------------------
Lending Offices:
Title
Domestic Rate Loans: ------------------------------
000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxx
Eurocurrency Loans:
000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 000
Xxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxx
EXHIBIT A
NOTE
________________, _____
FOR VALUE RECEIVED, the undersigned, Xxxxx Lang LaSalle Finance B.V.,
a private company with limited liability organized under the laws of The
Netherlands (the "Borrower"), promises to pay to the order of
________________________ (the "Bank") on the Termination Date of the
hereinafter defined Credit Agreement, at the principal office of Xxxxxx
Trust and Savings Bank, in Chicago, Illinois, (or in the case of
Eurocurrency Loans denominated in an Alternative Currency, at such office
as the Administrative Agent has previously notified the Borrower) in the
currency of such Loan in accordance with Section 3.1 of the Credit
Agreement, the aggregate unpaid principal amount of all Loans made by the
Bank to the Borrower pursuant to the Credit Agreement, together with
interest on the principal amount of each Loan from time to time outstanding
hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Note, which is a part hereof, each Loan made by it
pursuant to the Credit Agreement, together with all payments of principal
and interest and the principal balances from time to time outstanding
hereon, whether the Loan is a Domestic Rate Loan or a Eurocurrency Loan,
the currency thereof and the interest rate and Interest Period applicable
thereto, provided that prior to the transfer of this Note all such amounts
shall be recorded on a schedule attached to this Note. The record thereof,
whether shown on such books or records or on a schedule to this Note, shall
be prima facie evidence of the same, provided, however, that the failure of
the Bank to record any of the foregoing or any error in any such record
shall not limit or otherwise affect the obligation of the Borrower to repay
all Loans made to it pursuant to the Credit Agreement together with accrued
interest thereon.
This Note is one of the Notes referred to in the Multicurrency Credit
Agreement dated as of September 21, 2001, among the Borrower, the
Guarantors party thereto, Xxxxxx Trust and Savings Bank, as Administrative
Agent, and the Banks party thereto (as amended from time to time, the
"Credit Agreement"), and this Note and the holder hereof are entitled to
all the benefits provided for thereby or referred to therein, to which
Credit Agreement reference is hereby made for a statement thereof. All
defined terms used in this Note, except terms otherwise defined herein,
shall have the same meaning as in the Credit Agreement. This Note shall be
governed by and construed in accordance with the internal laws of the State
of Illinois.
Prepayments may be made hereon and this Note may be declared due
prior to the expressed maturity hereof, all in the events, on the terms and
in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
XXXXX XXXX LASALLE FINANCE B.V.
By
------------------------------
Title
------------------------------
EXHIBIT B
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Xxxxxx Trust and Savings
Bank, as Administrative Agent, pursuant to the Multicurrency Credit
Agreement (the "Credit Agreement") dated as of September 21, 2001, by and
among Xxxxx Xxxx LaSalle Finance B.V., the Banks signatory thereto and
Xxxxxx Trust and Savings Bank as Administrative Agent. Unless otherwise
defined herein, the terms used in this Compliance Certificate have the
meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected or appointed ________________ of
Xxxxx Xxxx LaSalle Incorporated;
2. I have reviewed the terms of the Credit Agreement and I
have made, or have caused to be made under my supervision, a detailed
review of the transactions and conditions of Xxxxx Lang LaSalle
Incorporated and its Subsidiaries during the accounting period covered by
the attached financial statements;
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any condition or
event which constitutes a Default or an Event of Default during or at the
end of the accounting period covered by the attached financial statements
or as of the date of this Certificate, except as set forth below; and
4. The representations and warranties contained in Section 5
of the Credit Agreement are true and correct in all material respects as
though made on the date hereof (other than those made solely as of an
earlier date, which 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 the
Credit Agreement in accordance with its provisions.
5. Schedule 1 attached hereto sets forth financial data and
computations evidencing compliance with certain covenants of the Credit
Agreement, all of which data and computations are true, complete and
correct. All computations are made in accordance with the terms of the
Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Parent has taken, is taking,
or proposes to take with respect to each such condition or event:
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
The foregoing certifications, together with the computations set
forth in Schedule 1 hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this __________ day
of _____________, _____.
------------------------------------
SCHEDULE I TO THE COMPLIANCE CERTIFICATE
Schedule of Compliance, as of the _________ day of _____________,
_____, with the Sections of the Agreement set forth below:
1. Section 7.14(k) (Investments)
A. Investments acquired since the $____________
Effective Date
Name Amount
__________ __________
__________ __________
__________ __________
B. The portion of Investments listed in
Section 1A that have been disposed of $____________
Name Amount
__________ __________
__________ __________
__________ __________
C. Line 1A minus Line 1B $____________
(must not exceed $150,000,000)
2. Section 7.15 (Consolidated Net Worth)
A, Total stockholder's equity of the Parent $____________
and its Restricted Subsidiaries
(must be equal to or greater than $___________)
3. Section 7.16 (Total Funded Debt to Adjusted EBITDA)
A. Indebtedness of the Parent and its $____________
Restricted Subsidiaries
B. Net Income $____________
C. Amounts deducted in arriving at
Net Income in respect of
(i) Interest Expense $____________
(ii) federal, state and local $____________
income taxes
(iii) depreciation of fixed assets $____________
and amortization of intangible
assets
(iv) non-cash contributions and $____________
accruals to deferred profit
sharing or compensation plans
D. Sum of Lines 3B, 3C(i), 3C(ii),
3C(iii), and 3C(iv) $____________
("Adjusted EBITDA")
1
E. Ratio of Line 3A to Line 3D (not to ______ to 1.00
exceed ____ to 1.00)
4. Section 7.17 (Interest Coverage Ratio)
A. Adjusted EBITDA (Line 3D above) $____________
B. Interest Expense $____________
C. Ratio of Line 4A to Line 4B ______ to 1.00
(must be greater than or
equal to 2.75 to 1.00)
5. Section 7.18 (Liquidity Ratio)
A. Adjusted EBITDA (Line 3D above) $____________
B. Interest Expense $____________
C. Capital expenditures $____________
D. Cash purchase price of Acquisitions $____________
E. Federal, state and local income taxes paid $____________
F. Indebtedness due and payable $____________
G. Cash dividends and distributions on $____________
capital stock
H. Net Investments not constituting $____________
Acquisitions
I. Sum of Lines 5B, 5C, 5D, 5E, 5F, 5G and 5H $____________
J. Ratio of Line 5A to Line 5I (must ______ to 1.00
(not be less than _____to 1.00)
2
EXHIBIT D
SUBSIDIARY GUARANTEE AGREEMENT
_______________, ____
XXXXXX TRUST AND SAVINGS BANK,
as Administrative Agent for the
Banks party to the Multicurrency
Credit Agreement dated as of
September 21, 2001 among Xxxxx
Lang LaSalle Finance B.V., certain
Guarantors, such Banks and such
Administrative Agent (the "Credit
Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [name of Subsidiary Guarantor], a [jurisdiction of
incorporation] corporation, hereby elects to be a "Guarantor" for all
purposes of the Credit Agreement, effective from the date hereof. The
undersigned confirms that the representations and warranties set forth in
Section 5 of the Credit Agreement are true and correct as to the
undersigned as of the date hereof.
Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all the obligations of a Guarantor under, and to
be bound in all respects by the terms of, the Credit Agreement, including
without limitations Section 11 thereof, to the same extent and with the
same force and effect as if the undersigned were a direct signatory
thereto.
This Agreement shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
Very truly yours,
[NAME OF SUBSIDIARY GUARANTOR]
By ______________________________
Name ______________________________
Title ______________________________
SCHEDULE 1
COMMITMENTS
NAME OF BANK COMMITMENT
Xxxxxx Trust and Savings Bank $ 65,000,000
LaSalle Bank National Association 40,000,000
Royal Bank of Scotland plc 35,000,000
Bank of America, N.A. 30,000,000
The Chase Manhattan Bank 27,500,000
US Bank National Association,
d/b/a Firstar Bank, N.A. 25,000,000
The Bank of New York 15,000,000
The Bank of East Asia Limited 11,700,000
Bank One, NA 10,000,000
The Northern Trust Company 10,000,000
Bank Hapoalim B.M. 5,800,000
------------
TOTAL $275,000,000
============
SCHEDULE 1.4
EXISTING LETTERS OF CREDIT
AMOUNT EXPIRY DATE BENEFICIARY
[TO BE UPDATED BY XXXXXX BANK]
SCHEDULE 5.2
GUARANTORS
JURISDICTION OF PERCENTAGE
NAME INCORPORATION OWNERSHIP
Xxxxx Lang LaSalle Incorporated Maryland N/A
Xxxxx Xxxx LaSalle Americas, Inc. Maryland 100%
LaSalle Investment Management, Inc. Maryland 100%
Xxxxx Lang LaSalle International,
Inc. Delaware 100%
Xxxxx Xxxx LaSalle Co-Investment,
Inc. Maryland 100%
Xxxxx Lang LaSalle Limited England 100%
SCHEDULE 7.14
EXISTING INVESTMENTS
