UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO __________
Commission file number 1-13145
LASALLE PARTNERS INCORPORATED
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland 36-4150422
------------------------- ---------------------------------
(State or other jurisdic- (IRS Employer Identification No.)
tion of incorporation or
organization)
200 East Randolph Drive, Chicago, IL 60601
- --------------------------------------- ----------
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code 312/782-5800
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [ X ] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Outstanding at
Class November 13, 1998
----- -----------------
Common Stock ($0.01 par value) 16,230,358
<PAGE>
TABLE OF CONTENTS
PART I FINANCIAL INFORMATION
Item 1. Financial Statements . . . . . . . . . . . . . . . 3
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations. . . . . . . . 18
Item 3. Quantitative and Qualitative Disclosures about
Market Risk. . . . . . . . . . . . . . . . . . . . 26
PART II OTHER INFORMATION
Item 1. Legal Proceedings. . . . . . . . . . . . . . . . . 26
Item 5. Other Matters. . . . . . . . . . . . . . . . . . . 26
Item 6. Exhibits and Reports on Form 8-K . . . . . . . . . 27
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
LA SALLE PARTNERS INCORPORATED
CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, 1998 AND DECEMBER 31, 1997
($ in thousands, except share data)
(UNAUDITED)
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- -----------
ASSETS
- ------
Current assets:
Cash and cash equivalents . . . . . . . $ 15,214 30,660
Trade receivables, net. . . . . . . . . 69,616 80,565
Notes receivable. . . . . . . . . . . . 16,144 6,995
Other receivables . . . . . . . . . . . 6,489 2,400
Prepaid expenses. . . . . . . . . . . . 2,006 2,055
Deferred tax benefit. . . . . . . . . . 5,104 5,104
-------- ---------
Total current assets. . . . . . 114,573 127,779
Property and equipment, at cost,
less accumulated depreciation of
$33,610 and $28,993 in 1998
and 1997, respectively. . . . . . . . . 23,360 16,098
Intangibles resulting from
business acquisitions, net of
accumulated amortization of $8,997
and $5,698 in 1998 and 1997,
respectively. . . . . . . . . . . . . . 53,120 50,366
Investments in real estate ventures . . . 50,965 18,080
Long-term receivables, net. . . . . . . . 8,014 6,607
Other assets, net . . . . . . . . . . . . 2,845 957
-------- ----------
$252,877 219,887
======== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Accounts payable and
accrued liabilities . . . . . . . . . $ 27,150 25,781
Accrued compensation. . . . . . . . . . 32,822 40,163
Other liabilities . . . . . . . . . . . 6,296 6,100
-------- ----------
Total current liabilities . . . 66,268 72,044
Long-term credit facility . . . . . . . . 28,442 --
Other long-term liabilities . . . . . . . 1,134 946
Commitments and contingencies
-------- ----------
Total liabilities . . . . . . . 95,844 72,990
<PAGE>
LA SALLE PARTNERS INCORPORATED
CONSOLIDATED BALANCE SHEETS - CONTINUED
SEPTEMBER 30, 1998 AND DECEMBER 31, 1997
($ in thousands, except share data)
(UNAUDITED)
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- -----------
Stockholders' equity:
Common stock, $.01 par value per share,
100,000,000 shares authorized;
16,230,358 shares issued and
outstanding . . . . . . . . . . . . . 162 162
Additional paid-in capital. . . . . . . 122,696 121,778
Retained earnings . . . . . . . . . . . 33,003 24,327
Accumulated other comprehensive
income. . . . . . . . . . . . . . . . 1,172 630
-------- ----------
Total stockholders' equity. . . 157,033 146,897
-------- ----------
$252,877 219,887
======== ==========
See accompanying notes to consolidated financial statements.
<PAGE>
<TABLE>
LA SALLE PARTNERS INCORPORATED
CONSOLIDATED AND COMBINED STATEMENTS OF EARNINGS AND COMPREHENSIVE INCOME
THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
($ in thousands, except share data)
(UNAUDITED)
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------ ------------------------
1998 1997 1998 1997
--------- -------- --------- --------
<S> <C> <C> <C> <C>
Revenue:
Fee-based services. . . . . . . . . . . . . . . . $ 63,611 51,310 186,067 138,697
Equity in earnings from
unconsolidated ventures . . . . . . . . . . . . 466 109 2,340 1,848
Other income. . . . . . . . . . . . . . . . . . . 755 439 1,702 937
-------- -------- -------- --------
Total revenue . . . . . . . . . . . . . . . 64,832 51,858 190,109 141,482
Operating expenses:
Compensation and benefits . . . . . . . . . . . . 37,739 29,515 116,775 86,112
Operating, administrative and other . . . . . . . 16,265 13,851 50,057 36,993
Depreciation and amortization . . . . . . . . . . 2,599 2,541 8,177 6,495
-------- -------- -------- --------
Total operating expenses. . . . . . . . . . 56,603 45,907 175,009 129,600
-------- -------- -------- --------
Operating income. . . . . . . . . . . . . . 8,229 5,951 15,100 11,882
Interest expense. . . . . . . . . . . . . . . . . . 413 283 992 3,859
-------- -------- -------- --------
Earnings before provision (benefit)
for income taxes . . . . . . . . . . . . 7,816 5,668 14,108 8,023
Net provision (benefit) for income taxes. . . . . . 3,010 (1,942) 5,432 (1,808)
-------- -------- -------- --------
Net earnings. . . . . . . . . . . . . . . . $ 4,806 7,610 8,676 9,831
======== ======== ======== ========
<PAGE>
LA SALLE PARTNERS INCORPORATED
CONSOLIDATED AND COMBINED STATEMENTS OF EARNINGS AND COMPREHENSIVE INCOME - CONTINUED
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------ ------------------------
1998 1997 1998 1997
--------- ---------- ---------- ----------
Other comprehensive income (loss), net of tax:
Foreign currency translation adjustments. . . . . $ 244 (488) 542 (1,053)
---------- ---------- ---------- ----------
Comprehensive income. . . . . . . . . . . . . . . . $ 5,050 7,122 9,218 8,778
========== ========== ========== ==========
Basic earnings per common share (1) . . . . . . . . $ 0.30 0.51 0.54 0.51
=========== ========== ========== ==========
Weighted average shares outstanding . . . . . . . . 16,230,358 16,200,000 16,210,340 16,200,000
========== ========== ========== ==========
Diluted earnings per common share (1) . . . . . . . $ .29 0.51 0.53 0.51
========== ========== ========== ==========
Diluted weighted average shares outstanding . . . . 16,446,906 16,306,171 16,403,225 16,306,171
========== ========== ========== ==========
<FN>
(1) Earnings per share for 1997 is calculated based on earnings for the period from incorporation,
July 22, 1997 through September 30, 1997.
See accompanying notes to consolidated and combined financial statements.
</TABLE>
<PAGE>
<TABLE> LA SALLE PARTNERS INCORPORATED
CONSOLIDATED AND COMBINED STATEMENTS OF STOCKHOLDERS' EQUITY
PERIODS ENDED SEPTEMBER 30, 1998 AND DECEMBER 31, 1997
($ in thousands, except share data)
(UNAUDITED)
<CAPTION>
Partners'
Capital Effect of
Common Stock Additional Retained (Deficit) Cumulative
------------------- Paid-In Earnings Predecessor Translation
Shares Amount Capital (Deficit) Partnerships Adjustment Total
---------- ------ ---------- --------- ------------ ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Balances at January 1,
1997. . . . . . . . . . -- -- -- -- $ 23,148 1,099 24,247
Net earnings (through
July 21, 1997). . . . -- -- -- -- 1,513 -- 1,513
Distributions. . . . . -- -- -- -- (14,835) -- (14,835)
Acquisition of the
Galbreath Company
common stock. . . . . -- -- -- -- 29,292 -- 29,292
Effect of the
reorganization. . . . 12,200,000 $ 122 38,996 -- (39,118) -- --
Net proceeds from the
initial Offering. . . 4,000,000 40 82,782 -- -- -- 82,822
Other. . . . . . . . . -- -- -- -- -- (565) (565)
---------- ------ -------- ------ ------- ------ --------
Balances after the
reorganization and
initial Offering. . . . 16,200,000 162 121,778 -- -- 534 122,474
Net earnings (July 22,
1997 through
December 31, 1997) . -- -- -- 24,327 -- -- 24,327
Other. . . . . . . . . -- -- -- -- -- 96 96
---------- ------ -------- ------ ------- ------ --------
Balances at December 31,
1997. . . . . . . . . . 16,200,000 162 121,778 24,327 -- 630 146,897
Net earnings . . . . . -- -- -- 8,676 -- -- 8,676
Shares issued under
stock purchase plan. 30,358 -- 918 -- -- -- 918
Other. . . . . . . . . -- -- -- -- -- 542 542
---------- ------ -------- ------ ------- ------ --------
Balances at
September 30, 1998. . . 16,230,358 $ 162 122,696 33,003 -- 1,172 157,033
========== ====== ======== ====== ======= ====== ========
<FN>
See accompanying notes to consolidated and combined financial statements.
</TABLE>
<PAGE>
LA SALLE PARTNERS INCORPORATED
CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS
NINE MONTHS ENDED SEPTEMBER 30, 1998 AND 1997
($ in thousands)
(UNAUDITED)
1998 1997
-------- --------
Cash flows from operating activities:
Net earnings. . . . . . . . . . . . . . . . . $ 8,676 9,831
Reconciliation of net earnings to net
cash provided by (used in) operating activities:
Depreciation and amortization . . . . . . . 8,177 6,495
Equity in earnings from unconsolidated
ventures. . . . . . . . . . . . . . . . . (2,340) (1,848)
Provision for loss on receivables and
other assets. . . . . . . . . . . . . . . 1,218 1,659
Operating distributions from real
estate ventures . . . . . . . . . . . . . 2,585 2,562
Deferred compensation amortization. . . . . 143 --
Foreign exchange loss . . . . . . . . . . . 106 --
Loss (gain) on disposition of property
and equipment . . . . . . . . . . . . . . (39) (196)
Tax benefit on SFAS No. 109 Conversion. . . -- (5,037)
Changes in:
Receivables . . . . . . . . . . . . . . . . 5,683 29,366
Prepaid expenses and other assets . . . . . (1,066) (268)
Accounts payable, accrued liabilities and
accrued compensation. . . . . . . . . . . (4,841) (25,428)
-------- --------
Net cash provided by
operating activities. . . . . . . . . 18,302 17,136
Cash flows provided by (used in) investing
activities:
Net capital additions - property and
equipment . . . . . . . . . . . . . . . . . (11,921) (3,376)
Acquisition of business-Satulah Group, Inc. . (5,465) --
Proceeds from disposition of property
and equipment . . . . . . . . . . . . . . . 170 224
Cash balances assumed in Galbreath
acquisition . . . . . . . . . . . . . . . . -- 1,008
Investments in real estate ventures:
Capital contributions and advances to
real estate ventures. . . . . . . . . . . (45,965) (9,002)
Distributions, repayments of advances
and sale of investments . . . . . . . . . 826 5,800
-------- --------
Net cash used in investing
activities. . . . . . . . . . . . . . (62,355) (5,346)
Cash flows provided by (used in) financing
activities:
Net borrowings under credit facility. . . . . 28,442 (71,115)
Distributions to partners . . . . . . . . . . -- (14,835)
Net proceeds from the initial offering. . . . -- 83,056
-------- --------
Net cash provided by (used in)
financing activities. . . . . . . . . 28,442 (2,894)
Effects of foreign currency translation
on cash balances. . . . . . . . . . . . . . . 165 (186)
-------- --------
<PAGE>
LA SALLE PARTNERS INCORPORATED
CONSOLIDATED AND COMBINED STATEMENTS OF CASH FLOWS - CONTINUED
1998 1997
-------- --------
Net increase (decrease) in cash
and cash equivalents. . . . . . . . . . . . . (15,446) 8,710
Cash and cash equivalents, January 1. . . . . . 30,660 7,207
-------- --------
Cash and cash equivalents, September 30 . . . . $ 15,214 15,917
======== ========
Supplemental disclosure of cash flow information:
Interest paid was $935 and $4,058 for the periods
ended September 30, 1998 and 1997, respectively.
Taxes paid were $1,930 and $847 for the periods
ended September 30, 1998 and 1997, respectively.
See accompanying notes to consolidated and combined financial statements.
<PAGE>
LA SALLE PARTNERS INCORPORATED
NOTES TO CONSOLIDATED AND COMBINED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998 AND 1997
($ in thousands, except share data)
(UNAUDITED)
Readers of this quarterly report should refer to the Company's audited
financial statements for the year ended December 31, 1997, which are
included in the Company's 1997 Form 10-K, filed with the Securities and
Exchange Commission, as certain footnote disclosures which would substan-
tially duplicate those contained in such audited financial statements have
been omitted from this report.
(1) ORGANIZATION
LaSalle Partners Incorporated [successor to LaSalle Partners Limited
Partnership and LaSalle Partners Management Limited Partnership
(collectively, the "Predecessor Partnerships")] was incorporated in
Maryland on April 15, 1997, (collectively referred to as the "Company").
On July 22, 1997, the Company completed an initial public offering (the
"Offering") of 4,000,000 shares of LaSalle Partners Incorporated common
stock, $.01 par value per share (the "Common Stock"). In addition, all of
the partnership interests held in the Predecessor Partnerships were
contributed to the Company, pursuant to agreements among the general and
limited partners, in exchange for an aggregate of 12,200,000 shares of
common stock. The contribution occurred immediately prior to the closing
of the Offering. The 4,000,000 shares were offered at $23 per share,
aggregating $82,822, net of offering costs, of which $63,490 was used to
retire long-term debt and related interest.
The Predecessor Partnerships were subject to a reorganization as part
of the incorporation of the Company. Due to the existence of a paired
share arrangement between the Predecessor Partnerships and between the
former general partners of the Predecessor Partnerships, as well as the
existence of identical ownership before and after the incorporation of the
Predecessor Partnerships, such transactions were accounted for in a manner
similar to the accounting used for a pooling of interests. Thus, the
Company's financial statements include the financial positions and results
of operations of the Predecessor Partnerships at their historical basis.
(2) INTERIM INFORMATION
The consolidated and combined financial statements as of
September 30, 1998 and for the three and nine month periods ended September
30, 1998 and 1997 are unaudited; however, in the opinion of management, all
adjustments (consisting solely of normal recurring adjustments) necessary
for a fair presentation of the consolidated and combined financial
statements for these interim periods have been included. The results for
the periods ended September 30, 1998 and 1997 are not necessarily
indicative of the results to be obtained for the full fiscal year.
(3) EARNINGS PER SHARE
Basic earnings per common share was based on weighted average shares
outstanding of 16,230,358 and 16,210,340 for the three and nine month
periods ended September 30, 1998, respectively. Diluted earnings per
common share was based on weighted average shares outstanding of 16,446,906
and 16,403,225 for the three and nine month periods ended September 30,
1998, respectively, which reflects increases of 216,548 and 192,885 shares
primarily representing the dilutive effect of outstanding stock options
whose exercise price was less than the average market price of the
Company's stock for the period and, to a lesser extent, the dilutive effect
of shares to be issued under the Company's employee stock benefit plans.
<PAGE>
(4) BUSINESS SEGMENTS
The Company's operations have been classified into three business
segments: Management Services, Corporate and Financial Services and
Investment Management. The Management Services segment provides three
primary service capabilities: (i) property and facility management and
leasing for property owners; (ii) development management for both investors
and real estate users seeking to develop new buildings or renovate existing
facilities; and (iii) project management of tenant improvements in both
owner-occupied and leased space. The Corporate and Financial Services
segment provides transaction and advisory services through three primary
service capabilities, including: (i) tenant representation for corporations
and professional services firms; (ii) investment banking services to
address the financing, acquisition, and disposition needs of real estate
owners; and (iii) land acquisition services for owners and users of land.
The Investment Management segment provides real estate investment
management services to institutional investors, corporations and high net
worth individuals.
Total revenue by industry segment includes revenue derived from
services provided to other segments. Operating income represents total
revenue less direct and indirect allocable expenses. The Company allocates
all expenses, other than interest and income taxes, as substantially all
expenses incurred benefit one or more of the segments.
Summarized unaudited financial information by business segment for
the three and nine month periods ended September 30, 1998 and 1997 is as
follows:
<PAGE>
<TABLE>
<CAPTION>
SEGMENT OPERATING RESULTS
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------ ------------------------
1998 1997 1998 1997
--------- -------- --------- --------
<S> <C> <C> <C> <C>
Management Services:
Revenue:
Property and facility management fees . . . . . $ 12,527 10,694 33,879 28,347
Leasing fees. . . . . . . . . . . . . . . . . . 9,051 7,179 19,990 13,178
Development management fees . . . . . . . . . . 2,591 2,148 6,786 4,892
Project management fees . . . . . . . . . . . . 4,361 1,889 12,361 4,985
Intersegment revenue. . . . . . . . . . . . . . 193 25 399 75
Other income. . . . . . . . . . . . . . . . . . 321 157 673 286
--------- ------- ------- -------
29,044 22,092 74,088 51,763
Operating expenses:
Compensation, operating and administrative
expenses . . . . . . . . . . . . . . . . . . . 27,251 21,580 78,624 53,092
Depreciation and amortization . . . . . . . . . 1,263 961 3,880 2,402
--------- ------- ------- -------
Operating income (loss) . . . . . . . . . . . $ 530 (449) (8,416) (3,731)
========= ======= ======= =======
Corporate and Financial Services:
Revenue:
Tenant representation fees. . . . . . . . . . . $ 10,784 7,600 20,965 18,084
Investment banking fees . . . . . . . . . . . . 6,278 3,678 20,832 9,590
Land fees . . . . . . . . . . . . . . . . . . . 2,696 1,147 5,304 2,939
Construction operations . . . . . . . . . . . . 250 225 807 635
Equity in earnings from unconsolidated ventures (47) 249 (53) 431
Intersegment revenue. . . . . . . . . . . . . . 429 -- 529 392
Other income. . . . . . . . . . . . . . . . . . 84 97 242 183
--------- ------- ------- -------
20,474 12,996 48,626 32,254
Operating expenses:
Compensation, operating and administrative
expenses . . . . . . . . . . . . . . . . . . . 14,288 9,592 41,357 27,333
Depreciation and amortization . . . . . . . . . 316 323 926 870
--------- ------- ------- -------
Operating income. . . . . . . . . . . . . . . $ 5,870 3,081 6,343 4,051
========= ======= ======= =======
<PAGE>
SEGMENT OPERATING RESULTS
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------ ------------------------
1998 1997 1998 1997
--------- -------- --------- --------
Investment Management:
Revenue:
Advisory fees . . . . . . . . . . . . . . . . . $ 14,228 15,512 61,620 54,145
Acquisition fees. . . . . . . . . . . . . . . . 845 1,238 3,524 1,902
Equity in earnings from unconsolidated ventures 513 (140) 2,393 1,417
Other income. . . . . . . . . . . . . . . . . . 350 185 786 468
--------- ------- ------- -------
15,936 16,795 68,323 57,932
Operating expenses:
Compensation, operating and administrative expenses 13,087 12,219 47,779 43,147
Depreciation and amortization . . . . . . . . . . 1,020 1,257 3,371 3,223
--------- ------- ------- -------
Operating income. . . . . . . . . . . . . . . $ 1,829 3,319 17,173 11,562
========= ======= ======= =======
Total segment revenue . . . . . . . . . . . . . . . $ 65,454 51,883 191,037 141,949
Intersegment revenue eliminations . . . . . . . . . (622) (25) (928) (467)
--------- ------- ------- -------
Total revenue . . . . . . . . . . . . . . . . $ 64,832 51,858 190,109 141,482
========= ======= ======= =======
Total segment operating expenses. . . . . . . . . . $ 57,225 45,932 175,937 130,067
Intersegment operating expense eliminations . . . . (622) (25) (928) (467)
--------- ------- ------- -------
Total operating expenses. . . . . . . . . . . $ 56,603 45,907 175,009 129,600
========= ======= ======= =======
Total operating income. . . . . . . . . . . . $ 8,229 5,951 15,100 11,882
========= ======= ======= =======
</TABLE>
<PAGE>
(5) PRO FORMA FINANCIAL INFORMATION
The following pro forma consolidated and combined statements of
earnings give effect to the acquisition of the common stock of Galbreath,
as adjusted for the Tenant Representation and Investment Banking units
which were not acquired, the provision for income taxes as though the
Company and Galbreath were taxable entities at an effective tax rate of
38.5%, the conversion of the Company to corporate form and the initial
public offering, including the receipt and application of the net proceeds
therefrom to repay long-term indebtedness and related interest, as if these
events occurred on January 1, 1997.
The pro forma adjustments are based upon available information and
certain assumptions that management of the Company believes are reasonable.
The pro forma consolidated and combined financial statements are not
necessarily indicative of what the actual results of operations would have
been for the three and nine month periods ended September 30, 1997 had the
Company completed the acquisition of the Galbreath common stock and
consummated its conversion to corporate form and the Offering transactions
as of the dates indicated nor does it purport to represent the future
financial position or results of operations of the Company. The three and
nine month periods ended September 30, 1998 represent the Company's actual
results of operations.
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30 SEPTEMBER 30
------------------------ ------------------------
ACTUAL PRO FORMA ACTUAL PRO FORMA
1998 1997 1998 1997
--------- -------- --------- --------
<S> <C> <C> <C> <C>
Revenue:
Fee-based services. . . . . . . . . . . . . . . . $ 63,611 51,310 186,067 146,548
Equity in earnings from unconsolidated ventures . 466 109 2,340 1,921
Other income. . . . . . . . . . . . . . . . . . . 755 439 1,702 1,224
---------- ---------- ---------- ----------
Total revenue . . . . . . . . . . . . . . . . . 64,832 51,858 190,109 149,693
Operating expenses:
Compensation and benefits . . . . . . . . . . . . 37,739 29,515 116,775 91,196
Operating, administrative and other . . . . . . . 16,265 14,039 50,057 39,920
Depreciation and amortization . . . . . . . . . . 2,599 2,541 8,177 7,158
---------- ---------- ---------- ----------
Total operating expenses. . . . . . . . . . . . 56,603 46,095 175,009 138,274
---------- ---------- ---------- ----------
Operating income. . . . . . . . . . . . . . . . 8,229 5,763 15,100 11,419
Interest expense. . . . . . . . . . . . . . . . . . 413 135 992 864
---------- ---------- ---------- ----------
Earnings before provision for income taxes. . . 7,816 5,628 14,108 10,555
Net provision for income taxes. . . . . . . . . . . 3,010 2,167 5,432 4,063
---------- ---------- ---------- ----------
Net earnings. . . . . . . . . . . . . . . . . . $ 4,806 3,461 8,676 6,492
========== ========== ========== ==========
Basic earnings per common share . . . . . . . . . . $ 0.30 0.21 0.54 0.40
========== ========== ========== ==========
Weighted average shares outstanding . . . . . . . . 16,230,358 16,200,000 16,210,340 16,200,000
========== ========== ========== ==========
Diluted earnings per common share . . . . . . . . . $ 0.29 0.21 0.53 0.40
========== ========== ========== ==========
Diluted weighted average shares outstanding . . . . 16,446,906 16,329,096 16,403,225 16,329,032
========== ========== ========== ==========
</TABLE>
<PAGE>
FOOTNOTE 5 - CONTINUED
Pro forma total revenue and operating expenses for Galbreath include
activities such as property management and leasing, facility management and
development management. Additional adjustments to operating expenses were
made for estimated incremental general and administrative costs associated
with operations as a public company totaling $187 and $563 for the three
and nine month periods ended September 30, 1997, respectively. As a result
of the repayment of the Company's long-term notes payable out of the
proceeds of the Offering, the related actual interest expense totaling $148
and $2,995 for the three and nine month periods ended September 30, 1997,
respectively, has been eliminated in the pro forma results. The pro forma
results further include an additional provision for income taxes totaling
$4,109 and $5,871 for the three and nine month periods ended September 30,
1997, respectively, giving effect to the conversion of the Company and
Galbreath to taxable entities.
(6) DEBT
In addition to its existing five year unsecured revolving credit
facility of $150,000, the Company obtained a $175 million credit facility
(the "Acquisition Facility") in September 1998 which is to be used
exclusively to fiance the acquisition of Compass (note 7). The Acquisition
Facility, which is placed with a syndicate of seven banks, has a one year
term with two six month extensions and bears a variable rate of interest
based on market rates. Under the terms of the revolving credit facility
and the Acquisition Facility (collectively, the "Facilities"), the Company
must maintain a certain level of consolidated net worth and ratio of funded
debt to earnings before interest expense, income taxes, depreciation and
amortization expense, and must meet a minimum fixed charge coverage ratio.
Additionally, the Company is restricted from, among other things, incurring
certain levels of indebtedness to lenders outside of the Facilities,
disposing of a significant portion of its assets, and is subject to lender
approval on certain levels of co-investment. As of September 30, 1998,
there were no outstanding borrowings on the Acquisition Facility. The
Company had $28,442 of outstanding borrowings on its revolving credit
facility at September 30, 1998, compared with no outstanding borrowings at
December 31, 1997.
(7) SUBSEQUENT EVENTS - ACQUISITIONS
On October 1, 1998, the Company acquired all of the common stock of
the following real estate service companies (collectively referred to as
"Compass") formerly owned by Lend Lease Corporation Limited ("Lend Lease"):
Compass Management and Leasing, Inc. and its wholly owned subsidiaries, The
Yarmouth Group Property Management, Inc., and ERE Yarmouth Retail, Inc.
(formerly Compass Retail, Inc.). On October 31, 1998, the Company also
acquired Compass Management and Leasing (Australia) Pty Limited, the Lend
Lease property and facility management business in Australia. The Company
paid $180,000 in cash for all of the acquired companies, which it financed
via borrowings on its Facilities. The purchase of the companies also
includes provisions for an earnout payment of up to $77,500 over five
years.
<PAGE>
FOOTNOTE 7 - CONTINUED
On October 22, 1998, the Company and Jones Lang Wootton ("JLW")
announced that they reached a definitive agreement to merge their
operations. JLW is an employee owned business and provides a wide range of
real estate advisory, transactional and asset management services to local,
national and international clients in both the private and public sectors
with more than 4,000 employees located in 32 countries throughout Europe,
Asia, North America, and Australia. The transaction, which is principally
structured as a share exchange, has been approved by the Company's Board of
Directors and the Boards of Directors of the JLW companies and
partnerships. Under the terms of the agreement, the Company will issue up
to 14.3 million shares of common stock, plus approximately $6,000 in cash,
subject to a closing net worth adjustment. The transaction is expected to
close in early 1999 and is subject to acceptance of the exchange offer by
JLW shareholders and partners, approval by the Company's shareholders,
regulatory and tax clearances, and other customary conditions, and there
can be no assurance it will be completed.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
LaSalle Partners Incorporated is a leading vertically integrated
global real estate services firm that provides management services,
corporate and financial services and investment management services to
corporations and other real estate owners and investors worldwide. The
Company has grown by expanding both its client base and its range of
services and products in anticipation of client needs. The Company
completed its initial public offering ("Offering") on July 22, 1997,
raising net proceeds of $82.8 million which were used primarily to repay
the Company's long-term debt and related interest of $63.5 million.
The Company has pursued a growth strategy that capitalizes on
existing client relationships and emerging industry trends. The key
components of the growth strategy include expanding client relationships to
increase the range of services currently provided in addition to developing
new client relationships, broadening its international presence and
selectively pursuing strategic acquisitions and co-investment
opportunities.
Since late 1994, the Company has completed the following strategic
acquisitions: Alex. Brown Kleinwort Benson Realty Advisors Corporation, a
real estate investment advisor, in November 1994; CIN Property Management,
a London-based investment advisor, in October 1996; The Galbreath Company,
a property and development management company, in April 1997; the project
management business of Satulah Group Inc., a project management/facilities
conversion company, in January 1998; and Compass Management and Leasing and
certain of its affiliates, a property management and leasing, facility
management and project management company with operations in the United
States, United Kingdom, Australia and Brazil, in October 1998.
Additionally, in October 1998 the Company and Jones Lang Wootton, an
employee owned international real estate services firm with operations in
Europe, Asia, Australia and the United States announced their intent to
merge operations.
The Company intends to continue to increase its co-investment with its
investment management clients. This strategy should serve to grow the
assets under management, generate returns on investment and create
potential opportunities to provide services related to the acquisition,
financing, property management, leasing and disposition of such
investments. As of September 30, 1998, the Company had a total investment
of $51.0 million in 41 separate property or fund co-investments with
additional capital commitments of $14.5 million for future fundings of co-
investments.
RESULTS OF OPERATIONS
THREE AND NINE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED WITH THREE AND
NINE MONTHS ENDED SEPTEMBER 30, 1997
REVENUE
The Company's total revenue, after elimination of intersegment
revenue, grew $13.0 million, or 25.0%, to $64.8 million for the three
months ended September 30, 1998 and grew $48.6 million, or 34.4%, to $190.1
million for the nine months ended September 30, 1998 from the prior year
periods. Despite recent volatile conditions in the economy and activity
declines in the domestic real estate and capital markets, increased
revenues for both periods were driven primarily by the strong U.S. economy;
significant inflows of capital to the real estate market for most of the
nine months ended September 30, 1998; an ongoing trend toward consolidation
in many financial services businesses; and the Company's ability to cross-
market real estate services to its clients.
<PAGE>
These increases have been partially offset by a decline in property
management, disposition, leasing and investment management fees from four
multiple investor funds ("Commingled Funds") formed by the Company in the
1980s. The decline is a result of the current and continuing disposition of
the funds' assets, in accordance with the strategic plan. These asset
dispositions are expected to be substantially completed by the end of 1998.
Revenue generated from these funds compared with total revenue was
approximately 1% for the three and nine months ended September 30, 1998 and
approximately 6% for the prior year periods.
Revenue for the Company's Management Services segment, which
represented 44.5% and 38.8%, respectively, of the Company's total revenue
for the three and nine months ended September 30, 1998, increased $7.0
million, or 31.5%, to $29.0 million for the three months ended
September 30, 1998 and increased $22.3 million, or 43.1%, to $74.1 million
for the nine months ended September 30, 1998 from the prior year periods.
Increases in revenue were primarily a result of higher volumes of leasing
activity and the acquisition of Galbreath and Satulah and, to a lesser
extent, to increases in property and facility management fees, strategic
alliance relationships formed by the Project Management business, and a
higher volume of development projects being managed by the Development
Management business. These increases were partially offset by a decline in
revenue related to the sale of the Commingled Fund properties discussed
previously.
The Company's Corporate and Financial Services segment revenue, which
represented 30.9% and 25.3%, respectively, of the Company's total revenue
for the three and nine months ended September 30, 1998, increased $7.5
million, or 57.5%, to $20.5 million for the three months ended
September 30, 1998 and increased $16.4 million, or 50.8%, to $48.6 million
for the nine months ended September 30, 1998 over the prior year periods.
The increase in revenue for both periods was primarily attributable to an
increased volume of corporate finance, investment sales and private equity
activity, slightly offset by a reduction in performance fees generated
during the third quarter of 1998 as compared to the third quarter of 1997
and augmented for the nine month period in 1998 by performance fees
generated on the disposition of certain hotel properties in connection with
the formation of the LaSalle Hotel Properties REIT in the second quarter of
1998. In addition, the Company experienced increased transaction volume by
both its Tenant Representation and Land units during the periods. These
increases were partially offset by a decline in revenue related to the sale
of the Commingled Fund properties discussed previously.
The Company's Investment Management segment revenue, which represented
24.6% and 35.9%, respectively, of the Company's total revenue for the three
and nine months ended September 30, 1998, decreased $0.9 million, or 5.1%,
to $15.9 million for the three months ended September 30, 1998 and
increased $10.4 million, or 17.9%, to $68.3 million for the nine months
ended September 30, 1998 from the prior year periods. The decrease in
revenue for the third quarter of 1998 was primarily attributable to a
decrease in performance fees generated as compared to the prior year
period, in addition to the decline in revenue from four of the Company's
Commingled Funds discussed previously. To a lesser extent, the decrease
can be attributed to the transition of approximately $1.0 billion in assets
under management related to the CalPERS portfolio to the client's new
investment advisor during the third quarter of 1998. These decreases for
the third quarter of 1998 were partially offset by increased equity
earnings from the segment's co-investment holdings as well as international
acquisition fees. The 1998 year to date gain in revenue was primarily
attributable to performance fees generated on the disposition of certain
assets under management, including certain hotel properties in connection
with the formation of the LaSalle Hotel Properties ("LHO") in the second
quarter of 1998, and, to a lesser extent, to the higher volume of activity
performed by the securities unit and increased acquisition fees generated
on international fund activity. These increases were partially offset by a
decline in revenue from four of the Company's Commingled Funds discussed
previously.
<PAGE>
OPERATING EXPENSE
The Company's operating expenses, after elimination of intersegment
expenses, increased $10.7 million, or 23.3%, to $56.6 million for the three
months ended September 30, 1998 and increased $45.4 million, or 35.0%, to
$175.0 million for the nine months ended September 30, 1998 from the prior
year periods. Operating expenses represented 87.3% and 92.1% of total
revenue, respectively, for the three and nine month periods ended
September 30, 1998 which is consistent with the prior year periods.
Increased operating expense levels reflect the (i) increased accrual for
incentive compensation as a result of higher operating profits from the
prior year periods; (ii) increased personnel and other operating costs
associated with staffing levels necessary to support new business
initiatives and increased business activity; (iii) personnel and other
operating costs associated with the acquisition of Galbreath and Satulah,
including the amortization of goodwill and intangibles; and, (iv) personnel
and infrastructure costs related to public reporting and technology
enhancements.
Operating expenses for the Company's Management Services segment
increased $6.0 million, or 26.5% to $28.5 million for the three months
ended September 30, 1998 and increased $27.0 million or 48.7% to $82.5
million for the nine months ended September 30, 1998 over the prior year
periods. These increases were primarily a result of the effects of the
Galbreath and Satulah acquisitions, including personnel costs and
amortization of intangibles resulting from the acquisitions, higher
compensation and benefit costs associated with increased staffing to
support new business initiatives and incremental corporate infrastructure
costs as a result of higher staffing levels and technology enhancements.
Operating expenses for the Corporate and Financial Services segment
increased $4.7 million, or 47.3%, to $14.6 million for the three months
ended September 30, 1998 and increased $14.1 million, or 49.9%, to $42.3
million for the nine months ended September 30, 1998 over the prior year
periods. The increases principally reflect the accrual incentive
compensation resulting from the increased level of operating profits
generated, in addition to increased personnel and other operating costs
associated with staffing levels necessary to support new business
initiatives and the increased business activity.
Operating expenses for the Investment Management segment increased
$0.6 million, or 4.7%, to $14.1 million for the three months ended
September 30, 1998 and increased $4.8 million, or 10.3%, to $51.2 million
for the nine months ended September 30, 1998 over the prior year periods.
The increase for the three months ended September 30, 1998 was primarily
attributable to the new international office opened in the Netherlands
subsequent to the third quarter of 1997. The increase for the nine months
ended September 30, 1998 was substantially a result of increased accruals
for incentive compensation, consistent with the increased level of
operating profits generated for the period as compared to the prior year.
OPERATING INCOME
As a result of the factors noted above, the Company's operating income
increased $2.3 million, or 38.3%, to $8.2 million for the three months
ended September 30, 1998 and increased $3.2 million, or 27.1%, to $15.1
million for the nine months ended September 30, 1998 over the prior year
periods. As a percentage of total revenue, the Company's operating income
remained relatively constant compared to the prior year period at 12.7% and
7.9% for the three and nine months ended September 30, 1998, respectively.
<PAGE>
INTEREST EXPENSE
Interest expense increased $0.1 million to $0.4 million for the three
months ended September 30, 1998 and decreased $2.9 million to $1.0 million
for the nine months ended September 30, 1998 from the prior year periods.
The decrease for the nine months ended September 30, 1998 is principally a
result of the repayment of the Company's long-term debt from the net
proceeds of the Offering.
PROVISION FOR INCOME TAXES
The provision for income taxes increased $5.0 million to $3.0 million
for the three months ended September 30, 1998 and increased $7.2 million to
$5.4 million for the nine months ended September 30, 1998 from the prior
year periods. The increases are a result of a $5.0 million tax benefit
recorded by the Company during the third quarter of 1997 upon its
conversion from partnership to corporate form in July 1997, in addition to
the resulting provision for income taxes at an effective tax rate of 38.5%.
NET EARNINGS
As a result of the factors discussed previously, the Company's net
earnings decreased $2.8 million, or 36.8%, to $4.8 million for the three
months ended September 30, 1998 and decreased $1.2 million, or 11.7%, to
$8.7 million for the nine months ended September 30, 1998 from the prior
year periods.
PRO FORMA RESULTS
Pro forma results for the three and nine months ended September 30,
1997 give effect to (i) the acquisition of Galbreath, as adjusted for the
Tenant Representation and Investment Banking units which were not acquired,
as if the acquisition occurred on January 1, 1997; (ii) the provision for
income taxes as though the Company and Galbreath were both taxable entities
as of January 1, 1997 at an effective tax rate of 38.5%; and (iii)
estimated incremental general and administrative costs associated with
operations as a public company and the repayment of the Company's long-term
notes payable out of the proceeds of the Offering as if the Offering
occurred on January 1, 1997.
The Company's actual historical revenue for the three and nine months
ended September 30, 1998 of $64.8 million and $190.1 million, respectively,
compare to $51.9 million and $149.7 million for the prior year periods on a
pro forma basis. The Company's operating expenses for the three and nine
months ended September 30, 1998 on an actual historical basis were 87.3%
and 92.1% of revenue, respectively, compared to 88.9% and 92.4% for the
prior year periods on a pro forma basis. As a result of the factors
previously discussed, the Company's actual historical net income increased
$1.3 million to $4.8 million for the three months ended September 30, 1998
and increased $2.2 million to $8.7 million for the nine months ended
September 30, 1998 from the prior year periods on a pro forma basis.
LIQUIDITY AND CAPITAL RESOURCES
The Company meets its cash requirements primarily from operating
activities. No one client accounts for more than 10% of the Company's
total revenue. During the nine months ended September 30, 1998, cash flows
provided by operating activities totaled $18.3 million, an increase of $1.2
million over the prior year period. The increase in operating cash flows
is primarily attributable to increased incentive fees generated which are
typically paid upon closing of the related transaction.
<PAGE>
The Company continues to pursue co-investment opportunities with its
investment management clients, for which the holding period typically
ranges from three to seven years. Such co-investments are represented by
non-controlling general partner and limited partner interests. In addition
to its share of investment returns, the Company typically earns investment
management fees, and in some cases, property management and leasing fees on
these investments. The equity earnings from these co-investments have had a
relatively small impact on the Company's current earnings and cash flow.
However, the Company's increased participation as a principal in real
estate investments could increase fluctuations in the Company's net
earnings and cash flow as a result of the timing and magnitude of the gains
or losses and potential incentive participation fees, if any, to be
recognized on the disposition of the assets. In certain of these
investments, the Company will not have complete discretion to control the
timing of the disposition of such investments.
Net cash used in investing activities was $62.4 million for the nine
months ended September 30, 1998 compared with $5.3 million for the prior
year period. The increased usage of $57.0 million is primarily attributable
to a higher level of co-investment during 1998, including an $18.9 million
investment in LHO (net additional co-investment of $15.2 million) in April
1998. In addition, the Company acquired the project management business of
the Satulah Group Inc. in January 1998 for $5.5 million in cash. Finally,
the Company experienced increased net capital expenditures of $8.5 million
primarily as a result of the continued customization and implementation of
a new property accounting and information system by its Management Services
segment and a new corporate accounting system in addition to the on-going
replacement of personal computers. The Company anticipates that future
capital expenditures will continue to exceed prior year levels as a result
of technology enhancements that are currently in progress.
Historically, the Company has financed its operations, acquisitions
and co-investments with internally generated funds, ownership equity and
borrowings under revolving credit facilities. In addition to the Company's
existing five year unsecured revolving credit facility of $150 million, in
September 1998, the Company obtained a $175 million credit facility (the
"Acquisition Facility") which is to be used exclusively to finance the
acquisition of certain businesses from Lend Lease as described under
Subsequent Events - Acquisitions. The new facility, which is placed with a
syndicate of seven banks, has an initial term of one year with two six
month extensions. The revolving credit facility is available for working
capital, co-investment, and acquisitions. The facilities are guaranteed by
certain of the Company's subsidiaries. The Company must maintain a certain
level of consolidated net worth and ratio of funded debt to EBITDA, and
must meet a minimum fixed charge coverage ratio. Additionally, the Company
is restricted from, among other things, incurring certain levels of
indebtedness to lenders outside of the facilities and disposing of a
significant portion of its assets, and is subject to lender approval on
certain levels of co-investment. The facilities bear variable rates of
interest based on market rates. There were no borrowings as of and for the
nine months ended September 30, 1998 on the Acquisition Facility. The
Company had outstanding borrowings of $28.4 million as of September 30,
1998 on its revolving credit facility. The Company's effective interest
rate on its revolving credit facility was 5.8% and 6.7% for the nine months
ended September 30, 1998 and 1997, respectively.
<PAGE>
Net cash provided by financing activities was $28.4 million for the
nine months ended September 30, 1998 compared with net cash used of $2.9
million in the prior year period. The increase in cash flows is primarily
a result of the Company's conversion to corporate form in July 1997 and the
elimination of partnership distributions which were made to its partners
during 1997 in accordance with partnership agreements for which no like
dividends were made during 1998. To a lesser extent the increase in cash
flows are due to increased borrowings on the Company's revolving credit
facility to fund increased co-investment activity and capital expenditures
as previously discussed. The Company believes, based on current operating
plans, that cash generated from operations and available borrowings will be
sufficient to meet its capital and liquidity requirements for the
foreseeable future.
SEASONALITY
Historically, the Company's revenue, operating profits and net
earnings in the first three calendar quarters are substantially lower than
in the fourth quarter. This seasonality is due to a calendar year-end focus
on the completion of transactions, which is consistent with the real estate
industry generally. In contrast, the Company's Investment Management
segment earns performance fees on client's returns on their real estate
investments. Such performance fees are generally earned when the asset is
disposed of, the timing of which the Company does not have complete
discretion over. The Company's non-variable operating expenses, which are
treated as expenses when incurred during the year, are relatively constant
on a quarterly basis. Therefore, the Company typically sustains a loss in
the first quarter of each calendar year, typically reports a small profit
or loss in the second and third quarters and records a substantial majority
of the Company's earnings in the fourth calendar quarter, barring the
recognition of investment generated performance fees.
INFLATION
The Company's operations are directly affected by various national and
local economic conditions, including interest rates, the availability of
credit to finance real estate transactions and the impact of tax laws. To
date, the Company does not believe that general inflation has had a
material impact on its operations, as revenue, commissions, and other
variable costs related to revenue are primarily impacted by real estate
supply and demand rather than general inflation.
OTHER MATTERS
ACCOUNTING MATTERS
In an attempt to align its operating results with those presented by
similar companies within the industry, certain amounts have been
reclassified in the Company's 1997 revenue and operating expenses to
reflect direct personnel cost reimbursements received on property or
specific client assignments on a net, rather than a gross, basis. There
was no effect on operating profits or net earnings as historically
reported.
Statement of Financial Accounting Standards No. 131 "Disclosures about
Segments of an Enterprise and Related Information" becomes effective for
fiscal years beginning after December 15, 1997 and is not expected to have
a material impact on the Company's financial statements.
Statement of Financial Accounting Standards No. 133 "Accounting for
Derivative Instruments and Hedging Activities" becomes effective for all
fiscal quarters for fiscal years beginning after June 15, 1999 and is not
expected to have a material impact on the Company's financial statements.
<PAGE>
YEAR 2000 ISSUES
The "Year 2000 Issue" is the result of computer programs and systems
having been designed and developed to use two digits, rather than four, to
define the applicable year. As a result, these computer programs and
systems may recognize a date using "00" as the year 1900 rather than the
year 2000. This could result in system failure or miscalculations causing
disruptions of operations, including, among other things, a temporary
inability to process transactions, pay invoices or engage in similar normal
business activities. The Company has defined five key phases in addressing
the Year 2000 Issue: awareness, assessment, renovation, validation and
implementation.
Under the guidance of a Year 2000 program team, who's strategy is
supported by senior management, the Company has substantially completed its
awareness phase and will continue this phase through December 31, 1999 to
maintain a heightened sense of awareness to the Year 2000 Issue. The
Company conducts its business primarily with commercial software purchased
from third-party vendors and has significantly upgraded its information
systems capabilities over the last two years and is in the process of
finalizing the roll-out of new property and client accounting systems. In
conducting the assessment phase, the Company is reviewing the year 2000
compliance of these systems in addition to creating an inventory of all
other applications, systems software and hardware including the related
impact of the Year 2000 Issue. Completion of the assessment phase is
anticipated to be in early 1999.
Based upon the results of the assessment phase, the Company will
determine the appropriate levels of renovation and validation that will be
required. As a result of the significant recent upgrades of the critical
business systems, the renovation process of converting, replacing or
eliminating selected platforms, applications, databases and utilities, as
well as the validation process of testing and verifying, is anticipated to
be completed by mid-year 1999. The implementation phase, which involves
returning the tested systems to operational status and the development of
contingency plans for critical business systems, is also anticipated to be
completed by mid-year 1999.
Management expects that the cost of additional modifications to the
Company's software to meet Year 2000 requirements will not be material.
The total anticipated costs related to the phases previously discussed is
currently projected to be approximately $2.7 million, including
approximately $1.3 million of operating expenses associated with testing
and other matters and $1.4 million of capital expenditures, primarily
representing system upgrades which provide operational benefits above and
beyond Year 2000 compliance. The Company has incurred $.2 million in
operating expenses to date. Factors that could impact the Company's
ability to make the necessary modifications or replacements include, but
are not limited to, the availability and cost of trained personnel and the
ability of such personnel to locate and correct all relevant computer
codes. If such modifications are not completed on a timely basis or are
more costly to implement than anticipated, the Company's business,
financial condition or results of operations could be materially adversely
affected.
The ability of third parties with whom the Company transacts business
or companies that the Company may acquire to adequately address their Year
2000 issues is outside the Company's control. At this time, the Company is
in the process of reviewing the Year 2000 compliance of its major suppliers
and customers. There can be no assurance that the failure to adequately
address Year 2000 issues will not have a material adverse effect on the
Company's business, financial condition, and results of operations.
Properties for which the Company provides management services rely on
a variety of third party suppliers to provide critical operating services.
These suppliers may utilize systems and embedded technologies to control
the operation of building systems such as utilities, lighting, security,
elevators, heating, ventilating and air conditioning systems. The Company
is in the process of obtaining assurances from suppliers as to their Year
<PAGE>
2000 compliance and preparing contingency plans, including the
identification of alternative suppliers. The Company does not control
these third party suppliers, and for some suppliers, such as utility
companies, there may be no feasible alternative suppliers available. The
failure to these suppliers' systems could have a material adverse effect on
the operations of the affected property, and widespread failures could have
a material adverse effect on the Company.
Although the Company is not aware of any threatened claims related to
the Year 2000, the Company may become subject to litigation arising from
such claims and, depending on the outcome, such litigation could have a
material adverse affect on the Company. It is not clear whether the
Company's insurance coverage would be adequate to offset these and other
business risks related to the Year 2000.
SUBSEQUENT EVENTS - ACQUISITIONS
On October 1, 1998, the Company acquired all of the common stock of
the following real estate service companies formerly owned by Lend Lease
Corporation Limited ("Lend Lease"): Compass Management and Leasing, Inc.
and its wholly owned subsidiaries; The Yarmouth Group Property Management,
Inc.; and ERE Yarmouth Retail, Inc. (formerly Compass Retail, Inc.). On
October 31, 1998, the Company also acquired Compass Management and Leasing
(Australia) Pty Limited, the Lend Lease property and facility management
business in Australia. Atlanta-based Compass Management and Leasing, Inc.
is a global real estate management firm, with operations across the United
States, United Kingdom, South America and Australia. The Company paid
$180,000 in cash for all of the acquired companies. The purchase of the
companies also includes provisions for an earnout payment of up to $77.5
million over five years. The acquisition was accounted for as a purchase
and, accordingly, operating results for the Compass business will be
included in the Company's results subsequent to the date of acquisition.
On October 22, 1998, the Company and Jones Lang Wootton ("JLW")
announced that they reached a definitive agreement to merge their
operations. JLW, which is headquartered in London, provides a wide range
of real estate advisory, transactional and asset management services to
local, national and international clients in both the private and public
sectors. JLW is an employee owned company and has more than 4,000
employees located in 32 countries throughout Europe, Asia, North America,
and Australia. The transaction, which is principally structured as a share
exchange, has been approved by the Company's Board of Directors and the
Board of Directors of the JLW companies and the partnerships. Under the
terms of the agreement, the Company will issue up to 14.3 million shares of
common stock and approximately $6.0 million in cash, subject to a closing
net worth adjustment. The transaction, which is expected to close in early
1999, is subject to acceptance of the exchange offer by Jones Lang Wootton
shareholders and partners, approval by LaSalle shareholders, regulatory and
tax clearances, and other customary conditions. There can be no assurance
that the transaction will be completed.
<PAGE>
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is a defendant in various litigation matters arising in
the ordinary course of business, some of which involve claims for damages
that are substantial in amount. Most of these matters are covered by
insurance. In the opinion of the Company, the ultimate resolution of such
litigation matters will not have a material adverse effect on the financial
position, results of operations and liquidity of the Company.
ITEM 5. OTHER MATTERS
On October 22, 1998, Lizanne Galbreath resigned from the Board of
Directors.
SAFE HARBOR STATEMENT UNDER THE PRIVATE SECURITIES LITIGATION REFORM
ACT OF 1995:
Certain statements in this filing and elsewhere (such as in reports,
other filings with the Securities and Exchange Commission, press releases,
presentations and communications by the Company or its management and
written and oral statements) may constitute "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995.
Such forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual results,
performance, achievements, plans and objectives of the Company to be
materially different from any future results, performance, achievements,
plans and objectives expressed or implied by such forward-looking
statements. Such factors are discussed in the Company's Registration
Statement (No. 333-25741), under "Risk Factors" and elsewhere, in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997,
in Item 1. "Business", Item 7. "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and elsewhere, and in other
reports filed by the Company with the Securities and Exchange Commission.
These factors include, among other things, the following: (i) the impact
of general economic conditions and the real estate economic climate on the
Company's business and results of operations; (ii) the risk that property
management and investment management agreements will be terminated prior to
expiration or not renewed; (iii) the dependence of the Company's revenue
from property management and leasing services on the performance of the
properties managed by the Company; (iv) the risks inherent in pursuing a
selective acquisition strategy; (v) the concentration of the Company's
business in properties in central business districts; (vi) the risks
associated with the co-investment activities of the Company; (vii) the
seasonal nature of the Company's revenue, operating income and net
earnings; and (viii) the competition faced by the Company in a variety of
business disciplines within the commercial real estate industry. The
Company expressly disclaims any obligation or undertaking to update or
revise any forward-looking statements to reflect any changes in events or
circumstances or in the Company's expectations or results.
<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) A list of exhibits is set forth in the Exhibit Index which
immediately precedes the exhibits and which is incorporated by reference
herein.
(b) A Current Report on Form 8-K, dated August 31, 1998, reporting
the definitive agreement for the Company to acquire two Lend Lease real
estate services businesses, was filed during the quarter ended
September 30, 1998.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
LASALLE PARTNERS INCORPORATED
Dated: November 13, 1998 BY:/S/ WILLIAM E. SULLIVAN
------------------------------
William E. Sullivan
Executive Vice President and
Chief Financial Officer
(Authorized Officer,
Principal Financial Officer and
Principal Accounting Officer)
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
10.1 $175,000,000 Credit Agreement, dated as of
September 21, 1998, among LaSalle Partners Incorporated, the Guarantors
Party Thereto, the Lenders Party Thereto, Harris Trust and Savings Bank, as
Documentation Agent, The Chase Manhattan Bank, as Syndication Agent, and
The First National Bank of Chicago, as Administrative Agent.
10.2 First Amendment to the Company's $150,000,000
Multicurrency Credit Agreement, dated as of September 21, 1998.
10.3 Second Amendment to the LaSalle Partners
Incorporated Employee Stock Purchase Plan.
27.1 Financial Data Schedule.
EXHIBIT 10.1
- ------------
$175,000,000
Credit Agreement
Dated as of
September 21, 1998
Among
LASALLE PARTNERS INCORPORATED,
The Guarantors Party Hereto,
The Lenders Party Hereto,
FIRST CHICAGO CAPITAL MARKETS, INC.,
as Arranger
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
<PAGE>
Table of Contents
(This Table of Contents is not part of the Agreement)
Page
Article I The Credit . . . . . . . . . . . . . . . . . . 1
Section 1.1. The Loans. . . . . . . . . . . . . . . . . . . 1
Section 1.2. Required Payments. . . . . . . . . . . . . . . 1
Section 1.3. Ratable Loans. . . . . . . . . . . . . . . . . 1
Section 1.4. Types of Advances. . . . . . . . . . . . . . . 1
Section 1.5. Minimum Amount of Each Advance . . . . . . . . 1
Section 1.6. Optional Principal Payments. . . . . . . . . . 2
Section 1.7. Conversion and Continuation of
Outstanding Advances . . . . . . . . . . . . . 2
Section 1.8. Changes in Interest Rate, etc. . . . . . . . . 2
Section 1.9. Rates Applicable After Default . . . . . . . . 3
Section 1.10. Method of Payment. . . . . . . . . . . . . . . 3
Section 1.11. Noteless Agreement; Evidence of Indebtedness . 3
Section 1.12. Telephonic Notices . . . . . . . . . . . . . . 4
Section 1.13. Interest Payment Dates . . . . . . . . . . . . 4
Section 1.14. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions. . . . . 5
Section 1.15. Lending Installations. . . . . . . . . . . . . 5
Section 1.16. Non-Receipt of Funds by the Administrative Agent 5
Section 1.17. Extension of Maturity Date . . . . . . . . . . 5
Section 1.18. Replacement of Lender. . . . . . . . . . . . . 6
Article II Yield Protection; Taxes. . . . . . . . . . . . 6
Section 2.1. Yield Protection . . . . . . . . . . . . . . . 6
Section 2.2. Changes in Capital Adequacy Regulations. . . . 7
Section 2.3. Availability of Types of Advances. . . . . . . 8
Section 2.4. Funding Indemnification. . . . . . . . . . . . 8
Section 2.5. Taxes. . . . . . . . . . . . . . . . . . . . . 8
Section 2.6. Lender Statements; Survival of Indemnity . . . 10
Article III Definitions; Interpretation. . . . . . . . . . 11
Section 3.1. Definitions. . . . . . . . . . . . . . . . . . 11
Section 3.2. Interpretation . . . . . . . . . . . . . . . . 21
Article IV Representations and Warranties . . . . . . . . 22
Section 4.1. Corporate Organization and Authority . . . . . 22
Section 4.2. Subsidiaries . . . . . . . . . . . . . . . . . 22
Section 4.3. Corporate Authority and Validity of Obligations 22
Section 4.4. Financial Statements . . . . . . . . . . . . . 23
<PAGE>
Section 4.5. No Litigation; No Labor Controversies. . . . . 23
Section 4.6. Taxes. . . . . . . . . . . . . . . . . . . . . 24
Section 4.7. Approvals. . . . . . . . . . . . . . . . . . . 24
Section 4.8. ERISA. . . . . . . . . . . . . . . . . . . . . 24
Section 4.9. Government Regulation. . . . . . . . . . . . . 24
Section 4.10. Margin Stock . . . . . . . . . . . . . . . . . 24
Section 4.11. Licenses and Authorizations; Compliance
with Environmental and Health Laws . . . . . . 24
Section 4.12. Ownership of Property; Liens . . . . . . . . . 25
Section 4.13. No Burdensome Restrictions; Compliance
with Agreements. . . . . . . . . . . . . . . . 25
Section 4.14. Accuracy of Information. . . . . . . . . . . . 25
Section 4.15. Year 2000. . . . . . . . . . . . . . . . . . . 25
Article V Conditions Precedent . . . . . . . . . . . . . 26
Section 5.1. Effectiveness. . . . . . . . . . . . . . . . . 26
Section 5.2. Initial Advance. . . . . . . . . . . . . . . . 27
Article VI Covenants. . . . . . . . . . . . . . . . . . . 28
Section 6.1. Corporate Existence; Subsidiaries. . . . . . . 28
Section 6.2. Maintenance. . . . . . . . . . . . . . . . . . 28
Section 6.3. Taxes. . . . . . . . . . . . . . . . . . . . . 28
Section 6.4. ERISA. . . . . . . . . . . . . . . . . . . . . 28
Section 6.5. Insurance. . . . . . . . . . . . . . . . . . . 29
Section 6.6. Financial Reports and Other Information. . . . 29
Section 6.7. Lender Inspection Rights . . . . . . . . . . . 30
Section 6.8. Conduct of Business. . . . . . . . . . . . . . 30
Section 6.9. Liens. . . . . . . . . . . . . . . . . . . . . 31
Section 6.10. Use of Proceeds; Regulation U. . . . . . . . . 32
Section 6.11. Sales and Leasebacks . . . . . . . . . . . . . 32
Section 6.12. Mergers, Consolidations and Sales of Assets. . 33
Section 6.13. Use of Property and Facilities; Environmental
and Health and Safety Laws . . . . . . . . . . 34
Section 6.14. Investments, Acquisitions, Loans, Advances
and Guaranties . . . . . . . . . . . . . . . . 34
Section 6.15. Consolidated Net Worth . . . . . . . . . . . . 36
Section 6.16. Funded Debt to EBITDA. . . . . . . . . . . . . 36
Section 6.17. Fixed Charge Coverage Ratio. . . . . . . . . . 37
Section 6.18. Dividends and Other Shareholder Distributions. 37
Section 6.19. Indebtedness . . . . . . . . . . . . . . . . . 37
Section 6.20. Transactions with Affiliates . . . . . . . . . 37
Section 6.21. Compliance with Laws . . . . . . . . . . . . . 38
Section 6.22. Additional Guarantors. . . . . . . . . . . . . 38
Section 6.23. Year 2000 Assessment . . . . . . . . . . . . . 39
Article VII Defaults and Remedies. . . . . . . . . . . . . 40
Section 7.1. Defaults . . . . . . . . . . . . . . . . . . . 40
<PAGE>
Section 7.2. Non-Bankruptcy Defaults. . . . . . . . . . . . 41
Section 7.3. Bankruptcy Defaults. . . . . . . . . . . . . . 42
Section 7.4. Notice of Default. . . . . . . . . . . . . . . 42
Section 7.5. Expenses . . . . . . . . . . . . . . . . . . . 42
Article VIII General Provisions . . . . . . . . . . . . . . 42
Section 8.1. Amendments . . . . . . . . . . . . . . . . . . 42
Section 8.2. Preservation of Rights . . . . . . . . . . . . 43
Section 8.3. Survival of Representations. . . . . . . . . . 43
Section 8.4. Governmental Regulation. . . . . . . . . . . . 43
Section 8.5. Headings . . . . . . . . . . . . . . . . . . . 43
Section 8.6. Entire Agreement . . . . . . . . . . . . . . . 43
Section 8.7. Several Obligations; Benefits of this Agreement 44
Section 8.8. Expenses; Indemnification. . . . . . . . . . . 44
Section 8.9. Numbers of Documents . . . . . . . . . . . . . 45
Section 8.10. Severability of Provisions . . . . . . . . . . 45
Section 8.11. Non-liability of Lenders . . . . . . . . . . . 45
Section 8.12. Confidentiality. . . . . . . . . . . . . . . . 45
Section 8.13. Non-reliance . . . . . . . . . . . . . . . . . 46
Section 8.14. Limitation of Liability. . . . . . . . . . . . 46
Article IX The Agent. . . . . . . . . . . . . . . . . . . 46
Section 9.1. Appointment; Nature of Relationship. . . . . . 46
Section 9.2. Powers . . . . . . . . . . . . . . . . . . . . 46
Section 9.3. General Immunity . . . . . . . . . . . . . . . 47
Section 9.4. No Responsibility for Loans, Recitals, etc . . 47
Section 9.5. Action on Instructions of Lenders. . . . . . . 47
Section 9.6. Employment of Administrative Agents and Counsel 47
Section 9.7. Reliance on Documents; Counsel . . . . . . . . 48
Section 9.8. Administrative Agent's Reimbursement
and Indemnification. . . . . . . . . . . . . . 48
Section 9.9. Notice of Default. . . . . . . . . . . . . . . 48
Section 9.10. Rights as a Lender . . . . . . . . . . . . . . 49
Section 9.11. Lender Credit Decision . . . . . . . . . . . . 49
Section 9.12. Successor Administrative Agent . . . . . . . . 49
Section 9.13. Administrative Agent's Fee . . . . . . . . . . 50
Section 9.14. Delegation to Affiliates . . . . . . . . . . . 50
Section 9.15. Execution of Collateral Documents. . . . . . . 50
Section 9.16. Collateral Releases. . . . . . . . . . . . . . 50
Section 9.17. Arranger, Documentation Agent,
Syndication Agent, etc . . . . . . . . . . . . 50
Article X The Guarantees . . . . . . . . . . . . . . . . 51
Section 10.1. The Guarantees . . . . . . . . . . . . . . . . 51
Section 10.2. Guarantee Unconditional. . . . . . . . . . . . 51
<PAGE>
Section 10.3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances . . . . 52
Section 10.4. Waivers. . . . . . . . . . . . . . . . . . . . 52
Section 10.5. Limit on Recovery. . . . . . . . . . . . . . . 53
Section 10.6. Stay of Acceleration . . . . . . . . . . . . . 53
Article XI Setoff; Ratable Payments . . . . . . . . . . . 53
Section 11.1. Setoff . . . . . . . . . . . . . . . . . . . . 53
Section 11.2. Ratable Payments . . . . . . . . . . . . . . . 53
Article XII Benefit of Agreement; Assignments;
Participations . . . . . . . . . . . . . . . . 54
Section 12.1. Successors and Assigns . . . . . . . . . . . . 54
Section 12.2. Participations . . . . . . . . . . . . . . . . 54
Section 12.3. Assignments. . . . . . . . . . . . . . . . . . 55
Section 12.4. Dissemination of Information . . . . . . . . . 56
Section 12.5. Tax Treatment. . . . . . . . . . . . . . . . . 56
Article XIII Notices. . . . . . . . . . . . . . . . . . . . 56
Section 13.1. Notices. . . . . . . . . . . . . . . . . . . . 56
Section 13.2. Change of Address. . . . . . . . . . . . . . . 57
Article XIV Counterparts . . . . . . . . . . . . . . . . . 57
Article XV Choice of Law. . . . . . . . . . . . . . . . . 57
Section 15.01. Governing Law. . . . . . . . . . . . . . . . . 57
Section 15.02. Submission to Jurisdiction; Waiver of
Jury Trial . . . . . . . . . . . . . . . . . . 57
Signature . . . . . . . . . . . . . . . . . . . . . . . 58
Exhibits
A - Form of Note
B - Form of Compliance Certificate
C - Form of Legal Opinion of Counsel to the Borrower
and Guarantors
D - Form of Subsidiary Guarantee Agreement
E - Form of Assignment and Acceptance
F - Form of Money Transfer Instructions
Schedule 4.2 Guarantors
Schedule 6.9 Existing Liens
Schedule 6.14 Existing Investments
<PAGE>
CREDIT AGREEMENT
This Credit Agreement, dated as of September 21, 1998, is among
LaSalle Partners Incorporated, a Maryland corporation (the "Borrower"), the
Guarantors (as hereinafter defined) party hereto, the Lenders, Harris Trust
and Savings Bank, as Documentation Agent, The Chase Manhattan Bank, as
Syndication Agent, and The First National Bank of Chicago, as
Administrative Agent.
ARTICLE I
THE CREDIT
Section 1.1. The Loans. (a) Each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make a Loan to the
Borrower in an amount not to exceed at the time of incurrence thereof the
amount of its Commitment on or prior to October 15, 1998. Each Loan
(i) shall be denominated in U.S. Dollars, (ii) except as hereinafter
provided, shall be made as Floating Rate Advances or Eurodollar Advances
and may, at the option of the Borrower, be maintained as and/or converted
into Floating Rate Advances or Eurodollar Rate Advances, PROVIDED that all
Loans made by all Lenders pursuant to the same Advances shall, unless
otherwise specifically provided herein, consist entirely of Loans of the
same Type and (iii) shall not exceed for any Lender at the time of
incurrence thereof that aggregate principal amount which equals the
Commitment of such Lender at such time. Once repaid, Loans may not be
reborrowed.
(b) The Borrower shall give notice to the Administrative Agent by
no later than 12:00 Noon (Chicago time) at least one Business Day before
the date on which the Borrower requests the Lenders to advance the initial
Loans hereunder. The initial Loans hereunder shall bear interest at the
type of rate selected in such notice. Any portion of the Commitments not
advanced on such date shall terminate immediately upon the making of such
Advance.
Section 1.2. Required Payments. Any outstanding Advances and
all other unpaid Obligations shall be paid in full by the Borrower on the
Maturity Date.
Section 1.3. Ratable Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in proportion to the
ratio that their respective Commitments bear to the Aggregate Commitment.
Section 1.4. Types of Advances. The Advances may be Floating
Rate Advances or Eurodollar Advances, or a combination thereof, selected by
the Borrower in accordance with Section 1.7.
Section 1.5. Minimum Amount of Each Advance. Each Eurodollar
Advance shall be in the minimum amount of $2,000,000 (and in multiples of
$100,000 if in excess thereof), and each Floating Rate Advance shall be in
the minimum amount of $500,000 (and in multiples of $100,000 if in excess
thereof).
<PAGE>
Section 1.6. Optional Principal Payments. The Borrower may from
time to time pay, without penalty or premium, all outstanding Floating Rate
Advances, or, in a minimum aggregate amount of $500,000 or any integral
multiple of $100,000 in excess thereof, any portion of the outstanding
Floating Rate Advances upon prior notice to the Administrative Agent no
later than 12:00 Noon on the date of prepayment. The Borrower may from
time to time pay, subject to the payment of any funding indemnification
amounts required by Section 2.4 but without penalty or premium, all
outstanding Eurodollar Advances, or, in a minimum aggregate amount of
$2,000,000 or any integral multiple of $100,000 in excess thereof, any
portion of the outstanding Eurodollar Advances upon three Business Days'
prior notice to the Administrative Agent. No amount of the Advances
prepaid may be reborrowed.
Section 1.7. Conversion and Continuation of Outstanding
Advances. Floating Rate Advances shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into Eurodollar
Advances pursuant to this Section 1.7 or are repaid in accordance with
Section 1.6. Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Interest Period therefor, at
which time such Eurodollar Advance shall be automatically converted into a
Floating Rate Advance unless (x) such Eurodollar Advance is or was repaid
in accordance with Section 1.6 or (y) the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of Section 1.5, the Borrower may elect from
time to time to convert all or any part of a Floating Rate Advance into a
Eurodollar Advance. The Borrower shall give the Administrative Agent
irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Advance into a Eurodollar Advance or continuation of a
Eurodollar Advance not later than 12:00 Noon (Chicago time) at least three
Business Days prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date, which shall be a Business Day, of
such conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued, and
(iii) the amount of such Advance which is to be converted into
or continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
Section 1.8. Changes in Interest Rate, etc. Each Floating Rate
Advance shall bear interest on the outstanding principal amount thereof,
for each day from and including the date such Advance is made or is
automatically converted from a Eurodollar Advance into a Floating Rate
Advance pursuant to Section 1.7, to but excluding the date it is paid or is
converted into a Eurodollar Advance pursuant to Section 1.7 hereof, at a
rate per annum equal to the Floating Rate for such day. Changes in the
rate of interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in the
Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
<PAGE>
outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including) the last day
of such Interest Period at the interest rate determined by the
Administrative Agent as applicable to such Eurodollar Advance based upon
the Borrower's selection under Section 1.7 and otherwise in accordance with
the terms hereof. No Interest Period may end after the Maturity Date.
Section 1.9. Rates Applicable After Default. Notwithstanding
anything to the contrary contained in Section 1.7, during the continuance
of a Default or Unmatured Default the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the
option of the Required Lenders notwithstanding any provision of Section 8.1
requiring unanimous consent of the Lenders to changes in interest rates),
declare that no Advance may be converted into a Eurodollar Advance. During
the continuance of a Default under Section 7.1(a) the Required Lenders may,
at their option, by notice to the Borrower (which notice may be revoked at
the option of the Required Lenders notwithstanding any provision of
Section 8.1 requiring unanimous consent of the Lenders to changes in
interest rates), declare that (i) each Eurodollar Advance shall bear
interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum and (ii)
each Floating Rate Advance shall bear interest at a rate per annum equal to
the Floating Rate in effect from time to time plus 2% per annum, PROVIDED
that, during the continuance of a Default under Section 7.1(f) or 7.1(g),
the interest rates set forth in clauses (i) and (ii) above shall be
applicable to all Advances without any election or action on the part of
the Administrative Agent or any Lender.
Section 1.10. Method of Payment. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Administrative Agent at the
Administrative Agent's address specified pursuant to Article XIII, or at
any other Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by noon (local time)
on the date when due and shall be applied ratably by the Administrative
Agent among the Lenders. Each payment delivered to the Administrative
Agent for the account of any Lender shall be delivered promptly by the
Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its address specified pursuant to Article
XIII or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is hereby
authorized to charge the account of the Borrower maintained with First
Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
Section 1.11. Noteless Agreement; Evidence of Indebtedness. (i)
Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including
the amounts of principal and interest payable and paid to such Lender from
time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which
it will record (a) the amount of each Loan made hereunder, the Type thereof
and the Interest Period with respect thereto, (b) the amount of any
principal or interest due and payable or to become due
<PAGE>
and payable from the Borrower to each Lender hereunder and (c) the amount
of any sum received by the Administrative Agent hereunder from the Borrower
and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be PRIMA FACIE evidence of the
existence and amounts of the Obligations therein recorded; PROVIDED,
HOWEVER, that the failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Obligations in accordance with
their terms.
(iv) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such
Lender in a form supplied by the Administrative Agent. Thereafter, the
Loans evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 12.1) be represented by
one or more Notes payable to the order of the payee named therein or any
assignee pursuant to Section 12.1, except to the extent that any such
Lender or assignee subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in paragraphs
(i) and (ii) above.
Section 1.12. Telephonic Notices. The Borrower hereby authorizes
the Lenders and the Administrative Agent to extend, convert or continue
Advances, effect selections of Types of Advances and to transfer funds
based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be an
Authorized Representative, it being understood that the foregoing
authorization is specifically intended to allow Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver
promptly to the Administrative Agent a written confirmation, if such
confirmation is requested by the Administrative Agent or any Lender, of
each telephonic notice signed by an Authorized Representative. If the
written confirmation differs in any material respect from the action taken
by the Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent manifest error.
Section 1.13. Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, on any date on which the Floating Rate Advance is prepaid, whether
due to acceleration or otherwise, and at maturity. Interest accrued on
that portion of the outstanding principal amount of any Floating Rate
Advance converted into a Eurodollar Advance on a day other than a Payment
Date shall be payable on the date of conversion. Interest accrued on each
Eurodollar Advance shall be payable on the last day of its applicable
Interest Period, on any date on which the Eurodollar Advance is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued on
each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during
such Interest Period. Interest on the Eurodollar Advances and commitment
fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest on the Floating Rate Advances shall be calculated for
actual days elapsed on the basis of a year of 365 or 366 days, as
applicable. Interest shall be payable for
<PAGE>
the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of
payment. If any payment of principal of or interest on an Advance shall
become due on a day which is not a Business Day, such payment shall be made
on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
Section 1.14. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each
Conversion/Continuation Notice and repayment notice received by it
hereunder. The Administrative Agent will notify each Lender of the
interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice
of each change in the Alternate Base Rate.
Section 1.15. Lending Installations. Each Lender may book its
Loans at any Lending Installation selected by such Lender and may change
its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Loans and any Notes
issued hereunder shall be deemed held by each Lender for the benefit of any
such Lending Installation. Each Lender may, by written notice to the
Administrative Agent and the Borrower in accordance with Article XIV,
designate replacement or additional Lending Installations through which
Loans will be made by it and for whose account Loan payments are to be
made.
Section 1.16. Non-Receipt of Funds by the Administrative Agent.
Unless the Borrower or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make
payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of
principal, interest or fees to the Administrative Agent for the account of
the Lenders, that it does not intend to make such payment, the
Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date
such amount was so made available by the Administrative Agent until the
date the Administrative Agent recovers such amount at a rate per annum
equal to (x) in the case of payment by a Lender, the Federal Funds
Effective Rate for such day for the first three days and, thereafter, the
interest rate applicable to the relevant Loan or (y) in the case of payment
by the Borrower, the interest rate applicable to the relevant Loan.
Section 1.17. Extension of Maturity Date. The Borrower may
extend the Maturity Date by submitting a notice of extension to the
Administrative Agent (an "Extension Notice") no more than 60 days and no
less than 30 days prior to the Maturity Date. The Extension Notice must
specify the new Maturity Date which date shall be no more than six months
after the Maturity Date in effect at the time the Extension Notice is
received; PROVIDED THAT the
<PAGE>
Maturity Date may not be extended beyond September 21, 2000. In no event
may the Borrower submit more than two Extension Notices. Promptly upon
receipt of an Extension Notice, the Administrative Agent shall notify each
Lender of the contents thereof. If (i) no Default or Unmatured Default
shall have occurred and be continuing, (ii) all of the representations and
warranties contained in Article V shall be true and correct on and as of
the existing Maturity Date, and (iii) the Borrower shall have paid to the
Administrative Agent (for the ratable account of the Lenders) an extension
fee equal to (A) .05% of the principal amount of the Loans outstanding on
the existing Maturity Date, with respect to the first extension period and
(B) .10% of the principal amount of the Loans outstanding on the existing
Maturity Date, with respect to the second extension period, the Maturity
Date specified in the Extension Notice shall become effective on the
existing Maturity Date and the Administrative Agent shall promptly notify
the Borrower and each Lender of the new Maturity Date.
Section 1.18. Replacement of Lender. If the Borrower is required
pursuant to Section 2.1, 2.2 or 2.5 to make any additional payment to any
Lender or if any Lender's obligation to make or continue, or to convert
Floating Rate Advances into, Eurodollar Advances shall be suspended
pursuant to Section 2.3 (any Lender so affected an "Affected Lender"), the
Borrower may elect, if such amounts continue to be charged or such
suspension is still effective, to replace such Affected Lender as a Lender
party to this Agreement, PROVIDED that no Default or Unmatured Default
shall have occurred and be continuing at the time of such replacement, and
PROVIDED FURTHER that, concurrently with such replacement, (i) another bank
or other entity which is reasonably satisfactory to the Borrower and the
Administrative Agent shall agree, as of such date, to purchase for cash the
Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit E and to become a Lender
for all purposes under this Agreement and to assume all obligations of the
Affected Lender to be terminated as of such date and to comply with the
requirements of Section 12.3 applicable to assignments, and (ii) the
Borrower shall pay to such Affected Lender in same day funds on the day of
such replacement all interest, fees and other amounts then accrued but
unpaid to such Affected Lender by the Borrower hereunder to and including
the date of termination, including without limitation payments due to such
Affected Lender under Sections 2.1, 2.2 and 2.5.
ARTICLE II
YIELD PROTECTION; TAXES
Section 2.1. Yield Protection. If, on or after the date of this
Agreement, the adoption of any law or any governmental or quasi-
governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any change in the interpretation or
administration thereof by any governmental or quasi-governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or applicable Lending
Installation with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency:
<PAGE>
(i) subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender in respect of its
Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation of
making, funding or maintaining its Eurodollar Loans or reduces any amount
receivable by any Lender or any applicable Lending Installation in
connection with its Eurodollar Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by reference
to the amount of Eurodollar Loans held or interest received by it,
and the result of any of the foregoing is to increase the cost to such
Lender or applicable Lending Installation of making or maintaining its
Eurodollar Loans or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such
Eurodollar Loans or Commitment, by an amount deemed by such Lender to be
material, then, within 15 days of demand by such Lender, the Borrower shall
pay such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction in amount received; PROVIDED,
HOWEVER, that such Lender shall promptly notify the Borrower of an event
which might cause it to seek compensation, and the Borrower shall be
obligated to pay only such compensation which is incurred or which arises
after the date ninety (90) days prior to the date such notice is given. In
the event any law, rule, regulation or interpretation described above is
revoked, declared invalid or inapplicable or is otherwise rescinded, and as
a result thereof a Lender is determined to be entitled to a refund from the
applicable authority for any amount or amounts which were paid or
reimbursed by Borrower to such Lender hereunder, such Lender shall refund
such amount or amounts to Borrower without interest.
Section 2.2. Changes in Capital Adequacy Regulations. If a
Lender determines the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans or its Commitment
to make Loans hereunder (after taking into account such Lender's policies
as to capital adequacy). "Change" means (i) any change after the date of
this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or
any Lending Installation or any corporation controlling any Lender. "Risk-
Based
<PAGE>
Capital Guidelines" means (i) the risk based capital guidelines in effect
in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by
regulatory authorities outside the United States implementing the July 1988
report of the Bale Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
Section 2.3. Availability of Types of Advances. If (a) any
Lender determines that maintenance of its Eurodollar Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation, or
directive, whether or not having the force of law, or (b) the Required
Lenders determine that (i) deposits of a type and maturity appropriate to
match fund Eurodollar Advances are not available or (ii) the interest rate
applicable to Eurodollar Advances does not accurately reflect the cost of
making or maintaining Eurodollar Advances, then the Administrative Agent
shall suspend the availability of Eurodollar Advances and, in the case of
clause (a) above, require any affected Eurodollar Advances to be repaid or
converted to Floating Rate Advances, subject to the payment of any funding
indemnification amounts required by Section 2.4.
Section 2.4. Funding Indemnification. If any payment of a
Eurodollar Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a Eurodollar Advance is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower
will indemnify each Lender for any loss, cost or expense incurred by it
resulting therefrom, including, without limitation, any loss, cost or
expense in liquidating or employing deposits acquired to fund or maintain
such Eurodollar Advance then, upon the demand of such Lender, the Borrower
shall pay to such Lender such amount as will reimburse such Lender for such
loss, cost or expense. If any Lender 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 Lender 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 in the absence of manifest error.
Section 2.5. Taxes. (i) All payments by the Borrower to or for
the account of any Lender or the Administrative Agent hereunder or under
any Note shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (a) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.5) such Lender
or the Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (b) the
Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law
and (d) the Borrower shall furnish to the Administrative Agent the original
copy of a receipt evidencing payment thereof within 30 days after such
payment is made.
<PAGE>
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or
under any Note or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Administrative
Agent and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 2.5) paid by the Administrative Agent or such
Lender. Payments due under this indemnification shall be made within 30
days of the date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 2.6.
(iv) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not less than ten Business Days after the date of this
Agreement, (i) deliver to each of the Borrower and the Administrative Agent
two duly completed copies of United States Internal Revenue Service Form
1001 or 4224, certifying in either case that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of
any United States federal income taxes, and (ii) deliver to each of the
Borrower and the Administrative Agent a United States Internal Revenue Form
W-8 or W-9, as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrower and the
Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in
the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or the
Administrative Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes, UNLESS an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such
Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (iv),
above (unless such failure is due to a change in treaty, law or regulation,
or any change in the interpretation or administration thereof by any
governmental authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this Section 2.5 with respect to Taxes
imposed by the United States; PROVIDED that, should a Non-U.S. Lender which
is otherwise exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its failure to deliver a form required
under clause (iv), above, the Borrower shall take such steps as such Non-
U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
<PAGE>
(vi) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any
Note pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Borrower (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political
subdivision thereof asserts a claim that the Borrower or Administrative
Agent did not properly withhold tax from amounts paid to or for the account
of any Lender (because the appropriate form was not delivered or properly
completed, because such Lender failed to notify the Borrower and
Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such
Lender shall indemnify the Borrower and Administrative Agent fully for all
amounts paid, directly or indirectly, by the Borrower and the
Administrative Agent as tax, withholding therefor, or otherwise, including
penalties and interest, and including taxes imposed by any jurisdiction on
amounts payable to the Borrower and Administrative Agent under this
subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Borrower and the
Administrative Agent, which attorneys may be employees of the Borrower or
the Administrative Agent). The obligations of the Lenders under this
Section 2.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
Section 2.6. Lender Statements; Survival of Indemnity. To the
extent reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Loans to reduce any
liability of the Borrower to such Lender under Sections 2.1, 2.2 and 2.5 or
to avoid the unavailability of Eurodollar Advances under Section 2.3, so
long as such designation is not, in the judgment of such Lender,
disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Administrative
Agent) as to the amount due, if any, under Section 2.1, 2.2, 2.4 or 2.5.
Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be
conclusive in the absence of manifest error. Determination of amounts
payable under such Sections in connection with a Eurodollar Loan shall be
calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Eurodollar Rate applicable to such
Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall
be payable on demand after receipt by the Borrower of such written
statement. The obligations of the Borrower under Sections 2.1, 2.2, 2.4
and 2.5 shall survive payment of the other Obligations and termination of
this Agreement.
<PAGE>
ARTICLE III
DEFINITIONS; INTERPRETATION
Section 3.1. Definitions. The following terms when used herein
have the following meanings:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all
or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise, or
(ii) directly or indirectly acquires (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities having
such power only by reason of the happening of a contingency) or at least a
majority of the partnership interests of any partnership.
"Administrative Agent" means The First National Bank of Chicago in
its capacity as contractual representative of the Lenders pursuant to
Article X, and not in its individual capacity as a Lender, and any
successor Administrative Agent appointed pursuant to Article X.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the
date specified in Section 1.1(b), or (ii) converted or continued by the
Lenders on the same date of conversion or continuation, consisting, in
either case, of the aggregate amount of the several Loans of the same Type
and, in the case of Eurodollar Loans, for the same Interest Period.
"Affected Lender" is defined in Section 1.18.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (including, with
their correlative meanings, "controlled by" and "under common control
with") means possession, directly or indirectly, of power to direct or
cause the direction of management or policies of a Person (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), PROVIDED that, in any event for purposes of this
definition: (i) any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors
or other governing body of a corporation or 5% or more of the partnership
or other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person; and (ii) each director and executive officer of the Borrower
or any Subsidiary shall be deemed an Affiliate of the Borrower and each
Subsidiary.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
<PAGE>
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (i) the Corporate Base Rate for such day and
(ii) the sum of the Federal Funds Effective Rate for such day plus 1/2% per
annum.
"Arranger" means First Chicago Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Authorized Representatives" means those persons shown on the list
provided by the Borrower pursuant to Section 5.1(i) hereof, or on any
updated such list provided by the Borrower to the Administrative Agent, or
any further or different representative of the Borrower so named by any
Authorized Representative of the Borrower in a written notice to the
Administrative Agent.
"Borrower" means LaSalle Partners Incorporated, a Maryland
corporation.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago for the conduct of
substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank
market and (ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago for the conduct of
substantially all of their commercial lending activities.
"Capital Lease" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance
sheet of the lessee.
"Capitalized Lease Obligations" means, for any Person, the amount of
such Person's liabilities under Capital Leases determined at any date in
accordance with GAAP.
"Change of Control" means at any time:
(i) any Person becomes the beneficial owner of
securities of the Borrower representing 30% or more of the then outstanding
Voting Stock of the Borrower; or
(ii) during any period of twenty-four consecutive months
beginning after the date of this Agreement, individuals who at the
beginning of such period constitute the Board of Directors of the Borrower
(the "Board"), together with any new director (other than a director
designated by a person who has entered into an agreement with the Borrower
to effect a transaction described in clause (i) of this
<PAGE>
Change of Control definition) whose election or nomination for
election was approved by a vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the Board.
For purposes of the definition of Change of Control Event, "Person"
shall have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act as supplemented by Section 13(d)(3) of the Exchange Act;
PROVIDED, HOWEVER, that Person shall not include (i) the Borrower or any
Wholly-Owned Subsidiary, or (ii) any person who, as of the date of this
Agreement, was the Beneficial Owner of securities of the Borrower
representing 20% or more of the combined voting power.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below,
as such amount may be modified from time to time pursuant to the terms
hereof.
"Compass Acquisition" means the transactions contemplated by the
Purchase and Sale Agreement, dated August 31, 1998, (the "Compass Purchase
Agreement") among LaSalle Partners Incorporated and its Subsidiary named
therein, Lend Lease Corporation Limited and the Subsidiaries of Lend Lease
Corporation Limited named therein, as amended with the approval of the
Required Lenders.
"Compliance Certificate" means a certificate in the form of Exhibit C
hereto.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Borrower and its Restricted Subsidiaries for such period
computed on a consolidated basis in accordance with GAAP, but excluding any
extraordinary profits or losses; PROVIDED THAT there shall be included in
such determination for such period all such amounts attributable to any
Person acquired pursuant to an Acquisition to the extent such Person is not
subsequently sold or otherwise disposed of (other than in a transaction
pursuant to which the business of such Person is retained by the Borrower
or a Subsidiary of the Borrower) during such period for the portion of such
period prior to such Acquisition.
"Consolidated Net Worth" means, as of the date of any determination
thereof, the amount reflected as stockholders' equity upon a consolidated
balance sheet of the Borrower and its Restricted Subsidiaries for such date
computed on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
<PAGE>
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated)
under common control that, together with the Borrower or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 1.7.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time,
changing when and as said corporate base rate changes.
"Default" means any of the events or circumstances specified in
Section 7.1 hereof.
"Domestic Subsidiary" shall mean any Subsidiary which is not a
Foreign Subsidiary.
"EBITDA" means, for any period, Consolidated Net Income for such
period plus all amounts deducted in arriving at such Consolidated Net
Income amount for such period for (i) Interest Expense, (ii) federal, state
and local income tax expense, (iii) all amounts properly charged for
depreciation of fixed assets and amortization of intangible assets on the
books of the Borrower and its Restricted Subsidiaries, and (iv) reasonable
transition costs incurred by the Borrower in connection with the Compass
Acquisition to the extent such costs do not exceed $10,500,000 during
calendar year ended December 31, 1998 and $9,000,000 during calendar year
ended December 31, 1999.
"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 4.8 hereof.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 1.9, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance
for the relevant Interest Period, the applicable London interbank offered
rate for deposits in U.S. dollars appearing on Dow Jones Markets (Telerate)
Page 3750 as of 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, and having a maturity equal to such
Interest Period, PROVIDED that, if Dow Jones Markets (Telerate) Page 3750
is not available for any reason, the applicable Eurodollar Base Rate for
the relevant Interest Period
<PAGE>
shall instead be the rate determined by the Administrative Agent to be the
rate at which First Chicago offers to place deposits in U.S. dollars with
firstclass banks in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period, in the approximate amount of First Chicago's relevant Eurodollar
Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 1.9, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest
Period, plus 0.875%. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its
overall net income, and franchise taxes imposed on it, by (i) the
jurisdiction under the laws of which such Lender, its Lending Installation
or the Administrative Agent is incorporated or organized or (ii) the
jurisdiction in which the Administrative Agent's or such Lender's principal
executive office or such Lender's applicable Lending Installation is
located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Extension Date" is defined in Section 1.17.
"Extension Notice" is defined in Section 1.17.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent in its sole
discretion.
"First Chicago" means The First National Bank of Chicago in its
individual capacity, and its successors.
"Fixed Charge Coverage Ratio" means as of the last day of any
calendar quarter the ratio of EBITDA less capital expenditures (as defined
in GAAP) for the four calendar
<PAGE>
quarters of the Borrower then ended to the sum of (i) Interest Expense for
the same four calendar quarters, (ii) the aggregate principal amount of
dividends and other distributions on the capital stock of the Borrower for
the same four calendar quarters, (iii) 20% of the average daily aggregate
principal amount of "Loans" outstanding during the same four calendar
quarters under the Multicurrency Credit Agreement and (iv) that portion of
long-term Indebtedness (not including the "Loans" under the Multicurrency
Credit Agreement but including in any event the Loans hereunder) of the
Borrower or any of its Restricted Subsidiaries which is due and payable
during the same four calendar quarters and is not repaid with the proceeds
of the issuance of capital securities.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, in each case changing when and as the
Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 1.9, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 1.9, bears interest at the Floating Rate.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower which
is organized under the laws of a jurisdiction other than the United States
of America or any State thereof.
"GAAP" means generally accepted accounting principles as in effect on
the date hereof, applied by the Borrower and its Subsidiaries on a basis
consistent with the preparation of the Borrower's financial statements
furnished to the Lenders as described in Section 5.4 hereof.
"Guarantor" means (i) LaSalle Partners Corporate & Financial
Services, Inc., a Maryland corporation, LaSalle Partners Management
Services, Inc., a Maryland corporation, LaSalle Advisors Capital
Management, Inc., a Maryland corporation, LaSalle Partners International,
Inc., a Delaware corporation, LP International, a limited liability
company, a Wyoming limited liability company, LaSalle Partners Co-
Investment, Inc., a Maryland corporation, LaSalle Hotel Advisors, Inc., a
Maryland corporation (ii) any other Domestic Subsidiary which becomes a
direct Subsidiary of the Borrower and (iii) any other Subsidiary of the
Borrower designated by the Borrower as a Guarantor as required by
Section 6.22 hereof.
"Guaranty" by any Person means all obligations (other than
endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend or other financial obligation
(including, without limitation, limited or full recourse obligations in
connection with sales of receivables or any other Property) of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through
an agreement, contingent or otherwise, by such Person: (i) to purchase
such Indebtedness or obligation or any Property or assets constituting
security therefor, (ii) to advance or supply funds (x) for the purchase or
payment of such Indebtedness or
<PAGE>
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, (i) obligations of such Person
for borrowed money, (ii) obligations of such Person representing the
deferred purchase price of property or services other than accounts payable
arising in the ordinary course of business on terms customary in the trade,
(iii) obligations of such Person evidenced by notes, acceptances, or other
instruments of such Person or pursuant to letters of credit issued for such
Person's account, (iv) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (v) Capitalized Lease
Obligations of such Person and (vi) obligations for which such Person is
obligated pursuant to a Guaranty.
"Interest Expense" means, for any period, the sum of all interest
charges of the Borrower and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Interest Period" means, with respect to a Eurodollar Advance, a
period of one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Interest Period
shall end on the day which corresponds numerically to such date one, two,
three or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month. If an Interest
Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business
Day.
"Investment" is defined in Section 6.14 hereof.
<PAGE>
"Lenders" means the lending institutions listed on the signature
pages of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, the office, branch, subsidiary or affiliate of such
Lender or the Administrative Agent listed on the signature pages hereof or
otherwise selected by such Lender or the Administrative Agent pursuant to
Section 1.15.
"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" means, with respect to a Lender, such Lender's loan made
pursuant to Article I (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Notes, each Subsidiary
Guarantee Agreement delivered to the Administrative Agent pursuant to
Section 6.1 hereof and any security agreement delivered pursuant to
Section 6.22 hereof.
"Material Adverse Effect" means a material and adverse effect on the
business, operations, Property or financial or other condition of the
Borrower and its Subsidiaries, taken as a whole.
"Maturity Date" means September 21, 1999 or any later date as may be
specified in accordance with Section 1.17.
"Multicurrency Credit Agreement" means the Multicurrency Credit
Agreement dated as of November 25, 1997 among LaSalle Partners
Incorporated, the Guarantors party thereto, the Banks party thereto and
Harris Trust and Savings Bank, as Agent, as in effect from time to time.
"Non-U.S. Lender" is defined in Section 2.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 1.11 in the form of Exhibit E.
"Notice of Assignment" is defined in Section 12.3.2.
<PAGE>
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the
Lenders or to any Lender, the Administrative Agent or any indemnified party
arising under the Loan Documents.
"Other Taxes" is defined in Section 2.5(ii).
"Participants" is defined in Section 12.2.1.
"Partnerships" means collectively, LaSalle Partners Limited
Partnership, a Delaware Limited Partnership and LaSalle Partners Management
Limited Partnership, a Delaware Limited Partnership, predecessors to the
Borrower.
"Payment Date" means the last day of each March, June, September and
December.
"Person" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or any agency or political subdivision thereof.
"Plan" means at any time an employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code that is either (i) maintained by a member of the
Controlled Group or (ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer makes
contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding
five plan years made contributions.
"PBGC" is defined in Section 4.8 hereof.
"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.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of
the Federal Reserve System.
"Required Lenders" means three or more Lenders in the aggregate
having at least 51% of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, three or more Lenders in the aggregate
holding at least 51% of the aggregate unpaid principal amount of the
outstanding Advances.
<PAGE>
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"Restricted Subsidiary" means any Subsidiary of the Borrower other
than an Unrestricted Subsidiary.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"SEC" means the Securities and Exchange Commission.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Security" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"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 Lenders.
"Subsidiary" means, as to the Borrower, a corporation, partnership or
other entity that, under GAAP, is included in the consolidated financial
statements of the Borrower.
"Subsidiary Guarantee Agreement" means a letter to the Administrative
Agent in the form of Exhibit D hereto executed by a Subsidiary whereby it
acknowledges it is party hereto as a Guarantor under Article X hereof.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities
with respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Total Funded Debt" means all Indebtedness of the Borrower and its
Restricted Subsidiaries determined without duplication on a consolidated
basis.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"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
<PAGE>
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.
"Unmatured Default" means an event or condition the occurrence of
which would with the passage of time or the giving of notice, or both,
constitute a Default.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower (other
than a Guarantor) which (i) is established for the sole purpose of
investing in real estate and real estate related assets including notes and
other securities and (ii) is designated by the Borrower (with prior written
notice to the Administrative Agent) to be an Unrestricted Subsidiary;
provided that no Subsidiary may be an Unrestricted Subsidiary for more than
180 days.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary
voting power for the election of directors or similar governing body of
such Person, other than stock or other equity interests having such power
only by reason of the happening of a contingency.
"Welfare Plan" means a "welfare plan", as defined in Section 3(1) of
ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the
Borrower means a Subsidiary of which all of the issued and outstanding
shares of stock or other equity interests (other than directors' qualifying
shares as required by law) shall be owned by the Borrower and/or one or
more of its Wholly-Owned Subsidiaries.
"Year 2000 Issues" means anticipated costs, problems and
uncertainties associated with the inability of certain computer
applications to effectively handle data including dates on and after
January 1, 2000, as such inability affects the business, operations and
financial condition of the Borrower and its Subsidiaries.
Section 3.2. 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 (i) where such principles are inconsistent with
the specific provisions of this Agreement and (ii) compliance with
Sections 6.16 and 6.17 hereof for any period prior to July 22, 1997 will be
determined for the Borrower as if the Partnerships were the Borrower.
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender as to
itself and, where the following representations and warranties apply to
Subsidiaries, as to each of its Subsidiaries, as follows:
Section 4.1. Corporate Organization and Authority. The Borrower
is duly organized and existing in good standing under the laws of the State
of Maryland; has all necessary corporate power to carry on its present
business; and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing,
qualification or good standing necessary and in which the failure to be so
licensed, qualified or in good standing would reasonably be expected to
have a Material Adverse Effect.
Section 4.2. Subsidiaries. Schedule 4.2 (as updated from time
to time pursuant to Section 7.1) hereto identifies each Guarantor, the
jurisdiction of its organization, the percentage of issued and outstanding
shares of each class of its capital stock or equity interests, as the case
may be, owned by the Borrower and the Subsidiaries and, if such percentage
is not 100% (excluding directors' qualifying shares as required by law), a
description of each class of its authorized capital stock and other equity
interests and the number of shares of each class issued and outstanding.
Except to the extent that would not reasonably be expected to have a
Material Adverse Effect, each Subsidiary is duly incorporated or formed and
existing in good standing as a corporation, limited partnership, limited
liability company or other entity under the laws of the jurisdiction of its
incorporation or formation, has all necessary corporate or other power to
carry on its present business, and is duly licensed or qualified and in
good standing in each jurisdiction in which the nature of the business
transacted by it or the nature of the Property owned or leased by it makes
such licensing or qualification necessary. All of the issued and
outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and, if such
Subsidiary is a corporation, nonassessable except as set forth on Schedule
4.2 hereto. All such shares owned by the Borrower are owned beneficially,
and of record, free of any Lien. Each direct Domestic Subsidiary of the
Borrower is a Guarantor.
Section 4.3. Corporate Authority and Validity of Obligations.
The Borrower has full power and authority to enter into this Agreement and
the other Loan 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 Loan 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
<PAGE>
duly authorized, executed and delivered by the Borrower and constitutes
valid and binding obligations of the Borrower in accordance with its terms.
Each Credit Document to which a Guarantor is a party has been duly
authorized, executed and delivered by such Guarantor and constitutes valid
and binding obligations of such Guarantor in accordance with its terms. No
Credit Document to which the Borrower is a party, nor the performance or
observance by the Borrower of any of the matters or things therein provided
for, contravenes any provision of law or any charter or by-law provision of
the Borrower or (individually or in the aggregate) any material Contractual
Obligation of or binding upon the Borrower or any of its Properties or
results in or requires the creation or imposition of any Lien on any of the
Properties or revenues of the Borrower. No Credit Document to which a
Guarantor is a party, nor the performance or observance by such Guarantor
of any of the matters or things therein provided for, contravenes any
provision of law or any charter or by-law provision of such Guarantor or
(individually or in the aggregate) any material Contractual Obligation of
or binding upon such Guarantor or any of its Properties or results in or
requires the creation or imposition of any Lien on any of the Properties or
revenues of such Guarantor.
Section 4.4. Financial Statements. All financial statements
heretofore delivered to the Lenders showing historical performance of
either the Borrower or the Partnerships for each of the Borrower's or
Partnerships' fiscal years ending on or before December 31, 1997, as the
case may be, 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 Partnerships and their
Subsidiaries as of the dates thereof and the results of operations for the
periods covered thereby. The Partnerships and their 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 4.4 or in comments or footnotes thereto, or in
any report supplementary thereto, heretofore furnished to the Lenders. The
unaudited interim consolidated balance sheet of the Borrower and its
Subsidiaries as at June 30, 1998, and the related consolidated statements
of income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the six (6) months then ended (including periods prior to
the acquisition of the Partnerships by the Borrower), heretofore furnished
to the Lenders, fairly present the consolidated financial condition of the
Borrower and its Subsidiaries as at said date and the consolidated results
of their operations and cash flows for the periods then ended in conformity
with GAAP applied on a consistent basis. Neither the Borrower nor any
Subsidiary has contingent liabilities which are material to it other than
as indicated on such financial statements or, with respect to future
periods, on the financial statements furnished pursuant to Section 6.6
hereof. Since June 30, 1998, there has been no material adverse change in
the business, operations, Property or financial or other condition, or
business prospects, of the Borrower and its Subsidiaries on a consolidated
basis.
Section 4.5. No Litigation; No Labor Controversies. (a) There
is no litigation or governmental proceeding pending, or to the knowledge of
the Borrower or any Guarantor threatened, against the Borrower or any
Subsidiary which, if adversely determined, would reasonably be expected
(individually or in the aggregate) to have a Material Adverse Effect.
(b) There are no labor controversies pending or, to the best
knowledge of the Borrower or any Guarantor, threatened against the Borrower
or any Subsidiary which
<PAGE>
would reasonably be expected (insofar as the Borrower may reasonably
foresee) to have a Material Adverse Effect.
Section 4.6. Taxes. The Borrower and its Subsidiaries have
filed all United States federal tax returns, and all other tax returns,
required to be filed and have paid all taxes due pursuant to such returns
or pursuant to any assessment received by the Borrower or any Subsidiary,
except such taxes, if any, as are being contested in good faith and for
which adequate reserves have been provided. No notices of tax liens have
been filed and no claims are being asserted concerning any such taxes,
which liens or claims are material to the financial condition of the
Borrower and its Subsidiaries on a consolidated basis taken as a whole.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries for any taxes or other governmental charges are adequate.
Section 4.7. Approvals. No authorization, consent, license,
exemption, filing or registration with any court or governmental
department, agency or instrumentality, nor any approval or consent of the
stockholders of the Borrower or any Subsidiary or from any other Person, is
necessary to the valid execution, delivery or performance by the Borrower
or any Subsidiary of any Credit Document to which it is a party except for
such approvals and consents which have been obtained and are in full force
and effect.
Section 4.8. ERISA. With respect to each Plan, the Borrower and
each other member of the Controlled Group has fulfilled its obligations
under the minimum funding standards of and is in compliance in all material
respects with the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and with the Code to the extent applicable to it and has
not incurred any liability to the Pension Benefit Guaranty Corporation
("PBGC") or a Plan under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA. Neither the Borrower nor
any Subsidiary has any contingent liabilities for any post-retirement
benefits under a Welfare Plan, other than liability for continuation
coverage described in Part 6 of Title I of ERISA.
Section 4.9. Government Regulation. Neither the Borrower nor
any Subsidiary is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or to the extent a Subsidiary
is an "investment company," it is properly registered with the SEC.
Section 4.10. Margin Stock. Neither the Borrower nor any
Subsidiary is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
margin stock ("margin stock" to have the same meaning herein as in
Regulation U of the Board of Governors of the Federal Reserve System). The
Borrower will not use the proceeds of any Loan in a manner that violates
any provision of Regulation U or X of the Board of Governors of the Federal
Reserve System.
Section 4.11. Licenses and Authorizations; Compliance with
Environmental and Health Laws. (a) The Borrower and each of its
Subsidiaries has all necessary licenses, permits and governmental
authorizations to own and operate its Properties and to carry on its
business as currently conducted and contemplated, except to the extent the
failure to have
<PAGE>
such licenses, permits or authorizations would not reasonably be expected
to have a Material Adverse Effect.
(b) To the best of the Borrower's and each Guarantor's knowledge,
the business and operations of the Borrower and each Subsidiary comply in
all respects with all applicable Environmental and Health Laws, except
where the failure to so comply would not (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any Subsidiary has given, nor is it
required to give, nor has it received, any notice, letter, citation, order,
warning, complaint, inquiry, claim or demand to or from any governmental
entity or in connection with any court proceeding with respect to a matter
which would reasonably be expected to have a Material Adverse Effect
claiming that: (i) the Borrower or any Subsidiary has violated, or is
about to violate, any Environmental and Health Law; (ii) there has been a
release, or there is a threat of release, of Hazardous Materials from the
Borrower's or any Subsidiary's Property, facilities, equipment or vehicles;
(iii) the Borrower or any Subsidiary may be or is liable, in whole or in
part, for the costs of cleaning up, remediating or responding to a release
of Hazardous Materials; or (iv) any of the Borrower's or any Subsidiary's
property or assets are subject to a Lien in favor of any governmental
entity for any liability, costs or damages, under any Environmental and
Health Law arising from, or costs incurred by such governmental entity in
response to, a release of a Hazardous Materials.
Section 4.12. Ownership of Property; Liens. The Borrower and
each Subsidiary has good record and marketable title in fee simple to, or
valid leasehold interests in, all real property owned or leased by it, and
good title to or valid leasehold interests in all its other Property. None
of the Borrower's real property is subject to any Lien or Capitalized Lease
Obligation except as permitted in Section 6.9, and none of the Borrower's
or any Restricted Subsidiary's other Property is subject to any Lien,
except as permitted in Section 6.9.
Section 4.13. No Burdensome Restrictions; Compliance with
Agreements. Neither the Borrower nor any Subsidiary is (a) party or
subject to any law, regulation, rule or order, or any Contractual
Obligation that (individually or in the aggregate) would reasonably be
expected to have a Material Adverse Effect or (b) in default in the
performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement to which it is a party, which
default would reasonably be expected to have a Material Adverse Effect.
Section 4.14. Accuracy of Information. No information, exhibit
or report furnished by the Borrower to any Lender or the Administrative
Agent in connection with a Loan or the negotiation of the Loan Documents
contained any material misstatement of fact or omitted to state any fact
necessary to make the statements contained therein not misleading.
Section 4.15. Year 2000. The Borrower has made an assessment of
the Year 2000 Issues. Based on such assessment the Borrower does not
reasonably anticipate that Year 2000 Issues will have a Material Adverse
Effect.
<PAGE>
ARTICLE V
CONDITIONS PRECEDENT
The obligation of each Lender to advance, continue, or convert any
Loan, shall be subject to the following conditions precedent:
Section 5.1. Effectiveness. This Agreement shall become
effective upon satisfaction of the following conditions precedent:
(a) This Agreement shall have been executed and delivered by
the Borrower, Guarantors, Lenders and Administrative Agent;
(b) The Administrative Agent shall have received for each
Lender the favorable written opinion of Hagan & Associates, counsel to the
Borrower and Guarantors substantially in the form of Exhibit C hereto;
(c) The Administrative Agent shall have received for each
Lender copies of (i) the Certificate of Incorporation, together with all
amendments, and a certificate of good standing, for the Borrower, both
certified as of a date not earlier than 20 days prior to the date hereof by
the appropriate governmental officer of the Borrower's jurisdiction of
incorporation and (ii) the Borrower's bylaws and any amendments thereto,
certified in each instance by its secretary or an assistant secretary;
(d) The Administrative Agent shall have received copies of
the partnership agreements of each Guarantor that is a partnership,
certified by a general partner or other duly authorized officer thereof to
be a true, correct and complete copy thereof;
(e) The Administrative Agent shall have received copies of
the Certificate of Incorporation and bylaws of each Guarantor that is a
corporation, certified in each instance by its secretary or an assistant
secretary;
(f) The Administrative Agent shall have received copies,
certified by the secretary or assistant secretary of each Guarantor that is
a corporation, and of each corporate general partner in the case of each
Guarantor that is a partnership having a corporation as its general
partner, of its board of directors' resolutions authorizing the execution
of the Loan Documents;
(g) The Administrative Agent shall have received
certificates, executed by a general partner of each Guarantor that is a
partnership, and by the secretary or assistant secretary of each Guarantor
that is a corporation, and of each corporate general partner in the case of
each Guarantor that is a partnership having a corporation as its general
partner, which shall identify by name and title and bear the signature of
the partners or officers authorized to sign the Loan Documents;
<PAGE>
(h) The Administrative Agent shall have received any Notes
requested by a Lender pursuant to Section 1.11 payable to the order of each
such requesting Lender;
(i) The Administrative Agent shall have received for each
Lender a list of the Borrower's Authorized Representatives;
(j) Written money transfer instructions, in substantially the
form of Exhibit F, addressed to the Agent and signed by an Authorized
Representative, together with such other related money transfer
authorizations as the Agent may have reasonably requested;
(k) The Administrative Agent shall have received for each
Lender a non-refundable closing fee in the amounts as agreed between the
Administrative Agent and the Borrower; and
(l) All legal matters incident to the execution and delivery
of the Loan Documents shall be satisfactory to the Lenders.
Section 5.2. Initial Advance. The Lenders shall not be required
to make the initial Advance unless on the applicable borrowing date:
(i) There exists no default or Unmatured Default;
(ii) The representations and warranties contained in
Article IV are true and correct as of such date except to the extent any
such representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been true
and correct on and as of such earlier date;
(iii) The Compass Acquisition shall occur simultaneously with
or immediately following the initial Advance;
(iv) The Administrative Agent shall have received the notice
required by Section 1.1(b); and
(v) All legal matters incident to the making of such Advance
shall be satisfactory to the Lenders and their counsel.
The borrowing notice with respect to the initial Advance shall
constitute a representation and warranty by the Borrower that the
conditions contained in Section 5.2(i) and (ii) have been satisfied.
<PAGE>
ARTICLE VI
COVENANTS
The Borrower covenants and agrees that, so long as any 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 Lenders:
Section 6.1. Corporate Existence; Subsidiaries. The Borrower
shall, and shall cause each of its Restricted Subsidiaries to, preserve and
maintain its existence, subject to the provisions of Section 6.12 hereof.
As a condition to establishing or acquiring any direct Domestic Subsidiary
the Borrower shall (i) cause such Domestic Subsidiary to execute a
Subsidiary Guarantee Agreement, (ii) cause such Domestic Subsidiary to
deliver documentation similar to that described in Section 5.1(a) through
(c) relating to the authorization for, execution and delivery of, and
validity of such Domestic Subsidiary's obligations as a Guarantor hereunder
and under the Subsidiary Guarantee Agreement in form and substance
satisfactory to the Required Lenders and (iii) deliver an updated
Schedule 4.2 to reflect the direct Domestic Subsidiary.
Section 6.2. Maintenance. The Borrower will maintain, preserve
and keep its Property, necessary to the proper conduct of its business in
reasonably good repair, working order and condition and will from time to
time make all reasonably necessary repairs, renewals, replacements,
additions and betterments thereto so that at all times such plants,
properties and equipment shall be reasonably preserved and maintained, and
the Borrower will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; provided, however, that nothing in this
Section 6.2 shall prevent the Borrower or a Subsidiary from discontinuing
the operation or maintenance of any such Properties if such discontinuance
would not reasonably be expected to have a Material Adverse Effect.
Section 6.3. Taxes. The Borrower will duly pay and discharge,
and will cause each of its Subsidiaries duly to pay and discharge, all
taxes, assessments, and governmental charges or levies upon or against it
or against its Properties, in each case before the same becomes delinquent
and before penalties accrue thereon, unless and to the extent that the same
is being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor on the books of the
Borrower.
Section 6.4. ERISA. The Borrower will, and will cause each of
its Subsidiaries to, promptly pay and discharge all obligations and
liabilities arising under ERISA of a character which if unpaid or
unperformed might result in the imposition of a Lien against any of its
properties or assets and will promptly notify the Administrative Agent of
(i) the occurrence of any reportable event (as defined in ERISA) affecting
a Plan, other than any such event of which the PBGC has waived notice by
regulation, (ii) receipt of any notice from PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (iii) its or
any of its Subsidiaries' intention to terminate or withdraw from any Plan,
and (iv) the occurrence of any event affecting any Plan which could result
in the incurrence by the
<PAGE>
Borrower or any of its Subsidiaries of any material liability, fine or
penalty, or any material increase in the contingent liability of the
Borrower or any of its Subsidiaries under any post-retirement Welfare Plan
benefit. The Administrative Agent will promptly distribute to each Lender
any notice it receives from the Borrower pursuant to this Section 6.4.
Section 6.5. Insurance. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain, insurance with good and
responsible insurance companies, covering insurable Property owned by it
with respect to such risks as is consistent with sound business practice.
The Borrower will upon request of any Lender furnish to such Lender a
summary setting forth the nature and extent of the insurance maintained
pursuant to this Section 6.5.
Section 6.6. Financial Reports and Other Information. (a) The
Borrower will maintain a system of accounting in accordance with GAAP and
will furnish to the Lenders and their respective duly authorized
representatives such information respecting the business and financial
condition of the Borrower and its Subsidiaries as any Lender may reasonably
request; and without any request, the Borrower will furnish each of the
following to each Lender:
(i) within 45 days after the end of each of the
first three quarterly fiscal periods of the Borrower, a copy of the
Borrower's Form 10-Q Report filed with the SEC;
(ii) within 90 days after the end of each fiscal
year of the Borrower, a copy of the Borrower's Form 10-K Report filed with
the SEC, prepared by the Borrower and containing or including as an exhibit
thereto the Borrower's financial statements for such fiscal year as
certified by independent public accountants of recognized national standing
selected by the Borrower in accordance with GAAP with such accountants'
unqualified opinion to the effect that the financial statements have been
prepared in accordance with GAAP and present fairly in all material
respects in accordance with GAAP the consolidated financial position of the
Company and its Subsidiaries as of the close of such fiscal year and the
results of their operations and cash flows for the fiscal year then ended
and that an examination of such accounts in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances;
(iii) within the period provided in subsection (ii)
above, the written statement of the accountants who certified the audit
report thereby required that in the course of their audit they have
obtained no knowledge of any Default or Default with respect to
Sections 6.11, 6.15, 6.16 and 6.17, or, if such accountants have obtained
knowledge of any such Default or Default, they shall disclose in such
statement the nature and period of the existence thereof;
<PAGE>
(iv) promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports the
Borrower sends to its shareholders, and copies of all other regular,
periodic and special reports and all registration statements the Borrower
files with the SEC or any successor thereto, or with any national
securities exchanges; and
(v) within 30 days of the beginning of each
fiscal year of the Borrower an operating budget for the Borrower and its
Subsidiaries for such fiscal year of the Borrower.
(b) Each financial statement furnished to the Lenders pursuant to
subsection (i) or (ii) of this Section 6.6 shall be accompanied by a
Compliance Certificate in the form of Exhibit B hereto signed by the
Borrower's chief financial officer, treasurer or controller showing the
Borrower's compliance with the covenants set forth in Sections 6.14(k),
6.15, 6.16 and 6.17 hereof.
(c) The Borrower will promptly (and in any event within three
Business Days after any of the President, chief executive officer, chief
financial officer, chief operating officer, treasurer, assistant treasurer,
or controller of the Borrower has knowledge thereof) give notice to the
Administrative Agent:
(i) of the occurrence of any Change of Control, Unmatured
Default or Default;
(ii) of any default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, except for a default
or event of default which is not reasonably expected to have a Material
Adverse Effect;
(iii) of the occurrence of an event or condition which would
reasonably be expected to result in a Material Adverse Effect; and
(iv) of any litigation or governmental proceeding of the type
described in Section 4.5 hereof.
Section 6.7. Lender Inspection Rights. Upon reasonable notice
from any Lender, the Borrower will permit such Lender (and such Persons as
any Lender may designate) during normal business hours and under the
Borrower's guidance, to visit and inspect any of the properties of the
Borrower or any of its Subsidiaries, to examine all of their books of
account, records, reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances and accounts
with their respective officers and employees.
Section 6.8. Conduct of Business. Neither the Borrower nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Borrower and its Subsidiaries taken as a
whole would be substantially changed from that conducted on the date
hereof.
<PAGE>
Section 6.9. Liens. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, permit to exist or to
be incurred any Lien of any kind on any Property owned by the Borrower or
any Restricted Subsidiary; provided, however, that this Section 6.9 shall
not apply to nor operate to prevent:
(a) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security obligations,
taxes, assessments, statutory obligations or other similar charges, good
faith deposits, pledges or Liens in connection with bids, tenders,
contracts or leases to which the Borrower or any Subsidiary is a party
(other than contracts for borrowed money), or other deposits required to be
made in the ordinary course of business; provided that in each case the
obligation secured is not overdue or, if overdue, is being contested in
good faith by appropriate proceedings and for which reserves in conformity
with GAAP have been provided on the books of the Borrower;
(b) mechanics', workmen's, materialmen's, landlords',
carriers' or other similar Liens arising in the ordinary course of business
(or deposits to obtain the release of such Liens) securing obligations not
due or, if due, being contested in good faith by appropriate proceedings
and for which reserves in conformity with GAAP have been provided on the
books of the Borrower;
(c) Liens for taxes or assessments or other government
charges or levies on the Borrower or any Subsidiary of the Borrower or
their respective Properties, not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in good
faith by appropriate proceedings and for which reserves in conformity with
GAAP have been provided on the books of the Borrower;
(d) Liens arising out of judgments or awards against the
Borrower or any Subsidiary of the Borrower, or in connection with surety or
appeal bonds in connection with bonding such judgments or awards, the time
for appeal from which or petition for rehearing of which shall not have
expired or with respect to which the Borrower or such Subsidiary shall be
prosecuting an appeal or proceeding for review, and with respect to which
it shall have obtained a stay of execution pending such appeal or
proceeding for review; provided that the aggregate amount of liabilities
(including interest and penalties, if any) of the Borrower and its
Subsidiaries secured by such Liens shall not exceed $1,000,000 at any one
time outstanding;
(e) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties which are necessary for the conduct of the activities of the
Borrower and any Subsidiary of the Borrower or which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair their use in the
operation of the business of the Borrower or any Subsidiary of the
Borrower;
(f) Liens existing on the date hereof and listed on Schedule
6.9 hereto;
<PAGE>
(g) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing paragraphs (a) through (f), inclusive,
provided, however, that the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of Indebtedness so secured at
the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to the Property which
was subject to the Lien so extended, renewed or replaced; and
(h) Liens on property (not constituting Investments) of the
Borrower or any of its Subsidiaries created solely for the purpose of
securing Indebtedness permitted by Section 6.19(g) hereof, representing or
incurred to finance, refinance or refund the purchase price of Property,
provided that no such Lien shall extend to or cover other Property of the
Borrower or such Subsidiary other than the respective Property so acquired,
and the principal amount of Indebtedness secured by any such Lien shall at
no time exceed the original purchase price of such Property; and
(i) Liens not otherwise permitted under this Section 6.9 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 6.11, is in an aggregate principal amount not
exceeding $5,000,000 at any time outstanding;
Section 6.10. Use of Proceeds; Regulation U. The proceeds of
each Advance will be used by the Borrower and its Subsidiaries solely to
finance the Compass Acquisition including the payment of any reasonable
fees and expenses incidental thereto. Notwithstanding that a portion of
the Compass Acquisition relating to the Compass Australian Common Shares
(as defined in the Compass Purchase Agreement) may not close on the date
the initial Advance is created, the Borrower may borrow the full amount
available hereunder; provided that (i) on the date of the initial Advance
the Borrower repays $8,000,000 of indebtedness outstanding under the
Multicurrency Credit Agreement with the proceeds of the initial Advance and
(ii) if the acquisition of the Compass Australian Common Shares does not
occur on or prior to November 15, 1998 the Borrower shall prepay the
Advances in an aggregate principal amount of $8,000,000 on November 15,
1998. The Borrower will not use any part of the proceeds of any of the
Advances directly or indirectly to purchase or carry any margin stock (as
defined in Section 4.10 hereof) or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
Section 6.11. Sales and Leasebacks. The Borrower will not, nor
will it permit any Restricted Subsidiary to, enter into any arrangement
with any bank, insurance company or other lender or investor providing for
the leasing by the Borrower or any Subsidiary of any Property theretofore
owned by it and which has been or is to be sold or transferred by such
owner to such lender or investor, except to the extent the aggregate
principal amount of Capitalized Lease Obligations under such leases plus
the outstanding principal amount of Indebtedness secured by Liens permitted
by Section 6.9(i) (and not separately permitted by other provisions of
Section 6.9) does not exceed $5,000,000 at any time outstanding;
<PAGE>
Section 6.12. Mergers, Consolidations and Sales of Assets.
(a) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, (i) consolidate with or be a party to a merger with any
other Person or (ii) sell, lease or otherwise dispose of all or a
"substantial part" of the consolidated assets of the Borrower and its
Restricted Subsidiaries; provided, however, that:
(1) any Restricted Subsidiary of the Borrower may merge or
consolidate with or into or sell, lease or otherwise convey its assets to
the Borrower or any Restricted Subsidiary of which the Borrower directly or
indirectly holds at least the same percentage equity ownership or is
entitled through ownership of interests, contractually or otherwise, to at
least the same economic interest; provided that in any such merger or
consolidation involving the Borrower, the Borrower shall be the surviving
or continuing corporation;
(2) The Borrower and its Subsidiaries may dissolve or
liquidate any Restricted Subsidiary of the Borrower or of such Subsidiary
so long as all the assets of such dissolved or liquidated Restricted
Subsidiary are concurrently transferred to the Borrower or any Restricted
Subsidiary of which the Borrower directly or indirectly holds at least the
same percentage equity ownership or is entitled through ownership of
interests, contractually or otherwise, to at least the same economic
interest; provided that if any Guarantor is dissolved or liquidated all of
such Guarantor's assets shall be concurrently transferred to the Borrower
or another Guarantor;
(3) The Borrower or any Restricted Subsidiary of the Borrower
may consolidate or merge with any other Person if the Borrower or such
Restricted Subsidiary or, in the case of such a transaction involving the
Borrower, the Borrower is the surviving or continuing corporation and at
the time of such consolidation or merger, and after giving effect thereto,
no Default or Default shall have occurred and be continuing;
(4) The Borrower and its Subsidiaries may sell or otherwise
dispose of any asset which, in the reasonable judgment of such Person, have
become obsolete or worn out; and
(5) The Borrower and its Subsidiaries may in a fair market
value transaction, sell or otherwise dispose of any direct or indirect
Investment in real estate or real estate related assets, including notes
and other securities.
As used in this Section 6.12(a), a sale, lease, transfer or disposition of
assets during any fiscal year shall be deemed to be of a "substantial part"
of the consolidated assets of the Borrower and its Restricted Subsidiaries
if the net book value of such assets, when added to the net book value of
all other assets (not including dispositions of stock in Subsidiaries
permitted under Section 6.12(b) hereof) sold, leased, transferred or
disposed of by the Borrower and its Restricted Subsidiaries during such
fiscal year (other than inventory in the ordinary course of business)
exceeds 5% of the total assets of the Borrower and its
<PAGE>
Restricted Subsidiaries, determined on a consolidated basis as of the last
day of the immediately preceding fiscal year.
(b) Except with respect to the syndication or other disposition of
Subsidiaries or interests in Subsidiaries through which direct or indirect
Investments in real estate or real estate related assets, including notes
and other securities, are made, the Borrower will not sell, transfer or
otherwise dispose of, or permit any Restricted Subsidiary to issue, sell,
transfer or otherwise dispose of, any shares of stock of any class
(including as "stock" for purposes of this Section, any warrants, rights or
options to purchase or otherwise acquire stock or other Securities
exchangeable for or convertible into stock) of any Subsidiary, except to
the Borrower or any Restricted Subsidiary of which the Borrower directly or
indirectly holds at least the same percentage equity ownership or is
entitled through ownership of interests, contractually or otherwise, to at
least the same economic interest and except for the purpose of qualifying
directors.
Section 6.13. Use of Property and Facilities; Environmental and
Health and Safety Laws. (a) The Borrower will, and will cause each of its
Subsidiaries to, comply in all material respects with the requirements of
all Environmental and Health Laws applicable to or pertaining to the
Properties or business operations of the Borrower or any Subsidiary of the
Borrower to the extent noncompliance would reasonably be expected to have a
Material Adverse Effect. Without limiting the foregoing, the Borrower will
not, and will not permit any Person to, except in accordance with
applicable law, dispose of any Hazardous Material into, onto or upon any
real property owned or operated by the Borrower or any of its Subsidiaries
if such disposal would reasonably be expected to have a Material Adverse
Effect.
(b) The Borrower will promptly provide the Lenders with copies of
any notice or other instrument of the type described in Section 4.11(c)
hereof, and in no event later than five (5) Business Days after the
President, chief executive officer, chief financial officer, chief
operating officer, treasurer, assistant treasurer or controller of the
Borrower receives such notice or instrument.
Section 6.14. Investments, Acquisitions, Loans, Advances and
Guaranties. The Borrower will not, nor will it permit any Subsidiary to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or
loans or advances to, any other Person (other than the Borrower or a
Subsidiary of the Borrower), or acquire all or any substantial part of the
assets or business of any other Person (other than the Borrower or a
Subsidiary of the Borrower) or division thereof, or be or become liable as
endorser, guarantor, surety or otherwise (such as liability as a general
partner) for any debt, obligation or undertaking of any other Person (other
than the Borrower or a Subsidiary of the Borrower), or otherwise agree to
provide funds for payment of the obligations of another (other than the
Borrower or a Subsidiary of the Borrower), or supply funds thereto or
invest therein or otherwise assure a creditor of another (other than the
Borrower or a Subsidiary of the Borrower) against loss, or apply for or
become liable to the issuer of a letter of credit which supports an
obligation of another (other than the Borrower or a Subsidiary of the
Borrower) (cumulatively, all of the
<PAGE>
foregoing, being "Investments"); provided, however, that the foregoing
provisions shall not apply to nor operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America provided that any such obligation matures within one year from the
date it is acquired by the Borrower or Subsidiary;
(b) investments in commercial paper rated at least P-1 by
Moody's Investors Services, Inc. or A-1 by Standard & Poor's Corporation
maturing within one year of its date of issuance;
(c) demand deposit accounts maintained in the ordinary course
of business;
(d) investments in certificates of deposit issued by and time
deposits with any commercial bank (whether domestic or foreign) having
capital and surplus of not less than $50,000,000 maturing within one year
from the date of issuance thereof or in banker's acceptances endorsed by
any Lender or other such commercial bank and maturing within six months of
the date of acceptance;
(e) investments in certificates of deposit issued by and time
deposits with any commercial bank (whether domestic or foreign) having
capital and surplus in excess of $10,000,000 but less than $50,000,000,
which deposits shall not exceed $500,000 in the aggregate;
(f) investments in repurchase obligations with a term of not
more than seven (7) days for underlying securities of the types described
in subsection (a) above entered into with any bank meeting the
qualifications specified in subsection (c) above, provided all such
agreements require physical delivery of the securities securing such
repurchase agreement, except those delivered through the Federal Reserve
Book Entry System;
(g) investments in money market funds that invest solely, and
which are restricted by their respective charters to invest solely, in
investments of the type described in the immediately preceding
subsections (a), (b), (c) and (d) above;
(h) endorsements of negotiable instruments for collection in
the ordinary course of business;
(i) loans and advances to employees and relocation companies
in the ordinary course of business not to exceed $5,000,000 in the
aggregate at any one time outstanding;
(j) Investments in existence on November 25, 1997 and
described on Schedule 7.14 hereof;
<PAGE>
(k) Acquisitions or Investments in a line of business related
to that of the Borrower and its Subsidiaries and Investments directly and
indirectly through Subsidiaries and other Persons in real estate and real
estate related assets, including notes and other securities, provided that
(i) no Unmatured Default or Default exists or would exist after giving
effect to such Acquisition or Investment, (ii) in the case of an
Acquisition, 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, (iii) in the case of Investments not
constituting Acquisitions, such Investment together with all other
Investments not constituting Acquisitions permitted under this subsection
(k) since November 25, 1997 reduced by the amount of proceeds of the
disposition of all or any part of any such Investments does not exceed
$70,000,000 in aggregate purchase price and if the aggregate purchase price
for any single Investment by the Borrower or any Subsidiary exceeds
$15,000,000 the Borrower shall have received the prior written consent of
the Required Lenders;
In determining the amount of Investments permitted under this
Section 6.14, Investments shall always be taken at the original cost
thereof (regardless of any subsequent appreciation or depreciation
therein), and Investments in the form of loans and advances shall be taken
at the principal amount thereof then remaining unpaid, and Investments in
the form of guarantees (including liabilities as a general partner) shall
be taken at the lesser of (i) amount of obligations guaranteed and (ii) the
fair market value of all the assets of such guarantor or general partner.
A change in the form of an Investment (e.g. from an interest as a limited
partner to making a direct loan to such limited partnership or a change in
the form of an entity from a limited partnership to a corporation) shall
not be regarded as a further Investment except to the extent the Borrower
or any of its Subsidiaries invests any further money.
Section 6.15. Consolidated Net Worth. The Borrower will as of
the last day of each calendar quarter maintain a Consolidated Net Worth of
not less than the Minimum Required Amount. For purposes of this section,
the "Minimum Required Amount" shall mean $100,000,000 and shall increase
(i) on the date of the issuance of capital securities (other than in
connection with the Borrower's Stock Compensation Program, Employee Stock
Purchase Plan, Stock Award and Incentive Plan and any similar programs or
plans) by the Borrower by an amount equal to 100% of the proceeds of any
such issuance net of any costs of issuance and (ii) as of January 1, 1999
and as of each January 1 thereafter, by an amount equal to 50% of the
cumulative positive Consolidated Net Income earned in the fiscal year
completed on the December 31 immediately preceding the relevant January 1
(but without subtraction for any negative Consolidated Net Income for any
such fiscal year).
Section 6.16. Funded Debt to EBITDA. (a) The Borrower will as of
the last day of each calendar quarter maintain the ratio of Total Funded
Debt as of such day to EBITDA for the four calendar quarters then ended at
not more than 3.75 to 1.00.
(b) The Borrower will not on the last day of more than four (4)
consecutive calendar quarters commencing with the first full calendar
quarter ending after the date of
<PAGE>
the initial Advance hereunder permit the ratio of Total Funded Debt as of
the last day of a calendar quarter to EBITDA for the four calendar quarters
then ended to be greater than 3.00 to 1.00.
Section 6.17. Fixed Charge Coverage Ratio. The Borrower will as
of the last day of each calendar quarter maintain a Fixed Charge Coverage
Ratio of not less than 1.75 to 1.00.
Section 6.18. Dividends and Other Shareholder Distributions. The
Borrower shall only declare or pay dividends or make a distribution (other
than dividends and distributions payable solely in its capital stock) of
any kind (including by redemption or purchase other than purchases of
outstanding capital stock in connection with the Borrower'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 Unmatured Default or Default exists prior to or would
result after giving effect to such action.
Section 6.19. Indebtedness. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, have outstanding at any time
any Indebtedness other than:
(a) The Obligations of the Borrower and Guarantors owing to
the Lenders and Administrative Agent hereunder;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower and any other Subsidiary;
(c) Capitalized Lease Obligations in an aggregate principal
amount outstanding not to exceed $5,000,000 on any date of determination;
(d) Subordinated Indebtedness;
(e) Investments (as defined in Section 6.14) permitted
pursuant to Section 6.14 in the form of Indebtedness;
(f) Guaranties by the Borrower and its Subsidiaries of
obligations of the Borrower and its Subsidiaries which obligations are not
prohibited under this Agreement;
(g) Indebtedness of the Borrower under the Multicurrency
Credit Agreement; and
(h) Indebtedness not otherwise permitted by this Section 6.19
of not more than $20,000,000 in aggregate principal amount outstanding on
any date of determination for the Borrower and its Restricted Subsidiaries.
Section 6.20. Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into or be a
party to any material transaction or arrangement (where "material" means
material for the Borrower and its Subsidiaries taken
<PAGE>
as a whole) with any Affiliate of such Person (other than the Borrower or
any of its Subsidiaries), including without limitation, the purchase from,
sale to or exchange of Property with, any merger or consolidation with or
into, or the rendering of any service by or for, any Affiliate, except in
the ordinary course of and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than could be obtained
in a comparable arm's-length transaction with a Person other than an
Affiliate.
Section 6.21. Compliance with Laws. Without limiting any of the
other covenants of the Borrower in this Article VI, the Borrower will, and
will cause each of its Subsidiaries to, conduct its business, and otherwise
be, in compliance with all applicable laws, regulations, ordinances and
orders of any governmental or judicial authorities; provided, however, that
neither the Borrower nor any Subsidiary of the Borrower shall be required
to comply with any such law, regulation, ordinance or order if (x) it shall
be contesting such law, regulation, ordinance or order in good faith by
appropriate proceedings and reserves in conformity with GAAP have been
provided therefor on the books of the Borrower or such Subsidiary, as the
case may be, or (y) the failure to comply therewith is not reasonably
expected to have, in the aggregate, a Material Adverse Effect.
Section 6.22. Additional Guarantors. (a) If on the last day of
any calendar quarter the total assets (not including investments in
Subsidiaries) of the non-Guarantor Subsidiaries of the Borrower, which are
Restricted Subsidiaries and which are not Subsidiaries 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 6.14(j) or Section 6.14(k), equal or exceed 25% of the total
consolidated assets of the Borrower and its Restricted Subsidiaries which
are not Subsidiaries 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 6.14(j) or
Section 6.14(k), then the Borrower will, within 15 Business Days of the
date on which the balance sheet for such date is required to be delivered
pursuant to Section 6.6(i) or Section 6.6(ii), cause an additional
Subsidiary or additional Subsidiaries to become a Guarantor or Guarantors
hereunder such that the total assets (not including investments in
Subsidiaries) of the non-Guarantor Subsidiaries of the Borrower, which are
Restricted Subsidiaries and which are not Subsidiaries 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 6.14(j) or Section 6.14(k), are less than 25% of the total
consolidated assets of the Borrower and its Restricted Subsidiaries which
are not Subsidiaries 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 6.14(j) or
Section 6.14(k). To the extent any Subsidiary becomes a Guarantor as a
result of the requirements of this Section 6.22 and the Guaranty of such
Subsidiary could be released such that on the last day of two successive
calendar quarters the total assets (not including investments in
Subsidiaries) of the non-Guarantor Subsidiaries of the Borrower (including
the Subsidiary requested to be released from its Guaranty), which are
Restricted Subsidiaries and which are not Subsidiaries 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 6.14(j) or Section 6.14(k),
<PAGE>
would be less than 25% of the total consolidated assets of the Borrower and
its Restricted Subsidiaries which are not Subsidiaries 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 6.14(j) or Section 6.14(k), then upon request of the Borrower the
Guaranty of such Subsidiary shall, provided that no Default or Default is
continuing, be immediately released, and the Administrative Agent is hereby
authorized to execute all appropriate documents on behalf of the Lenders to
document the release of such Subsidiary from its Guaranty.
(b) To the extent this Section 6.22 would require that a
Foreign Subsidiary be added as a Guarantor, in lieu of having such
Subsidiary provide a Guaranty pursuant to Section 11, the Borrower may
elect to provide, and to cause its Subsidiaries to provide, the
Administrative Agent with a security interest in 65% of the issued and
outstanding capital stock owned by Borrower and its Subsidiaries of such
Foreign Subsidiary pursuant to a security agreement in form and substance
reasonably acceptable to the Administrative Agent. Each Foreign Subsidiary
with respect to which a security interest is granted pursuant to this
Section 6.22(b) shall be regarded as a Guarantor for purposes of this
Section 6.22. To the extent a security interest in the stock of any
Foreign Subsidiary is provided pursuant to this Section 6.22(b) and such
security interest could be released such that on the last day of two
successive calendar quarters the total assets (not including investments in
Subsidiaries) of the non-Guarantor Subsidiaries of the Borrower (including
the Subsidiary the stock of which is requested to be released from the
security interest), which are Restricted Subsidiaries and which are not
Subsidiaries 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 6.14(j) or Section 6.14(k), would be
less than 25% of the total consolidated assets of the Borrower and its
Restricted Subsidiaries which are not Subsidiaries 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 6.14(j) or Section 6.14(k), then upon request of the Borrower such
security interest shall, provided that no Default or Default is continuing,
be immediately released, and the Administrative Agent is hereby authorized
to execute all appropriate documents on behalf of the Lenders to document
the release of such security interest.
Section 6.23. Year 2000 Assessment. The Borrower shall take all
actions necessary and commit adequate resources to assure that its
computer-based and other systems (and those of all Subsidiaries) are able
to effectively process dates, including dates before, on and after
January 1, 2000, without experiencing any problems that would reasonably be
expected to have a Material Adverse Effect. At the request of any Lender,
the Borrower will provide the Lenders with written assurances and
substantiations (including, but not limited to, the results of internal or
external audit reports prepared in the ordinary course of business)
reasonably acceptable to the Lenders as to the capability of the Borrower
and its Subsidiaries to conduct its and their businesses and operations
before, on and after January 1, 2000, without experiencing any problems
which would reasonably be expected to have a Material Adverse Effect.
<PAGE>
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.1. Defaults. Any one or more of the following shall
constitute an Default:
(a) default (x) in the payment when due of the principal
amount of any Loan or (y) for a period of three (3) days in the payment
when due of interest or of any other Obligation;
(b) default by the Borrower or any Subsidiary in the
observance or performance of any covenant set forth in the first sentence
of Section 6.1, Section 6.6(c), 6.9 through 6.12, or 6.14 through 6.18
hereof;
(c) default by the Borrower or any Subsidiary in the
observance or performance of any provision hereof or of any other Credit
Document not mentioned in (a) or (b) above, which is not remedied within
thirty (30) days after notice thereof to the Borrower by the Administrative
Agent (acting at the request of any Lender);
(d) (i) failure to pay when due Indebtedness in an aggregate
principal amount of $1,000,000 or more of the Borrower or any Subsidiary or
(ii) default shall occur under one or more indentures, agreements or other
instruments under which any Indebtedness of the Borrower or any Subsidiary
in an aggregate principal amount of $1,000,000 or more is outstanding and
such default shall continue for a period of time sufficient to permit the
holder or beneficiary of such Indebtedness or a trustee therefor to cause
the acceleration of the maturity of any such Indebtedness or any mandatory
unscheduled prepayment, purchase or funding thereof;
(e) any representation or warranty made herein or in any
other Credit Document by the Borrower or any Subsidiary, or in any
statement or certificate furnished pursuant hereto or pursuant to any other
Credit Document by the Borrower or any Subsidiary, or in connection with
any Credit Document, shall be untrue in any material respect as of the date
of the issuance or making, or deemed making or issuance, thereof;
(f) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, or any analogous action is taken under any
other applicable law relating to bankruptcy or insolvency, (ii) fail to
pay, or admit in writing its inability to pay, its debts generally as they
become due, (iii) make an assignment for the benefit of creditors,
(iv) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for
it or any substantial part of its Property, (v) institute any proceeding
seeking to have entered against it an order for relief under the United
States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment
<PAGE>
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail
within the time allowed therefor to file an answer or other pleading
denying the material allegations of any such proceeding filed against it,
(vi) take any corporate action (such as the passage by the Borrower's board
of directors of a resolution) in furtherance of any matter described in
parts (i)-(v) above, or (vii) fail to contest in good faith any appointment
or proceeding described in Section 7.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any Subsidiary or
any substantial part of any of their Property, or a proceeding described in
Section 7.1(f)(v) shall be instituted against the Borrower or any
Subsidiary, and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) days;
(h) the Borrower or any Subsidiary shall fail within thirty
(30) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $2,500,000, which is not stayed on appeal or
otherwise being appropriately contested in good faith in a manner that
stays execution thereon;
(i) the Borrower or any other member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess of
$200,000 which it shall have become liable to pay to the PBGC or to a Plan
under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Vested Liabilities in excess of $200,000
(collectively, a "Material Plan") shall be filed under Title IV of ERISA by
the Borrower or any Subsidiary or any other member of the Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan against
the Borrower or any other member of the Controlled Group to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within thirty (30) days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating
that any Material Plan must be terminated; or
(j) the Borrower or any Subsidiary, or any Person acting on
behalf of the Borrower or a Subsidiary, or any governmental authority
challenges the validity of any Credit Document or the Borrower's or a
Subsidiary's obligations thereunder or any Credit Document ceases to be in
full force and effect; or
(k) a Change of Control shall have occurred.
Section 7.2. Non-Bankruptcy Defaults. When any Default other
than those described in subsections (f) or (g) of Section 7.1 hereof has
occurred and is continuing, the Administrative Agent shall, by written
notice to the Borrower (a) if so directed by the Required Lenders,
terminate the remaining Commitments and all other obligations of the
Lenders hereunder on the date stated in such notice (which may be the date
thereof); and
<PAGE>
(b) if so directed by the Required Lenders, declare the principal of and
the accrued interest on all outstanding Advances and all other amounts due
under the Loan Documents to be forthwith due and payable and thereupon all
outstanding Advances, including both principal and interest thereon, shall
be and become immediately due and payable together with all other amounts
payable under the Loan Documents without further demand, presentment,
protest or notice of any kind. The Administrative Agent, after giving
notice to the Borrower pursuant to Section 7.1(c) or this Section 7.2,
shall also promptly send a copy of such notice to the other Lenders, but
the failure to do so shall not impair or annul the effect of such notice.
Section 7.3. Bankruptcy Defaults. When any Default described in
subsections (f) or (g) of Section 7.1 hereof has occurred and is
continuing, then all outstanding Advances shall immediately become due and
payable together with all other amounts payable under the Loan Documents
without presentment, demand, protest or notice of any kind, and the
obligation of the Lenders to extend further credit pursuant to any of the
terms hereof shall immediately terminate.
Section 7.4. Notice of Default. The Administrative Agent shall
give notice to the Borrower under Section 7.1(c) hereof promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
Section 7.5. Expenses. The Borrower agrees to pay to the
Administrative Agent and each Lender, and any other holder of any Note
outstanding hereunder, all expenses reasonably incurred or paid by the
Administrative Agent and such Lender or any such holder, including
reasonable attorneys' fees and court costs, in connection with any
Unmatured Default or Default by the Borrower hereunder or in connection
with the enforcement of any of the Loan Documents.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. Amendments. Subject to the provisions of this
Article VIII, the Required Lenders (or the Administrative Agent with the
consent in writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of
the Lenders or the Borrower hereunder or waiving any Default hereunder;
provided, however, that no such supplemental agreement shall, without the
consent of all of the Lenders:
(i) Forgive all or any portion of the principal amount of any
Loan or reduce the rate or extend the time of payment of interest thereon.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
<PAGE>
(iii) Extend the Maturity Date (except as provided in
Section 1.17), or increase the amount of the Commitment of any Lender
hereunder, or permit the Borrower to assign its rights under this
Agreement, or reduce the fee provided for in Section 1.17.
(iv) Amend this Section 8.1.
(v) Release any Guarantor of any Advance (except as otherwise
provided herein).
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent. The Administrative Agent may waive payment of the
fee required under Section 10.13 without obtaining the consent of any other
party to this Agreement.
Section 8.2. Preservation of Rights. No delay or omission of
the Lenders or the Administrative Agent to exercise any right under the
Loan Documents shall impair such right or be construed to be a waiver of
any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of the Borrower
to satisfy the conditions precedent to such Loan shall not constitute any
waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid
unless in writing signed by the Lenders required pursuant to Section 8.2,
and then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Administrative Agent and the
Lenders until the Obligations have been paid in full.
Section 8.3. Survival of Representations. All representations
and warranties of the Borrower contained in this Agreement shall survive
the making of the Loans herein contemplated 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 8.4. Governmental Regulation. Anything contained in
this Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower in violation of any limitation
or prohibition provided by any applicable statute or regulation.
Section 8.5. Headings. Section headings in the Loan Documents
are for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
Section 8.6. Entire Agreement. The Loan Documents embody the
entire agreement and understanding among the Borrower, the Administrative
Agent and the Lenders and supersede all prior agreements and understandings
among the Borrower, the Administrative Agent and the Lenders relating to
the subject matter thereof other than the fee letter described in
Section 10.13.
<PAGE>
Section 8.7. Several Obligations; Benefits of this Agreement.
The respective obligations of the Lenders hereunder are several and not
joint and no Lender shall be the partner or agent of any other (except to
the extent to which the Administrative Agent is authorized to act as such).
The failure of any Lender to perform any of its obligations hereunder shall
not relieve any other Lender from any of its obligations hereunder. This
Agreement shall not be construed so as to confer any right or benefit upon
any Person other than the parties to this Agreement and their respective
successors and assigns, provided, however, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 8.8, 8.12 and 9.11 to the extent specifically set
forth therein and shall have the right to enforce such provisions on its
own behalf and in its own name to the same extent as if it were a party to
this Agreement.
Section 8.8. Expenses; Indemnification. (i) The Borrower shall
reimburse the Administrative Agent and the Arranger for any costs, internal
charges and out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent) paid or incurred by the
Administrative Agent or the Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment,
modification, and administration of the Loan Documents. The Borrower also
agrees to reimburse the Administrative Agent, the Arranger and the Lenders
for any costs, internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Administrative Agent,
the Arranger and the Lenders, which attorneys may be employees of the
Administrative Agent, the Arranger or the Lenders) paid or incurred by the
Administrative Agent, the Arranger or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being
reimbursed by the Borrower under this Section include, without limitation,
costs and expenses incurred in connection with the Reports described in the
following sentence. The Borrower acknowledges that from time to time First
Chicago may prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders) certain
audit reports (the "Reports") pertaining to the Borrower's assets for
internal use by First Chicago from information furnished to it by or on
behalf of the Borrower, after First Chicago has exercised its rights of
inspection pursuant to this Agreement.
(ii) The Borrower hereby further agrees to indemnify the
Administrative Agent, the Arranger and each Lender, its 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 Administrative Agent,
the Arranger or any Lender is a party thereto) which any of them may pay or
incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder
except to the extent that they are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 8.8
shall survive the termination of this Agreement.
<PAGE>
Section 8.9. Numbers of Documents. All statements, notices,
closing documents, and requests hereunder shall be furnished to the
Administrative Agent with sufficient counterparts so that the
Administrative Agent may furnish one to each of the Lenders.
Section 8.10. Severability of Provisions. Any provision in any
Loan Document that is held to be inoperative, unenforceable, or invalid in
any jurisdiction shall, as to that jurisdiction, be inoperative,
unenforceable, or invalid without affecting the remaining provisions in
that jurisdiction or the operation, enforceability, or validity of that
provision in any other jurisdiction, and to this end the provisions of all
Loan Documents are declared to be severable.
Section 8.11. Non-liability of Lenders. The relationship between
the Borrower on the one hand and the Lenders and the Administrative Agent
on the other hand shall be solely that of borrower and lender. Neither the
Administrative Agent, the Arranger nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative Agent, the
Arranger nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of
the Borrower's business or operations. The Borrower agrees that neither
the Administrative Agent, the Arranger nor any Lender shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower in connection with, arising out of, or in
any way related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring
in connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted
from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Administrative Agent, the Arranger nor any
Lender shall have any liability with respect to, and the Borrower hereby
waives, releases and agrees not to sue for, any special, indirect or
consequential damages suffered by the Borrower in connection with, arising
out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
Section 8.12. Confidentiality. Each Lender agrees to keep
confidential any confidential information provided to it by or on behalf of
the Borrower pursuant to or in connection with this Agreement; provided
that nothing herein shall prevent any Lender from disclosing any such
information (i) to the Administrative Agent, any other Lender or any
Affiliate of the Administrative Agent or any Lender, (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 8.12, (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 Lender, to the extent legally permitted to do so, will use its best
efforts to notify the Borrower prior to any disclosure of information
contemplated by this subparagraph (v), (vi) which has been publicly
disclosed other than in breach of this Agreement, (vii) to a Lender's
direct or
<PAGE>
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties or
(viii) in connection with the exercise of any remedy hereunder or under any
Loan Document.
Section 8.13. Non-reliance. Each Lender hereby represents that
it is not relying on or looking to any margin stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve System) for
the repayment of the Loans provided for herein.
Section 8.14. 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.
ARTICLE IX
THE AGENT
Section 9.1. Appointment; Nature of Relationship. The First
National Bank of Chicago is hereby appointed by each of the Lenders as its
contractual representative (herein referred to as the "Administrative
Agent") hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon
the express conditions contained in this Article IX. Notwithstanding the
use of the defined term "Administrative Agent," it is expressly understood
and agreed that the Administrative Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other
Loan Document and that the Administrative Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative
Agent (i) does not hereby assume any fiduciary duties to any of the
Lenders, (ii) is a "representative" of the Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Administrative
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby waives.
Section 9.2. Powers. The Administrative Agent shall have and
may exercise such powers under the Loan Documents as are specifically
delegated to the Administrative Agent by the terms of each thereof,
together with such powers as are reasonably incidental thereto. The
Administrative Agent shall have no implied duties to the Lenders, or any
obligation to
<PAGE>
the Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Administrative Agent.
Section 9.3. General Immunity. Neither the Administrative Agent
nor any of its directors, officers, agents or employees shall be liable to
the Borrower, the Lenders or any Lender for any action taken or omitted to
be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except to the extent such action or
inaction is determined in a final non-appealable judgment by a court of
competent jurisdiction to have arisen from the gross negligence or willful
misconduct of such Person.
Section 9.4. No Responsibility for Loans, Recitals, etc.
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 (a) any statement, warranty or representation made
in connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any
obligor under any Loan Document, including, without limitation, any
agreement by an obligor to furnish information directly to each Lender; (c)
the satisfaction of any condition specified in Article IV, except receipt
of items required to be delivered solely to the Administrative Agent; (d)
the existence or possible existence of any Default or Unmatured Default;
(e) the validity, enforceability, effectiveness, sufficiency or genuineness
of any Loan Document or any other instrument or writing furnished in
connection therewith; (f) the value, sufficiency, creation, perfection or
priority of any Lien in any collateral security; or (g) the financial
condition of the Borrower or any guarantor of any of the Obligations or of
any of the Borrower's or any such guarantor's respective Subsidiaries. The
Administrative Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Borrower to the
Administrative Agent at such time, but is voluntarily furnished by the
Borrower to the Administrative Agent (either in its capacity as
Administrative Agent or in its individual capacity).
Section 9.5. Action on Instructions of Lenders. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders, and
such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders. The Lenders hereby acknowledge
that the Administrative Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions
of this Agreement or any other Loan Document unless it shall be requested
in writing to do so by the Required Lenders. The Administrative Agent
shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
Section 9.6. Employment of Administrative Agents and Counsel.
The Administrative Agent may execute any of its duties as Administrative
Agent hereunder and under any other Loan Document by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Lenders,
except as to money or securities received by it or its
<PAGE>
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative
Agent shall be entitled to advice of counsel concerning the contractual
arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under
any other Loan Document.
Section 9.7. Reliance on Documents; Counsel. The Administrative
Agent shall be entitled to rely upon any Note, notice, consent,
certificate, affidavit, letter, telegram, statement, paper or document
reasonably believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons, and, in respect to legal matters,
upon the opinion of counsel selected by the Administrative Agent, which
counsel may be employees of the Administrative Agent.
Section 9.8. Administrative Agent's Reimbursement and
Indemnification. The Lenders agree to reimburse and indemnify the
Administrative Agent ratably in proportion to their respective Commitments
(or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Administrative Agent is entitled
to reimbursement by the Borrower under the Loan Documents, (ii) for any
other expenses incurred by the Administrative Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender
or between two or more of the Lenders) and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby
(including, without limitation, for any such amounts incurred by or
asserted against the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of
the Lenders), or the enforcement of any of the terms of the Loan Documents
or of any such other documents, provided that (i) no Lender shall be liable
for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the
Administrative Agent and (ii) any indemnification required pursuant to
Section 2.5(vii) shall, notwithstanding the provisions of this Section 9.8,
be paid by the relevant Lender in accordance with the provisions thereof.
The obligations of the Lenders under this Section 9.8 shall survive payment
of the Obligations and termination of this Agreement.
Section 9.9. Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default
or Unmatured Default hereunder unless the Administrative Agent has received
written notice from a Lender or the Borrower referring to this Agreement
describing such Default or Unmatured Default and stating that such notice
is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders.
<PAGE>
Section 9.10. Rights as a Lender. In the event the
Administrative Agent is a Lender, the Administrative Agent shall have the
same rights and powers hereunder and under any other Loan Document with
respect to its Commitment and its Loans as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender"
or "Lenders" shall, at any time when the Administrative Agent is a Lender,
unless the context otherwise indicates, include the Administrative Agent in
its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with the Borrower or any of
its Subsidiaries in which the Borrower or such Subsidiary is not restricted
hereby from engaging with any other Person.
Section 9.11. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative
Agent, the Arranger or any other Lender and based on the financial
statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each
Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Arranger or any other Lender 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 this Agreement and the other Loan Documents.
Section 9.12. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the
Lenders and the Borrower, such resignation to be effective upon the
appointment of a successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign. The
Administrative Agent may be removed at any time with or without cause by
written notice received by the Administrative Agent from the Required
Lenders, such removal to be effective on the date specified by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint, with the approval of the Borrower (not to be
unreasonably withheld), on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Administrative Agent's giving notice of its intention to resign,
then the resigning Administrative Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Administrative Agent.
Notwithstanding the previous sentence, the Administrative Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Administrative Agent
hereunder. If the Administrative Agent has resigned or been removed and no
successor Administrative Agent has been appointed, the Lenders may perform
all the duties of the Administrative Agent hereunder and the Borrower shall
make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No
successor Administrative Agent shall be deemed to be appointed hereunder
until such successor Administrative Agent has accepted the appointment.
Any such successor Administrative Agent shall be a commercial bank having
capital and retained earnings of at least $100,000,000. Upon the
acceptance of any
<PAGE>
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
resigning or removed Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the resigning or
removed Administrative Agent shall be discharged from its duties and
obligations hereunder and under the Loan Documents. After the
effectiveness of the resignation or removal of an Administrative Agent, the
provisions of this Article IX shall continue in effect for the benefit of
such Administrative Agent in respect of any actions taken or omitted to be
taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents. In the event that there is a successor to
the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 9.12, then
the term "Corporate Base Rate" as used in this Agreement shall mean the
prime rate, base rate or other analogous rate of the new Administrative
Agent.
Section 9.13. Administrative Agent's Fee. The Borrower agrees to
pay to the Administrative Agent, for its own account, the fees agreed to by
the Borrower and the Administrative Agent pursuant to that certain letter
agreement dated August 28, 1998, or as otherwise agreed from time to time.
Section 9.14. Delegation to Affiliates. The Borrower and the
Lenders agree that the Administrative Agent may delegate any of its duties
under this Agreement to any of its Affiliates. Any such Affiliate (and
such Affiliate's directors, officers, agents and employees) which performs
duties in connection with this Agreement shall be entitled to the same
benefits of the indemnification, waiver and other protective provisions to
which the Administrative Agent is entitled under Articles VIII and IX.
Section 9.15. Execution of Collateral Documents. The Lenders
hereby empower and authorize the Administrative Agent to execute and
deliver to the Borrower on their behalf the security agreement(s) and all
related financing statements and any financing statements, agreements,
documents or instruments as shall be necessary or appropriate to effect the
purposes of the security agreement(s).
Section 9.16. Collateral Releases. The Lenders hereby empower
and authorize the Administrative Agent to execute and deliver to the
Borrower on their behalf any agreements, documents or instruments as shall
be necessary or appropriate to effect any releases of collateral which
shall be permitted by the terms hereof or of any other Loan Document or
which shall otherwise have been approved by the Required Lenders (or, if
required by the terms of Section 9.1, all of the Lenders) in writing.
Section 9.17. Arranger, Documentation Agent, Syndication Agent,
etc. Neither the Arranger, Documentation Agent nor the Syndication Agent
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of such Lenders or the Arranger shall
have or be deemed to have a fiduciary relationship with any Lender or the
Arranger. Each Lender hereby makes the same acknowledgments with respect
to such
<PAGE>
Lenders and the Arrangers as it makes with respect to the Administrative
Agent in Section 9.11.
ARTICLE X
THE GUARANTEES
Section 10.1. The Guarantees. To induce the Lenders 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 Lenders, 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 Loan
Documents, including, but not limited to, the due and punctual payment of
principal of and interest on the Notes and the due and punctual payment of
all other Obligations now or hereafter owed by the Borrower under the Loan
Documents as and when the same shall become due and payable, whether at
stated maturity, by acceleration or otherwise, according to the terms
hereof and thereof. In case of failure by the Borrower punctually to pay
any indebtedness or other Obligations guaranteed hereby, each Guarantor
hereby unconditionally agrees jointly and severally to make such payment or
to cause such payment to be made punctually as and when the same shall
become due and payable, whether at stated maturity, by acceleration or
otherwise, and as if such payment were made by the Borrower.
Section 10.2. Guarantee Unconditional. The obligations of each
Guarantor as a guarantor under this Article X shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not
be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower or of any other
Guarantor under this Agreement or any other Credit Document or by operation
of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Credit Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, the Borrower, any other Guarantor, or any of
their respective assets, or any resulting release or discharge of any
obligation of the Borrower or of any other Guarantor contained in any
Credit Document;
(d) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against the Administrative Agent, any
Lender or any other Person, whether or not arising in connection herewith;
<PAGE>
(e) any failure to assert, or any assertion of, any claim or
demand or any exercise of, or failure to exercise, any rights or remedies
against the Borrower, any other Guarantor or any other Person or Property;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation of the Borrower, regardless of what
obligations of the Borrower remain unpaid;
(g) any invalidity or unenforceability relating to or against
the Borrower or any other Guarantor for any reason of this Agreement or of
any other Credit Document or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower or any other Guarantor
of the principal of or interest on any Note or any other amount payable by
it under the Loan Documents; or
(h) any other act or omission to act or delay of any kind by
the Administrative Agent, any Lender or any other Person or any other
circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the obligations of
the Guarantor under this Article X.
Section 10.3. Discharge Only Upon Payment in Full; Reinstatement
in Certain Circumstances. Each Guarantor's obligations under this
Section 11 shall remain in full force and effect until the Commitments are
terminated and the principal of and interest on the Notes and all other
amounts payable by the Borrower under this Agreement and all other Loan
Documents shall have been paid in full. If at any time any payment of the
principal of or interest on any Note or any other amount payable by the
Borrower under the Loan 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 Article X 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 10.4. 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 Lender or any other Person
against the Borrower, another Guarantor or any other Person.
(b) Subrogation and Contribution. Unless and until the Obligations
have been fully paid and satisfied and the Commitments have terminated,
each Guarantor hereby irrevocably waives any claim or other right it may
now or hereafter acquire against the Borrower or any other Guarantor that
arises from the existence, payment, performance or enforcement of such
Guarantor's obligations under this Article X 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 Lender 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
<PAGE>
Borrower or any other Guarantor directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on
account of such claim or other right.
Section 10.5. Limit on Recovery. Notwithstanding any other
provision hereof, the right to recovery of the holders of the Obligations
against each Guarantor under this Section 10 shall not exceed $1.00 less
than the amount which would render such Guarantor's obligations under this
Section 10 void or voidable under applicable law, including without
limitation fraudulent conveyance law.
Section 10.6. 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 Loan 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 Lenders.
ARTICLE XI
SETOFF, RATABLE PAYMENTS
Section 11.1. Setoff. In addition to, and without limitation of,
any rights of the Lenders under applicable law, if the Borrower becomes
insolvent, however evidenced, or any Default occurs, any and all deposits
(including all account balances, whether provisional or final and whether
or not collected or available) and any other Indebtedness at any time held
or owing by any Lender or any Affiliate of any Lender to or for the credit
or account of the Borrower may be offset and applied toward the payment of
the Obligations owing to such Lender, whether or not the Obligations, or
any part hereof, shall then be due.
Section 11.2. Ratable Payments. If any Lender, whether by setoff
or otherwise, has payment made to it upon its Loans (other than payments
received pursuant to Section 2.1, 2.2, 2.4 or 2.5) in a greater proportion
than that received by any other Lender, such Lender agrees, promptly upon
demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of
Loans. If any Lender, whether in connection with setoff or amounts which
might be subject to setoff or otherwise, receives collateral or other
protection for its Obligations or such amounts which may be subject to
setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral
ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments
shall be made.
<PAGE>
ARTICLE XI
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 12.1. Successors and Assigns. The terms and provisions
of the Loan Documents shall be binding upon and inure to the benefit of the
Borrower and the Lenders and their respective successors and assigns,
except that (i) the Borrower shall not have the right to assign its rights
or obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3. Notwithstanding
clause (ii) of this Section, any Lender may at any time, without the
consent of the Borrower or the Administrative Agent, assign all or any
portion of its rights under this Agreement and any Note to a Federal
Reserve Bank; provided, however, that no such assignment to a Federal
Reserve Bank shall release the transferor Lender from its obligations
hereunder. The Administrative Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof
unless and until such Person complies with Section 12.3 in the case of an
assignment thereof or, in the case of any other transfer, a written notice
of the transfer is filed with the Administrative Agent. Any assignee or
transferee of the rights to any Loan or any Note agrees by acceptance of
such transfer or assignment to be bound by all the terms and provisions of
the Loan Documents. Any request, authority or consent of any Person, who
at the time of making such request or giving such authority or consent is
the owner of the rights to any Loan (whether or not a Note has been issued
in evidence thereof), shall be conclusive and binding on any subsequent
holder, transferee or assignee of the rights to such Loan.
Section 12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a Lender
of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Loans and the holder
of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement
shall be determined as if such Lender had not sold such participating
interests, and the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or
Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable
with respect to any such Loan or Commitment, extends the Maturity Date,
postpones any date fixed for any regularly
<PAGE>
scheduled payment of principal of, or interest on, any such Loan or
Commitment, releases any Guarantor of any such Loan or releases all or
substantially all of the collateral, if any, securing any such Loan.
12.2.3. Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a
Lender.
Section 12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Loan Documents. Such
assignment shall be substantially in the form of Exhibit E or in such other
form as may be agreed to by the parties thereto. The consent of the
Borrower and the Administrative Agent shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a
Lender or an Affiliate thereof; provided, however, that if a Default has
occurred and is continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably withheld or delayed.
Each such assignment shall (unless it is to a Lender or an Affiliate
thereof or each of the Borrower and the Administrative Agent otherwise
consents) be in an amount not less than the lesser of (i) $5,000,000 or
(ii) the remaining amount of the assigning Lender's Loans (calculated as at
the date of such assignment).
12.3.2. Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the form
attached as Exhibit I to Exhibit E (a "Notice of Assignment"), together
with any consents required by Section 12.3.1, and (ii) payment of a $3,000
fee to the Administrative Agent for processing such assignment, such
assignment shall become effective on the effective date specified in such
Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Loans under the applicable
assignment agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents will
not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto,
and no further consent or action by the Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment and Loans
<PAGE>
assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Administrative Agent and the Borrower shall, if the transferor Lender or
the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case
in principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
12.4. Dissemination of Information. Subject to Section 8.12, the
Borrower authorizes each Lender to disclose to any Participant or Purchaser
or any other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective Transferee any
and all information in such Lender's possession concerning the
creditworthiness of the Borrower and its Subsidiaries, including without
limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 8.12 of
this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of
Section 2.5(iv).
ARTICLE XIII
NOTICES
Section 13.1. Notices. Except as otherwise specified herein, all
notices under the Loan 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, 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 Loan Documents to the Lenders and the Administrative
Agent shall be addressed to their respective addresses, telecopier or
telephone numbers set forth on the signature pages hereof, and to the
Borrower and the Guarantors to:
LaSalle Partners Incorporated
200 East Randolph Street
Chicago, Illinois 60601
Attention: Brian P. Hake
Telecopy: (312) 228-0980
Telephone: (312) 228-2522
with a copy of notices of Defaults
and Unmatured Defaults to: Hagan & Associates
200 East Randolph Street
Chicago, Illinois 60601
Attention: Robert K. Hagan
and Fritz E. Freidinger
Telecopy: (312) 228-2050
Telephone: (312) 228-0982
<PAGE>
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 13.1 or on the signature pages hereof and
a confirmation of receipt of such telecopy has been received by the sender,
(ii) if given by courier, when delivered, (iii) if given by mail, three
business days after such communication is deposited in the mail, registered
with return receipt requested, addressed as aforesaid or (iv) if given by
any other means, when delivered at the addresses specified in this
Section 13.1 or on the signature pages hereof; provided that any notice
given pursuant to Article I hereof shall be effective only upon receipt.
Section 13.2. Change of Address. The Borrower, the
Administrative Agent and any Lender may each change the address for service
of notice upon it by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section 15.01. Governing Law. This Agreement and the other Loan
Documents, and the rights and duties of the parties hereto, shall be
construed and determined in accordance with the internal laws (and not the
laws of conflicts) of the State of Illinois, but giving effect to Federal
laws applicable to National Banks.
Section 15.02. 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 Loan Documents or the transactions contemplated hereby
or thereby. The Borrower and each Guarantor irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. THE BORROWER, EACH GUARANTOR,
THE ADMINISTRATIVE AGENT, AND EACH BANK HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
<PAGE>
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.
LASALLE PARTNERS INCORPORATED
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
LASALLE PARTNERS CO-INVESTMENT, INC.,
as Guarantor
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
LP International, a limited Liability
Company, as Guarantor
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
LASALLE PARTNERS INTERNATIONAL, INC.,
as Guarantor
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.,
as Guarantor
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
<PAGE>
LASALLE PARTNERS MANAGEMENT SERVICES, INC.,
as Guarantor
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
LASALLE PARTNERS CORPORATE & FINANCIAL
SERVICES, INC., as Guarantor
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
LASALLE HOTEL ADVISORS, INC., as Guarantor
By /s/ BRIAN P. HAKE
Its Vice President and Treasurer
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Commitment: $35,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
in its individual capacity as a
Lender and as Administrative Agent
By [EXECUTED SIGNATURE]
Its Corporate Banking Officer
One First National Plaza, Suite 0151
Chicago, Illinois 60670
Attn: Lynn Braun
Telecopy: (312) 732-1117
Telephone: (312) 732-3827
<PAGE>
Commitment: $35,000,000 HARRIS TRUST AND SAVINGS BANK,
individually and as
Documentation Agent
By [EXECUTED SIGNATURE]
Its Vice President
111 West Monroe Street
Chicago, Illinois 60690
Attn: Scott Geik
Telecopy: (312) 293-4856
Telephone: (312) 461-2801
<PAGE>
Commitment: $35,000,000 THE CHASE MANHATTAN BANK,
individually and as
Syndication Agent
By [EXECUTED SIGNATURE]
Its Vice President
380 Madison Avenue, 11th Floor
New York, New York 10017
Attn: Charles E. Hoegland
Telecopy: (212) 622-3580
Telephone: (212) 622-3369
<PAGE>
Commitment: $25,000,000 BANK OF AMERICA NATIONAL TRUST
SAVINGS ASSOCIATION
By [EXECUTED SIGNATURE]
Its Senior Vice President
231 South LaSalle Street, 6th Floor
Chicago, Illinois 60697
Attn: Christine Tierney
Telecopy: (312) 828-1974
Telephone: (312) 828-6316
<PAGE>
Commitment: $15,000,000 LASALLE NATIONAL BANK
By [EXECUTED SIGNATURE]
Its First Vice President
135 South LaSalle Street, Suite 214
Chicago, Illinois 60603
Attn: James Turner
Telecopy: (312) 904-6021
Telephone: (312) 904-7103
<PAGE>
Commitment: $15,000,000 THE NORTHERN TRUST COMPANY
By [EXECUTED SIGNATURE]
Its Vice President
50 South LaSalle Street - B-2
Chicago, Illinois 60675
Attn: Joseph Yacullo
Telecopy: (312) 444-7028
Telephone: (312) 444-3751
<PAGE>
Commitment: $15,000,000 STAR BANK N.A.
By [EXECUTED SIGNATURE]
Its Vice President
425 Walnut Street, 8th Floor
Cincinnati, Ohio 45202
Attn: Thomas D. Gibbons
Telecopy: (513) 632-2068
Telephone: (513) 632-2013
EXHIBIT 10.2
- ------------
FIRST AMENDMENT TO MULTICURRENCY CREDIT AGREEMENT
This First Amendment to Multicurrency Credit Agreement (the
"Amendment") dated as of September 21, 1998 among LaSalle Partners
Incorporated (the "Borrower"), the Guarantors party hereto, the Banks, and
Harris Trust and Savings Bank, as Agent;
W I T N E S S E T H:
WHEREAS, the Borrower, Guarantors, Banks and Harris Trust and Savings
Bank, as Agent, have heretofore executed and delivered a Multicurrency
Credit Agreement dated as of November 25, 1997 (the "Credit Agreement");
and
WHEREAS, the parties hereto desire to amend the Credit Agreement as
provided herein;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree that
the Credit Agreement shall be and hereby is amended as follows:
1. The definitions of "Consolidated Net Income", "EBITDA" and
"Fixed Charge Coverage Ratio" contained in Section 4 of the Credit
Agreement are hereby amended in their entirety and as so amended shall read
as follows:
"Consolidated Net Income" means, for any
period, the net income (or net loss) of the Borrower and its Restricted
Subsidiaries for such period computed on a consolidated basis in accordance
with GAAP, but excluding any extraordinary profits or losses; provided that
there shall be included in such determination for such period all such
amounts attributable to any Person acquired pursuant to an Acquisition to
the extent such Person is not subsequently sold or otherwise disposed of
(other than in a transaction pursuant to which the business of such Person
is retained by the Borrower or a Subsidiary of the Borrower) during such
period for the portion of such period prior to such Acquisition.
"EBITDA" means, for any period, Consolidated
Net Income for such period plus all amounts deducted in arriving at such
Consolidated Net Income amount for such period for (i) Interest Expense,
(ii) federal, state and local income tax expense, (iii) all amounts
properly charged for depreciation of fixed assets and amortization of
intangible assets on the books of the Borrower and its Restricted
Subsidiaries and (iv) reasonable transition costs incurred by the Borrower
in connection with the Compass Acquisition to the extent such costs do not
exceed $10,500,000
<PAGE>
during calendar year ended December 31, 1998 and $9,000,000
during calendar year ended December 31, 1999.
"Fixed Charge Coverage Ratio" means as of the last
day of any calendar quarter the ratio of EBITDA less capital expenditures
(as defined in GAAP) for the four calendar quarters of the Borrower then
ended to the sum of (i) Interest Expense for the same four calendar
quarters, (ii) the aggregate principal amount of dividends and other
distributions on the capital stock of the Borrower for the same four
calendar quarters, (iii) 20% of the average daily aggregate principal
amount of Loans outstanding during the same four calendar quarters and
(iv) that portion of long-term Indebtedness (not including the Loans) of
the Borrower or any of its Restricted Subsidiaries which is due and payable
during the same four calendar quarters and is not repaid with proceeds of
the issuance of capital securities or the incurrence of long-term
Indebtedness permitted under Section 7.19 hereof.
2. Section 7.6(b) of the Credit Agreement is hereby amended by
deleting the phrase "Sections 7.14(h)" appearing in the fourth line thereof
and inserting in its place the phrase "Sections 7.14(k)."
3. Section 7.16(b) of the Credit Agreement is hereby amended in
its entirety and as so amended shall read as follows:
(b) The Borrower will not on the last day
of more than four (4) consecutive calendar quarters commencing with the
first full calendar quarter ending after the date the initial loan is
advanced under the Term Agreement, permit the ratio of Total Funded Debt as
of the last day of a calendar quarter to EBITDA for the four calendar
quarters then ended to be greater than 3.00 to 1.00.
4. Section 7.17 of the Credit Agreement is hereby amended in its
entirety and as so amended shall read as follows:
Section 7.17. Fixed Charge Coverage Ratio.
The Borrower will as of the last day of each calendar quarter maintain a
Fixed Charge Coverage Ratio of not less than 1.75 to 1.00.
5. Section 7.19 of the Credit Agreement is hereby amended by
relettering clause (g) thereof as new clause (h) and inserting immediately
after clause (f) the following:
(g) Indebtedness of the Borrower arising
under the $175,000,000 Credit Agreement dated as of September 21, 1998 (th
"Term Agreement") among LaSalle Partners Incorporated, the
<PAGE>
Guarantors party thereto, the Lenders party there and The First
National Bank of Chicago, as Administrative Agent; and
6. The Borrower represents and warrants to each Bank and the Agent
that (a) each of the representations and warranties set forth in Section 5
of the Credit Agreement is true and correct on and as of the date of this
Amendment as if made on and as of the date hereof and as if each reference
therein to the Credit Agreement referred to the Credit Agreement as amended
hereby except if any such representation of warranty relates solely to an
earlier date it need only remain true as of such date; (b) no Default and
no Event of Default has occurred and is continuing; and (c) without
limiting the effect of the foregoing, the Borrower's execution, delivery
and performance of this Amendment have been duly authorized, and this
Amendment has been executed and delivered by duly authorized officers of
the Borrower.
7. This Amendment shall become effective upon execution and
delivery by the Borrower, the Required Banks, the Agent, and the
Guarantors.
This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each of
which when so executed shall be an original but all of which shall
constitute one and the same instrument. Except as specifically amended and
modified hereby, all of the terms and conditions of the Credit Agreement
and the other Credit Documents shall remain unchanged and in full force and
effect. All references to the Credit Agreement in any document shall be
deemed to be references to the Credit Agreement as amended hereby. All
capitalized terms used herein without definition shall have the same
meaning herein as they have in the Credit Agreement. This Amendment shall
become effective upon execution by the parties hereto. This Amendment
shall be construed and governed by and in accordance with the internal laws
of the State of Illinois.
<PAGE>
Dated as of the date first above written.
LASALLE PARTNERS INCORPORATED
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
LASALLE PARTNERS CO-INVESTMENT, INC.,
as Guarantor
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
LP INTERNATIONAL, a limited liability
company, as Guarantor
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
LASALLE PARTNERS INTERNATIONAL, INC.,
as Guarantor
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
LASALLE ADVISORS CAPITAL MANAGEMENT, INC.,
as Guarantor
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
<PAGE>
LASALLE PARTNERS MANAGEMENT SERVICES, INC.,
as Guarantor
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
LASALLE PARTNERS CORPORATE & FINANCIAL
SERVICES, INC., as Guarantor
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
LASALLE HOTEL ADVISORS, INC.,
as Guarantor
By: /s/ BRIAN P. HAKE
Title: Vice President and Treasurer
<PAGE>
HARRIS TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as Agent
By: [EXECUTED SIGNATURE]
Title: Vice President
LASALLE NATIONAL BANK
By: [EXECUTED SIGNATURE]
Title: First Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: [EXECUTED SIGNATURE]
Title: Corporate Baking Officer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: [EXECUTED SIGNATURE]
Title: Senior Vice President
THE CHASE MANHATTAN BANK
By: [EXECUTED SIGNATURE]
Title: Vice President
STAR BANK, N.A.
By: [EXECUTED SIGNATURE]
Title: Vice President
EXHIBIT 10.3
- ------------
SECOND AMENDMENT TO THE
LASALLE PARTNERS INCORPORATED
EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, LaSalle Partners Incorporated (the "Company") maintains the
Employee Stock Purchase Plan, as amended by the First Amendment thereto
(the "Plan").
WHEREAS, the Company has determined that amending the Plan in certain
respects is in the best interest of the Company.
WHEREAS, PARAGRAPH 17 of the Plan authorizes Board of Directors of the
Company to amend the Plan, and the amendments to the Plan set forth herein
do not require stockholder approval under PARAGRAPH 17 in order to be
effective.
NOW THEREFORE, the Plan has been amended effective August 1, 1998 as
follows:
1. PARAGRAPH 5 of the Plan is hereby deleted in its entirety and
replaced with the following new PARAGRAPH 5:
5. PARTICIPATION. An eligible employee may elect to
participate in the Plan as of any "Enrollment Date". Enrollment Dates
shall occur on the first day of an Offering Period (as defined in paragraph
8) and, as to any specified group of eligible employees, on the initial
coverage date applicable to that group, as designated by the Company. Any
such election by an eligible employee shall be made by completing and
forwarding to the Company an enrollment and payroll deduction authorization
form prior to such Enrollment Date, authorizing payroll deductions in such
amount as the employee may request but in no event less than the minimum
nor more than the maximum amount as the Committee shall determine. A
participating employee may increase or decrease his payroll deductions as
of any subsequent Enrollment Date by completing and forwarding to the
Company a revised payroll deduction authorization form; provided, that
changes in payroll deductions shall not be permitted to the extent that
they would result in total payroll deductions below the minimum or above
the maximum amount as is specified by the Committee. An eligible employee
may not initiate, increase or decrease payroll deductions as of any date
other than an Enrollment Date except by withdrawing from the Plan as
provided in paragraph 7. Plan participation does not extend any continuing
participation rights to any eligible employee, because the Company has
reserved the right to amend or terminate the Plan at any time.
Accordingly, Plan coverage may be discontinued at any time for any employee
or group of employees, following which discontinuance the payroll deduction
authorizations of all affected employees shall be canceled. It is a
condition of Plan participation that, to the extent provided by the
Company, eligible employees must acknowledge and consent to the Company's
unrestricted right to discontinue Plan coverage at any time, that such
discontinuance will result in the cancellation of the payroll deduction
authorizations on the date specified by the Company, and that the
participant will cease Plan participation on that date."
Capitalized terms used but not defined in this Second Amendment shall
have the respective meanings assigned to them in the Plan. Except as
herein modified, all the terms, conditions and provisions of the Plan are
hereby ratified, confirmed and carried forward.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANT'S FORM 10-Q FOR THE PERIOD ENDED SEPTEMBER 30, 1998 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
INCLUDED IN SUCH REPORT.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> SEP-30-1998
<CASH> 15,214
<SECURITIES> 0
<RECEIVABLES> 92,249
<ALLOWANCES> 3,216
<INVENTORY> 0
<CURRENT-ASSETS> 114,573
<PP&E> 23,360
<DEPRECIATION> 33,610
<TOTAL-ASSETS> 252,877
<CURRENT-LIABILITIES> 66,268
<BONDS> 0
<COMMON> 162
0
0
<OTHER-SE> 156,871
<TOTAL-LIABILITY-AND-EQUITY> 252,877
<SALES> 186,067
<TOTAL-REVENUES> 190,109
<CGS> 172,701
<TOTAL-COSTS> 175,009
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 2,308
<INTEREST-EXPENSE> 992
<INCOME-PRETAX> 14,108
<INCOME-TAX> 5,432
<INCOME-CONTINUING> 8,676
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,676
<EPS-PRIMARY> .54
<EPS-DILUTED> .53
</TABLE>
