EXHIBIT 99.1
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CONFORMED COPY
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AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF
JUNE 6, 2007
AMONG
XXXXX XXXX LASALLE FINANCE B.V.,
THE GUARANTORS PARTY HERETO,
THE BANKS PARTY HERETO,
BANK OF MONTREAL,
AS ADMINISTRATIVE AGENT
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BMO CAPITAL MARKETS,
AS LEAD ARRANGER,
BANK OF AMERICA, N.A.
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS CO-SYNDICATION AGENTS,
AND
US BANK NATIONAL ASSOCIATION,
AND
THE ROYAL BANK OF SCOTLAND PLC,
AS CO-DOCUMENTATION AGENTS
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TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
SECTION HEADING PAGE
SECTION 1. THE REVOLVING CREDIT . . . . . . . . . . . . . 1
Section 1.1. Commitments. . . . . . . . . . . . . . . . . . 1
Section 1.2. The Swingline. . . . . . . . . . . . . . . . . 2
Section 1.3. Letters of Credit. . . . . . . . . . . . . . . 3
Section 1.4. Applicable Interest Rates. . . . . . . . . . . 6
Section 1.5. Minimum Borrowing Amounts. . . . . . . . . . . 7
Section 1.6. Manner of Borrowing Loans and
Designating Interest Rates Applicable
to Loans . . . . . . . . . . . . . . . . . . . 8
Section 1.7. Interest Periods . . . . . . . . . . . . . . . 10
Section 1.8. Maturity of Loans. . . . . . . . . . . . . . . 10
Section 1.9. Prepayments. . . . . . . . . . . . . . . . . . 11
Section 1.10. Default Rate . . . . . . . . . . . . . . . . . 11
Section 1.11. Noteless Agreement; Evidence of Indebtedness . 12
Section 1.12. Funding Indemnity. . . . . . . . . . . . . . . 13
Section 1.13. Commitment Terminations. . . . . . . . . . . . 13
Section 1.14. Substitution of Banks. . . . . . . . . . . . . 14
Section 1.15. Increase in Commitments. . . . . . . . . . . . 14
SECTION 2. FEES . . . . . . . . . . . . . . . . . . . . . 15
Section 2.1. Fees . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3. PLACE AND APPLICATION OF PAYMENTS. . . . . . . 16
Section 3.1. Place and Application of Payments. . . . . . . 16
SECTION 4. DEFINITIONS; INTERPRETATION. . . . . . . . . . 16
Section 4.1. Definitions. . . . . . . . . . . . . . . . . . 16
Section 4.2. Interpretation . . . . . . . . . . . . . . . . 26
Section 4.3. Change in Accounting Principles. . . . . . . . 26
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . 27
Section 5.1. Corporate Organization and Authority . . . . . 27
Section 5.2. Subsidiaries . . . . . . . . . . . . . . . . . 27
Section 5.3. Corporate Authority and Validity
of Obligations . . . . . . . . . . . . . . . . 27
Section 5.4. Financial Statements . . . . . . . . . . . . . 28
Section 5.5. No Litigation; No Labor Controversies. . . . . 28
Section 5.6. Taxes. . . . . . . . . . . . . . . . . . . . . 28
Section 5.7. Approvals. . . . . . . . . . . . . . . . . . . 29
Section 5.8. ERISA. . . . . . . . . . . . . . . . . . . . . 29
Section 5.9. Government Regulation. . . . . . . . . . . . . 29
Section 5.10. Margin Stock . . . . . . . . . . . . . . . . . 29
Section 5.11. Licenses and Authorizations; Compliance
with Environmental and Health Laws . . . . . . 29
Section 5.12. Ownership of Property; Liens . . . . . . . . . 30
Section 5.13. No Burdensome Restrictions; Compliance
with Agreements. . . . . . . . . . . . . . . . 30
Section 5.14. Accuracy of Information. . . . . . . . . . . . 30
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . 30
Section 6.1. Initial Credit Event . . . . . . . . . . . . . 30
Section 6.2. All Credit Events. . . . . . . . . . . . . . . 31
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SECTION HEADING PAGE
SECTION 7. COVENANTS. . . . . . . . . . . . . . . . . . . 32
Section 7.1. Corporate Existence; Subsidiaries. . . . . . . 32
Section 7.2. Maintenance. . . . . . . . . . . . . . . . . . 32
Section 7.3. Taxes. . . . . . . . . . . . . . . . . . . . . 32
Section 7.4. ERISA. . . . . . . . . . . . . . . . . . . . . 33
Section 7.5. Insurance. . . . . . . . . . . . . . . . . . . 33
Section 7.6. Financial Reports and Other Information. . . . 33
Section 7.7. Bank Inspection Rights . . . . . . . . . . . . 34
Section 7.8. Conduct of Business. . . . . . . . . . . . . . 34
Section 7.9. Liens. . . . . . . . . . . . . . . . . . . . . 34
Section 7.10. Use of Proceeds; Regulation U. . . . . . . . . 35
Section 7.11. Sales and Leasebacks . . . . . . . . . . . . . 36
Section 7.12. Mergers, Consolidations and Sales of Assets. . 36
Section 7.13. Use of Property and Facilities;
Environmental and Health and Safety Laws . . . 37
Section 7.14. Investments, Acquisitions, Loans,
Advances and Guaranties. . . . . . . . . . . . 37
Section 7.15. Consolidated Net Worth . . . . . . . . . . . . 39
Section 7.16. Funded Debt to Adjusted EBITDA . . . . . . . . 40
Section 7.17. Interest Coverage Ratio. . . . . . . . . . . . 40
Section 7.18. Dividends and Other Shareholder Distributions. 40
Section 7.19. Indebtedness . . . . . . . . . . . . . . . . . 40
Section 7.20. Transactions with Affiliates . . . . . . . . . 40
Section 7.21. Compliance with Laws . . . . . . . . . . . . . 41
Section 7.22. Additional Guarantors. . . . . . . . . . . . . 41
SECTION 8. EVENTS OF DEFAULT AND REMEDIES . . . . . . . . 41
Section 8.1. Events of Default. . . . . . . . . . . . . . . 41
Section 8.2. Non-Bankruptcy Defaults. . . . . . . . . . . . 43
Section 8.3. Bankruptcy Defaults. . . . . . . . . . . . . . 43
Section 8.4. Collateral for Undrawn Letters of Credit . . . 43
Section 8.5. Notice of Default. . . . . . . . . . . . . . . 44
Section 8.6. Expenses . . . . . . . . . . . . . . . . . . . 44
SECTION 9. CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . 44
Section 9.1. Change of Law. . . . . . . . . . . . . . . . . 44
Section 9.2. Unavailability of Deposits or Inability
to Ascertain, or Inadequacy of, LIBOR. . . . . 44
Section 9.3. Increased Cost and Reduced Return. . . . . . . 45
Section 9.4. Lending Offices. . . . . . . . . . . . . . . . 46
Section 9.5. Discretion of Bank as to Manner of Funding . . 46
SECTION 10. THE ADMINISTRATIVE AGENT . . . . . . . . . . . 46
Section 10.1. Appointment and Authorization of
Administrative Agent . . . . . . . . . . . . . 46
Section 10.2. Administrative Agent and its Affiliates. . . . 47
Section 10.3. Action by Administrative Agent . . . . . . . . 47
Section 10.4. Consultation with Experts. . . . . . . . . . . 47
Section 10.5. Liability of Administrative Agent;
Credit Decision. . . . . . . . . . . . . . . . 47
Section 10.6. Indemnity. . . . . . . . . . . . . . . . . . . 48
Section 10.7. Resignation of Administrative Agent and
Successor Agent. . . . . . . . . . . . . . . . 48
Section 10.8. L/C Issuer and Swingline Bank. . . . . . . . . 49
Section 10.9. Designation of Additional Agents . . . . . . . 49
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SECTION HEADING PAGE
SECTION 11. THE GUARANTEES . . . . . . . . . . . . . . . . 49
Section 11.1. The Guarantees . . . . . . . . . . . . . . . . 49
Section 11.2. Guarantee Unconditional. . . . . . . . . . . . 49
Section 11.3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances . . . . 50
Section 11.4. Waivers. . . . . . . . . . . . . . . . . . . . 50
Section 11.5. Limit on Recovery. . . . . . . . . . . . . . . 51
Section 11.6. Stay of Acceleration . . . . . . . . . . . . . 51
Section 11.7. Benefit to Guarantors. . . . . . . . . . . . . 51
Section 11.8. Guarantor Covenants. . . . . . . . . . . . . . 51
SECTION 12. MISCELLANEOUS. . . . . . . . . . . . . . . . . 52
Section 12.1. Payments Free of Withholding Taxes . . . . . . 52
Section 12.2. No Waiver of Rights. . . . . . . . . . . . . . 52
Section 12.3. Non-Business Day . . . . . . . . . . . . . . . 52
Section 12.4. Documentary Taxes. . . . . . . . . . . . . . . 52
Section 12.5. Survival of Representations. . . . . . . . . . 53
Section 12.6. Survival of Indemnities. . . . . . . . . . . . 53
Section 12.7. Sharing of Set-Off . . . . . . . . . . . . . . 53
Section 12.8. Notices. . . . . . . . . . . . . . . . . . . . 53
Section 12.9. Counterparts . . . . . . . . . . . . . . . . . 54
Section 12.10. Successors and Assigns . . . . . . . . . . . . 54
Section 12.11. Participants . . . . . . . . . . . . . . . . . 54
Section 12.12. Assignments. . . . . . . . . . . . . . . . . . 54
Section 12.13. Amendments . . . . . . . . . . . . . . . . . . 56
Section 12.14. Headings . . . . . . . . . . . . . . . . . . . 57
Section 12.15. Legal Fees, Other Costs and Indemnification. . 57
Section 12.16. Set Off. . . . . . . . . . . . . . . . . . . . 57
Section 12.17. Currency . . . . . . . . . . . . . . . . . . . 58
Section 12.18. Entire Agreement . . . . . . . . . . . . . . . 58
Section 12.19. Governing Law. . . . . . . . . . . . . . . . . 58
Section 12.20. Submission to Jurisdiction; Waiver
of Jury Trial. . . . . . . . . . . . . . . . . 58
Section 12.21. Limitation of Liability. . . . . . . . . . . . 59
Section 12.22. Confidentiality. . . . . . . . . . . . . . . . 59
Section 12.23. Severability of Provisions . . . . . . . . . . 59
Section 12.24. Excess Interest. . . . . . . . . . . . . . . . 59
Section 12.25. Construction . . . . . . . . . . . . . . . . . 60
Section 12.26. Bank's and L/C Issuer's Obligations Several. . 60
Section 12.27. USA Patriot Act. . . . . . . . . . . . . . . . 60
Section 12.28. Equalization of Loans and Commitments. . . . . 60
Section 12.29. Removal of Banks and Assignment of Interests . 61
Signature . . . . . . . . . . . . . . . . . . . . . . .S-1 - S-17
EXHIBITS
A-1 - Form of Note
A-2 - Form of Swingline Note
B - Form of Compliance Certificate
C - Form of Subsidiary Guarantee Agreement
D - Commitment Amount Increase Request
E - Assignment and Acceptance
SCHEDULE 1 COMMITMENTS
SCHEDULE 1.3 EXISTING LETTERS OF CREDIT
SCHEDULE 5.2 GUARANTORS
SCHEDULE 7.14 EXISTING INVESTMENTS
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AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
This Amended and Restated Multicurrency Credit Agreement, dated as of
June 6, 2007, is among Xxxxx Lang LaSalle Finance B.V., a private company
with limited liability organized under the laws of The Netherlands (the
"Borrower"), the Guarantors (as hereinafter defined) party hereto, the
lenders from time to time party hereto (each a "Bank" and, collectively,
the "Banks") Bank of Montreal, as Administrative Agent.
PRELIMINARY STATEMENT
Whereas, the Borrower, the guarantors party thereto, the several
parties thereto as lenders, and Xxxxxx X.X., as Administrative Agent,
previously entered into a Credit Agreement, dated as of March 1, 2006 (as
amended, the "Existing Credit Agreement") pursuant to which the Banks have
made Loans (as defined in the Existing Credit Agreement) to the Borrower
(as defined in the Existing Credit Agreement) and issued letters of credit
for the account of the Borrower, on the terms and conditions set forth
therein;
Whereas, the Borrower has requested that the Banks amend the Existing
Credit Agreement to revise certain terms of the Existing Credit Agreement,
and the Banks have agreed to do so on the terms and conditions set forth
herein; and
Whereas, Xxxxxx X.X. has given notice of its intention to resign as
Agent and the parties have agreed to substitute Bank of Montreal, Chicago
Branch, for Xxxxxx X.X. as Administrative Agent and, in connection
therewith, to replace Xxxxxx X.X. as a Bank with BMO Capital Markets
Financing, Inc.
Whereas, the parties hereto have agreed to amend and restate the
Existing Credit Agreement in its entirety for the sake of clarity and
convenience;
Whereas, this Amended and Restated Credit Agreement constitutes for
all purposes an amendment to the Existing Credit Agreement and not a new or
substitute agreement;
Now, Therefore, in consideration of the mutual agreements contained
herein, and the other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. THE REVOLVING CREDIT.
SECTION 1.1. COMMITMENTS. Subject to the terms and conditions
hereof, each Bank severally agrees to make a loan or loans (individually a
"Loan" and collectively "Loans") to the Borrower from time to time on a
revolving basis in U.S. Dollars and Alternative Currencies in an aggregate
outstanding Original Dollar Amount up to the amount of its Commitment
subject to any increases or reductions thereof pursuant to the terms
hereof, before the Termination Date. The sum of the (i) aggregate Original
Dollar Amount of Loans, (ii) the aggregate Original Dollar Amount of
Swingline Loans, and (iii) the aggregate U.S. Dollar Equivalent of all L/C
Obligations at any time outstanding shall not exceed the Commitments in
effect at such time. The sum of the aggregate Original Dollar Amount of
all Loans denominated in an Alternative Currency other than Euros or Pounds
Sterling at any time outstanding shall not exceed $100,000,000. Each
Borrowing of Loans shall be made ratably from the Banks in proportion to
their respective Percentages. As provided in Section 1.6(a) hereof, the
Borrower may elect that each Borrowing of Loans denominated in U.S. Dollars
be either Domestic Rate Loans or Eurocurrency Loans. All Loans denominated
in an Alternative Currency shall be Eurocurrency Loans. Loans may be
repaid and the principal amount thereof reborrowed before the Termination
Date, subject to all the terms and conditions hereof.
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SECTION 1.2. THE SWINGLINE.
(a) SWINGLINE LOANS. Subject to all of the terms and conditions
hereof, the Swingline Bank agrees to make loans in U.S. Dollars to the
Borrower ("Swingline Loans"), which shall not in the aggregate at any time
outstanding exceed the lesser of (i) the Swingline Commitment or (ii) the
difference between (x) the Commitments in effect at such time and (y) the
sum of the Original Dollar Amount of all Loans and the U.S. Dollar
Equivalent of the L/C Obligations outstanding at the time of computation.
The Swingline Commitment may be availed of by the Borrower from time to
time and borrowings thereunder may be repaid and used again during the
period ending on the day immediately preceding the Termination Date.
(b) MINIMUM BORROWING AMOUNT. Each Swingline Loan shall be in an
amount not less than $100,000.
(c) INTEREST ON SWINGLINE LOANS. Each Swingline Loan shall bear
interest (computed on the basis of a year of 360 days and actual days
elapsed) for the Interest Period selected therefor at the Domestic Rate
PLUS the Applicable Margin for Domestic Rate Loans or at the rate quoted by
the Administrative Agent to the Borrower which is the interest rate
determined in the Swingline Bank's discretion at which the Swingline Bank
would be willing to make such Swingline Loan available to the Borrower for
such Interest Period (the rate so quoted for a given Interest Period being
herein referred to as the "Quoted Rate"), PROVIDED that if any Swingline
Loan is not paid when due (whether by lapse of time, acceleration or
otherwise) such Swingline Loan shall bear interest whether before or after
judgment, until payment in full thereof through the end of the Interest
Period then applicable thereto at the rate set forth in Section 1.10
hereof. Interest on each Swingline Loan shall be due and payable on the
last day of each Interest Period applicable thereto, and interest after
maturity (whether by lapse of time, acceleration or otherwise) shall be due
and payable upon demand.
(d) REQUESTS FOR SWINGLINE LOANS. The Borrower shall give the
Administrative Agent prior notice (which may be written or oral) no later
than 12:00 noon (Chicago time) on the date upon which the Borrower requests
that any Swingline Loan be made, specifying in each case the amount and
date of such Swingline Loan and the Interest Period selected therefor. The
Administrative Agent shall promptly advise the Swingline Bank of any such
notice received from the Borrower. Within thirty (30) minutes after
receiving such notice, the Swingline Bank shall quote the Quoted Rate for
such Interest Period. The Borrower acknowledges and agrees that the
interest rate quote is given for immediate and irrevocable acceptance, and
if the Borrower does not so immediately accept the Quoted Rate for the full
amount requested by the Borrower for such Swingline Loan, the Quoted Rate
shall be deemed immediately withdrawn and such Swingline Loan shall be made
at the rate per annum equal to the Domestic Rate from time to time in
effect PLUS the Applicable Margin for Domestic Rate Loans. Subject to all
of the terms and conditions hereof, the proceeds of such Swingline Loan
shall be made available to the Borrower on the date so requested at the
Borrower's Designated Disbursement Account or as the Borrower, the
Administrative Agent and the Swingline Bank may otherwise agree. Anything
contained in the foregoing to the contrary notwithstanding, (i) the
obligation of the Swingline Bank to make Swingline Loans shall be subject
to all of the terms and conditions of this Agreement (provided that the
Swingline Bank shall be entitled to assume that the conditions precedent to
an advance of any Swingline Loan have been satisfied unless notified to the
contrary by the Administrative Agent or the Required Banks) and (ii) the
Swingline Bank shall not be obligated to make more than one Swingline Loan
during any one day.
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(e) REFUNDING LOANS. In its sole and absolute discretion, the
Swingline Bank may at any time, on behalf of the Borrower (which hereby
irrevocably authorizes the Swingline Bank to act on its behalf for such
purpose) and with notice to the Borrower and the Administrative Agent,
request each Bank to make a Loan in an amount equal to such Bank's
Percentage of the amount of the Swingline Loans outstanding on the date
such notice is given. Borrowings of Loans under this Section 1.2(e) shall
initially constitute Domestic Rate Loans unless timely notice is given
pursuant to Section 1.6 hereof. Unless an Event of Default described in
Section 8.1(f) or 8.1(g) exists with respect to the Borrower, regardless of
the existence of any other Event of Default, each Bank shall make the
proceeds of its requested Loan available to the Administrative Agent for
the account of the Swingline Bank, in immediately available funds, at the
principal office of the Administrative Agent in Chicago, Illinois, before
12:00 noon (Chicago time) on the Business Day following the day such notice
is given. The proceeds of such Loans shall be immediately applied to repay
the outstanding Swingline Loans. The Administrative Agent shall promptly
remit the proceeds of such Borrowing to the Swingline Bank to repay the
outstanding Swingline Loans.
(f) PARTICIPATIONS. If any Bank refuses or otherwise fails to make
a Loan when requested by the Swingline Bank pursuant to Section 1.2(e)
above (because an Event of Default described in Section 8.1(f) or 8.1(g)
exists with respect to the Borrower or otherwise), such Bank will, by the
time and in the manner such Loan was to have been funded to the Swingline
Bank, purchase from the Swingline Bank an undivided participating interest
in the outstanding Swingline Loans in an amount equal to its Percentage of
the aggregate principal amount of Swingline Loans that were to have been
repaid with such Loans. Each Bank that so purchases a participation in a
Swingline Loan shall thereafter be entitled to receive its Percentage of
each payment of principal received on the Swingline Loan and of interest
received thereon accruing from the date such Bank funded to the
Administrative Agent its participation in such Swingline Loan. The
obligation of the Banks to the Swingline Bank shall be absolute and
unconditional and shall not be affected or impaired by any Default or Event
of Default which may then be continuing hereunder.
(g) VOLUNTARY PREPAYMENT OF SWINGLINE LOANS. The Borrower may not
voluntarily prepay any Swingline Loan bearing interest at the Quoted Rate
before the last day of its Interest Period. The Borrower may voluntarily
prepay any Swingline Loan bearing interest computed by reference to the
Domestic Rate before the last day of its Interest Period at any time upon
notice delivered to the Administrative Agent by the Borrower no later than
12:00 noon (Chicago time) on the date of prepayment, such prepayment to be
made by the payment of the principal amount to be prepaid and accrued
interest thereon to the date fixed for prepayment.
SECTION 1.3. LETTERS OF CREDIT.
(a) GENERAL TERMS. Subject to the terms and conditions hereof, as
part of the Revolving Credit the L/C Issuer shall issue standby letters of
credit (each a "Letter of Credit") for the account of the Borrower or for
the account of the Borrower and the Parent or one or more of its
Subsidiaries in Euros, Pound Sterling, Japanese Yen or U.S. Dollars in the
U.S. Dollar Equivalent of the aggregate undrawn face amount up to the L/C
Commitment, PROVIDED that the U.S. Dollar Equivalent of the aggregate L/C
Obligations at any time outstanding shall not exceed the difference between
the Commitments in effect at such time and the aggregate Original Dollar
Amount of Loans and Swingline Loans then outstanding. Notwithstanding
anything herein to the contrary, those certain letters of credit issued for
the account of the Borrower or the Parent by Xxxxxx X.X. under the Existing
Credit Agreement and listed on Schedule 1.3 hereof (the "Existing Letters
of Credit") shall each constitute a "Letter of Credit" herein for all
purposes of this Agreement with the Borrower as the applicant therefor, to
the same extent, and with the same force and effect as if the Existing
Letters of Credit had been issued under this Agreement at the request of
the Borrower. Each Letter of Credit shall be issued by the L/C Issuer, but
each Bank shall be obligated to reimburse the L/C Issuer for its Percentage
3
of the amount of each drawing thereunder and, accordingly, the undrawn face
amount of each Letter of Credit shall constitute usage of the Commitment of
each Bank PRO RATA in accordance with each Bank's Percentage.
(b) APPLICATIONS. At any time before the Termination Date, the L/C
Issuer shall, at the request of the Borrower, issue one or more Letters of
Credit, in a form satisfactory to the L/C Issuer, with expiration dates no
later than the Termination Date, in an aggregate face amount as set forth
above, upon the receipt of an application duly executed by the Borrower
and, if such Letter of Credit is for the account of the Parent or one of
its Subsidiaries, the Parent or such Subsidiary for the relevant Letter of
Credit in the form customarily prescribed by the L/C Issuer for a standby
letter of credit (each an "Application"). Notwithstanding anything
contained in any Application to the contrary (i) the Borrower's obligation
to pay fees in connection with each Letter of Credit shall be as
exclusively set forth in Section 2.1(b) hereof, (ii) except during the
continuance of an Event of Default, the L/C Issuer will not call for the
funding by the Borrower of any amount under a Letter of Credit, or any
other form of collateral security for the Borrower's obligations in
connection with such Letter of Credit, before being presented with a
drawing thereunder, and (iii) if the L/C Issuer is not timely reimbursed
for the amount of any drawing under a Letter of Credit on the date such
drawing is paid, the Borrower's obligation to reimburse the L/C Issuer for
the amount of such drawing shall bear interest (which the Borrower hereby
promises to pay) from and after the date such drawing is paid at a rate per
annum (i) if such Letter of Credit is denominated in U.S. Dollars, equal to
the sum of 2% PLUS the Domestic Rate from time to time in effect PLUS the
Applicable Margin for Domestic Rate Loans and (ii) if such Letter of Credit
is denominated in Euros, Japanese Yen or Pound Sterling, equal to the rate
established pursuant to Section 1.10(b) for Eurocurrency Loans denominated
in an Alternative Currency. The L/C Issuer agrees to issue amendments to
the Letter(s) of Credit increasing the amount, or extending the expiration
date, thereof at the request of the Borrower subject to the conditions of
Section 6.2 and the other terms of this Section 1.3.
(c) THE REIMBURSEMENT OBLIGATIONS. Subject to Section 1.3(b)
hereof, the obligation of the Borrower to reimburse the L/C Issuer for all
drawings under a Letter of Credit (a "Reimbursement Obligation") shall be
governed by the Application related to such Letter of Credit, except that
reimbursement of each drawing shall be made in immediately available funds
(i) if such Letter of Credit is denominated in U.S. Dollars, at the
Administrative Agent's principal office in Chicago, Illinois and (ii) if
such Letter of Credit is denominated in Euros, Japanese Yen or Pound
Sterling, to such local office as the Administrative Agent has previously
specified, in each case by no later than 12:00 noon (local time) on the
date when each drawing is paid or, if such drawing was paid after 11:30
a.m. (local time), by the end of such day. If the Borrower does not make
any such reimbursement payment on the date due and the Participating Banks
fund their participations therein in the manner set forth in Section 1.3(d)
below, then all payments thereafter received by the Administrative Agent in
discharge of any of the relevant Reimbursement Obligations shall be
distributed in accordance with Section 1.3(d) below.
(d) THE PARTICIPATING INTERESTS. Each Bank (other than the Bank
then acting as L/C Issuer in issuing Letters of Credit) severally agrees to
purchase from the L/C Issuer, and the L/C Issuer hereby agrees to sell to
each such Bank (a "Participating Bank"), an undivided percentage
participating interest (a "Participating Interest"), to the extent of its
Percentage, in each Letter of Credit issued by, and each Reimbursement
Obligation owed to, the L/C Issuer. Upon any failure by the Borrower to
pay any Reimbursement Obligation at the time required on the date due, as
set forth in Section 1.3(c) above, or if the L/C Issuer is required at any
time to return to the Borrower or to a trustee, receiver, liquidator,
custodian or other Person any portion of any payment of any Reimbursement
Obligation, each Participating Bank shall, not later than the Business Day
it receives a request from the L/C Issuer to such effect, if such request
is received before 1:00 p.m. (Chicago time), or not later than the
following Business Day, if such request is received after such time, pay to
4
the Administrative Agent for the account of the L/C Issuer an amount equal
to its Percentage of such unpaid or recaptured Reimbursement Obligation
together with interest on such amount accrued from the date the related
payment was made by the L/C Issuer to the date of such payment by such
Participating Bank at a rate per annum equal to (i) from the date the
related payment was made by the L/C Issuer to the date two (2) Business
Days after payment by such Participating Bank is due hereunder (a) if such
Letter of Credit is denominated in U.S. Dollars, the Federal Funds Rate for
each day and (b) if such Letter of Credit is denominated in Euros, Japanese
Yen or Pound Sterling at the rate of interest per annum as determined by
the L/C Issuer at which overnight or weekend deposits in the relevant
currency for delivery of immediately available and freely transferable
funds are offered by the L/C Issuer to major banks in the interbank market
for each such day and (ii) from the date two (2) Business Days after the
date such payment is due from such Participating Bank to the date such
payment is made by such Participating Bank, (a) if such Letter of Credit is
denominated in U.S. Dollars, the Domestic Rate in effect for each such day
and (b) if such Letter of Credit is denominated in Euros, Japanese Yen or
Pound Sterling, the rate established by Section 1.10(b) for Eurocurrency
Loans denominated in such currency. Each such Participating Bank shall
thereafter be entitled to receive its Percentage of each payment received
in respect of the relevant Reimbursement Obligation and of interest paid
thereon, with the L/C Issuer retaining its Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the L/C Issuer
under this Section 1.3 shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever (except, without limiting the
Borrower's obligations under each Application, to the extent the Borrower
is relieved from its obligation to reimburse the L/C Issuer for a drawing
under a Letter of Credit because of the L/C Issuer's gross negligence or
willful misconduct in determining that documents received under the Letter
of Credit comply with the terms thereof) and shall not be subject to any
set-off, counterclaim or defense to payment which any Participating Bank
may have or have had against the Borrower, the L/C Issuer, any other Bank
or any other Person whatsoever. Without limiting the generality of the
foregoing, such obligations shall not be affected by any Default or Event
of Default or by any reduction or termination of any Commitment of any
Bank, and each payment by a Participating Bank under this Section 1.3 shall
be made without any offset, abatement, withholding or reduction whatsoever.
The Administrative Agent shall be entitled to offset amounts received for
the account of a Bank under this Agreement against unpaid amounts due from
such Bank to the L/C Issuer hereunder (whether as fundings of
participations, indemnities or otherwise), but shall not be entitled to
offset against amounts owed to the L/C Issuer by any Bank arising outside
this Agreement.
(e) INDEMNIFICATION. The Participating Banks shall, to the extent
of their respective Percentages, indemnify the L/C Issuer (to the extent
not reimbursed by the Borrower) against any cost, expense (including
reasonable counsel fees and disbursements), claim, demand, action, loss or
liability (except such as result from the Administrative Agent's gross
negligence or willful misconduct) that the L/C Issuer may suffer or incur
in connection with any Letter of Credit. The obligations of the
Participating Banks under this Section 1.3(e) and all other parts of this
Section 1.3 shall survive termination of this Agreement and of all other
L/C Documents.
5
(f) REPLACEMENT OF THE L/C ISSUER. The L/C Issuer may be replaced
at any time by written agreement among the Parent, the Borrower, the
Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer.
The Administrative Agent shall notify the Banks of any such replacement of
the L/C Issuer. At the time any such replacement shall become effective,
the Borrower shall pay all unpaid fees accrued for the account of the
replaced L/C Issuer. From and after the effective date of any such
replacement (i) the successor L/C Issuer shall have all the rights and
obligations of the L/C Issuer under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"L/C Issuer " shall be deemed to refer to such successor or to any previous
L/C Issuer, or to such successor and all previous L/C Issuer s, as the
context shall require. After the replacement of a L/C Issuer hereunder,
the replaced L/C Issuer shall remain a party hereto and shall continue to
have all the rights and obligations of a L/C Issuer under this Agreement
with respect to Letters of Credit issued by it prior to such replacement,
but shall not be required to issue additional Letters of Credit.
SECTION 1.4. APPLICABLE INTEREST RATES.
(a) DOMESTIC RATE LOANS. Each Domestic Rate Loan made or
maintained by a Bank shall bear interest during each Interest Period it is
outstanding (computed on the basis of a year of 365 or 366 days, as
applicable, and actual days elapsed) on the unpaid principal amount thereof
from the date such Loan is advanced, continued or created by conversion
from a Eurocurrency Loan until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Margin
PLUS the Domestic Rate from time to time in effect, payable on the last day
of its Interest Period and at maturity (whether by acceleration or
otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced or otherwise established
by the Administrative Agent from time to time as its prime commercial
rate, or equivalent for U.S. Dollar loans to borrowers located in the
United States, 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 (it being acknowledged and agreed that such rate may
not be the Administrative Agent's best or lowest rate); and
(ii) the sum of (x) the rate determined by the Administrative
Agent to be the average of the rates 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) by two or
more Federal Funds brokers selected by the Administrative Agent for
sale to the Administrative Agent at face value of overnight Federal
Funds in an amount comparable to the principal amount owed to the
Banks for which such rate is being determined, PLUS (y) 1/2 of 1%
(0.50%).
(b) EUROCURRENCY LOANS. Each Eurocurrency Loan made or maintained
by a Bank shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed except
for Eurocurrency Loans denominated in Pounds Sterling which shall be
computed on the basis of a year of 365 days and actual days elapsed) on the
unpaid principal amount thereof from the date such Loan is advanced,
continued, or created by conversion from a Domestic Rate Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal
to the sum of the Applicable Margin PLUS the Adjusted LIBOR applicable for
such Interest Period, payable on the last day of the Interest Period and at
maturity (whether by acceleration or otherwise), and, if the applicable
Interest Period is longer than three months, on each day occurring every
three months after the commencement of such Interest Period.
6
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a
rate per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
-----------------------------------
1 - Eurocurrency Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurocurrency
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the
average rate of interest per annum (rounded upwards, if necessary, to the
nearest one hundred-thousandth of a percentage point) at which deposits in
U.S. Dollars or the relevant Alternative Currency, as appropriate, in
immediately available funds are offered to the Administrative Agent at
11:00 a.m. (London, England time) two (2) Business Days before the
beginning of such Interest Period by major banks in the interbank
eurocurrency market for delivery on the first day of and for a period equal
to such Interest Period in an amount equal or comparable to the principal
amount of the Eurocurrency Loan scheduled to be made by the Administrative
Agent as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth
of a percentage point) for deposits in U.S. Dollars or the relevant
Alternative Currency, as appropriate, for a period equal to such Interest
Period, which appears on the appropriate Reuters 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.
"Reuters Page" means the page designated on the Reuters Service (or
such other service as may be nominated by the British Bankers' Association
as the information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates) for the applicable currency.
"Eurocurrency Reserve Percentage" means, for any Borrowing of
Eurocurrency Loans, the daily average for the applicable Interest Period of
the maximum rate, expressed as a decimal, at which reserves (including,
without limitation, any supplemental, marginal and emergency reserves) are
imposed during such Interest Period by the Board of Governors of the
Federal Reserve System (or any successor) on "eurocurrency liabilities", as
defined in such Board's Regulation D (or in respect of any other category
of liabilities that includes deposits by reference to which the interest
rate on Eurocurrency Loans is determined or any category of extensions of
credit or other assets that include loans by non-United States offices of
any Bank to United States residents), subject to any amendments of such
reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this definition, the
Eurocurrency Loans shall be deemed to be "eurocurrency liabilities" as
defined in Regulation D without benefit or credit for any prorations,
exemptions or offsets under Regulation D.
(c) RATE DETERMINATIONS. The Administrative Agent shall determine
each interest rate applicable to the Loans, and a reasonable determination
thereof by the Administrative Agent shall be conclusive and binding except
in the case of manifest error or willful misconduct. The Original Dollar
Amount of each Eurocurrency Loan denominated in an Alternative Currency
shall be determined or redetermined, as applicable, effective as of the
first day of each Interest Period applicable to such Loan.
SECTION 1.5. MINIMUM BORROWING AMOUNTS. Each Borrowing of Domestic
Rate Loans shall be in an amount not less than $1,000,000 and in integral
multiples of $100,000. Each Borrowing of Eurocurrency Loans shall be in an
amount not less than an Original Dollar Amount of $3,000,000 and in
integral multiples of 100,000 units of the relevant currency as would have
the Original Dollar Amount most closely approximating $100,000 or an
integral multiple thereof.
7
SECTION 1.6. MANNER OF BORROWING LOANS AND DESIGNATING INTEREST
RATES APPLICABLE TO LOANS.
(a) NOTICE TO THE ADMINISTRATIVE AGENT. The Borrower shall give
notice to the Administrative Agent by no later than (i) 12:00 noon (Chicago
time) at least four (4) Business Days before the date on which the Borrower
requests the Banks to advance a Borrowing of Eurocurrency Loans denominated
in an Alternative Currency, (ii) 12:00 noon (Chicago time) at least three
(3) Business Days before the date on which the Borrower requests the Banks
to advance a Borrowing of Eurocurrency Loans denominated in U.S. Dollars
and (iii) 12:00 noon (Chicago time) on the date on which the Borrower
requests the Banks to advance a Borrowing of Domestic Rate Loans. The
Loans included in each Borrowing shall bear interest initially at the type
of rate specified in such notice of a new Borrowing. Thereafter, the
Borrower may from time to time elect to change or continue the type of
interest rate borne by each Borrowing or, subject to the minimum amount
requirement for each outstanding Borrowing contained in Section 1.5 hereof,
a portion thereof, as follows: (i) if such Borrowing is of Eurocurrency
Loans, on the last day of the Interest Period applicable thereto, the
Borrower may continue part or all of such Borrowing as Eurocurrency Loans
for an Interest Period or Interest Periods specified by the Borrower or, if
such Eurocurrency Loan is denominated in U.S. Dollars, convert part or all
of such Borrowing into Domestic Rate Loans, (ii) if such Borrowing is of
Domestic Rate Loans, on any Business Day, the Borrower may convert all or
part of such Borrowing into Eurocurrency Loans denominated in U.S. Dollars
for an Interest Period or Interest Periods specified by the Borrower. The
Borrower shall give all such notices requesting the advance, continuation,
or conversion of a Borrowing to the Administrative Agent by telephone or
telecopy (which notice shall be irrevocable once given and, if by
telephone, shall be promptly confirmed in writing). Notices of the
continuation of a Borrowing of Eurocurrency Loans denominated in U.S.
Dollars for an additional Interest Period or of the conversion of part or
all of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars into
Domestic Rate Loans or of Domestic Rate Loans into Eurocurrency Loans must
be given by no later than 12:00 noon (Chicago time) at least three (3)
Business Days before the date of the requested continuation or conversion.
Notices of the continuation of a Borrowing of Eurocurrency Loans
denominated in an Alternative Currency must be given no later than 12:00
noon (Chicago time) at least four (4) Business Days before the requested
continuation. All such notices concerning the advance, continuation, or
conversion of a Borrowing shall specify the date of the requested advance,
continuation or conversion of a Borrowing (which shall be a Business Day),
the amount of the requested Borrowing to be advanced, continued, or
converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurocurrency Loans,
the currency and Interest Period applicable thereto. The Borrower agrees
that the Administrative Agent may rely on any such telecopy notice given by
any person it in good faith believes is an Authorized Representative
without the necessity of independent investigation, and in the event any
such notice by telephone conflicts with any written confirmation, such
telephonic notice shall govern if the Administrative Agent has acted in
reliance thereon.
(b) NOTICE TO THE BANKS. The Administrative Agent shall give
prompt telephonic or telecopy notice to each Bank (which notice if by
telephone, shall be promptly confirmed in writing) of any notice from the
Borrower received pursuant to Section 1.6(a) above. The Administrative
Agent shall give notice to the Borrower and each Bank by like means of the
interest rate applicable to each Borrowing of Eurocurrency Loans and, if
such Borrowing is denominated in an Alternative Currency, shall give notice
by such means to the Borrower and each Bank of the Original Dollar Amount
thereof.
8
(c) BORROWER'S FAILURE TO NOTIFY. Any outstanding Borrowing of
Domestic Rate Loans shall, subject to Section 6.2 hereof, automatically be
continued for an additional Interest Period on the last day of its then
current Interest Period unless the Borrower has notified the Administrative
Agent within the period required by Section 1.6(a) that it intends to
convert such Borrowing into a Borrowing of Eurocurrency Loans or notifies
the Administrative Agent within the period required by Section 1.9(a) that
it intends to prepay such Borrowing. If the Borrower fails to give notice
pursuant to Section 1.6(a) above of the continuation or conversion of any
outstanding principal amount of a Borrowing of Eurocurrency Loans
denominated in U.S. Dollars before the last day of its then current
Interest Period within the period required by Section 1.6(a) and has not
notified the Administrative Agent within the period required by
Section 1.9(a) that it intends to prepay such Borrowing, such Borrowing
shall automatically be converted into a Borrowing of Domestic Rate Loans,
subject to Section 6.2 hereof. If the Borrower fails to give notice
pursuant to Section 1.6(a) above of the continuation of any outstanding
principal amount of a Borrowing of Eurocurrency Loans denominated in an
Alternative Currency before the last day of its then current Interest
Period within the period required by Section 1.6(a) and has not notified
the Administrative Agent within the period required by Section 1.9(a) that
it intends to prepay such Borrowing, such Borrowing shall automatically be
continued as a Borrowing of Eurocurrency Loans in the same Alternative
Currency with an Interest Period of one month, subject to Section 6.2
hereof, including the application of Section 1.4 and of the restrictions
contained in the definition of Interest Period.
(d) DISBURSEMENT OF LOANS. Not later than 11:00 a.m. (Chicago
time) on the date of any requested advance of a new Borrowing of
Eurocurrency Loans, and not later than 2:00 p.m. (Chicago time) on the date
of any requested advance of a new Borrowing of Domestic Rate Loans (other
than Domestic Rate Loans the proceeds of which are used to repay Swingline
Loans), subject to Section 6 hereof, each Bank shall make available its
Loan comprising part of such Borrowing in funds immediately available at
the principal office of the Administrative Agent in Chicago, Illinois,
except that if such Borrowing is denominated in an Alternative Currency
each Bank shall, subject to Section 1.4(c) and Section 6, make available
its Loan comprising part of such Borrowing at such office as the
Administrative Agent has previously specified in a notice to each Bank, in
such funds as are then customary for the settlement of international
transactions in such currency and no later than such local time as is
necessary for such funds to be received and transferred to the Borrower for
same day value on the date of the Borrowing. The Administrative Agent
shall make available to the Borrower Loans denominated in U.S. Dollars at
the Administrative Agent's principal office in Chicago, Illinois and Loans
denominated in Alternative Currencies at such office as the Administrative
Agent has previously agreed to with the Borrower, in each case in the type
of funds received by the Administrative Agent from the Banks.
(e) ADMINISTRATIVE AGENT RELIANCE ON BANK FUNDING. Unless the
Administrative Agent shall have been notified by a Bank before the date or,
in the case of a Borrowing of Domestic Rate Loans prior to 1:00 p.m.
(Chicago time) on the date, on which such Bank is scheduled to make payment
to the Administrative Agent of the proceeds of a Loan (which notice shall
be effective upon receipt) that such Bank does not intend to make such
payment, the Administrative Agent may assume that such Bank has made such
payment when due and the Administrative Agent may in reliance upon such
assumption (but shall not be required to) make available to the Borrower
the proceeds of the Loan to be made by such Bank and, if any Bank has not
in fact made such payment to the Administrative Agent, such Bank shall, on
demand, pay to the Administrative Agent the amount made available to the
Borrower attributable to such Bank together with interest thereon in
respect of each day during the period commencing on the date such amount
was made available to the Borrower and ending on (but excluding) the date
such Bank pays such amount to the Administrative Agent at a rate per annum
equal to (i) from the date the related advance was made by the
Administrative Agent to the date two (2) Business Days after payment by
such Bank is due hereunder, the Federal Funds Rate for each such day or, in
9
the case of a Loan denominated in an Alternative Currency, the cost to the
Administrative Agent of funding the amount it advanced to fund such Bank's
Loan, as determined by the Administrative Agent and (ii) from the date two
(2) Business Days after the date such payment is due from such Bank to the
date such payment is made by such Bank, the Domestic Rate in effect for
each such day or, in the case of a Loan denominated in an Alternative
Currency, the rate established by Section 1.10(b) for Eurocurrency Loans
denominated in such currency. If such amount is not received from such
Bank by the Administrative Agent immediately upon demand, the Borrower
will, on demand, repay to the Administrative Agent the proceeds of the Loan
attributable to such Bank with interest thereon at a rate per annum equal
to the interest rate applicable to the relevant Loan, but without such
payment being considered a payment or prepayment of a Loan under
Section 1.12 hereof, so that the Borrower will have no liability under such
Section with respect to such payment.
SECTION 1.7. INTEREST PERIODS. As provided in Section 1.2(d) and
1.6(a) hereof, at the time of each request to advance, continue, or create
by conversion a Borrowing of Eurocurrency Loans or Swingline Loans, as
applicable, the Borrower shall select an Interest Period applicable to such
Loans from among the available options. The term "Interest Period" means
the period commencing on the date a Borrowing of Loans is advanced,
continued, or created by conversion and ending: (a) in the case of
Domestic Rate Loans, on the last day of the calendar quarter in which such
Borrowing is advanced, continued, or created by conversion (or on the last
day of the following quarter if such Loan is advanced, continued or created
by conversion on the last day of a calendar quarter), (b) in the case of
Eurocurrency Loans, 1, 2, 3, 6, or, if available to all the Banks, 9 or 12
months thereafter, and (c) in the case of Swingline Loans, on the date, as
the Borrower may select, one to five days thereafter; PROVIDED, HOWEVER,
that:
(a) any Interest Period for a Borrowing of Loans consisting
of Domestic Rate Loans that otherwise would end after the Termination
Date shall end on the Termination Date;
(b) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business
Day, PROVIDED that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurocurrency Loans to occur in the
following calendar month, the last day of such Interest Period shall
be the immediately preceding Business Day; and
(c) for purposes of determining an Interest Period for a
Borrowing of Eurocurrency Loans, a month means a period starting on
one day in a calendar month and ending on the numerically
corresponding day in the next calendar month; PROVIDED, HOWEVER, that
if there is no numerically corresponding day in the month in which
such an Interest Period is to end or if such an Interest Period
begins on the last Business Day of a calendar month, then such
Interest Period shall end on the last Business Day of the calendar
month in which such Interest Period is to end.
SECTION 1.8. MATURITY OF LOANS. Each Loan shall mature and become
due and payable by the Borrower on the Termination Date. Each Swingline
Loan shall mature and become due and payable on the earlier of (i) the last
day of its Interest Period and (ii) the Termination Date.
10
SECTION 1.9. PREPAYMENTS.
(a) OPTIONAL. The Borrower may prepay without premium or penalty
and in whole or in part (but, if in part, then: (i) if such Borrowing is
of Domestic Rate Loans, in an amount not less than $500,000, (ii) if such
Borrowing is of Eurocurrency Loans denominated in U.S. Dollars, in an
amount not less than $1,000,000, (iii) if such Borrowing is denominated in
an Alternative Currency, an amount for which the U.S. Dollar Equivalent is
not less than $1,000,000 and (iv) in an amount such that the minimum amount
required for a Borrowing pursuant to Section 1.5 hereof remains
outstanding) any Borrowing of Eurocurrency Loans upon one Business Day's
prior notice to the Administrative Agent or, in the case of a Borrowing of
Domestic Rate Loans, notice delivered to the Administrative Agent no later
than 12:00 noon (Chicago time) on the date of prepayment, such prepayment
to be made by the payment of the principal amount to be prepaid and, in the
case of a prepayment of a Eurocurrency Loan, accrued interest thereon to
the date fixed for prepayment; PROVIDED that in the case of any such
prepayment of Eurocurrency Loans, such prepayment shall be accompanied by
amounts owing under Section 1.12 hereof; PROVIDED further that any amounts
not repaid on the date fixed for prepayment shall be converted (subject to
Sections 1.5 and 6.2 hereof) into a Borrowing of Domestic Rate Loans. The
Administrative Agent will promptly advise each Bank of any such prepayment
notice it receives from the Borrower.
(b) MANDATORY.
(i) If on any March 31, June 30, September 30 or December 31
occurring after the date hereof the sum of (a) the U.S. Dollar Equivalent
of all outstanding Loans hereunder, (b) the aggregate Original Dollar
Amount of all outstanding Swingline Loans hereunder, and (c) the U.S.
Dollar Equivalent of the L/C Obligations exceeds the Commitments as then in
effect, the Borrower shall immediately prepay Loans and, if necessary,
prefund L/C Obligations in an aggregate amount such that after giving
effect thereto the sum of (A) the U.S. Dollar Equivalent of all outstanding
Loans hereunder, (B) the aggregate Original Dollar Amount of all
outstanding Swingline Loans hereunder, and (C) the U.S. Dollar Equivalent
of the outstanding L/C Obligations is less than or equal to the Commitments
as then in effect.
(ii) The Borrower shall, on each date the Commitments are reduced
pursuant to Section 1.13 hereof, prepay the Loans and, if necessary,
prefund the L/C Obligations by the amount, if any, necessary to reduce the
sum of the aggregate Original Dollar Amount of Loans and U.S. Dollar
Equivalent of L/C Obligations then outstanding to the amount to which the
Commitments have been so reduced.
SECTION 1.10. DEFAULT RATE. Notwithstanding anything to the
contrary contained herein, while any Event of Default exists or after
acceleration, the Borrower shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on the principal
amount of all Loans, Swingline Loans and Reimbursement Obligations, and
letter of credit fees from and including the date provided in this Section
1.10 until paid at a rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two percent (2%)
PLUS the Domestic Rate from time to time in effect PLUS the
Applicable Margin for Domestic Rate Loans;
(b) for any Eurocurrency Loan, the sum of two percent (2%)
PLUS the rate of interest in effect thereon at the time of such
default until the end of the Interest Period applicable thereto and,
thereafter, if such Loan is denominated in U.S. Dollars, at a rate
per annum equal to the sum of two percent (2%) PLUS the Domestic Rate
from time to time in effect PLUS the Applicable Margin for Domestic
Rate Loans or, if such Loan is denominated in an Alternative
Currency, at a rate per annum equal to the sum of the Eurocurrency
Margin, PLUS two percent (2%) PLUS the rate of interest per annum as
11
determined by the Administrative Agent (rounded upwards, if
necessary, to the next higher one hundred-thousandth of a percentage
point) at which overnight or weekend deposits (or, if such amount due
remains unpaid more than three Business Days, then for such other
period of time not longer than one month as the Administrative Agent
may elect in its absolute discretion) of the relevant Alternative
Currency for delivery in immediately available and freely
transferable funds would be offered by the Administrative Agent to
major banks in the interbank market upon request of such major banks
for the applicable period as determined above and in an amount
comparable to the unpaid principal amount of any such Eurocurrency
Loan (or, if the Administrative Agent is not placing deposits in such
currency in the interbank market, then the Administrative Agent's
cost of funds in such currency for such period);
(c) for any Swingline Loan, the sum of 2% PLUS the rate of
interest in effect thereon at the time of such default until the end
of the Interest Period applicable thereto and, thereafter, at a rate
per annum equal to 2% PLUS the Applicable Margin for Domestic Rate
Loans PLUS the Domestic Rate from time to time in effect;
(d) for any Reimbursement Obligation, the sum of 2.0% PLUS
the amounts due under Section 1.3 with respect to such Reimbursement
Obligation; and
(e) for any Letter of Credit, the sum of 2.0% PLUS the letter
of credit fee due under Section 2.1 with respect to such Letter of
Credit.
PROVIDED, HOWEVER, that in the absence of acceleration, any adjustments
pursuant to this Section shall be made at the election of the
Administrative Agent, acting at the request or with the consent of the
Required Banks, with written notice to the Borrower. While any Event of
Default exists or after acceleration, interest shall be paid on demand of
the Administrative Agent at the request or with the consent of the Required
Banks.
SECTION 1.11. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(a) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Bank resulting from each Loan made by such Bank from time to time,
including the amounts of principal and interest payable and paid to such
Bank from time to time hereunder.
(b) The Administrative Agent shall also maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the type thereof
and the Interest Period with respect thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Bank hereunder and (c) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Bank's share
thereof.
(c) The entries maintained in the accounts maintained pursuant to
paragraphs (a) and (b) above shall be PRIMA FACIE evidence of the existence
and amounts of the Obligations therein recorded; PROVIDED, HOWEVER, that
the failure of the Administrative Agent or any Bank to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Obligations in accordance with their terms.
12
(d) Any Bank may request that its Loans or Swingline Loans be
evidenced by a Note. In such event, the Borrower shall prepare, execute
and deliver to such Bank a Note or Notes payable to the order of such Bank
in a form supplied by the Administrative Agent. Thereafter, the Loans
evidenced by such Note or Notes and interest thereon shall at all times
(including after any assignment pursuant to Section 12.12) be represented
by one or more Notes payable to the order of the payee named therein or any
assignee pursuant to Section 12.12, except to the extent that any such Bank
or assignee subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in
subsections (a) and (b) above.
SECTION 1.12. FUNDING INDEMNITY. If any Bank shall incur any loss,
cost or expense (including, without limitation, any loss of profit, and any
loss, cost or expense incurred by reason of the liquidation or re-
employment of deposits or other funds acquired by such Bank to fund or
maintain any Eurocurrency Loan or Swingline Loan or the relending or
reinvesting of such deposits or amounts paid or prepaid to such Bank) as a
result of:
(a) any payment, prepayment or conversion of a
Eurocurrency Loan or Swingline 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 Swingline Loan, or to
convert a Domestic Rate Loan into a Eurocurrency Loan, on the
date specified in a notice given pursuant to Section 1.6(a) or
established pursuant to Section 1.6(c) hereof,
(c) any failure by the Borrower to make any payment of
principal on any Eurocurrency Loan or Swingline Loan when due
(whether by acceleration or otherwise), or
(d) any acceleration of the maturity of a Eurocurrency
Loan or Swingline Loan as a result of the occurrence of any
Event of Default hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank
such amount as will reimburse such Bank for such loss, cost or expense. If
any Bank makes such a claim for compensation, it shall provide to the
Borrower, with a copy to the Administrative Agent, a certificate executed
by an officer of such Bank setting forth the amount of such loss, cost or
expense in reasonable detail (including an explanation of the basis for and
the computation of such loss, cost or expense) and the amounts shown on
such certificate if reasonably calculated shall be conclusive absent
manifest error.
SECTION 1.13. COMMITMENT TERMINATIONS.
(a) The Borrower shall have the right at any time and from time to
time, upon five (5) Business Days' prior written notice to the
Administrative Agent, to terminate the Commitments without premium or
penalty, in whole or in part, any partial termination to be in an amount
not less than $5,000,000, PROVIDED that the Commitments may not be reduced
to an amount less than the sum of the Original Dollar Amount of all Loans
and Swingline Loans and the U.S. Dollar Equivalent of all L/C Obligations
then outstanding. The Borrower shall have the right at any time and from
time to time, by notice to the Administrative Agent, to reduce or terminate
the L/C Commitment without premium or penalty, in whole or in part;
PROVIDED THAT the L/C Commitment may not be reduced to an amount less than
the U.S. Dollar Equivalent of all L/C Obligations then outstanding. The
Borrower shall have the right at any time and from time to time, by notice
13
to the Administrative Agent, to reduce or terminate the Swingline
Commitment without premium or penalty, in whole or in part; PROVIDED THAT
the Swingline Commitment may not be reduced to an amount less than the
aggregate principal amount of the Swingline Loans then outstanding. Any
such termination of the L/C Commitment or the Swingline Commitment shall
not reduce the Commitments unless the Borrower elects to do so in the
manner provided above.
(b) The Administrative Agent shall give prompt notice to each Bank
pursuant to this Section 1.13 of any termination of Commitments. Any such
termination of Commitments (i) shall be allocated ratably among the Banks
in proportion to their respective Percentage and (ii) may not be
reinstated. Any termination of the Commitments to an aggregate amount less
than the L/C Commitment then in effect shall reduce the L/C Commitment to
an amount equal to the Commitments. Any termination of the Commitments to
an aggregate amount less than the Swingline Commitment then in effect shall
reduce the Swingline Commitment to an amount equal to the Commitments.
SECTION 1.14. SUBSTITUTION OF BANKS. In the event (a) the Borrower
receives a claim from any Bank for compensation under Section 9.3 or 12.1
hereof, (b) the Borrower receives notice from any Bank of any illegality
pursuant to Section 10.1 hereof, (c) any Bank is in default in any material
respect with respect to its obligations under the Credit Documents, or
(d) a Bank fails to consent to an amendment or waiver requested under
Section 12.13 hereof at a time when the Required Banks have approved such
amendment or waiver (any such Bank referred to in clause (a), (b), (c), or
(d) above being hereinafter referred to as an "Affected Bank"), the
Borrower may, in addition to any other rights the Borrower may have
hereunder or under applicable law, require, at its expense, any such
Affected Bank to assign, at par PLUS accrued interest and fees, without
recourse, all of its interest, rights, and obligations hereunder (including
all of its Commitment and the Loans and participation interests in Letters
of Credit and Swingline Loans and other amounts at any time owing to it
hereunder and the other Credit Documents) to a commercial bank or other
financial institution specified by the Borrower, PROVIDED that (i) such
assignment shall not conflict with or violate any law, rule or regulation
or order of any court or other governmental authority, (ii) the Borrower
shall have received the written consent of the Administrative Agent, which
consent shall not be unreasonably withheld or delayed, to such assignment,
(iii) the Borrower shall have paid to the Affected Bank all monies
(together with amounts due such Affected Bank under Section 1.12 hereof as
if the Loans owing to it were prepaid rather than assigned) other than such
principal owing to it hereunder, and (iv) the assignment is entered into in
accordance with the other requirements of Section 12.12 hereof (provided
any assignment fees and reimbursable expenses due thereunder shall be paid
by the Borrower).
SECTION 1.15. INCREASE IN COMMITMENTS. The Borrower may, on any
Business Day prior to the Termination Date, with the written consent of the
Administrative Agent, L/C Issuer and Swingline Bank (which consents shall
not be unreasonably withheld or delayed), increase the aggregate amount of
the Commitments by delivering a Commitment Amount Increase Request
substantially in the form attached hereto as Exhibit D or in such other
form acceptable to the Administrative Agent at least five (5) Business Days
prior to the desired effective date of such increase (the "Commitment
Amount Increase") identifying an additional Bank (or additional Commitments
for existing Bank(s)) and the amount of its Commitment (or additional
amount of its Commitment(s)); PROVIDED, HOWEVER, that (i) any increase of
the aggregate amount of the Commitments to an amount in excess of
$650,000,000 will require the approval of the Required Banks, (ii) any
increase of the aggregate amount of the Commitments shall be in an amount
not less than $25,000,000, (iii) no Default or Event of Default shall have
occurred and be continuing at the time of the request or the effective
date of the Commitment Amount Increase, (iv) all representations and
warranties contained in Section 6 hereof shall be true and correct at the
time of such request and on the effective date of such Commitment Amount
Increase, and (v) prior to the effectiveness of any Commitment Amount
Increase, the Administrative Agent shall have received a copy, certified by
14
the secretary or assistant secretary of the Parent, of resolutions of the
Parent's board of directors authorizing the amount of such Commitment
Amount Increase. The effective date of the Commitment Amount Increase
shall be agreed upon by the Borrower and the Administrative Agent. Upon
the effectiveness thereof, the new Bank(s) (or, if applicable, existing
Bank(s)) shall advance Loans in an amount sufficient such that after giving
effect to its Loans each Bank shall have outstanding its Percentage of
Loans. It shall be a condition to such effectiveness that (i) if any
Eurocurrency Loans are outstanding on the date of such effectiveness, such
Eurocurrency Loans shall be deemed to be prepaid on such date and the
Borrower shall pay any amounts owing to the Banks pursuant to Section 1.12
hereof and (ii) the Borrower shall not have terminated any portion of the
Commitments pursuant to Section 1.13 hereof. The Borrower agrees to pay
any reasonable expenses of the Administrative Agent relating to any
Commitment Amount Increase. Promptly upon the effectiveness of any
Commitment Amount Increase, the Borrower, if requested by any new Bank,
shall execute and deliver new Notes to each requesting Bank.
Notwithstanding anything herein to the contrary, no Bank shall have any
obligation to increase its Commitment and no Bank's Commitment shall be
increased without its consent thereto, and each Bank may at its option,
unconditionally and without cause, decline to increase its Commitment.
SECTION 2. FEES.
SECTION 2.1. FEES.
(a) FACILITY FEE. For the period from the Effective Date to and
including the Termination Date, the Borrower shall pay to the
Administrative Agent for the ratable account of the Banks in accordance
with their Percentages a facility fee (the "Facility Fee") on the average
daily Commitments at a rate per annum equal to the applicable Facility Fee
in the definition of Applicable Margin; PROVIDED that if any Bank continues
to have outstanding Loans, Swingline Loans or L/C Obligations (including
participations therein) after its Commitment terminates, then the Facility
Fee shall continue to accrue on the daily amount of such Bank's outstanding
Loans, Swingline Loans and L/C Obligations (including participations
therein). Accrued Facility Fees shall be due and payable in arrears on
June 30, 2007, on the last day of each calendar quarter thereafter and on
the Termination Date, unless the Commitments are terminated in whole on an
earlier date, in which event the fee for the period to but not including
the date of such termination shall be paid in whole on the date of such
termination; PROVIDED that any Facility Fee accruing after the date the
Commitments terminate shall be payable on demand.
(b) LETTER OF CREDIT FEES. On the date of issuance or extension,
or increase in the amount, of any Letter of Credit pursuant to Section 1.3
hereof, the Borrower shall pay to the Administrative Agent an issuance fee
equal to 0.125% of the face amount of (or of the increase in the face
amount of) such Letter of Credit. Quarterly in arrears, on the last day of
each calendar quarter, commencing on June 30, 2007, the Borrower shall pay
to the Administrative Agent, for the ratable benefit of the Banks in
accordance with their Percentages, a letter of credit fee at a rate per
annum equal to the Applicable Margin for Eurocurrency Loans in effect
during each day of such quarter applied to the daily average U.S. Dollar
Equivalent of the face amount of Letters of Credit outstanding during such
quarter.
(c) ADMINISTRATIVE AGENT FEES. The Borrower shall pay to the
Administrative Agent the fees agreed to between the Administrative Agent
and the Parent in writing from time to time.
(d) FEE CALCULATIONS. All fees payable under Section 2.1(a) and
(b) shall be computed on the basis of a year of 365 or 366 days, as
applicable, for the actual number of days elapsed.
15
SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
SECTION 3.1. PLACE AND APPLICATION OF PAYMENTS. All payments of
principal of and interest on the Loans and the Reimbursement Obligations,
and of all other amounts payable by the Borrower under this Agreement,
shall be made by the Borrower to the Administrative Agent by no later than
12:00 Noon (Chicago time) on the due date thereof at the principal office
of the Administrative Agent in Chicago, Illinois (or such other location in
the State of Illinois as the Administrative Agent may designate to the
Borrower) or, if such payment is to be made in an Alternative Currency, no
later than 12:00 noon local time at the place of payment to such office as
the Administrative Agent has previously specified in a notice to the
Borrower for the benefit of the Person or Persons entitled thereto. Any
payments received after such time shall be deemed to have been received by
the Administrative Agent on the next Business Day. All such payments shall
be made (i) in U.S. Dollars, in immediately available funds at the place of
payment, or (ii) in the case of amounts payable hereunder in an Alternative
Currency, in such Alternative Currency in such funds then customary for the
settlement of international transactions in such currency, in each case
without setoff or counterclaim. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest on Loans and on Reimbursement Obligations in which
the Banks have purchased Participating Interests or facility 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. If the Administrative Agent
causes amounts to be distributed to the Banks in reliance upon the
assumption that the Borrower will make a scheduled payment and such
scheduled payment is not so made, each Bank shall, on demand, repay to the
Administrative Agent the amount distributed to such Bank together with
interest thereon in respect of each day during the period commencing on the
date such amount was distributed to such Bank and ending on (but excluding)
the date such Bank repays such amount to the Administrative Agent, at a
rate per annum equal to: (i) from the date the distribution was made to
the date two (2) Business Days after payment by such Bank is due hereunder,
(x) if such scheduled payment was to be made in U.S. Dollars, the Federal
Funds Rate for each such day and (y) if such scheduled payment was to be
made in an Alternative Currency, the rate established by Section 1.10(b)
hereof for Eurocurrency Loans denominated in such currency and (ii) from
the date two (2) Business Days after the date such payment is due from such
Bank to the date such payment is made by such Bank, (x) if such scheduled
payment was to be made in U.S. Dollars, the Base Rate in effect for each
such day and (y) if such scheduled payment was to be made in an Alternative
Currency, the rate per annum established by Section 1.10(b) hereof for
Eurocurrency Loans denominated in such currency.
SECTION 4. DEFINITIONS; INTERPRETATION.
SECTION 4.1. DEFINITIONS. The following terms when used herein have
the following meanings:
"Account" is defined in Section 8.4(b) hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated after the Effective Date, by which the Parent or
any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise,
(ii) directly or indirectly acquires (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities having
such power only by reason of the happening of a contingency) or at least a
majority of the partnership interests of any partnership or (iii) merges,
consolidates or otherwise combines with another Person (other than a Person
that is a Subsidiary or the Parent) PROVIDED that the Parent or the
Subsidiary is the surviving entity.
16
"Act" is defined in Section 12.27 hereof.
"Adjusted EBIT" means, for any period, Consolidated Net Income for
such period PLUS all amounts deducted in arriving at such Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal, state and
local income tax expense, (iii) all non-cash contributions or accruals to
or with respect to deferred profit sharing or compensation, and (iv)
Permitted Adjustments; PROVIDED that any amounts added to Consolidated Net
Income pursuant to clause (iii) above for any period shall be deducted from
Consolidated Net Income for the period, if ever, in which such amounts are
paid in cash by the Parent or any of its Subsidiaries.
"Adjusted EBITDA" means, for any period, Consolidated Net Income for
such period PLUS all amounts deducted in arriving at such Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal, state and
local income tax expense, (iii) all amounts properly charged for
depreciation of fixed assets and amortization of intangible assets on the
books of the Parent and its Restricted Subsidiaries, (iv) all non-cash
contributions or accruals to or with respect to deferred profit sharing or
compensation, and (v) Permitted Adjustments; PROVIDED that any amounts
added to Consolidated Net Income pursuant to clause (iv) above for any
period shall be deducted from Consolidated Net Income for the period, if
ever, in which such amounts are paid in cash by the Parent or any of its
Subsidiaries.
"Adjusted LIBOR" is defined in Section 1.4(b) hereof.
"Administrative Agent" means Bank of Montreal and any successor
pursuant to Section 10.7 hereof.
"Administrative Questionnaire" means an administrative questionnaire
in a form supplied by the Administrative Agent.
"Affected Bank" is defined in Section 1.14 hereof.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (including, with
their correlative meanings, "controlled by" and "under common control
with") means possession, directly or indirectly, of power to direct or
cause the direction of management or policies of a Person (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), PROVIDED that, in any event for purposes of this
definition: (i) any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors
or other governing body of a corporation or 5% or more of the partnership
or other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person; and (ii) each director and executive officer of the Parent or
any Subsidiary shall be deemed an Affiliate of the Parent and each
Subsidiary.
"Alternative Currency" means any of Australian Dollars, Canadian
Dollars, Euros, Hong Kong Dollars, Japanese Yen, New Zealand Dollars, Pound
Sterling, Singapore Dollars, and Swiss Francs, and any other currency
approved by all the Banks, in each case for so long as such currency is
readily available to all the Banks and is freely transferable and freely
convertible to U.S. Dollars and the Reuters Monitor Money Rates Service (or
any successor thereto) reports a LIBOR for such currency for interest
periods of one, two, three and six calendar months; PROVIDED THAT if any
Bank provides written notice to the Borrower (with a copy to the
Administrative Agent) that any currency control or other exchange
regulations are imposed in the country in which any such Alternative
Currency is issued and that in the reasonable opinion of such Bank funding
a Loan in such currency is impractical, then such currency shall cease to
be an Alternative Currency hereunder until such time as all the Banks
reinstate such country's currency as an Alternative Currency.
17
"Applicable Margin" means, on any date for any Domestic Rate Loan,
Eurocurrency Loan, Reimbursement Obligations and Facility Fees the rate per
annum set forth below, as in effect on such date as determined pursuant to
the provisions of the definition of Pricing Date:
DOMESTIC
RATE LOANS AND
EUROCURRENCY REIMBURSEMENT
LEVEL LOANS OBLIGATIONS FACILITY FEE
Level I 0.375% 0% 0.100%
Level II 0.500% 0% 0.125%
Level III 0.650% 0% 0.150%
; PROVIDED that from the Closing Date until the first Pricing Date the
Borrower shall be in Level I.
"Application" is defined in Section 1.3(b) hereof.
"Approved Fund" means any Fund that is administered or managed by (a)
a Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an
entity that administers or manages a Bank.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Bank and an Eligible Assignee (with the consent of any
party whose consent is required by Section 12.12 hereof), and accepted by
the Administrative Agent, in substantially the form of Exhibit E or any
other form approved by the Administrative Agent.
"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(g) hereof, or on
any updated such list provided by the Parent to the Administrative Agent,
or any further or different officer of the Borrower so named by any
Authorized Representative of the Parent in a written notice to the
Administrative Agent.
"Bank" is defined in the introductory paragraph of this Agreement
and, unless the context otherwise requires, includes the Swingline Bank.
"Borrower" is defined in the introductory paragraph of this
Agreement.
"Borrowing" means the total of Loans and Swingline Loans, as
applicable, 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. Borrowings of Swingline Loans are made by the Swingline Bank
in accordance with the procedures set forth in Section 1.2 hereof. A
Borrowing is "advanced" on the day Banks advance funds comprising such
Borrowing to the Borrower, is "continued" on the day a new Interest Period
for the same type of Loans commences for such Borrowing, and is "converted"
on the day such Borrowing is changed from one type of Loan to the other,
all as requested by the Borrower pursuant to Section 1.6(a).
"Business Day" means any day other than a Saturday or Sunday on which
Banks are not authorized or required to close in Chicago, Illinois and, if
the applicable Business Day relates to the borrowing or payment of a
Eurocurrency Loan or a Letter of Credit denominated in an Alternative
Currency, on which banks are dealing in U.S. Dollar deposits or the
relevant Alternative Currency in the interbank market in London, England
and, if the applicable Business Day relates to the borrowing or payment of
a Eurocurrency Loan denominated in an Alternative Currency, on which banks
and foreign exchange markets are open for business in the city where
disbursements of or payments on such Loan are to be made and, if such
Alternative Currency is the Euro or any national currency of a nation that
is a member of the European Economic and Monetary Union, which is a TARGET
Settlement Day.
18
"Capital Lease" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance
sheet of the lessee.
"Capitalized Lease Obligations" means, for any Person, the amount of
such Person's liabilities under Capital Leases determined at any date in
accordance with GAAP.
"Change of Control" means at any time:
(i) the Parent ceases to be the ultimate "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of at least 99% of the total
voting power of the Voting Stock of the Borrower;
(ii) any Person becomes the beneficial owner of
securities of the Parent representing 30% or more of the then
outstanding Voting Stock of the Parent; or
(iii) during any period of twenty-four consecutive months
beginning after the Effective Date, individuals who at the beginning
of such period constitute the Board of Directors of the Parent (the
"Board"), together with any new director (other than a director
designated by a person who has entered into an agreement with the
Parent to effect a transaction described in clause (ii) of this
Change of Control definition) whose election or nomination for
election was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority of the Board.
For purposes of the definition of Change of Control, "Person" shall
have the meaning ascribed to such term in Section 3(a)(9) of the Exchange
Act as supplemented by Section 13(d)(3) of the Exchange Act; PROVIDED,
HOWEVER, that Person shall not include (i) the Parent or any Wholly-Owned
Subsidiary, or (ii) any Person who, as of the Effective Date, was the
beneficial owner of securities of the Parent representing 20% or more of
the combined voting power.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to any Bank, the obligation of such Bank to
make Loans and to participate in Swingline Loans and Letters of Credit
issued for the account of the Borrower hereunder in an aggregate principal
or face amount at any one time outstanding not to exceed the amount set
forth opposite such Bank's name under the heading "Commitment" on Schedule
1 attached hereto and made a part hereof, as the same may be reduced or
modified at any time or from time to time pursuant to the terms hereof.
"Commitment Amount Increase" is defined in Section 1.15 hereof.
"Compliance Certificate" means a certificate in the form of Exhibit B
hereto.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Parent and its Restricted Subsidiaries for such period
computed on a consolidated basis in accordance with GAAP, but excluding any
extraordinary profits or losses; PROVIDED THAT there shall be included in
such determination for such period all such amounts attributable to any
Person acquired pursuant to an Acquisition to the extent such Person is not
subsequently sold or otherwise disposed of (other than in a transaction
pursuant to which the business of such Person is retained by the Parent or
a Subsidiary of the Parent) during such period for the portion of such
period prior to such Acquisition.
19
"Consolidated Net Worth" means, as of the date of any determination
thereof, the amount reflected as stockholders' equity upon a consolidated
balance sheet of the Parent and its Restricted Subsidiaries for such date
computed on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated)
under common control that, together with the Parent or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Documents" means this Agreement, the Notes, the Applications,
the Letters of Credit and each Subsidiary Guarantee Agreement delivered to
the Administrative Agent pursuant to Section 7.22 hereof.
"Credit Event" means the advancing of any Loan or Swingline Loan, the
continuation of or conversion into a Eurocurrency Loan denominated in an
Alternative Currency, or the issuance of, or extension of the expiration
date or increase in the amount of, any Letter of Credit.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an
Event of Default.
"Designated Disbursement Account" means the account of the Borrower
maintained with the Administrative Agent or its Affiliate and designated in
writing to the Administrative Agent as the Borrower's Designated
Disbursement Account (or such other account as the Borrower and the
Administrative Agent may otherwise agree).
"Departing Bank" means each "Bank" party to the Existing Credit
Agreement executing this Agreement as a Departing Bank, which "Bank" shall
cease to have a Commitment and shall have no rights or obligations
hereunder, except for such rights which by their terms survive the
termination of the Existing Credit Agreement.
"Domestic Rate" is defined in Section 1.4(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity
at a rate specified in Section 1.4(a) hereof.
"Effective Date" means the date hereof.
"Eligible Assignee" means (a) a Bank, (b) an Affiliate of a Bank,
(c) an Approved Fund, and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, (ii) the L/C Issuer,
(iii) the Swingline Bank, and (iv) unless an Event of Default has occurred
and is continuing, the Parent (each such approval not to be unreasonably
withheld or delayed and if it is delayed for more than five (5) Business
Days it is deemed to be given); PROVIDED that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any
Guarantor or any of the Parent's or Affiliates or Subsidiaries.
20
"Environmental and Health Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, judgments,
permits and other governmental rules or restrictions relating to human
health, safety (including without limitation occupational safety and health
standards), or the environment or to emissions, discharges or releases of
pollutants, contaminants, hazardous or toxic substances, wastes or any
other controlled or regulated substance into the environment, including
without limitation ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous or toxic substances, wastes or any other controlled
or regulated substance or the clean-up or other remediation thereof.
"ERISA" is defined in Section 5.8 hereof.
"Eurocurrency Loan" means a Loan bearing interest prior to maturity
at the rate specified in Section 1.4(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.4(b)
hereof.
"Event of Default" means any of the events or circumstances specified
in Section 8.1 hereof.
"Excess Interest" is defined in Section 12.24 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Letters of Credit" is defined in Section 1.3(a) hereof.
"Facility Fee" is defined in Section 2.1 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 1.4(a) hereof.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" means, subject to Section 4.3 hereof, generally accepted
accounting principles as in effect on the Effective Date, applied by the
Parent and its Subsidiaries on a basis consistent with the preparation of
the Parent's financial statements furnished to the Banks as described in
Section 5.4 hereof.
"Guarantor" means (i) the Parent, Xxxxx Xxxx LaSalle Americas, Inc.,
a Maryland corporation, LaSalle Investment Management, Inc., a Maryland
corporation, Xxxxx Lang LaSalle International, Inc., a Delaware
corporation, Xxxxx Xxxx LaSalle Co-Investment, Inc., a Maryland
corporation, Xxxxx Lang LaSalle Limited, a company organized under the laws
of England and Wales, Xxxxx Xxxx LaSalle GmbH, a company organized under
the laws of Germany and (ii) any other Subsidiary of the Borrower
designated by the Borrower as a Guarantor as required by Section 7.22
hereof.
"Guaranty" by any Person means (without duplication) all obligations
(other than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in
effect guaranteeing any Indebtedness, dividend or other financial
obligation (including, without limitation, limited or full recourse
obligations in connection with sales of receivables or any other Property)
of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, all obligations incurred
through an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any Property or assets
constituting security therefor, (ii) to advance or supply funds (x) for the
21
purchase or payment of such Indebtedness or obligation, or (y) to maintain
working capital or other balance sheet condition, or otherwise to advance
or make available funds for the purchase or payment of such Indebtedness or
obligation, or (iii) to lease property or to purchase Securities or other
property or services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of the primary obligor to
make payment of the Indebtedness or obligation, or (iv) otherwise to assure
the owner of the Indebtedness or obligation of the primary obligor against
loss in respect thereof. For the purpose of all computations made under
this Agreement, the amount of a Guaranty in respect of any obligation shall
be deemed to be equal to the maximum aggregate amount of such obligation at
the time the amount of the Guaranty is being determined or, if the Guaranty
is limited to less than the full amount of such obligation, the maximum
aggregate potential liability under the terms of the Guaranty at the time
the amount of the Guaranty is being determined.
"Hazardous Material" means any substance or material which is
hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls, dioxins and petroleum or its by-products or
derivatives (including crude oil or any fraction thereof) and (b) any other
material or substance classified or regulated as "hazardous" or "toxic"
pursuant to any Environmental and Health Law.
"Indebtedness" means for any Person (without duplication),
(i) obligations of such Person for borrowed money, (ii) obligations of such
Person representing the deferred purchase price of property or services
other than accounts payable arising in the ordinary course of business on
terms customary in the trade, (iii) obligations of such Person evidenced by
notes, acceptances, or other instruments of such Person or pursuant to
letters of credit issued for such Person's account, (iv) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such Person,
(v) Capitalized Lease Obligations of such Person, and (vi) obligations for
which such Person is obligated pursuant to a Guaranty. For the sake of
clarity, performance guarantees (other than guarantees of the payment of
Indebtedness), performance and surety bonds and environmental, "bad boy"
and completion guarantees provided by the Borrower, the Parent, or any
Subsidiary, pension liabilities of the Parent or any Subsidiary and
indebtedness consolidated onto the books and records of the Parent for GAAP
purposes under either EITF 04-05 or Fin 46R which otherwise would not be
consolidated, shall not be considered as Indebtedness.
"Interest Coverage Ratio" means as of the last day of any calendar
quarter the ratio of Adjusted EBIT for the four calendar quarters then
ended to Interest Expense for the same four calendar quarters then ended.
"Interest Expense" means, for any period, the sum of all interest
charges of the Parent and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Interest Period" is defined in Section 1.7 hereof.
"Investment" is defined in Section 7.14 hereof.
"L/C Commitment" means $100,000,000, as reduced pursuant to the terms
hereof.
"L/C Documents" means the Letters of Credit, any draft or other
document presented in connection with a drawing thereunder, the
Applications and this Agreement.
"L/C Issuer" means Bank of Montreal, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as
provided in Section 1.3(f) hereof and, solely with respect to the Existing
Letters of Credit, Xxxxxx X.X.
"L/C Obligations" means the aggregate U.S. Dollar Equivalent of the
undrawn face amounts of all outstanding Letters of Credit and all unpaid
Reimbursement Obligations.
22
"Lending Office" is defined in Section 9.4 hereof.
"Letter of Credit" is defined in Section 1.3(a) hereof.
"Level I" exists at any date if, at such date, the Total Funded Debt
to Adjusted EBITDA Ratio is less than 1.00 to 1.00.
"Level II" exists at any date if, at such date, Level I does not
exist and the Total Funded Debt to Adjusted EBITDA Ratio is less than 2.00
to 1.00.
"Level III" exists at any date if, at such date, neither Level I nor
Level II exists.
"LIBOR" is defined in Section 1.4(b) hereof.
"Lien" means any interest in Property securing an obligation owed to
a Person other than the owner of the Property, whether such interest is
based on the common law, statute or contract, including, but not limited
to, the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale, security agreement or trust receipt, or a lease,
consignment or bailment for security purposes. The term "Lien" shall also
include survey exceptions or encumbrances, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes,
or zoning or other restrictions as to the use of real properties. For the
purposes of this definition, a Person shall be deemed to be the owner of
any Property which it has acquired or holds subject to a conditional sale
agreement, Capital Lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person for
security purposes, and such retention of title shall constitute a "Lien."
"Loan" is defined in Section 1.1 hereof and, as so defined, includes
a Domestic Rate Loan or Eurocurrency Loan, each of which is a "type" of
Loan hereunder.
"Material Adverse Effect" means a material and adverse effect on the
business, operations, Property or financial or other condition of the
Parent and its Subsidiaries, taken as a whole.
"Maximum Rate" is defined in Section 12.24 hereof.
"Non-Real Estate Restricted Subsidiary" means a Restricted Subsidiary
which is not established solely for the purpose of making investments in
real estate and real estate related assets, including notes and other
securities, as permitted under Section 7.14(j) or Section 7.14(k) hereof.
"Note" means any promissory note issued at the request of a Bank
pursuant to Section 1.11 in the form of Exhibit A-1 evidencing such Bank's
Loans or Exhibit A-2 evidencing the Swingline Bank's Swingline Loans.
"Obligations" means all fees payable hereunder, all obligations of
the Borrower to pay principal or interest on Loans, Swingline Loans and L/C
Obligations, and all other payment obligations of the Borrower or any
Guarantor arising under or in relation to any Credit Document.
"Original Dollar Amount" means the amount of any Obligation
denominated in U.S. Dollars and, in relation to any Loan denominated in an
Alternative Currency, the U.S. Dollar Equivalent of such Loan on the day it
is advanced or continued for an Interest Period.
"Parent" means Xxxxx Lang LaSalle Incorporated, a Maryland
corporation.
"Participating Bank" is defined in Section 1.3(d) hereof.
"Participating Interest" is defined in Section 1.3(d) hereof.
23
"PBGC" is defined in Section 5.8 hereof.
"Percentage" means, for each Bank, the percentage of the Commitments
represented by such Bank's Commitment or, if the Commitments have been
terminated, the percentage held by such Bank (including through
participation interests in L/C Obligations and Swingline Loans) of the
aggregate principal amount of all outstanding Obligations.
"Permitted Adjustment" means, for any period, transition charges
incurred by the Parent or any Restricted Subsidiaries during such period
relating to the Acquisition by the Parent of all of the outstanding equity
of Xxxxxxxxx and Xxxx LLC, a Delaware limited liability company, to the
extent such charges do not exceed $10,000,000 in the aggregate for all
periods.
"Person" means an individual, partnership, corporation, limited
liability company, 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.
"Pricing Date" means, for any fiscal quarter of the Parent ended
after the date hereof, the latest date by which the Parent is required to
deliver a Compliance Certificate for such fiscal quarter pursuant to
Section 7.6(b). The Applicable Margin established on a Pricing Date shall
remain in effect until the next Pricing Date. If the Parent has not
delivered a Compliance Certificate by the date such Compliance Certificate
is required to be delivered under Section 7.6(b), Level III shall be deemed
to exist from such required delivery date until a Compliance Certificate is
delivered before the next Pricing Date. If the Parent subsequently
delivers such a Compliance Certificate before the next Pricing Date, the
Applicable Margin established by such late delivered Compliance Certificate
shall take effect from the date of delivery until the next Pricing Date.
In all other circumstances, the Applicable Margin established by a
Compliance Certificate shall be in effect from the Pricing Date that occurs
immediately after the end of the Parent's fiscal quarter covered by such
Compliance Certificate until the next Pricing Date.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now
owned or hereafter acquired.
"Quoted Rate" is defined in Section 1.2(c) hereof.
"Reimbursement Obligation" is defined in Section 1.3(c) hereof.
"Required Banks" means, as of the date of determination thereof,
Banks whose outstanding Loans and interest in Letters of Credit and Unused
Commitments constitute more than 51% of the sum of the total outstanding
Loans, interests in Letters of Credit, and Unused Commitments of the Banks.
"Restricted Subsidiary" means any Subsidiary of the Parent other than
an Unrestricted Subsidiary.
"Revaluation Date" means, with respect to any Letter of Credit
denominated in an Alternative Currency, (a) the date of issuance thereof,
(b) the date of each amendment thereto having the effect of increasing the
amount thereof, (c) the last day of each calendar month, and (d) each
additional date as the Administrative Agent or the Required Banks shall
specify.
24
"Revolving Credit" means the credit facility for making Loans and
Swingline Loans and issuing Letters of Credit described in Sections 1.1,
1.2 and 1.3 hereof.
"SEC" means the Securities and Exchange Commission.
"Security" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"Set-Off" is defined in Section 12.7 hereof.
"Subordinated Indebtedness" means any Indebtedness which is
subordinated in right of payment to the prior payment of the Loans and
other Obligations, in a principal amount and pursuant to documentation,
containing interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies and other material terms in form
and substance satisfactory to the Banks.
"Subsidiary" means a corporation, partnership or other entity that,
under GAAP, is included in the consolidated financial statements of the
Parent.
"Subsidiary Guarantee Agreement" means a letter to the Administrative
Agent in the form of Exhibit C hereto executed by a Subsidiary whereby it
acknowledges it is party hereto as a Guarantor under Section 11 hereof.
"Swingline" means the credit facility for making one or more
Swingline Loans described in Section 1.2 hereof.
"Swingline Bank" means BMO Capital Markets Financing, Inc., acting in
its capacity as the lender of Swingline Loans hereunder, or any successor
Bank acting in such capacity appointed pursuant to Section 12.12 hereof.
"Swingline Commitment" means $25,000,000 as the same may be reduced
from time to time pursuant to Section 1.13 hereof.
"Swingline Loan" is defined in Section 1.2 hereof.
"TARGET Settlement Day" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is
open.
"Termination Date" means June 6, 2012.
"Total Funded Debt" means, at any time the same is to be determined,
the aggregate of all Indebtedness of the Parent and its Restricted
Subsidiaries determined without duplication on a consolidated basis MINUS
(i) the aggregate stated amount of performance letters of credit issued for
the account of the Parent or any Restricted Subsidiary other than any such
Letter of Credit issued hereunder and (ii) the aggregate principal amount
of debt for borrowed money owed by the Parent or any Restricted Subsidiary
under overdraft facilities but only to the extent of cash held by the
Parent and its Restricted Subsidiaries on a consolidated basis.
"Total Funded Debt to Adjusted EBITDA Ratio" means as of the last day
of any calendar quarter the ratio of the Total Funded Debt as of such day
to Adjusted EBITDA for the four calendar quarters then ended.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of a member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
25
"Unrestricted Subsidiary" means any Subsidiary of the Parent (other
than a Guarantor or the Borrower) which (i) is established for the sole
purpose of investing in real estate and real estate related assets
including notes and other securities and (ii) is designated by the Parent
(with prior written notice to the Administrative Agent) to be an
Unrestricted Subsidiary; PROVIDED THAT no Subsidiary may be an Unrestricted
Subsidiary for more than 180 days.
"Unused Commitments" means, at any time, the difference between the
Commitments then in effect and the aggregate outstanding Original Dollar
Amount of Loans, and the U.S. Dollar Equivalent of L/C Obligations.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"U.S. Dollar Equivalent" means (a) the amount of any Obligation or
Letter of Credit denominated in U.S. Dollars, (b) in relation to any
Obligation or Letter of Credit denominated in an Alternative Currency, the
amount of U.S. Dollars which would be realized by converting an Alternative
Currency into U.S. Dollars at the exchange rate quoted to the
Administrative Agent, at approximately 11:00 a.m. (London time) three
Business Days prior (i) to the date on which a computation thereof is
required to be made and (ii) in the case of L/C Obligations, on any
Revaluation Date, in each case by major banks in the interbank foreign
exchange market for the purchase of U.S. Dollars for such Alternative
Currency.
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary
voting power for the election of directors or similar governing body of
such Person, other than stock or other equity interests having such power
only by reason of the happening of a contingency.
"Welfare Plan" means a "welfare plan", as defined in Section 3(1) of
ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the
Parent means a Subsidiary of which all of the issued and outstanding shares
of stock or other equity interests (other than directors' qualifying shares
as required by law) shall be owned by the Parent and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 4.2. INTERPRETATION. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms
defined. All references to times of day in this Agreement shall be
references to Chicago, Illinois time unless otherwise specifically
provided. Where the character or amount of any asset or liability or item
of income or expense is required to be determined or any consolidation or
other accounting computation is required to be made for the purposes of
this Agreement, the same shall be done in accordance with GAAP, to the
extent applicable, except where such principles are inconsistent with the
specific provisions of this Agreement.
SECTION 4.3. CHANGE IN ACCOUNTING PRINCIPLES. If, after the date of
this Agreement, there shall occur any change in GAAP from those used in the
preparation of the financial statements referred to in Section 7.6 hereof
and such change shall result in a material change in the method of
calculation of any financial covenant, standard or term found in this
Agreement, either the Borrower or the Required Banks may by notice to the
Banks and the Borrower, respectively, require that the Banks and the
Borrower negotiate in good faith to amend such covenants, standards, and
terms so as equitably to reflect such change in accounting principles, with
the desired result being that the criteria for evaluating the financial
condition of the Parent and its Subsidiaries shall be the same as if such
change had not been made. No delay by the Borrower or the Required Banks
in requiring such negotiation shall limit their right to so require such a
negotiation at any time after such a change in accounting principles.
Until any such covenant, standard, or term is amended in accordance with
this Section 4.3, financial covenants shall be computed and determined in
26
accordance with GAAP without giving effect to the relevant change in
accounting principles. Without limiting the generality of the foregoing,
the Borrower shall neither be deemed to be in compliance with any financial
covenant hereunder nor out of compliance with any financial covenant
hereunder if such state of compliance or noncompliance, as the case may be,
would not exist but for the occurrence of a change in accounting principles
after the date hereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
Each of the Borrower and the Parent hereby represents and warrants to
the Administrative Agent, each Bank and the L/C Issuer as to itself and,
where the following representations and warranties apply to Subsidiaries,
as to each of its Subsidiaries, as follows:
SECTION 5.1. CORPORATE ORGANIZATION AND AUTHORITY. The Parent is
duly organized and existing in good standing under the laws of the State of
Maryland; has all necessary corporate power to carry on its present
business; and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing,
qualification or good standing necessary and in which the failure to be so
licensed, qualified or in good standing would reasonably be expected to
have a Material Adverse Effect. The Borrower is duly incorporated and
existing under the laws of The Netherlands as a private company with
limited liability (a besloten vennootschap met beperkte aansprakelijkheid);
has all necessary corporate power to carry on its present business; and is
duly licensed or qualified and in good standing in each jurisdiction in
which the nature of the business transacted by it or the nature of the
Property owned or leased by it makes such licensing, qualification or good
standing necessary and in which the failure to be so licensed, qualified or
in good standing would reasonably be expected to have a Material Adverse
Effect.
SECTION 5.2. SUBSIDIARIES. Schedule 5.2 (as updated from time to
time pursuant to Section 7.22) hereto identifies each Guarantor, the
jurisdiction of its organization, the percentage of issued and outstanding
shares of each class of its capital stock or equity interests, as the case
may be, owned by the Parent and the Subsidiaries and, if such percentage is
not 100% (excluding directors' qualifying shares as required by law), a
description of each class of its authorized capital stock and other equity
interests and the number of shares of each class issued and outstanding.
Except to the extent that would not reasonably be expected to have a
Material Adverse Effect, each Subsidiary is duly incorporated or formed and
existing in good standing as a corporation, limited partnership, limited
liability company or other entity under the laws of the jurisdiction of its
incorporation or formation, has all necessary corporate or other power to
carry on its present business, and is duly licensed or qualified and in
good standing in each jurisdiction in which the nature of the business
transacted by it or the nature of the Property owned or leased by it makes
such licensing or qualification necessary. All of the issued and
outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and, if such
Subsidiary is a corporation, nonassessable. All such shares owned by the
Parent are owned beneficially, and of record, free of any Lien.
SECTION 5.3. CORPORATE AUTHORITY AND VALIDITY OF OBLIGATIONS. The
Borrower has full power and authority to enter into this Agreement and the
other Credit Documents to which it is a party, to make the borrowings
herein provided for, to issue its Notes in evidence thereof, to apply for
the issuance of the Letters of Credit, and to perform all of its
obligations under the Credit Documents to which it is a party. Each
Guarantor has full power and authority to enter into this Agreement as a
signatory hereto or pursuant to a Subsidiary Guarantee Agreement and to
perform all of its obligations hereunder. Each Credit Document to which
the Borrower is a party has been duly authorized, executed and delivered by
27
the Borrower and constitutes valid and binding obligations of the Borrower
in accordance with its terms. Each Credit Document to which a Guarantor is
a party has been duly authorized, executed and delivered by such Guarantor
and constitutes valid and binding obligations of such Guarantor in
accordance with its terms. No Credit Document to which the Borrower is a
party, nor the performance or observance by the Borrower of any of the
matters or things therein provided for, contravenes any provision of law or
any provision of the articles of association ("statuten") of the Borrower
or (individually or in the aggregate) any material Contractual Obligation
of or binding upon the Borrower or any of its Properties or results in or
requires the creation or imposition of any Lien on any of the Properties or
revenues of the Borrower. No Credit Document to which a Guarantor is a
party, nor the performance or observance by such Guarantor of any of the
matters or things therein provided for, contravenes any provision of law or
any charter or by-law provision of such Guarantor or (individually or in
the aggregate) any material Contractual Obligation of or binding upon such
Guarantor or any of its Properties or results in or requires the creation
or imposition of any Lien on any of the Properties or revenues of such
Guarantor.
SECTION 5.4. FINANCIAL STATEMENTS. All financial statements
heretofore delivered to the Banks showing historical performance for each
of the Parent's fiscal years ending on or before December 31, 2006, have
been prepared in accordance with GAAP applied on a basis consistent, except
as otherwise noted therein, with that of the previous fiscal year. Each of
such financial statements fairly presents on a consolidated basis the
financial condition of the Parent and its Subsidiaries as of the dates
thereof and the results of operations for the periods covered thereby. The
Parent and its Subsidiaries had, as of the date of the relevant financial
statements no material contingent liabilities other than those disclosed in
such financial statements referred to in this Section 5.4 or in comments or
footnotes thereto, or in any report supplementary thereto, heretofore
furnished to the Banks. Since December 31, 2006, there has been no
material adverse change which has not been disclosed to the Banks in the
business, operations, Property or financial or other condition, or business
prospects, of the Parent and its Subsidiaries on a consolidated basis.
SECTION 5.5. NO LITIGATION; NO LABOR CONTROVERSIES.
(a) Except as disclosed in the Parent's periodic current reports
filed with the SEC prior to the Effective Date, there is no litigation or
governmental proceeding pending, or to the knowledge of the Parent or any
Guarantor threatened, against the Parent or any Subsidiary which, if
adversely determined, would reasonably be expected (individually or in the
aggregate) to have a Material Adverse Effect.
(b) There are no labor controversies pending or, to the best
knowledge of the Borrower, Parent or any Guarantor, threatened against the
Parent or any Subsidiary which would reasonably be expected (insofar as the
Borrower or Parent may reasonably foresee) to have a Material Adverse
Effect.
SECTION 5.6. TAXES. The Parent and its Subsidiaries have filed all
United States federal tax returns, and all other tax returns, required to
be filed and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Parent or any Subsidiary, except such
taxes, if any, as are being contested in good faith and for which adequate
reserves have been provided. No notices of tax liens have been filed and
no claims are being asserted concerning any such taxes, which liens or
claims are material to the financial condition of the Parent and its
Subsidiaries on a consolidated basis taken as a whole. The charges,
accruals and reserves on the books of the Parent and its Subsidiaries for
any taxes or other governmental charges are adequate.
28
SECTION 5.7. APPROVALS. No authorization, consent, license,
exemption, filing or registration with any court or governmental
department, agency or instrumentality, nor any approval or consent of the
stockholders of the Parent or any Subsidiary or from any other Person, is
necessary to the valid execution, delivery or performance by the Parent or
any Subsidiary of any Credit Document to which it is a party except for
such approvals and consents which have been obtained and are in full force
and effect.
SECTION 5.8. ERISA. With respect to each Plan, the Parent and each
other member of the Controlled Group has fulfilled its obligations under
the minimum funding standards of and is in compliance in all material
respects with the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and with the Code to the extent applicable to it and has
not incurred any liability to the Pension Benefit Guaranty Corporation
("PBGC") or a Plan under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA. Neither the Parent nor any
Subsidiary has any contingent liabilities for any post-retirement benefits
under a Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
SECTION 5.9. GOVERNMENT REGULATION. Neither the Parent nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or to the extent a Subsidiary is an
"investment company," it is properly registered with the SEC.
SECTION 5.10. MARGIN STOCK. Neither the Parent nor any Subsidiary
is engaged principally, or as one of its primary activities, in the
business of extending credit for the purpose of purchasing or carrying
margin stock ("margin stock" to have the same meaning herein as in
Regulation U of the Board of Governors of the Federal Reserve System). The
Borrower will not use the proceeds of any Loan, Swingline Loan or Letter of
Credit in a manner that violates any provision of Regulation U or X of the
Board of Governors of the Federal Reserve System. Margin stock (as
hereinabove defined) constitutes less than 25% of the assets of the Parent
and its Subsidiaries which are subject to any limitation on sale, pledge or
other restriction hereunder.
SECTION 5.11. LICENSES AND AUTHORIZATIONS; COMPLIANCE WITH
ENVIRONMENTAL AND HEALTH LAWS.
(a) The Parent and each of its Subsidiaries has all necessary
licenses, permits and governmental authorizations to own and operate its
Properties and to carry on its business as currently conducted and
contemplated, except to the extent the failure to have such licenses,
permits or authorizations would not reasonably be expected to have a
Material Adverse Effect.
(b) To the best of the Borrower's and each Guarantor's knowledge,
the business and operations of the Parent and each Subsidiary comply in all
respects with all applicable Environmental and Health Laws, except where
the failure to so comply would not (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Parent nor any Subsidiary has given, nor is it
required to give, nor has it received, any notice, letter, citation, order,
warning, complaint, inquiry, claim or demand to or from any governmental
entity or in connection with any court proceeding with respect to a matter
which would reasonably be expected to have a Material Adverse Effect
claiming that: (i) the Parent or any Subsidiary has violated, or is about
to violate, any Environmental and Health Law; (ii) there has been a
release, or there is a threat of release, of Hazardous Materials from the
Parent's or any Subsidiary's Property, facilities, equipment or vehicles;
(iii) the Parent or any Subsidiary may be or is liable, in whole or in
part, for the costs of cleaning up, remediating or responding to a release
29
of Hazardous Materials; or (iv) any of the Parent's or any Subsidiary's
property or assets are subject to a Lien in favor of any governmental
entity for any liability, costs or damages, under any Environmental and
Health Law arising from, or costs incurred by such governmental entity in
response to, a release of a Hazardous Materials.
SECTION 5.12. OWNERSHIP OF PROPERTY; LIENS. The Parent and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property owned or leased by it, and good
title to or valid leasehold interests in all its other Property. None of
the Parent's real property is subject to any Lien or Capitalized Lease
Obligation except as permitted in Section 7.9, and none of the Parent's or
any Restricted Subsidiary's other Property is subject to any Lien, except
as permitted in Section 7.9.
SECTION 5.13. NO BURDENSOME RESTRICTIONS; COMPLIANCE WITH
AGREEMENTS. Neither the Parent nor any Subsidiary is (a) party or subject
to any law, regulation, rule or order, or any Contractual Obligation that
(individually or in the aggregate) would reasonably be expected to have a
Material Adverse Effect or (b) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
any agreement to which it is a party, which default would reasonably be
expected to have a Material Adverse Effect.
SECTION 5.14. ACCURACY OF INFORMATION. No information, exhibit or
report furnished by the Parent or Borrower to any Bank or the
Administrative Agent in connection with a Loan, Swingline Loan or Letter of
Credit or the negotiation of the Credit Documents contained any material
misstatement of fact or omitted to state any fact necessary to make the
statements contained therein not misleading, the Administrative Agent and
the Banks acknowledging that as to any projections furnished to the
Administrative Agent and the Banks, the Parent only represents that the
same were prepared on the basis of information and estimates the Parent
believed to be reasonable.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan
or any Swingline Loan, or of the Administrative Agent to issue, extend the
expiration date (including by not giving notice of non-renewal) of or
increase the amount of any Letter of Credit, shall be subject to the
following conditions precedent:
SECTION 6.1. INITIAL CREDIT EVENT. Before or concurrently with the
first Credit Event:
(a) The Administrative Agent shall have received this
Agreement duly executed by Borrower, each Guarantor, each Departing
Bank, and each Bank;
(b) The Administrative Agent shall have received for each
Bank in form and substance satisfactory to the Administrative Agent
the favorable written opinion of (i) Xxxxxx X. Xxxx, Esquire, Deputy
Global General Counsel to the Borrower and Guarantors, (ii) Loyens &
Loeff, Dutch counsel to the Borrower, (iii) Xxxxx & XxXxxxxx, English
counsel to Xxxxx Lang LaSalle Limited, and (iv) Lovells, German
counsel to Xxxxx Xxxx LaSalle GmbH;
(c) The Administrative Agent shall have received for each
Bank copies of the notarial deed of incorporation (including the
articles of association) of the Borrower, certified by a Dutch civil
law notary to be true copies and an original extract of the
commercial register of the chamber of commerce of Amsterdam relating
to the Borrower;
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(d) The Administrative Agent shall have received copies of
the Certificate of Incorporation and bylaws (or equivalent) of each
Guarantor, certified in each instance by its secretary or an
assistant secretary (or its equivalent);
(e) The Administrative Agent shall have received copies,
certified by the secretary or assistant secretary (or its equivalent)
of each Guarantor, of its board of directors' resolutions (or its
equivalent) authorizing the execution of the Credit Documents to
which it is a party;
(f) The Administrative Agent shall have received
certificates, executed by the secretary or assistant secretary of
each Guarantor, which shall identify by name and title and bear the
signature of the partners or officers authorized to sign the Credit
Documents to which it is a party;
(g) The Administrative Agent shall have received copies of
the certificates of good standing (to the extent relevant) for each
Guarantor (dated no earlier than 30 days prior to the date hereof)
from the office of the secretary of the state of its incorporation or
organization;
(h) The Administrative Agent shall have received to the
extent requested by any Bank, such Bank's duly executed Notes of the
Borrower dated the date hereof and otherwise in compliance with the
provisions of Section 1.11(d) hereof;
(i) The Administrative Agent shall have received for each
Bank a list of the Borrower's Authorized Representatives;
(j) All legal matters incident to the execution and delivery
of the Credit Documents shall be satisfactory to the Banks; and
(k) The Administrative Agent and each Bank shall have
received for each fiscal year of the Parent through the fiscal year
ending December 31, 2010, a business plan showing in reasonable
detail projected operating budgets, consolidated and consolidating
revenues, expenses, and balance sheets on a quarter-by-quarter basis,
such business plan to be in form and substance satisfactory to the
Administrative Agent and each Bank and shall include a summary of all
assumptions made in preparing such business plan.
SECTION 6.2. ALL CREDIT EVENTS. As of the time of each Credit Event
hereunder:
(a) In the case of a Borrowing, the Administrative Agent
shall have received the notice required by Section 1.6 hereof (or, in
the case of Swingline Loans, Section 1.2 hereof), in the case of the
issuance of any Letter of Credit the L/C Issuer shall have received a
duly completed Application for a Letter of Credit and, in the case of
an extension or increase in the amount of a Letter of Credit, a
written request therefor, in a form acceptable to the L/C Issuer;
(b) In the case of (i) a Borrowing of Loans or Swingline
Loans that would increase the aggregate principal amount of Loans or
Swingline Loans outstanding (after giving effect to concurrent
repayment of Loans or Swingline Loans), (ii) a Borrowing of
Eurocurrency Loans denominated in an Alternative Currency or (iii)
the increase in or issuance of a Letter of Credit, each of the
representations and warranties set forth in Section 5 hereof shall be
and remain true and correct in all material respects as of said time,
except that if any such representation or warranty relates solely to
an earlier date it need only remain true as of such date, taking into
account any amendments to such Section (including, without
limitation, any amendments to the Schedules referenced therein) made
after the date of this Agreement in accordance with the provision
hereof;
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(c) In the case of (i) a Borrowing of Loans or Swingline
Loans that would increase the aggregate principal amount of Loans or
Swingline Loans outstanding (after giving effect to concurrent
repayment of Loans or Swingline Loans), (ii) a Borrowing of
Eurocurrency Loans denominated in an Alternative Currency or (iii)
the increase in or issuance of a Letter of Credit, no Default or
Event of Default shall have occurred and be continuing or would occur
as a result of such Credit Event; and
(d) Such Credit Event shall not violate any order, judgment
or decree of any court or other authority or any provision of law or
regulation applicable to the Administrative Agent or any Bank
(including, without limitation, Regulation U of the Board of
Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the
issuance of, increase in the amount of, or extension of the expiration date
of, a Letter of Credit shall be deemed to be a representation and warranty
by the Borrower on the date of such Credit Event as to the facts specified
in paragraphs (b) and (c) of this Section 6.2.
SECTION 7. COVENANTS.
Each of the Borrower and the Parent covenants and agrees that, so
long as any Note, Loan, Swingline Loan or L/C Obligation is outstanding
hereunder, or any Commitment is available to or in use by the Borrower
hereunder, except to the extent compliance in any case is waived in writing
by the Required Banks:
SECTION 7.1. CORPORATE EXISTENCE; SUBSIDIARIES. The Parent shall,
and shall cause each of its Restricted Subsidiaries to, preserve and
maintain its existence, subject to the provisions of Section 7.12 hereof;
PROVIDED THAT the Parent shall not be required to preserve the existence of
any Restricted Subsidiary if the maintenance or preservation thereof, as
determined by the Board of Directors of the Parent, is no longer desirable
in the conduct of the business of the Parent and its Subsidiaries, taken as
a whole.
SECTION 7.2. MAINTENANCE. The Parent will maintain, preserve and
keep its Property, necessary to the proper conduct of its business in
reasonably good repair, working order and condition and will from time to
time make all reasonably necessary repairs, renewals, replacements,
additions and betterments thereto so that at all times such plants,
properties and equipment shall be reasonably preserved and maintained, and
the Parent will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; PROVIDED, HOWEVER, that nothing in this
Section 7.2 shall prevent the Parent or a Subsidiary from discontinuing the
operation or maintenance of any such Properties if such discontinuance
would not reasonably be expected to have a Material Adverse Effect.
SECTION 7.3. TAXES. The Parent will duly pay and discharge, and
will cause each of its Subsidiaries duly to pay and discharge, all taxes,
assessments, and governmental charges or levies upon or against it or
against its Properties, in each case before the same becomes delinquent and
before penalties accrue thereon, unless and to the extent that the same is
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor on the books of the
Parent.
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SECTION 7.4. ERISA. The Parent will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might
result in the imposition of a Lien against any of its Property. The Parent
will, and will cause each of its Subsidiaries to promptly notify the
Administrative Agent of (i) the occurrence of any reportable event (as
defined in ERISA) affecting a Plan, other than any such event of which the
PBGC has waived notice by regulation, (ii) receipt of any notice from PBGC
of its intention to seek termination of any Plan or appointment of a
trustee therefor, (iii) its intention to terminate or withdraw from any
Plan, and (iv) the occurrence of any event affecting any Plan which could
result in the incurrence by the Parent or any of its Subsidiaries of any
material liability, fine or penalty, or any material increase in the
contingent liability of the Parent or any of its Subsidiaries under any
post-retirement Welfare Plan benefit. The Administrative Agent will
promptly distribute to each Bank any notice it receives from the Parent
pursuant to this Section 7.4.
SECTION 7.5. INSURANCE. The Parent will maintain, and will cause
each of its Subsidiaries to maintain, insurance with good and responsible
insurance companies, covering insurable Property owned by it with respect
to such risks as is consistent with sound business practice. The Parent
will upon request of any Bank furnish to such Bank a summary setting forth
the nature and extent of the insurance maintained pursuant to this
Section 7.5.
SECTION 7.6. FINANCIAL REPORTS AND OTHER INFORMATION.
(a) The Parent will maintain a system of accounting in accordance
with GAAP and will furnish to the Banks and their respective duly
authorized representatives such information respecting the business and
financial condition of the Parent and its Subsidiaries as any Bank may
reasonably request; and without any request, the Parent will furnish each
of the following to each Bank:
(i) within 60 days after the end of each of the first three
quarterly fiscal periods of the Parent, a copy of the Parent's Form
10-Q Report filed with the SEC;
(ii) within 90 days after the end of each fiscal year of the
Parent, a copy of the Parent's Form 10-K Report filed with the SEC,
prepared by the Parent and containing or including as an exhibit
thereto the Parent's financial statements for such fiscal year as
certified by independent public accountants of recognized national
standing selected by the Parent in accordance with GAAP with such
accountants' unqualified opinion to the effect that the financial
statements have been prepared in accordance with GAAP and present
fairly in all material respects in accordance with GAAP the
consolidated financial position of the Parent and its Subsidiaries as
of the close of such fiscal year and the results of their operations
and cash flows for the fiscal year then ended and that an examination
of such accounts in connection with such financial statements has
been made in accordance with generally accepted auditing standards
and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(iii) within the period provided in subsection (ii) above, the
written statement of the accountants who certified the audit report
thereby required that in the course of their audit they have obtained
no knowledge of any Default or Event of Default with respect to
Sections 7.11, 7.15, 7.16, and 7.17 or, if such accountants have
obtained knowledge of any such Default or Event of Default, they
shall disclose in such statement the nature and period of the
existence thereof;
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(iv) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports the Parent
sends to its shareholders, and copies of all other regular, periodic
and special reports and all registration statements the Parent files
with the SEC or any successor thereto, or with any national
securities exchanges; and
(v) within 90 days after the beginning of each fiscal year of
the Parent an operating budget for the Parent and its Subsidiaries
for such fiscal year of the Parent.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) or (ii) of this Section 7.6 shall be accompanied by a
Compliance Certificate signed by the Parent's chief financial officer,
treasurer or controller showing the Parent's compliance with the covenants
set forth in Sections 7.14(k), 7.15, 7.16, and 7.17 hereof.
(c) The Parent will promptly (and in any event within three
Business Days after any of the President, chief executive officer, chief
financial officer, chief operating officer, treasurer, assistant treasurer,
or controller of the Parent has knowledge thereof) give notice to the
Administrative Agent:
(i) of the occurrence of any Change of Control, Default or
Event of Default;
(ii) of any default or event of default under any Contractual
Obligation of the Parent or any of its Subsidiaries, except for a
default or event of default which is not reasonably expected to have
a Material Adverse Effect;
(iii) of the occurrence of an event or condition which would
reasonably be expected to result in a Material Adverse Effect; and
(iv) of any litigation or governmental proceeding of the type
described in Section 5.5 hereof.
SECTION 7.7. BANK INSPECTION RIGHTS. Upon reasonable notice from
any Bank, the Parent will permit such Bank (and such Persons as any Bank
may designate) during normal business hours and under the Parent's
guidance, to visit and inspect any of the Property of the Parent or any of
its Subsidiaries, to examine all of their books of account, records,
reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their
respective officers, employees and, after the occurrence and during the
continuance of an Event of Default, independent public accountants.
SECTION 7.8. CONDUCT OF BUSINESS. Neither the Parent nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Parent and its Subsidiaries taken as a whole
would be substantially changed from that conducted on the date hereof.
SECTION 7.9. LIENS. The Parent will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, permit to exist or to be
incurred any Lien of any kind on any Property owned by the Parent or any
Restricted Subsidiary; PROVIDED, HOWEVER, that this Section 7.9 shall not
apply to nor operate to prevent:
(a) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security
obligations, taxes, assessments, statutory obligations or other
similar charges, good faith deposits, pledges or Liens in connection
with bids, tenders, contracts or leases to which the Parent or any
Subsidiary is a party (other than contracts for borrowed money), or
other deposits required to be made in the ordinary course of
business; PROVIDED that in each case the obligation secured is not
overdue or, if overdue, is being contested in good faith by
appropriate proceedings and for which reserves in conformity with
GAAP have been provided on the books of the Parent;
34
(b) mechanics', workmen's, materialmen's, landlords',
carriers' or other similar Liens arising in the ordinary course of
business (or deposits to obtain the release of such Liens) securing
obligations not due or, if due, being contested in good faith by
appropriate proceedings and for which reserves in conformity with
GAAP have been provided on the books of the Parent;
(c) Liens for taxes or assessments or other government
charges or levies on the Parent or any Subsidiary of the Parent or
their respective Properties, not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings and for which reserves in
conformity with GAAP have been provided on the books of the Parent;
(d) Liens arising out of judgments or awards against the
Parent or any Subsidiary of the Parent, or in connection with surety
or appeal bonds in connection with bonding such judgments or awards,
the time for appeal from which or petition for rehearing of which
shall not have expired or with respect to which the Parent or such
Subsidiary shall be prosecuting an appeal or proceeding for review,
and with respect to which it shall have obtained a stay of execution
pending such appeal or proceeding for review; PROVIDED that the
aggregate amount of liabilities (including interest and penalties, if
any) of the Parent and its Subsidiaries secured by such Liens shall
not exceed $5,000,000 at any one time outstanding;
(e) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties which are necessary for the conduct of the
activities of the Parent and any Subsidiary of the Parent or which
customarily exist on properties of corporations engaged in similar
activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of the
Parent or any Subsidiary of the Parent;
(f) Liens on Property (not constituting Investments) of the
Parent or any of its Subsidiaries created solely for the purpose of
securing Indebtedness permitted by Section 7.19(h) hereof,
representing or incurred to finance, refinance or refund the purchase
price of Property, PROVIDED that no such Lien shall extend to or
cover other Property of the Parent or such Subsidiary other than the
respective Property so acquired, and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the
original purchase price of such Property; and
(g) Liens not otherwise permitted under this Section 7.9 on
Property (other than (i) shares of stock in any Wholly-Owned
Subsidiary and (ii) receivables, inventory and similar working
capital assets) securing Indebtedness that, when combined with
Capitalized Lease Obligations permitted under Section 7.11, is in an
aggregate principal amount not exceeding $15,000,000 at any time
outstanding.
SECTION 7.10. USE OF PROCEEDS; REGULATION U. The proceeds of each
Borrowing, and the credit provided by Letters of Credit, will be used by
the Borrower, the Parent and the Parent's Subsidiaries for working capital,
repayment of other Indebtedness, and other general corporate purposes
including acquisitions of businesses and other investments permitted by
Section 7.14. The Borrower will not use any part of the proceeds of any of
the Borrowings or of the Letters of Credit directly or indirectly to
purchase or carry any margin stock (as defined in Section 5.10 hereof) or
to extend credit to others for the purpose of purchasing or carrying any
such margin stock.
35
SECTION 7.11. SALES AND LEASEBACKS. The Parent will not, nor will
it permit any Restricted Subsidiary to, enter into any arrangement with any
bank, insurance company or other lender or investor providing for the
leasing by the Parent or any Subsidiary of any Property theretofore owned
by it and which has been or is to be sold or transferred by such owner to
such lender or investor, except to the extent the aggregate principal
amount of Capitalized Lease Obligations under such leases PLUS the
outstanding principal amount of Indebtedness secured by Liens permitted by
Section 7.9(g) (and not separately permitted by other provisions of Section
7.9) does not exceed $25,000,000 at any time outstanding; PROVIDED THAT the
foregoing shall not operate to prevent any such transaction between the
Parent and any Restricted Subsidiary or between any two Restricted
Subsidiaries to the extent such transaction would otherwise be permitted by
the terms hereof.
SECTION 7.12. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS.
(a) The Parent will not, and will not permit any of its Restricted
Subsidiaries to, (i) consolidate with or be a party to a merger with any
other Person or (ii) sell, lease or otherwise dispose of all or a
"substantial part" of the consolidated assets of the Parent and its
Restricted Subsidiaries; PROVIDED, HOWEVER, that:
(1) any Restricted Subsidiary of the Parent may merge or
consolidate with or into or sell, lease or otherwise convey its
assets to the Parent or any Restricted Subsidiary of which the Parent
directly or indirectly holds at least the same percentage equity
ownership or is entitled through ownership of interests,
contractually or otherwise, to at least the same economic interest;
PROVIDED THAT in any such merger or consolidation involving the
Borrower, the Borrower or the Parent shall be the surviving or
continuing corporation;
(2) The Parent and its Subsidiaries may dissolve or liquidate
any Restricted Subsidiary of the Parent (other than the Borrower) or
of such Subsidiary so long as all the assets of such dissolved or
liquidated Restricted Subsidiary (i) were either investments in real
estate, or real estate related assets, including notes and other
securities all of which have been sold or (ii) are concurrently
transferred to the Parent or any Restricted Subsidiary of which the
Parent directly or indirectly holds at least the same percentage
equity ownership or is entitled through ownership of interests,
contractually or otherwise, to at least the same economic interest;
PROVIDED THAT if any Guarantor (other than the Parent) is dissolved
or liquidated all of such Guarantor's assets shall be concurrently
transferred to the Borrower or another Guarantor;
(3) The Parent or any Restricted Subsidiary of the Parent may
consolidate or merge with any other Person if the Borrower or such
Restricted Subsidiary or, in the case of such a transaction involving
the Borrower, the Parent or the Borrower is the surviving or
continuing corporation and at the time of such consolidation or
merger, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing;
(4) The Parent and its Subsidiaries may sell or otherwise
dispose of any asset which, in the reasonable judgment of such
Person, have become obsolete or worn out;
(5) The Parent and its Subsidiaries may sell Property to the
extent permitted by Section 7.11;
(6) The Parent and its Subsidiaries may sell delinquent notes
or accounts receivables in the ordinary course of business for
purposes of collection only (and not for the purpose of any bulk sale
or securitization); and
36
(7) The Parent and its Subsidiaries may in a fair market
value transaction, sell or otherwise dispose of any direct or
indirect Investment in real estate or real estate related assets,
including notes and other securities;
As used in this Section 7.12(a), a sale, lease, transfer or disposition of
assets during any fiscal year shall be deemed to be of a "substantial part"
of the consolidated assets of the Parent and its Restricted Subsidiaries if
the net book value of such assets, when added to the net book value of all
other assets (not including dispositions of stock in Subsidiaries permitted
under Section 7.12(b) hereof) sold, leased, transferred or disposed of by
the Parent and its Restricted Subsidiaries during such fiscal year (other
than inventory in the ordinary course of business) exceeds 5% of the total
assets of the Parent and its Restricted Subsidiaries, determined on a
consolidated basis as of the last day of the immediately preceding fiscal
year.
(b) Except with respect to the syndication or other disposition of
Subsidiaries or interests in Subsidiaries through which direct or indirect
Investments in real estate or real estate related assets, including notes
and other securities, are made, the Parent will not sell, transfer or
otherwise dispose of, or permit any Restricted Subsidiary to issue, sell,
transfer or otherwise dispose of, any shares of stock of any class
(including as "stock" for purposes of this Section, any warrants, rights or
options to purchase or otherwise acquire stock or other Securities
exchangeable for or convertible into stock) of any Subsidiary, except to
the Parent or any Restricted Subsidiary of which the Parent directly or
indirectly holds at least the same percentage equity ownership or is
entitled through ownership of interests, contractually or otherwise, to at
least the same economic interest and except for the purpose of qualifying
directors.
SECTION 7.13. USE OF PROPERTY AND FACILITIES; ENVIRONMENTAL AND
HEALTH AND SAFETY LAWS.
(a) The Parent will, and will cause each of its Subsidiaries to,
comply in all material respects with the requirements of all Environmental
and Health Laws applicable to or pertaining to the Properties or business
operations of the Parent or any Subsidiary of the Parent to the extent
noncompliance would reasonably be expected to have a Material Adverse
Effect. Without limiting the foregoing, the Parent will not, and will not
permit any Person to, except in accordance with applicable law, dispose of
any Hazardous Material into, onto or upon any real property owned or
operated by the Parent or any of its Subsidiaries if such disposal would
reasonably be expected to have a Material Adverse Effect.
(b) The Parent will promptly provide the Banks with copies of any
notice or other instrument of the type described in Section 5.11(c) hereof,
and in no event later than five (5) Business Days after the President,
chief executive officer, chief financial officer, chief operating officer,
treasurer, assistant treasurer or controller of the Parent receives such
notice or instrument.
SECTION 7.14. INVESTMENTS, ACQUISITIONS, LOANS, ADVANCES AND
GUARANTIES. The Parent will not, nor will it permit any Subsidiary to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or
loans or advances to, any other Person (other than the Parent or a
Subsidiary of the Parent), or acquire all or any substantial part of the
assets or business of any other Person (other than the Parent or a
Subsidiary of the Parent) or division thereof, or be or become liable as
endorser, guarantor, surety or otherwise (such as liability as a general
partner) for any debt, obligation or undertaking of any other Person (other
than the Parent or a Subsidiary of the Parent), or otherwise agree to
provide funds for payment of the obligations of another (other than the
Parent or a Subsidiary of the Parent), or supply funds thereto or invest
therein or otherwise assure a creditor of another (other than the Parent or
37
a Subsidiary of the Parent) against loss, or apply for or become liable to
the issuer of a letter of credit which supports an obligation of another
(other than the Parent or a Subsidiary of the Parent) (cumulatively, all of
the foregoing, being "Investments"); PROVIDED, HOWEVER, that the foregoing
provisions shall not apply to nor operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America PROVIDED that any such obligation matures within one year
from the date it is acquired by the Parent or Subsidiary;
(b) investments in commercial paper rated at least P-1 by
Xxxxx'x Investors Service Inc. or A-1 by Standard & Poor's Ratings
Services Group, a division of The XxXxxx-Xxxx Companies, Inc.
maturing within one year of its date of issuance;
(c) demand deposit accounts maintained in the ordinary course
of business;
(d) investments in certificates of deposit issued by and time
deposits with any commercial bank (whether domestic or foreign)
having capital and surplus of not less than $50,000,000 maturing
within one year from the date of issuance thereof or in banker's
acceptances endorsed by any Bank or other such commercial bank and
maturing within six months of the date of acceptance;
(e) investments in certificates of deposit issued by and time
deposits with any commercial bank (whether domestic or foreign)
having capital and surplus in excess of $10,000,000 but less than
$50,000,000, which deposits shall not exceed $500,000 in the
aggregate;
(f) investments in repurchase obligations with a term of not
more than seven (7) days for underlying securities of the types
described in subsection (a) above entered into with any bank meeting
the qualifications specified in subsection (d) above, PROVIDED all
such agreements require physical delivery of the securities securing
such repurchase agreement, except those delivered through the Federal
Reserve Book Entry System;
(g) investments in money market funds that invest solely, and
which are restricted by their respective charters to invest solely,
in investments of the type described in the immediately preceding
subsections (a), (b), (c) and (d) above;
(h) endorsements of negotiable instruments for collection in
the ordinary course of business;
(i) Loans and advances to employees and relocation companies
in the ordinary course of business not to exceed $30,000,000 in the
aggregate at any one time outstanding, PROVIDED that loans and
advances to current or new employees that are made in lieu of a
signing bonus or similar compensation or part of a retention
agreement shall not be considered a loan or advance for purposes of
this Section 7.14 so long as the terms of such loan or advance
provide that such loan or advance may be forgiven and converted to
compensation upon meeting certain performance or retention objectives
by such employee;
(j) Investments in existence on the date hereof and described
on Schedule 7.14 hereof;
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(k) Acquisitions or Investments in a line of business related
to that of the Parent and its Subsidiaries and Investments and
commitments to make Investments, including guarantees of such
commitments and guarantees of the commitments of employees of the
Parent or any Subsidiary, directly and indirectly through
Subsidiaries and other Persons in real estate and real estate related
assets, including notes and other securities, PROVIDED that (i) no
Default or Event of Default exists or would exist after giving effect
to such Acquisition or Investment, (ii) in the case of an
Acquisition, (I) the Board of Directors or other governing body or
the holders of 100% of the equity interests of such Person whose
Property, or Voting Stock or other interests in which, are being so
acquired has approved the terms of such Acquisition, and (II) the
portion of the purchase price for any such Acquisition paid by the
Parent or any Subsidiary in cash, including the aggregate principal
amount of all liabilities assumed in connection with such
Acquisitions, shall not exceed $100,000,000, and (iii) in the case of
Investments not constituting Acquisitions, such Investment funded in
cash together with all other Investments funded in cash not
constituting Acquisitions (excluding up to $75,000,000 of Investments
in the aggregate that are in the form of a Guaranty) permitted under
this subsection (k) since the Effective Date reduced by the amount of
proceeds of the disposition of all or any part of any Investments
existing on the Effective Date or acquired thereafter does not exceed
$300,000,000 in aggregate purchase price; PROVIDED that if the
aggregate purchase price for any Investment by the Parent or any
Subsidiary in any one Person exceeds $100,000,000 the Parent shall
have received the prior written consent of the Required Banks; or
(l) Performance guarantees (other than guarantees of the
payment of Indebtedness), performance and surety bonds and
environmental, "bad boy" and completion guarantees provided by the
Borrower, the Parent, or any Subsidiary.
In determining the amount of Investments permitted under this Section
7.14, Investments shall always be taken at the original cost thereof
(regardless of any subsequent appreciation or depreciation therein), and
Investments in the form of loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and Investments in the form
of guarantees (including liabilities as a general partner) shall be taken
at the lesser of (i) amount of obligations guaranteed and (ii) the fair
market value of all the assets of such guarantor or general partner. A
change in the form of an Investment (e.g. from an interest as a limited
partner to making a direct loan to such limited partnership or a change in
the form of an entity from a limited partnership to a corporation) shall
not be regarded as a further Investment except to the extent the Parent or
any of its Subsidiaries invests any further money.
SECTION 7.15. CONSOLIDATED NET WORTH. The Parent will at all times
maintain a Consolidated Net Worth of not less than the Minimum Required
Amount. For purposes of this section, the "Minimum Required Amount" shall
mean (i) $600,000,000 during the Annual Measurement Period commencing on
December 31, 2006, and (ii) during each Annual Measurement Period
thereafter, an amount equal to the sum of (x) the Minimum Required Amount
for the immediately preceding Annual Measurement Period PLUS (y) an amount
equal to 50% of the cumulative positive Consolidated Net Income earned in
the fiscal year completed during the immediately preceding Annual
Measurement Period (but without subtraction for any negative Consolidated
Net Income for any such fiscal year); PROVIDED, HOWEVER, in each case such
Minimum Required Amount shall increase on the date of the issuance of
capital securities (other than in connection with the Parent's Stock
Compensation Program, Employee Stock Purchase Plan, Stock Award and
Incentive Plan and any similar programs or plans) by the Parent by an
amount equal to 100% of the Net Cash Proceeds of such issuance. As used
herein the term "Annual Measurement Period" shall mean each period
commencing on December 31 of a calendar year and ending on December 30 of
the immediately subsequent calendar year.
39
SECTION 7.16. FUNDED DEBT TO ADJUSTED EBITDA. The Parent will as of
the last day of each calendar quarter maintain the Total Funded Debt to
Adjusted EBITDA Ratio at not more than 3.50 to 1.00.
SECTION 7.17. INTEREST COVERAGE RATIO. The Parent will as of the
last day of each calendar quarter maintain an Interest Coverage Ratio of
not less than 2.50 to 1.00.
SECTION 7.18. DIVIDENDS AND OTHER SHAREHOLDER DISTRIBUTIONS. The
Parent shall only declare or pay dividends or make a distribution (other
than dividends and distributions payable solely in its capital stock) of
any kind (including by redemption or purchase other than purchases of
outstanding capital stock in connection with the Parent's Stock
Compensation Program, Employee Stock Purchase Plan, Stock Award and
Incentive Plan and any similar programs or plans) on its outstanding
capital stock, if no Default or Event of Default exists prior to or would
result after giving effect to such action.
SECTION 7.19. INDEBTEDNESS. The Parent will not, and will not
permit any of its Restricted Subsidiaries to, have outstanding at any time
any Indebtedness other than:
(a) The Obligations of the Borrower and Guarantors owing to
the Banks and Administrative Agent hereunder;
(b) Indebtedness of (i) the Borrower to the Parent or any
Subsidiary, (ii) any Subsidiary to the Parent or any other Subsidiary
and (iii) the Parent to any Subsidiary;
(c) Capitalized Lease Obligations in an aggregate principal
amount outstanding not to exceed $25,000,000 on any date of
determination;
(d) Subordinated Indebtedness;
(e) Investments (as defined in Section 7.14) permitted
pursuant to Section 7.14 in the form of Indebtedness;
(f) Guaranties by the Parent and its Subsidiaries of
obligations of the Parent and its Subsidiaries which obligations are
not prohibited under this Agreement;
(g) Indebtedness of non-U.S. domiciled Subsidiaries in an
aggregate principal amount outstanding not to exceed the U.S. Dollar
Equivalent of $50,000,000 on any date of determination; or
(h) Indebtedness not otherwise permitted by this Section 7.19
of not more than $200,000,000 in aggregate principal amount
outstanding on any date of determination for the Parent and its
Restricted Subsidiaries.
SECTION 7.20. TRANSACTIONS WITH AFFILIATES. The Parent will not,
and will not permit any of its Subsidiaries to, enter into or be a party to
any material transaction or arrangement (where "material" means material
for the Parent and its Subsidiaries taken as a whole) with any Affiliate of
such Person (other than the Parent or any of its Subsidiaries), including
without limitation, the purchase from, sale to or exchange of Property
with, any merger or consolidation with or into, or the rendering of any
service by or for, any Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of the Parent's or such
Subsidiary's business and upon fair and reasonable terms no less favorable
to the Parent or such Subsidiary than could be obtained in a comparable
arm's-length transaction with a Person other than an Affiliate.
40
SECTION 7.21. COMPLIANCE WITH LAWS. Without limiting any of the
other covenants of the Parent in this Section 7, the Parent will, and will
cause each of its Subsidiaries to, conduct its business, and otherwise be,
in compliance with all applicable laws, regulations, ordinances and orders
of any governmental or judicial authorities; PROVIDED, HOWEVER, that
neither the Parent nor any Subsidiary of the Parent shall be required to
comply with any such law, regulation, ordinance or order if (x) it shall be
contesting such law, regulation, ordinance or order in good faith by
appropriate proceedings and reserves in conformity with GAAP have been
provided therefor on the books of the Parent or such Subsidiary, as the
case may be, or (y) the failure to comply therewith is not reasonably
expected to have, in the aggregate, a Material Adverse Effect.
SECTION 7.22. ADDITIONAL GUARANTORS. If on the last day of the
calendar quarter ending June 30, 2007 and each calendar quarter ending
thereafter the total liabilities of the non-Guarantor Subsidiaries of the
Parent equal or exceed 35% of the book value of the total consolidated
assets of the Parent and its Subsidiaries, then the Parent will, within
fifteen (15) Business Days of the date on which the balance sheet for such
date is required to be delivered pursuant to Section 7.6(a)(i) or
Section 7.6(a)(ii), cause an additional Subsidiary or additional
Subsidiaries to become a Guarantor or Guarantors hereunder such that the
total liabilities of the non-Guarantor Subsidiaries of the Parent are less
than 35% of the book value of the total consolidated assets of the Parent
and its Subsidiaries. Upon any such Subsidiary becoming a Guarantor
hereunder the Parent shall provide to the Administrative Agent an updated
Schedule 5.2.
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, Swingline Loan or of any Reimbursement Obligation
or (y) for a period of three (3) days in the payment when due of
interest or of any other Obligation;
(b) default by the Borrower, the Parent or any Subsidiary in
the observance or performance of any covenant set forth in the first
sentence of Section 7.1, Section 7.6(c), 7.9 through 7.12, or 7.14
through 7.19 hereof;
(c) default by the Borrower, the Parent or any Subsidiary in
the observance or performance of any provision hereof or of any other
Credit Document not mentioned in (a) or (b) above, which is not
remedied within thirty (30) days after notice thereof to the Parent
by the Administrative Agent (acting at the request of any Bank);
(d) (i) failure to pay when due Indebtedness in an aggregate
principal amount of $10,000,000 or more of the Borrower, Parent or
any Subsidiary or (ii) default shall occur under one or more
indentures, agreements or other instruments under which any
Indebtedness of the Borrower, the Parent or any Subsidiary in an
aggregate principal amount of $10,000,000 or more is outstanding and
such default shall continue for a period of time sufficient to permit
the holder or beneficiary of such Indebtedness or a trustee therefor
to cause the acceleration of the maturity of any such Indebtedness or
any mandatory unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any
other Credit Document by the Borrower, the Parent or any Subsidiary,
or in any statement or certificate furnished pursuant hereto or
pursuant to any other Credit Document by the Borrower, the Parent or
any Subsidiary, or in connection with any Credit Document, shall be
untrue in any material respect as of the date of the issuance or
making, or deemed making or issuance, thereof;
41
(f) the Borrower, the Parent or any Subsidiary shall (i) have
entered involuntarily against it an order for relief under the United
States Bankruptcy Code, as amended, or any analogous action is taken
under any other applicable law relating to bankruptcy or insolvency,
(ii) fail to pay, or admit in writing its inability to pay, its debts
generally as they become due, (iii) make an assignment for the
benefit of creditors, (iv) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its
Property, (v) institute any proceeding seeking to have entered
against it an order for relief under the United States Bankruptcy
Code, as amended, to adjudicate it insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail within the
time allowed therefor to file an answer or other pleading denying the
material allegations of any such proceeding filed against it,
(vi) take any corporate action (such as the passage by the board of
directors of a resolution) in furtherance of any matter described in
parts (i)-(v) above, or (vii) fail to contest in good faith any
appointment or proceeding described in Section 8.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower, the Parent or
any Subsidiary or any substantial part of any of their Property, or a
proceeding described in Section 8.1(f)(v) shall be instituted against
the Borrower, the Parent or any Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed or
unstayed for a period of sixty (60) days;
(h) the Borrower, the Parent or any Subsidiary shall fail
within thirty (30) days to pay, bond or otherwise discharge any
judgment or order for the payment of money in excess of $5,000,000,
which is not stayed on appeal or otherwise being appropriately
contested in good faith in a manner that stays execution thereon;
(i) the Parent or any other member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess
of $5,000,000 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 $5,000,000 (collectively, a "Material Plan") shall be filed under
Title IV of ERISA by the Parent or any Subsidiary or any other member
of the Controlled Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted by a
fiduciary of any Material Plan against the Parent or any other member
of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA
and such proceeding shall not have been dismissed within thirty (30)
days thereafter; or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated;
(j) the Borrower, the Parent or any Subsidiary, or any Person
acting on behalf of the Borrower, the Parent or a Subsidiary, or any
governmental authority challenges the validity of any Credit Document
or the Borrower's, the Parent's or a Subsidiary's obligations
thereunder or any Credit Document ceases to be in full force and
effect; or
(k) a Change of Control shall have occurred.
42
SECTION 8.2. NON-BANKRUPTCY DEFAULTS. When any Event of Default
other than those described in subsections (f) or (g) of Section 8.1 hereof
has occurred and is continuing, the Administrative Agent shall, by written
notice to the Parent: (a) if so directed by the Required Banks, terminate
the remaining Commitments and all other obligations of the Banks hereunder
on the date stated in such notice (which may be the date thereof); (b) if
so directed by the Required Banks, declare the principal of and the accrued
interest on all outstanding Loans, Swingline Loans and all other amounts
due under the Credit Documents to be forthwith due and payable and
thereupon all outstanding Loans and Swingline Loans, including both
principal and interest thereon, shall be and become immediately due and
payable together with all other amounts payable under the Credit Documents
without further demand, presentment, protest or notice of any kind; and
(c) if so directed by the Required Banks, demand that the Borrower
immediately pay to the Administrative Agent, subject to Section 8.4, the
full amount then available for drawing under each or any Letter of Credit,
and the Borrower agrees to immediately make such payment and acknowledges
and agrees that the Banks would not have an adequate remedy at law for
failure by the Borrower to honor any such demand and that the
Administrative Agent, for the benefit of the Banks, shall have the right to
require the Borrower to specifically perform such undertaking whether or
not any drawings or other demands for payment have been made under any
Letter of Credit. The Administrative Agent, after giving notice to the
Borrower pursuant to Section 8.1(c) or this Section 8.2, shall also
promptly send a copy of such notice to the other Banks, but the failure to
do so shall not impair or annul the effect of such notice.
SECTION 8.3. BANKRUPTCY DEFAULTS. When any Event of Default
described in subsections (f) or (g) of Section 8.1 hereof has occurred and
is continuing, then all outstanding Loans and Swingline Loans shall
immediately become due and payable together with all other amounts payable
under the Credit Documents without presentment, demand, protest or notice
of any kind, the obligation of the Banks to extend further credit pursuant
to any of the terms hereof shall immediately terminate and the Borrower
shall immediately pay to the Administrative Agent, subject to Section 8.4,
the full amount then available for drawing under all outstanding Letters of
Credit, the Borrower acknowledging that the Banks would not have an
adequate remedy at law for failure by the Borrower to honor any such demand
and that the Banks, and the Administrative Agent on their behalf, shall
have the right to require the Borrower to specifically perform such
undertaking whether or not any draws or other demands for payment have been
made under any of the Letters of Credit.
SECTION 8.4. COLLATERAL FOR UNDRAWN LETTERS OF CREDIT.
(a) If the payment or prepayment of the amount available for
drawing under any or all outstanding Letters of Credit is required under
Section 8.2 or 8.3 above, the Borrower shall forthwith pay the amount
required to be so prepaid, to be held by the Administrative Agent as
provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be
held by the Administrative Agent in a separate collateral account (such
account, and the credit balances, properties and any investments from time
to time held therein, and any substitutions for such account, any
certificate of deposit or other instrument evidencing any of the foregoing
and all proceeds of and earnings on any of the foregoing being collectively
called the "Account") as security for, and for application by the
Administrative Agent (to the extent available) to, the reimbursement of any
payment under any Letter of Credit then or thereafter made by the
Administrative Agent, and to the payment of the unpaid balance of any Loans
and all other Obligations. The Account shall be held in the name of and
subject to the exclusive dominion and control of the Administrative Agent
for the benefit of the Administrative Agent, the L/C Issuer and the Banks.
The Borrower hereby grants the Administrative Agent, for the benefit of the
43
Administrative Agent, the L/C Issuer and the Banks, a Lien on the Account
and all credit balances and investments held therein. If and when
requested by the Borrower, the Administrative Agent shall invest funds held
in the Account from time to time in direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by,
the United States of America with a remaining maturity of one year or less,
PROVIDED that the Administrative Agent is irrevocably authorized to sell
investments held in the Account when and as required to make payments out
of the Account for application to amounts due and owing from the Borrower
to the Administrative Agent, the L/C Issuer or Banks; PROVIDED, HOWEVER,
that if (i) the Borrower shall have made payment of all Obligations,
(ii) all relevant preference or other disgorgement periods relating to the
receipt of such payments have passed, and (iii) no Letters of Credit,
Commitments, Loans, Swingline Loans or other Obligations remain outstanding
hereunder, then the Administrative Agent shall repay to the Borrower any
remaining amounts held in the Account.
SECTION 8.5. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Borrower under Section 8.1(c) hereof promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
SECTION 8.6. EXPENSES. The Borrower agrees to pay to the
Administrative Agent, the L/C Issuer and each Bank, and any other holder of
any Obligation outstanding hereunder, all expenses reasonably incurred or
paid by the Administrative Agent, the L/C Issuer 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 (including
all such costs and expenses incurred in connection with any proceeding
under the United States Bankruptcy Code involving the Parent or any of its
Subsidiary as a debtor thereunder.
SECTION 9. CHANGE IN CIRCUMSTANCES.
SECTION 9.1. CHANGE OF LAW. Notwithstanding any other provisions of
this Agreement or any Note, if at any time after the date hereof any change
in applicable law or regulation or in the interpretation thereof makes it
unlawful for any Bank to make or continue to maintain Eurocurrency Loans or
to perform its obligations as contemplated hereby, such Bank shall promptly
give notice thereof to the Borrower and such Bank's obligations to make or
maintain Eurocurrency Loans under this Agreement shall terminate until it
is no longer unlawful for such Bank to make or maintain Eurocurrency Loans.
The Borrower shall prepay on demand the outstanding principal amount of any
such affected Eurocurrency Loans, together with all interest accrued
thereon at a rate per annum equal to the interest rate applicable to such
Loan; PROVIDED, HOWEVER, subject to all of the terms and conditions of this
Agreement, the Borrower may then elect to borrow the principal amount of
the affected Eurocurrency Loans from such Bank by means of Domestic Rate
Loans from such Bank, which Domestic Rate Loans shall not be made ratably
by the Banks but only from such affected Bank.
SECTION 9.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN,
OR INADEQUACY OF, LIBOR. If on or prior to the first day of any Interest
Period for any Borrowing of Eurocurrency Loans:
(a) the Administrative Agent determines that deposits in U.S.
Dollars or the applicable Alternative Currency (in the applicable
amounts) are not being offered to it in the eurocurrency interbank
market for such Interest Period, or that by reason of circumstances
affecting the interbank eurocurrency market adequate and reasonable
means do not exist for ascertaining the applicable LIBOR, or
(b) the Required Banks reasonably determine and so advise the
Administrative Agent that LIBOR as reasonably determined by the
Administrative Agent will not adequately and fairly reflect the cost
to such Banks of funding their Eurocurrency Loans for such Interest
Period,
44
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligations of the Banks 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) or the L/C
Issuer to any tax, duty or other charge with respect to its
Eurocurrency Loans, its Notes, its Letter(s) of Credit, or its
participation in any thereof, any Reimbursement Obligations owed to
it or its obligation to make Eurocurrency Loans, issue a Letter of
Credit, or to participate therein, or shall change the basis of
taxation of payments to any Bank (or its Lending Office) or the L/C
Issuer of the principal of or interest on its Eurocurrency Loans,
Letter(s) of Credit, or participations therein or any other amounts
due under this Agreement in respect of its Eurocurrency Loans,
Letter(s) of Credit, or participations therein, any Reimbursement
Obligations owed to it, or its obligation to make Eurocurrency Loans,
issue a Letter of Credit, or acquire participations therein (except
for changes in the rate of tax on the overall net income or profits
of such Bank (or its Lending Office) or the L/C Issuer imposed by the
jurisdiction in which such Bank (or its Lending Office) or the L/C
Issuer is incorporated or in which such Bank's or L/C Issuer'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 the L/C Issuer or shall impose on any Bank (or its Lending
Office) or the L/C Issuer or on the interbank market any other
condition affecting its Eurocurrency Loans, its Notes, its Letter(s)
of Credit, or its participation in any thereof, any Reimbursement
Obligation owed to it, or its obligation to make Eurocurrency Loans,
to issue a Letter of Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) or the L/C Issuer of making or maintaining any
Eurocurrency Loan, issuing or maintaining a Letter of Credit, or
participating therein, or to reduce the amount of any sum received or
receivable by such Bank (or its Lending Office) or the L/C Issuer under
this Agreement or under its Notes with respect thereto, by an amount deemed
by such Bank or the L/C Issuer to be material, then, within fifteen (15)
days after demand by such Bank or the L/C Issuer (with a copy to the
Administrative Agent), the Borrower shall be obligated to pay to such Bank
or the L/C Issuer such additional amount or amounts as will compensate such
Bank or the L/C Issuer for such increased cost or reduction; PROVIDED,
HOWEVER, that such Bank or the L/C Issuer 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
45
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 or the L/C Issuer is
determined to be entitled to a refund from the applicable authority for any
amount or amounts which were paid or reimbursed by the Borrower to such
Bank or the L/C Issuer hereunder, such Bank or the L/C Issuer shall refund
such amount or amounts to the Borrower without interest.
(b) Each Bank or the L/C Issuer that determines to seek
compensation under this Section 9.3 shall notify the Borrower and the
Administrative Agent of the circumstances that entitle the Bank or the L/C
Issuer 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 or the L/C Issuer, be otherwise disadvantageous to
such Bank or the L/C Issuer. A certificate of any Bank or the L/C Issuer
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 or
the L/C Issuer 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 or Swingline Loans available hereunder or at such other of its
branches, offices or affiliates as it may from time to time elect and
designate in a written notice to the Borrower and the Administrative Agent.
SECTION 9.5. DISCRETION OF BANK AS TO MANNER OF FUNDING. Notwith-
standing 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 or
Swingline Loans in any manner it sees fit, it being understood, however,
that for the purposes of this Agreement all determinations hereunder shall
be made as if each Bank had actually funded and maintained each
Eurocurrency Loan through the purchase of deposits of U.S. Dollars or the
applicable Alternative Currency in the eurocurrency interbank market having
a maturity corresponding to such Loan's Interest Period and bearing an
interest rate equal to LIBOR for such Interest Period.
SECTION 10. THE ADMINISTRATIVE AGENT.
SECTION 10.1. APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each Bank hereby appoints Bank of Montreal as the Administrative Agent
under the Credit Documents and hereby authorizes the Administrative Agent
to take such action as Administrative Agent on its behalf and to exercise
such powers under the Credit Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. The Banks and the L/C Issuer expressly
agree that the Administrative Agent is not acting as a fiduciary of the
Banks or the L/C Issuer in respect of the Credit Documents, the Borrower or
otherwise except as expressly set forth herein, and nothing herein or in
any of the other Credit Documents shall result in any duties or obligations
on the Administrative Agent or any of the Banks or the L/C Issuer except as
expressly set forth herein.
46
SECTION 10.2. ADMINISTRATIVE AGENT AND ITS AFFILIATES. The
Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any other Bank and may exercise
or refrain from exercising the same as though it were not the
Administrative Agent, and the Administrative Agent and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Affiliate of the Borrower as if it were
not the Administrative Agent under the Credit Documents. The term "Bank"
as used herein and in all other Credit Documents, unless the context
otherwise clearly requires, includes the Administrative Agent in its
individual capacity as a Bank. References in Section 1 hereof to the
Administrative Agent's Loans, or to the amount owing to the Administrative
Agent for which an interest rate is being determined, refer to the
Administrative Agent in its individual capacity as a Bank.
SECTION 10.3. ACTION BY ADMINISTRATIVE AGENT. If the Administrative
Agent receives from the Parent a written notice of an Event of Default
pursuant to Section 7.6(c) hereof, the Administrative Agent shall promptly
give each of the Banks written notice thereof. The obligations of the
Administrative Agent under the Credit Documents are only those expressly
set forth therein. Without limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any action hereunder
with respect to any Default or Event of Default, except as expressly
provided in Sections 8.2 and 8.5. In no event, however, shall the
Administrative Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder or under any other Credit Document unless it
shall be first indemnified to its reasonable satisfaction by the Banks
against any and all costs, expense, and liability which may be incurred by
it by reason of taking or continuing to take any such action. The
Administrative Agent shall be entitled to assume that no Default or Event
of Default exists unless notified to the contrary by a Bank, the Parent or
the Borrower. In all cases in which this Agreement and the other Credit
Documents do not require the Administrative Agent to take certain actions,
the Administrative Agent shall be fully justified in using its discretion
in failing to take or in taking any action hereunder and thereunder. Any
instructions of the Required Banks, or of any other group of Banks called
for under the specific provisions of the Credit Documents, in each case,
shall be binding upon all the Banks and the holders of the Obligations.
SECTION 10.4. CONSULTATION WITH EXPERTS. The Administrative Agent
may consult with legal counsel, independent public accountants and other
experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.
SECTION 10.5. LIABILITY OF ADMINISTRATIVE AGENT; CREDIT DECISION.
Neither the Administrative Agent nor any of its directors, officers,
agents, or employees shall be liable for any action taken or not taken by
it in connection with the Credit Documents (i) with the consent or at the
request of the Required Banks or all of the Banks, as applicable, or
(ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made
in connection with this Agreement, any other Credit Document or any Credit
Event; (ii) the performance or observance of any of the covenants or
agreements of the Borrower or any Guarantor contained herein or in any
other Credit Document; (iii) the satisfaction of any condition specified in
Section 6 hereof, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness, genuineness,
enforceability, perfection, value, worth or collectibility hereof or of any
other Credit Document or of any other documents or writing furnished in
connection with any Credit Document; and the Administrative Agent makes no
representation of any kind or character with respect to any such matter
mentioned in this sentence. The Administrative Agent may execute any of
its duties under any of the Credit Documents by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Banks, the
47
L/C Issuer, the Borrower, or any Guarantor or any other Person for the
default or misconduct of any such agents or attorneys-in-fact selected with
reasonable care. The Administrative Agent shall not incur any liability by
acting in reliance upon any notice, consent, certificate, other document or
statement (whether written or oral) reasonably believed by it to be genuine
or to be sent by the proper party or parties. In particular and without
limiting any of the foregoing, the Administrative Agent shall have no
responsibility for confirming the accuracy of any Compliance Certificate or
other document or instrument received by it under the Credit Documents.
The Administrative Agent may treat the payee of any Obligation as the
holder thereof until written notice of transfer shall have been filed with
the Administrative Agent signed by such payee in form satisfactory to the
Administrative Agent. Each Bank and the L/C Issuer acknowledges that it
has independently and without reliance on the Administrative Agent or any
other Bank or the L/C Issuer, and based upon such information,
investigations and inquiries as it deems appropriate, made its own credit
analysis and decision to extend credit to the Borrower in the manner set
forth in the Credit Documents. It shall be the responsibility of each Bank
and the L/C Issuer to keep itself informed as to the creditworthiness of
the Borrower and the Guarantors, and the Administrative Agent shall have no
liability to any Bank or the L/C Issuer with respect thereto.
SECTION 10.6. INDEMNITY. The Banks shall ratably, in accordance
with their respective Percentages, indemnify and hold the Administrative
Agent, and its directors, officers, employees, agents and representatives
harmless from and against any liabilities, losses, costs or expenses
suffered or incurred by it under any Credit Document or in connection with
the transactions contemplated thereby, regardless of when asserted or
arising, except to the extent they are promptly reimbursed for the same by
the Borrower and except to the extent that any event giving rise to a claim
was caused by the gross negligence or willful misconduct of the party
seeking to be indemnified. The obligations of the Banks under this
Section 10.6 shall survive termination of this Agreement. The
Administrative Agent shall be entitled to offset amounts received for the
account of a Bank under this Agreement against unpaid amounts due from such
Bank to the Administrative Agent hereunder (whether as fundings of
participations, indemnities or otherwise), but shall not be entitled to
offset against amounts owed to the Administrative Agent by any Bank arising
outside of this Agreement and the other Credit Documents.
SECTION 10.7. RESIGNATION OF ADMINISTRATIVE AGENT AND SUCCESSOR
ADMINISTRATIVE AGENT. The Administrative Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower. Upon any such
resignation of the Administrative Agent, the Required Banks shall have the
right to appoint a successor Administrative Agent with the consent of the
Borrower; PROVIDED that the Borrower's consent shall not be required upon
the occurrence and during the continuance of an Event of Default. If no
successor Administrative Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within thirty (30) days
after the retiring Administrative Agent's giving of notice of resignation,
then the retiring Administrative Agent may, on behalf of the Banks and with
the consent of the Borrower, appoint a successor Administrative Agent,
which shall be any Bank hereunder or any commercial bank organized under
the laws of the United States of America or of any State thereof and having
a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as the Administrative Agent hereunder, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring or removed Administrative
Agent under the Credit Documents, and the retiring Administrative Agent
shall be discharged from its duties and obligations thereunder. After any
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Section 10 and all protective provisions of
the other Credit Documents shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent.
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SECTION 10.8. L/C ISSUER AND SWINGLINE BANK. The L/C Issuer shall
act on behalf of the Banks with respect to any Letters of Credit issued by
it and the documents associated therewith, and the Swingline Bank shall act
on behalf of the Banks with respect to the Swingline Loans made hereunder.
The L/C Issuer and the Swingline Bank shall each have all of the benefits
and immunities (i) provided to the Administrative Agent in this Section 10
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by
it and the Applications pertaining to such Letters of Credit or by the
Swingline Bank in connection with Swingline Loans made or to be made
hereunder as fully as if the term "Administrative Agent", as used in this
Section 10, included the L/C Issuer and the Swingline Bank with respect to
such acts or omissions and (ii) as additionally provided in this Agreement
with respect to such L/C Issuer or Swingline Bank, as applicable.
SECTION 10.9. DESIGNATION OF ADDITIONAL AGENTS. The Administrative
Agent shall have the continuing right, for purposes hereof, at any time and
from time to time to designate one or more of the Banks (and/or its or
their Affiliates) as "syndication agents," "documentation agents," "book
runners," "lead arrangers," "arrangers," or other designations for purposes
hereto, but such designation shall have no substantive effect, and such
Banks and their Affiliates shall have no additional powers, duties or
responsibilities as a result thereof.
SECTION 11. THE GUARANTEES.
SECTION 11.1. THE GUARANTEES. To induce the Banks and the L/C
Issuer to provide the credits described herein and in consideration of
benefits expected to accrue to each Guarantor by reason of the Commitments
and for other good and valuable consideration, receipt of which is hereby
acknowledged, each Guarantor hereby unconditionally and irrevocably
guarantees jointly and severally to the Administrative Agent, the Banks,
the L/C Issuer, 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 Loans, Swingline Loans and Reimbursement Obligations 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 or other obligor punctually to pay any indebtedness or other
Obligations guaranteed hereby, each Guarantor hereby unconditionally agrees
jointly and severally to make such payment or to cause such payment to be
made punctually as and when the same shall become due and payable, whether
at stated maturity, by acceleration or otherwise, and as if such payment
were made by the Borrower.
SECTION 11.2. GUARANTEE UNCONDITIONAL. The obligations of each
Guarantor as a guarantor under this Section 11 shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not
be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower or of any other
Guarantor under this Agreement or any other Credit Document or by
operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Credit Document;
49
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, the Borrower, any other Guarantor, or
any of their respective assets, or any resulting release or discharge
of any obligation of the Borrower or of any other Guarantor contained
in any Credit Document;
(d) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against the Administrative Agent,
any Bank, the L/C Issuer 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 Loan,
Swingline Loan, or any Reimbursement Obligation or any other amount
payable by it under the Credit Documents; or
(h) any other act or omission to act or delay of any kind by
the Administrative Agent, any Bank, the L/C Issuer, 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 a Guarantor under this Section 11 or
the Borrower under this Agreement.
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 Obligations 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 Obligation or any other amount payable by the
Borrower under the Credit Documents is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of
the Borrower or of a Guarantor, or otherwise, each Guarantor's obligations
under this Section 11 with respect to such payment shall be reinstated at
such time as though such payment had become due but had not been made at
such time.
SECTION 11.4. WAIVERS.
(a) GENERAL. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by the
Administrative Agent, any Bank, the L/C Issuer, or any other Person against
the Borrower, another Guarantor or any other Person.
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(b) Subrogation and Contribution. Unless and until the Obligations
have been fully paid and satisfied and the Commitments have terminated,
each Guarantor hereby irrevocably waives any claim or other right it may
now or hereafter acquire against the Borrower or any other Guarantor that
arises from the existence, payment, performance or enforcement of such
Guarantor's obligations under this Section 11 or any other Credit Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in
any claim or remedy of the Administrative Agent, any Bank, the L/C Issuer,
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. If
any amount shall be paid to a Guarantor on account of such subrogation
rights at any time prior to the later of (x) the payment in full of the
Obligations and all other amounts payable by the Borrower hereunder and the
other Credit Documents and (y) the termination of the Commitments and
expiration of all Letters of Credit, such amount shall be held in trust for
the benefit of the Administrative Agent and the Banks and the L/C Issuer
(and their Affiliates) and shall forthwith be paid to the Administrative
Agent for the benefit of the Banks (and their Affiliates) or be credited
and applied upon the Obligations, whether matured or unmatured, in
accordance with the terms of this Agreement.
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 lowest amount which would render such Guarantor's obligations
under this Section 11 void or voidable under applicable law, including
without limitation fraudulent conveyance law.
SECTION 11.6. STAY OF ACCELERATION. If acceleration of the time for
payment of any amount payable by the Borrower under this Agreement or any
other Credit Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement or the other Credit
Documents shall nonetheless be payable jointly and severally by the
Guarantors hereunder forthwith on demand by the Administrative Agent made
at the request of the Required Banks.
SECTION 11.7. BENEFIT TO GUARANTORS. The Borrower and the
Guarantors are engaged in related businesses and integrated to such an
extent that the financial strength and flexibility of the Borrower has a
direct impact on the success of each Guarantor. Each Guarantor will derive
substantial direct and indirect benefit from the extensions of credit
hereunder.
SECTION 11.8. GUARANTOR COVENANTS. Each Guarantor shall take such
action as the Borrower is required by this Agreement to cause such
Guarantor to take, and shall refrain from taking such action as the
Borrower is required by this Agreement to prohibit such Guarantor from
taking.
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SECTION 12. MISCELLANEOUS.
SECTION 12.1. PAYMENTS FREE OF WITHHOLDING TAXES. Except as
otherwise required by law, each payment by the Borrower and each Guarantor
under this Agreement or the other Credit Documents shall be made without
withholding for or on account of any present or future taxes (other than
overall net income taxes on the recipient) imposed by or within the
jurisdiction in which the Borrower or such Guarantor is domiciled, any
jurisdiction from which the Borrower or such Guarantor makes any payment,
or (in each case) any political subdivision or taxing authority thereof or
therein. If any such withholding is so required, the Borrower or relevant
Guarantor shall make the withholding, pay the amount withheld to the
appropriate governmental authority before penalties attach thereto or
interest accrues thereon and forthwith pay such additional amount as may be
necessary to ensure that the net amount actually received by each Bank and
the Administrative Agent free and clear of such taxes (including such taxes
on such additional amount) is equal to the amount which that Bank or the
Administrative Agent (as the case may be) would have received had such
withholding not been made. If the Administrative Agent or any Bank pays
any amount in respect of any such taxes, penalties or interest the Borrower
shall reimburse the Administrative Agent or that Bank for that payment on
demand in the currency in which such payment was made. If the Borrower or
any Guarantor pays any such taxes, penalties or interest, it shall deliver
official tax receipts evidencing that payment or certified copies thereof
to the Bank or Administrative Agent on whose account such withholding was
made (with a copy to the Administrative Agent if not the recipient of the
original) on or before the thirtieth day after payment. If any Bank or the
Administrative Agent determines it has received or been granted a credit
against or relief or remission for, or repayment of, any taxes paid or
payable by it because of any taxes, penalties or interest paid by the
Borrower or any Guarantor and evidenced by such a tax receipt, such Bank or
Administrative Agent shall, to the extent it can do so without prejudice to
the retention of the amount of such credit, relief, remission or repayment,
pay to the Borrower or such Guarantor as applicable, such amount as such
Bank or Administrative Agent determines is attributable to such deduction
or withholding and which will leave such Bank or Administrative Agent
(after such payment) in no better or worse position than it would have been
in if the Borrower had not been required to make such deduction or
withholding. Nothing in this Agreement shall interfere with the right of
each Bank and the Administrative Agent to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Bank or the Administrative
Agent to disclose any information relating to its tax affairs or any
computations in connection with such taxes.
SECTION 12.2. NO WAIVER OF RIGHTS. No delay or failure on the part
of the Administrative Agent, the L/C Issuer or any Bank or on the part of
the holder or holders of any of the Obligations 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. The rights and remedies hereunder of the Administrative Agent,
the L/C Issuer the Banks and the holder or holders of any of the
Obligations 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, Swingline 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, Swingline 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.
52
SECTION 12.5. SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein or in certificates given pursuant hereto shall
survive the execution and delivery of this Agreement and the other Credit
Documents, and shall continue in full force and effect with respect to the
date as of which they were made as long as any credit is in use or
available hereunder.
SECTION 12.6. SURVIVAL OF INDEMNITIES. All indemnities and all
other provisions relative to reimbursement to the Banks of amounts
sufficient to protect the yield of the Banks with respect to the Loans,
including, but not limited to, Section 1.12, Section 9.3 and Section 12.15
hereof, shall survive the termination of this Agreement and the other
Credit Documents and the payment of the Loans, Swingline 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, Swingline Loans or Reimbursement Obligations in
excess of its ratable share of payments on all such obligations then
outstanding to the Banks, then such Bank shall purchase for cash at face
value, but without recourse, ratably from each of the other Banks such
amount of the Loans, Swingline Loans or Reimbursement Obligations, or
participations therein, held by each such other Banks (or interest therein)
as shall be necessary to cause such Bank to share such excess payment
ratably with all the other Banks; PROVIDED, HOWEVER, that if any such
purchase is made by any Bank, and if such excess payment or part thereof is
thereafter recovered from such purchasing Bank, the related purchases from
the other Banks shall be rescinded ratably and the purchase price restored
as to the portion of such excess payment so recovered, but without
interest. For purposes of this Section 12.7, amounts owed to or recovered
by, the L/C Issuer in connection with Reimbursement Obligations in which
Banks have been required to fund their participation shall be treated as
amounts owed to or recovered by the L/C Issuer as a Bank hereunder.
SECTION 12.8. NOTICES. Except as otherwise specified herein, all
notices under the Credit Documents shall be in writing (including telecopy
or other electronic communication) and shall be given to a party hereunder
at its address or telecopier number set forth below or such other address
or telecopier number as such party may hereafter specify by notice to the
Administrative Agent and the Borrower, given by courier, by United States
certified or registered mail, or by other telecommunication device capable
of creating a written record of such notice and its receipt. Notices under
the Credit Documents to the Banks, L/C Issuer and the Administrative Agent
shall be addressed to their respective addresses, telecopier or telephone
numbers set forth in its Administrative Questionnaire, and to the Borrower
and the Guarantors to:
Xxxxx Xxxx LaSalle Finance B.V. with a copy to:
Kantoorgebouw Atrium Xxxxx Lang LaSalle Incorporated
Strawinskylaan 3103 000 Xxxx Xxxxxxxx Xxxxxx
1077 ZX Amsterdam Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx Attention: Xxxxx X. Xxxx
Telecopy: 31 20 661 15 66 Telecopy: 000-000-0000
Telephone: 00 00 000 00 00 Telephone: 000-000-0000
with a copy of notices of Defaults
and Events of Default to:
Xxxxx Lang LaSalle Finance B.V.
c/o Jones Xxxx LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx,
Global General Counsel
Telecopy: 000-000-0000
Telephone: 000-000-0000
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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 Administrative
Questionnaire 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 Administrative Questionnaire;
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 the Guarantors and their successors and
assigns, and shall inure to the benefit of the Administrative Agent, the
L/C Issuer and each of the Banks and the benefit of their respective
successors and assigns, including any subsequent holder of any Obligation.
The Borrower and the Guarantors may not assign any of their rights or
obligations under any Credit Document without the written consent of all of
the Banks.
SECTION 12.11. PARTICIPANTS. Each Bank shall have the right at its
own cost to grant participations (to be evidenced by one or more agreements
or certificates of participation) in the Loans made and Reimbursement
Obligations and/or Commitments held by such Bank at any time and from time
to time to one or more other Persons; PROVIDED THAT no such participation
shall relieve any Bank of any of its obligations under this Agreement, and,
PROVIDED, FURTHER that no such participant shall have any rights under this
Agreement except as provided in this Section 12.11, and the Administrative
Agent shall have no obligation or responsibility to such participant. Any
agreement pursuant to which such participation is granted shall provide
that the granting Bank shall retain the sole right and responsibility to
enforce the obligations of the Borrower and Guarantors under this Agreement
and the other Credit Documents including, without limitation, the right to
approve any amendment, modification or waiver of any provision of the
Credit Documents, except that such agreement may provide that such Bank
will not agree to any modification, amendment or waiver of the Credit
Documents described in clauses (i) and (ii) of Section 12.13 hereof. Any
party to which such a participation has been granted shall have the
benefits of Section 1.12 and Section 9.3 hereof.
SECTION 12.12. ASSIGNMENTS.
(a) Any Bank may at any time assign to one or more Eligible
Assignees all or a portion of such Bank's rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); PROVIDED that any such assignment shall be subject
to the following conditions:
(i) MINIMUM AMOUNTS. (A) In the case of an assignment of the
entire remaining amount of the assigning Bank's Commitment and the Loans
and participation interest in L/C Obligations at the time owing to it or in
the case of an assignment to a Bank, an Affiliate of a Bank or an Approved
Fund, no minimum amount need be assigned; and (B) in any case not described
in subsection (a)(i)(A) of this Section, the aggregate amount of the
Commitment (which for this purpose includes Loans and participation
interest in L/C Obligations outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of the
Loans and participation interest in L/C Obligations of the assigning Bank
subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent or, if "Effective Date" is specified in the Assignment
54
and Acceptance, as of the Effective Date) shall not be less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed);
(ii) PROPORTIONATE AMOUNTS. Each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Bank's rights
and obligations under this Agreement with respect to the Loan or the
Commitment assigned.
(iii) REQUIRED CONSENTS. No consent shall be required for any
assignment except to the extent required by Section 12.12(a)(i)(B) and, in
addition:
(a) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed and if it is delayed more than five
(5) Business Days it is deemed to be given) shall be required unless
(x) an Event of Default has occurred and is continuing at the time of
such assignment or (y) such assignment is to a Bank, an Affiliate of
a Bank or an Approved Fund;
(b) the consent of the Administrative Agent (such consent not
to be unreasonably withheld or delayed and if it is delayed more than
five (5) Business Days it is deemed to be given) shall be required
for assignments if such assignment is to a Person that is not a Bank,
an Affiliate of such Bank or an Approved Fund with respect to such
Bank;
(c) the consent of the L/C Issuer (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether
or not then outstanding); and
(d) the consent of the Swingline Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any
assignment that increases the obligation of the assignee to
participate in exposure under one or more Swingloans (whether or not
then outstanding).
(iv) ASSIGNMENT AND ACCEPTANCE. The parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and
the assignee, if it is not a Bank, shall deliver to the Administrative
Agent an Administrative Questionnaire.
(v) NO ASSIGNMENT TO BORROWER OR PARENT. No such assignment shall
be made to the Parent or any of its Affiliates or Subsidiaries.
(vi) NO ASSIGNMENT TO NATURAL PERSONS. No such assignment shall be
made to a natural person.
(vii) No such assignment shall result in a reduction in the total
Commitments.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to Section 12.12(b) hereof, from and after the effective
date specified in each Assignment and Acceptance, the assignee thereunder
shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations
of a Bank under this Agreement, and the assigning Bank thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
55
Assignment and Acceptance covering all of the assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 12.6
and 12.15 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by a Bank of
rights or obligations under this Agreement that does not comply with this
Section shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in such rights and obligations in accordance with
Section 12.11 hereof.
(b) REGISTER. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at one of its offices
in Chicago, Illinois, a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the
Banks, and the Commitments of, and principal amounts of the Loans owing to,
each Bank pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, and the Banks may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Bank hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any
Bank, at any reasonable time and from time to time upon reasonable prior
notice.
(c) Any Bank may at any time pledge or grant a security interest in
all or any portion of its rights under this Agreement to secure obligations
of such Bank, including any such pledge or grant to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or grant of a security
interest; PROVIDED that no such pledge or grant of a security interest
shall release a Bank from any of its obligations hereunder or substitute
any such pledgee or secured party for such Bank as a party hereto; PROVIDED
FURTHER, however, the right of any such pledgee or grantee (other than any
Federal Reserve Bank) to further transfer all or any portion of the rights
pledged or granted to it, whether by means of foreclosure or otherwise,
shall be at all times subject to the terms of this Agreement.
(d) Notwithstanding anything to the contrary herein, if at any time
the Swingline Bank assigns all of its Commitment and Loans pursuant to
subsection (a) above, the Swingline Bank may terminate the Swingline. In
the event of such termination of the Swingline, the Borrower shall be
entitled to appoint another Bank to act as the successor Swingline Bank
hereunder (with such Bank's consent); PROVIDED, HOWEVER, that the failure
of the Borrower to appoint a successor shall not affect the resignation of
the Swingline Bank. If the Swingline Bank terminates the Swingline, it
shall retain all of the rights of the Swingline Bank provided hereunder
with respect to Swingline Loans made by it and outstanding as of the
effective date of such termination, including the right to require Banks to
make Loans or fund participations in outstanding Swingline Loans pursuant
to Section 1.3 hereof.
SECTION 12.13. AMENDMENTS. Any provision of the Credit Documents
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by (a) the Borrower, (b) the Required Banks, and
(c) if the rights or duties of the Administrative Agent, the L/C Issuer or
the Swingline Bank are affected thereby, the Administrative Agent, the L/C
Issuer, or the Swingline Bank, as applicable; PROVIDED that:
(i) no amendment or waiver pursuant to this Section 12.13
shall (A) increase or extend any Commitment of any Bank without the
consent of such Bank or (B) reduce the amount of or postpone any
fixed date for payment of any principal of or interest on any Loan,
Swingline Loan or Reimbursement Obligation or of any fee payable
hereunder without the consent of the Bank to which such payment is
owing or which has committed to make such Loan, Swingline Loan or
Letter of Credit (or participate therein) hereunder;
56
(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 definitions of Termination Date or Required
Banks, or affect the number of Banks required to take any action
under the Credit Documents, or release any Guarantor (other than
pursuant to the terms hereof) from its guaranty of any Obligations;
and
(iii) no amendment or waiver to Section 11 hereof shall be made
without the consent of the Guarantor(s) affected thereby.
SECTION 12.14. HEADINGS. Section headings used in this Agreement
are for reference only and shall not affect the construction of this
Agreement.
SECTION 12.15. LEGAL FEES, OTHER COSTS AND INDEMNIFICATION. The
Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation and negotiation of
the Credit Documents, including without limitation, the reasonable fees and
disbursements of Xxxxxxx and Xxxxxx LLP, counsel to the Administrative
Agent, in connection with the preparation and execution of the Credit
Documents, and any amendment, waiver or consent related hereto, whether or
not the transactions contemplated herein are consummated. The Borrower
further agrees to indemnify each Bank, the L/C Issuer, the Administrative
Agent, and their respective directors, officers and employees, against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor, whether or not the indemnified Person is a party thereto) which
any of them may incur or reasonably pay arising out of or relating to any
Credit Document or any of the transactions contemplated thereby or the
direct or indirect application or proposed application of the proceeds of
any Loan, Swingline Loan or Letter of Credit, other than those which arise
from the gross negligence or willful misconduct of the party claiming
indemnification. The Borrower, upon demand by the Administrative Agent,
the L/C Issuer, or a Bank at any time, shall reimburse the Administrative
Agent, the L/C Issuer, 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, the L/C Issuer and each subsequent holder of any
Obligation 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, the L/C Issuer 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,
the L/C Issuer or that subsequent holder under the Credit Documents,
including, but not limited to, all claims of any nature or description
arising out of or connected with the Credit Documents, irrespective of
whether or not (a) that Bank, the L/C Issuer 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.
57
SECTION 12.17. CURRENCY. Each reference in this Agreement to U.S.
Dollars or to an Alternative Currency (the "relevant currency") is of the
essence. To the fullest extent permitted by law, the obligation of the
Borrower and each Guarantor in respect of any amount due in the relevant
currency under this Agreement shall, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in the relevant currency that the Person
entitled to receive such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency (after any
premium and costs of exchange) on the Business Day immediately following
the day on which such Person receives such payment. If the amount of the
relevant currency so purchased is less than the sum originally due to such
Person in the relevant currency, the Borrower or relevant Guarantor agrees,
as a separate obligation and notwithstanding any such judgment, to
indemnify such Person against such loss, and if the amount of the specified
currency so purchased exceeds the sum of (a) the amount originally due to
the relevant Person in the specified currency plus (b) any amounts shared
with other Banks as a result of allocations of such excess as a
disproportionate payment to such Person under Section 12.7 hereof, such
Person agrees to remit such excess to the Borrower.
SECTION 12.18. ENTIRE AGREEMENT. The Credit Documents constitute
the entire understanding of the parties thereto with respect to the subject
matter thereof and any prior or contemporaneous agreements, whether written
or oral, with respect thereto are superseded thereby.
SECTION 12.19. GOVERNING LAW. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be
construed and determined in accordance with the internal laws of the State
of Illinois.
SECTION 12.20. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
The Borrower and each Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Northern District
of Illinois and of any Illinois State court sitting in the City of Chicago
for purposes of all legal proceedings arising out of or relating to this
Agreement, the other Credit Documents or the transactions contemplated
hereby or thereby. The Borrower and each Guarantor irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. THE BORROWER, EACH GUARANTOR,
THE ADMINISTRATIVE AGENT, THE L/C ISSUER AND EACH BANK HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO ANY CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY. The Borrower and each Guarantor (other than the Parent) hereby
irrevocably designates, appoints and empowers the Parent as its designee,
appointee and agent to receive, accept and acknowledge for and on its
behalf, and in respect of its property, service of any and all legal
process, summons, notices and documents which may be served in any such
action or proceeding. If for any reason the Parent shall cease to be
available to act as such, the Borrower and each Guarantor (other than the
Parent) agrees to designate a new designee, appointee and agent in Chicago,
Illinois on the terms and for the purposes of this provision satisfactory
to the Administrative Agent under this Agreement. The Borrower and each
Guarantor hereby irrevocably waives any objection to such service of
process and further irrevocably waives and agrees not to plead or claim in
any action or proceeding commenced hereunder or under any other Credit
Document that service of process was in any way invalid or ineffective.
Nothing herein shall affect the right of the Administrative Agent, the L/C
Issuer, any Bank or the holder of any Obligation to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower or any Guarantor in any other jurisdiction.
58
SECTION 12.21. LIMITATION OF LIABILITY. In addition to, and not in
limitation of, any limitation on liability provided by law or by any
contract, agreement, instrument or document, the liability of each
Guarantor that is a partnership shall be limited to the assets of such
Guarantor, and no present or future partner of any such Guarantor shall
have any personal liability under this Agreement, except if such partner is
itself a Guarantor or the Borrower.
SECTION 12.22. CONFIDENTIALITY. Each Bank and the L/C Issuer agrees
to keep confidential any confidential written information provided to it by
or on behalf of the Borrower or the Parent pursuant to or in connection
with this Agreement; PROVIDED THAT nothing herein shall prevent any Bank
from disclosing any such information (i) to the Administrative Agent or any
other Bank, (ii) to any participant or assignee or prospective participant
or assignee so long as such participant or assignee or prospective
participant or assignee agrees in writing to the requirement that such
information be kept confidential in the manner contemplated by this
Section 12.22, (iii) to its employees involved in the administration of
this Agreement, directors, attorneys, accountants and other professional
advisors (each of which shall be instructed to hold the same in
confidence), (iv) in response to the request or demand of any governmental
authority, (v) in response to any order of any court or other governmental
authority or as may otherwise be required pursuant to any law, regulation
or legal process, PROVIDED, HOWEVER, that such Bank and the L/C Issuer, to
the extent legally permitted to do so, will use its best efforts to notify
the Parent prior to any disclosure of information contemplated by this
subparagraph (v), (vi) which has been publicly disclosed other than in
breach of this Agreement, or (vii) in connection with the exercise of any
remedy hereunder or under any Credit Document.
SECTION 12.23. SEVERABILITY OF PROVISIONS. Any provision of any
Credit Document which is unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
All rights, remedies and powers provided in this Agreement and the other
Credit Documents may be exercised only to the extent that the exercise
thereof does not violate any applicable mandatory provisions of law, and
all the provisions of this Agreement and other Credit Documents are
intended to be subject to all applicable mandatory provisions of law which
may be controlling and to be limited to the extent necessary so that they
will not render this Agreement or the other Credit Documents invalid or
unenforceable.
SECTION 12.24. EXCESS INTEREST. Notwithstanding any provision to
the contrary contained herein or in any other Credit Document, no such
provision shall require the payment or permit the collection of any amount
of interest in excess of the maximum amount of interest permitted by
applicable law to be charged for the use or detention, or the forbearance
in the collection, of all or any portion of the Loans, Swingline Loans or
other obligations outstanding under this Agreement or any other Credit
Document ("Excess Interest"). If any Excess Interest is provided for, or
is adjudicated to be provided for, herein or in any other Credit Document,
then in such event (a) the provisions of this Section shall govern and
control, (b) neither the Borrower nor any guarantor or endorser shall be
obligated to pay any Excess Interest, (c) any Excess Interest that the
Administrative Agent or any Bank may have received hereunder shall, at the
option of the Administrative Agent, be (i) applied as a credit against the
then outstanding principal amount of Obligations hereunder and accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by
applicable law), (ii) refunded to the Borrower, or (iii) any combination of
the foregoing, (d) the interest rate payable hereunder or under any other
Credit Document shall be automatically subject to reduction to the maximum
lawful contract rate allowed under applicable usury laws (the "Maximum
Rate"), and this Agreement and the other Credit Documents shall be deemed
to have been, and shall be, reformed and modified to reflect such reduction
59
in the relevant interest rate, and (e) neither the Borrower nor any
guarantor or endorser shall have any action against the Administrative
Agent or any Bank for any damages whatsoever arising out of the payment or
collection of any Excess Interest. Notwithstanding the foregoing, if for
any period of time interest on any of Borrower's Obligations is calculated
at the Maximum Rate rather than the applicable rate under this Agreement,
and thereafter such applicable rate becomes less than the Maximum Rate, the
rate of interest payable on the Borrower's Obligations shall remain at the
Maximum Rate until the Banks have received the amount of interest which
such Banks would have received during such period on the Borrower's
Obligations had the rate of interest not been limited to the Maximum Rate
during such period.
SECTION 12.25. CONSTRUCTION. NOTHING CONTAINED HEREIN SHALL BE
DEEMED OR CONSTRUED TO PERMIT ANY ACT OR OMISSION WHICH IS PROHIBITED BY
THE TERMS OF ANY CREDIT DOCUMENT, THE COVENANTS AND AGREEMENTS CONTAINED
HEREIN BEING IN ADDITION TO AND NOT IN SUBSTITUTION FOR THE COVENANTS AND
AGREEMENTS CONTAINED IN THE CREDIT DOCUMENTS.
SECTION 12.26. BANK'S AND L/C ISSUER'S OBLIGATIONS SEVERAL. The
obligations of the L/C Issuer and the Banks hereunder are several and not
joint. Nothing contained in this Agreement and no action taken by the
Banks or L/C Issuer pursuant hereto shall be deemed to constitute the Banks
and L/C Issuer a partnership, association, joint venture or other entity.
SECTION 12.27. USA PATRIOT ACT. Each Bank and L/C Issuer that is
subject to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act") hereby notifies the
Borrower and each Guarantor that pursuant to the requirements of the Act,
it is required to obtain, verify, and record information that identifies
the Borrower and each Guarantor, which information includes the name and
address of the Borrower and each Guarantor and other information that will
allow such Bank and L/C Issuer to identify the Borrower and each Guarantor
in accordance with the Act.
SECTION 12.28. EQUALIZATION OF LOANS AND COMMITMENTS. Upon the
satisfaction of the conditions precedent set forth in Section 6.1 hereof,
all "Loans" and "Letters of Credit" outstanding under the Existing Credit
Agreement shall remain outstanding as the initial Borrowing of Loans and
Letters of Credit under this Agreement and, in connection therewith, the
Borrower shall be deemed to have prepaid all outstanding Eurocurrency Loans
on the Effective Date and shall pay to each Bank who is currently a party
to the Existing Credit Agreement any compensation due such Bank under
Section 1.12 of the Existing Credit Agreement as a result thereof. On the
Effective Date, the Banks each agree to make such purchases and sales of
interests in the outstanding Loans and interests in outstanding Letters of
Credit between themselves so that each Bank is then holding its relevant
Percentage of outstanding Loans and L/C Obligations. Such purchases and
sales shall be arranged through the Administrative Agent and each Bank
hereby agrees to execute such further instruments and documents, if any, as
the Administrative Agent may reasonably request in connection therewith.
60
SECTION 12.29. REMOVAL OF BANKS AND ASSIGNMENT OF INTERESTS. The
Departing Banks hereby agree to sell and assign without representation,
recourse, or warranty (except the Departing Banks each represent it has
authority to execute and deliver this Agreement and sell its Obligations
contemplated hereby, which Obligations are owned by such Departing Bank
free and clear of all Liens), and upon the satisfaction of the conditions
precedent set forth in Section 6.1 hereof the Banks hereby agree to
purchase, 100% of the Departing Bank's outstanding Obligations under the
Existing Credit Agreement and the Credit Documents (including, without
limitation, all of the loans held by the Departing Bank, together with all
of its interests in outstanding letters of credit) for a purchase price
equal to the outstanding principal balance of loans, which purchase price
shall be paid in immediately available funds on the Effective Date, so that
after such sale and purchase each Bank's outstanding Loans shall equal its
applicable Percentage. The Borrower shall pay all accrued but unpaid
interest and fees owed to the Departing Banks under the Existing Credit
Agreement as of the Effective Date. Such purchases and sales shall be
arranged through the Administrative Agent and the Departing Banks hereby
agree to execute such further instruments and documents, if any, as the
Administrative Agent may reasonably request in connection therewith. Upon
the execution and delivery of this Agreement by the Departing Banks, the
Banks, the Swingline Bank, the L/C Issuer, the Borrower and the Guarantors
and the payment of the Obligations owing to the Departing Banks, the
Departing Banks shall cease to be Banks under the Credit Agreement and the
other Credit Documents and (i) the Banks shall have the rights of the
Departing Banks thereunder subject to the terms and conditions hereof and
(ii) the Departing Banks shall have relinquished their rights (other than
rights to indemnification and reimbursements referred to in the Existing
Credit Agreement which survive the repayment of the Obligations owed to the
Departing Bank in accordance with its terms, including Section 12.6 and
12.15 thereof) and be released from their obligations under the Existing
Credit Agreement.
[Signature Pages to Follow]
61
In Witness Whereof, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date
first above written.
XXXXX XXXX LASALLE FINANCE B.V.
By /s/ X.X. Xxxxxxx
------------------------------
Title Managing Director
------------------------
XXXXX XXXX LASALLE INCORPORATED,
as Guarantor
By /s/ Xxxxx X. Xxxx
------------------------------
Title Vice President and
Treasurer
------------------------
XXXXX XXXX LASALLE CO-INVESTMENT, INC.,
as Guarantor
By /s/ Xxxxx X. Xxxx
------------------------------
Title Vice President and
Treasurer
------------------------
XXXXX XXXX LASALLE INTERNATIONAL, INC.,
as Guarantor
By /s/ Xxxxx X. Xxxx
------------------------------
Title Vice President and
Treasurer
------------------------
LASALLE INVESTMENT MANAGEMENT, INC.,
as Guarantor
By /s/ Xxxxx X. Xxxx
------------------------------
Title Vice President and
Treasurer
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-1
XXXXX LANG LASALLE AMERICAS, INC.,
as Guarantor
By /s/ Xxxxx X. Xxxx
------------------------------
Title Vice President and
Treasurer
------------------------
XXXXX LANG LASALLE LIMITED,
as Guarantor
By /s/ Xxxxx X. Xxxx
------------------------------
Title Attorney-in-Fact
------------------------
XXXXX LANG LASALLE GmbH, as Guarantor
By /s/ Xxxxx X. Xxxx
------------------------------
Title Attorney-in-Fact
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-2
BANK OF MONTREAL, as Administrative
Agent and L/C Issuer
By /s/ Xxxxxxxx Xxxxx
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-3
BMO CAPITAL MARKETS FINANCING, INC.,
as Swingline Bank and as a Bank
By /s/ Xxxxxxxx Xxxxx
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-4
BANK OF AMERICA, N.A.
By /s/ Xxxx X. Xxxxxxxxx
------------------------------
Title Senior Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-5
LASALLE BANK NATIONAL ASSOCIATION
By /s/ Xxxx Xxxxxxxxxx
------------------------------
Title Group Senior
Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-6
THE ROYAL BANK OF SCOTLAND plc
By /s/ Xxxxx Xxxxxxx
------------------------------
Title Relationship Director
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-7
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx X. XxXxxxx
------------------------------
Title Senior Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-8
BARCLAYS BANK plc
By /s/ Xxxxxx Xxxx
------------------------------
Title Manager
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-9
FIFTH THIRD BANK (CHICAGO),
a Michigan banking corporation
By /s/ Xxxxxx X. Xxxxxxx
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
X-00
Xxxxxxxx Xxxx Xxxx, successor by merger
to National City Bank of the Midwest
By /s/ Xxxxx Xxxxxxxx
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-11
XXXXX FARGO BANK, N.A.
By /s/ Andy Cavallari
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-12
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Title Senior Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-13
HSBC Bank PLC
By /s/ Xxxxxxx Xxxx
------------------------------
Title Global Relationship
Manager
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
X-00
XXX XXXX XX XXX XXXX
By /s/ Xxxxx X. Xxxxx
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-15
THE NORTHERN TRUST COMPANY
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-16
XXXXXX X.X., as a Departing Bank
By /s/ Xxxxxxxx Xxxxx
------------------------------
Title Vice President
------------------------
[ AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ]
S-17
EXHIBIT A-1
NOTE
________________, _____
For Value Received, the undersigned, Xxxxx Xxxx LaSalle Finance B.V.,
a private company with limited liability organized under the laws of The
Netherlands (the "Borrower"), promises to pay to the order of
________________________ (the "Bank") on the Termination Date of the
hereinafter defined Credit Agreement, at the principal office of Bank of
Montreal, as Administrative Agent, in Chicago, Illinois, (or in the case of
Eurocurrency Loans denominated in an Alternative Currency, at such office
as the Administrative Agent has previously notified the Borrower) in the
currency of such Loan in accordance with Section 3.1 of the Credit
Agreement, the aggregate unpaid principal amount of all Loans made by the
Bank to the Borrower pursuant to the Credit Agreement, together with
interest on the principal amount of each Loan from time to time outstanding
hereunder at the rates, and payable in the manner and on the dates,
specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Note, which is a part hereof, each Loan made by it
pursuant to the Credit Agreement, together with all payments of principal
and interest and the principal balances from time to time outstanding
hereon, whether the Loan is a Domestic Rate Loan or a Eurocurrency Loan,
the currency thereof and the interest rate and Interest Period applicable
thereto, PROVIDED that prior to the transfer of this Note all such amounts
shall be recorded on a schedule attached to this Note. The record thereof,
whether shown on such books or records or on a schedule to this Note, shall
be PRIMA FACIE evidence of the same, PROVIDED, HOWEVER, that the failure of
the Bank to record any of the foregoing or any error in any such record
shall not limit or otherwise affect the obligation of the Borrower to repay
all Loans made to it pursuant to the Credit Agreement together with accrued
interest thereon.
This Note is one of the Notes referred to in the Amended and Restated
Multicurrency Credit Agreement dated as of June 6, 2007, among the
Borrower, the Guarantors party thereto, Bank of Montreal, as Administrative
Agent, and the Banks party thereto (as amended from time to time, the
"Credit Agreement"), and this Note and the holder hereof are entitled to
all the benefits provided for thereby or referred to therein, to which
Credit Agreement reference is hereby made for a statement thereof. All
defined terms used in this Note, except terms otherwise defined herein,
shall have the same meaning as in the Credit Agreement. This Note shall be
governed by and construed in accordance with the internal laws of the State
of Illinois.
Prepayments may be made hereon and this Note may be declared due
prior to the expressed maturity hereof, all in the events, on the terms and
in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
XXXXX LANG LASALLE FINANCE B.V.
By
------------------------------
Title
------------------------
X0-0
XXXXXXX X-0
SWINGLINE NOTE
________________, _____
For Value Received, the undersigned, Xxxxx Xxxx LaSalle Finance B.V.,
a private company with limited liability organized under the laws of The
Netherlands (the "Borrower"), promises to pay to the order of
________________________ (the "Bank") on the earlier of (i) the last day of
its Interest Period and (ii) the Termination Date of the hereinafter
defined Credit Agreement, at the principal office of Bank of Montreal, as
Administrative Agent, in Chicago, Illinois, in the currency of such
Swingline Loan in accordance with Section 3.1 of the Credit Agreement, the
aggregate unpaid principal amount of all Swingline Loans made by the Bank
to the Borrower pursuant to the Credit Agreement, together with interest on
the principal amount of each Swingline 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 Swingline 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 Quoted
Rate 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 Swingline Loans made to it pursuant to the Credit Agreement together
with accrued interest thereon.
This Swingline Note is one of the Notes referred to in the Amended
and Restated Multicurrency Credit Agreement dated as of June 6, 2007, among
the Borrower, the Guarantors party thereto, Bank of Montreal, as
Administrative Agent, and the Banks party thereto (as amended from time to
time, the "Credit Agreement"), and this Swingline 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 Swingline Note, except terms
otherwise defined herein, shall have the same meaning as in the Credit
Agreement. This Swingline 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 Swingline Note may be
declared due prior to the expressed maturity hereof, all in the events, on
the terms and in the manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
XXXXX LANG LASALLE FINANCE B.V.
By
------------------------------
Title
------------------------
A2-1
EXHIBIT B
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Bank of Montreal, as
Administrative Agent, pursuant to the Amended and Restated Multicurrency
Credit Agreement (as amended from time to time, the "Credit Agreement")
dated as of June 6, 2007, by and among Xxxxx Xxxx LaSalle Finance B.V., the
Banks signatory thereto and Bank of Montreal, as Administrative Agent.
Unless otherwise defined herein, the terms used in this Compliance
Certificate have the meanings ascribed thereto in the Credit Agreement.
The undersigned hereby certifies that:
1. I am the duly elected or appointed ________________ of
Xxxxx Lang LaSalle Incorporated;
2. I have reviewed the terms of the Credit Agreement and I
have made, or have caused to be made under my supervision, a detailed
review of the transactions and conditions of Xxxxx Xxxx LaSalle
Incorporated and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any condition
or event which constitutes a Default or an Event of Default during or
at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth
below; and
4. The representations and warranties contained in Section 5
of the Credit Agreement are true and correct in all material respects
as though made on the date hereof (other than those made solely as of
an earlier date, which need only remain true as of such date), taking
into account any amendments to such Section (including without
limitation any amendments to the Schedules referenced therein) made
after the date of the Credit Agreement in accordance with its
provisions.
5. Schedule 1 attached hereto sets forth financial data and
computations evidencing compliance with certain covenants of the
Credit Agreement, all of which data and computations are true,
complete and correct. All computations are made in accordance with
the terms of the Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Parent has taken, is taking,
or proposes to take with respect to each such condition or event:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
The foregoing certifications, together with the computations set
forth in Schedule 1 hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this __________ day
of _____________, _____.
__________________________________
B-1
SCHEDULE I TO THE COMPLIANCE CERTIFICATE
Schedule of Compliance, as of the _________ day of _____________,
_____, with the Sections of the Agreement set forth below:
1. SECTION 7.14(k) (Investments)
A. Investments acquired since the Effective Date $____________
Name Amount
---------- ----------
---------- ----------
---------- ----------
---------- ----------
B. The portion of Investments listed in Section 1A $____________
that have been disposed of
Name Amount
---------- ----------
---------- ----------
---------- ----------
---------- ----------
C. Line 1A minus Line 1B $____________
(must not exceed $300,000,000)
D. The Borrower is in compliance Yes/No
2. SECTION 7.15 (Consolidated Net Worth)
A. Total stockholder's equity of the Parent $____________
and its Restricted Subsidiaries
(must be equal to or greater than $___________)
B. The Borrower is in compliance Yes/No
3. SECTION 7.16 (Total Funded Debt to Adjusted EBITDA)
A. Total Funded Debt of the Parent and its $____________
Restricted Subsidiaries
B. Net Income $____________
C. Amounts deducted in arriving at
Net Income in respect of
(i) Interest Expense $____________
(ii) federal, state and local $____________
income taxes
(iii) depreciation of fixed assets $____________
and amortization of intangible
assets
(iv) non-cash contributions and $____________
accruals to deferred profit
sharing or compensation plans
(v) Permitted Adjustments $____________
-1-
D. Sum of Lines 3B, 3C(i), 3C(ii), 3C(iii), 3C(iv) $____________
and 3C(v) ("Adjusted EBITDA")
E. Ratio of Line 3A to Line 3D (not to exceed ______ to 1.00
3.50 to 1.00)
F. The Borrower is in compliance Yes/No
4. SECTION 7.17 (Interest Coverage Ratio)
A. Adjusted EBIT (Line 3D above) $____________
B. Interest Expense $____________
C. Ratio of Line 4A to Line 4B ______ to 1.00
(must be greater than or
equal to 2.50 to 1.00)
D. The Borrower is in compliance Yes/No
-2-
EXHIBIT C
SUBSIDIARY GUARANTEE AGREEMENT
_______________, ____
Bank of Montreal, as Administrative
Agent for the Banks party to the
Amended and Restated Multicurrency
Credit Agreement dated as of June 6,
2007 among Xxxxx Lang LaSalle Finance
B.V., certain Guarantors, such Banks
and such Administrative Agent (as
amended from time to time, the "Credit
Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement shall have for the
purposes hereof the meaning provided therein.
The undersigned, [NAME OF SUBSIDIARY GUARANTOR], a [JURISDICTION OF
INCORPORATION] corporation, hereby elects to be a "Guarantor" for all
purposes of the Credit Agreement, effective from the date hereof. The
undersigned confirms that the representations and warranties set forth in
Section 5 of the Credit Agreement are true and correct as to the
undersigned as of the date hereof.
Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all the obligations of a Guarantor under, and to
be bound in all respects by the terms of, the Credit Agreement, including
without limitations Section 11 thereof, to the same extent and with the
same force and effect as if the undersigned were a direct signatory
thereto.
This Agreement shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
Very truly yours,
[NAME OF SUBSIDIARY GUARANTOR]
By
------------------------------
Name
------------------------------
Title
------------------------------
C-1
EXHIBIT D
COMMITMENT AMOUNT INCREASE REQUEST
To: Bank of Montreal, as Administrative Agent for the Banks parties to
the Amended and Restated Multicurrency Credit Agreement dated as of June 6,
2007 (as extended, renewed, amended or restated from time to time, the
"Credit Agreement"), among Xxxxx Xxxx LaSalle Finance B.V., the Guarantors
party thereto, certain Banks which are signatories thereto, and Bank of
Montreal, as Administrative Agent
Ladies and Gentlemen:
The undersigned, Xxxxx Lang LaSalle Finance B.V. (the "Borrower")
hereby refers to the Credit Agreement and requests that the Administrative
Agent, L/C Issuer and Swingline Bank consent to an increase in the
aggregate Commitments (the "Commitment Amount Increase"), in accordance
with Section 1.15 of the Credit Agreement, to be effected by [AN INCREASE
IN THE COMMITMENT OF [NAME OF EXISTING BANK] [THE ADDITION OF [NAME OF NEW
BANK] (THE "NEW BANK") AS A BANK UNDER THE TERMS OF THE CREDIT AGREEMENT].
Capitalized terms used herein without definition shall have the same
meanings herein as such terms have in the Credit Agreement.
After giving effect to such Commitment Amount Increase, the
Commitment of the [BANK] [NEW BANK] shall be $_____________.
[INCLUDE PARAGRAPHS 1-3 FOR A NEW BANK]
1. The New Bank hereby confirms that it has received a copy of the
Credit Documents and the exhibits related thereto, together with copies of
the documents which were required to be delivered under the Credit
Agreement as a condition to the making of the Loans and other extensions of
credit thereunder. The New Bank acknowledges and agrees that it has made
and will continue to make, independently and without reliance upon the
Administrative Agent or any other Bank and based on such documents and
information as it has deemed appropriate, its own credit analysis and
decisions relating to the Credit Agreement. The New Bank further
acknowledges and agrees that the Administrative Agent has not made any
representations or warranties about the credit worthiness of the Borrower
or any other party to the Credit Agreement or any other Credit Document or
with respect to the legality, validity, sufficiency or enforceability of
the Credit Agreement or any other Credit Document or the value of any
security therefor.
2. Except as otherwise provided in the Credit Agreement, effective
as of the date of acceptance hereof by the Administrative Agent, the New
Bank (i) shall be deemed automatically to have become a party to the Credit
Agreement and have all the rights and obligations of a "Bank" under the
Credit Agreement as if it were an original signatory thereto and
(ii) agrees to be bound by the terms and conditions set forth in the Credit
Agreement as if it were an original signatory thereto.
3. The New Bank hereby confirms that its administrative details
are set forth in its Administrative Questionnaire.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER,
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF ILLINOIS.
D-1
The Commitment Amount Increase shall be effective when the executed
consent of the Administrative Agent is received or otherwise in accordance
with Section 1.15 of the Credit Agreement, but not in any case prior to
___________________, ____. It shall be a condition to the effectiveness of
the Commitment Amount Increase that all expenses referred to in
Section 1.15 of the Credit Agreement shall have been paid.
The Borrower hereby certifies that no Default or Event of Default has
occurred and is continuing.
Please indicate the Administrative Agent's consent to such Commitment
Amount Increase by signing the enclosed copy of this letter in the space
provided below.
Very truly yours,
XXXXX XXXX LASALLE FINANCE B.V.
By
------------------------------
Name:
------------------------
Title:
------------------------
[New or existing Bank Increasing
Commitments]
By
------------------------------
Name:
------------------------
Title:
------------------------
The undersigned hereby consents on
this ___ day of ____________, ______
to the above-requested Commitment
Amount Increase.
Bank of Montreal,
As Administrative Agent
By
------------------------------
Name
------------------------
Title
------------------------
------------------------------
as Swingline Bank
By
------------------------------
Name
------------------------
Title
------------------------
D-2
EXHIBIT E
ASSIGNMENT AND ACCEPTANCE
Dated _____________, _____
Reference is made to the Credit Agreement dated as of June 6, 2007
(the "Credit Agreement") among Xxxxx Lang LaSalle Finance B.V., the
Guarantors from time to time party thereto, the Banks from time to time
party thereto, and Bank of Montreal, as Administrative Agent for the Banks
(the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
______________________________________________________ (the
"Assignor") and _________________________ (the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, the
amount and specified percentage interest shown on Schedule 1 hereto
of the Assignor's rights and obligations under the Credit Agreement
as of the Effective Date (as defined below), including, without
limitation, such percentage interest in the Assignor's Commitment as
in effect on the Effective Date and the Loans, if any, owing to the
Assignor on the Effective Date and the Assignor's Percentage of any
outstanding L/C Obligations and Swingline Loans.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim, lien, or encumbrance of any kind; (ii) makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection
with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower, Parent or any Subsidiary or the performance or observance
by the Borrower, Parent or any Subsidiary of any of their respective
obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the most recent
financial statements delivered to the Banks pursuant to Section 7.6
(a) and (b) thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it
will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on
its behalf and to exercise such powers under the Credit Agreement and
the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Bank;
and (v) specifies as its lending office (and address for notices) the
offices set forth in its Administrative Questionnaire.
E-1
4. As consideration for the assignment and sale contemplated
in Annex 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in Federal funds the amount agreed upon between them.
It is understood that commitment and/or letter of credit fees accrued
to the Effective Date with respect to the interest assigned hereby
are for the account of the Assignor and such fees accruing from and
including the date hereof are for the account of the Assignee. Each
of the Assignor and the Assignee hereby agrees that if it receives
any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such
other party to the extent of such other party's interest therein and
shall promptly pay the same to such other party.
5. The effective date for this Assignment and Acceptance
shall be ___________ (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance and recording by the
Administrative Agent and, if required, the Borrower.
6. Upon such acceptance and recording, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Bank thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Credit Agreement.
7. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments
under the Credit Agreement in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest
and Facility Fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement for periods prior to the
Effective Date directly between themselves.
8. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
[Assignor Bank]
By
------------------------------
Name
------------------------
Title
------------------------
[Assignee Bank]
By
------------------------------
Name
------------------------
Title
------------------------
E-2
Accepted and consented this
____ day of _____________
XXXXX XXXX LASALLE FINANCE B.V.
By
------------------------------
Name
------------------------
Title
------------------------
Accepted and consented to by the Administrative
Agent and L/C Issuer this ___ day of ________
BANK OF MONTREAL, as Administrative Agent and L/C Issuer
By
------------------------------
Name
------------------------
Title
------------------------
------------------------------,
as Swingline Bank
By
------------------------------
Name
------------------------
Title
------------------------
E-3
ANNEX I
TO ASSIGNMENT AND ACCEPTANCE
The assignee hereby purchases and assumes from the assignor the
following interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the effective date.
AGGREGATE AMOUNT TO PERCENTAGE
COMMITMENT/LOANS COMMITMENT/LOANS ASSIGNED OF
FOR ALL BANKS ASSIGNED COMMITMENT/LOANS
$__________ $__________ ______%
SCHEDULE 1
COMMITMENTS
NAME OF BANK COMMITMENT
BMO Capital Markets Financing, Inc. $75,000,000
Bank of America, N.A $65,000,000
LaSalle Bank National Association $65,000,000
The Royal Bank of Scotland plc $65,000,000
U.S. Bank National Association $50,000,000
Barclays Bank PLC $45,000,000
Fifth Third Bank (Chicago), a Michigan
banking corporation $45,000,000
National City Bank $45,000,000
Xxxxx Fargo Bank, N.A. $35,000,000
PNC Bank, National Association $30,000,000
HSBC Bank PLC $20,000,000
The Northern Trust Company $20,000,000
The Bank of New York $15,000,000
SCHEDULE 1.3
EXISTING LETTERS OF CREDIT
NUMBER BENEFICIARY XXXXXX XXXXXXXX XXXXXXXX
Xxxx00000XX Xxxx Xxxx and
Shanghai Banking 1,000,000 USD 07/06/07
Hach19945OS Hong Kong and
Shanghai Banking 250,000 USD 06/01/08
Xxxx00000XX XxXxxxx Investment
Management 7,000,000 EUR 09/08/07
Hach20375OS The Travelers
Indemnity Company 2,050,000 USD 12/31/07
Hach63612OS Federal Insurance
Company 6,240,000 USD 01/01/08
Xxxx00000XX XxXxxxx Beheer B.V. 1,000,000 EUR 06/24/07
Hach77155OS Orchid Insurance
Limited 2,716,500 USD 06/23/07
Xxxx00000XX Xxxxxx Insurance
Limited 235,000 GBP 12/15/07
Xxxx00000XX Xxxxxx Insurance
Limited 3,500,000 USD 12/15/07
Hach122199OS One Post Office
Square LLC 730,802.32 USD 03/31/08
SCHEDULE 5.2
GUARANTORS
JURISDICTION OF PERCENTAGE
NAME INCORPORATION OWNERSHIP
Xxxxx Xxxx LaSalle Incorporated Maryland N/A
Xxxxx Lang LaSalle Americas, Inc. Maryland 100%
LaSalle Investment Management, Inc. Maryland 100%
Xxxxx Xxxx LaSalle International, Inc. Delaware 100%
Xxxxx Lang LaSalle Co-Investment, Inc. Maryland 100%
Xxxxx Xxxx LaSalle Limited England 100%
Xxxxx Lang LaSalle GmbH Germany 100%
SCHEDULE 7.14
EXISTING INVESTMENTS
