EXHIBIT 4.1
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JONES LANG LASALLE FINANCE B.V.,
Issuer
JONES LANG LASALLE INCORPORATED,
JONES LANG LASALLE AMERICAS, INC.,
LASALLE INVESTMENT MANAGEMENT, INC.,
JONES LANG LASALLE INTERNATIONAL, INC.,
JONES LANG LASALLE CO-INVESTMENT, INC.,
LASALLE HOTEL ADVISORS, INC. and
JONES LANG LASALLE LIMITED,
Guarantors
and
THE BANK OF NEW YORK,
Trustee
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Indenture
Dated as of July 26, 2000
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9% Senior Notes due 2007
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CROSS-REFERENCE TABLE
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TIA Sections Indenture Sections
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310 (a)(1) . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . 7.03; 7.08
311 (a) . . . . . . . . . . . . . . . . . . . . 7.03
(b) . . . . . . . . . . . . . . . . . . . . 7.03
312 (a) . . . . . . . . . . . . . . . . . . . . 2.04
(b) . . . . . . . . . . . . . . . . . . . . 11.02
(c) . . . . . . . . . . . . . . . . . . . . 11.02
313 (a) . . . . . . . . . . . . . . . . . . . . 7.06
(b)(2) . . . . . . . . . . . . . . . . . . . . 7.07
(c) . . . . . . . . . . . . . . . . . . . . 7.05; 7.06;
. . . . . . . . . . . . . . . . . . . . 11.02
(d) . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(a)(4) . . . . . . . . . . . . . . . . . . . . 4.17; 11.02
(c)(1) . . . . . . . . . . . . . . . . . . . . 11.03(c)(2)
11.03
(e) . . . . . . . . . . . . . . . . . . . . 4.17; 11.04
315 (a) . . . . . . . . . . . . . . . . . . . . 7.02
(b) . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . 7.02
(d) . . . . . . . . . . . . . . . . . . . . 7.02
(e) . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(1)(A). . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . 6.04
(b) . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . 9.03
317 (a)(1) . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . 2.05
318 (a) . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . 11.01
Note: The Cross-Reference Table shall not for any purpose be deemed
to be a part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . . 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act . . . . . . . . . . . . . . . . 21
SECTION 1.03. Rules of Construction. . . . . . . . . . . . 21
ARTICLE TWO THE NOTES
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . . 22
SECTION 2.02. Restrictive Legends. . . . . . . . . . . . . 23
SECTION 2.03. Execution, Authentication and Denominations. 25
SECTION 2.04. Registrar and Paying Agent . . . . . . . . . 25
SECTION 2.05. Paying Agent to Hold Money in Trust. . . . . 26
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . . 27
SECTION 2.07. Book-Entry Provisions for Global Notes . . . 28
SECTION 2.08. Special Transfer Provisions. . . . . . . . . 29
SECTION 2.09. Replacement Notes. . . . . . . . . . . . . . 31
SECTION 2.10. Outstanding Notes. . . . . . . . . . . . . . 32
SECTION 2.11. Temporary Notes. . . . . . . . . . . . . . . 32
SECTION 2.12. Cancellation . . . . . . . . . . . . . . . . 33
SECTION 2.13. CUSIP Numbers. . . . . . . . . . . . . . . . 33
SECTION 2.14. Defaulted Interest . . . . . . . . . . . . . 33
SECTION 2.15. Issuance of Additional Notes . . . . . . . . 33
ARTICLE THREE REDEMPTION
SECTION 3.01. Right of Redemption. . . . . . . . . . . . . 33
SECTION 3.02. Notices to Trustee . . . . . . . . . . . . . 35
SECTION 3.03. Selection of Notes to Be Redeemed. . . . . . 35
SECTION 3.04. Notice of Redemption . . . . . . . . . . . . 35
SECTION 3.05. Effect of Notice of Redemption . . . . . . . 36
SECTION 3.06. Deposit of Redemption Price. . . . . . . . . 36
SECTION 3.07. Payment of Notes Called for Redemption . . . 37
SECTION 3.08. Notes Redeemed in Part . . . . . . . . . . . 37
ARTICLE FOUR COVENANTS
SECTION 4.01. Payment of Notes . . . . . . . . . . . . . . 37
SECTION 4.02. Maintenance of Office or Agency. . . . . . . 37
SECTION 4.03. Limitation on Indebtedness . . . . . . . . . 38
SECTION 4.04. Limitation on Restricted Payments. . . . . . 40
SECTION 4.05. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries 43
SECTION 4.06. Limitation on the Issuance and Sale of Capital
Stock of Restricted Subsidiaries. . . . . . . 45
SECTION 4.07. Limitation on Issuances of Guarantees
by Restricted Subsidiaries. . . . . . . . . . 45
SECTION 4.08. Limitation on Transactions with Stockholders
and Affiliates. . . . . . . . . . . . . . . . 46
SECTION 4.09. Limitation on Liens. . . . . . . . . . . . . 47
SECTION 4.10. Limitation on Sale-Leaseback Transactions. . 48
SECTION 4.11. Limitation on Asset Sales. . . . . . . . . . 48
SECTION 4.12. Repurchase of Notes upon a Change of Control 49
SECTION 4.13. Existence. . . . . . . . . . . . . . . . . . 50
SECTION 4.14. Payment of Taxes and Other Claims. . . . . . 50
SECTION 4.15. [Intentionally Omitted]. . . . . . . . . . . 50
SECTION 4.16. Notice of Defaults . . . . . . . . . . . . . 50
SECTION 4.17. Compliance Certificates. . . . . . . . . . . 50
SECTION 4.18. SEC Reports and Reports to Holders . . . . . 51
SECTION 4.19. Waiver of Stay, Extension or Usury Laws. . . 51
SECTION 4.20. Additional Amounts . . . . . . . . . . . . . 51
ARTICLE FIVE SUCCESSOR CORPORATION
SECTION 5.01. When Company or Guarantors May Merge, Etc. . 53
SECTION 5.02. Successor Substituted. . . . . . . . . . . . 54
ARTICLE SIX DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. . . . . . . . . . . . . . 54
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . 56
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . 56
SECTION 6.04. Waiver of Past Defaults. . . . . . . . . . . 57
SECTION 6.05. Control by Majority. . . . . . . . . . . . . 57
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . . 57
SECTION 6.07. Rights of Holders to Receive Payment . . . . 57
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . 58
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . 58
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . 58
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . 59
SECTION 6.12. Restoration of Rights and Remedies . . . . . 59
SECTION 6.13. Rights and Remedies Cumulative . . . . . . . 59
SECTION 6.14. Delay or Omission Not Waiver . . . . . . . . 59
ARTICLE SEVEN TRUSTEE
SECTION 7.01. General. . . . . . . . . . . . . . . . . . . 59
SECTION 7.02. Certain Rights of Trustee. . . . . . . . . . 60
SECTION 7.03. Individual Rights of Trustee . . . . . . . . 61
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . 61
SECTION 7.05. Notice of Default. . . . . . . . . . . . . . 61
SECTION 7.06. Reports by Trustee to Holders. . . . . . . . 61
SECTION 7.07. Compensation and Indemnity . . . . . . . . . 62
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . 62
SECTION 7.09. Successor Trustee by Merger, Etc.. . . . . . 63
SECTION 7.10. Eligibility. . . . . . . . . . . . . . . . . 64
SECTION 7.11. Money Held in Trust. . . . . . . . . . . . . 64
ARTICLE EIGHT DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations . . . . 64
SECTION 8.02. Defeasance and Discharge of Indenture. . . . 65
SECTION 8.03. Defeasance of Certain Obligations. . . . . . 66
SECTION 8.04. Application of Trust Money . . . . . . . . . 66
SECTION 8.05. Repayment to Company . . . . . . . . . . . . 66
SECTION 8.06. Reinstatement. . . . . . . . . . . . . . . . 67
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders . . . . . . . . . 67
SECTION 9.02. With Consent of Holders. . . . . . . . . . . 67
SECTION 9.03. Revocation and Effect of Consent . . . . . . 68
SECTION 9.04. Notation on or Exchange of Notes . . . . . . 69
SECTION 9.05. Trustee to Sign Amendments, Etc. . . . . . . 69
SECTION 9.06. Conformity with Trust Indenture Act. . . . . 69
ARTICLE TEN NOTE GUARANTEES
SECTION 10.01. Note Guarantee. . . . . . . . . . . . . . . 69
SECTION 10.02. Obligations Unconditional . . . . . . . . . 71
SECTION 10.03. Release of Note Guarantees. . . . . . . . . 72
SECTION 10.04. Notice to Trustee . . . . . . . . . . . . . 72
SECTION 10.05. This Article Not to Prevent Events
of Default . . . . . . . . . . . . . . . . . 72
ARTICLE ELEVEN MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939 . . . . . . . . 72
SECTION 11.02. Notices . . . . . . . . . . . . . . . . . . 72
SECTION 11.03. Certificate and Opinion as to
Conditions Precedent . . . . . . . . . . . . 73
SECTION 11.04. Statements Required in Certificate or Opinion 73
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar 73
SECTION 11.06. Payment Date Other Than a Business Day. . . 74
SECTION 11.07. Governing Law . . . . . . . . . . . . . . . 74
SECTION 11.08. No Adverse Interpretation of Other Agreements 74
SECTION 11.09. No Recourse Against Others. . . . . . . . . 74
SECTION 11.10. Successors. . . . . . . . . . . . . . . . . 74
SECTION 11.11. Duplicate Originals . . . . . . . . . . . . 74
SECTION 11.12. Separability. . . . . . . . . . . . . . . . 74
SECTION 11.13. Table of Contents, Headings, Etc. . . . . . 74
SECTION 11.14. Counterparts. . . . . . . . . . . . . . . . 74
SECTION 11.15. Submission to Jurisdiction; Appointment
of Agent for Service . . . . . . . . . . . . 75
SECTION 11.16. Judgment Currency . . . . . . . . . . . . . 75
SECTION 11.17. Method of Payment . . . . . . . . . . . . . 75
EXHIBIT A Form of Note . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Certificate. . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to
Non-QIB Accredited Investors . . . . . . . . . . C-1
EXHIBIT D Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to
Regulation S . . . . . . . . . . . . . . . . . . D-1
EXHIBIT E Form of Certificate for Transfer from
Regulation S Global or Regulation S
Certificated Note to a Restricted Global . . . . E-1
INDENTURE, dated as of July 26, 2000, among Jones Lang LaSalle
Finance B.V., a private limited liability company incorporated under the
laws of the Netherlands (the "Company"), Jones Lang LaSalle Incorporated, a
Maryland corporation ("JLL"), as parent Guarantor, Jones Lang LaSalle
Americas, Inc., a Maryland corporation, LaSalle Investment Management,
Inc., a Maryland corporation, Jones Lang LaSalle International, Inc., a
Delaware corporation, Jones Lang LaSalle Co-Investment, Inc., a Maryland
corporation, LaSalle Hotel Advisors, Inc., a Maryland corporation, and
Jones Lang LaSalle Limited., a company organized under the laws of England
and Wales, as Guarantors, and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance initially of up to _165,000,000
aggregate principal amount of the Company's 9% Senior Notes due 2007 (the
"Notes") issuable as provided in this Indenture. All things necessary to
make this Indenture a valid agreement of the Company and each Guarantor, in
accordance with its terms, have been done, and the Company has done all
things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee hereunder and duly issued by the
Company, valid obligations of the Company as hereinafter provided.
Prior to the effectiveness of the Registration Statement, this
Indenture shall incorporate and be governed by the provisions of the TIA
that are required to be a part of and to govern indentures qualified under
the TIA. After the effectiveness of the Registration Statement, this
Indenture shall be subject to the provisions of the TIA that are required
to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a person existing at
the time such person becomes a Restricted Subsidiary or assumed in
connection with an Asset Acquisition by a Restricted Subsidiary; provided
that Indebtedness of such person which is redeemed, defeased, retired or
otherwise repaid at the time of or immediately upon consummation of the
transactions by which such person becomes a Restricted Subsidiary or such
Asset Acquisition shall not be Acquired Indebtedness.
"Additional Amounts" has the meaning set forth in Section 4.20.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of JLL and its Restricted Subsidiaries for
such period determined in conformity with GAAP; provided that the following
items shall be excluded in computing Adjusted Consolidated Net Income
(without duplication):
(i) the net income (or loss) of any person (other than JLL)
that is not a Restricted Subsidiary, except to the extent of the amount of
dividends or other distributions actually paid to JLL or any of its
Restricted Subsidiaries by such person during such period;
(ii) the net income (or loss) of any person accrued prior to
the date it becomes a Restricted Subsidiary or is merged into or
consolidated with JLL or any of its Restricted Subsidiaries or all or
substantially all of the property and assets of such person are acquired by
JLL or any of its Restricted Subsidiaries;
(iii) the net income of any Restricted Subsidiary (other than a
Guarantor) to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of such net income is
not at the time permitted by the operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Restricted Subsidiary;
(iv) any gains or losses (on an after-tax basis) attributable
to Asset Sales;
(v) solely for purposes of calculating the amount of
Restricted Payments that may be made pursuant to clause (C) of the first
paragraph of Section 4.04 (x) any amount paid or accrued as dividends on
preferred stock of JLL owned by persons other than JLL and any of its
Restricted Subsidiaries and (y) all non-cash contributions and accruals to
or with respect to deferred profit sharing or compensation in connection
with the JLW Acquisition;
(vi) all extraordinary gains and extraordinary losses (on an
after-tax basis);
(vii) except for purposes of calculating the Interest Coverage
Ratio, any gains or losses (on an after-tax basis) attributable to sales of
Investments to the extent of any net cash proceeds included in the
calculation under clause (C)(3) of Section 4.04 or any gains or losses (on
an after-tax basis) attributable to sales of Permitted Investments to the
extent of any net cash proceeds included in the calculation under clause
(vii)(4) of the definition of "Permitted Investments"; and
(viii) the cumulative effect of a change in accounting
principles.
"Affiliate" means, as applied to any person, any other person
directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as applied
to any person, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such
person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means any Registrar, co-Registrar, Paying Agent or
authenticating agent.
"Agent Members" has the meaning provided in Section 2.07(a).
"Applicable Premium" has the meaning provided in Section 3.01.
"Asset Acquisition" means (i) an Investment by JLL or any of its
Restricted Subsidiaries in any other person pursuant to which such person
shall become a Restricted Subsidiary or shall be merged into or
consolidated with JLL or any of its Restricted Subsidiaries or (ii) an
acquisition by JLL or any of its Restricted Subsidiaries of the property
and assets of any person (other than JLL or any of its Restricted
Subsidiaries) that constitute substantially all of a division or line of
business of such person.
"Asset Disposition" means the sale or other disposition by JLL or any
of its Restricted Subsidiaries (other than to JLL or a Restricted
Subsidiary) of (i) all or substantially all of the Capital Stock of any
Restricted Subsidiary or (ii) all or substantially all of the property and
assets that constitute a division or line of business of JLL or any of its
Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including
by way of merger, consolidation or sale-leaseback transaction) in one
transaction or a series of related transactions by JLL or any of its
Restricted Subsidiaries to any person other than JLL or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of any
Restricted Subsidiary (other than any director's qualifying shares or
Capital Stock held by foreign nationals or employees to the extent required
by applicable law in order to conduct business as conducted at the time of
issuance of such shares), (ii) all or substantially all of the property and
assets of an operating unit or business of JLL or any of its Restricted
Subsidiaries or (iii) any other property and assets (other than the Capital
Stock or other Investment in an Unrestricted Subsidiary) of JLL or any of
its Restricted Subsidiaries outside the ordinary course of business of JLL
or such Restricted Subsidiary and, in each case, that is not governed by
the provisions of this Indenture applicable to mergers, consolidations and
sales of assets; provided that "Asset Sale" shall not include (a) sales or
other dispositions of inventory, receivables and other current assets,
(b) sales, transfers or other dispositions of assets permitted to be made
under Section 4.04, (c) sales or other dispositions of assets for
consideration at least equal to the fair market value of the assets sold or
disposed of, to the extent that the consideration received would satisfy
clause (i)(B) of Section 4.11, (d) a transaction constituting a Change of
Control, provided that the Company or its successor complies with the
provisions of Section 4.12 or (e) disposition of obsolete, uneconomical,
worn out or surplus property or equipment.
"Authorized Agent" has the meaning set forth in Section 11.15.
"Average Life" means, at any date of determination with respect to
any debt security, the quotient obtained by dividing (i) the sum of the
products of the number of years from such date of determination to the
dates of each successive scheduled principal payment of such debt security
and the amount of such principal payment by (ii) the sum of all such
principal payments.
"Board of Directors" means the board of directors of JLL or any
authorized committee thereof.
"Board Resolution" means a copy of a resolution duly adopted by the
Board of Directors and in full force that is delivered to the Trustee.
"Bund Rate" has the meaning provided in Section 3.01.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in The City of New York, or in the city of the
Corporate Trust Office of the Trustee, are authorized by law to close.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in the equity of such person, whether
outstanding on the Closing Date or issued thereafter, including, without
limitation, all common stock and preferred stock.
"Capitalized Lease" means, as applied to any person, any lease of any
property (whether real, personal or mixed) which, in conformity with GAAP,
is required to be capitalized on the balance sheet of such person.
"Capitalized Lease Obligations" means, with respect to any person on
any date of determination, the amount of such person's liabilities under
Capitalized Leases, determined in accordance with GAAP.
"Certificated Notes" has the meaning provided in Section 2.01 hereof.
"Change of Control" means such time as (i) with respect to the
Company, JLL ceases to be the ultimate "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of 99% of the total voting power of the
Voting Stock of the Company or (ii) with respect to JLL, after the Closing
Date, (a) a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) becomes the ultimate "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 35% of the total
voting power of the Voting Stock of JLL on a fully diluted basis; or
(b) individuals who on the Closing Date constitute the Board of Directors
(together with any new directors whose election by the Board of Directors
or whose nomination by the Board of Directors for election by JLL's
stockholders was approved by a vote of at least two-thirds of the members
of the Board of Directors then in office who either were members of the
Board of Directors on the Closing Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the members of the Board of Directors then in office.
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means the date on which the Notes are originally
issued under this Indenture.
"Co-Investment" means direct or indirect investments in real estate
or real estate related assets (including securities) in order to attract or
retain investments from clients or prospective clients with respect to
those assets.
"Common Depositary" means The Bank of New York, London Branch, or any
of its successors acting in the capacity of common depositary for Euroclear
and Clearstream.
"common stock" means, with respect to any person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such person's equity, other than preferred stock
of such person, whether outstanding on the Closing Date or issued
thereafter, including, without limitation, all series and classes of such
common stock.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces it pursuant to Article Five of
this Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in the name
of the Company (i) by its Chairman, a Vice Chairman, its President or a
Vice President and (ii) by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the Trustee; provided,
however, that such written request or order may be signed by any two of the
officers or directors listed in clause (i) above in lieu of being signed by
one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Compass Acquisition" means the acquisition by JLL and its
Subsidiaries of Compass Management and Leasing, Inc. and companies from
Lend Lease Corporation and its affiliates and all transactions in
connection therewith.
"Consolidated EBITDA" means, for any period, Adjusted Consolidated
Net Income for such period plus, to the extent such amount was deducted in
calculating such Adjusted Consolidated Net Income: (i) Consolidated
Interest Expense, (ii) income taxes, (iii) depreciation expense,
(iv) amortization expense, (v) all other non-cash items reducing Adjusted
Consolidated Net Income (other than items that will require cash payments
and for which an accrual or reserve is, or is required by GAAP to be, made)
and (vi) non-recurring charges, costs and expenses incurred by JLL and its
Restricted Subsidiaries in connection with the Compass Acquisition and the
JLW Acquisition, less all non-cash items increasing Adjusted Consolidated
Net Income (other than items that represent the reversal of any accrual or
reserve for anticipated cash charges in any prior period), all as
determined on a consolidated basis for JLL and its Restricted Subsidiaries
in conformity with GAAP; provided that, if any Restricted Subsidiary is not
a Wholly Owned Restricted Subsidiary, Consolidated EBITDA shall be reduced
(to the extent not otherwise reduced in accordance with GAAP) by an amount
equal to (A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by (B) the percentage
ownership interest in the income of such Restricted Subsidiary not owned on
the last day of such period by JLL or any of its Restricted Subsidiaries.
"Consolidated Free Cash Flow" means, for any period, the Consolidated
EBITDA for such period less, to the extent such amount was included in
calculating such Consolidated EBITDA: (i) Consolidated Interest Expense and
(ii) income taxes, less capital expenditures made during such period, all
as determined on a consolidated basis for JLL and its Restricted
Subsidiaries in conformity with GAAP; provided that, if any Restricted
Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated Free
Cash Flow shall be reduced (to the extent not otherwise reduced in
accordance with GAAP) by an amount equal to (A) the amount of the Adjusted
Consolidated Net Income attributable to such Restricted Subsidiary
multiplied by (B) the percentage ownership interest in the income of such
Restricted Subsidiary not owned on the last day of such period by JLL or
any of its Restricted Subsidiaries
"Consolidated Interest Expense" means, for any period, the aggregate
amount of interest in respect of Indebtedness (including, without
limitation, amortization of original issue discount on any Indebtedness and
the interest portion of any deferred payment obligation, calculated in
accordance with the effective interest method of accounting; all
commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing; the net costs
associated with Interest Rate Agreements; and Indebtedness that is
Guaranteed or secured by JLL or any of its Restricted Subsidiaries) and all
but the principal component of rentals in respect of Capitalized Lease
Obligations paid, accrued or scheduled to be paid or to be accrued by JLL
and its Restricted Subsidiaries during such period; excluding, however,
(i) any amount of such interest of any Restricted Subsidiary if the net
income of such Restricted Subsidiary is excluded in the calculation of
Adjusted Consolidated Net Income pursuant to clause (iii) of the definition
thereof (but only in the same proportion as the net income of such
Restricted Subsidiary is excluded from the calculation of Adjusted
Consolidated Net Income pursuant to clause (iii) of the definition thereof)
and (ii) any premiums, fees and expenses (and any amortization thereof)
payable in connection with the offering of the Notes, all as determined on
a consolidated basis (without taking into account Unrestricted
Subsidiaries) in conformity with GAAP.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly
or annual consolidated balance sheet of JLL and its Restricted Subsidiaries
(which shall be as of a date not more than 90 days prior to the date of
such computation, and which shall not take into account Unrestricted
Subsidiaries), less any amounts attributable to Disqualified Stock or any
equity security convertible into or exchangeable for Indebtedness, the cost
of treasury stock and the principal amount of any promissory notes
receivable from the sale of the Capital Stock of JLL or any of its
Restricted Subsidiaries, each item to be determined in conformity with GAAP
(excluding the effects of foreign currency exchange adjustments under
Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 52).
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at The Bank of New York, 101 Barclay Street, New York, New York
10286; Attention: Corporate Trust Administration, Global Finance Unit and,
in the event the Notes are listed on the Luxembourg Stock Exchange, at
Kredietbank S.A. Luxembourgeoise, 43 Boulevard Royal, L-2955 Luxembourg;
Attention: Corporate Trust and Agencies.
"Credit Agreement" means the Second Amended and Restated
Multicurrency Credit Agreement dated as of the date of this Indenture among
the Company, the guarantors party thereto, the banks party thereto, Harris
Trust and Savings Bank, as Administrative Agent, Co-Lead Arranger and Joint
Bookrunner, The Chase Manhattan Bank, as Documentation Agent, Bank One,
N.A., as Syndication Agent, Banc One Capital Markets, Inc., as Co-Lead
Arranger and Joint Bookrunner and Chase Securities Inc., as Co-Arranger,
together with any agreements, instruments and documents executed or
delivered pursuant to or in connection with such credit agreement, as such
credit agreement or such agreements, instruments or documents may be
amended, supplemented, extended, restated, renewed or otherwise modified
from time to time and any refinancing, replacement or substitution thereof
or therefor, or of or for any previous refinancing, replacement or
substitution.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" shall mean, with respect to the Regulation S Global and
European 144A Global, Euroclear and Clearstream and, with respect to the
DTC Rule 144A Global, DTC.
"Disqualified Stock" means any class or series of Capital Stock of
any person that by its terms or otherwise is (i) required to be redeemed
prior to the Stated Maturity of the Notes, (ii) redeemable at the option of
the Holder of such class or series of Capital Stock at any time prior to
the Stated Maturity of the Notes or (iii) convertible into or exchangeable
for Capital Stock referred to in clause (i) or (ii) above or Indebtedness
having a scheduled maturity prior to the Stated Maturity of the Notes;
provided that any Capital Stock that would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to
require such person to repurchase or redeem such Capital Stock upon the
occurrence of an "Asset Sale" or "Change of Control" occurring prior to the
Stated Maturity of the Notes shall not constitute Disqualified Stock if the
"Asset Sale" or "Change of Control" provisions applicable to such Capital
Stock are not materially more favorable to the holders of such Capital
Stock than the provisions contained in Section 4.11 and Section 4.12 and
such Capital Stock specifically provides that such person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Notes as are required to be repurchased
pursuant to Section 4.11 and Section 4.12.
"DTC" means The Depository Trust Company, its nominees and their
respective successors.
"DTC Noteholder" has the meaning provided in Section 11.17.
"DTC Rule 144A Global" has the meaning provided in Section 2.01.
"Euroclear" means Morgan Guaranty Trust Company of New York (Brussels
office) as operator of the Euroclear system and any successor thereto.
"Euroclear/Clearstream Noteholder" has the meaning provided in
Section 11.17.
"Euro Paying Agent" means The Bank of New York, London Branch,
located at One Canada Square, 48th Floor, London E14 5AL, United Kingdom
and any successor paying agent.
"European 144A Global" has the meaning provided in Section 2.01.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means any securities of the Company containing terms
identical in all material respects to the Notes (except that such Exchange
Notes will not bear legends restricting their transfer that are issued and
exchanged for the Notes pursuant to the Registration Rights Agreement and
this Indenture.
"Exchange Rate Agent" means The Bank of New York or any successor
exchange rate agent.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith, in the case of any valuation of $1
million or less, by an executive officer of JLL and evidenced by an
Officers' Certificate, or, in the case of any valuation of more than $1
million, by the Board of Directors and evidenced by a Board Resolution, in
either such case whose determination shall be conclusive.
"Foreign Subsidiary" means any Subsidiary of JLL that is organized
under the laws of a jurisdiction other than the United States or any state
thereof.
"GAAP" means generally accepted accounting principles in the United
States of America as applied by JLL as of the Closing Date, including,
without limitation, those set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as approved by a significant segment of the accounting profession. All
ratios and computations contained or referred to in this Indenture shall be
computed in conformity with GAAP applied on a consistent basis, except that
calculations made for purposes of determining compliance with the terms of
the covenants and with other provisions of this Indenture shall be made
without giving effect to (i) the amortization of any expenses incurred in
connection with the offering of the Notes and (ii) except as otherwise
provided, the amortization of any amounts required or permitted by
Accounting Principles Board Opinion Nos. 16 and 17.
"Global Notes" has the meaning provided in Section 2.01.
"Government Obligations" means securities that are direct and
unconditional obligations of a European Union member country on the date
of this Indenture (other than Greece, Portugal or Spain) and are not
callable or redeemable at the option of the issuer thereof.
"Guarantee" means any obligation, contingent or otherwise, of any
person directly or indirectly guaranteeing any Indebtedness of any other
person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such person
(i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other person (whether arising by
virtue of partnership arrangements, or by agreements to keep-well, to
purchase assets, goods, securities or services (unless such purchase
arrangements are on arm's-length terms and are entered into in the ordinary
course of business), to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in
any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Guaranteed Indebtedness" has the meaning provided in Section 4.07.
"Guarantors" means JLL, as parent guarantor, Jones Lang LaSalle
Americas, Inc., a Maryland corporation, LaSalle Investment Management,
Inc., a Maryland corporation, Jones Lang LaSalle International, Inc., a
Delaware corporation, Jones Lang LaSalle Co-Investment, Inc., a Maryland
corporation, LaSalle Hotel Advisors, Inc., a Maryland corporation, Jones
Lang LaSalle Limited, a company organized under the laws of England and
Wales, and any other Subsidiary which Guarantees the Notes pursuant to
Section 4.07.
"Holder" or "Noteholder" means the registered holder of any Note.
"Incur" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to,
or become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Acquired Indebtedness; provided
that neither the accrual of interest nor the accretion of original issue
discount shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any person at any date of
determination (without duplication):
(i) all indebtedness of such person for borrowed money;
(ii) all obligations of such person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all obligations of such person in respect of letters of
credit or other similar instruments (including reimbursement obligations
with respect thereto, but excluding obligations with respect to letters of
credit (including trade letters of credit) securing obligations (other than
obligations described in (i) or (ii) above or (v), (vi) or (vii) below)
entered into in the ordinary course of business of such person to the
extent such letters of credit are not drawn upon or, if drawn upon, to the
extent such drawing is reimbursed no later than the third Business Day
following receipt by such person of a demand for reimbursement);
(iv) all obligations of such person to pay the deferred and
unpaid purchase price of property or services, except Trade Payables, which
purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion
of such services;
(v) all Capitalized Lease Obligations;
(vi) all Indebtedness of other persons secured by a Lien on
any asset of the person with respect to which a determination is being
made, whether or not such Indebtedness is assumed by such person; provided
that the amount of such Indebtedness shall be the lesser of (A) the fair
market value of such asset at such date of determination and (B) the amount
of such Indebtedness;
(vii) all Indebtedness of other persons Guaranteed by the
person with respect to which a determination is being made to the extent
such Indebtedness is Guaranteed by such person; and
(viii) to the extent not otherwise included in this
definition, obligations under Currency Agreements and Interest Rate
Agreements.
The amount of Indebtedness of any person at any date shall be the
outstanding balance at such date of all unconditional obligations as
described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the
obligation, provided (A) that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP, (B) that money borrowed and set aside at the time of the Incurrence
of any Indebtedness in order to prefund the payment of the interest on such
Indebtedness shall not be deemed to be "Indebtedness" so long as such money
is held to secure the payment of such interest and (C) that Indebtedness
shall not include any liability for federal, state, local or other taxes.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Coverage Ratio" means, on any Transaction Date, the ratio
of (i) the aggregate amount of Consolidated EBITDA for the then most recent
four fiscal quarters prior to such Transaction Date for which reports have
been provided to the Trustee (the "Four Quarter Period") to (ii) the
aggregate Consolidated Interest Expense during such Four Quarter Period.
In making the foregoing calculation, (A) pro forma effect shall be given to
any Indebtedness Incurred or repaid during the period (the "Reference
Period") commencing on the first day of the Four Quarter Period and ending
on the Transaction Date (other than Indebtedness Incurred under a revolving
credit or similar arrangement (or under any predecessor revolving credit or
similar arrangement) in effect on the last day of such Four Quarter Period
unless any portion of such Indebtedness is projected, in the reasonable
judgment of the senior management of JLL, to remain outstanding for a
period in excess of 12 months from the date of the Incurrence thereof), in
each case as if such Indebtedness had been Incurred or repaid on the first
day of such Reference Period; (B) Consolidated Interest Expense
attributable to interest on any Indebtedness (whether existing or being
Incurred) computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the Transaction Date
(taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months or, if shorter, at least equal to the remaining term of such
Indebtedness) had been the applicable rate for the entire period; (C) pro
forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any
Asset Disposition) that occur during such Reference Period as if they had
occurred and such proceeds had been applied on the first day of such
Reference Period; and (D) pro forma effect shall be given to asset
dispositions and asset acquisitions (including giving pro forma effect to
the application of proceeds of any asset disposition) that have been made
by any person that has become a Restricted Subsidiary or has been merged
with or into JLL or any Restricted Subsidiary during such Reference Period
and that would have constituted Asset Dispositions or Asset Acquisitions
had such transactions occurred when such person was a Restricted Subsidiary
as if such asset dispositions or asset acquisitions were Asset Dispositions
or Asset Acquisitions that occurred on the first day of such Reference
Period; provided that to the extent that clause (C) or (D) of this sentence
requires that pro forma effect be given to an Asset Acquisition or Asset
Disposition, such pro forma calculation shall be based upon the four full
fiscal quarters immediately preceding the Transaction Date of the person,
or division or line of business of the person, that is acquired or disposed
of for which financial information is available.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement, interest rate hedge agreement, option or future contract
or other similar agreement or arrangement.
"Interest Payment Date" means each semiannual interest payment date
on June 15 and December 15 of each year, commencing December 15, 2000.
"Investment" in any person means any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of
Guarantee or similar arrangement; but excluding advances to customers in
the ordinary course of business that are, in conformity with GAAP, recorded
as accounts receivable on the balance sheet of JLL or its Restricted
Subsidiaries) or capital contribution to (by means of any transfer of cash
or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
bonds, notes, debentures or other similar instruments issued by, such
person and shall include (i) the designation of a Restricted Subsidiary as
an Unrestricted Subsidiary and (ii) the retention of the Capital Stock (or
any other Investment) by JLL or any of its Restricted Subsidiaries, of (or
in) any person that has ceased to be a Subsidiary, including without
limitation, by reason of any transaction permitted by clause (iii) of
Section 4.06. For purposes of the definition of "Unrestricted Subsidiary"
and Section 4.04, the amount of an Investment made or a reduction in an
Investment shall be equal to the fair market value thereof at the time such
Investment is made or reduced, respectively. A change in the form of an
Investment shall not be regarded as a further Investment except to the
extent JLL or any of its Subsidiaries invests any amounts in addition to
any existing Investments.
"JLL" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Section Five of this
Indenture and thereafter means the successor.
"JLW Acquisition" means the acquisition by JLL and its Subsidiaries
of the entities conducting business worldwide under the names "Jones Lang
Wooten" and "JLW" prior to such acquisition and all transactions in
connection therewith.
"Judgment Currency" has the meaning set forth in Section 11.16.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, without limitation, any conditional
sale or other title retention agreement or lease in the nature thereof or
any agreement to give any security interest).
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means:
(i) with respect to any Asset Sale, the proceeds of such
Asset Sale received by JLL or any Restricted Subsidiary (and excluding any
amount received by other minority interest holders) in the form of cash or
cash equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash
equivalents and proceeds from the conversion of other property received
when converted to cash or cash equivalents, net of (A) brokerage
commissions and other fees and expenses (including fees and expenses of
accountants, counsel, consultants and investment bankers) related to such
Asset Sale, (B) provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale without
regard to the consolidated results of operations of JLL and its Restricted
Subsidiaries, taken as a whole, (C) payments made to repay Indebtedness or
any other obligation outstanding at the time of such Asset Sale that either
(I) is secured by a Lien on the property or assets sold or (II) is required
to be paid as a result of such sale, and (D) appropriate amounts to be
provided by JLL or any Restricted Subsidiary as a reserve against any
liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related
to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in
conformity with GAAP, and
(ii) with respect to any issuance or sale of Capital Stock,
the proceeds of such issuance or sale in the form of cash or cash
equivalents, including payments in respect of deferred payment obligations
(to the extent corresponding to the principal, but not interest, component
thereof) when received in the form of cash or cash equivalents and proceeds
from the conversion of other property received when converted to cash or
cash equivalents, net of attorney's fees, accountants' fees, underwriters'
or placement agents' fees, discounts or commissions and brokerage,
consultant and other fees incurred in connection with such issuance or sale
and net of taxes paid or payable as a result thereof.
"New York Business Day" has the meaning set forth in Section 11.17.
"Non-U.S. Person" means a person who is not a "U.S. person" (as
defined in Regulation S).
"Note Guarantee" means any Guarantee by any of the Guarantors, or any
successor thereto, of the Company's obligations under this Indenture and
the Notes.
"Notes" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Notes"
shall include the Notes initially issued on the Closing Date, any Exchange
Notes to be issued and exchanged for any Notes pursuant to the Registration
Rights Agreement and this Indenture and any other Notes issued after the
Closing Date under this Indenture. For purposes of this Indenture, all
Notes shall vote together as one series of Notes under this Indenture.
"Offer to Purchase" means an offer to purchase Notes by the Company
from the Holders thereof commenced by mailing a notice to the Trustee and
each Holder stating:
(i) the covenant pursuant to which the offer is being made
and that all Notes validly tendered will be accepted for payment on a pro
rata basis;
(ii) the purchase price and the date of purchase (which shall
be a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed) (the "Payment Date");
(iii) that any Note not tendered will continue to accrue
interest pursuant to its terms;
(iv) that, unless the Company defaults in the payment of the
purchase price, any Note accepted for payment pursuant to the Offer to
Purchase shall cease to accrue interest on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant
to the Offer to Purchase will be required to surrender the Note, together
with the form entitled "Option of the Holder to Elect Purchase" on the
reverse side of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date;
(vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on the
third Business Day immediately preceding the Payment Date, a facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased; and
(vii) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered; provided that each Note purchased and
each new Note issued shall be in a principal amount of _1,000 or integral
multiples thereof.
On the Payment Date, the Company shall (i) accept for payment on a pro rata
basis Notes or portions thereof tendered pursuant to an Offer to Purchase;
(ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Notes or portions thereof so accepted; and (iii) deliver, or
cause to be delivered, to the Trustee all Notes or portions thereof so
accepted together with an Officers' Certificate specifying the Notes or
portions thereof accepted for payment by the Company. The Paying Agent
shall promptly mail to the Holders of Notes so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount
to any unpurchased portion of the Note surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount of _1,000
or integral multiples thereof. The Company shall publicly announce the
results of an Offer to Purchase as soon as practicable after the Payment
Date. The Trustee shall act as the Paying Agent for an Offer to Purchase.
The Company shall comply with Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent such laws
and regulations are applicable, in the event that the Company is required
to repurchase Notes pursuant to an Offer to Purchase.
"Officer" means, with respect to the Company, (i) the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President or
Managing Director or the Chief Financial Officer, and (ii) the Treasurer or
any Assistant Treasurer, or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer
listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof or two officers listed in clause (i)
of the definition thereof. Each Officers' Certificate (other than
certificates provided pursuant to TIA Section 314(a)(4)) shall include the
statements provided for in TIA Section 314(e).
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, that meets the
requirements of Section 11.04 hereof. Each such Opinion of Counsel shall
include the statements provided for in TIA Section 314(e).
"Participant" means, with respect to DTC, Euroclear or Clearstream, a
person who has an account with DTC, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).
"Paying Agent" has the meaning provided in Section 2.04, except that,
for the purposes of Article Eight, the Paying Agent shall not be the
Company or a Subsidiary of the Company or an Affiliate of any of them. The
term "Paying Agent" includes any additional Paying Agent.
"Payment Date" has the meaning provided in the definition of Offer to
Purchase.
"Permanent Regulation S Global" has the meaning provided in Section
2.01.
"Permitted Investment" means:
(i) an Investment in JLL or a Restricted Subsidiary or a
person which will, upon the making of such Investment, become a Restricted
Subsidiary or be merged or consolidated with or into or transfer or convey
all or substantially all its assets to, JLL or a Restricted Subsidiary;
provided that such person's primary business is related, ancillary or
complementary to the businesses of JLL and its Restricted Subsidiaries on
the date of such Investment;
(ii) Temporary Cash Investments;
(iii) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP;
(iv) stock, obligations or securities received in satisfaction
of judgments or received in settlements of debts created in the ordinary
course of business;
(v) an Investment in an Unrestricted Subsidiary consisting
solely of an Investment in another Unrestricted Subsidiary;
(vi) Interest Rate Agreements and Currency Agreements designed
solely to protect JLL or its Restricted Subsidiaries against fluctuations
in interest rates or foreign currency exchange rates;
(vii) Co-Investments; provided that at the time of, and after
giving effect to, such Co-Investment, the aggregate amount of all Co-
Investments under this clause (vii) (the amount, if other than in cash, to
be determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a Board Resolution) made after the
Closing Date shall not exceed:
(1) $40 million, plus
(2) on or after January 1, 2001, an additional $40
million, plus
(3) if greater than zero, the sum of:
(a) 35% of the aggregate amount of Consolidated
Free Cash Flow (or, if Consolidated Free Cash Flow is negative, minus 100%
of the amount of such loss) (determined by excluding income resulting from
transfers of assets by JLL or any Restricted Subsidiary to an Unrestricted
Subsidiary) accrued on a cumulative basis during the period (taken as one
accounting period) beginning on the first day of the fiscal quarter
immediately following the Closing Date and ending on the last day of the
last fiscal quarter preceding the Transaction Date for which reports have
been filed with the SEC or provided to the Trustee, plus
(b) an amount equal to the net reduction in Co-
Investments that constitute Investments (including
Investments in an Unrestricted Subsidiary) resulting from payments of
interest on Indebtedness, dividends, repayments of loans or advances or
other transfers of assets, in any case to JLL, the Company or any
Restricted Subsidiary or from the net cash proceeds from the sale of any
Co-Investment to the extent the gain is not included by the Company in the
calculation under clause (C)(1) of Section 4.04 or redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries except to the extent
that such redesignation is used in the calculation under clause (C)(3) of
Section 4.04 (valued in each case as provided in the definition of
"Investment");
(viii) receivables owing to JLL or any Restricted
Subsidiary if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; provided
that such trade terms may include such concessionary trade terms as JLL or
any such Restricted Subsidiary deems reasonable under the circumstances;
(ix) Investments in any person, including in the form of
bonds, notes, debentures and other securities, to the extent such
Investments represent the non-cash portion of the consideration received
from an Asset Sale that was made pursuant to and in compliance with Section
4.11;
(x) Investments deemed to have been made as a result of the
acquisition of a person that at the time of such acquisition held
instruments constituting Investments that were not acquired in
contemplation of the acquisition of such person;
(xi) loans or advances to directors, officers and employees
made in the ordinary course of business in an aggregate not to exceed $10
million at any time outstanding;
(xii) Investments in prepaid expenses and lease, utility and
workers' compensation performance and other similar deposits;
(xiii) Investments consisting of intercompany indebtedness
not prohibited under this Indenture;
(xiv) Investments consisting of Guarantees of Indebtedness of
JLL or any Restricted Subsidiary not otherwise prohibited by this
Indenture; and
(xv) any Investment existing as of the Closing Date, and any
amendment, modification, extension or renewal thereof to the extent such
amendment, modification, extension or renewal does not require JLL or any
Restricted Subsidiary to make any additional cash or non-cash payments.
"Permitted Liens" means:
(i) Liens for taxes, assessments, governmental charges or
claims that are not yet due and payable, that are not subject to penalties
or interest for non-payment or that are being contested in good faith by
appropriate proceedings and for which, if required by GAAP, a reserve or
other appropriate provision in conformity with GAAP shall have been made;
(ii) statutory and common law Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and deposits made to
obtain the release of such Liens and with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceedings and
for which, if required by GAAP, a reserve or other appropriate provision
in conformity with GAAP shall have been made;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security;
(iv) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, contracts, import duties, payment of
rent, performance, letters of credit and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money);
(v) easements, reservations, rights-of-way, zoning ordinances
and similar charges, restrictions, exceptions, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of JLL or any of its Restricted Subsidiaries;
(vi) Liens (including extensions, renewals and replacements
thereof) upon real or personal property acquired, constructed, leased,
repaired or improved after the Closing Date; provided that (a) such Lien is
created solely for the purpose of securing Purchase Money Indebtedness
Incurred in accordance with Section 4.03, (b) such Lien is created prior
to, at the time of or within six months after the later of the acquisition,
the completion of construction, improvement or repair or the commencement
of full operation of such property and (c) such Lien shall not extend to or
cover any property or assets other than such item of property or assets and
any improvements thereon;
(vii) leases or subleases granted to others that do not
materially interfere with the ordinary course of business of JLL and its
Restricted Subsidiaries, taken as a whole;
(viii) Liens encumbering property or assets under
construction arising from progress or partial payments by a customer of JLL
or its Restricted Subsidiaries relating to such property or assets;
(ix) any interest or title of a lessor in the property subject
to any Capitalized Lease or operating lease;
(x) Liens arising from filing Uniform Commercial Code
financing statements regarding leases;
(xi) Liens on assets or property of, shares of Capital Stock
of or Indebtedness owed to, any person existing at the time such assets or
property are acquired by JLL or any Restricted Subsidiary, or such person
becomes a Restricted Subsidiary, or such person becomes a part of JLL or
any Restricted Subsidiary; provided that such Liens do not extend to or
cover any property or assets of JLL or any Restricted Subsidiary other than
the property or assets so acquired;
(xii) Liens in favor of JLL or any Restricted Subsidiary;
(xiii) Liens arising from the rendering of a judgment that
is not a final judgment or order against JLL or any Restricted Subsidiary
with respect to which JLL or such Restricted Subsidiary is then proceeding
with an appeal or other proceeding for review or in connection with surety
or appeal bonds in connection with such attachment or judgment, and Liens
arising from the rendering of a final judgment or order against JLL or any
Restricted Subsidiary that does not give rise to an Event of Default;
(xiv) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to
such letters of credit and the products and proceeds thereof;
(xv) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with
the importation of goods;
(xvi) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are customary in the industry and incurred
in the ordinary course of business, in each case, securing Indebtedness
under Interest Rate Agreements and Currency Agreements and forward
contracts, options, future contracts, futures options or similar agreements
or arrangements designed solely to protect JLL or any of its Restricted
Subsidiaries from fluctuations in interest rates, currencies or the price
of commodities;
(xvii) Liens arising out of conditional sale, title
retention, consignment or similar arrangements for the sale of goods
entered into by JLL or any of its Restricted Subsidiaries in the ordinary
course of business in accordance with the past practices of JLL and its
Restricted Subsidiaries;
(xviii) Liens on shares of Capital Stock of any
Unrestricted Subsidiary to secure Indebtedness of such Unrestricted
Subsidiary;
(xix) Liens on or sales of receivables;
(xx) Liens not otherwise permitted under Section 4.09 on
property or assets securing Indebtedness and Liens on property or assets
securing any Indebtedness Incurred in connection with any refinancing,
replacement, renewal or refunding of such Indebtedness in an aggregate
principal amount not exceeding $5 million at any time outstanding;
(xxi) Liens to secure any refinancing (or successive
refinancings) as a whole, or in part, of any Indebtedness secured by any
Lien referred to in clauses (xi), (xii) and (xxiii) herein; provided that:
(A) such new Lien shall be limited to all or part of
the same property or assets that secured the original Lien (plus repairs
of, or improvements to or on, such property); and
(B) the Indebtedness secured by such Lien at such time
is not increased to any amount greater than the sum of: (I) the
outstanding principal amount or, if greater, committed amount of the
Indebtedness secured by Liens described under clauses (xi), (xii) and
(xxiii) herein at the time the original Lien became a Permitted Lien and
(II) an amount necessary to pay any fees and expenses, including premiums
and prepayment penalties, related to such refinancings;
(xxii) Liens existing on the Closing Date;
(xxiii) Liens granted after the Closing Date on any assets
or Capital Stock of JLL or its Restricted Subsidiaries created in favor of
the Holders;
(xxiv) Liens securing Indebtedness which is Incurred to
refinance, extend or renew secured Indebtedness which is permitted to be
Incurred under clause (b)(iii) of Section 4.03; provided that such Liens do
not extend to or cover any property or assets of JLL or any Restricted
Subsidiary other than the property or assets securing the Indebtedness
being refinanced; and
(xxv) Liens on any property or assets of a Restricted
Subsidiary (other than the issuer or a Guarantor) securing Indebtedness of
such Restricted Subsidiary permitted under Section 4.03.
"person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"preferred stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such person's preferred or preference
equity, whether outstanding on the Closing Date or issued thereafter,
including, without limitation, all series and classes of such preferred or
preference equity.
"principal" of a debt security, including the Notes, means the
principal amount due on the Stated Maturity as shown on such debt security.
"Private Placement Legend" means the legend initially set forth on
the Notes in the form set forth in Section 2.02.
"Purchase Money Indebtedness" means Indebtedness Incurred to finance,
refinance or refund the cost (including the cost of improvement,
construction or repair) of property or assets; provided that (i) such
Indebtedness is Incurred prior to, at the time of or within six months
after the later of the acquisition, the completion of construction,
improvement or repair or the commencement of full operation of such
property or assets and (ii) the principal amount of such Indebtedness does
not exceed 100% of the cost of such property or assets.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the price at which such Note is to be redeemed pursuant to this
Indenture.
"Registrar" has the meaning provided in Section 2.04.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated July 19, 2000, between the Company, each of the
Guarantors, Morgan Stanley & Co. International Limited, Bank of America
International Limited, BMO Nesbitt Burns Corp. and Chase Manhattan
International Limited and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the June 1 or December 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificated Notes" has the meaning provided in Section
2.01.
"Regulation S Global" has the meaning provided in Section 2.01.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant vice president, any assistant treasurer,
any trust officer, any assistant trust officer or any other officer of the
Trustee in its corporate trust department customarily performing functions
similar to those performed by any of the above-designated officers and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of
and familiarity with the particular subject.
"Restricted Global" has the meaning provided in Section 2.01.
"Restricted Payment" has the meaning provided in Section 4.04.
"Restricted Subsidiary" means any Guarantor other than JLL and each
other Subsidiary of JLL other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Group, a division of The
McGraw-Hill Companies, and its successors.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after
the execution of this instrument such SEC is not existing and performing
the duties now assigned to it under the TIA, then the body performing such
duties at such time.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.04.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means, at any date of determination, the
Company, any Guarantor other than JLL and any Restricted Subsidiary that,
together with its Subsidiaries, (i) for the most recent fiscal year of JLL,
accounted for more than 10% of the consolidated revenues of JLL and its
Restricted Subsidiaries or (ii) as of the end of such fiscal year, was the
owner of more than 10% of the consolidated assets of JLL and its Restricted
Subsidiaries, all as set forth on the most recently available consolidated
financial statements of JLL for such fiscal year.
"Stated Maturity" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of or interest
on any debt security, the date specified in such debt security as the fixed
date on which such installment is due and payable.
"Subsidiary" means, with respect to any person, any corporation,
association or other business entity of which more than 50% of the voting
power of the outstanding Voting Stock is owned, directly or indirectly, by
such person and one or more other Subsidiaries of such person.
"Subsidiary Guarantee" has the meaning provided in Section 4.07.
"Taxes" has the meaning provided in Section 4.20.
"Taxing Authority" has the meaning provided in Section 4.20.
"Temporary Cash Investment" means any of the following:
(i) direct obligations of the United States of America or any
agency or instrumentality thereof or obligations fully and unconditionally
guaranteed by the United States of America or any agency or instrumentality
thereof maturing within one year, provided that obligations purchased in
connection with a defeasance of the Notes as provided under Section 8.02 or
8.03 may have maturities of longer than one year;
(ii) time deposit accounts, certificates of deposit and money
market deposits maturing within one year of the date of acquisition thereof
issued by a bank or trust company, and which bank or trust company has
capital, surplus and undivided profits aggregating not less than $50
million (or the foreign currency equivalent thereof) and has outstanding
debt which is rated "A" (or such similar equivalent rating) or higher by at
least one nationally recognized statistical rating organization (as defined
in Rule 436 under the Securities Act) or any money-market fund sponsored by
a registered broker dealer or mutual fund distributor;
(iii) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (i) above
entered into with a bank or trust company meeting the qualifications
described in clause (ii) above;
(iv) commercial paper, maturing not more than one year after
the date of acquisition, issued by a person (other than an Affiliate of
JLL) with a rating at the time as of which any investment therein is made
of "P-1" (or higher) according to Moody's or "A-1" (or higher) according to
S&P;
(v) securities with maturities of one year or less from the
date of acquisition issued or fully and unconditionally guaranteed by any
state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by S&P or Moody's;
(vi) Government Obligations;
(vii) demand deposit accounts maintained in the ordinary course
of business; and
(viii) 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 (i), (ii), (iv) and (vi) above.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date this
Indenture was executed, except as provided in Section 9.06.
"Trade Payables" means, with respect to any person, any accounts
payable or any other indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such person or any of its Subsidiaries
arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by JLL or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment,
the date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first paragraph of
this Indenture until a successor replaces it in accordance with the
provisions of Article Seven of this Indenture and thereafter means such
successor.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy
law.
"Unrestricted Subsidiary" means (i) any Subsidiary of JLL that at the
time of determination shall be designated an Unrestricted Subsidiary by the
Board of Directors in the manner provided below; and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any
Restricted Subsidiary (including any newly acquired or newly formed
Subsidiary of JLL), other than the Company or any Guarantor, to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of,
or owns or holds any Lien on any property of, JLL or any Restricted
Subsidiary; provided that (A) any Guarantee by JLL or any Restricted
Subsidiary of any Indebtedness of the Subsidiary being so designated shall
be deemed an "Incurrence" of such Indebtedness and an "Investment" by JLL
or such Restricted Subsidiary (or both, if applicable) at the time of such
designation; (B) either (I) the Subsidiary to be so designated has total
assets of $1,000 or less or (II) if such Subsidiary has assets greater than
$1,000, such designation would be permitted under Section 4.04 and (C) if
applicable, the Incurrence of Indebtedness and the Investment referred to
in clause (A) of this proviso would be permitted under Section 4.03 and
Section 4.04. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that (i) no Default or
Event of Default shall have occurred and be continuing at the time of or
after giving effect to such designation and (ii) all Liens and Indebtedness
of such Unrestricted Subsidiary outstanding immediately after such
designation would, if Incurred at such time, have been permitted to be
Incurred (and shall be deemed to have been Incurred) for all purposes of
this Indenture. Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Certificated Notes" has the meaning provided in Section 2.01.
"U.S. Notes" has the meaning provided in Section 2.01.
"U.S. Paying Agent" means The Bank of New York and any successor U.S.
Paying Agent.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the Company
thereof at any time prior to the Stated Maturity of the Notes, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
interest on or principal of the U.S. Government Obligation evidenced by
such depository receipt.
"Voting Stock" means with respect to any person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
person.
"Wholly Owned" means, with respect to any Subsidiary of any person,
the ownership of all of the outstanding Capital Stock of such Subsidiary
(other than any director's qualifying shares or Capital Stock held by
foreign nationals or employees to the extent required by applicable law in
order to conduct business as conducted at the time of issuance of such
shares ) by such person or one or more Wholly Owned Subsidiaries of such
person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by a rule of
the SEC and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all ratios and computations based on GAAP contained in
this Indenture shall be computed in accordance with the definition of GAAP
set forth in Section 1.01; and
(viii) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating. The Notes and the Trustee's
certificate of authentication shall be substantially in the form annexed
hereto as Exhibit A, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture. The Notes may have notations, legends or endorsements required
by law, stock exchange agreements to which the Company or any Guarantor is
subject or usage. The Company shall approve the form of the Notes and any
notation, legend or endorsement on the Notes. Each Note shall be dated the
date of its authentication.
The terms and provisions contained in the form of the Notes annexed
hereto as Exhibit A shall constitute, and are hereby expressly made, a part
of this Indenture. To the extent applicable, the Company, each Guarantor
and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of two permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "Restricted
Globals"). The Restricted Global initially offered and sold in reliance on
Rule 144A to holders electing settlement through DTC (the "DTC Rule 144A
Global"), shall be deposited on behalf of the holders of the Notes
represented thereby with the Trustee, at its New York office, as custodian
for DTC, and registered in the name of Cede & Co., as nominee of DTC, duly
executed by the Company and authenticated by the Trustee as provided
herein. The Restricted Global initially offered and sold in reliance on
Rule 144A to holders electing settlement through Euroclear or Clearstream
(the "European 144A Global") shall be deposited on behalf of the holders of
the Notes represented thereby with the Common Depositary, as common
depositary for Euroclear and Clearstream, and registered in the name of the
Common Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee as provided herein, for credit to the accounts
of Euroclear and Clearstream (or such other accounts as they may direct).
The DTC Rule 144A Global, the European Rule 144A Global and all other Notes
evidencing the debt, or any portion of the debt, initially evidenced by
such Rule 144A Global or European Rule 144A Global, shall collectively be
referred to herein as the "U.S. Notes." The aggregate principal amount of
the DTC Rule 144A Global may from time to time be increased or decreased by
adjustments made on the records of the Registrar as hereinafter provided
(or by the issue of a further DTC Rule 144A Global), in connection with a
corresponding decrease or increase in the aggregate principal amount of the
European Rule 144A Global or the Regulation S Global or in consequence of
the issue of Certificated Notes or additional U.S. Notes, as hereinafter
provided. The aggregate principal amount of the European Rule 144A Global
may from time to time be increased or decreased by adjustments made on the
records of the Registrar as hereinafter provided (or by the issue of a
further European Rule 144A Global), in connection with a corresponding
decrease or increase in the aggregate principal amount of any of the DTC
Rule 144A Global or the Regulation S Global or in consequence of the issue
of Certificated Notes or additional U.S. Notes as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a temporary global
Note in registered form substantially in the form set forth in Exhibit A
(the "Temporary Regulation S Global") registered in the name of a nominee
of the Common Depositary for the accounts of Euroclear and Clearstream,
deposited on behalf of the purchasers of the Notes represented thereby with
the Common Depositary, duly executed by the Company and authenticated by
the Trustee as hereinafter provided. At any time following September 4,
2000, upon receipt by the Trustee and the Company of a certificate
substantially in the form of Exhibit B hereto, one or more permanent global
Notes in registered form substantially in the form set forth in Exhibit A
(the "Permanent Regulation S Global" and, together with the Temporary
Regulation S Global, the "Regulation S Global") duly executed by the
Company and authenticated by the Trustee as hereinafter provided shall be
deposited with the Common Depositary which shall reflect on its books and
records the date and a decrease in the principal amount of the Temporary
Regulation S Global in an amount equal to the principal amount of the
beneficial interest in the Temporary Regulation S Global transferred. The
aggregate principal amount of a Regulation S Global may from time to time
be increased or decreased by adjustments made in the records of the
Trustee, as custodian for the Depositary or its nominee, as herein
provided.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" of Euroclear and "The
General Terms and Conditions of Clearstream" and "Customer Handbook" of
Clearstream shall be applicable to interests in the Global Notes that are
held by Agent Members through Euroclear and Clearstream.
Notes which are transferred to Institutional Accredited Investors
which are not QIBs (excluding Non-U.S. Persons) shall be issued in the form
of permanent certificated Notes in registered form in substantially the
form set forth in Exhibit A (the "U.S. Certificated Notes"). Notes issued
pursuant to Section 2.07 in exchange for interests in the Regulation S
Global shall be in the form of certificated Notes in registered form
substantially in the form set forth in Exhibit A (the "Regulation S
Certificated Notes"). Notes issued pursuant to Section 2.07 in exchange
for interests in a Restricted Global shall be in the form of the U.S.
Certificated Note.
The Regulation S Certificated Notes and the U.S. Certificated Notes
are sometimes collectively referred to herein as the "Certificated Notes."
The DTC Rule 144A Global, the European Rule 144A Global and the Regulation
S Global are sometimes collectively herein referred to as the "Global
Notes."
The definitive Notes shall be typed, printed, lithographed or
engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on
which the Notes may be listed, all as determined by the Officers executing
such Notes, as evidenced by their execution of such Notes.
SECTION 2.02. Restrictive Legends. (a) Note Legends. Unless and
until a Note is exchanged for an Exchange Note or sold in connection with
an effective Registration Statement pursuant to the Registration Rights
Agreement, (i) each Restricted Global and U.S. Certificated Note shall bear
the legend set forth below on the face thereof and (ii) each Temporary
Regulation S Global and each Regulation S Certificated Note shall bear the
legend set forth below on the face thereof until at least after the 40th
day after the Closing Date and receipt by the Company and the Trustee of a
certificate substantially in the form of Exhibit B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT
WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH TRANSFER IS
IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Restricted Global Note Legend. The DTC Rule 144A Global,
whether or not an Exchange Note, shall also bear the following legend on
the face thereof:
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.08 OF THE INDENTURE.
(c) Regulation S Global Note Legend. Each European 144A Global and
Regulation S Global, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.08 OF THE INDENTURE, (2) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07 OF
THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE DELIVERED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
SECTION 2.03. Execution, Authentication and Denominations. Subject
to Article Four and applicable law, the aggregate principal amount of Notes
which may be authenticated and delivered under this Indenture is unlimited.
The Notes shall be executed by an Officer of the Company. The signature of
such Officer on the Notes may be by facsimile or manual signature in the
name and on behalf of the Company.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee or authenticating agent authenticates the
Note, the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
At any time and from time to time after the execution of this
Indenture, the Trustee or an authenticating agent shall, upon receipt of a
Company Order, authenticate for original issue Notes in the aggregate
principal amount specified in such Company Order; provided that the Trustee
shall be entitled to receive an Officers' Certificate and an Opinion of
Counsel of the Company in connection with such authentication of Notes.
Such Company Order shall specify the amount of Notes to be authenticated
and the date on which the original issue of Notes is to be authenticated
and, in case of an issuance of Notes pursuant to Section 2.15, shall
certify that such issuance is in compliance with Article Four.
The Trustee may appoint an authenticating agent to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such authenticating agent. An
authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
The Notes shall be issuable only in registered form without coupons
and only in denominations of _1,000 in principal amount and any integral
multiple thereof.
SECTION 2.04. Registrar and Paying Agent. The Company shall
maintain an office or agency in The City of New York and, for so long as
the Notes are listed on the Luxembourg Stock Exchange, in Luxembourg where
Notes may be presented for registration of transfer or for exchange
(collectively, the "Registrar"), an office or agency in The City of New
York, in the City of London, United Kingdom and, for so long as the Notes
are listed on the Luxembourg Stock Exchange, in Luxembourg where Notes may
be presented for payment (the "Paying Agent") and an office or agency where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served, which shall be in the Borough of Manhattan, The
City of New York and, for so long as the Notes are listed on the Luxembourg
Stock Exchange, in Luxembourg. The Company shall cause the Registrar to
keep a register of the Notes and of their transfer and exchange (the
"Security Register"). The Security Register shall be in written form or
any other form capable of being converted into written form within a
reasonable time. The Company may have one or more co-Registrars and one or
more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of any
such Agent and any change in the address of such Agent. If the Company
fails to maintain a Registrar, Paying Agent and/or agent for service of
notices and demands, the Trustee shall act as such Registrar, Paying Agent
and/or agent for service of notices and demands. The Company may remove
any Agent upon written notice to such Agent and the Trustee; provided that
no such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an
appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that
the Trustee shall serve as such Agent until the appointment of a successor
Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as
Paying Agent, Registrar, co-Registrar, and/or agent for service of notice
and demands.
The Company initially appoints the Trustee as Registrar, Paying
Agent, authenticating agent and agent for service of notice and demands.
The Company will initially appoint Kredietbank S.A. Luxembourgeoise as
Registrar, Paying Agent and agent for service of notice and demands in
Luxembourg. The Company initially appoints the Euro Paying Agent as Paying
Agent with respect to the European 144A Global and Regulation S Global.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee as
of each Regular Record Date and at such other times as the Trustee may
reasonably request the names and addresses of Holders as they appear in the
Security Register, including the aggregate principal amount of Notes held
by each Holder.
SECTION 2.05. Paying Agent to Hold Money in Trust. Not later than
11:00 a.m. (New York City time), 10:00 a.m. (London time) or 10:00 a.m.
(Luxembourg time), as applicable, on each due date of the principal,
premium, if any, and interest on any Notes, the Company shall deposit with
the Paying Agents money in immediately available funds sufficient to pay
such principal, premium, if any, and interest so becoming due. The Company
shall require each Paying Agent other than the Trustee to agree in writing
that such Paying Agent shall hold in trust for the benefit of the Holders
or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, and interest on the Notes (whether such
money has been paid to it by the Company or any other obligor on the
Notes), and such Paying Agent shall promptly notify the Trustee of any
default by the Company (or any other obligor on the Notes) in making any
such payment. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and account for any funds disbursed,
and the Trustee may at any time during the continuance of any payment
default, upon written request to a Paying Agent, require such Paying Agent
to pay all money held by it to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent shall have no further liability
for the money so paid over to the Trustee. If the Company or any
Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it shall, on or before each due date of any principal of, premium,
if any, or interest on the Notes, segregate and hold in a separate trust
fund for the benefit of the Holders a sum of money sufficient to pay such
principal, premium, if any, or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in
this Indenture, and shall promptly notify the Trustee of its action or
failure to act.
SECTION 2.06. Transfer and Exchange. The Notes are issuable only in
registered form. A Holder may transfer a Note only by written application
to the Registrar stating the name of the proposed transferee and otherwise
complying with the terms of this Indenture. No such transfer shall be
effected until, and such transferee shall succeed to the rights of a Holder
only upon, final acceptance and registration of the transfer by the
Registrar in the Security Register. Prior to the registration of any
transfer by a Holder as provided herein, the Company, the Trustee and any
agent of the Company shall treat the person in whose name the Note is
registered as the owner thereof for all purposes whether or not the Note
shall be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary. Furthermore, any Holder of a
Global Note shall, by acceptance of such Global Note, agree that transfers
of beneficial interests in such Global Note may be effected only through a
book entry system maintained by the Holder of such Global Note (or its
agent) and that ownership of a beneficial interest in the Note shall be
required to be reflected in a book entry. When Notes are presented to the
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations (including an exchange of Notes for Exchange Notes), the
Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met (including that such Notes
are duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Trustee and Registrar duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of
the Holder); provided that no exchanges of Notes for Exchange Notes shall
occur until a Registration Statement shall have been declared effective by
the SEC and that any Notes that are exchanged for Exchange Notes shall be
canceled by the Trustee. To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Notes at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange or redemption of the Notes, but the
Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than
any such transfer taxes or other similar governmental charge payable upon
exchanges pursuant to Section 2.11, 3.08 or 9.04).
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
of Notes selected for redemption under Section 3.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of
or exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among Agent
Members or beneficial owners of interests in any Global Note) other than to
require delivery of such certificates and other documentation or evidence
as are expressly required by, and to do so if and when expressly required
by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.07. Book-Entry Provisions for Global Notes. (a) Each
Restricted Global and Regulation S Global initially shall (i) be
registered in the name of the Depositary for such Global Note or the
nominee of such Depositary, (ii) be delivered to the Trustee or the Common
Depositary, as applicable, as custodian for such Depositary and (iii) bear
legends as set forth in Section 2.02.
Members of, or Participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note
held on their behalf by the Depositary, or the Trustee or the Common
Depositary as its custodian, as applicable, or under such Global Note, and
the Depositary may be treated by the Company, the Trustee, any Agent or any
other agent of the Company as the absolute owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee, any Agent or any other agent of the
Company from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of
such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees, or transfers between the
Depositary for the DTC Rule 144A Global and the Depositary for the European
144A Global and Regulation S Global. Transfers of interests in one Global
Note to parties who will hold the interests through the same Global Note
will be effected in the ordinary way in accordance with the respective
rules and operating procedures of DTC, Euroclear or Clearstream, as the
case may be, and the provisions of Section 2.08 hereof. In addition, U.S.
Certificated Notes or Regulation S Certificated Notes shall be transferred
to all beneficial owners in exchange for their beneficial interests in a
Restricted Global or a Regulation S Global, respectively, if (i) the
Depositary with respect to such Global Notes notifies the Company that it
is unwilling or unable to continue as Depositary for the Restricted Global
or the Regulation S Global, as the case may be, and a successor Depositary
is not appointed by the Company within 120 days of such notice, (ii) the
Depositary with respect to such Global Notes so requests following an Event
of Default under this Indenture or (iii) the owner of a beneficial interest
in the Global Notes requests such exchange in writing delivered through the
Depositary or the Company following an Event of Default under this
Indenture.
(c) Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in
another Global Note will, upon transfer, cease to be an interest in such
Global Note and become an interest in such other Global Note and,
accordingly, will thereafter be subject to all transfer restrictions, if
any, and other procedures applicable to beneficial interests in such other
Global Note for as long as it remains such an interest.
(d) In connection with any transfer pursuant to paragraph (b) of
this Section 2.07 of a portion of the beneficial interests in a Restricted
Global or Regulation S Global to beneficial owners who are required to hold
Certificated Notes, the Registrar shall reflect on its books and records
the date and a decrease in the principal amount of such Restricted Global
or Regulation S Global in an amount equal to the principal amount of the
beneficial interest in such Restricted Global or Regulation S Global to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Certificated Notes or Regulation
S Certificated Notes, as the case may be, of like tenor and amount.
(e) In connection with the transfer of all the beneficial interests
in a Restricted Global or Regulation S Global to beneficial owners pursuant
to paragraph (b) of this Section 2.07, the Restricted Global or Regulation
S Global, as the case may be, shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in the Restricted Global
or Regulation S Global, as the case may be, an equal aggregate principal
amount of U.S. Certificated Notes or Regulation S Certificated Notes, as
the case may be, of authorized denominations.
(f) Any U.S. Certificated Note delivered in exchange for an
interest in a Restricted Global pursuant to paragraph (b), (d) or (e) of
this Section 2.07 shall, except as otherwise provided by paragraph (d) or
(f)(i)(x) of Section 2.08 hereof, bear the legend regarding transfer
restrictions applicable to the U.S. Certificated Note set forth in Section
2.02.
(g) Any Regulation S Certificated Note delivered in exchange for an
interest in a Regulation S Global pursuant to paragraph (b), (d) or (e) of
this Section 2.07 shall, except as otherwise provided by paragraph (d) or
(f)(i)(x) of Section 2.08 hereof, bear the legend regarding transfer
restrictions applicable to the Regulation S Certificated Note set forth in
Section 2.02 hereof.
(h) The registered holder of a Global Note may grant proxies and
otherwise authorize any person, including Agent Members and persons that
may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
(i) QIBs that are beneficial owners of interests in a Global Note
may receive Certificated Notes (which shall bear the Private Placement
Legend if required by Section 2.02) in accordance with the procedures of
the relevant Depositary. In connection with the execution, authentication
and delivery of such Certificated Notes, the Registrar shall reflect on its
books and records a decrease in the principal amount of the relevant Global
Note equal to the principal amount of such Certificated Notes and the
Company shall execute and the Trustee shall authenticate and deliver one or
more Certificated Notes having an equal aggregate principal amount.
(j) All Notes issued upon any transfer or exchange of Notes shall
be valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Notes surrendered upon
such transfer or exchange.
SECTION 2.08. Special Transfer Provisions. Unless and until a Note
is exchanged for an Exchange Note or sold in connection with an effective
Registration Statement pursuant to the Registration Rights Agreement, the
following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Certificated
Note or an interest in a Restricted Global to a QIB (excluding Non-U.S.
Persons):
(i) If the Note to be transferred consists of (x) U.S.
Certificated Notes, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to which
it exercises sole investment discretion and that it and any such account is
a QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company and the Guarantors as it
has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A or (y) an interest in a Restricted Global, the
transfer of such interest may be effected only through the book-entry
system maintained by the relevant Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Note to be transferred consists of U.S. Certificated Notes, upon receipt by
the Registrar of the documents referred to in clause (i) and instructions
given in accordance with the relevant Depositary's and the Registrar's
procedures, the Registrar shall reflect on its books and records the date
and an increase in the principal amount of the relevant Restricted Global
in an amount equal to the principal amount of the U.S. Certificated Notes
to be transferred, and the Trustee shall cancel the Certificated Note so
transferred.
(b) Transfers of Interests in Regulation S Global or Regulation S
Certificated Notes to U.S. Persons. The following provisions shall apply
with respect to any transfer of interests in a Regulation S Global or
Regulation S Certificated Notes to U.S. Persons:
(i) prior to the removal of the Private Placement Legend from
a Regulation S Global or a Regulation S Certificated Note pursuant to
Section 2.02, the Registrar shall register any proposed transfer only upon
receipt of a certificate in the form of Exhibit E from the proposed
transferor stating that such transferor reasonably believes that the person
acquiring such interest is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction; and
(ii) after such removal, the Registrar shall register the
transfer of any such Note without requiring any additional certification.
(c) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of a Note to a Non-U.S.
Person:
(i) The Registrar shall register any proposed transfer to any
Non-U.S. Person if the Note to be transferred is a U.S. Certificated Note
or an interest in a Restricted Global only upon receipt of a certificate
substantially in the form of Exhibit D from the proposed transferor.
(ii) (a) If the proposed transferor is an Agent Member holding
a beneficial interest in a Restricted Global, upon receipt by the Registrar
of (x) the documents required by paragraph (i) and (y) instructions in
accordance with the relevant Depositary's and the Registrar's procedures,
the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of such Restricted Global in an amount
equal to the principal amount of the beneficial interest in the Restricted
Global to be transferred, and (b) if the proposed transferee is an Agent
Member, upon receipt by the Registrar of instructions given in accordance
with the relevant Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of such Regulation S Global in an amount equal to
the principal amount of the U.S. Certificated Notes or the Restricted
Global, as the case may be, to be transferred, and the Trustee shall cancel
the Certificated Note, if any, so transferred or decrease the amount of the
relevant Restricted Global.
(d) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend,
the Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of
Notes bearing the Private Placement Legend, the Registrar shall deliver
only Notes that bear the Private Placement Legend unless either (i) the
Private Placement Legend is no longer required by Section 2.02 or (ii)
there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions
on transfer of such Note set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture. The Registrar shall not register a transfer of
any Note unless such transfer complies with the restrictions on transfer of
such Note set forth in this Indenture. The Registrar shall not be required
to determine (but may rely on a determination made by the Company with
respect to) the sufficiency of any such certifications, legal opinions or
other information.
(f) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note,
whether or not such Note bears the Private Placement Legend, if (x) the
requested transfer is after the time period referred to in Rule 144(k)
under the Securities Act as in effect with respect to such transfer or (y)
the proposed transferee has delivered to the Registrar (A) a certificate
substantially in the form of Exhibit C hereto and (B) if the aggregate
principal amount of the Notes being transferred is less than $100,000 at
the time of such transfer, an Opinion of Counsel acceptable to the Company
that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in a Restricted Global, upon receipt by the Registrar
and the Company of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the relevant Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such Restricted
Global in an amount equal to the principal amount of the beneficial
interest in the Restricted Global to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more U.S.
Certificated Notes of like tenor and amount.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section
2.08. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Notes. If a mutilated Note is surrendered
to the Trustee or if the Holder claims that the Note has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall issue and the Trustee shall authenticate a
replacement Note of like tenor and principal amount and bearing a number
not contemporaneously outstanding; provided that the requirements of this
Section 2.09 are met. If required by the Trustee or the Company, an
indemnity bond must be furnished that is sufficient in the judgment of both
the Trustee and the Company to protect the Company, the Trustee or any
Agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge such Holder for its expenses and the expenses of the
Trustee in replacing a Note. In case any such mutilated, lost, destroyed
or wrongfully taken Note has become or is about to become due and payable,
the Company in its discretion may pay such Note instead of issuing a new
Note in replacement thereof.
Every replacement Note is an additional obligation of the Company and
shall be entitled to the benefits of this Indenture.
SECTION 2.10. Outstanding Notes. Notes outstanding at any time are
all Notes that have been authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described
in this Section 2.10 as not outstanding.
If a Note is replaced pursuant to Section 2.09, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a bona fide
purchaser.
If the Paying Agent (other than the Company or an Affiliate of the
Company) holds on the maturity date money sufficient to pay Notes payable
on that date, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue.
A Note does not cease to be outstanding because the Company or one of
its Affiliates holds such Note, provided, however, that in determining
whether the Holders of the requisite principal amount of the outstanding
Notes have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes owned by the Company or any other
obligor upon the Notes or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver,
only Notes which the Trustee has actual knowledge to be so owned shall be
so disregarded. Notes so owned which have been pledged in good faith may
be regarded as outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Notes and
that the pledgee is not the Company or any other obligor upon the Notes or
any Affiliate of the Company or of such other obligor.
SECTION 2.11. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in
the form of definitive Notes but may have insertions, substitutions,
omissions and other variations determined to be appropriate by the Officers
executing the temporary Notes, as evidenced by their execution of such
temporary Notes. If temporary Notes are issued, the Company shall cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable
for definitive Notes upon surrender of the temporary Notes at the office or
agency of the Company designated for such purpose pursuant to Section 4.02,
without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Notes the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes shall be entitled to the same benefits under this Indenture
as definitive Notes.
SECTION 2.12. Cancellation. The Company at any time may deliver to
the Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Notes
previously authenticated hereunder which the Company has not issued and
sold. The Registrar and the Paying Agent shall forward to the Trustee any
Notes surrendered to them for transfer, exchange or payment. The Trustee
shall cancel all Notes surrendered for transfer, exchange, payment or
cancellation and shall dispose of them in accordance with its normal
procedure.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Notes may
use "CUSIP", "CINS" or "ISIN" numbers (if then generally in use), and the
Company and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case
may be, in notices of redemption or exchange as a convenience to Holders;
provided that any such notice shall state that no representation is made as
to the correctness of such numbers either as printed on the Notes or as
contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee of any change in "CUSIP", "CINS"
or "ISIN" numbers for the Notes.
SECTION 2.14. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with
respect to the payment of any defaulted interest, shall mean the 15th day
next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder and to the Trustee a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest to be
paid.
SECTION 2.15. Issuance of Additional Notes. The Company may,
subject to Article Four of this Indenture and applicable law, issue
additional Notes under this Indenture. The Notes issued on the Closing
Date and any additional Notes subsequently issued shall be treated as a
single class for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption.
(a) The Notes will be redeemable, at the Company's option, in whole
or in part, at any time or from time to time, on or after June 15, 2004 and
prior to maturity, upon not less than 30 nor more than 60 days' prior
notice mailed by first class mail to each Holder's last address as it
appears in the Security Register, at the following Redemption Prices
(expressed in percentages of principal amount), plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the rights of holders
of record on the relevant Regular Record Date that is on or prior to the
Redemption Date to receive interest due on the relevant Interest Payment
Date), if redeemed during the 12-month period commencing June 15 of the
years set forth below:
Year Redemption Price
---- ----------------
2004 104.500%
2005 102.250%
2006 and thereafter 100.000%
(b) In addition, at any time prior to June 15, 2003, the Company
may redeem up to 35% of the principal amount of the Notes (including
additional Notes, if any) with the Net Cash Proceeds of one or more sales
of Capital Stock (other than Disqualified Stock) of JLL to a person other
than JLL or any of its Subsidiaries, at any time or from time to time in
part, at a Redemption Price (expressed as a percentage of principal amount)
of 109.00%, plus accrued and unpaid interest to the Redemption Date
(subject to the rights of holders of record on the relevant Regular Record
Date that is on or prior to the Redemption Date to receive interest due on
the relevant Interest Payment Date); provided that at least 65% of the
aggregate principal amount of Notes (including additional Notes, if any)
originally issued remains outstanding after each such redemption and notice
of any such redemption is mailed within 90 days of each such sale of
Capital Stock.
(c) In the event that (i) as a result of any change in, or
amendments to, any laws or treaties (or any regulations or rulings
promulgated under any laws or treaties) or any change in official position
regarding the application of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent
jurisdiction), which change, amendment, application or interpretation
becomes effective after the Closing Date, the Company has become or would
become obligated to pay, on or prior to the next date on which any amount
would be payable under or with respect to the Notes, any Additional
Amounts, and (ii) the Company cannot reasonably arrange (without other
material adverse consequences to the Company or JLL) for another obligor to
make such payment so as to avoid the requirement to pay such Additional
Amounts, the Company may redeem all, but not less than all, the Notes at
any time at 100% of the principal amount thereof, together with accrued
interest thereon, if any, to the Redemption Date (subject to the rights of
holders of record on the relevant Regular Record Date that is on or prior
to the Redemption Date to receive interest due on the relevant Interest
Payment Date).
(d) The Notes will be redeemable at any time, at the option of the
Company, in whole or from time to time in part, upon not less than 30 nor
more than 60 days' prior notice, on any date prior to their maturity at a
Redemption Price equal to the sum of 100% of the principal amount thereof
and the Applicable Premium and any accrued and unpaid interest, to the
Redemption Date (subject to the rights of holders of record on the relevant
Regular Record Date that is on or prior to the Redemption Date to receive
interest due on the relevant Interest Payment Date).
"Applicable Premium" means, with respect to a Note on any Redemption
Date, the greater of:
(a) 1.0% of the principal amount of such Note; and
(b) the excess of:
(x) the present value at such Redemption Date of the
Redemption Price of such Note at June 15, 2004, plus all required interest
payments that would otherwise be due to be paid on such Note during the
period between the Redemption Date and June 15, 2004 excluding accrued but
unpaid interest, computed using a discount rate equal to the Bund Rate, at
such Redemption Date, plus 75 basis points, over
(y) the principal amount of the Note (or portion thereof)
being redeemed.
"Bund Rate" means the yield to maturity as of the Redemption Date of
direct obligations of the Republic of Germany (Bunds or Bundesanleihen)
with a fixed maturity most nearly equal to the period from such Redemption
Date to June 15, 2004; provided that if there are no such obligations the
rate determined by linear interpolation between the rates borne by the two
direct obligations of the Republic of Germany maturing closest to, but
straddling such date; and provided further that if the period from the
Redemption Date to June 15, 2004 is less than one year, the weekly average
yield on actually traded direct obligations of the Republic of Germany
adjusted to a constant maturity of one year.
The Applicable Premium will be calculated by an independent
investment banking institution of national standing appointed by the
Company; provided that if the Company fails to make the appointment at
least 45 Business Days prior to the Redemption Date or if the institution
so appointed is unwilling or unable to make the calculation, the
calculation will be made by Morgan Stanley & Co. Incorporated or, if such
firm is unwilling or unable to make the calculation, by an independent
investment banking institution of national standing appointed by the
Trustee.
If the Bund Rate is not available as described above, then the Bund
Rate will be calculated by interpolation of comparable rates selected by
the independent investment banking institution.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem
Notes pursuant to Section 3.01, it shall notify the Trustee in writing of
the Redemption Date and the principal amount of Notes to be redeemed and
the provision of the Note pursuant to which redemption shall occur.
The Company shall give each notice provided for in this Section 3.02
in an Officers' Certificate at least 45 days before the Redemption Date
(unless a shorter period shall be satisfactory to the Trustee).
SECTION 3.03. Selection of Notes to Be Redeemed. If less than all
of the Notes are to be redeemed at any time, the Trustee shall select the
Notes to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if
the Notes are not listed on a national securities exchange or automated
quotation system, by lot or by such other method as the Trustee in its sole
discretion shall deem fair and appropriate; provided that no Note of _1,000
in principal amount or less shall be redeemed in part.
The Trustee shall make the selection from the Notes outstanding and
not previously called for redemption. Notes in denominations of _1,000 in
principal amount may only be redeemed in whole. The Trustee may select for
redemption portions (equal to _1,000 in principal amount or any integral
multiple thereof) of Notes that have denominations larger than _1,000 in
principal amount. Provisions of this Indenture that apply to Notes called
for redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company and the Registrar promptly in writing of
the Notes or portions of Notes to be called for redemption.
SECTION 3.04. Notice of Redemption. With respect to any redemption
of Notes pursuant to Section 3.01, at least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail to each Holder whose Notes are to be
redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the Redemption Price plus accrued interest
to the Redemption Date upon surrender of the Notes to the Paying Agent;
(vi) that, if any Note is being redeemed in part, the portion
of the principal amount (equal to _1,000 in principal amount or any
integral multiple thereof) of such Note to be redeemed and that, on and
after the Redemption Date, upon surrender of such Note, a new Note or Notes
in principal amount equal to the unredeemed portion thereof will be
reissued; and
(vii) that, if any Note contains a CUSIP, CINS or ISIN number
as provided in Section 2.13, no representation is being made as to the
correctness of the CUSIP, CINS or ISIN number either as printed on the
Notes or as contained in the notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Notes.
At the Company's request (which request may be revoked by the Company
at any time prior to the time at which the Trustee shall have given such
notice to the Holders), made in writing to the Trustee at least 15 days (or
such shorter period as shall be satisfactory to the Trustee) before the
date of the mailing of the notice of redemption, the Trustee shall give the
notice of redemption in the name and at the expense of the Company. If,
however, the Company gives such notice to the Holders, the Company shall
concurrently deliver to the Trustee an Officers' Certificate stating that
such notice has been given.
SECTION 3.05. Effect of Notice of Redemption. Once notice of
redemption is mailed, Notes called for redemption become due and payable on
the Redemption Date and at the Redemption Price. Upon surrender of any
Notes to the Paying Agent, such Notes shall be paid at the Redemption
Price, plus accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether
or not the Holder receives the notice. In any event, failure to give such
notice, or any defect therein, shall not affect the validity of the
proceedings for the redemption of Notes held by Holders to whom such notice
was properly given.
SECTION 3.06. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Paying Agent (or, if
the Company is acting as its own Paying Agent, shall segregate and hold in
trust as provided in Section 2.05) money sufficient to pay the Redemption
Price of and accrued interest on all Notes to be redeemed on that date
other than Notes or portions thereof called for redemption on that date
that have been delivered by the Company to the Trustee for cancellation.
SECTION 3.07. Payment of Notes Called for Redemption. If notice of
redemption has been given in the manner provided above, the Notes or
portion of Notes specified in such notice to be redeemed shall become due
and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest to such Redemption Date, and on and after
such date (unless the Company shall default in the payment of such Notes at
the Redemption Price and accrued interest to the Redemption Date, in which
case the principal, until paid, shall bear interest from the Redemption
Date at the rate prescribed in the Notes), such Notes shall cease to accrue
interest. Upon surrender of any Note for redemption in accordance with a
notice of redemption, such Note shall be paid and redeemed by the Company
at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders registered as such at the close of business on the relevant Regular
Record Date.
SECTION 3.08. Notes Redeemed in Part. Upon surrender of any Note
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder without service charge, a new Note
equal in principal amount to the unredeemed portion of such surrendered
Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. The Company shall pay the principal
of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes and this Indenture. The Company shall pay all
such sums in the currency provided for in Section 11.17. An installment of
principal, premium, if any, or interest shall be considered paid on the
date due if the Trustee or Paying Agent (other than the Company, a
Subsidiary of the Company, or any Affiliate of any of them) holds on that
date money designated for and sufficient to pay the installment. If the
Company or any Subsidiary of the Company or any Affiliate of any of them
acts as Paying Agent, an installment of principal, premium, if any, or
interest shall be considered paid on the due date if the entity acting as
Paying Agent complies with the last sentence of Section 2.05. As provided
in Section 6.09, upon any bankruptcy or reorganization procedure relative
to the Company, the Trustee shall serve as the Paying Agent, if any, for
the Notes.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent
lawful, at the rate per annum specified in the Notes.
SECTION 4.02. Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, The City of New York and, in the
event the Notes are listed on the Luxembourg Stock Exchange, in Luxembourg,
an office or agency where Notes may be surrendered for registration of
transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Company shall give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served
at the address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York and, in the event the Notes are
listed on the Luxembourg Stock Exchange, in Luxembourg, for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the Corporate Trust Office of
the Trustee, located in the Borough of Manhattan, the City of New York, as
such office of the Company in accordance with Section 2.04. The Company
hereby designates the Euro Paying Agent as an office where the Regulation S
Global and European 144A Global may be surrendered for presentation for
payment.
SECTION 4.03. Limitation on Indebtedness. (a) JLL will not, and
will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (other than the Notes, the Note Guarantees and Indebtedness
existing on the Closing Date); provided that the Company or any Guarantor
may Incur Indebtedness if, after giving effect to the Incurrence of such
Indebtedness and the receipt and application of the proceeds therefrom, the
Interest Coverage Ratio would be greater than 3.0:1.
(b) Notwithstanding the foregoing, JLL and any Restricted
Subsidiary (except as specified below) may Incur each and all of the
following:
(i) Indebtedness of the Company or any Guarantor under
the Credit Agreement in an aggregate principal amount (together with
refinancings thereof) not to exceed $275 million, less any amount of such
Indebtedness permanently repaid as provided under Section 4.11;
(ii) Indebtedness owed to JLL evidenced by an
unsubordinated promissory note or to any Restricted Subsidiary; provided
that any event which results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any subsequent transfer of such Indebtedness
(other than to JLL, the Company or any Restricted Subsidiary) shall be
deemed, in each case, to constitute an Incurrence of such Indebtedness not
permitted by this clause (ii);
(iii)Indebtedness issued in exchange for, or the net
proceeds of which are used to refinance, replace, renew or refund then
outstanding Indebtedness (other than Indebtedness outstanding under clause
(ix) or (x)) and any refinancings thereof in an amount not to exceed the
amount so refinanced, replaced, renewed or refunded (plus premiums, accrued
interest, prepayment penalties, fees and expenses); provided that
Indebtedness the proceeds of which are used to refinance or refund the
Notes or Indebtedness that is ranked equally with, or subordinated in right
of payment to, the Notes or any Note Guarantee shall only be permitted
under this clause (iii) if (A) in case the Notes and any Note Guarantees
are refinanced in part or the Indebtedness to be refinanced is ranked
equally with the Notes or any Note Guarantee, such new Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant to which such
new Indebtedness is outstanding, is expressly made equal to, or subordinate
in right of payment to, the remaining Notes and Note Guarantees, (B) in
case the Indebtedness to be refinanced is subordinated in right of payment
to the Notes or any Note Guarantee,
such new Indebtedness, by its terms or by the terms of any agreement
or instrument pursuant to which such new Indebtedness is issued or remains
outstanding, is expressly made subordinate in right of payment to the Notes
and Note Guarantees at least to the extent that the Indebtedness to be
refinanced is subordinated to the Notes or such Note Guarantee and (C) such
new Indebtedness, determined as of the date of Incurrence of such new
Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced, replaced, renewed or refunded, and the
Average Life of such new Indebtedness is at least equal to the remaining
Average Life of the Indebtedness to be refinanced or refunded; and provided
further that in no event may Indebtedness of JLL or the Company be
refinanced by means of any Indebtedness of any Restricted Subsidiary that
is not a Guarantor pursuant to this clause (iii);
(iv) Indebtedness (A) in respect of performance, bid,
surety or appeal bonds and completion guarantees provided in the ordinary
course of business, (B) under Currency Agreements and Interest Rate
Agreements; provided that such agreements (a) are designed solely to
protect JLL or its Restricted Subsidiaries against fluctuations in foreign
currency exchange rates or interest rates and (b) do not increase the
Indebtedness of the obligor outstanding at any time other than as a result
of fluctuations in foreign currency exchange rates or interest rates or by
reason of fees, indemnities and compensation payable thereunder and
(C) arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from Guarantees or letters of
credit, surety bonds or performance bonds securing any obligations of JLL
or any of its Restricted Subsidiaries pursuant to such agreements, in any
case Incurred in connection with the disposition of any business, assets or
Subsidiary (other than Guarantees of Indebtedness Incurred by any person
acquiring all or any portion of such business, assets or Subsidiary for the
purpose of financing such acquisition), in a principal amount not to exceed
the gross proceeds actually received by JLL or any Restricted Subsidiary in
connection with such disposition;
(v) Indebtedness of JLL or any Restricted Subsidiary,
to the extent the net proceeds thereof are promptly (A) used to purchase
Notes tendered in an Offer to Purchase made as a result of a Change in
Control or (B) deposited to defease the Notes as described under Section
8.02 or 8.03;
(vi) Guarantees of the Notes and Guarantees of
Indebtedness of JLL or any Restricted Subsidiary by any Restricted
Subsidiary provided the Guarantee of such Indebtedness is permitted by and
made in accordance with Section 4.07;
(vii)any Guarantee by JLL of Indebtedness or other
obligations of any of its Restricted Subsidiaries so long as the incurrence
of such Indebtedness by such Restricted Subsidiary is not prohibited by the
terms of this Indenture;
(viii) the Incurrence by JLL and its Restricted
Subsidiaries of Indebtedness constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business,
including without limitation letters of credit in respect of workers'
compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance, or with
respect to an agreement to provide services, or other claims; provided that
upon the drawing of such letters of credit or Incurrence of such
Indebtedness, such obligations are reimbursed within 30 days following such
drawing or Incurrence;
(ix) Capitalized Lease Obligations or Purchase Money
Indebtedness in an aggregate principal amount outstanding not to exceed $20
million on any date of determination; and
(x) Indebtedness of JLL or any Restricted Subsidiary
(in addition to Indebtedness permitted under clauses (i) through (ix)
above) in an aggregate principal amount outstanding at any time (together
with refinancings thereof) not to exceed $40 million, less any amount of
such Indebtedness permanently repaid as provided under Section 4.11.
(c) Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that JLL or a Restricted Subsidiary may
Incur pursuant to this Section 4.03 shall not be deemed to be exceeded,
with respect to any outstanding Indebtedness due solely to the result of
fluctuations in the exchange rates of currencies.
(d) For purposes of determining any particular amount of
Indebtedness under this Section 4.03, (1) Indebtedness Incurred under the
Credit Agreement on or prior to the Closing Date shall be treated as
Incurred pursuant to clause (b)(i) of this Section 4.03, (2) Guarantees,
Liens or obligations with respect to letters of credit supporting
Indebtedness otherwise included in the determination of such particular
amount shall not be included and (3) any Liens granted pursuant to the
equal and ratable provisions referred to in Section 4.09 shall not be
treated as Indebtedness. For purposes of determining compliance with this
Section 4.03, in the event that an item of Indebtedness meets the criteria
of more than one of the types of Indebtedness described in the above
clauses, JLL, in its sole discretion, shall classify, and from time to time
may reclassify, such item of Indebtedness and only be required to include
the amount and type of such Indebtedness in one of such clauses. Accrual
of interest, accretion of accreted value and payment of interest in the
form of additional Indebtedness will not be deemed an Incurrence of
Indebtedness.
SECTION 4.04. Limitation on Restricted Payments. JLL will
not, and will not permit any Restricted Subsidiary to, directly or
indirectly, (i) declare or pay any dividend or make any distribution on or
with respect to its Capital Stock (other than (x) dividends or
distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire
shares of such Capital Stock and (y) pro rata dividends or distributions on
Capital Stock of Restricted Subsidiaries held by minority stockholders)
held by persons other than JLL or any of its Restricted Subsidiaries,
(ii) purchase, redeem, retire or otherwise acquire for value any shares of
Capital Stock of (A) JLL, the Company or any Guarantor (including options,
warrants or other rights to acquire such shares of Capital Stock) held by
any person other than the Company or any other Guarantor or (B) a
Restricted Subsidiary (other than a Guarantor) (including options, warrants
or other rights to acquire such shares of Capital Stock) held by any
Affiliate of JLL (other than a Wholly Owned Restricted Subsidiary) or any
holder of more than 5% of the Capital Stock of JLL, (iii) make any
voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance, or other acquisition or retirement for
value, of Indebtedness of any Guarantor that is subordinated in right of
payment to its Note Guarantee or Indebtedness of the Company that is
subordinate in right of payment to the Notes or (iv) make any Investment,
other than a Permitted Investment, in any person (such payments or any
other actions described in clauses (i) through (iv) above being
collectively "Restricted Payments") if, at the time of, and after giving
effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred
and be continuing,
(B) JLL could not Incur at least $1.00 of Indebtedness
under the first paragraph of Section 4.03 or
(C) the aggregate amount of all Restricted Payments
(the amount, if other than in cash, to be determined in good faith by the
Board of Directors, whose determination shall be conclusive and evidenced
by a Board Resolution) made after the Closing Date shall exceed the sum of:
(1) 50% of the aggregate amount of the Adjusted
Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a
loss, minus 100% of the amount of such loss) (determined by excluding
income resulting from transfers of assets by JLL or a Restricted Subsidiary
to an Unrestricted Subsidiary) accrued on a cumulative basis during the
period (taken as one accounting period) beginning on the first day of the
fiscal quarter immediately following the Closing Date and ending on the
last day of the last fiscal quarter preceding the Transaction Date for
which reports have been filed with the SEC or provided to the Trustee plus
(2) the aggregate Net Cash Proceeds received by
the Company or JLL after the Closing Date from a capital contribution or
the issuance and sale permitted by this Indenture of its Capital Stock
(other than Disqualified Stock) from or to a person other than JLL or any
Restricted Subsidiary, including an issuance or sale permitted by this
Indenture of Indebtedness or Disqualified Stock of JLL or the Company for
cash subsequent to the Closing Date upon the conversion of such
Indebtedness or Disqualified Stock into Capital Stock (other than
Disqualified Stock) of JLL or the Company, or from the issuance to a person
other than JLL or any Restricted Subsidiary of JLL of any options, warrants
or other rights to acquire Capital Stock of JLL or the Company (in each
case, exclusive of any Disqualified Stock or any options, warrants or other
rights that are redeemable at the option of the holder, or are required to
be redeemed, prior to the Stated Maturity of the Notes) plus
(3) an amount equal to the net reduction in
Investments (other than reductions in Permitted Investments) in any person
(including Investments in an Unrestricted Subsidiary) resulting from
payments of interest on Indebtedness, dividends, repayments of loans or
advances, or other transfers of assets, in each case to JLL, the Company or
any Restricted Subsidiary or from the net cash proceeds from the sale of
any such Investment, or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (other than redesignations of Unrestricted
Subsidiaries holding Co-Investments to the extent that any such
redesignation is used to increase Permitted Investments pursuant to clause
(vii)(3)(b) of the definition of "Permitted Investment" (valued in each
case as provided in the definition of "Investment")).
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after
the date of declaration thereof if, at said date of declaration, such
payment would comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is subordinated in
right of payment to any Note Guarantee or the Notes including premium, if
any, and accrued and unpaid interest thereon, with the proceeds of, or in
exchange for, Indebtedness Incurred under clause (b)(iii) of Section 4.03;
(iii) the repurchase, redemption or other
acquisition of Capital Stock of any Guarantor, the Company or an
Unrestricted Subsidiary (or options, warrants or other rights to acquire
such Capital Stock) in exchange for, or out of the proceeds of a
substantially concurrent offering of, shares of Capital Stock (other than
Disqualified Stock) of JLL (or options, warrants or other rights to acquire
such Capital Stock);
(iv) the making of any principal payment or the
repurchase, redemption, retirement, defeasance or other acquisition for
value of Indebtedness which is subordinated in right of payment to the
Notes or any Note Guarantee in exchange for, or out of the proceeds of, a
substantially concurrent offering of, shares of the Capital Stock (other
than Disqualified Stock) of JLL (or options, warrants or other rights to
acquire such Capital Stock);
(v) payments or distributions, to dissenting
stockholders pursuant to applicable law, pursuant to or in connection with
a consolidation, merger or transfer of assets that complies with the
provisions of this Indenture applicable to mergers, consolidations and
transfers of all or substantially all property and assets;
(vi) Investments acquired in exchange for, or out of the
proceeds of a substantially concurrent issuance of, Capital Stock (other
than Disqualified Stock) of JLL;
(vii)purchases of outstanding Capital Stock (other than
Disqualified Stock) or options, warrants or other rights to acquire such
Capital Stock (A) in an amount equivalent to the number of shares to be
delivered after the Closing Date under JLL's Stock Compensation Program,
Employee Stock Purchase Plan, Stock Award and Incentive Plan and any
similar programs or plans approved by the Board of Directors and (B) in
connection with the satisfaction of taxes or other obligations relating to
the shares being allocated and distributed under the Employee Stock
Ownership Trust established in connection with the JLW Acquisition in an
aggregate amount not to exceed $10 million;
(viii) endorsements of negotiable instruments for
collection in the ordinary course of business;
(ix) any purchase, repurchase, redemption, retirement or
other acquisition for value of Disqualified Stock of JLL or a Restricted
Subsidiary made by exchange for, or out of the proceeds of the
substantially concurrent offering of, Disqualified Stock of JLL or a
Restricted Subsidiary which is permitted to be issued pursuant to this
Indenture; provided that (A) in the case of a Change of Control, the
Company shall first comply with its obligations described under Section
4.12 and (B) in the case of an Asset Sale, the Company shall comply with
its obligations under Section 4.11;
(x) any purchase, repurchase, redemption, retirement,
defeasance or other acquisition for value of Indebtedness that is
subordinated in right of payment to any Note Guarantee or the Notes
including premium, if any, and accrued and unpaid interest upon a Change of
Control or Asset Sale to the extent required by the agreements or
instruments governing such Indebtedness; provided that (A) in the case of a
Change of Control, the Company shall first comply with its obligations
described under Section 4.12 and (B) in the case of an Asset Sale, the
Company shall comply with its obligations under Section 4.11;
(xi) any repurchase of Capital Stock deemed to occur
upon the exercise of stock options if such Capital Stock represents a
portion of the exercise price of such stock options; or
(xii)other Restricted Payments not exceeding $20 million
in the aggregate;
provided that, except in the case of clauses (i) and (iii), no Default or
Event of Default shall have occurred and be continuing or occur as a
consequence of the actions or payments set forth therein.
In determining whether any Restricted Payment is permitted by this
Section 4.04, JLL may allocate or reallocate all or any portion of such
Restricted Payment among clauses (i) through (xii) of the immediately
preceding paragraph or among such clauses and the first paragraph of this
section above; provided that at the time of such allocation or
reallocation, all such Restricted Payments, or allocated or reallocated
portions thereof, would be permitted under the various provisions of the
covenant described above.
Each Restricted Payment permitted pursuant to the second preceding
paragraph (other than the Restricted Payment referred to in clause (ii)
thereof, an exchange of Capital Stock for Capital Stock or Indebtedness
referred to in clause (iii) or (iv) thereof, an Investment acquired as a
capital contribution or in exchange for Capital Stock referred to in clause
(vi) thereof or any purchase, repurchase, redemption, retirement or other
acquisition for value of Disqualified Stock of JLL or a Restricted
Subsidiary made for Disqualified Stock of JLL or a Restricted Subsidiary
pursuant to clause (ix) thereof, and the Net Cash Proceeds from any
issuance of Capital Stock or Disqualified Stock referred to in clauses
(iii), (iv) and (ix)), shall be included in calculating whether the
conditions of clause (C) of the first paragraph of this Section 4.04 have
been met with respect to any subsequent Restricted Payments. In the event
the proceeds of an issuance of Capital Stock of JLL are used for the
redemption, repurchase or other acquisition of the Notes, or Indebtedness
that ranks equally with the Notes or any Note Guarantee, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of the first
paragraph of this Section 4.04 only to the extent such proceeds are not
used for such redemption, repurchase or other acquisition of Indebtedness.
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. JLL will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on
the ability of any Restricted Subsidiary to (i) pay dividends or make any
other distributions permitted by applicable law on any Capital Stock of
such Restricted Subsidiary owned by JLL or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to JLL or any other Restricted Subsidiary,
(iii) make loans or advances to JLL or any other Restricted Subsidiary or
(iv) transfer any of its property or assets to JLL or any other Restricted
Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions:
(i) existing on the Closing Date in the Credit
Agreement, this Indenture or any other agreements in effect on the Closing
Date, and any extensions, refinancings, renewals or replacements of such
agreements; provided that the encumbrances and restrictions in any such
extensions, refinancings, renewals or replacements are no less favorable in
any material respect to the Holders of the Notes than those encumbrances or
restrictions that are then in effect and that are being extended,
refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law or
government regulation;
(iii) existing with respect to any person or the
property or assets of such person acquired by JLL or any Restricted
Subsidiary, existing at the time of such acquisition or at the time such
person becomes a Restricted Subsidiary and not incurred in contemplation
thereof, which encumbrances or restrictions are not applicable to any
person or the property or assets of any person other than such person or
the property or assets of such person so acquired or that becomes a
Restricted Subsidiary;
(iv) in the case of clause (iv) of the first paragraph
of this Section 4.05, (A) that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of JLL or any
Restricted Subsidiary not otherwise prohibited by this Indenture or
(C) arising or agreed to in the ordinary course of business, not relating
to any Indebtedness, and that do not, individually or in the aggregate,
detract from the value of property or assets of JLL or any Restricted
Subsidiary in any manner material to JLL or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary;
(vi) any restriction on cash, other deposits or net
worth imposed by customers under contracts entered into in the ordinary
course of business;
(vii)contained in the terms of any Indebtedness or any
agreement pursuant to which such Indebtedness was issued if:
(A) the encumbrance or restriction applies only
in the event of a payment default or a default with respect to a financial
covenant contained in such Indebtedness or agreement,
(B) the encumbrance or restriction is not
materially more disadvantageous to the Holders of the Notes than is
customary in comparable financings (as determined by JLL in good faith) and
(C) JLL determines that any such encumbrance or
restriction will not materially affect the Company's ability to make
principal or interest payments on the Notes; or
(vii)any encumbrance or restriction of the type referred
to in clauses (i) through (iv) of the first paragraph above imposed by any
amendment, modification, restatement, renewal, increase, supplement,
refunding, replacement or refinancing of a contract, instrument or
obligation referred to in clauses (i) through (vii) above that is no more
restrictive in any material respect than the encumbrance or restriction
imposed by the applicable predecessor contract, instrument or obligation as
determined in good faith by an executive officer of JLL.
Nothing contained in this Section 4.05 shall prevent JLL or any
Restricted Subsidiary from (1) creating, incurring, assuming or suffering
to exist any Liens otherwise permitted in Section 4.09 or (2) restricting
the sale or other disposition of property or assets of JLL or any of its
Restricted Subsidiaries that secure Indebtedness of JLL or any of its
Restricted Subsidiaries.
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock
of Restricted Subsidiaries. JLL will not sell, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell, any shares
of Capital Stock of a Restricted Subsidiary other than the Company
(including options, warrants or other rights to purchase shares of such
Capital Stock) except:
(i) to JLL or any Restricted Subsidiary of which JLL
directly or indirectly holds at least the same percentage equity ownership
as the ownership interest which JLL held, directly or indirectly, in such
Restricted Subsidiary prior to such sale of Capital Stock;
(ii) issuances of director's qualifying shares or
issuances of Capital Stock to foreign nationals or employees to the extent
required by applicable law in order to conduct business as conducted at the
time of issuance of such shares;
(iii)if, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such person remaining after
giving effect to such issuance or sale would have been permitted to be made
under Section 4.04 if made on the date of such issuance or sale;
(iv) sales of Capital Stock (including options, warrants
or other rights to purchase shares of Capital Stock) of a Restricted
Subsidiary by JLL, the Company or a Restricted Subsidiary, provided that
JLL, the Company or such Restricted Subsidiary applies the Net Cash
Proceeds of any such sale in accordance with clause (A) or (B) of Section
4.11; or
(v) issuances and sales of Capital Stock (including
options, warrants or other rights to purchase shares of Capital Stock) of a
special purpose Restricted Subsidiary holding no assets other than Co-
Investments (including any proceeds thereof).
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries. JLL shall not permit any Restricted Subsidiary, other than
the Company or another Guarantor, directly or indirectly, to Guarantee any
Indebtedness of JLL or any other Restricted Subsidiary which ranks equally
with or subordinate in right of payment to the Notes or the Note Guarantees
("Guaranteed Indebtedness"), unless and to the extent such Restricted
Subsidiary could incur Indebtedness under Section 4.03, unless (i) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture providing for a Guarantee (a "Subsidiary Guarantee") of payment
of the Notes by such Restricted Subsidiary and (ii) such Restricted
Subsidiary waives and will not in any manner whatsoever claim or take the
benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against JLL or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under
its Subsidiary Guarantee; provided that this paragraph will not apply to
any Guarantee of any Restricted Subsidiary that existed at the time such
person became a Restricted Subsidiary and was not Incurred in connection
with, or in contemplation of, such person becoming a Restricted Subsidiary
or to any Guarantee issued in connection with the refinancing of any such
obligation. If the Guaranteed Indebtedness (A) ranks equally with any Note
Guarantees or the Notes, then the Guarantee of such Guaranteed Indebtedness
shall rank equally with, or be subordinated to, the Subsidiary Guarantee or
(B) is subordinated to any Note Guarantee or the Notes, then the Guarantee
of such Guaranteed Indebtedness shall be subordinated to the Subsidiary
Guarantee at least to the extent that the Guaranteed Indebtedness is
subordinated to such Note Guarantee or the Notes.
Notwithstanding the foregoing, any Subsidiary Guarantee by a
Restricted Subsidiary may provide by its terms that it shall be
automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any person not an Affiliate of JLL, of all
of JLL's and each Restricted Subsidiary's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the
release or discharge of the Guarantee which resulted in the creation of
such Subsidiary Guarantee, except a discharge or release by or as a result
of payment under such Guarantee.
SECTION 4.08. Limitation on Transactions with Stockholders and
Affiliates. JLL will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) with any Affiliate of
JLL or any Restricted Subsidiary, except upon fair and reasonable terms no
less favorable to JLL or such Restricted Subsidiary than could be obtained,
at the time of such transaction or, if such transaction is pursuant to a
written agreement, at the time of the execution of the agreement providing
therefor, in a comparable arm's-length transaction with a person that is
not such an Affiliate.
The foregoing limitation does not limit, and shall not apply to:
(i) transactions (A) approved by a majority of the
disinterested members of the Board of Directors or (B) for which JLL or a
Restricted Subsidiary delivers to the Trustee a written opinion of a
nationally recognized investment banking firm stating that the transaction
is fair to JLL or such Restricted Subsidiary from a financial point of
view;
(ii) any transaction solely between JLL and any of its
Restricted Subsidiaries or solely between Restricted Subsidiaries;
(iii)the payment of reasonable and customary fees,
compensation and benefits, indemnities provided for the benefit of or other
compensation to directors of JLL who are not employees of JLL and the
payment of reasonable employee compensation and benefits taken in
aggregate;
(iv) any payments or other transactions pursuant to any
tax-sharing agreement between JLL and any other person with which JLL files
a consolidated tax return or with which JLL is part of a consolidated group
for tax purposes;
(v) any sale of shares of Capital Stock (other than
Disqualified Stock) of JLL and its Restricted Subsidiaries or the Company;
(vi) any Permitted Investment or Restricted Payments not
prohibited by Section 4.04;
(vii)any issuance of securities subordinate in right of
payment to the Notes pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board
of Directors;
(viii) the grant of stock options or similar rights
to officers, employees, consultants and directors of JLL and, to the extent
otherwise permitted under this Indenture, to any Restricted Subsidiary,
pursuant to plans approved by the Board of Directors and the issuance of
securities pursuant thereto; or
(ix) transactions undertaken under any arrangement in
existence on the Closing Date, as such arrangement may be amended or
restated, renewed, extended, refinanced, refunded or replaced from time to
time, provided that any such amendment or restatement, renewal, extension,
refinancing, refund or replacement is on terms and conditions not more
disadvantageous to the Holders of the Notes in any material respect, based
on the good faith determination of the Board of Directors, to JLL or its
Restricted Subsidiaries than the arrangement in existence on the Closing
Date.
Notwithstanding the foregoing, any transaction or series of related
transactions covered by the first paragraph of this Section 4.08 and not
covered by clauses (ii) through (ix) of this paragraph:
(a) the aggregate amount of which is $5 million or less
in value, must be approved or determined to be fair by an executive officer
of JLL evidenced in an officer=s certificate or in the manner provided for
in clause (i)(A) or (B) above,
(b) the aggregate amount of which exceeds $5 million in
value, must be approved or determined to be fair in the manner provided for
in clause (i)(A) or (B) above and
(c) the aggregate amount of which exceeds $10 million
in value, must be determined to be fair in the manner provided for in
clause (i)(B) above.
SECTION 4.09. Limitation on Liens. JLL will not, and will not permit
any Restricted Subsidiary to, create, incur, assume or suffer to exist any
Lien (other than Permitted Liens) on any of its assets or properties of any
character, or any shares of Capital Stock or assets securing Indebtedness
of any Restricted Subsidiary, without making effective provision for all of
the Notes and all other amounts due under this Indenture to be directly
secured equally and ratably with (or, if the obligation or liability to be
secured by such Lien is subordinated in right of payment to the Notes,
prior to) the obligation or liability secured by such Lien until such time
as such obligation or liability is no longer secured by such Lien.
SECTION 4.10. Limitation on Sale-Leaseback Transactions. JLL will
not, and will not permit any Restricted Subsidiary to, enter into any sale-
leaseback transaction involving any of its assets or properties whether now
owned or hereafter acquired, whereby JLL or a Restricted Subsidiary sells
or transfers such assets or properties and then or thereafter leases such
assets or properties or any part thereof or any other assets or properties
which JLL or such Restricted Subsidiary, as the case may be, intends to use
for substantially the same purpose or purposes as the assets or properties
sold or transferred.
The foregoing restriction does not apply to any sale-leaseback
transaction (i) if the lease is for a period, including renewal rights, of
not in excess of three years; (ii) if the lease secures or relates to
industrial revenue or pollution control bonds; (iii) if the transaction is
solely between JLL and any Restricted Subsidiary or solely between
Restricted Subsidiaries; (iv) if JLL or such Restricted Subsidiary, within
12 months after the sale or transfer of any assets or properties is
completed, applies an amount not less than the net proceeds received from
such sale in accordance with clause (i)(A) or (i)(B) of the third paragraph
or clause (ii) of the third paragraph of Section 4.11; or (v) 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 clause (xx) of the definition of Permitted
Liens (and not separately permitted by other provisions of Section 4.09)
does not exceed $10 million at any time outstanding.
SECTION 4.11. Limitation on Asset Sales. Except for the sale or
other disposition of (a) all or any portion of the Capital Stock of a
Restricted Subsidiary permitted to be issued or sold under clause (v) of
Section 4.06 and (b) an asset consisting only of Co-Investments or interest
in a person (other than Capital Stock of a Restricted Subsidiary)
consisting only of Co-Investments, JLL will not, and will not permit any
Restricted Subsidiary to, consummate any Asset Sale, unless (i) the
consideration received by JLL or such Restricted Subsidiary (including by
way of any person (other than JLL or another Restricted Subsidiary)
assuming sole responsibility or retiring any liabilities, contingent or
otherwise) is at least equal to the fair market value of the assets sold or
disposed of and (ii) at least 80% of the consideration received consists of
cash or Temporary Cash Investments or the assumption of Indebtedness of JLL
or any Restricted Subsidiary (other than Indebtedness to JLL or any
Restricted Subsidiary), provided that JLL or such Restricted Subsidiary is
irrevocably and unconditionally released from all liability under such
Indebtedness.
For purposes of clause (ii) above of the preceding paragraph, the
following are deemed to be cash: (a) the assumption of any liabilities of
JLL or of any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinate to the Notes or any Note
Guarantee) and the release of JLL or any such Restricted Subsidiary from
liability in connection with such Asset Sale; and (b) any securities or
other obligations received by JLL or any Restricted Subsidiary from the
transferee that are converted within 90 days of receipt by JLL or such
Restricted Subsidiary, but only to the extent of the amount of cash
actually received by JLL or such Restricted Subsidiary as a result of such
conversion.
In the event and to the extent that the Net Cash Proceeds received by
JLL or any of its Restricted Subsidiaries from one or more Asset Sales
occurring on or after the Closing Date in any period of 12 consecutive
months exceed $20 million (determined as of the date closest to the
commencement of such 12-month period for which a consolidated balance sheet
of JLL and its Subsidiaries has been filed with the SEC provided to the
Trustee), then JLL shall or shall cause the relevant Restricted Subsidiary
to:
(i) within twelve months after the date Net Cash
Proceeds so received exceed $20 million:
(A) apply an amount equal to such excess Net Cash
Proceeds to permanently repay unsubordinated Indebtedness of JLL, the
Company or any Restricted Subsidiary providing a Subsidiary Guarantee
pursuant to Section 4.07 or Indebtedness of any other Restricted
Subsidiary, in each case owing to a person other than JLL or any of its
Restricted Subsidiaries or
(B) invest an equal amount, or the amount not so
applied pursuant to clause (A) (or enter into a definitive agreement
committing to so invest within 12 months after the date of such agreement),
in property or assets (other than current assets) of a nature or type or
that are used in a business (or in a company having property and assets of
a nature or type, or engaged in a business) similar or related to the
nature or type of the property and assets of, or the business of, JLL and
its Restricted Subsidiaries existing on the date of such investment and
(ii) apply (no later than the end of the 12-month period
referred to in clause (i)) such excess Net Cash Proceeds (to the extent not
applied pursuant to clause (i)) as provided in the following paragraph of
this Section 4.11, provided that prior to the application of any such Net
Cash Proceeds as required under clauses (i) and (ii) above, JLL or the
relevant Restricted Subsidiary may invest such Net Cash Proceeds in
Temporary Cash Investments or use such Net Cash Proceeds to repay
outstanding Indebtedness of JLL or any Restricted Subsidiary under an
existing revolving credit facility. The amount of such excess Net Cash
Proceeds required to be applied (or to be committed to be applied) during
such 12-month period as set forth in clause (i)(A) or (i)(B) above and not
applied as so required by the end of such period shall constitute "Excess
Proceeds."
If, as of the first day of any calendar month, the aggregate amount
of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant
to this Section 4.11 totals at least $20 million, the Company must
commence, not later than the fifteenth Business Day of such month but at
any time prior to such date, and consummate an Offer to Purchase from the
Holders (and if required by the terms of any Indebtedness that ranks
equally with the Notes or any Note Guarantee ("Pari Passu Indebtedness"),
from the Holders of such Pari Passu Indebtedness) on a pro rata basis an
aggregate principal amount of Notes (and Pari Passu Indebtedness) equal to
the Excess Proceeds on such date, at a purchase price equal to 100% of the
principal amount thereof, plus, in each case, accrued interest (if any) to
the Payment Date. To the extent that the aggregate principal amount of
Notes and Pari Passu Indebtedness so tendered, together with accrued
interest (if any) to the Payment Date is less than the aggregate Excess
Proceeds available, JLL may use such remaining Excess Proceeds for general
corporate purposes, subject to the other limitations in this Indenture.
SECTION 4.12. Repurchase of Notes upon a Change of Control. The
Company must commence, within 30 days of the occurrence of a Change of
Control, and consummate an Offer to Purchase for all Notes then
outstanding, at a purchase price equal to 101% of the principal amount
thereof, plus accrued interest (if any) to the Payment Date.
SECTION 4.13. Existence. Subject to Articles Four and Five of this
Indenture, JLL shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence
of each of its Restricted Subsidiaries in accordance with the respective
organizational documents of the Company and each Restricted Subsidiary and
the rights (whether pursuant to charter, partnership certificate,
agreement, statute or otherwise), licenses and franchises of JLL and each
Restricted Subsidiary; provided that JLL shall not be required to preserve
any such right, license or franchise, or the existence of any Restricted
Subsidiary, if the maintenance or preservation thereof is no longer
desirable in the conduct of the business of JLL and its Restricted
Subsidiaries taken as a whole.
SECTION 4.14. Payment of Taxes and Other Claims. JLL shall pay or
discharge and shall cause each of its Subsidiaries to pay or discharge, or
cause to be paid or discharged, before the same shall become delinquent
(i) all material taxes, assessments and governmental charges levied or
imposed upon (a) JLL or any such Subsidiary, (b) the income or profits of
any such Subsidiary which is a corporation or (c) the property of JLL or
any such Subsidiary and (ii) all material lawful claims for labor,
materials and supplies that, if unpaid, might by law become a lien upon the
property of JLL or any such Subsidiary; provided that JLL shall not be
required to pay or discharge, or cause to be paid or discharged, any such
tax, assessment, charge or claim the amount, applicability or validity of
which is being contested in good faith by appropriate proceedings and for
which adequate reserves, to the extent required by GAAP, have been
established.
SECTION 4.15. [Intentionally Omitted].
SECTION 4.16. Notice of Defaults. In the event that any Officer of
JLL becomes aware of any Default or Event of Default, JLL shall promptly
deliver to the Trustee an Officers' Certificate specifying such Default or
Event of Default.
SECTION 4.17. Compliance Certificates. (a) The Company and JLL
shall deliver to the Trustee, within 90 days after the end of the last
fiscal quarter of each year, an Officers' Certificate stating whether or
not the signers know of any Default or Event of Default that occurred
during such fiscal quarter. Such certificate shall contain a certification
from the principal executive officer, principal financial officer or
principal accounting officer of JLL that a review has been conducted of the
activities of the Company, each Guarantor and the Restricted Subsidiaries
and the Company's, each Guarantor=s and each Restricted Subsidiary's
performance under this Indenture and that, to the knowledge of such
officer, each has complied with all conditions and covenants under this
Indenture. For purposes of this Section 4.17, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. If any of the officers of the JLL signing
such certificate has knowledge of such a Default or Event of Default, the
certificate shall describe any such Default or Event of Default and its
nature and status.
(b) So long as not contrary to the rules of the AICPA, the Company
and JLL shall deliver to the Trustee, within 90 days after the end of each
fiscal year, beginning with the fiscal year in which this Indenture was
executed, a written statement signed by JLL's independent certified public
accountants stating (i) that their audit examination has included a review
of the terms of this Indenture and the Notes as they relate to accounting
matters, (ii) that they have read the most recent Officers' Certificate
delivered to the Trustee pursuant to paragraph (a) of this Section 4.17 and
(iii) whether, in connection with their audit examination, anything came to
their attention that caused them to believe that the Company was not in
compliance with any of the terms, covenants, provisions or conditions of
Article Four and Section 5.01 of this Indenture as they pertain to
accounting matters and, if any Default or Event of Default has come to
their attention, specifying the nature and period of existence thereof.
SECTION 4.18. SEC Reports and Reports to Holders. Whether or not
JLL and the Company are then required to file reports with the SEC, JLL and
the Company shall file with the SEC all such reports and other information
as they would be required to file with the SEC by Section 13(a) or
15(d) under the Exchange Act if they were subject thereto, provided that
JLL and the Company shall not be required to make any filings not permitted
by the SEC. JLL and the Company shall supply the Trustee and each Holder
or shall supply to the Trustee for forwarding to each such Holder, without
cost to such Holder, copies of such reports and other information. JLL and
the Company also shall comply with the other provisions of TIA Section
314(a). Copies of reports filed with the SEC will also be available at the
offices of the Luxembourg Paying Agent.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.19. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at
any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any, or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in
force, or that may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law and
covenants that it shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.20. Additional Amounts. All payments made by the Company
under or with respect to the Notes will be made free and clear of and
without withholding or deduction for or on account of any present or future
tax, duty, levy, impost, assessment or other governmental charge (including
penalties, interest and other liabilities related to any such tax, duty,
levy, impost, assessment or other governmental charge) (collectively,
"Taxes") imposed or levied by or on behalf of the Netherlands or any other
jurisdiction in which the Company is organized or is a resident for tax
purposes or by any government authority or political subdivision or
territory or possession or agency therein or thereof having the power to
tax (each, a "Taxing Authority"), unless the Company is required to
withhold or deduct Taxes by law or by an interpretation or administration
of law.
If the Company is required to withhold or deduct any amount for or on
account of Taxes imposed by a Taxing Authority within the Netherlands or
within any other jurisdiction in which the Company is organized or is a
resident for tax purposes, from any payment made under or with respect to
the Notes, the Company shall pay such additional amounts ("Additional
Amounts") as may be necessary so that the net amount received by each
Holder of Notes after such withholding or deduction will not be less than
the amount the Holder and beneficial owner would have received if such
Taxes had not been withheld or deducted. However, no Additional Amounts
will be payable with respect to a payment made to a Holder of Notes or to a
third party on behalf of a Holder with respect to (a) any Taxes that would
not have been imposed but for the existence of any present or former
connection between that Holder and the jurisdiction imposing such tax
(other than the mere receipt of payment or the ownership or holding outside
of the Netherlands of such Note); (b) any estate, inheritance, gift, sales,
excise, transfer, personal property tax or similar tax, assessment or
governmental charge; (c) any Taxes payable otherwise than by deduction or
withholding from payments of principal of, premium, if any, or interest on
such Note; or (d) Taxes that would not have been imposed but for the
failure of the Holder or beneficial owner of a Note to comply with any
certification, identification, information, or other documentation
requirement under law, regulation, administrative practice or an applicable
treaty that is a precondition to exemption from, or reduction in the rate
of the imposition, deduction or withholding of Taxes; nor will Additional
Amounts be paid:
(i) if the payment under or with respect to the Notes could
have been made by another Paying Agent without such deduction or
withholding,
(ii) if the payment under or with respect to the Notes could
have been made without such deduction or withholding if the beneficiary of
the payment had presented the Note for payment within 15 days after (A) the
date on which such payment or such Note became due and payable or (B) the
date on which payment thereof is duly provided for, whichever is later
(except to the extent that the Holder would have been entitled to
Additional Amounts had the Note been presented on the last day of such
15-day period), or
(iii) with respect to any payment under or with respect to the
Notes to any Holder who is a fiduciary or partnership or any person other
than the sole beneficial owner of such payment, to the extent that a
beneficiary or settlor with respect to such fiduciary, a member of such a
partnership or the beneficial owner of such payment would not have been
entitled to the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the actual Holder of such Note.
The Company will also (i) make such withholding or deduction and
(ii) remit the full amount deducted or withheld to the relevant authority
in accordance with applicable law. The Company shall use its reasonable
efforts to obtain certified copies of tax receipts evidencing the payment
of any Taxes so deducted or withheld from each Taxing Authority imposing
such Taxes. The Company will supply to the Trustee for forwarding to all
Holders, without cost to such Holders, within 60 days after the date the
payment of any Taxes so deducted or withheld is due pursuant to applicable
law, certified copies of tax receipts evidencing such payment by the
Company or if, notwithstanding the Company's efforts to obtain such
receipts, the same are not obtainable, other evidence of such payments by
the Company.
At least 30 days prior to each date on which any payment under or
with respect to the Notes is due and payable, if the Company will be
obligated to pay Additional Amounts with respect to such payment, the
Company will deliver to the Trustee an Officers' Certificate stating the
fact that such Additional Amounts will be payable and the amounts so
payable, and will set forth such other information as is necessary to
enable such Trustee to pay such Additional Amounts to Holders of Notes on
the payment date.
The provisions under this Section 4.20 will survive any termination
or the discharge of this Indenture and shall apply mutatis mutandis to any
jurisdiction in which any successor person to the Company is organized or
is engaged in business for tax purposes or any political subdivision or
taxing authority or agency thereof or therein.
In addition, the Company shall pay any stamp, issue, registration,
documentary or other similar taxes and duties, including interest and
penalties, payable in the Netherlands or any political subdivision of or in
the Netherlands in respect of the creation, issue and offering of the
Notes.
Whenever in this Indenture or the Notes there is mentioned in any
context, the payment of amounts based upon principal of, premium, if any,
or interest or of any other amount payable under or with respect to any of
the Notes, such mention will be deemed to include mention of the payment of
Additional Amounts to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. When Company or Guarantors May Merge, Etc. Except for
the sale or other disposition of (a) all or any portion of the Capital
Stock of a Restricted Subsidiary permitted to be issued or sold under
clause (v) of Section 4.06 and (b) an asset consisting only of Co-
Investments or interest in a person (other than Capital Stock of a
Restricted Subsidiary) consisting only of Co-Investments, neither the
Company nor JLL shall consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of
its property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any person or permit
any person to merge with or into it unless:
(i) the Company or JLL shall be the continuing person, or the
person (if other than the Company or JLL) formed by such consolidation or
into which the Company or JLL is merged or that acquired or leased such
property and assets of the Company or JLL shall be a corporation organized
and validly existing under the laws of the United States of America or any
jurisdiction thereof or under the laws of the European Union or any member
country thereof on the date of this Indenture (other than Greece, Portugal
or Spain), and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, all of the obligations of the
Company or JLL on all of the Notes or its Note Guarantee, as the case may
be, and under this Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction on a
pro forma basis, the Company, JLL or any person becoming the successor
obligor of the Notes or respective Note Guarantee, as the case may be,
shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth immediately prior to such transaction;
(iv) immediately after giving effect to such transaction on a
pro forma basis, the Company or any person becoming the successor obligor
of the Notes or the respective Note Guarantee, as the case may be, could
Incur at least $1.00 of Indebtedness under the first paragraph of Section
4.03; provided that this clause (iv) shall not apply to a consolidation,
merger or sale of all (but not less than all) of the assets of the Company
or JLL if all Liens and Indebtedness of the Company, JLL or any person
becoming the successor obligor on the Notes or the respective Note
Guarantee, as the case may be, and the Restricted Subsidiaries outstanding
immediately after such transaction would have been permitted (and all such
Liens and Indebtedness, other than Liens and Indebtedness of JLL and its
Restricted Subsidiaries outstanding immediately prior to the transaction,
shall be deemed to have been Incurred) for all purposes of this Indenture;
(v) the Company or JLL, as applicable, delivers to the
Trustee an Officers' Certificate (attaching the arithmetic computations to
demonstrate compliance with clauses (iii) and (iv)) and Opinion of Counsel,
in each case stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been
complied with; and
(vi) each Guarantor, unless such Guarantor is the person with
which the Company or JLL has entered into a transaction under this Section
5.01, shall have by amendment to its Note Guarantee confirmed that its Note
Guarantee shall apply to the obligations of the Company, JLL or the
surviving person, as the case may be, in accordance with the Notes and this
Indenture;
provided, however, that clauses (iii) and (iv) above do not apply if, in
the good faith determination of the Board of Directors, whose determination
shall be evidenced by a Board Resolution, the principal purpose of such
transaction is to change the state of incorporation of the Company or such
Guarantor and any such transaction shall not have as one of its purposes
the evasion of the foregoing limitations.
SECTION 5.02. Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of
all or substantially all of the property and assets of the Company or JLL
in accordance with Section 5.01 of this Indenture, the successor person
formed by such consolidation or into which the Company or JLL is merged or
to which such sale, conveyance, transfer, lease or other disposition is
made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company or JLL under this Indenture with the same effect
as if such successor person had been named as the Company or JLL, as
applicable, herein; provided that neither JLL nor the Company shall be
released from its obligation to pay the principal of, premium, if any, or
interest on the Notes or under its Note Guarantee, as applicable, in the
case of a lease of all or substantially all of its property and assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. Any of the following events shall
constitute an "Event of Default" hereunder:
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the
same becomes due and payable, and such default continues for a period of
30 days;
(c) default in the performance or breach of the provisions of
this Indenture described under Section 5.01 or the failure to make or
consummate an Offer to Purchase in accordance with Section 4.11 or Section
4.12;
(d) the Company or any Guarantor defaults in the performance
of or breaches any other covenant or agreement of the Company or such
Guarantor in this Indenture or under the Notes (other than a default
specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company, any Guarantor or any Significant Subsidiary
having an outstanding principal amount of $10 million or more in the
aggregate for all such issues of all such persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of
default that has caused the Holder thereof to declare such Indebtedness to
be due and payable prior to its Stated Maturity and such Indebtedness has
not been discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such acceleration and/or (II) the failure to
make a principal payment at the final (but not any interim) fixed maturity
and such defaulted payment shall not have been made, waived or extended
within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance)
for the payment of money in excess of $10 million in the aggregate for all
such final judgments or orders against all such persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, any Guarantor or any Significant Subsidiary
and shall not be paid or discharged, and there shall be any period of
60 consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such persons to exceed
$10 million during which a stay of enforcement of such final judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company, any Guarantor or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, any Guarantor or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company, any Guarantor or any Significant Subsidiary or
(C) the winding up or liquidation of the affairs of the Company, any
Guarantor or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days;
(h) the Company, any Guarantor or any Significant Subsidiary
(A) commences a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consents to the entry
of an order for relief in an involuntary case under any such law,
(B) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Company, any Guarantor or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company, any Guarantor
or any Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors; or
(i) any Note Guarantee or any Subsidiary Guarantee (other
than any Subsidiary Guarantee with respect to a Guarantor all of the
Capital Stock of which is sold in accordance with the provisions of Section
4.06) ceases to be in full force and effect (except as contemplated by the
terms thereof) or any Guarantor denies or disaffirms its obligations under
this Indenture or its Note Guarantee.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default specified in clause (g) or (h) of Section 6.01 that occurs
with respect to the Company or any Guarantor) occurs and is continuing
under this Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, by written notice
to the Company (and to the Trustee if such notice is given by the Holders),
may, and the Trustee at the request of such Holders shall, declare the
principal of, premium, if any, and accrued interest on the Notes to be
immediately due and payable, provided that, in the event of a Guarantor
default, JLL may elect to substitute another Guarantor or Guarantors
acceptable to at least one nationally-recognized rating agency, in which
case neither the Trustee nor the requisite percentage of Holders shall have
any right to declare the principal, premium (if any) or interest on the
Notes to be immediately due and payable. Upon a declaration of
acceleration, such principal of, premium, if any, and accrued interest
shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (e) of Section
6.01 has occurred and is continuing, such declaration of acceleration shall
be automatically rescinded and annulled if the event of default triggering
such Event of Default pursuant to clause (e) shall be remedied or cured by
the Company, any Guarantor or the relevant Significant Subsidiary or waived
by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (g) or (h) of Section 6.01 occurs with respect to the
Company or a Guarantor, the principal of, premium, if any, and accrued
interest on the Notes then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after such declaration of acceleration, the Holders of at
least a majority in principal amount of the outstanding Notes by written
notice to the Company and to the Trustee, may waive all past Defaults and
rescind and annul a declaration of acceleration and its consequences if (a)
the Company has paid or deposited with the Trustee a sum sufficient to pay
(i) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, (ii) all overdue interest on all Notes, (iii) the
principal of and premium, if any, on any Notes that have become due
otherwise than by such declaration or occurrence of acceleration and
interest thereon at the rate prescribed therefor by such Notes, and (iv) to
the extent that payment of such interest is lawful, interest upon overdue
interest, if any, at the rate prescribed therefor by such Notes, (b) all
existing Events of Default, other than the non-payment of the principal of,
premium, if any, and accrued interest on the Notes that have become due
solely by such declaration of acceleration, have been cured or waived and
(c) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may, and at the direction of the Holders of at
least a majority in principal amount of the outstanding Notes shall, pursue
any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium, if any, or interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02,
6.07 and 9.02, the Holders of at least a majority in principal amount of
the outstanding Notes, by notice to the Trustee, may waive an existing
Default or Event of Default and its consequences, except a Default in the
payment of principal of, premium, if any, or interest on any Note as
specified in clause (a) or (b) of Section 6.01 (but not as a result of
acceleration) or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of the Holder of
each outstanding Note affected. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at least a
majority in aggregate principal amount of the outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided that the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that may involve the Trustee in
personal liability or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders of Notes not joining in the
giving of such direction; and provided further that the Trustee may take
any other action it deems proper that is not inconsistent with any such
direction received from Holders of Notes.
SECTION 6.06. Limitation on Suits. A Holder may not institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Notes, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) the Holder has previously given the Trustee written
notice of a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
of outstanding Notes shall have made a written request to the Trustee to
pursue such remedy;
(iii) such Holder or Holders offer the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liability or
expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee
a direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this Section 6.06,
the Trustee shall comply with TIA Section 316(a) in making any
determination of whether the Holders of the required aggregate principal
amount of outstanding Notes have concurred in any request or direction of
the Trustee to pursue any remedy available to the Trustee or the Holders
with respect to this Indenture or the Notes or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of the principal of, premium, if any, or interest on, such
Note or to bring suit for the enforcement of any such payment, on or after
the due date expressed in the Notes, shall not be impaired or affected
without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
payment of principal, premium or interest specified in clause (a), (b) or
(c) of Section 6.01 occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the
Company or any other obligor of the Notes for the whole amount of
principal, premium, if any, and accrued interest remaining unpaid, together
with interest on overdue principal, premium, if any, and, to the extent
that payment of such interest is lawful, interest on overdue installments
of interest, in each case at the rate specified in the Notes, and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor of the Notes),
its creditors or its property and shall be entitled and empowered to
collect and receive any monies, securities or other property payable or
deliverable upon conversion or exchange of the Notes or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07. Nothing herein contained
shall be deemed to empower the Trustee to authorize or consent to, or
accept or adopt on behalf of any Holder, any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money
pursuant to this Article Six, it shall pay out the money in the following
order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest on the Notes in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Notes for principal, premium, if any, and interest,
respectively; and
Third: to the Company or any other obligors of the Notes, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court may require any party litigant in such suit to file an undertaking to
pay the costs of the suit, and the court may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit
by Holders of more than 10% in principal amount of the outstanding Notes.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned
for any reason, or has been determined adversely to the Trustee or to such
Holder, then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Company, Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Notes in Section 2.09, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every
right and remedy given by this Article Six or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. (a) Except during the continuance of an
Event of Default, the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that (i) this
subsection shall not be construed to limit the effect of subsection (a) of
this Section; (ii) the Trustee shall not be liable for any error of
judgement made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts,
(iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the outstanding Notes
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or for exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the Notes.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not herein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA Sections
315(a) through (d):
(i) the Trustee may conclusively rely, and shall be protected
in acting or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper person;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall
conform to Section 11.04. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such certificate or
opinion;
(iii) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney
or agent appointed with due care by it hereunder;
(iv) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to
the Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction;
(v) the Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within
its rights or powers, provided that the Trustee's conduct does not
constitute negligence or bad faith;
(vi) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(vii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall reasonably determine to make such further inquiry or
investigation, it shall be entitled upon reasonable notice and during
normal business hours to examine the books, records and premises of the
Company or any Guarantor personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation;
(viii) the Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which is
in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Notes and this
Indenture;
(ix) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and other
person employed to act hereunder; and
(x) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company or its Affiliates with the same
rights it would have if it were not the Trustee. Any Agent may do the same
with like rights. However, the Trustee is subject to TIA Sections 310(b)
and 311.
SECTION 7.04. Trustee's Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the
Notes, (ii) shall not be accountable for the Company's use or application
of the proceeds from the Notes and (iii) shall not be responsible for any
statement in the Notes other than its certificate of authentication.
SECTION 7.05. Notice of Default. If any Default or any Event of
Default occurs and is continuing and if such Default or Event of Default is
known to the Trustee, the Trustee shall mail to each Holder in the manner
and to the extent provided in TIA Section 313(c) notice of the Default or
Event of Default within 90 days after it occurs, unless such Default or
Event of Default has been cured; provided, however, that, except in the
case of a default in the payment of the principal of, premium, if any, or
interest on any Note, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such notice is in the
interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each May 15, beginning with May 15, 2001, the Trustee shall mail to each
Holder as provided in TIA Section 313(c) a brief report dated as of such
May 15, if required by TIA Section 313(a).
A copy of each report at the time of its mailing to the Holders of
Securities shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Securities are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the
Notes are listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company and each
Guarantor, jointly and severally, shall pay to the Trustee such
compensation as shall be agreed upon in writing for its services hereunder.
The compensation of the Trustee shall not be limited by any law on
compensation of a trustee of an express trust. The Company and each
Guarantor, jointly and severally, shall reimburse the Trustee upon request
for all reasonable disbursements, expenses and advances incurred or made by
the Trustee without negligence, bad faith or willful misconduct on its
part. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents and counsel.
The Company and each of the Guarantors, jointly and severally, shall
indemnify the Trustee (and any predecessor Trustee and their agents) for,
and hold it harmless against, any loss or liability or expense incurred by
it without negligence, bad faith or willful misconduct on its part in
connection with the acceptance or administration of this Indenture and its
duties under this Indenture and the Notes, including the reasonable costs
and expenses of defending itself against any claim or liability and of
complying with any process served upon it or any of its officers in
connection with the exercise or performance of any of its powers or duties
under this Indenture and the Notes. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder, unless the Company is materially prejudiced thereby.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. Unless otherwise set forth herein, the Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel; provided, that the Company will not be required to pay such fees
and expenses if it assumes the Trustee=s defense and, in the reasonable
opinion of the Trustee, there is no conflict of interest between the
Company and the Trustee in connection with such defense. The Company need
not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
To secure the Company's payment obligations in this Section 7.07, the
Company, the Guarantors and the Holders agree that the Trustee shall have a
lien prior to the Notes on all money or property held or collected by the
Trustee, in its capacity as Trustee, except money or property held in trust
to pay principal of, premium, if any, and interest on particular Notes.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in clause (g) or (h) of Section
6.01, the expenses and the compensation for the services will be intended
to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the
relief of debtors.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. Replacement of Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in
this Section 7.08.
The Trustee may resign at any time by so notifying the Company in
writing at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee by so notifying the Trustee in writing and the Company
shall appoint a successor Trustee as provided in the succeeding paragraph.
The Company may remove the Trustee if: (i) the Trustee is no longer
eligible under Section 7.10; (ii) the Trustee is adjudged a bankrupt or an
insolvent; (iii) a receiver or other public officer takes charge of the
Trustee or its property; or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company. If the successor Trustee does not deliver its
written acceptance required by the next succeeding paragraph of this
Section 7.08 within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Notes may, at the expense of the
Company, petition any court of competent jurisdiction for the appointment
of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
the delivery of such written acceptance, subject to the lien provided in
Section 7.07, (i) the retiring Trustee shall transfer all property held by
it as Trustee to the successor Trustee, (ii) the resignation or removal of
the retiring Trustee shall become effective and (iii) the successor Trustee
shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder. No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
If the Trustee is no longer eligible under Section 7.10 or shall fail
to comply with TIA Section 310(b), any Holder who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 7.08, the Trustee shall
resign immediately in the manner and with the effect provided in this
Section.
The Company shall give notice of any resignation and any removal of
the Trustee and each appointment of a successor Trustee to all Holders.
Each notice shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligation under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation
or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall
be the successor Trustee with the same effect as if the successor Trustee
had been named as the Trustee herein, provided such corporation shall be
otherwise qualified and eligible under this Article.
SECTION 7.10. Eligibility. This Indenture shall always have a
Trustee who satisfies the requirements of TIA Section 310(a)(1). The
Trustee shall have a combined capital and surplus of at least $25 million
as set forth in its most recent published annual report of condition that
is subject to the requirements of applicable Federal or state supervising
or examining authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect specified in
this Article.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree
with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article Eight of this Indenture.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes that
are paid pursuant to Section 4.01 or Notes for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee
for cancellation and the Company has paid all sums payable by it hereunder;
or
(ii) (A) the Notes mature within one year or all of them are
to be called for redemption within one year under arrangements satisfactory
to the Trustee for giving the notice of redemption, (B) the Company
irrevocably deposits in trust with the Trustee during such one-year period,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
Holders for that purpose, money, Government Obligations and/or U.S.
Government Obligations sufficient to pay principal, premium, if, any, and
interest on the Notes to maturity or redemption, as the case may be, and to
pay all other sums payable by it hereunder, (C) no Default or Event of
Default with respect to the Notes shall have occurred and be continuing on
the date of such deposit, (D) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound and (E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), the Company's obligations
under Section 7.07 shall survive. With respect to the foregoing
clause (ii), the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 4.20, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Notes are no longer outstanding. Thereafter,
only the Company's obligations in Sections 7.07, 8.04, 8.05 and 8.06 shall
survive. After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations
under the Notes and this Indenture except for those surviving obligations
specified above.
SECTION 8.02. Defeasance and Discharge of Indenture. Each of the
Company and the Guarantors will be deemed to have paid and will be
discharged from any and all obligations in respect of the Notes on the
123rd day after the date of the deposit referred to in clause (A) of this
Section 8.02, and the provisions of this Indenture will no longer be in
effect with respect to the Notes (except for, among other matters, certain
obligations to register the transfer or exchange of the Notes, to replace
stolen, lost or mutilated Notes, to maintain paying agencies and to hold
monies for payment in trust), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same if:
(A) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10) under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust funds
in trust, solely for the benefit of the Holders, (1) money in an amount,
(2) Government Obligations and/or U.S. Government Obligations that, through
the payment of interest, premium, if any, and principal in respect thereof
in accordance with their terms, will provide, not later than one day before
the due date of any payment referred to in this clause (A), money in an
amount or (3) a combination thereof in an amount sufficient to pay and
discharge the principal of, premium, if any, and interest on the
outstanding Notes on the Stated Maturity of such principal or interest in
accordance with the terms hereof;
(B) the Company has delivered to the Trustee (1) either (x)
an Opinion of Counsel to the effect that Holders will not recognize income,
gain or loss for federal income tax purposes as a result of the Company's
exercise of its option under this Section 8.02 and will be subject to
federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been
exercised, which Opinion of Counsel shall be based upon (and accompanied by
a copy of) a ruling of the Internal Revenue Service to the same effect
unless there has been a change in applicable federal income tax law after
the Closing Date such that a ruling is no longer required or (y) a ruling
directed to the Trustee received from the Internal Revenue Service to the
same effect as the aforementioned Opinion of Counsel and (2) an Opinion of
Counsel to the effect that the creation of the defeasance trust does not
violate the Investment Company Act of 1940 and that after the passage of
123 days following the deposit the trust funds will not be subject to the
effect of Section 547 of the United States Bankruptcy Code or Section 15 of
the New York Debtor and Creditor Law; and
(C) immediately after giving effect to such deposit, on a pro
forma basis, no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or during the period ending on the
123rd day after such date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which JLL or any of its
Subsidiaries is a party or by which JLL or any of its Subsidiaries is
bound.
Notwithstanding the foregoing, prior to the end of the 123-day period
referred to in clause (B)(2) of this Section 8.02, none of the Company's
obligations under this Indenture shall be discharged. Subsequent to the
end of such 123-day period with respect to this Section 8.02, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09,
2.14, 4.01, 4.02, 4.20, 8.04, 8.05, 8.06 and the rights, powers, trusts,
duties and immunities of the Trustee hereunder shall survive until the
Notes are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07, 8.04, 8.05 and 8.06 shall survive. If and
when a ruling from the Internal Revenue Service or an Opinion of Counsel
referred to in clause (B)(1) of this Section 8.02 is able to be provided
specifically without regard to, and not in reliance upon, the continuance
of the Company's obligations under Section 4.01, then the Company's
obligations under such Section 4.01 shall cease upon delivery to the
Trustee of such ruling or Opinion of Counsel and compliance with the other
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Notes and this Indenture except for those surviving obligations in the
immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations. Each of the
Company and the Guarantors may omit to comply with any term, provision or
condition set forth in clauses (iii) and (iv) of Section 5.01 and Sections
4.03 through 4.11 and 4.20 and clause (c) of Section 6.01 with respect to
clauses (iii) and (iv) of Section 5.01, clause (d) of Section 6.01 with
respect to Sections 4.01, 4.02 and 4.12 through 4.20 and clauses (e) and
(f) of Section 6.01 shall be deemed not to be Events of Default, in each
case with respect to the outstanding Notes if:
(i) the conditions precedent provided for in clauses (A),
(B)(2) and (C) of Section 8.02 have been complied with; and
(ii) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
defeasance of certain covenants and Events of Default and will be subject
to federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred.
SECTION 8.04. Application of Trust Money. Subject to Section 8.06,
the Trustee or Paying Agent shall hold in trust money, Government
Obligations and/or U.S. Government Obligations deposited with it pursuant
to Section 8.01, 8.02 or 8.03, as the case may be, and shall apply the
deposited money and the money from Government Obligations and/or U.S.
Government Obligations in accordance with the Notes and this Indenture to
the payment of principal of, premium, if any, and interest on the Notes;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money
held by them at any time and thereupon shall be relieved from all liability
with respect to such money. The Trustee and the Paying Agent shall pay to
the Company upon request any money held by them for the payment of
principal, premium, if any, or interest that remains unclaimed for two
years; provided that the Trustee or Paying Agent before being required to
make any payment may cause to be published at the expense of the Company
once in a newspaper of general circulation in The City of New York and, in
the event the Notes are listed on the Luxembourg Stock Exchange, in
Luxembourg, or mail to each Holder entitled to such money at such Holder's
address (as set forth in the Security Register) notice that such money
remains unclaimed and that after a date specified therein (which shall be
at least 30 days from the date of such publication or mailing) any
unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, Holders entitled to such money must
look to the Company for payment as general creditors unless an applicable
law designates another person, and all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
and U.S. Government Obligations deposited pursuant to Section 8.01, 8.02 or
8.03 or the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the
Holders.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money, Government Obligations or U.S. Government
Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may
be, by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case
may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money, Government Obligations or U.S. Government Obligations
in accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided
that, if the Company has made any payment of principal of, premium, if any,
or interest on any Notes because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes
to receive such payment from the money, Government Obligations or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and JLL, when
authorized by a resolution of their Board of Directors (as evidenced by a
Board Resolution delivered to the Trustee), and the Trustee may amend or
supplement this Indenture or the Notes without notice to or the consent of
any Holder:
(1) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not, in the
good faith opinion of the Board of Directors as evidenced by a Board
Resolution, adversely affect the interests of the Holders in any material
respect;
(2) to comply with Article Five;
(3) to comply with any requirements of the SEC in connection
with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(5) to make any change that, in the good faith opinion of the
Board of Directors as evidenced by a Board Resolution, does not materially
and adversely affect the rights of any Holder.
SECTION 9.02. With Consent of Holders. Subject to Sections 6.04 and
6.07 and without prior notice to the Holders, the Company and JLL, when
authorized by their Board of Directors (as evidenced by a Board Resolution
delivered to the Trustee), and the Trustee may amend this Indenture and the
Notes with the written consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding, and the Holders of a
majority in aggregate principal amount of the Notes then outstanding by
written notice to the Trustee may waive future compliance by the Company
with any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Note;
(ii) reduce the principal amount of, premium, if any, or
interest on any Note;
(iii) change any place or currency of payment of principal of,
premium, if any, or interest on, any Note;
(iv) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity (or, in the case of redemption,
on or after the Redemption Date) on any Note;
(v) waive a default in the payment of principal of, premium,
if any, or interest on, any Note;
(vi) modify any Note Guarantee in a manner adverse to the
Holders; or
(vii) reduce the percentage or aggregate principal amount of
outstanding Notes the consent of whose Holders is necessary for waiver of
compliance with certain provision of this Indenture or for waiver of
certain defaults.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company
shall mail supplemental indentures to Holders upon request. Any failure of
the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture
or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment
or waiver becomes effective, a consent to it by a Holder is a continuing
consent by the Holder and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the Note of the consenting Holder,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to its Note or
portion of its Note. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver
shall become effective on receipt by the Trustee of written consents from
the Holders of the requisite percentage in principal amount of the
outstanding Notes.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were Holders at such record date (or their
duly designated proxies) and only those persons shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after
such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it is of the type described in the second
paragraph of Section 9.02. In case of an amendment or waiver of the type
described in the second paragraph of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder
of a Note that evidences the same indebtedness as the Note of the
consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require
the Holder to deliver such Note to the Trustee. At the Company's expense,
the Trustee may place an appropriate notation on the Note about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Note thereafter authenticated. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation, or issue a new
Note, shall not affect the validity and effect of such amendment,
supplement or waiver.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement
or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture and that it will be valid and binding upon the
Company. Subject to the preceding sentence, the Trustee shall sign such
amendment, supplement or waiver if the same does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Trustee may,
but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article Nine shall conform
to the requirements of the TIA as then in effect.
ARTICLE TEN
NOTE GUARANTEES
SECTION 10.01. Note Guarantee. By its execution hereof, each of the
Guarantors acknowledges and agrees that it receives substantial benefits
from the Company and that such party is providing its Guarantee for good
and valuable consideration, including, without limitation, such substantial
benefits and services. Accordingly, subject to the provisions of this
Article Ten, each of the Guarantors hereby, jointly and severally, fully
and unconditionally Guarantees, to the extent permitted by law, to each
Holder of Notes hereunder and to the Trustee on behalf of the Holders: (i)
the due and punctual payment of the principal of, premium, if any, on and
interest on each Note, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on
the Notes, to the extent lawful, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms of such Note and this Indenture and (ii) in the
case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
at Stated Maturity, by acceleration or otherwise, subject, however, in the
case of clauses (i) and (ii) above, to the limitations set forth in the
second succeeding paragraph.
Each Note Guarantee shall be Guaranteed on a senior unsubordinated
basis.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the Guarantee by
such Guarantor pursuant to its Note Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the United States Bankruptcy Code,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing
intention, the Holders and such Guarantor hereby irrevocably agree that the
obligations of such Guarantor under its Note Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Note Guarantee
or pursuant to the following paragraph, result in the obligations of such
Guarantor under its Note Guarantee not constituting such fraudulent
transfer or conveyance.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment
or distribution is made by any Guarantor (a "Funding Guarantor") under its
Note Guarantee, such Funding Guarantor shall be entitled to a contribution
from all other Guarantors in a pro rata amount based on the Adjusted Net
Assets of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in
discharging the Company's obligations with respect to the Notes or any
other Guarantor's obligations with respect to its Note Guarantee.
"Adjusted Net Assets" of such Guarantor at any date shall mean the lesser
of the amount by which (x) the fair value of the property of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Note Guarantee, of such Guarantor at such date and
(y) the present fair salable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the probable liability
of such Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary of such Guarantor in respect
of the obligations of such Guarantor under the Note Guarantee of such
Guarantor), excluding debt in respect of its Note Guarantee, as they become
absolute and matured.
Each of the Guarantors hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a proceeding first against
the Company, the benefit of discussion, protest or notice with respect to
any such Note or the debt evidenced thereby and all demands whatsoever
(except as specified above), and covenants that its Note Guarantee will not
be discharged as to any such Note except by payment in full of the
principal thereof and interest thereon and as provided in Sections 8.01,
8.02 and 8.03. In the event of any declaration of acceleration of such
obligations as provided in Article Six, such obligations (whether or not
due and payable) shall forthwith become due and payable by the Guarantors
for the purposes of this Article Ten. In addition, without limiting the
foregoing provisions, upon the effectiveness of an acceleration under
Article Six, the Trustee shall promptly make a demand for payment on the
Notes under the Note Guarantee provided for in this Article Ten.
The obligations of each Guarantor under its Note Guarantee are
independent of the obligations Guaranteed by such Guarantor hereunder, and
a separate action or actions may be brought and prosecuted by the Trustee
on behalf of, or by, the Holders, subject to the terms and conditions set
forth in this Indenture, against a Guarantor to enforce this Guarantee,
irrespective of whether any action is brought against the Company or
whether the Company is joined in any such action or actions.
If the Trustee or the Holder is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in
relation to Company or such Guarantor, any amount paid to the Trustee or
such Holder in respect of a Note, this Note Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
of the Guarantors further agrees, to the fullest extent that it may
lawfully do so, that, as between it, on the one hand, and the Holders and
the Trustee, on the other hand, the maturity of the obligations Guaranteed
hereby may be accelerated as provided in Article Six hereof for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition extant under any applicable bankruptcy law preventing
such acceleration in respect of the obligations Guaranteed hereby.
Each of the Guarantors hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company or any
other Guarantor that arise from the existence, payment, performance or
enforcement of its obligations under this Note Guarantee and this
Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or remedy of the Holders against the Company or
any Guarantor or any collateral which any such Holder or the Trustee on
behalf of such Holder hereafter acquires, 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
Company or a 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 rights until payment in full of all obligations by such
Guarantor of its obligations in respect of its Note Guarantee. If any
amount shall be paid to a Guarantor in violation of the preceding sentence
and the principal of, premium, if any, and accrued interest on the Notes
shall not have been paid in full, such amount shall be deemed to have been
paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Holders, and shall forthwith be paid to the Trustee for the
benefit of the Holders to be credited and applied upon the principal of,
premium, if any, and accrued interest on the Notes. Each of the Guarantors
acknowledges that it will receive direct and indirect benefits from the
issuance of the Notes pursuant to this Indenture and that the waivers set
forth in this Section 10.01 are knowingly made in contemplation of such
benefits
The Note Guarantee set forth in this Section 10.01 shall not be valid
or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
SECTION 10.02. Obligations Unconditional. Nothing contained in this
Article Ten or elsewhere in this Indenture or in the Notes is intended to
or shall impair, as among any Guarantor and the Holders of the Notes, the
obligation of such Guarantor, which is absolute and unconditional, upon
failure by the Company, to pay to the Holders of the Notes the principal
of, premium, if any, and interest on the Notes as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of such
Guarantor, nor shall anything herein or therein prevent any Holder or the
Trustee on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this Article Ten
will restrict the right of the Trustee or the Holders to take any action to
declare the Note Guarantee to be due and payable prior to the Stated
Maturity of any Notes pursuant to Section 6.02 or to pursue any rights or
remedies hereunder.
SECTION 10.03. Release of Note Guarantees. The Note Guarantee
issued by any Subsidiary Guarantor will be automatically and
unconditionally released and discharged upon (i) any sale, exchange or
transfer to any person (other than an Affiliate of the Company) of all of
the Capital Stock of such Subsidiary Guarantor or (ii) the designation of
such Subsidiary Guarantor as an Unrestricted Subsidiary, in each case in
compliance with the terms of this Indenture.
SECTION 10.04. Notice to Trustee. A Guarantor shall give prompt
written notice to the Trustee of any fact known to such Guarantor which
would prohibit the making of any payment to or by the Trustee in respect of
the Note Guarantee pursuant to the provisions of this Article Ten.
SECTION 10.05. This Article Not to Prevent Events of Default. The
failure to make a payment on account of principal of, premium, if any, or
interest on the Notes by reason of any provision of this Article Ten will
not be construed as preventing the occurrence of an Event of Default.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act of 1939. Prior to the
effectiveness of the Registration Statement, this Indenture shall
incorporate and be governed by the provisions of the TIA that are required
to be part of and to govern indentures qualified under the TIA. After the
effectiveness of the Registration Statement, this Indenture shall be
subject to the provisions of the TIA that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 11.02. Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person, mailed by
first-class mail or sent by telecopier transmission addressed as follows:
if to the Company:
Jones Lang LaSalle Incorporated
200 East Randolph Drive
Chicago, Illinois 60601
Telecopier No.: (312) 228-0980
Attention: Corporate Secretary
if to the Trustee:
The Bank of New York
101 Barclay Street
New York, NY 10286
Telecopier No.: (212) 815-4803
Attention: Corporate Trust Administration
Global Finance Unit
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall be deemed to have been
given (i) upon the mailing by first class mail, postage prepaid, of such
notices to Holders at their registered addresses as recorded in the
Securities Register and (ii) for so long as the Notes are listed on the
Luxembourg Stock Exchange, upon publication in a leading newspaper of
general circulation in Luxembourg, in each case, not later than the latest
date, and not earlier than the earliest date, prescribed in the Notes for
the giving of such notice. Any notice or communication shall also be so
mailed to any person described in TIA Section 313(c), to the extent
required by the TIA. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder as provided
herein or any defect in any such notice or communication shall not affect
its sufficiency with respect to other Holders. Except for a notice to the
Trustee, which is deemed given only when received, and except as otherwise
provided in this Indenture, if a notice or communication is mailed in the
manner provided in this Section 11.02, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such Counsel, all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(i) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained
in such certificate or opinion is based;
(iii) a statement that, in the opinion of each such person, he
or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with; provided,
however, that, with respect to matters of fact, an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 11.05. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.06. Payment Date Other Than a Business Day. If an
Interest Payment Date, Redemption Date, Payment Date, Stated Maturity or
date of maturity of any Note shall not be a Business Day, then payment of
principal of, premium, if any, or interest on such Note, as the case may
be, need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date, Payment Date or Redemption Date, or at the Stated Maturity or
date of maturity of such Note; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Payment Date,
Redemption Date, Stated Maturity or date of maturity, as the case may be.
SECTION 11.07. Governing Law. This Indenture and the Notes shall be
governed by the laws of the State of New York. The Trustee and the Holders
agree to submit to the jurisdiction of the courts of the State of New York
in any action or proceeding arising out of or relating to this Indenture or
the Notes.
SECTION 11.08. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.09. No Recourse Against Others. No recourse for the
payment of the principal of, premium, if any, or interest on any of the
Notes, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the
Company or any Guarantor contained in this Indenture or, in any of the
Notes or any Note Guarantee, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator or against any
past, present or future partner, stockholder, other equityholder, officer,
director, employee or controlling person, as such, of the Company, any
Guarantor or of any successor person thereof, either directly or through
the Company, any Guarantor or any successor person thereof, whether by
virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture
and the issue of the Notes.
SECTION 11.10. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.11. Duplicate Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 11.12. Separability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict
any of the terms and provisions hereof.
SECTION 11.14. Counterparts. This Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
SECTION 11.15. Submission to Jurisdiction; Appointment of Agent for
Service. (a) With respect to any suit, action, or proceeding that may be
brought in connection with this Indenture or the Notes or any Note
Guarantee, if any, the Company irrevocably consents to the jurisdiction of
any United States federal or New York state court sitting in the Borough of
Manhattan, The City of New York, the State of New York and 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 suit, action
or proceeding and any claim of inconvenient forum, and irrevocably submits
to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding. In connection with the Note Guarantee of Jones Lang
LaSalle Limited, Jones Lang LaSalle Limited will submit to jurisdiction to
the same extent.
(b) Each of the Company and Jones Lang LaSalle Limited (i)
irrevocably designates and appoints Jones Lang LaSalle Incorporated, 200
East Randolph Drive, Chicago, Illinois 60601 (together with any successor,
the "Authorized Agent"), as its authorized agent upon which process may be
served in any suit, action or proceeding described in the first sentence of
this Section 11.13 and represents and warrants that the Authorized Agent
has accepted such designation and (ii) agrees that service of process upon
the Authorized Agent and written notice of said service to the Company or
Jones Lang LaSalle Limited, as the case may be (mailed or delivered to the
Corporate Secretary of JLL at the address set forth in Section 11.02),
shall be deemed in every respect effective service of process upon the
Company or Jones Lang LaSalle Limited, as the case may be, in any such suit
or proceeding. Each of the Company and Jones Lang LaSalle Limited further
agrees to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue
such designation and appointment of the Authorized Agent in full force and
effect so long as any of the Notes shall be outstanding.
(c) To the extent that the Company or Jones Lang LaSalle Limited
has or hereafter may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service of notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such
immunity in respect of its obligations under the above-referenced
documents, to the extent permitted by law.
SECTION 11.16. Judgment Currency. Each of the Company and Jones
Lang LaSalle Limited hereby agrees to indemnify the Trustee, its directors,
its officers and each person, if any, who controls the Trustee within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any loss incurred by such person as a result of any judgment or
order being made or given against the Company or Jones Lang LaSalle
Limited, as the case may be, for any U.S. dollar amount due under this
Agreement and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than U.S. dollars and as a result of any
variation as between (i) the rate of exchange at which the U.S. dollar
amount is converted into the Judgment Currency for the purpose of such
judgment or order and (ii) the spot rate of exchange in The City of New
York on which such party on the date of payment of such judgment or order
is able to purchase U.S. dollars with the amount of the Judgment Currency
actually received by such party. The foregoing indemnity shall continue in
full force and effect notwithstanding any such judgment or order. The term
"spot rate of exchange" shall include any premiums or costs of exchange
payable in connection with the purchase of, or conversion into U.S.
dollars.
SECTION 11.17. Method of Payment. (a) Euro is the sole currency of
account and payment for all sums payable by the Company under or in
connection with the Notes, including damages, except as otherwise set forth
in this Section 11.17.
(b) Investors who hold beneficial interests in the Notes, directly
or indirectly, through DTC ("DTC Noteholders") will be paid in U.S. dollars
converted from such payments in Euro by the Paying Agents unless the
registered Holder, on behalf of any such owner of beneficial interests,
elects to receive payments in Euro.
Upon receipt of notice of such election and wire transfer
instructions on or prior to the fourth New York Business Day (as defined in
clause (d) below) after the record date for any payment of interest and on
or prior to the sixth New York Business Day prior to the payment of
principal, the Paying Agent will make such payments in Euro to the Euro
accounts of the relevant Holders.
The Exchange Rate Agent shall convert the remainder of the aggregate
amount of such payments into U.S. dollars, based on the Exchange Rate
Agent's bid quotation, at or prior to 11:00 a.m., New York City time, on
the second New York Business Day preceding the date of such payment, for
the exchange of the aggregate amount of Euros which are to be exchanged for
payment in U.S. dollars on the date of such payment. If such bid quotation
is not available, all such payments will be made in Euro, outside DTC to
Euro accounts maintained by such DTC Noteholders.
(c) Investors who hold beneficial interests in the Notes, directly
or indirectly, through Euroclear and/or Clearstream ("Euroclear/Clearstream
Noteholders") will be paid in Euros by the Paying Agent unless the
registered Holder, on behalf of any such Euroclear/Clearstream Noteholders,
elects to receive payments in U.S. dollars.
Upon receipt of notice of such election and wire transfer
instructions on or prior to the fourth New York Business Day (as defined in
clause (d) below) after the record date for any payment of interest and on
or prior to the sixth New York Business Day prior to the payment of
principal, the Paying Agents will make such payments in U.S. dollars to the
U.S. dollar accounts of the relevant Holders.
The Exchange Rate Agent will convert the aggregate amount of such
payments to be made to Euroclear/Clearstream Noteholders in U.S. dollars,
based on the Exchange Rate Agent's bid quotation, at or prior to 11:00
a.m., New York City time, on the second New York Business Day preceding the
date of such payment, for the exchange of the aggregate amount of Euros
which are to be exchanged for payment in U.S. dollars on the date of such
payment. If such bid quotation is not available, all such payments will be
made in Euros.
(d) All costs of conversion, if any, will be borne by such DTC
Noteholders or Euroclear/ Clearstream Noteholders, as the case may be, by
deduction from such payments. All costs of payment by wire transfer
referred to in paragraph (b) or (c) above will be borne by registered
holders receiving such payments by deduction from such payments. For
purposes of the foregoing, "New York Business Day" means any day that is
not a Saturday or Sunday and that, in The City of New York or Brussels, is
not a day on which banking institutions generally are authorized or
obligated by law or executive order to close.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
JONES LANG LASALLE FINANCE B.V.
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Managing Director
JONES LANG LASALLE INCORPORATED
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Senior Vice President
and Treasurer
JONES LANG LASALLE AMERICAS, INC.
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Treasurer
LASALLE INVESTMENT MANAGEMENT, INC.
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Treasurer
JONES LANG LASALLE INTERNATIONAL,INC.
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Treasurer
JONES LANG LASALLE CO-INVESTMENT,INC.
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Treasurer
LASALLE HOTEL ADVISORS, INC.
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Treasurer
JONES LANG LASALLE LIMITED
By: /s/ Brian P. Hake
Name: Brian P. Hake
Title: Authorized Signatory
THE BANK OF NEW YORK
By: /s/ Luis Perez
Name: Luis Perez
Title: Assistant Vice President
EXHIBIT A
---------
[APPLICABLE LEGENDS]
[FACE OF NOTE]
JONES LANG LASALLE FINANCE B.V.
9% Senior Note due 2007
[CUSIP] [CINS] [ISIN] [__________]
No. ____ __________
JONES LANG LASALLE FINANCE B.V., a private limited liability company
incorporated under the laws of the Netherlands (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to _____________, or its registered
assigns, the principal sum of ____________ euros (_____) on June 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing
December 15, 2000.
Regular Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Date : July 26, 2000 JONES LANG LASALLE FINANCE B.V.
By:
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 9% Senior Notes due 2007 described in the within-
mentioned Indenture.
Date: THE BANK OF NEW YORK,
as Trustee
By:
Authorized Signatory
[REVERSE SIDE OF NOTE]
JONES LANG LASALLE FINANCE B.V.
9% Senior Note due 2007
Capitalized terms used herein and not defined are used as defined in
the Indenture.
1. PRINCIPAL AND INTEREST.
The Company shall pay the principal of this Note on June 15, 2007.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest will be payable semiannually (to the holders of record of
the Notes at the close of business on the June 1 or December 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date,
commencing December 15, 2000.
If an exchange offer (the "Exchange Offer") registered under the
Securities Act is not consummated and a shelf registration statement (the
"Shelf Registration Statement") under the Securities Act with respect to
resales of the Notes is not declared effective by the SEC, on or prior to
the date that is six months after the Closing Date in accordance with the
terms of the Registration Rights Agreement dated July 19, 2000 among the
Company, the Guarantors (as defined herein) and Morgan Stanley & Co.
International Limited, Bank of America International Limited, BMO Nesbitt
Burns Corp. and Chase Manhattan International Limited, the annual interest
rate borne by the Notes shall be increased by 0.5% per annum from the rate
shown above accruing from the date that is six months after the Closing
Date, payable in cash semiannually, in arrears, on each Interest Payment
Date thereafter until the Exchange Offer is consummated or the Shelf
Registration Statement is declared effective by the SEC, whereupon the
interest rate will decrease permanently to the rate shown above. The Holder
of this Note is entitled to the benefits of such Registration Rights
Agreement.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from July 26,
2000; provided that, if there is no existing default in the payment of
interest and this Note is authenticated between a Regular Record Date
referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such Interest Payment Date. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if
any, and interest on overdue installments of interest, to the extent
lawful, at the same rate per annum payable on the principal of the Notes.
2. METHOD OF PAYMENT.
The Company shall pay interest (except defaulted interest) on the
principal amount of the Notes as provided above on each June 15 and
December 15, commencing December 15, 2000 to the persons who are Holders
(as reflected in the Security Register at the close of business on the
June 1 or December 1 immediately preceding the Interest Payment Date), in
each case, even if the Note is canceled on registration of transfer or
registration of exchange after such record date; provided that, with
respect to the payment of principal, the Company shall make payment to the
Holder that surrenders this Note to a Paying Agent on or after June 15,
2007.
The principal of, premium, if any, and interest on, and all other
amounts payable in respect of, the Restricted Globals will be paid (i) in
Euros to holders of interests in such Note who hold such interests through
Euroclear and/or Clearstream (the "Rule 144A Euroclear/Clearstream
Holders") and (ii) in U.S. dollars to holders of interests in such Note who
hold such interests through DTC (the "DTC Holders"). The principal of,
premium, if any, and interest on, and all other amounts payable in respect
of, the Regulation S Global will be paid in Euros to holders of interests
in such note (along with the Rule 144A Euroclear/Clearstream Holders, the
"Euroclear/Clearstream Holders").
Notwithstanding the payment provisions described above,
Euroclear/Clearstream Holders may elect to receive payments in respect of
(i) the Restricted Global and (ii) the Regulation S Global in U.S. dollars,
and DTC Holders may elect to receive payments in respect of the Restricted
Global in Euros. All costs of conversion resulting from such election will
be borne by such Holder. The Company may pay principal, premium, if any,
and interest by its check payable in such money. It may mail an interest
check to a Holder's registered address (as reflected in the Security
Register). If a payment date is a date other than a Business Day at a
place of payment, payment may be made at that place on the next succeeding
day that is a Business Day and no interest shall accrue for the intervening
period.
3. PAYING AGENT AND REGISTRAR.
Initially, the Trustee will act as authenticating agent, U.S. Paying
Agent, Registrar and agent for service of notice and demands, the Trustee
(through its London Branch) will act as Euro Paying Agent and KREDIETBANK
S.A. LUXEMBOURGEOISE will act as Paying Agent, Registrar and agent for
service of notice and demands in Luxembourg. The Company will maintain a
Paying Agent and Registrar in Luxembourg for so long as the Notes are
listed on the Luxembourg Stock Exchange. The Company may change any
authenticating agent, Paying Agent or Registrar without notice, except to
the extent such notice may be required by applicable law or the rules or
regulations of any exchange. The Company, any Subsidiary or any Affiliate
of any of them may act as Paying Agent, Registrar, co-Registrar and/or
agent for service of notice and demands.
4. INDENTURE; LIMITATIONS.
The Company issued the Notes under an Indenture dated as of July 26,
2000 (the "Indenture"), among the Company, JONES LANG LASALLE INCORPORATED,
("JLL"), as parent guarantor, JONES LANG LASALLE AMERICAS, INC., LASALLE
INVESTMENT MANAGEMENT, INC., JONES LANG LASALLE INTERNATIONAL, INC., JONES
LANG LASALLE CO-INVESTMENT, INC., LASALLE HOTEL ADVISORS, INC., and JONES
LANG LASALLE LIMITED, as guarantors (collectively with JLL, the "Guarantors
"), and THE BANK OF NEW YORK, as trustee (the "Trustee"). The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act. The Notes are subject
to all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms. To the extent permitted
by applicable law, in the event of any inconsistency between the terms of
this Note and the terms of the Indenture, the terms of the Indenture shall
control.
The Notes are general unsecured obligations of the Company.
The Company may, subject to Article Four of the Indenture and
applicable law, issue additional Notes under the Indenture.
5. OPTIONAL REDEMPTION.
The Notes are redeemable, at the Company's option, in whole or in
part, at any time or from time to time, on or after June 15, 2004 and prior
to maturity, upon not less than 30 nor more than 60 days' prior notice
mailed by first class mail to each Holder's last address, as it appears in
the Security Register, at the following Redemption Prices (expressed in
percentages of principal amount), plus accrued and unpaid interest, if any,
to the Redemption Date (subject to the rights of holders of record on the
relevant Regular Record Date that is on or prior to the Redemption Date to
receive interest due on the relevant Interest Payment Date), if redeemed
during the 12-month period commencing June 15 of the years set forth below:
Year Redemption Price
---- ----------------
2004 104.500%
2005 102.250%
2006 and thereafter 100.000%
In addition, at any time prior to June 15, 2003, the Company may
redeem up to 35% of the principal amount of the Notes (including additional
Notes, if any) with the Net Cash Proceeds of one or more sales of Capital
Stock (other than Disqualified Stock) of JLL to a person other than JLL or
any of its Subsidiaries, at any time or from time to time in part, at a
Redemption Price (expressed as a percentage of principal amount) of
109.000%, plus accrued and unpaid interest to the Redemption Date (subject
to the rights of holders of record on the relevant Regular Record Date that
is on or prior to the Redemption Date to receive interest due on the
relevant Interest Payment Date); provided that at least 65% of the
aggregate principal amount of the Notes (including additional Notes, if
any) originally issued remains outstanding after each such redemption and
notice of any such redemption is mailed within 90 days of each such sale of
Capital Stock.
In the event that (i) as a result of any change in, or amendments to,
any laws or treaties (or any regulations or rulings promulgated under any
laws or treaties) or any change in official position regarding the
application of such laws, treaties, regulations or rulings (including a
holding, judgment or order by a court of competent jurisdiction), which
change, amendment, application or interpretation becomes effective after
the Closing Date, the Company has become or would become obligated to pay,
on or prior to the next date on which any amount would be payable under or
with respect to the Notes, any Additional Amounts, and (ii) the Company
cannot reasonably arrange (without other material adverse consequences to
the Company or JLL) for another obligor to make such payment so as to avoid
the requirement to pay such Additional Amounts, the Company may redeem all,
but not less than all, the Notes at any time at 100% of the principal
amount thereof, together with accrued interest thereon, if any, to the
Redemption Date (subject to the rights of holders of record on the relevant
Regular Record Date that is on or prior to the Redemption Date to receive
interest due on the relevant Interest Payment Date).
The Notes will be redeemable at any time, at the option of the
Company, in whole or from time to time in part, upon not less than 30 nor
more than 60 days' prior notice, on any date prior to their maturity at a
Redemption Price equal to the sum of 100% of the principal amount thereof
and the Applicable Premium and any accrued and unpaid interest, to the
Redemption Date (subject to the rights of holders of record on the relevant
Regular Record Date that is on or prior to the Redemption Date to receive
interest due on the relevant Interest Payment Date).
In the case of any partial redemption, selection of the Notes for
redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes
are listed or, if the Notes are not listed on a national securities
exchange, by lot or by such other method as the Trustee in its sole
discretion shall deem to be fair and appropriate; provided that no Note of
_1,000 in principal amount or less shall be redeemed in part. If any Note
is to be redeemed in part only, the notice of redemption relating to such
Note shall state the portion of the principal amount thereof to be
redeemed. A new Note in principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation
of the original Note.
6. REPURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of any Change of Control, each Holder shall have
the right to require the repurchase of its Notes by the Company in cash
pursuant to the offer described in the Indenture at a purchase price equal
to 101% of the principal amount thereof plus accrued and unpaid interest,
if any, to the Payment Date.
A notice of such Change of Control will be mailed within 30 days
after any Change of Control occurs to each Holder at its last address as it
appears in the Security Register. Notes in original denominations larger
than _1,000 may be sold to the Company in part. On and after the Payment
Date, interest ceases to accrue on Notes or portions of Notes surrendered
for purchase by the Company, unless the Company defaults in the payment of
the purchase price.
7. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons in denominations of
_1,000 of principal amount and multiples of _1,000 in excess thereof. A
Holder may register the transfer or exchange of Notes in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any
taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer or exchange of any Notes selected
for redemption. Also, it need not register the transfer or exchange of any
Notes for a period of 15 days before the day of mailing of a notice of
redemption of Notes selected for redemption.
8. PERSONS DEEMED OWNERS.
A Holder shall be treated as the owner of a Note for all purposes.
9. UNCLAIMED MONEY.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay
the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an abandoned
property law designates another person, and all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
If the Company deposits with the Trustee money, Government
Obligations and/or U.S. Government Obligations that through the payment of
interest and principal in respect thereof will provide amounts sufficient
to pay the then outstanding principal of, premium, if any, and accrued
interest on the Notes (a) to redemption or maturity, each the Company and
the Guarantors will be discharged from the Indenture and the Notes, except
in certain circumstances for certain provisions thereof, and (b) to the
Stated Maturity, each the Company and the Guarantors will be discharged
from certain covenants set forth in the Indenture.
11. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the
consent of the Holders of at least a majority in principal amount of the
Notes then outstanding. Without notice to or the consent of any Holder,
the parties thereto may amend or supplement the Indenture or the Notes to,
among other things, cure any ambiguity, defect or inconsistency and make
any change that does not materially and adversely affect the rights of any
Holder.
12. RESTRICTIVE COVENANTS.
The Indenture imposes certain limitations on the ability of JLL and
its Restricted Subsidiaries, including the Company, among other things, to
Incur additional Indebtedness, make Restricted Payments, suffer to exist
restrictions on the ability of Restricted Subsidiaries to make certain
payments, issue Capital Stock of Restricted Subsidiaries, Guarantee
Indebtedness of JLL or any other Restricted Subsidiary, engage in
transactions with Affiliates, suffer to exist or incur Liens, enter into
sale-leaseback transactions, use the proceeds from Asset Sales, or merge,
consolidate or transfer substantially all of its assets. Within 90 days
after the end of the last fiscal quarter of each year, the Company and JLL
shall deliver to the Trustee an Officers' Certificate stating whether or
not the signers thereof know of any Default or Event of Default under such
restrictive covenants.
13. SUCCESSOR PERSONS.
When a successor person or other entity assumes all the obligations
of its predecessor under the Notes, a Note Guarantee, or the Indenture, the
predecessor person will be released from those obligations.
14. DEFAULTS AND REMEDIES.
The following events will be defined as "Events of Default" in the
Indenture:
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the
same becomes due and payable, and such default continues for a period of
30 days;
(c) default in the performance or breach of the provisions of
the Indenture described under Section 5.01 of the Indenture or the failure
to make or consummate an Offer to Purchase in accordance with Section 4.11
and Section 4.12 of the Indenture;
(d) the Company or any Guarantor defaults in the performance
of or breaches any other covenant or agreement of the Company or such
Guarantor in the Indenture or under the Notes (other than a default
specified in clause (a), (b) or (c) above) and such default or breach
continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company, any Guarantor or any Significant Subsidiary
having an outstanding principal amount of $10 million or more in the
aggregate for all such issues of all such persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of
default that has caused the Holder thereof to declare such Indebtedness to
be due and payable prior to its Stated Maturity and such Indebtedness has
not been discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such acceleration and/or (II) the failure to
make a principal payment at the final (but not any interim) fixed maturity
and such defaulted payment shall not have been made, waived or extended
within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance)
for the payment of money in excess of $10 million in the aggregate for all
such final judgments or orders against all such persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, any Guarantor or any Significant Subsidiary
and shall not be paid or discharged, and there shall be any period of
60 consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such persons to exceed
$10 million during which a stay of enforcement of such final judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company, any Guarantor or
any Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, any Guarantor or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company, any Guarantor or any Significant Subsidiary or
(C) the winding up or liquidation of the affairs of the Company, any
Guarantor or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days;
(h) the Company, any Guarantor or any Significant Subsidiary
(A) commences a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consents to the entry
of an order for relief in an involuntary case under any such law,
(B) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of the Company, any Guarantor or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company, any Guarantor
or any Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors; or
(i) any Note Guarantee or any Subsidiary Guarantee (other
than any Subsidiary Guarantee with respect to a Guarantor all of the
Capital Stock of which is sold in accordance with the provisions of Section
4.06 of the Indenture) ceases to be in full force and effect (except as
contemplated by the terms thereof) or any Guarantor denies or disaffirms
its obligations under the Indenture or its Note Guarantee.
If an Event of Default (other than an Event of Default specified in
clause (g) or (h) above that occurs with respect to the Company or any
Guarantor) occurs and is continuing under the Indenture, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes, then
outstanding, by written notice to the Company (and to the Trustee if such
notice is given by the Holders), may, and the Trustee at the request of
such Holders shall, declare the principal of, premium, if any, and accrued
interest on the Notes to be immediately due and payable, provided that, in
the event of a Guarantor default, JLL may elect to substitute another
Guarantor or Guarantors acceptable to at least one nationally-recognized
rating agency, in which case neither the Trustee nor the requisite
percentage of Holders shall have any right to declare the principal,
premium (if any) or interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal of, premium,
if any, and accrued interest shall be immediately due and payable. In the
event of a declaration of acceleration because an Event of Default set
forth in clause (e) above has occurred and is continuing, such declaration
of acceleration shall be automatically rescinded and annulled if the event
of default triggering such Event of Default pursuant to clause (e) shall be
remedied or cured by the Company, any Guarantor or the relevant Significant
Subsidiary or waived by the Holders of the relevant Indebtedness within
60 days after the declaration of acceleration with respect thereto. If an
Event of Default specified in clause (g) or (h) above occurs with respect
to the Company or a Guarantor, the principal of, premium, if any, and
accrued interest on the Notes then outstanding shall ipso facto become and
be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder. The Holders of at least a majority in
principal amount of the outstanding Notes by written notice to the Company
and to the Trustee, may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if (i) all existing
Events of Default, other than the nonpayment of the principal of, premium,
if any, and interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived and (ii) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
15. NOTE GUARANTEES.
The Company's obligations under the Notes are guaranteed, to the
extend permitted by law, on a senior unsubordinated basis by each
Guarantor. Each Guarantor's obligations with respect to its Note Guarantee
will, to the extent set forth in the Indenture, be senior in right of
payment to such Guarantor's existing and future debt that is by its terms
subordinated in right of payment to such Note Guarantee and ranking equally
in right of payment with all of such Guarantor's existing and future debt
that is not subordinated in right of payment to such Note Guarantee.
16. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for
the Company or its Affiliates and may otherwise deal with the Company or
its Affiliates as if it were not the Trustee.
17. NO RECOURSE AGAINST OTHERS.
No incorporator or any past, present or future partner, stockholder,
other equityholder, officer, director, employee or controlling person, as
such, of the Company or any Guarantor, as applicable, or of any successor
person shall have any liability for any obligations of the Company or such
Guarantor, under the Notes, such Note Guarantee or the Indenture, as
applicable, or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes and Note Guarantees.
18. AUTHENTICATION.
This Note shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Note.
19. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to
Minors Act).
The Company shall furnish a copy of the Indenture to any Holder upon
written request and without charge. Requests may be made to Jones Lang
LaSalle Incorporated, 200 East Randolph Drive, Chicago, Illinois 60601,
Attention: Corporate Secretary.
20. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE.
With respect to any suit, action or proceeding that may be brought in
connection with the Indenture, the Notes or any Note Guarantee, if any, the
Company irrevocably consents to the jurisdiction of any United States
federal or New York State court sitting in the Borough of Manhattan, The
City of New York, the State of New York and 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 suit, action or
proceeding and any claim of inconvenient forum, and irrevocably submits to
the non-exclusive jurisdiction of any such court in any such suit, action
or proceeding. In connection with the Note Guarantee of Jones Lang LaSalle
Limited, Jones Lang LaSalle Limited will submit to jurisdiction to
substantially the same extent.
Each of the Company and Jones Lang LaSalle Limited (i) irrevocably
designates and appoints Jones Lang LaSalle Incorporated, 200 East Randolph
Drive, Chicago, Illinois 60601 (together with any successor, the
"Authorized Agent"), as its authorized agent upon which process may be
served in any such suit, action or proceeding and (ii) agrees that service
of process upon the Authorized Agent and written notice of said service to
the Company or Jones Lang LaSalle Limited, as the case may be (mailed or
delivered to the Corporate Secretary of JLL at the address set forth in
Section 11.02 of the Indenture), shall be deemed in every respect effective
service of process upon the Company or Jones Lang LaSalle Limited, as the
case may be, in any such suit or proceeding.
To the extent that the Company or Jones Lang LaSalle Limited has or
hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service of notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such
immunity in respect of its obligations under the Indenture or the Notes, to
the extent permitted by law.
THIS NOTE AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this Note
shall be ____________________. The following decreases/increases in the
principal amount evidenced by this Note have been made:
Total
Principal
Amount
of this
Decrease in Increase in Global Note Notation
Principal Principal Follow- Made
Date of Amount of Amount of ing such by or on
Decrease/ this Global this Global Decrease/ Behalf of
Increase Note Note Increase Trust
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- --------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
- --------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing ________________________________________ attorney to
transfer said Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
UNLEGENDED REGULATION S GLOBAL AND
UNLEGENDED REGULATION S CERTIFICATED NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date the Shelf Registration Statement
is declared effective or (ii) the end of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that without
utilizing any general solicitation or general advertising that:
[Check One]
---------
[ ] (a) this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule 144A
thereunder.
or
--
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Note in the name of any person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 2.08 of the
Indenture shall have been satisfied.
Date:____________________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon the face of the within-
mentioned instrument in every particular, without alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act of 1933 and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
the Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in
order to claim the exemption from registration provided by Rule 144A.
Date:____________________ _____________________________________________
NOTICE: To be executed by an executive
officer
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to
Section 4.11 or 4.12 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.11 or 4.12 of the Indenture, state the amount (in
principal amount): ____________________.
Date:______________________________
Your Signature: ______________________________________________________
(Sign exactly as your name appears on the other side
of this Note)
Signature Guarantee: ______________________________
EXHIBIT B
---------
FORM OF CERTIFICATE
-------------------
____________________, __________
The Bank of New York
101 Barclay Street
New York, NY 10286
Attention: Corporate Trust Administration
Global Finance Unit
Re: Jones Lang LaSalle Finance B.V. (the "Company")
9% Senior Notes due 2007 (the "Notes")
--------------------------------------
Ladies and Gentlemen:
This letter relates to ____________________ principal amount of Notes
represented by a Note (the "Legended Note") which bears a legend outlining
restrictions upon transfer of such Legended Note. Pursuant to Section 2.02
of the Indenture dated as of July 26, 2000 (the "Indenture") relating to
the Notes, we hereby certify that we are (or we will hold such securities
on behalf of) a person outside the United States to whom the Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated under
the United States Securities Act of 1933. Accordingly, you are hereby
requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Notes, all in the
manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
Authorized Signature
EXHIBIT C
---------
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS
-----------------------------------------
____________________, __________
The Bank of New York
101 Barclay Street
New York, NY 10286
Attention: Corporate Trust Administration
Global Finance Unit
Re: Jones Lang LaSalle Finance B.V. (the "Company")
9% Senior Notes due 2007 (the "Notes")
--------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of ____________________
aggregate principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
dated as of July 26, 2000 (the "Indenture") relating to the Notes and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with such restrictions and
conditions and the Securities Act of 1933, amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be offered
or sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Notes within the time period
referred to in Rule 144(k) of the Securities Act, we will do so only (A) to
the Company or any subsidiary thereof, (B) in accordance with Rule 144A
under the Securities Act to a "qualified institutional buyer" (as defined
therein), (C) to an institutional "accredited investor" (as defined below)
that, prior to such transfer, furnishes (or has furnished on its behalf by
a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in
respect of an aggregate principal amount of less than $100,000, an opinion
of counsel acceptable to the Company that such transfer is in compliance
with the Securities Act, (D) outside the United States in accordance with
Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act
(if available) or (F) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any person
purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
Authorized Signature
EXHIBIT D
---------
FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
--------------------------------------------------
____________________, __________
The Bank of New York
101 Barclay Street
New York, NY 10286
Attention: Corporate Trust Administration
Global Finance Unit
Re: Jones Lang LaSalle Finance B.V. (the "Company")
9% Senior Notes due 2007 (the "Notes")
--------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of _________ aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933
and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferee]
By:
Authorized Signature
EXHIBIT E
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FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S GLOBAL
OR REGULATION S CERTIFICATED NOTE TO A RESTRICTED GLOBAL
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____________________, __________
The Bank of New York
101 Barclay Street
New York, NY 10286
Attention: Corporate Trust Administration
Global Finance Unit
Re: Jones Lang LaSalle Finance B.V.
9% Senior Notes due 2007 (the "Notes")
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Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of July 26,
2000 the ("Indenture") relating to the Notes. Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to __________ (being any integral multiple
of _1,000) principal amount of Notes beneficially held through interests in
the Regulation S Global or Regulation S Certificated Note (CUSIP (CINS) No.
_________) with [Euroclear] [Clearstream] (Common Code No. ______) through
____________ in the name of ______________ (the "Transferor") [Euroclear]
[Clearstream] account no. __. The Transferor hereby requests that on
[INSERT DATE] such beneficial interest in the Regulation S Global or
Regulation S Certificated Note be transferred or exchanged for an interest
in the Restricted Global (CUSIP No. _________) in the same principal
denomination and transfer to ____________ ([DTC account no.] [Euroclear
account no.] [Clearstream account no.] _________). If this is a partial
transfer, a minimum of _1,000 and any integral multiple of _1,000 in excess
thereof of the Regulation S Global or Regulation S Certificated Note will
remain outstanding.
In connection with such request, and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the United States Securities Act of 1933,
as amended (the "Securities Act"), to a transferee that the Transferor
reasonably believes is purchasing the Notes for its own account or an
account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, in each case
in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or
any other jurisdiction.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
Dated: ____________, ____
[Name of Transferor]
By: _____________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)