EXHIBIT 99.1
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FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement is dated as of June 16, 2008
(this "Amendment"), among Xxxxx Xxxx LaSalle Finance B.V., a private
company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) organized under the laws of The Netherlands (the
"Borrower"), the guarantors party hereto, the financial institutions listed
on the signature pages hereof as Banks and Bank of Montreal, as
administrative agent (in such capacity, the "Administrative Agent").
PRELIMINARY STATEMENTS
A. The Borrower, the guarantors party thereto (the "Guarantors"),
the financial institutions listed on the signature pages thereof as Banks
and the Administrative Agent have heretofore entered into that certain
Credit Agreement, dated as of April 15, 2008 (the "Credit Agreement"); and
B. The Borrower has asked the Lenders and the Administrative Agent
to amend certain covenants and related definitions, revise the Applicable
Margin, increase the maximum amount to which the Commitments may be
increased and to make certain other amendments to the Credit Agreement as
set forth herein and the Lenders and the Administrative Agent are willing
to do so on the terms and conditions set forth in this Amendment.
Now, Therefore, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 USE OF DEFINED TERMS. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in the
Credit Agreement shall have such meanings when used in this Amendment.
ARTICLE II
AMENDMENTS
SECTION 2.1. Section 1.11 of the Credit Agreement is hereby amended
in its entirety and as so amended shall read as follows:
SECTION 1.11. Commitment Terminations.
(a) OPTIONAL. 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 all Loans then outstanding.
(b) MANDATORY. The Commitments shall terminate in full
on the date on which the aggregate "Commitments" under the
Multicurrency Credit Agreement are increased above
$575,000,000.
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(c) NOTICE. The Administrative Agent shall give prompt
notice to each Bank pursuant to this Section 1.11 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.
SECTION 2.2. Section 1.13 of the Credit Agreement is hereby amended
in its entirety and as so amended shall read as follow:
SECTION 1.13. [Intentionally Omitted.]
SECTION 2.3. Section 2.1(a) of the Credit Agreement is hereby
amended in its entirety and as so amended shall read as follows:
(a) FACILITY 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 facility fee (the
"Facility Fee") on the average daily Commitments at a rate per
annum equal to the applicable Facility Fee in the definition of
Applicable Margin; PROVIDED that if any Bank continues to have
outstanding Loans after its Commitment terminates, then the
Facility Fee shall continue to accrue on the daily amount of
such Bank's outstanding Loans. Accrued Facility Fees shall be
due and payable in arrears on the last day of each calendar
quarter 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; PROVIDED that any Facility Fee accruing after the
date the Commitments terminate shall be payable on demand.
SECTION 2.4. Section 4.1 of the Credit Agreement is hereby amended
by (i) deleting the defined term "Commitment Fee", (ii) amending the
defined terms "Applicable Margin", "Interest Coverage Ratio", and
"Termination Date" in their entirety and as so amended to read as set forth
below and (iii) inserting new defined terms "Cash Interest Expense",
"Facility Fee", "First Amendment", "First Amendment Effective Date", "Net
Cash Proceeds", and "Rentals" as set forth below in their proper
alphabetical order:
"Applicable Margin" means, on any date, (i) for any
Domestic Rate Loan, 0.55%, (ii) for any Eurodollar Loan, 2.05%
and (iii) for any Facility Fee, 0.450%.
"Cash Interest Expense" means, for any period, the sum of
all cash interest charges of the Parent and its Restricted
Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"Facility Fee" is defined in Section 2.1(a) hereof.
"First Amendment" means the First Amendment to Credit
Agreement dated as of June 16, 2008 by and among the Borrower,
the Guarantors, the Banks and the Administrative Agent.
"First Amendment Effective Date" means the date upon
which the First Amendment became effective pursuant to its
terms.
"Interest Coverage Ratio" means as of the last day of any
calendar quarter the ratio of the sum of Adjusted EBIT PLUS
Rentals for the four calendar quarters then ended to the sum of
Cash Interest Expense PLUS Rentals for the same four calendar
quarters then ended.
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"Net Cash Proceeds" means, with respect to any offering
of equity securities of 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.
"Rentals" shall mean and include all fixed rents
(including as such all payments which the lessee is obligated
to make to the lessor on termination of the lease or surrender
of the property) payable by the Parent or any of its
Subsidiaries, as lessee or sublessee under a lease of real or
personal property, but shall be exclusive of any amounts
required to be paid by the Parent or any of its Subsidiaries
(whether or not designated as rents or additional rents) on
account of maintenance, repairs, insurance, taxes and similar
charges.
"Termination Date" means October 15, 2008.
SECTION 2.5. Section 7.15 of the Credit Agreement is hereby amended
by deleting the phrase "100% of the Net Cash Proceeds of such issuance" and
inserting in its place the phrase: "100% of (A) the Net Cash Proceeds of
such issuance and (B) the portion of the purchase price for any Acquisition
paid by the Parent or any Subsidiary with the issuance of capital
securities".
SECTION 2.6. Sections 7.16 and 7.17 of the Credit Agreement are each
hereby amended in their entirety and as so amended shall read as follows:
SECTION 7.16. Funded Debt to Adjusted EBITDA. The
Parent will as of the last day of each calendar quarter
maintain the Total Funded Debt to Adjusted EBITDA Ratio at not
more than 3.25 to 1.00.
SECTION 7.17. Interest Coverage Ratio. The Parent will
as of the last day of each calendar quarter maintain an
Interest Coverage Ratio of not less than 2.00 to 1.00.
SECTION 2.7. Section 7.19 of the Credit Agreement is hereby amended
by (i) deleting the word "or" at the end of clause (g) thereof and
inserting in its place the word "and" and (ii) deleting the amount
"$100,000,000" appearing in clause (h) thereof and inserting in its place
the amount "$200,000,000".
SECTION 2.8. Section 7.19 of the Credit Agreement is hereby amended
by (i) deleting the "." at the end of clause (h) thereof and inserting in
its place "; and" and (ii) inserting new clause (i) immediately following
clause (h) as follows:
(i) Indebtedness of the Parent and the Guarantors
owing to the former shareholders of Staubach Holdings, Inc. representing
deferred and earn-out obligations in an aggregate principal amount
outstanding not to exceed $525,000,000 MINUS the principal amount of any
payment thereon.
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SECTION 2.9. Section 4.1 of the Credit Agreement is hereby amended
by amending the defined term "Permitted Adjustment" in its entirety to read
as follows:
"Permitted Adjustment" means, for any period, transition
charges incurred by the Parent or any Restricted Subsidiaries
during such period relating to the Acquisition by the Parent of
all of the outstanding equity of (i) Xxxxxxxxx and Xxxx LLC, a
Delaware limited liability company, to the extent such charges
do not exceed $10,000,000 in the aggregate for all periods,
(ii) Xxxxxx'x Holding GmbH Company (now known as Xxxxxx'x Xxxxx
Lang LaSalle Retail GmbH), a German company, to the extent such
charges do not exceed $5,000,000 in the aggregate for all
periods and (iii) Staubach Holdings, Inc., a Texas corporation,
to the extent such charges do not exceed $25,000,000 in the
aggregate for all periods.
ARTICLE III
CONSENT
The Parent has advised the Administrative Agent and the Banks of its
desire to acquire all of the outstanding capital stock of a company code
named Stanford on substantially the terms described to the Administrative
Agent and the Banks in the Parent's presentation to the Administrative
Agent and the Banks on May 30, 2008 (the "Stanford Acquisition"). The
Banks hereby approve the Stanford Acquisition; PROVIDED that: (A) the total
consideration (including all liabilities assumed by the Parent and its
Subsidiaries but excluding (i) all costs and fees incurred by the Parent in
connection with the Stanford Acquisition, including without limitation,
attorney fees and investment bank fees and (ii) any earn-out obligations)
for the Stanford Acquisition does not exceed $650,000,000, of which not
more than $150,000,000 will be paid in cash upon consummation of the
Stanford Acquisition; (B) after giving effect to the Stanford Acquisition,
no Default or Event of Default shall exist; and (C) the Stanford
Acquisition is consummated not later than August 31, 2008. Immediately
upon consummation of the Stanford Acquisition, the Parent shall cause
Stanford and such of its Subsidiaries as shall be requested by the
Administrative Agent to become Guarantors under the Credit Agreement and
shall deliver such corporate resolutions, opinions of counsel and such
other corporate documentation as the Administrative Agent may reasonably
request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 CREDIT AGREEMENT REPRESENTATIONS. In order to induce
the Banks and the Administrative Agent to enter into this Amendment, each
of the Parent and the Borrower hereby reaffirms, as of the date hereof, its
representations and warranties contained in Section 5 of the Credit
Agreement and additionally represents and warrants to the Administrative
Agent and each Bank as set forth in this Article IV.
SECTION 4.2 DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The
execution, delivery and performance by the Parent, each Guarantor and the
Borrower of this Amendment are within the Parent's, such Guarantor's and
the Borrower's powers, have been duly authorized by all necessary corporate
action, and do not:
(a) contravene either the Parent's, any Guarantor's or the
Borrower's constituent documents;
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(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Parent, any Guarantor or the Borrower; or
(c) result in, or require the creation or imposition of, any
Lien on any of the Parent's, any Guarantor's or the Borrower's
properties.
SECTION 4.3 GOVERNMENT APPROVAL, REGULATION, ETC. No authorization
or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by the Parent, any Guarantor or
the Borrower of this Amendment.
SECTION 4.4 VALIDITY, ETC. This Amendment constitutes the legal,
valid and binding obligation of the Parent, each Guarantor and the Borrower
enforceable in accordance with its terms.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 EFFECTIVENESS.
(a) The effectiveness of this Amendment (other than Sections 2.6
and 2.7) is subject to the satisfaction of all of the following conditions
precedent:
(i) The Borrower, the Guarantors, the Administrative Agent,
and the Required Banks shall have executed and delivered this
Amendment.
(ii) The Administrative Agent shall have received certified
copies of resolutions of the boards of directors (or equivalent
governing body) of the Parent, the Borrower and each Guarantor
authorizing the execution and delivery of this Amendment and
indicating the authorized signers of this Amendment and the specimen
signatures of such signers;
(iii) The Administrative Agent shall have received an opinion
of counsel to the Borrower and each Guarantor in form acceptable to
the Administrative Agent and covering such matters relating to the
transactions contemplated hereby as the Administrative Agent may
request;
(iv) The Parent shall have paid the fees as agreed between the
Parent and the Administrative Agent.
(v) Legal matters incident to the execution and delivery of
this Amendment shall be satisfactory to the Administrative Agent and
its counsel.
(b) The amendments contained in Sections 2.6 and 2.7 shall become
effective upon (i) satisfaction of all the conditions precedent contained
in Section 5.1(a) above and (ii) the consummation of the Stanford
Acquisition as consented to by the Lenders pursuant to Article III hereof.
If this Amendment becomes effective, the changes in the Applicable
Margin shall take effect on June 16, 2008 and on each day thereafter, but
any payment of interest or fees due on or after June 16, 2008 with respect
to any amounts owing for any period prior thereto shall be computed on the
basis of the Applicable Margin in effect prior to such effectiveness.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 RATIFICATION OF AND REFERENCES TO THE CREDIT AGREEMENT.
Except for the amendments expressly set forth above, the Credit Agreement
and each other Credit Document are hereby ratified, approved and confirmed
in each and every respect. Reference to this Amendment need not be made in
the Credit Agreement, the Note(s), or any other instrument or document
executed in connection therewith, or in any certificate, letter or
communication issued or made pursuant to or with respect to the Credit
Agreement, any reference in any of such items to the Credit Agreement being
sufficient to refer to the Credit Agreement as amended hereby.
SECTION 6.2 HEADINGS AND CAPITALIZED TERMS. The various headings of
this Amendment are for convenience of reference only, are not part of this
Amendment and shall not affect the construction of, or be taken into
consideration in interpreting, this Amendment. Capitalized terms used
herein which are not otherwise defined herein shall have the respective
meanings as set forth in the Credit Agreement.
SECTION 6.3 EXECUTION IN COUNTERPARTS. This Amendment may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single agreement.
SECTION 6.4. NO OTHER AMENDMENTS. Except for the amendments
expressly set forth above, the text of the Credit Agreement and the other
Credit Documents shall remain unchanged and in full force and effect, and
the Lenders and the Administrative Agent expressly reserve the right to
require strict compliance with the terms of the Credit Agreement and the
other Credit Documents.
SECTION 6.5. COSTS AND EXPENSES. The Borrower agrees to pay on
demand all costs and expenses of or incurred by the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of
this Amendment, including the fees and expenses of counsel for the
Administrative Agent.
SECTION 6.5. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF ILLINOIS.
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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 /s/ Xxxxxx X. Xxxxxxxxx
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Title Managing Director
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XXXXX XXXX LASALLE INCORPORATED,
AS GUARANTOR
By /s/ Xxxxxx X. Xxxxxxxxx
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Title Vice President and
Treasurer
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XXXXX XXXX LASALLE CO-INVESTMENT, INC.,
AS GUARANTOR
By /s/ Xxxxxx X. Xxxxxxxxx
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Title Vice President and
Treasurer
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XXXXX XXXX LASALLE INTERNATIONAL, INC.,
AS GUARANTOR
By /s/ Xxxxxx X. Xxxxxxxxx
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Title Vice President and
Treasurer
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LASALLE INVESTMENT MANAGEMENT, INC.,
AS GUARANTOR
By /s/ Xxxxxx X. Xxxxxxxxx
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Title Vice President and
Treasurer
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XXXXX LANG LASALLE AMERICAS, INC.,
AS GUARANTOR
By /s/ Xxxxxx X. Xxxxxxxxx
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Title Vice President and
Treasurer
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XXXXX LANG LASALLE LIMITED,
AS GUARANTOR
By /s/ Xxxxxx X. Xxxxxxxxx
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Title Attorney-in-Fact
First Amendment to
S-1 Credit Agreement
BANK OF MONTREAL, AS ADMINISTRATIVE AGENT
By /s/ Xxxxx X. Xxxxxx
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Title Vice President
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First Amendment to
S-2 Credit Agreement
BMO CAPITAL MARKETS FINANCING, INC.
By /s/ Xxxxx X. Xxxxxx
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Title Vice President
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First Amendment to
S-3 Credit Agreement
