EXHIBIT 10.1
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U.S. $45,000,000
CREDIT AGREEMENT
DATED AS OF
MAY 4, 1999
AMONG
XXXXX XXXX LASALLE INCORPORATED,
THE GUARANTORS PARTY HERETO,
THE BANKS PARTY HERETO,
XXXXXX TRUST AND SAVINGS BANK
as Agent
AND
THE CHASE MANHATTAN BANK
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS CO-ARRANGERS.
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CREDIT AGREEMENT
This Credit Agreement, dated as of May 4, 1999, is among Xxxxx Xxxx
LaSalle Incorporated, a Maryland corporation (the "Borrower"), the
Guarantors (as hereinafter defined) party hereto, the banks from time to
time party hereto (each a "Bank" and, collectively, the "Banks") and Xxxxxx
Trust and Savings Bank, as Agent.
SECTION 1. THE REVOLVING CREDIT.
Section 1.1. The Loan Commitment. 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 in an aggregate outstanding principal
amount up to the amount of its commitment set forth on the applicable
signature page hereof (its "Commitment" and, cumulatively for all the
Banks, the "Commitments"), subject to any reductions thereof pursuant to
the terms hereof, before the Termination Date. The sum of the aggregate
principal amount of Loans at any time outstanding shall not exceed the
Commitments in effect at such time. As provided in Section 1.4(a) hereof,
the Borrower may elect that each Borrowing of Loans be either Domestic Rate
Loans or Eurodollar 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. 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 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 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 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%)
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(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) 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 1% plus the Adjusted LIBOR applicable for such Interest
Period, payable on the last day of the Interest Period and at maturity
(whether by acceleration or otherwise), and, if the applicable Interest
Period is longer than three months, on each day occurring every three
months after the commencement of such Interest Period.
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a
rate per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
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1 - Eurocurrency Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurocurrency
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the
average rate of interest per annum (rounded upwards, if necessary, to the
nearest one hundred-thousandth of a percentage point) at which deposits in
U.S. Dollars in immediately available funds are offered to the 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 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
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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 Agent shall determine each interest
rate applicable to the Loans, and a reasonable determination thereof by the
Agent shall be conclusive and binding except in the case of manifest error
or willful misconduct.
Section 1.3. Minimum Borrowing Amounts. Each Borrowing of Domestic
Rate Loans shall be in an amount not less than $500,000 and in integral
multiples of $100,000. Each Borrowing of Eurocurrency Loans shall be in an
amount not less than an $1,500,000 and in integral multiple of $100,000.
Section 1.4. Manner of Borrowing Loans and Designating Interest Rates
Applicable to Loans. (a) Notice to the Agent. The Borrower shall give
notice to the Agent by no later than 12:00 noon (Chicago time) (i) at least
three (3) Business Days before the date on which the Borrower requests the
Banks to advance a Borrowing of Eurocurrency Loans and (ii) on the date 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 Section 1.3's minimum
amount requirement for each outstanding Borrowing, 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, 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 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
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 for an
additional Interest Period or of the conversion of part or all of a
Borrowing of Eurocurrency Loans 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. 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 Agent may rely on any such telephonic or
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 Agent
has acted in reliance thereon.
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(b) Notice to the Banks. The Agent shall give prompt telephonic or
telecopy notice to each Bank of any notice from the Borrower received
pursuant to Section 1.4.(a) above. The Agent shall give notice to the
Borrower and each Bank by like means of the interest rate applicable to
each Borrowing of Eurocurrency Loans.
(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 Agent within
the period required by Section 1.4(a) that it intends to convert such
Borrowing into a Borrowing of Eurocurrency Loans or notifies the Agent
within the period required by Section 1.7(a) that it intends to prepay such
Borrowing. If the Borrower fails to give notice pursuant to Section 1.4(a)
above of the continuation or conversion of any outstanding principal amount
of a Borrowing of Eurocurrency Loans before the last day of its then
current Interest Period within the period required by Section 1.4(a) and
has not notified the Agent within the period required by Section 1.7(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.
(d) Disbursement of Loans. Not later than 11:00 a.m. (Chicago time)
on the date of any requested advance of a new Borrowing of Eurocurrency
Loans, and not later than 1:00 p.m. (Chicago time) on the date of any
requested advance of a new Borrowing of Domestic Rate Loans, 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 Agent in Chicago, Illinois. The Agent shall make the Loans available to
the Borrower at the Agent's principal office in Chicago, Illinois in each
case in the type of funds received by the Agent from the Banks.
(e) Agent Reliance on Bank Funding. Unless the Agent shall have
been notified by a Bank before the date on which such Bank is scheduled to
make payment to the 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 Agent may assume that such Bank has made such payment when due
and the 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
Agent, such Bank shall, on demand, pay to the 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 Agent at a rate per
annum equal to the Federal Funds Rate. If such amount is not received from
such Bank by the Agent immediately upon demand, the Borrower will, on
demand, repay to the 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 1.10 hereof, so that the
Borrower will have no liability under such Section with respect to such
payment.
Section 1.5. Interest Periods. As provided in Section 1.4(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
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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), and (b) in the case of Eurocurrency Loans, 1, 2 or 3 months
thereafter; provided, however, that:
(a) any Interest Period for a Borrowing of Domestic Rate
Loans that otherwise would end after the Termination Date shall end on the
Termination Date;
(b) for any Borrowing of Eurocurrency Loans, the Borrower may
not select an Interest Period that extends beyond the Termination Date;
(c) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
provided that, if such extension would cause the last day of an Interest
Period for a Borrowing of Eurocurrency Loans to occur in the following
calendar month, the last day of such Interest Period shall be the
immediately preceding Business Day; and
(d) for purposes of determining an Interest Period for a
Borrowing of Eurocurrency Loans, a month means a period starting on one day
in a calendar month and ending on the numerically corresponding day in the
next calendar month; provided, however, that if there is no numerically
corresponding day in the month in which such an Interest Period is to end
or if such an Interest Period begins on the last Business Day of a calendar
month, then such Interest Period shall end on the last Business Day of the
calendar month in which such Interest Period is to end.
Section 1.6. Maturity of Loans. Each Loan shall mature and become due
and payable by the Borrower on the Termination Date.
Section 1.7. 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, in an amount not
less than $1,000,000 and (iii) in an amount such that the minimum amount
required for a Borrowing pursuant to Section 1.3 hereof remains
outstanding) any Borrowing of Eurocurrency Loans upon three Business Days'
prior notice to the Agent or, in the case of a Borrowing of Domestic Rate
Loans, notice delivered to the 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 1.10 hereof. The Agent will promptly advise each Bank of any
such prepayment notice it receives from the Borrower. Any amount paid or
prepaid before the Termination Date may, subject to the terms and
conditions of this Agreement, be borrowed, repaid and borrowed again.
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Section 1.8. 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; and
(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, at
a rate per annum equal to the sum of two percent (2%) plus the Domestic
Rate from time to time in effect.
Section 1.9. Noteless Agreement; Evidence of Indebtedness. (i) 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.
(ii) The 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 Agent
hereunder from the Borrower and each Bank's share thereof.
(iii) 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 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.
(iv) Any Bank may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such Bank
in a form supplied by the Agent. Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (including after any
assignment pursuant to Section 12.10) be represented by one or more Notes
payable to the order of the payee named therein or any assignee pursuant to
Section 12.10, 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 paragraphs (i) and (ii)
above.
Section 1.10. 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:
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(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 1.4(a) or
established pursuant to Section 1.4(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 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 1.11. Commitment Terminations. The Borrower shall have the
right at any time and from time to time, upon five (5) Business Days' prior
written notice to the Agent, to terminate the Commitments without premium
or penalty, in whole or in part, any partial termination to be (i) in an
amount not less than $2,500,000, and (ii) allocated ratably among the Banks
in proportion to their respective Percentages. The Agent shall give prompt
notice to each Bank of any such termination of Commitments. Any termination
of Commitments pursuant to this Section 1.11 may not be reinstated.
SECTION 2. FEES.
Section 2.1. Closing Fees. On the Effective Date the Borrower shall
pay to the Agent for the ratable account of the Banks in accordance with
their Percentages a closing fee equal to 0.25% of the Commitments.
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 of all other amounts payable by
the Borrower under this Agreement, shall be made by the Borrower to the
Agent by no later than 12:00 Noon (Chicago time) on the due date thereof at
the principal office of the Agent in Chicago, Illinois (or such other
location in the State of Illinois as the Agent may designate to the
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 Agent on the next Business Day. All such payments shall be made in U.S.
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Dollars, in immediately available funds at the place of payment without
setoff or counterclaim. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest on
Loans or fees ratably to the 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:
"Adjusted LIBOR" is defined in Section 1.2(b) hereof.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (including, with
their correlative meanings, "controlled by" and "under common control
with") means possession, directly or indirectly, of power to direct or
cause the direction of management or policies of a Person (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event for purposes of this
definition: (i) any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors
or other governing body of a corporation or 5% or more of the partnership
or other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person; and (ii) each director and executive officer of the Borrower
or any Subsidiary shall be deemed an Affiliate of the Borrower and each
Subsidiary.
"Agent" means Xxxxxx Trust and Savings Bank and any successor
pursuant to Section 10.7 hereof.
"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(g) hereof, or on
any updated such list provided by the Borrower to the Agent, or any further
or different officer of the Borrower so named by any Authorized
Representative of the Borrower in a written notice to the Agent.
"Bank" is defined in the first paragraph of this Agreement.
"Borrower" means Xxxxx Lang LaSalle Incorporated, a Maryland
corporation.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different
type into such type by the Banks on a single date and for a single Interest
Period. Borrowings of Loans are made and maintained ratably from each of
the Banks according to their Percentages. A Borrowing is "advanced" on
the day Banks advance funds comprising such Borrowing to the Borrower, is
"continued" on the day a new Interest Period for the same type of Loans
commences for such Borrowing, and is "converted" on the day such Borrowing
is changed from one type of Loan to the other, all as requested by the
Borrower pursuant to Section 1.4(a).
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"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 in
the interbank market in London, England.
"Change of Control" means at any time:
(i) any Person becomes the beneficial owner of securities of
the Borrower representing 30% or more of the then outstanding Voting Stock
of the Borrower; or
(ii) during any period of twenty-four consecutive months
beginning after the date of this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the Borrower
(the "Board"), together with any new director (other than a director
designated by a person who has entered into an agreement with the Borrower
to effect a transaction described in clause (i) of this Change of Control
definition) whose election or nomination for election was approved by a
vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority of the Board.
For purposes of the definition of Change of Control Event, "Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act as supplemented by Section 13(d)(3) of the Exchange Act;
provided, however, that Person shall not include (i) the Borrower or any
Wholly-Owned Subsidiary, or (ii) any person who, as of the date of this
Agreement, was the Beneficial Owner of securities of the Borrower
representing 20% or more of the combined voting power.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitments" is defined in Section 1.1 hereof.
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated)
under common control that, together with the Borrower or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Documents" means this Agreement, the Notes, each Subsidiary
Guarantee Agreement delivered to the Agent pursuant to the terms hereof and
any security agreement delivered pursuant to the terms hereof.
"Credit Event" means the advancing of any Loan.
"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.
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"Domestic Rate" is defined in Section 1.2(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity
at a rate specified in Section 1.2(a) hereof.
"Domestic Subsidiary" shall mean any Subsidiary which is not a
Foreign Subsidiary.
"Effective Date" means the date hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Eurocurrency Loan" means a Loan bearing interest prior to maturity
at the rate specified in Section 1.2(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.2(b)
hereof.
"Event of Default" means any of the events or circumstances specified
in Section 8.1 hereof.
"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 Borrower and its Subsidiaries on a basis
consistent with the preparation of the Borrower's financial statements
furnished to the Banks as described in Section 5.4 of the Multicurrency
Credit Agreement.
"Guarantor" means (i) Xxxxx Xxxx LaSalle Financial & Corporate
Services, Inc., a Maryland corporation, Xxxxx Lang LaSalle Management
Services, Inc., a Maryland corporation, LaSalle Investment Management,
Inc., a Maryland corporation, Xxxxx Xxxx LaSalle International, Inc., a
Delaware corporation, LP International, a limited liability company, a
Wyoming limited liability company, Xxxxx Lang LaSalle Co-Investment, Inc.,
a Maryland corporation, LaSalle Hotel Advisors, Inc., a Maryland
corporation, Xxxxx Xxxx Xxxxxx USA, Inc. a Delaware corporation (ii) any
other Domestic Subsidiary which becomes a direct Subsidiary of the Borrower
and (iii) any other Subsidiary of the Borrower designated by the Borrower
as a Guarantor as required by Section 7.22 of the Multicurrency Credit
Agreement as incorporated herein.
"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
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Lease Obligations of such Person and (vi) obligations for which such Person
is obligated pursuant to a Guaranty.
"Interest Period" is defined in Section 1.5 hereof.
"Lending Office" is defined in Section 9.4 hereof.
"LIBOR" is defined in Section 1.2(b) hereof.
"Loan" is defined in Section 1.1(a) 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
Borrower and its Subsidiaries, taken as
a whole.
"Multicurrency Credit Agreement" means the Multicurrency Credit
Agreement dated as of November 25, 1997 among Xxxxx Xxxx LaSalle
Incorporated (f/k/a LaSalle Partners Incorporated), the Guarantors party
thereto, the Banks party thereto and Xxxxxx Trust and Savings Bank, as
Agent, as amended through and in effect on the date hereof.
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 1.9 in the form of Exhibit A.
"Obligations" means all fees payable hereunder, all obligations of
the Borrower to pay principal or interest on Loans and all other payment
obligations of the Borrower arising under or in relation to any Credit
Document.
"PBGC" is means the Pension Benefit Guaranty Corporation.
"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 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.
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"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.
"Required Banks" means, as of the date of determination thereof,
Banks holding at least 51% of the Percentages.
"Set-Off" is defined in Section 12.7 hereof.
"Subsidiary" means, as to the Borrower, a corporation, partnership or
other entity that, under GAAP, is included in the consolidated financial
statements of the Borrower.
"Subsidiary Guarantee Agreement" means a letter to the Agent in the
form of Exhibit B hereto executed by a Subsidiary whereby it acknowledges
it is party hereto as a Guarantor under Section 11 hereof.
"Termination Date" means July 31, 1999.
"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.
"Wholly-Owned" when used in connection with any Subsidiary of the
Borrower means a Subsidiary of which all of the issued and outstanding
shares of stock or other equity interests (other than directors' qualifying
shares as required by law) shall be owned by the Borrower and/or one or
more of its Wholly-Owned Subsidiaries.
Section 4.2. Interpretation. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms
defined. All references to times of day in this Agreement shall be
references to Chicago, Illinois time unless otherwise specifically
provided. Where the character or amount of any asset or liability or item
of income or expense is required to be determined or any consolidation or
other accounting computation is required to be made for the purposes of
this Agreement, the same shall be done in accordance with GAAP, to the
extent applicable, except where such principles are inconsistent with the
specific provisions of this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to each Bank as to itself
and, where the following representations and warranties apply to
Subsidiaries, as to each of its Subsidiaries, as
follows:
Section 5.1. Multicurrency Credit Agreement Representations. All of
the representations and warranties set forth in Section 5 of the
Multicurrency Credit Agreement are true and correct in all material
respects, except if any such representation or warranty relates solely to
an earlier date it need only remain true as of such date.
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Section 5.2. 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 and to perform
all of its obligations under the Credit Documents to which it is a party.
Each Guarantor has full power and authority to enter into this Agreement as
a signatory hereto or pursuant to a Subsidiary Guarantee Agreement and to
perform all of its obligations hereunder. Each Credit Document to which the
Borrower is a party has been duly authorized, executed and delivered by the
Borrower and constitutes valid and binding obligations of the Borrower in
accordance with its terms. Each Credit Document to which a Guarantor is a
party has been duly authorized, executed and delivered by such Guarantor
and constitutes valid and binding obligations of such Guarantor in
accordance with its terms. No Credit Document to which the Borrower is a
party, nor the performance or observance by the Borrower of any of the
matters or things therein provided for, contravenes any provision of law or
any charter or by-law provision of the Borrower or (individually or in the
aggregate) any material Contractual Obligation of or binding upon the
Borrower or any of its Properties or results in or requires the creation or
imposition of any Lien on any of the Properties or revenues of the
Borrower. No Credit Document to which a Guarantor is a party, nor the
performance or observance by such Guarantor of any of the matters or things
therein provided for, contravenes any provision of law or any charter or
by-law provision of such Guarantor or (individually or in the aggregate)
any material Contractual Obligation of or binding upon such Guarantor or
any of its Properties or results in or requires the creation or imposition
of any Lien on any of the Properties or revenues of such Guarantor.
Section 5.3. Approvals. No authorization, consent, license,
exemption, filing or registration with any court or governmental
department, agency or instrumentality, nor any approval or consent of the
stockholders of the Borrower or any Subsidiary or from any other Person, is
necessary to the valid execution, delivery or performance by the Borrower
or any Subsidiary of any Credit Document to which it is a party except for
such approvals and consents which have been obtained and are in full force
and effect.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan
shall be subject to the following conditions precedent:
Section 6.1. Initial Credit Event. Before or concurrently with the
first Credit Event:
(a) The Agent shall have received for each Bank the favorable
written opinion of Xxxxx & Associates, counsel to the Borrower and
Guarantors in form and substance acceptable to the Agent;
(b) The Agent shall have received for each Bank copies of (i)
a certificate of good standing, for the Borrower, certified as of a date
not earlier than 20 days prior to the date hereof by the appropriate
governmental officer of the Borrower's jurisdiction of incorporation and
(ii) the Borrower's Certificate of Incorporation, together with all
amendments, bylaws and any amendments thereto, certified in each instance
by its secretary or an assistant secretary;
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(c) The Agent shall have received copies of the partnership
agreements of each Guarantor that is a partnership, certified by a general
partner or other duly authorized officer thereof to be a true, correct and
complete copy thereof;
(d) The Agent shall have received copies of the Certificate
of Incorporation and bylaws of each Guarantor that is a corporation,
certified in each instance by its secretary or an assistant secretary;
(e) The Agent shall have received copies, certified by the
secretary or assistant secretary of each Guarantor that is a corporation,
and of each corporate general partner in the case of each Guarantor that is
a partnership having a corporation as its general partner, of its board of
directors' resolutions authorizing the execution of the Credit Documents;
(f) The Agent shall have received certificates, executed by a
general partner of each Guarantor that is a partnership, and by the
secretary or assistant secretary of each Guarantor that is a corporation,
and of each corporate general partner in the case of each Guarantor that is
a partnership having a corporation as its general partner, which shall
identify by name and title and bear the signature of the partners or
officers authorized to sign the Credit Documents;
(g) The Agent shall have received for each Bank a list of the
Borrower's Authorized Representatives; and
(h) All legal matters incident to the execution and delivery
of the Credit Documents shall be satisfactory to the Banks.
Section 6.2. All Credit Events. As of the time of each Credit Event
hereunder:
(a) In the case of a Borrowing, the Agent shall have received
the notice required by Section 1.4 hereof;
(b) In the case of a Borrowing of Loans that would increase
the aggregate principal amount of Loans outstanding (after giving effect to
concurrent repayment of Loans), each of the representations and warranties
set forth or incorporated by reference 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 a Borrowing of Loans that would increase
the aggregate principal amount of Loans outstanding (after giving effect to
concurrent repayment of Loans), no Default or Event of Default shall have
occurred and be continuing or would occur as a result of such Credit Event;
and
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(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 shall be deemed to be a
representation and warranty by the Borrower on the date of such Credit
Event as to the facts specified in paragraphs (b) and (c) of this Section
6.2.
SECTION 7. COVENANTS.
The Borrower covenants and agrees that, so long as any Note 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. Credit Agreement Covenants. The Borrower agrees that it
will, for the benefit of the Banks, comply with, abide by, and be
restricted by all the agreements, covenants, obligations and undertakings
contained in the provisions of Section 7 of the Multicurrency Credit
Agreement, regardless of whether any Indebtedness is now or hereafter
remains outstanding thereunder or the Multicurrency Credit Agreement shall
have terminated, all of which provisions, together with the related
definitions, exhibits and ancillary provisions, are incorporated herein by
reference, mutatis mutandis, and made a part hereof to the same extent and
with the same force and effect as if the same had been herein set forth in
their entirety, and will be deemed to continue in effect for the benefit of
the Banks irrespective of whether the Multicurrency Credit Agreement
remains in effect, and without regard or giving effect to any amendment or
modification to such provisions or any waiver of compliance therewith, no
such amendment, modification or waiver of the provisions thereof as
incorporated herein unless consented to in writing by the Required Banks.
References in the Multicurrency Credit Agreement to (a) "Required Banks";
(b) the "Agent"; (c) "any Bank", "such Bank", the Banks" or "each
Bank"; (d) "Default"; (e) "Event of Default"; (f) "this Agreement"; and (g)
"Credit Documents"; shall, for the purposes of their incorporation into
this Agreement, be deemed references to (a) the Required Lenders; (b) the
Agent; (c) any Bank, such Bank, the Banks or each Bank, respectively; (d) a
Default hereunder; (e) one Event of Default hereunder (f) this Agreement;
and (g) the Credit Documents.
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 (y) for a period of three (3) days in the payment
when due of interest or of any other Obligation;
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(b) default by the Borrower or any Subsidiary in the
observance or performance of any covenant set forth in the first sentence
of Section 7.1, or Section 7.6(c), 7.9 through 7.12, or 7.14 through 7.18
of the Multicurrency Credit Agreement as incorporated herein;
(c) default by the Borrower or any Subsidiary in the
observance or performance of any provision hereof or of any other Credit
Document not mentioned in (a) or (b) above, which is not remedied within
thirty (30) days after notice thereof to the Borrower by the Agent (acting
at the request of any Bank);
(d) (i) failure to pay when due Indebtedness in an aggregate
principal amount of $1,000,000 or more of the Borrower or any Subsidiary or
(ii) default shall occur under one or more indentures, agreements or other
instruments under which any Indebtedness of the Borrower or any Subsidiary
in an aggregate principal amount of $1,000,000 or more is outstanding and
such default shall continue for a period of time sufficient to permit the
holder or beneficiary of such Indebtedness or a trustee therefor to cause
the acceleration of the maturity of any such Indebtedness or any mandatory
unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any
other Credit Document by the Borrower or any Subsidiary, or in any
statement or certificate furnished pursuant hereto or pursuant to any other
Credit Document by the Borrower or any Subsidiary, or in connection with
any Credit Document, shall be untrue in any material respect as of the date
of the issuance or making, or deemed making or issuance, thereof;
(f) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, or any analogous action is taken under any
other applicable law relating to bankruptcy or insolvency, (ii) fail to
pay, or admit in writing its inability to pay, its debts generally as they
become due, (iii) make an assignment for the benefit of creditors, (iv)
apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for
it or any substantial part of its Property, (v) institute any proceeding
seeking to have entered against it an order for relief under the United
States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail
within the time allowed therefor to file an answer or other pleading
denying the material allegations of any such proceeding filed against it,
(vi) take any corporate action (such as the passage by the Borrower's board
of directors of a resolution) in furtherance of any matter described in
parts (i)-(v) above, or (vii) fail to contest in good faith any appointment
or proceeding described in Section 8.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any Subsidiary or
any substantial part of any of their Property, or a proceeding described in
Section 8.1(f)(v) shall be instituted against the
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Borrower or any Subsidiary, and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a
period of sixty (60) days;
(h) the Borrower or any Subsidiary shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $2,500,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith in a manner that
stays execution thereon;
(i) the Borrower or any other member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess of
$200,000 which it shall have become liable to pay to the PBGC or to a Plan
under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Vested Liabilities in excess of $200,000
(collectively, a "Material Plan") shall be filed under Title IV of ERISA by
the Borrower or any Subsidiary or any other member of the Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan against
the Borrower or any other member of the Controlled Group to enforce Section
515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within thirty (30) days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated; or
(j) the Borrower or any Subsidiary, or any Person acting on
behalf of the Borrower or a Subsidiary, or any governmental authority
challenges the validity of any Credit Document or the Borrower's or a
Subsidiary's obligations thereunder or any Credit Document ceases to be in
full force and effect; or
(k) a Change of Control shall have occurred.
Section 8.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsections (f) or (g) of Section 8.1 hereof has
occurred and is continuing, the Agent shall, by written notice to the
Borrower: (a) if so directed by the Required Banks, terminate the remaining
Commitments and all other obligations of the Banks hereunder on the date
stated in such notice (which may be the date thereof); and (b) if so
directed by the Required Banks, declare the principal of and the accrued
interest on all outstanding Notes and all other amounts due under the
Credit Documents to be forthwith due and payable and thereupon all
outstanding Notes, including both principal and interest thereon, shall be
and become immediately due and payable together with all other amounts
payable under the Credit Documents without further demand, presentment,
protest or notice of any kind. The 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
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Notes 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, and the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately
terminate.
Section 8.4. Notice of Default. The 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 8.5. Expenses. The Borrower agrees to pay to the Agent and
each Bank, and any other holder of any Note outstanding hereunder, all
expenses reasonably incurred or paid by the 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 Agent determines that deposits in U.S. Dollars (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 Agent that LIBOR as
reasonably determined by the 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,
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then the Agent shall forthwith give notice thereof to the Borrower
and the Banks, whereupon until the 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
or its obligation to make Eurocurrency Loans 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, or any other amounts due under
this Agreement in respect of its Eurocurrency Loans, or its obligation to
make Eurocurrency Loans (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 or its obligation to make
Eurocurrency Loans;
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 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 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
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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 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 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 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 AGENT.
Section 10.1. Appointment and Authorization of Agent. Each Bank
hereby appoints Xxxxxx Trust and Savings Bank as the Agent under the Credit
Documents and hereby authorizes the Agent to take such action as Agent on
its behalf and to exercise such powers under the Credit Documents as are
delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto.
Section 10.2. Agent and its Affiliates. The 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 Agent, and the 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
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 Agent in its individual capacity as a Bank. References in
Section 1 hereof to the Agent's Loans, or to the amount owing to the Agent
for which an interest rate is being determined, refer to the Agent in its
individual capacity as a Bank.
Section 10.3. Action by Agent. If the Agent receives from the
Borrower a written notice of an Event of Default pursuant to Section 7.6(c)
hereof, the Agent shall promptly give each of
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the Banks written notice thereof. The obligations of the Agent under the
Credit Documents are only those expressly set forth therein. Without
limiting the generality of the foregoing, the 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 Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the 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 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 Agent to take certain
actions, the 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 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 Agent; Credit Decision. Neither the 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 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 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 Agent makes no representation of any kind or character
with respect to any such matter mentioned in this sentence. The 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 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 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 Agent may treat the payee of
any Note as the holder thereof until written notice of transfer shall have
been filed with the Agent signed by such payee in form satisfactory to the
Agent. Each Bank acknowledges that it has independently and without
reliance on the 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
-22-
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 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 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 Agent and Successor Agent. The Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation of the Agent, the Required Banks shall
have the right to appoint a successor Agent with the consent of the
Borrower. If no successor Agent shall have been so appointed by the
Required Banks, and shall have accepted such appointment, within thirty
(30) days after the retiring Agent's giving of notice of resignation, then
the retiring Agent may, on behalf of the Banks and with the consent of the
Borrower, appoint a successor 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
Agent hereunder, such successor Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring or removed Agent
under the Credit Documents, and the retiring Agent shall be discharged from
its duties and obligations thereunder. After any retiring Agent's
resignation hereunder as 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
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 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.
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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 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 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
-24-
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 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 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 Agent made at the request
of the Required Banks.
SECTION 12. MISCELLANEOUS.
Section 12.1. Withholding Taxes. (a) Payments Free of Withholding.
Except as otherwise required by law and subject to Section 12.1(b) hereof,
each payment by the Borrower and each Guarantor under this Agreement or the
other Credit Documents shall be made without withholding for or on account
of any present or future taxes (other than overall net income taxes on the
recipient) imposed by or within the jurisdiction in which the Borrower or
such Guarantor is domiciled, any jurisdiction from which the Borrower or
such Guarantor makes any payment, or (in each case) any political
subdivision or taxing authority thereof or therein. If any such withholding
is so required, the Borrower or relevant Guarantor shall make the
withholding, pay
-25-
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 Agent free and clear of such taxes
(including such taxes on such additional amount) is equal to the amount
which that Bank or the Agent (as the case may be) would have received had
such withholding not been made. If the Agent or any Bank pays any amount in
respect of any such taxes, penalties or interest the Borrower shall
reimburse the 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 Agent on
whose account such withholding was made (with a copy to the Agent if not
the recipient of the original) on or before the thirtieth day after
payment. If any Bank or the 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 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 Agent determines is attributable to such deduction or withholding
and which will leave such Bank or 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 Agent to arrange its
tax affairs in whatever manner it thinks fit nor oblige any Bank or the
Agent to disclose any information relating to its tax affairs or any
computations in connection with such taxes.
(b) U.S. Withholding Tax Exemptions. Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
shall submit to the Borrower and the Agent on or before the earlier of the
date the initial Borrowing is made hereunder and thirty (30) days after the
date hereof, two duly completed and signed copies of either Form 1001
(relating to such Bank and entitling it to a complete exemption from
withholding under the Code on all amounts to be received by such Bank,
including fees, pursuant to the Credit Documents and the Loans) or Form
4224 (relating to all amounts to be received by such Bank, including fees,
pursuant to the Credit Documents and the Loans) of the United States
Internal Revenue Service.
Thereafter and from time to time, each Bank shall submit to the
Borrower and the Agent such additional duly completed and signed copies of
one or the other of such Forms (or such successor forms as shall be adopted
from time to time by the relevant United States taxing authorities) as may
be (i) requested by the Borrower in a written notice, directly or through
the Agent, to such Bank and (ii) required under then-current United States
law or regulations to avoid or reduce United States withholding taxes on
payments in respect of all amounts to be received by such Bank, including
fees, pursuant to the Credit Documents or the Loans.
(c) Inability of Bank to Submit Forms. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit
to the Borrower or Agent any form or certificate that such Bank is
obligated to submit pursuant to subsection (b) of this Section 12.1. or
that such Bank is required to withdraw or cancel any such form or
certificate previously submitted or any such form or certificate otherwise
becomes ineffective or inaccurate, such Bank shall promptly notify the
Borrower and Agent of such fact and the Bank shall to that extent not be
obligated to provide
-26-
any such form or certificate and will be entitled to withdraw or cancel any
affected form or certificate, as applicable.
Section 12.2. No Waiver of Rights. No delay or failure on the part of
the 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 Agent, the Banks and the holder or holders of any Notes are
cumulative to, and not exclusive of, any rights or remedies which any of
them would otherwise have.
Section 12.3. Non-Business Day. If any payment of principal or
interest on any Loan or of any other Obligation shall fall due on a day
which is not a Business Day, interest or fees (as applicable) at the rate,
if any, such Loan or other Obligation bears for the period prior to
maturity shall continue to accrue on such Obligation from the stated due
date thereof to but not including the next succeeding Business Day, on
which the same shall be payable.
Section 12.4. Documentary Taxes. The Borrower agrees that it will pay
any documentary, stamp or similar taxes payable in respect to any Credit
Document, including interest and penalties, in the event any such taxes are
assessed, irrespective of when such assessment is made and whether or not
any credit is then in use or available hereunder.
Section 12.5. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall
survive the execution and delivery of this Agreement and the other Credit
Documents, and shall continue in full force and effect with respect to the
date as of which they were made as long as any credit is in use or
available hereunder.
Section 12.6. Survival of Indemnities. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but
not limited to, Section 1.11, Section 9.3 and Section 12.15 hereof, shall
survive the termination of this Agreement and the other Credit Documents
and the payment of the Loans and all other Obligations.
Section 12.7. Sharing of Set-Off. Each Bank agrees with each other
Bank a party hereto that if such Bank shall receive and retain any payment,
whether by set-off or application of deposit balances or otherwise ("Set-
off"), on any of the Loans 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, 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.
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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
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 Agent shall be addressed to their respective
addresses, telecopier or telephone numbers set forth on the signature pages
hereof, and to the Borrower and the Guarantors to:
Xxxxx Xxxx LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy of notices of Defaults
and Events of Defaults to:
Xxxxx & Associates
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
and Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section 12.8 or on the signature pages
hereof and a confirmation of receipt of such telecopy has been received by
the sender, (ii) if given by courier, when delivered, (iii) if given by
mail, three business days after such communication is deposited in the
mail, registered with return receipt requested, addressed as aforesaid or
(iv) if given by any other means, when delivered at the addresses specified
in this Section 12.8 or on the signature pages hereof; provided that any
notice given pursuant to Section 1 hereof shall be effective only upon
receipt.
Section 12.9. Counterparts. This Agreement may be executed in any
number of counterpart signature pages, and by the different parties on
different counterparts, each of which when executed shall be deemed an
original but all such counterparts taken together shall constitute one and
the same instrument.
Section 12.10. Successors and Assigns. This Agreement shall be
binding upon the Borrower and its successors and assigns, and shall inure
to the benefit of each of the Banks and the benefit of their respective
successors and assigns, including any subsequent holder of any Note. The
Borrower may not assign any of its rights or obligations under any Credit
Document without the written consent of all of the Banks.
-28-
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/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 Agent shall have no obligation or
responsibility to such participant. Any agreement pursuant to which such
participation is granted shall provide that the granting Bank shall retain
the sole right and responsibility to enforce the obligations of the
Borrower and Guarantors under this Agreement and the other Credit Documents
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of the Credit Documents, except
that such agreement may provide that such Bank will not agree to any
modification, amendment or waiver of the Credit Documents that would reduce
the amount of or postpone any fixed date for payment of any Obligation in
which such participant has an interest or release (other than pursuant to
the terms hereof) any Guarantor from its guaranty of any Obligations. Any
party to which such a participation has been granted shall have the
benefits of Section 1.11 and Section 9.3 hereof.
Section 12.12. Assignment of Commitments by Banks. (a) Each Bank
shall have the right at any time, with the prior written consent of the
Borrower (which consent shall not be unreasonably withheld or delayed) and
the Agent, to assign all or any part of its Commitment (including the same
percentage of its Note, outstanding Loans) to one or more Persons; 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 Agent shall be required if the assignee is an Affiliate
of the assigning Bank.
Each such assignment shall set forth the assignee's address for
notices to be given under Section 12.8 hereof hereunder and its designated
Lending Office pursuant to Section 9.4 hereof. Upon any such assignment,
delivery to the Agent and the Borrower of an executed copy of such
assignment agreement and the forms referred to in Section 11.1 hereof, if
applicable, and, the payment of a $2,500 recordation fee to the Agent, the
assignee shall become a Bank hereunder, all Loans and the Commitment it
thereby holds shall be governed by all the terms and conditions hereof and
the Bank granting such assignment shall have its Commitment, and its
obligations and rights in connection therewith, reduced by the amount of
such assignment. At the time of the assignment the Borrower shall execute
and deliver to the assignor and/or assignee new Notes.
(b) Any Bank may at any time, without the consent of the
Borrower or 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 Agent are affected thereby, the Agent;
provided that:
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(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 of any fee payable
hereunder without the consent of each Bank; and
(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.
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 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 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 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, other than those which arise from
the gross negligence or willful misconduct of the party claiming
indemnification. The Borrower, upon demand by the Agent or a Bank at any
time, shall reimburse the 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
-30-
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. 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 12.18. 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 12.19. 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 AGENT, AND EACH
BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
Section 12.20. 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 12.21. Confidentiality. Each Bank agrees to keep confidential
any confidential written information provided to it by or on behalf of the
Borrower pursuant to or in connection with this Agreement; provided that
nothing herein shall prevent any Bank from disclosing any such information
(i) to the 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 12.21, (iii) to its employees involved in the administration
of this Agreement, directors, attorneys, accountants and other professional
advisors (each of which shall be instructed to hold the same in
confidence), (iv) in response to the request or demand of any governmental
authority, (v) in response to any order of any court or other governmental
authority or as may otherwise be required pursuant to any law, regulation
or legal process provided, however, that such Bank, to the extent legally
permitted to do so, will use its best efforts to notify the Company prior
to any disclosure of information contemplated by this
-31-
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.
-32-
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date
first above written.
XXXXX XXXX LASALLE INCORPORATED
By Xxxxx X. Xxxx
____________________________________
Title Vice President and Treasurer
________________________________
XXXXX XXXX LASALLE CO-INVESTMENT,
INC., as Guarantor
By Xxxxx X. Xxxx
____________________________________
Title Vice President and Treasurer
________________________________
LP INTERNATIONAL, A LIMITED LIABILITY
COMPANY, as Guarantor
By Xxxxx X. Xxxx
____________________________________
Title Vice President and Treasurer
________________________________
XXXXX LANG LASALLE INTERNATIONAL,
INC., as Guarantor
By Xxxxx X. Xxxx
____________________________________
Title Vice President and Treasurer
________________________________
LASALLE INVESTMENT MANAGEMENT, INC.,
as Guarantor
By Xxxxx X. Xxxx
____________________________________
Title Vice President and Treasurer
________________________________
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XXXXX XXXX LASALLE MANAGEMENT
SERVICES, INC., as Guarantor
By Xxxxx X. Xxxx
____________________________________
Its Vice President and Treasurer
__________________________________
XXXXX XXXX LASALLE FINANCIAL &
CORPORATE SERVICES, INC., as Guarantor
By Xxxxx X. Xxxx
____________________________________
Title Vice President and Treasurer
________________________________
LASALLE HOTEL ADVISORS, INC., as
Guarantor
By Xxxxx Xxxxx
____________________________________
Title Vice President and
Assistant Treasurer
________________________________
XXXXX LANG XXXXXX USA, INC., as
Guarantor
By Xxxxx X. Xxxx
____________________________________
Title Vice President and Treasurer
________________________________
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Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitments:
Address: XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as Agent
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxx
By Xxxxx Xxxx
Telecopy: (000) 000-0000 ----------------------------------------
Telephone: (000) 000-0000 Its Managing Director
__________________________________
Commitment: $15,000,000
Lending Offices:
Domestic Rate Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxx
Eurocurrency Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxx
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THE FIRST NATIONAL BANK OF CHICAGO
Address:
One First National By Xxxx Xxxxx
Plaza, Suite 0151
Xxxxxxx, Xxxxxxxx 00000 Its Corporate Banking Officer
Attn: Xxxx Xxxxx __________________________________
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Commitment: $15,000,000
Lending Offices:
Domestic Rate Loans:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
Eurocurrency Loans:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
-00-
XXX XXXXX XXXXXXXXX BANK
Address:
000 Xxxxxxx Xxxxxx, Xx Xxxxxxx X. Xxxxxxxx
10th Floor ____________________________________
Xxx Xxxx, Xxx Xxxx 00000 Its Vice President
Attn.: Xxxxxxx Xxxxxxxx __________________________________
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Commitment: $15,000,000
Lending Offices:
Domestic Rate Loans:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxxx
Eurocurrency Loans:
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxxx.
EXHIBIT A
NOTE
________________, _____
FOR VALUE RECEIVED, the undersigned, Xxxxx Xxxx LaSalle Incorporated,
a Maryland corporation (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, 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,
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 Credit Agreement
dated as of May 4, 1999, among the Borrower, the Guarantors party thereto,
Xxxxxx Trust and Savings Bank, as 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.
-2-
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
XXXXX LANG LASALLE INCORPORATED
By ____________________________________
Its __________________________________.
EXHIBIT B
SUBSIDIARY GUARANTEE AGREEMENT
________________, _____
XXXXXX TRUST AND SAVINGS
BANK, as Agent for the Banks
party to the Credit Agreement
dated as of May 4, 1999 among
Xxxxx Lang LaSalle
Incorporated, certain
Guarantors, such Banks and
such 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.
-2-
Very truly yours,
[NAME OF SUBSIDIARY GUARANTOR]
By ____________________________________
Name___________________________________
Title _________________________________
