EXHIBIT 10.10
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ASSET PURCHASE AGREEMENT
dated as of December 31, 1996
by and among
LASALLE CONSTRUCTION LIMITED PARTNERSHIP
("Seller"),
LASALLE PARTNERS LIMITED
("LaSalle"),
▇▇▇▇▇ CONSTRUCTION COMPANY, L.P.
("Buyer")
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
("▇▇▇▇▇")
CONSTRUCTION MANAGEMENT BUSINESS OF
LASALLE CONSTRUCTION LIMITED
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TABLE OF CONTENTS
ARTICLE 1
Definitions
1.1 Definitions....................................................... 1
"Affiliate"........................................................... 1
"Agreement"........................................................... 1
"Assignment and Assumption Agreement"................................. 1
"Asset Liabilities"................................................... 1
"Business"............................................................ 1
"Buyer"............................................................... 1
"Closing Date" and "Closing".......................................... 1
"Code"................................................................ 1
"Contracts"........................................................... 2
"CPI"................................................................. 2
"Employees"........................................................... 2
"Equipment Leases".................................................... 2
"ERISA"............................................................... 2
"Excess Payments"..................................................... 2
"Excluded Assets"..................................................... 2
"Excluded Liabilities"................................................ 2
"GAAP"................................................................ 2
"Losses".............................................................. 2
"Net Earnings"........................................................ 2
"Payables"............................................................ 2
"Person".............................................................. 2
"Pre-Tax Net Cash Flow"............................................... 2
"Purchased Assets".................................................... 2
"Receivables"......................................................... 3
"Seller".............................................................. 3
"Seller's Auditors"................................................... 3
"Subleases"........................................................... 3
ARTICLE 2
Purchase and Sale
2.1 Agreements to Purchase and Sell................................ 3
2.2 Excluded Assets................................................ 4
2.3 Assumed Liabilities............................................ 4
2.4 Excluded Liabilities........................................... 5
2.5 Procedures for Purchased Assets not Transferable............... 5
ARTICLE 3
Purchase Price; Closing Adjustments
3.1 Purchase Price................................................ 6
3.2 Payments at Closing........................................... 6
3.2.1 Initial Consideration......................................... 6
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3.2.2 Net Unit Redemption Payment.................................... 6
3.3 Receivable Collection.......................................... 6
3.4 Income and Expenses............................................ 7
3.4.1 Pre-Closing Income............................................. 7
3.4.2 Pre-Paid Income and Expenses................................... 7
3.5 Additional Consideration....................................... 7
3.6 Purchase Option................................................ 7
ARTICLE 4
Closing
4.1 Closing Date................................................... 8
4.2 Transactions at Closing........................................ 8
4.2.1 Transfer of Purchase Assets.................................... 8
4.2.2 Payment of Purchase Price and Assumption of
Assumed Liabilities............................................ 8
4.2.3 Registrations and Listings..................................... 8
4.2.4 Equipment Leases............................................... 9
4.2.5 Computer Programs and Software................................. 9
ARTICLE 5
Representations, Warranties, Agreements and
Covenants of Seller and LaSalle
5.1 Organization................................................... 9
5.2 Due Authorization.............................................. 9
5.3 Title.......................................................... 10
5.4 Litigation..................................................... 10
5.5 Brokers........................................................ 10
5.6 Employees...................................................... 10
5.7 ERISA.......................................................... 10
5.8 "As is, where is".............................................. 10
ARTICLE 6
Representations, Warranties, Agreements and
Covenants of Buyer
6.1 Organization................................................... 11
6.2 Due Authorization.............................................. 11
6.3 Consents....................................................... 11
6.4 Litigation..................................................... 11
6.5 No Broker...................................................... 12
ARTICLE 7
Employees' Pension and Other Benefit Plans
7.1 Employees...................................................... 12
7.2 Employee Benefit Plans......................................... 13
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ARTICLE 8
Pre-Closing Covenants of Seller and Buyer
8.1 Partnership and Other Actions.................................. 13
8.2 Consents and Approvals......................................... 13
8.3 Access to Information.......................................... 14
ARTICLE 9
Conditions
9.1 Conditions to Obligations of Seller............................ 14
9.1.1 Performance of Agreements and Conditions....................... 14
9.1.2 Representations and Warranties True............................ 14
9.1.3 Opinion of Counsel............................................. 14
9.1.4 Payment of Purchase Price...................................... 14
9.1.5 No Court Order................................................. 14
9.1.6 Subleases...................................................... 14
9.1.7 Board Approval................................................. 14
9.2 Conditions to Obligations of Buyer............................. 15
9.2.1 Performance of Agreements and Covenants........................ 15
9.2.2 Representations and Warranties True............................ 15
9.2.3 Opinion of Counsel............................................. 15
9.2.4 No Court Order................................................. 15
9.2.5 Subleases...................................................... 15
9.2.6 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇............................................... 15
ARTICLE 10
Post Closing Covenants of Seller
10.1 Bonding........................................................ 15
10.2 Cash Management and Working Capital............................ 16
10.3 Referrals...................................................... 17
10.4 New Office Lease............................................... 17
10.5 Administrative Service......................................... 17
ARTICLE 11
Post-Closing Covenants of Buyer
11.1 Assumed Liabilities............................................ 18
11.2 Availability of Records........................................ 18
11.3 Use of Trade or Service Marks.................................. 18
11.4 Tax Matters.................................................... 19
11.5 Operating Covenants............................................ 19
ARTICLE 12
Default Rights Regarding ▇▇▇▇▇.................... 22
ARTICLE 13
Indemnification and Survival
13.1 Indemnification by Seller...................................... 22
13.2 Indemnification by Buyer....................................... 23
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ARTICLE 14
Termination
14.1 Termination of Agreement................................... 23
14.1.1 Mutual Consent.................................... 23
14.1.2 By Seller......................................... 23
14.1.3 By Buyer.......................................... 23
14.2 Written Notice............................................. 24
14.3 Continuing Confidentiality................................. 24
ARTICLE 15
Miscellaneous
15.1 Assignment................................................. 24
15.2 Announcements.............................................. 24
15.3 Confidentiality............................................ 24
15.4 Expenses................................................... 24
15.5 Severability............................................... 24
15.6 Entire Agreement........................................... 25
15.7 No Third Party Beneficiaries............................... 25
15.8 Waiver..................................................... 25
15.9 Governing Law.............................................. 25
15.10 Headings................................................... 25
15.11 Counterparts............................................... 25
15.12 Choice of Forum............................................ 25
15.13 Further Documents.......................................... 25
15.14 Notices.................................................... 25
15.15 Survival................................................... 26
15.16 Construction............................................... 26
15.17 Nonrecourse Loan........................................... 26
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SCHEDULES
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Schedule 2.1(d) Contracts
Schedule 2.2(c) Receivables
Schedule 2.4(a) Payables
Schedule 2.4(b) Claims for Defective Work
Schedule 4.2.4 Equipment Leases
Schedule 6.4 Litigation
Schedule 7.1 Current Employees
Schedule 10.5 Services provided by LaSalle Partners to Buyer
EXHIBITS
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Exhibit A - Assignment and Assumption Agreement
Exhibit B - Subleases
Exhibit C - Note
Exhibit D - Security Agreement
Exhibit E - UCC-1 Financing Statement
Exhibit F - 1996 Business Plan
Exhibit G - Example of Additional Consideration
Exhibit H - Opinion of Counsel to Buyer
Exhibit I - Opinion of Counsel to Seller
Exhibit J - Working Capital Note
Exhibit K - Calculation of l995 Net Earnings
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ASSET PURCHASE AGREEMENT
THIS AGREEMENT, dated as of December 31, 1996, is entered into by and
between LASALLE CONSTRUCTION LIMITED PARTNERSHIP, a Delaware limited partnership
("Seller"), LASALLE PARTNERS LIMITED, a Delaware limited partnership
("LaSalle"), ▇▇▇▇▇ CONSTRUCTION COMPANY, L.P. a Delaware limited partnership
("Buyer"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an Illinois resident ("Clune").
WHEREAS, LaSalle owns Seller, and Seller is in the business, inter
alia, of providing general contracting services for the construction of interior
tenant space in commercial buildings in Chicago and Los Angeles (the
"Business"); and,
WHEREAS, Seller desires to sell certain assets of the Business on the
terms and conditions set forth below; and
WHEREAS, the Business is currently managed by ▇▇▇▇▇, and ▇▇▇▇▇ has
organized Buyer to purchase such assets from Seller on the terms and conditions
set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants,
agreements and provisions herein contained, the parties hereto agree as follows:
ARTICLE 1
Definitions
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1.1 Definitions. The following terms have the following meanings when used
herein:
"Affiliate" means with respect to any Person, any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. Affiliates of Buyer shall include, without
limitation, ▇▇▇▇▇ and Dublin Construction Company.
"Agreement" means this Asset Purchase Agreement, including all Schedules
and Exhibits hereto, as it may be amended from time to time in accordance with
its terms.
"Assignment and Assumption Agreement" means the Assignment and Assumption
Agreement and ▇▇▇▇ of Sale in the form of Exhibit A attached hereto.
"Assumed Liabilities" has the meaning set forth in Section 2.3.
"Business" has the meaning set forth in the recitals hereof.
"Buyer" has the meaning set forth in the recitals hereof.
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"Closing Date" and "Closing" refer to the date, time, and place for the
closing of the transactions described in this Agreement and the closing referred
to in Section 4.1.
"Code" means the Internal Revenue code of 1986, as amended.
"Contracts" has the meaning set forth in Section 2.1.
"CPI" means the Consumer Price Index for All Urban Consumers (CPI-U), All
Items, U.S. City Average (1982-1984 equals 100), published by the United States
Department of Labor, Bureau of Labor Statistics.
"Employees" has the meaning set forth in Section 7.1.
"Equipment Leases" means the equipment leases listed on Schedule 4.2.4.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Excess Payments" has the meaning set forth in Section 11.5(g).
"Excluded Assets" has the meaning set forth in Section 2.2.
"Excluded Liabilities" has the meaning set forth in Section 2.4.
"GAAP" means generally accepted accounting principles consistently applied
from period to period and throughout any period.
"Losses" has the meaning set forth in Section 12.1.
"Net Earnings" for any year means the net earnings of Buyer for such year
as determined from the annual audited financial statements of Buyer delivered
pursuant to Section 11.5 of this Agreement, before giving effect to (i) all
interest payable or paid under the Note, (ii) depreciation and amortization, and
(iii) state and federal income taxes. An example of how Net Earnings were for
calendar year 1995, after deduction for such items, is set forth on Exhibit K.
"Payables" means all accounts, obligations and notes payable of the
Business which are listed on Schedule 2.4(a). With respect to each project which
the Business has in progress on the Closing Date, Seller and Buyer have
estimated the portion of the project which has been completed prior to Closing
and have included on Schedule 2.4(a) the amount of Payables which are
attributable to such portion of the project, whether or not an invoice has been
issued with respect thereto. Buyer and Seller agree that Schedule
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2.4 (a) (Accounts Payable Listing by Vendor) is a good faith estimate of the
Payables prepared by Buyer as of the Closing date. Buyer agrees to prepare an
updated and final version of this listing for review and acceptance by Seller no
later than January 28, 1997.
"Person" means any individual, corporation, partnership, joint venture,
trust or unincorporated organization or government or any agency or political
subdivision thereof.
"Pre-Tax Net Cash Flow" for any year means Net Earnings for such year, less
interest payable under the Note for such year. Pre-Tax Net Cash Flow shall be
determined prior to any deduction for capital expenditures incurred by Buyer or
Excess Payments.
"Purchased Assets" has the meaning set forth in Section 2.1.
"Receivables" means all rights to payment, accounts, obligations and notes
receivable of the Business which are listed on Schedule 2.2(c). With respect to
each project which the Business has in progress on the Closing Date, Seller and
Buyer have estimated the portion of the project which has been completed prior
to Closing and have included on Schedule 2.2(c) the amount of Receivables which
are attributable to such portion of the project, whether or not an invoice has
been issued with respect thereto. Buyer and Seller agree that Schedule 2.2 (c)
(Account Receivable Sub-ledger) is a good faith estimate of the Receivables
prepared by Buyer as of the Closing date. Buyer agrees to prepare an updated and
final version of this listing for review and acceptance by Seller no later than
January 28, 1997.
"Seller" has the meaning set forth in recitals hereof.
"Seller's Auditors" has the meaning set forth in Section 3.3.
"Subleases" means the subleases set forth in Exhibit B attached hereto.
ARTICLE 2
Purchase and Sale.
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2.1 Agreements to Purchase and Sell. Subject to the terms and conditions
and upon the basis of the agreements, representations and warranties contained
herein, at the Closing on the Closing Date Seller shall sell, transfer, convey,
assign and deliver to Buyer, and Buyer shall purchase and accept from Seller,
all right, title, and interest of Seller in and to all of the properties, assets
and rights of any kind, whether tangible or intangible, real or personal, of
Seller used primarily in the Business and existing on the Closing Date except
for the Excluded Assets (collectively, the "Purchased Assets"), including,
without limitation:
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(a) all assets and supplies owned by Seller for use primarily in the
Business as of the Closing;
(b) all stock in trade, work-in-process and inventory relating
primarily to the Business;
(c) all records, customer lists and business files of Seller relating
primarily to the Business;
(d) all rights and interest of Seller to or in all agreements, options
contracts and bids which are listed on Schedule 2.1(d) (the "Contracts");
(e) all licenses, approvals, certificates, permits, franchises, or
other evidence of authority issued by a Federal, state, local or foreign
governmental agency or authority relating primarily to the Business to the
extent assignable.
(f) all furniture and equipment used primarily in the Business; and
(g) all computer programs and software used primarily in the Business
to the extent Seller is legally permitted to transfer such programs and
software.
Promptly after Closing, Buyer and Seller shall jointly prepare a list of all
furniture and equipment which is included as a part of the Purchased Assets.
2.2 Excluded Assets. The Seller shall not sell, transfer or assign, and the
Buyer shall not purchase, the following assets of the Seller (such assets being
collectively referred to hereinafter as the "Excluded Assets"):
(a) all rights of Seller arising under this Agreement and the
consummation of the transactions contemplated hereby;
(b) all cash, bank deposits and marketable securities;
(c) all Receivables, except to the extent they are expressly
transferred to Buyer pursuant to the terms set forth below;
(d) all corporate minute books, stock records and tax returns of
Seller and such other similar corporate books and records of Seller as may exist
on the Closing Date; provided however, that Buyer shall be entitled to obtain
copies of such other records of Seller relating to the Purchased Assets as Buyer
may reasonably require in connection with the operation of the Business or use
of the Purchase Assets subsequent to the Closing;
(e) all interests in and to the names "LaSalle", "LaSalle Partners"
and "LaSalle Construction" and all variants thereof and
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all rights to the use of such names as trademarks; all listings pertaining to
Seller and Seller's Affiliates in all telephone books and directories; and
stationery, forms, labels, shipping material, catalogs, brochures, art work,
photographs and advertising and promotional materials related to Seller or
Seller's Affiliates;
(f) Seller's leases at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in Chicago, Illinois
and at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ in Los Angeles, California (the "Leases");
(g) all rights to refunds of taxes; and
(h) all property, wherever situated, not primarily used in the
Business, without limitation, all property used by Seller's Project Management
Group.
2.3 Assumed Liabilities. On the Closing Date, subject to the provisions
of Section 2.4 hereof, Buyer shall assume all liabilities and obligations of
Seller relating to the Business except for the Excluded Liabilities
(collectively, the "Assumed Liabilities"), including, without limitation:
(a) all the obligations of Seller under the Contracts and any other
agreements, options, contracts, leases (excluding the Leases), instruments,
purchase orders, sales orders, and commitments (including outstanding bids) of
Seller related to the Business;
(b) any sales, use, transfer or other tax (other than income tax) or
recording cost imposed upon the sale or transfer of the Purchased Assets
pursuant to this Agreement to the extent imposed by law on the Buyer;
(c) all claims, including warranty claims for defective work or breach
of contract (i) performed by the Business prior to the Closing Date to the
extent ▇▇▇▇▇ or his project managers had actual knowledge of any defective work
or breach of contract and did not disclose it to Seller in writing prior to the
date hereof, and (ii) performed by the Business after the Closing Date;
(d) the obligations assumed by Buyer pursuant to Section 7 hereof; and
(e) any termination and severance pay for all Employees for which
Buyer is liable under Section 7.1.
2.4 Excluded Liabilities. The Buyer does not assume and will not become
responsible for any of the following liabilities and obligations of the Seller
(collectively, the "Excluded Liabilities"):
(a) any Payables, except to the extent they are
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expressly transferred to the Buyer pursuant to the terms hereof; and
(b) any claims for defective work or breach of contract performed by
the Business prior to Closing except for claims arising out of defective work or
breach of contract which ▇▇▇▇▇ or his project managers had actual knowledge of
and did not disclose on Schedule 2.4(b) or to LaSalle in writing prior to the
date hereof.
2.5 Procedures for Purchased Assets not Transferable. If any of the
Contracts or any other property or rights included in the Purchased Assets are
not assignable or transferable by virtue of the provisions thereof or under
applicable law without the consent of some party or parties, Seller shall use
all commercially reasonable efforts to obtain such consents after the execution
of this Agreement, but prior to the Closing Date, and ▇▇▇▇▇ shall use all
commercially reasonable efforts to assist in that endeavor. If any such consent
cannot be obtained prior to the Closing Date and the Closing occurs, this
Agreement and the related instruments of transfer shall not constitute an
assignment or transfer thereof and the Buyer shall not assume Seller's
obligations with respect thereto, but Seller shall use all commercially
reasonable efforts to obtain such consent as soon as possible after the Closing
Date or otherwise obtain for Buyer the practical benefit of such property or
rights and ▇▇▇▇▇ shall use all commercially reasonable efforts to assist in that
endeavor. Until such consent is obtained, Buyer shall perform on behalf of
Seller all obligations under the applicable agreement after Closing, and Buyer
shall be entitled to all benefits received by Seller in connection therewith.
ARTICLE 3
Purchase Price; Closing Adjustments.
3.1 Purchase Price. The total purchase price for the Purchased
Assets shall be an amount equal to (i) $9,100,000 (the "Initial Consideration"),
(ii) the assumption of the Assumed Liabilities, and (iii) the Additional
Consideration (defined below).
3.2 Payments at Closing
3.2.1 Initial Consideration. The Initial Consideration shall be paid
at Closing as follows; (i) Buyer shall pay Seller at Closing an amount equal to
the Net Unit Redemption Payment (defined below) which shall be applied against
the Initial Consideration, and (ii) the balance of the Initial Consideration
shall be paid by execution and delivery of a promissory note (the "Note") in the
form of Exhibit C attached hereto. The Note shall be secured by a pledge (the
"Pledge") in the form of Exhibit D attached hereto. The Pledge shall be
perfected by a UCC-1 financing statement in the
6
form of Exhibit E attached hereto (the "UCC-1 Financing Statement"), which shall
be filed with the Illinois Secretary of State. (The Note, Pledge and UCC-1
Financing Statement are herein referred to as the "Loan Documents.")
3.2.2 Net Unit Redemption Payment. At Closing ▇▇▇▇▇ shall withdraw
as a partner from DEL-LPL Limited Partnership and DEL-LPML Limited Partner
(collectively referred to herein as "DEL"), and Seller shall cause DEL to redeem
all of ▇▇▇▇▇'▇ partnership units in DEL (the "Units") pursuant to the terms of
the DEL Partnership Agreement, as amended. The amount payable to ▇▇▇▇▇ pursuant
thereto, net of any outstanding loans from DEL to ▇▇▇▇▇, shall be known as the
"Net Unit Redemption Payment." (As of the date hereof, the Net Unit Redemption
Payment would be $85,859.95.) Under the terms of the DEL Partnership Agreement
with DEL, the Net Unit Redemption Payment is paid partly in cash (in the amount
of $25,759.15) and partly in a promissory note from DEL to ▇▇▇▇▇ (in the amount
of $60,100.80). The cash portion of the Net Unit Redemption Payment shall be
paid in cash by Buyer to Seller at Closing, and the promissory note shall be
assigned to Buyer and then to Seller at Closing. In addition, any outstanding
call options for units in DEL which are held by ▇▇▇▇▇ shall be terminated at
Closing, and ▇▇▇▇▇ shall have no right to purchase any additional units in DEL
prior to Closing. ▇▇▇▇▇ shall also resign from Seller and LaSalle as of Closing,
and neither Seller nor LaSalle shall have any obligation to pay ▇▇▇▇▇ any
termination or severance payments as a result of the termination of his
employment with Seller or LaSalle; provided, however, if Seller shall receive at
least $1,465,000 in Net Earnings from LaSalle Construction Limited for calendar
year 1996, Seller shall pay ▇▇▇▇▇ at, least one hundred percent (100%) of his
target bonus for 1996 which is payable in January of 1997.
3.3 Receivable Collection. Buyer and Seller cooperate with each other
to enable Seller to collect all Receivables and pay all Payables when due. If
Buyer receives payment on any Receivable after Closing, Buyer shall promptly
remit such payment to Seller. Any amounts collected from any third party shall
be applied first to the earliest receivable which is then owed by such third
party (unless a dispute exists with regard to such receivable) and then to each
successive' invoice until the Receivables shall have been paid in full. From and
after the Closing Date, Buyer shall use the same collection methods customarily
used by Buyer in the collection of its own accounts to assist Seller in the
collection of the Receivables (except Buyer shall have no obligation to commence
litigation or place any account receivable with any third party for collection).
Seller shall have the right to commence litigation or use other reasonable means
to collect any such Receivables for the period prior to January 1, 1996, and
Buyer shall reasonably cooperate with Seller's efforts to collect such
Receivables. Seller shall indemnify and hold Buyer harmless from any and all
claims and liabilities arising out of such collection efforts.
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3.4 Income and Expenses.
3.4.1 Pre-Closing Income. Seller shall be entitled to all Net Earnings
from Seller's business, including the construction management business and the
project management business, which is attributable to work performed in calendar
year 1996, and Buyer guaranties that the amount of such Net Earnings shall be
equal to the greater of (i) $1,465,000 or (ii) the Net Earnings from such
business for calendar year 1996 as set forth on the books of the Seller as of
December 31, 1996. (An estimate of such net income is set forth in the business
plan of Seller for calendar year 1996 which is attached hereto as Exhibit F.) If
Seller has not received such amount by April 30, 1997, Buyer shall pay Seller on
April 30, 1997, the difference between such amount and what Seller has received
by such date; and Seller shall assign to Buyer all remaining Receivables and all
remaining Payables for calendar year 1996.
3.4.2 Pre-Paid Income and Expenses. If Seller has collected any
payments or deposits for work to be done by the Business after the Closing Date,
Seller shall give Buyer a credit for such funds at Closing; and, if Seller has
paid any expenses for work to be done by the Business after the Closing Date,
Buyer shall give Seller a credit at Closing for such expenses.
3.5 Additional Consideration. At maturity or prepayment in full of
the Note, Buyer shall pay Seller additional cash consideration (the "Additional
Consideration") in an amount equal to the excess of the value of Buyer at such
time determined in accordance with the methodology described in Section 3.6 over
the amount of principal and interest then due to Seller other than by reason of
this Section 3.5; provided, however, in no event shall the Additional
Consideration exceed an amount that, when combined with all other cash payments
with respect to the Initial Consideration (including principal and interest
payments on the Note) and payments for the administrative services as set forth
below (but excluding payments pursuant to Section 3.3 above) received by Seller
(determined, with respect to any capital gains, on an after-tax basis with
Seller being assumed to have a capital gains tax rate equal to the highest
capital gains tax rate in effect from time to time), discounted at the Discount
Rate (defined below) from the payment dates to the date of Closing, will equal
$9,100,000. An example of how the Additional Consideration will be calculated is
attached hereto as Exhibit G. The Discount Rate shall equal 12.5% if the Note is
paid in full prior to the fifth anniversary of the Closing, 12.75% if the Note
is paid in full on or after the fifth anniversary of the Closing and prior to
the seventh anniversary of the Closing, and 13.25% if the Note is paid in full
on or after the seventh anniversary of the Closing. Buyer's obligation to pay
the Additional Consideration shall be secured by the Pledge and UCC-1 Financing
Statement.
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3.6 Purchase Option. Seller shall have the option to acquire up to
forty-nine and 9/10 percent (49.9%) of the ownership interest in Buyer on the
carrier of the tenth anniversary of the Closing or the prepayment of the Note.
Seller shall give Buyer written notice of the exercise of its option at least
thirty (30) days prior to the tenth anniversary of the Closing or the prepayment
of the Note, as the case may be; and Buyer shall give Seller at least sixty (60)
days prior written notice of its intention to prepay the Note. The Purchase
price shall equal the percentage of Buyer being purchased by Seller multiplied
by the value of Buyer at the time of the purchase, as determined by an
independent appraiser experienced in the valuation of similar businesses,
mutually acceptable to Seller and Buyer. If Buyer and Seller cannot agree on the
appraisal within thirty (30) days after Seller delivers notice exercising its
option, either party may apply to the American Arbitration Association for the
appointment of the appraiser, whose determination shall be final and binding on
the parties. If Seller exercises its purchase option, Buyer shall have the right
to apply all or part of the outstanding principal and any accrued interest on
the Note and/or the Additional Consideration towards such purchase price, with
any excess of the purchase price over these amounts to be paid by Seller in
cash. If Buyer has multiple classes of equity, Seller's option set forth in this
paragraph shall be to purchase up to forty-nine and 9/10 percent (49.9%) of each
class based on the appraiser's valuation of each such class. In connection with
the sale of the ownership interest to Seller, Buyer shall make representations
and warranties which are customary in similar transactions including those being
made by Seller herein and representations regarding knowledge of undisclosed
liabilities.
ARTICLE 4
Closing.
4.l Closing Date. The Closing hereunder shall take place at the
office of Seller, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at such
place as Seller and Buyer may agree; provided, however, the Closing shall be
deemed effective as of 11:59 p.m. on December 31, 1996.
4.2 Transactions at Closing. At the Closing, and on the basis of the
representations, warranties, covenants and agreements made herein and in the
exhibits hereto and in the certificates and other instruments delivered pursuant
hereto, and subject to the terms and conditions hereof;
4.2.1 Transfer of Purchased Assets. Seller shall transfer and convey
or cause to be transferred and convey to Buyer all of the Purchased Assets,
delivering to Buyer the Assignment and Assumption Agreement, and such other
good and sufficient instruments of transfer and conveyance as shall be necessary
to vest in Buyer all right and title in and to all of the Purchased
9
Assets. In addition, Seller shall deliver (a) the certificate required by
Section 9.2.2. (b) the opinion required by Section 9.2.3., (c) UCC, judgment
and tax lien searches showing no liens or encumbrances on the Purchased Assets,
and (d) the Subleases.
4.2.2 Payment of Purchase Price and Assumption of Assumed Liabilities.
In consideration for the sale and transfer of the Purchased Assets, Buyer shall
pay to Seller an amount equal to the Net Unit Redemption Payment, execute and
deliver to Seller the Note, Pledge and UCC-1 Financing Statement, and execute
and deliver to Seller the Assignment and Assumption Agreement, whereby Buyer
assumes the Assumed Liabilities. In addition, Buyer shall deliver (a) the
certificate required by Section 9.1.2, (b) the opinion required by Section
9.1.3., (c) UCC, judgment and tax lien searches showing no liens or encumbrances
on the assets of Buyer, and (d) the Subleases.
4.2.3 Registrations and Listings. Buyer shall at its sole cost and
expense cause all registrations and listings for the Purchased Assets, including
any cars and telephones, to be transferred to Buyer as soon as possible after
Closing. Seller shall assist Buyer in making such transfers, including
assigning to Buyer any automobile registrations in Seller's possession.
4.2.4 Equipment Leases. At Closing, Seller shall assign to Buyer the
Equipment Leases, and Buyer shall assume all of Seller's obligations thereunder
accruing from and after Closing.
4.2.5 Computer Programs and Software. To the extent Seller has any
computer programs or software which is used primarily with the Purchased Assets
and can be legally assigned to Seller, Seller shall assign all of its right,
title and interest in such programs and software to Buyer at Closing.
ARTICLE 5
Representations, Warranties, Agreements and
Covenants of Seller and LaSalle
Seller and LaSalle represent and warrant to, and agree with, Buyer as
follows:
5.1 Organization. Seller is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware,
duly qualified to transact business as a foreign limited partnership in such
jurisdictions where the nature of the Business makes such qualification
necessary, except as to jurisdictions where the failure to qualify could not
reasonably be expected to have a material adverse effect on Seller, and with all
requisite partnership power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. LaSalle is a
limited partnership duly organized, validly existing
10
and in good standing under the laws of the State of Delaware, duly qualified to
transact business as a foreign limited partnership in such jurisdictions where
the nature of its business makes such qualification necessary, except as to
jurisdictions where the failure to qualify could not reasonably be expected to
have a material adverse effect on LaSalle, and with all requisite partnership
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
5.2 Due Authorization. Seller has full power and authority to
execute, deliver and perform this Agreement, the Assignment and Assumption
Agreement and the Subleases, and the execution and delivery of this Agreement,
the Assignment and Assumption Agreement and the Subleases and the performance of
all obligations hereunder and thereunder have been duly authorized by Seller.
The signing, delivery and performance of this Agreement, the Assignment and
Assumption Agreement and the Subleases by Seller is not prohibited or limited
by, and will not result in the breach of or a default under, any provision of
the partnership agreement of Seller, or of any agreement or instrument binding
on Seller, or any applicable order, writ injunction or decree of any court of
governmental instrumentality, and will not result in any lien, encumbrance or
charge on any of the Purchased Assets. This Agreement has been, and on the
Closing Date, the Assignment and Assumption Agreement and the Subleases will
have been, duly executed and delivered by Seller and constitutes, or, in the
case of the Assignment and Assumption Agreement and the Subleases will have
been, duly executed and delivered by Seller and constitutes, or, in the case of
the Assignment and Assumption Agreement and the Subleases will constitute, the
legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms except as enforceability may be limited
or affected by applicable bankruptcy, insolvency, moratorium, reorganization or
other laws of general application relating to or affecting creditors' rights
generally. LaSalle has full power and authority to execute, deliver and perform
this Agreement, and the execution and delivery of this Agreement and the
performance of all obligations hereunder have been duly authorized by LaSalle.
The signing, delivery and performance of this Agreement by LaSalle is not
prohibited or limited by, and will not result in the breach of or a default
under, any provision of the partnership agreement of LaSalle, or of any
agreement or instrument binding on LaSalle, or any applicable order, writ
injunction or decree of any court or governmental instrumentality, and will not
result in any lien encumbrance or charge on any of the Purchased Assets. This
Agreement has been duly executed and delivered by LaSalle and constitutes the
legal, valid and binding obligations of LaSalle enforceable against LaSalle in
accordance with its terms except as enforceability may be limited or affected by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws of
general application relating to or affecting creditors' rights generally.
11
5.3 Title. Upon delivery to Buyer of the Assignment and Assumption
Agreement Buyer will receive good and valid title to all of the Purchased
Assets, free and clear of all liens (except for tax liens for taxes not yet due
and payable), encumbrances, charges and claims of every kind.
5.4 Litigation. There is no litigation proceeding or claim pending
or, to the best of Seller's or LaSalle's knowledge, threatened relating to or
affecting Seller's or LaSalle's ability to sell the Business or perform its
obligations hereunder.
5.5 Brokers. Seller has not engaged any order or any other person who
would be entitled to any brokerage fee or commission in respect of the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
5.6 Employees. Seller shall pay all wages, bonuses and other
benefits to the Employees which accrue prior to Closing in accordance with
Seller's customary policies and procedures; provided, however, in no event shall
Seller be liable for any severance or termination payments to the Employees.
Seller has in effect no policies or agreements which would give rise to an
entitlement on the part of the Employees to receive such payments.
5.7 ERISA. Neither (a) the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein (including without
limitation the exercise by Seller and LaSalle of their contractual rights
hereunder, and the performance by Seller and LaSalle of their obligations under
Section 10.3 hereof or the other provisions of this Agreement) nor (b) to
Seller's actual knowledge, the retention of Buyer to render services in respect
of any property or project for which LaSalle, Seller or their Affiliates are
managers or advisors will violate any provision of ERISA or any rules or
regulations promulgated thereunder.
5.8 "As is, where is". EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS ARTICLE 5, SELLER AND LASALLE ARE MAKING NO REPRESENTATION OR WARRANTY AS
TO THE PURCHASED ASSETS OR THE BUSINESS AND BUYER ACKNOWLEDGES AND AGREES THAT
EXCEPT AS OTHERWISE PROVIDED HEREIN SELLER IS SELLING AND CONVEYING THE
PURCHASED ASSETS AND THE BUSINESS ON AN "AS IS, WHERE IS" BASIS.
ARTICLE 6
Representations, Warranties, Agreements and Covenants of Buyer
Buyer represents and warrants to, and agrees with, Seller as follows:
6.1 Organization. Buyer is a limited partnership duly
12
qualified, validly existing and in good standing under the laws of the State of
Delaware, duly qualified to transact business as a foreign limited partnership
in all jurisdictions except where the failure to be so qualified could not
reasonably be expected to have a material adverse effect on Buyer, and with all
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted; provided, however, Buyer is not
yet qualified to do business in the State of California but shall promptly
qualify after Closing.
6.2 Due Authorization. Buyer has full power and authority to execute,
deliver and perform this Agreement, the Assignment and Assumption Agreement, the
Loan Documents and the Subleases, and the execution and delivery of this
Agreement, the Assignment and Assumption Agreement, the Loan Documents and the
Subleases and the performance of all obligations hereunder and thereunder have
been duly authorized by Buyer. The signing, delivery and performance of this
Agreement, the Assignment and Assumption Agreement, the Loan Documents and the
Subleases by Buyer is not prohibited or limited by, and will not result in the
breach of or a default under any provision of the partnership agreement of Buyer
or of any order, writ, injunction or decree of any court or governmental
instrumentality, and will not result in any lien, encumbrance or charge on any
of the Purchased Assets. This Agreement has been, and on the Closing Date the
Assignment and Assumption Agreement, the Loan Documents and the Subleases will
have been, duly executed and delivered by Buyer and constitutes, or, in the case
of the Assignment and Assumption Agreement, the Loan Documents and the Subleases
will constitute, the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with their respective terms except as enforceability
may be limited or affected by applicable bankruptcy, insolvency, moratorium,
reorganization or other laws of general application relating to or affecting
creditors' rights generally. ▇▇▇▇▇ has full power and authority to execute,
delivery and perform this Agreement. The signing, delivery and performance of
this Agreement by ▇▇▇▇▇ is not prohibited or limited by, and will not result in
the breach of or a default under any order, writ, injunction or decree of any
court or governmental instrumentality, and will not result in any lien,
encumbrance or charge on any of the Purchased Assets. This Agreement has been
duly executed and delivered by ▇▇▇▇▇ and constitutes the legal, valid and
binding obligation of ▇▇▇▇▇ enforceable against ▇▇▇▇▇ in accordance with its
terms except as enforceability may be limited or affected by applicable
bankruptcy, insolvency, moratorium, reorganization or other laws of general
application relating to or effecting creditors' rights generally.
6.3 Consents. No notice to, filing with, authorization of, exemption
by, or consent of, any person, entity or public authority is required for Buyer
or ▇▇▇▇▇ to consummate the transactions contemplated hereby.
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6.4 Litigation. There is no litigation, proceeding or claim pending
or, to the best of Buyers or ▇▇▇▇▇'▇ knowledge, threatened relating to or
affecting Buyer's or ▇▇▇▇▇'▇ ability to purchase or operate the Business or
assume the Assumed Liabilities relating thereto or perform their obligations
hereunder. To the best of ▇▇▇▇▇'▇ knowledge, except as disclosed in Schedule
6.4, there is no litigation pending or threatened with respect to the Business,
and ▇▇▇▇▇ is not aware of any claims for defective work by the Business.
6.5 No Broker. Buyer and ▇▇▇▇▇ have not engaged any broker or any
other person who would be entitled to any brokerage fee or commission in respect
of the execution and delivery this Agreement or the consummation of the
transactions contemplated hereby.
ARTICLE 7
Employees' Pension and Other Benefit Plans.
7.l Employees.
(a) Employees. Schedule 7.1 is a list of all of Seller's current
employees who work at or are employed in connection with the Business but does
not include Seller's project management group (the "Employees"). Buyer agrees to
offer employment to all of the Employees.
(b) Offers of Employment. The Employees shall remain on Seller's
payroll records until the Closing Date (except for those Employees terminated
with cause by Seller and those who voluntarily resign or retire), and shall be
paid by Seller all amounts of wages, bonuses and other remuneration (other than
accrued personal, sick and vacation pay, all of which are assumed by Buyer)
including without limitation, discretionary bonuses payable to such Employees
with respect to periods on or prior to the Closing Date pursuant to their
employment agreements, together with any work is compensation claims or amounts
payable to such Employees in connection with events occurring prior to the
Closing Date, Buyer agrees to offer employment effective as of the Closing Date,
on terms and conditions substantially equivalent to those on which they are
currently employed, to all Employees except for those who, prior to the Closing
Date, (i) are terminated with cause by Seller or (ii) voluntarily resign or
retire. Seller shall give Buyer, credit after Closing for up to $20,000 in
personal, sick or vacation days accrued prior to Closing which are taken by the
Employees after Closing. Such credit shall be used to offset Buyer's outstanding
obligations under the Working Capital Not (defined below); provided, however, if
there are no such outstanding obligations, such credit shall be paid to Buyer in
cash as and when such days are taken by the Employees.
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(c) Payments. Buyer shall be responsible for and shall pay all
severance payments (if any) due to Employees as a result of the termination of
their employment with Seller at Closing; provided, however, Seller shall be
responsible for and shall pay all severance payments (if any) due to Employees
which Seller terminates prior to Closing pursuant to the preceeding paragraph.
Buyer shall also give all Employees credit or compensation for all accrued sick
days and personal days.
(d) LPISC. If any employees of LPISC who work for the Business are
terminated as a result of the transactions set forth herein, Buyer shall be
solely responsible for any severance payments or other benefits payable as a
result thereof, provided, however, Seller represents that it is not aware of any
such employees.
7.2 Employee Benefit Plans.
(a) 401(k) Plan. Prior to the Closing Date or as soon as reasonably
practicable thereafter, Seller shall contribute to LaSalle's 401(k) plan (the
"LaSalle 401(k) Plan") an amount equal to the salary deferral contributions (if
any) of each Employee who participates in the LaSalle 401(k) Plan plus related
matching contributions through the Closing Date, and LaSalle shall cause the
LaSalle 401(k) Plan to be amended to provide that such Employees shall be fully
vested in their account balances determined after taking into account the
contributions described in the preceding clause.
(b) Welfare Benefits. Buyer shall have no responsibility or liability
for any benefit, obligation or expense under any welfare plan (as that term is
defined in Section 3 (1) of ERISA) that is maintained or contributed to by
Seller for the benefit of Seller's employees and retired employees (the "LaSalle
Welfare Plans") including coverage pursuant to Section 4980B of the Code and
Part 6 of Title I of ERISA (COBRA), and Seller shall have no responsibility or
liability for any benefit, obligation or expense under any welfare plan that may
be established, maintained or contributed to by Buyer for the benefit of
Employees for periods after the Closing Date. LaSalle shall keep the LaSalle
Welfare Plans as applied to Employees of Seller in full force and effect through
the Closing Date, and Employees shall remain covered under the LaSalle Welfare
Plans for all claims and expenses under such plans that relate to, or arise out
of, any event occurring on or prior to the Closing Date, regardless of when such
claims are filed.
ARTICLE 8
Pre-Closing Covenants of Seller and Buyer.
8.1 Partnership and Other Actions. Each of Seller and Buyer shall
take all necessary action required to fulfill its obligations
15
under this Agreement, the Assignment and Assumption Agreement, the Loan
Documents, the Subleases and the transactions contemplated hereby and thereby.
8.2 Consents and Approvals. Each of Seller and Buyer shall use its
commercially reasonable efforts to obtain all necessary consents and approvals
to the performance of its obligations under this Agreement, the Assignment and
Assumption Agreement, the Loan Documents and the Subleases and the transactions
contemplated hereby and thereby. Each of Seller and Buyer shall make and
filings, applications, statements and reports to all Federal or state government
agencies or entities which are required to be made prior to the Closing Date by
or on behalf of Seller or Buyer pursuant to any applicable statute, rule or
regulation in connection with this Agreement, the Assignment and Assumption
Agreement, the Loan Documents and the Subleases and the transactions
contemplated hereby and thereby.
8.3 Access to Information. Seller and Buyer will permit
representatives of the other party from and after the date hereof up to the
Closing Date to have access at all reasonable times to the books, accounts,
records, properties, operations and facilities of every kind pertaining to the
Business, and will furnish the other party with such financial and operating
data in the possession of the other party as either party shall from time to
time reasonably request, subject to any confidentiality agreements entered into
by either party; and each party shall cooperate with the other party in any due
diligence which the other party elects to perform.
ARTICLE 9
Conditions
9.1 Conditions to Obligations of Seller. The obligations of Seller to
consummate the transactions contemplated by this Agreement shall be subject to
fulfillment at or prior to Closing of the following conditions (any one or more
of which may be waived in whole or in part by Seller):
9.1.1 Performance of Agreements and Conditions. All agreements and
conditions to be performed and satisfied by Buyer hereunder on or prior to the
Closing Date shall have been duly performed and satisfied in all material
respects.
9.1.2 Representations and Warranties True. The representations and
warranties of Buyer contained in this Agreement shall be true in all material
respects on and as of the Closing Date, with the same effect as though made on
and as of the Closing Date, and there shall be delivered to Seller on the
Closing Date a certificate, in form and substance reasonably satisfactory to
Seller duly signed by Buyer, to that effect.
16
9.1.3 Opinion of Counsel. Seller shall have received from Winston &
▇▇▇▇▇▇, counsel to Buyer, an opinion dated the Closing Date and in form and
substance reasonably satisfactory to Seller and its counsel covering the matters
contained or provided for in Exhibit H.
9.1.4 Payment of Purchase Price. Buyer shall have paid the Purchase
Price and assumed the Assumed Liabilities as provided in Section 4.2.2.
9.1.5 No Court Order. No court shall have been entered in any action
or proceeding instituted by any party which enjoins, restraints, or prohibits
this Agreement or the complete consummation of the transactions as contemplated
by this Agreement.
9.1.6 Subleases. Buyer and Seller shall have entered into the
Subleases and shall work diligently together after Closing to obtain consents to
the Subleases.
9.1.7 Board Approval. Seller shall have obtained all approvals
required on its part for this Agreement, the Assignment and Assumption
Agreement, the Subleases and the transactions contemplated thereby. Seller
shall notify Buyer no later than the execution of this Agreement whether it has
obtained such approvals.
9.2 Conditions to Obligations of Buyer. The obligations of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to
fulfillment at or prior to the Closing of the following conditions (any one or
more of which may be waived in whole or in part by Buyer):
9.2.1 Performance of Agreements and Covenants. All agreements and
conditions to be performed and satisfied by Seller hereunder on or prior to the
Closing Date shall have been duly performed and satisfied in all material
respects.
9.2.2 Representations and Warranties True. The representations and
warranties of Seller contained in this Agreement shall be true in all material
respects on and as of the Closing Date with the same effect as though made on
and as of the Closing Date and there shall be delivered by Seller on the Closing
Date a certificate, in form and substance reasonably satisfactory to Buyer, duly
signed by an officer of Seller, to that effect.
9.2.3 Opinion of Counsel. Buyer shall have received from ▇▇▇▇▇ &
Associates, counsel to Seller, an opinion dated the Closing Date in the form and
substance reasonably satisfactory to Buyer and its counsel covering the matters
contained in Exhibit I.
9.2.4 No Court Order. No court order shall have been entered in any
action a proceeding instituted by any party which enjoins, restrains, or
prohibits this Agreement or the complete
17
consummation of the transactions as contemplated by this Agreement.
9.2.5 Subleases. Buyer and Seller shall have entered into the
Subleases and shall work diligently together after Closing to obtain consents to
the Subleases.
9.2.6 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. One of the Employees is ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇") who is a unit holder in DEL. At the Closing, ▇▇▇▇▇▇▇ shall withdraw
from DEL and redeem all of his units in DEL, and LaSalle shall cause DEL to pay
▇▇▇▇▇▇▇ the net unit redemption price for his units in the amount of $15,853.42
in accordance with the DEL Partnership Agreement, as amended (i.e., $6,741.31
shall be paid in cash and $9,112.11 shall be paid in the form of a note from DEL
to ▇▇▇▇▇▇▇). In addition, all outstanding options held by ▇▇▇▇▇▇▇ for the
purchase of units in DEL shall be canceled, and ▇▇▇▇▇▇▇ shall not have any right
to purchase additional units in DEL prior to Closing.
ARTICLE 10
Post-Closing Covenants of Seller
10.1 Bonding. Seller acknowledges that Buyer's ability to obtain bonds for
projects undertaken by Buyer is a critical aspect of Buyer's ability to conduct
and promote the Business. Buyer has agreed to the Purchase Price on the grounds
that LaSalle will assist Buyer in obtaining bonding facility similar to the one
which is currently in existence for Seller. For the three (3) year period
following the Closing Date or until the Note matures or is prepaid, whichever is
earlier, LaSalle shall assist Buyer by giving credit support, on the terms and
conditions set forth below, in obtaining bonds for projects undertaken by Buyer
which require payment or performance bonds provided Buyer shall have used its
best efforts to avoid having to provide bonds on any projects. For projects for
which bonds are required, Buyer shall submit a complete package of relevant
information to LaSalle for review and assessment of the financial and business
risks. LaSalle shall have the absolute right, in its sole discretion to decline
to provide bonding assistance on any project or to require whatever contract
modifications it reasonably deems necessary before agreeing to provide such
assistance. Notwithstanding the foregoing right, it is the intent of Seller to
assist Buyer in obtaining bonds for projects of similar character and business
risk as those projects of the Business completed during the previous two years.
In no case shall LaSalle be responsible for any fees payable to any bonding
company in connection with such bonds. For projects which LaSalle has agreed to
give assistance in obtaining bonds, LaSalle shall have the right to approve all
contract documents prior to signing and to require that the Seller maintain
whatever system LaSalle reasonably deems necessary to ensure proper
administration and accounting for the project through completion and release of
the bonds, including, but not limited to, the payment of construction costs
through a
18
title company construction escrow. In the event LaSalle becomes liable for any
claim in connection with any such bonds, Buyer shall immediately, at its option,
either reimburse LaSalle for such liability or increase the principal amount of
the Note if the Note has not previously been prepaid or matured by acceleration
or otherwise.
10.2 Cash Management and Working Capital. As long as LaSalle is
assisting, or is obligated to assist, in providing bonds as set forth in Section
10.1 above, LaSalle shall (i) be in charge of cash management for Buyer and
provide all cash management services in connection therewith and (ii) provide
Buyer with a revolving line of credit (the "Working Capital Loan") which shall
be used solely for Buyer's working capital purposes and borrowings under which
shall from time to time be made and repaid without premium or penalty at the
election of Buyer; provided however, the aggregate amount outstanding at any
time under such line of credit shall not exceed $1,000,000. As part of the cash
management services LaSalle shall have the right to sweep all of Buyer's cash
each night into a LaSalle account, provided LaSalle shall refund such cash to
Buyer as and when needed by Buyer in the operation of its Business and LaSalle
shall not have any rights of off-set against such cash unless Buyer defaults
under the Note or the Working Capital Note; provided that, without respect to
the existence of any such default, in no event may LaSalle exercise set-off
rights against Buyer's cash representing payments made to Buyer in respect a
construction contracts to the extent of the amount of such payments as to which
Buyer is obligated to make payments to subcontractors under such construction
contracts (it being understood that Buyer's ability to make timely payments to
subcontractors is essential to its business and any interference with such
ability will result in substantial damage to Buyer). On a monthly basis, a more
frequently if reasonably requested by Buyer, LaSalle shall provide Buyer with an
accounting of its cash management activities performed on behalf of Buyer. The
Working Capital Loan shall bear interest at the rate charged to LaSalle from
time to time under its principal line of credit for 30-day LIBOR loans, which
interest shall be due and payable monthly in arrears on the first day of each
month; provided, however, Buyer shall receive a monthly credit, against the
aggregate interest owed by Buyer to LaSalle with respect to any calendar month,
for any interest earned by LaSalle during such month on funds of Buyer held by
LaSalle pursuant to the cash sweep set forth above. The Working Capital Loan
shall be evidenced by a note in the form or Exhibit J attached hereto (the
"Working Capital Note") and shall be secured by the Pledge and UCC-1 Financing
Statement. The principal amount of the Working Capital Loan and all accrued
interest thereon shall become immediately due and payable, and LaSalle shall
have no obligation to make any further advances an the Working Capital Loan, if
(a) LaSalle allows a third party to provide Buyer with the cash management
services described below, or (b) Buyer defaults in any of its obligations to
Seller or LaSalle, which default is not cured within five (5) days if it is
19
a monetary default or thirty (30) days after notice from LaSalle if it is a non-
monetary default. In addition, LaSalle shall not be obligated to make any
further advances on the Working Capital Loan if there is any material adverse
change in Buyer, including, without limitation, a material adverse change in the
financial condition of Buyer, the filing of any material litigation against
Buyer or any material adverse change in the prospects or business of Buyer as
determined by LaSalle in its good faith discretion.
If at some time, Seller is providing neither bonding assistance
pursuant to Section 10.1 above, nor a Working Capital Loan pursuant to this
section, Buyer may request that a third party assume cash management
responsibilities provided the third party is a financial institution with
expertise in managing cash for construction companies. Seller shall, in its
reasonable discretion, approve or decline the request in writing based on a
consideration of the capabilities of the proposed third-party manager, and the
financial reporting, internal accounting and cash management controls and
procedures of the Buyer and the third party at such time.
10.3 Referrals. As long as the Note is outstanding and there is no
default thereunder, LaSalle agrees upon request of Buyer to (a) include Buyer on
the list of bidders for any interior tenant improvement work in the Chicago or
Los Angeles metropolitan areas for which LaSalle or any of its affiliates is
seeking bids unless, for any reason, LaSalle's client requests that Buyer not be
included on the list of bidders or including Buyer on the list of bidders would
violate any applicable laws and (b) recommend the selection of Buyer for such
work as long as Buyer's bid is competitive and its experience is comparable to
the other bidders. In particular, LaSalle will include Buyer on the list of
bidders for the following: Amoco-Cantera, KPMG-Chicago, Commonwealth Edison-
Chicago and Bank of America Chicago. Notwithstanding the foregoing, LaSalle
shall have the obligation to include Buyer on the list of bidders only for any
projects that are renovations or interior construction excluding base build-out.
10.4 New Office Lease. If the landlord for the new premises which
Buyer moves to upon its vacation of the office space currently being occupied by
the Business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in Chicago, Illinois, requires a letter
of credit as security for Buyer's obligations under the lease, including in
respect of any tenant improvements which will be made as part of such lease (the
"Letter of Credit"), LaSalle will assist Buyer in obtaining the Letter of Credit
by providing a guaranty thereof. LaSalle shall only be obligated to provide
such guaranty if requested during the first year after Closing, and LaSalle's
guaranty of the Letter of Credit, if necessary, will be for an amount not to
exceed $300,000 and for a period of time not to exceed three (3) years or the
length of time the Note is outstanding, whichever is shorter. Buyer shall
immediately reimburse LaSalle for payments which LaSalle is
20
required to make as a result of any draws on the Letter of Credit, and Buyer's
obligation to reimburse LaSalle shall be secured by the Pledge and UCC-1
Financing Statement LaSalle's obligation to provide the guaranty of the Letter
of Credit shall terminate if Buyer defaults in any of its obligations to Seller
or LaSalle.
10.5 Administrative Services. As long as Buyer is not in default of any of
its obligations to Seller or LaSalle, Buyer may purchase one or more of the
administrative services listed on Schedule 10.5 from LaSalle during the term of
the Note, provided LaSalle is providing such services for its own administrative
purposes at such time. Buyer shall reimburse LaSalle monthly for the cost of
such services at the rates set forth on Schedule 10.5, provided Seller may
reasonably increase such rates on January 1st of each year, commencing January
1, 1998. If there is a material change in the amount of such services which
Buyer requires due to material changes in the size of Buyer, Buyer and LaSalle
shall agree on a reasonable adjustment in such rate. In no event while the Note
is outstanding, however, shall Buyer pay LaSalle less than $220,000 per annum
for administrative services, regardless of the actual amount of administrative
services used by Buyer, provided such minimum amount of $220,000 shall be
increased each January 1st, commencing January 1, 1998, by the percentage
increase in the CPI for the preceding calendar year. Any services provided by
LaSalle pursuant to this paragraph shall be comparable to the services being
provided to LaSalle for its own account.
ARTICLE II
Post-Closing Covenants of Buyer.
--------------------------------
11.1 Assumed Liabilities. Buyer agrees to keep a list describing in detail
any Assumed Liabilities paid by Buyer and to retain all documentation supporting
actual payment of each such Assumed Liability. Buyer will submit such list and
such documentation to Seller within thirty (30) days after the end of each
calendar quarter until all such Assumed Liabilities have been paid, satisfied or
discharged by Buyer.
11.2 Availability of Records. After the Closing, Buyer shall make available
to Seller as reasonably requested by Seller, its agents and representatives, any
taxing authority, and any governmental authority all information, records or
documents relating to the Business or the employees of Seller for all periods
prior to Closing and shall preserve all such information, records and documents
until the later of (i) six (6) years after the Closing, (ii) the expiration of
all statutes of limitations for taxes for periods prior to the Closing or
extensions thereof applicable to Seller for tax information, records or
documents or (iii) the required retention period for all government contract
information, records or documents. Buyer shall also make available to Seller, as
reasonably requested by Seller, personnel responsible
21
for preparing or maintaining information, records and documents, in connection
with tax matters, governmental contracts, litigation or potential litigation,
including without limitation, claims for workers' compensation, general
insurance liability and automobile insurance liability. Prior to destroying any
material records related to Seller for the period prior to the Closing Date,
Buyer shall notify Seller thirty (30) days in advance of any such proposed
destruction of its intent to destroy, such records, and Buyer will permit Seller
to retain any such records. With respect to any litigation and claims which are
Excluded Liabilities, Buyer shall, at Seller's expense, render all reasonable
assistance which Seller may request in defending such litigation or claim and
shall make available to Seller personnel most knowledgeable about the matter in
question (to the extent possible without disruption of Buyer's business).
11.3 Use of Trade of Service Marks. Buyer shall not use or permit its
employees or affiliates to use the name "LaSalle," "LaSalle Partners" or
"LaSalle Construction" or any other corporate, trade or service marks or names
owned or heretofore used by Seller or any of Seller's Affiliates; provided that
Buyer may, in connection with its marketing disclose that it was formally part
of LaSalle Construction and may display Seller's brochures, art work,
photographs and advertising and promotional materials which are specifically for
completed jobs of Seller performed by Buyer's employees provided (i) Buyer puts
a sticker on such brochures indicating that Buyer is not part of Seller and (ii)
Buyer may only use Seller's materials for up to sixty (60) days from the Closing
Date.
11.4 Tax Matters. Without limiting the generality of Section 11.2, after
the closing, the Buyer, on the one hand, and the Seller, on the other hand,
shall provide each other with such assistance as may reasonably be requested by
any of them in connection with the preparation of any tax return, any audit or
other examination by any taxing authority, or any judicial or administrative
proceedings relating to liability for taxes, and each will retain and, upon the
request of the other, provide the other with, any records or information which
may be relevant to such return audit, examination or proceedings. Such
assistance shall include making employees available on a mutually convenient
basis to provide additional information and explanation of any material to be
provided hereunder and shall include furnishing to or permitting the copying by
the requesting party of any records, returns, schedules, documents, workpapers
or other relevant materials which might reasonably be expected to be of use in
connection with such return, audit, examination or proceedings. The party
requesting assistance hereunder shall reimburse the party whose assistance is
requested for the reasonable out-of-pocket expenses incurred by it in providing
such assistance, but shall not be required to reimburse the party providing such
assistance with respect to time of employees made available pursuant to this
22
Section 11.4.
11.5 Operating Covenants. As long as the Note, any other obligations of
Buyer to Seller or LaSalle, or any credit commitment from LaSalle to or on
behalf of Buyer is outstanding, Buyer shall perform and observe the following
covenants and restrictions:
(a) If ▇▇▇▇▇ shall die or become permanently disabled, the Note and such
other obligations shall become immediately due and payable, and Seller
shall have the right to immediately exercise its remedies under the
Pledge and any other security for the Note. Buyer may elect at any
time, however, to obtain a key man life insurance policy for ▇▇▇▇▇ in
which case such key man life insurance policy shall be pledged to
Seller as security for the Note, and the proceeds of such insurance
shall be used to repay the Note. For purposes of this paragraph,
▇▇▇▇▇ shall be deemed permanently disabled if ▇▇▇▇▇ cannot supervise
the business of Buyer and contract new business, which determination
shall be made by LaSalle in its reasonable discretion within thirty
(30) days after the occurrence of any event rendering ▇▇▇▇▇ disabled
and shall be made solely on the basis of facts known to LaSalle within
such thirty (30) day period.
(b) Seller shall have the right to inspect the books and records of Buyer
at any reasonable time upon reasonable prior notice provided Seller
shall maintain the confidentiality of the information in such books
and records.
(c) Buyer shall provide Seller with quarterly and annual financial
statements of Buyer and its Affiliates, which shall be prepared in
accordance with GAAP. The quarterly financial statements shall be
certified by a principal officer of Buyer, and the annual financial
statements shall be certified by KPMG Peat Marwick (or such other Big
Six accounting firm selected by Buyer and reasonably approved by
Seller). The quarterly financial statements shall be provided within
(30) days after the end of each calendar quarter, and the annual
financial statements shall be provided within ninety (90) days after
the end of each calendar year.
(d) Buyer shall not engage in any business activities other than the
business of serving as general contractor for the construction of
interior tenant improvements in Chicago, Illinois, and Los Angeles,
California, without Seller's prior written consent.
(e) Buyer shall maintain such insurance as Seller may reasonably require,
including without limitation,
23
property insurance, general liability insurance and automobile
insurance. Such insurance shall be in such amounts and with such
coverages as Seller may reasonably require. Buyer may select from
insurance companies with an A.M. Best Rating of "A minus XII" or
better to provide such insurance. All such liability insurance shall
name Seller and LaSalle as additional insureds (and Buyer's liability
policies shall provide that they are primary and non-contributory with
respect to Seller), and all such property insurance shall name LaSalle
as a loss payee, as its interest may appear. All such insurance shall
provide that it may not be terminated or canceled without at least
thirty (30) days prior written notice to Seller.
(f) Buyer shall not incur any indebtedness other than (i) indebtedness to
trade creditors in the ordinary course of business, (ii) credit
facilities approved by Seller in its sole discretion, (iii) the Note,
and (iv) Working Capital Loan or any replacement line of credit in an
amount not in excess of $1,000,000; and Buyer shall not pledge or
encumber any of its assets except for pledges or encumbrances in favor
of Seller or LaSalle pursuant to the terms hereof.
(g) Except as set forth in this paragraph, Buyer shall not make any
payments, dividends or distributions in respect of Buyer's equity
interest to its owners or make any Excess Payments (as defined below).
Provided Buyer has paid Seller all interest on the Note which has
accrued for previous calendar years and has paid any principal
payments which are required to be amended under the Note for previous
calendar years, and provide Buyer has repaid any payments made by
LaSalle on the Letter of Credit and the payments made by LaSalle in
connection with any bonds obtained for Buyer, and provided there is no
outstanding default under the Note, Working Capital Loan or in any
other payment obligation of Buyer to Seller or LaSalle, Buyer may,
commencing in calendar year 1998, pay dividends or make distributions
to its owners (the "Excess Payments") up to an amount equal to (i) the
Pre-Tax Cash Flow of Buyer for the previous year, less (ii) the
portion thereof required to be used to make principal prepayments on
the Note during such year (i.e., the 30% share payable to Seller);
provided that, at the option of Buyer, all or any portion of the
amounts permitted to be dividended, distributed or paid out as Excess
Payments in any year may instead by dividended, distributed or paid
out at any time in any subsequent year without diminishing the amounts
otherwise permitted to be dividended, distributed or paid out as
Excess Payments in such subsequent year. In addition, notwithstanding
any
24
other provision in this Agreement to the contrary, any amount which is
from time to time permitted to be dividend, distributed or paid out as
an Excess Payment may, at Buyer's option, instead be paid out by Buyer
to its officers, employees or Affiliates as bonuses or compensation.
Neither Seller nor LaSalle shall have, and each hereby waives, any
direct or indirect claims against the recipient of a dividend,
distribution, bonus, compensation or Excess Payment permitted by this
Agreement (or against any partners, officers, directors or
shareholders of Buyer or its Affiliates) arising out of the
declaration, payment or receipt of such dividend, distribution, bonus,
compensation or Excess Payment.
(h) Without the prior written consent of Seller, Buyer shall not sell,
assign, transfer or exchange all or any material portion of its
assets, and Buyer shall not merge, consolidate, liquidate or dissolve.
(i) In order to assess the business risk to Buyer of possible over
reliance on any particular client, without the prior written consent
of Seller, which shall not be unreasonably withheld, Buyer shall not
enter into any contract in any year which is expected to result in
gross revenue to Buyer in excess of ten percent (10%) of the total
gross revenue which the Buyer expects to earn in such year.
(k) By November 15th of each year, Buyer shall deliver to Seller Buyer's
business plan for the following year, which business plan shall be in
substantially the form of Exhibit F. Such business plan shall be
subject to the written approval of Seller, which approval shall not be
unreasonably withheld; provided, however, it shall be deemed
reasonable for Seller to withhold its approval of a business plan
reflecting a projected net margin (i.e., Net Earnings divided by net
construction management fees, as defined and shown on the audited
financial statements of Buyer) or less than twenty percent (20%);
provided, further, that if projected revenues in the business plan for
the following year are at least 12.5% greater than anticipated actual
revenues for the current year (which with respect to November and
December of each year shall be estimated in good faith by Buyer), and
the projected net margin, as described above, in such plan is at least
20%, Seller shall only be entitled to disapprove the business plan on
the basis that the underlying assumptions, exclusive of any
assumptions relating to the compensation payable to Buyer's employees
or Affiliates, are not reasonable in light of prior actual experience
or forecasted business conditions. Seller shall notify Buyer within
ten (10) business days after receipt of the
25
proposed business plan whether it has approved or disapproved the
proposed business plan and, if it has disapproved the proposed
business plan, its reasons for doing so. If Seller has disapproved
the proposed business plan, Buyer and Seller shall work diligently
together to prepare a business plan which has been approved by Seller
by December 15th. Buyer shall use reasonable efforts to operate its
business in accordance with such approved business plan.
ARTICLE 12
Default Rights Regarding ▇▇▇▇▇
------------------------------
In addition to breach of any obligation hereunder, the occurrence of any
one or more of the following events shall constitute an "Event of Default" by
Buyer hereunder:
(a) One or more changes in the management of Buyer occurs which results in
the aggregate in a material diminution of ▇▇▇▇▇'▇ responsibilities for
Buyer;
(b) ▇▇▇▇▇ fails to devote substantially all of his business time and
efforts to the Business or ▇▇▇▇▇ devotes substantial time or effort to
any other business without Seller's prior written consent.
(c) Without the prior written consent of Seller, ▇▇▇▇▇ sells, assigns,
transfers pledges or encumbers 20% or more of the equity interests in
Buyer or the right to receive distributions from Buyer, or ▇▇▇▇▇ fails
to own directly or indirectly at least 80% of the equity interests in
Buyer free and clear of all encumbrances.
If any Event of Default shall have occurred and be continuing, Seller and
LaSalle may, without notice, terminate their obligations hereunder, declare the
Note and Working Capital Note immediately due and payable and exercise any
rights or remedies provided to Seller or LaSalle under the Pledge Agreement
and/or at law or equity. In no event, however, shall LaSalle or Seller have the
right to use the name "▇▇▇▇▇" if LaSalle or Seller exercises any of its rights
under the Pledge Agreement.
ARTICLE 13
Indemnification and Survival
----------------------------
13.1 Indemnification by Seller. Seller and LaSalle agree to indemnify and
hold harmless Buyer and its Affiliates at all times against and in respect of
losses, liabilities, costs and expenses (including reasonable attorneys' fees)
(collectively, "Losses" ) which are caused by (i) any breach of the
representations, warranties, covenants and agreements of Seller and LaSalle set
forth in this Agreement; (ii) any Excluded Liability; or (iii)
26
except as set forth in this Agreement, the operation of the Business prior to
the Closing Date. Buyer shall promptly notify Seller in writing of all matters
which may give rise to the right to indemnification hereunder, it being
understood that if Seller does not receive notice of any matter known to Buyer
and as to which Buyer or its Affiliates are entitled to indemnification
hereunder in time to contest the determination of any such liability which is
susceptible to being successfully contested, Seller shall not be obligated to
indemnify Buyer or its Affiliates with respect thereto. Seller shall notify
Buyer in writing within thirty (30) days after receipt of such whether Seller
and LaSalle agree that the matter is covered by the indemnity set forth herein.
If Seller agrees that the matter is covered by the indemnity set forth herein,
Buyer shall not admit any liability with respect to, or settle, compromise or
discharge any such matter covered by this Section 13.1 without Seller's prior
written consent; and Seller shall have the right, with the consent of Buyer,
which shall not be unreasonably withheld, to settle all indemnification matters
related to claims by third parties which are susceptible to being settled, and
to defend (without the consent of Buyer) through counsel of its own choosing, at
its own expense any action which may be brought by a third party in connection
therewith, provided, however, that Buyer shall have the right to have its
counsel participate fully in such defense at its own expense. Buyer and Seller
shall keep each other reasonable access to books and records and otherwise
cooperate with all reasonable requests of each informed of all settlement
negotiations with third parties and of the Progress of any litigation with third
parties. Buyer and Seller shall permit each other in connection with any
indemnificable matter resulting from a claim by a third party.
13.2 Indemnification by Buyer. Buyer agrees to indemnify and hold harmless
Seller at all times against and in respect of all Losses which arise out of or
are based on (i) any breach of the representations, warranties, covenants and
agreements of Buyer set forth in this Agreement; (ii) any Assumed Liability; or
(iii) the operation of the Business on or after the Closing Date. Seller shall
promptly notify Buyer in writing of all matters which may give rise to the right
to indemnification hereunder, it being understood that if Buyer does not receive
notice of any matter known to Seller and as to which Seller is entitled to
indemnification hereunder in time to contest the determination of any such
liability which is susceptible to being successfully contested, Buyer shall not
be obligated to indemnify Seller with respect thereto. Buyer shall notify
Seller in writing within thirty (30) days after receipt of such notice whether
Buyer agrees that the matter is covered by the indemnify set forth herein. If
Buyer agrees that the matter is covered by the indemnity set forth herein,
Seller shall not admit any liability with respect to, or settle, compromise or
discharge any such matter covered by this Section 13.2 without Buyer's prior
written consent, and Buyer shall have the right, with the consent of Seller,
which shall not be
27
unreasonably withheld, to settle all indemnifiable ▇▇▇▇▇▇ related to claims by
third parties which re susceptible to being settled, and to defend without the
consent of Seller) through counsel of its own choosing, at its own expense, any
action which may be brought by a third paty in connection therewith, provided,
however, that Seller shall have the right to have its counsel participate fully
in such defense at its own expense. Buyer and Seller shall each other informed
of all settlement negotiations with third partis. Buyer and Seller shall permit
each other reasonable access to books and records and otherwise cooperate with
all reasonable requests of each other in connection with any indemnifiable
matter resulting from a claim by a third party.
ARTICLE 14
Termination.
14.1 Termination of Agreement. This Agreement may be terminated at any
time prior to the Closing Date.
14.1.1 Mutual Consent. With the mutual consent of Buyer and Seller,
or
14.1.2 By Seller. By Seller, if by the Closing Date any of the
conditions provided in Section 9.1 shall have been satisfied, complied with or
performed in any material respect, and Seller shall not have waived such failure
of satisfaction, noncompliance or nonperformance; or
14.13 By Buyer. By Buyer, if by the Closing Date nay of the
conditions provided in Section 9.2 shall not have been satisfied, complied with
or performed in any material respect, and Buyer shall not have waived such
failure of satisfaction, noncompliance or nonperformance.
14.2 Written Notice. In the event of any termination pursuant to
Section 14.1 (other than pursuant to Section 14.1.1), written notice setting
forth the reasons therefor shall forthwith be given by the terminating party to
the other.
14.3 Continuing Confidentiality. If this Agreement shall be
terminated as herein set forth, Buyer agrees that it will remain obligated
under, and will comply with, the provisions of Section 15.3.
ARTICLE 15
Miscellaneous.
15.1 Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors and assigns; provided,
however, Buyer and ▇▇▇▇▇ may not assign their rights or obligations under this
Agreement without the
28
consent of Seller; and Seller and LaSalle may not assign their rights and
obligations hereunder, except to an Affiliate or a successor entity, without the
consent of Buyer. In the case of such assignment, the assigning party shall
remain liable for all the obligations and liabilities of the assigning party
arising from or assumed under this Agreement or arising from the transactions
contemplated hereunder.
15.2 Announcements. Prior to Closing each party shall keep the terms
of this Agreement confidential except any disclosure which Seller or Buyer in
its good faith judgment believes is required by law (in which case the party
making the disclosure will use all commercially reasonable efforts to consult
with the other party prior to making any such disclosure) and except that Seller
may announce to its employees that the Business is being sold. After Closing
either party may announce the sale of the Business to Buyer but not the other
terms hereof, which announcement shall be subject to the reasonable approval of
the other party.
15.3 Confidentiality. Except as required by applicable law, all
information related to the Business shall be maintained in strict confidence by
Buyer and its employees, advisors and agents prior to Closing. Except as
required by applicable law, all information related to the Buyer's business
shall be maintained in strict confidence by Seller, LaSalle and their respective
employees, advisors and agents.
15.4 Expenses. Each party shall bear its own expenses with respect to
the transactions contemplated by this Agreement; provided, however, if any
litigation is instituted between the parties hereto in connection with this
Agreement, the losing party in such litigation shall pay the reasonable
attorneys' fees and court costs of the prevailing party in such litigation. Any
sale, transfer, use or other tax (other than income tax) or recording cost
incurred upon the sale or transfer of the Purchased Assets shall be the
liability of the party upon which such tax is imposed by law.
15.5 Severability. Each of the provisions contained in this Agreement
shall be severable, and the unenforceability of one shall not affect the
enforceability of any others or of the remainder of this Agreement.
15.6 Entire Agreement. This Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing signed by
all of the parties hereto. This Agreement and the documents to be executed and
delivered pursuant hereto contain the entire agreement of the parties hereto
with respect to the transactions covered hereby, superseding all negotiations,
prior discussions and preliminary agreements made prior to the date hereof.
29
15.7 No Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties hereto and their respective affiliates and no
provision of this Agreement shall be deemed to confer upon third parties any
remedy, claim, liability, reimbursement, claim of action or other right.
15.8 Waiver. The failure of any party to enforce any condition or
part of this Agreement at any time shall not be construed as a waiver of that
condition or part, nor shall it forfeit any rights to future enforcement
thereof.
15.9 Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Illinois without regard
to the conflicts of laws provisions thereof.
15.10 Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
15.11 Counterparts. More than one counterpart of this Agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed any original.
15.12 Choice of Forum. Buyer and Seller agree that any suit, action or
proceeding brought by either party against the other party to this Agreement in
connection with or arising out of this Agreement shall be brought solely in the
state or federal courts located in Chicago, Illinois, and that such courts have
exclusive jurisdiction over any matters with respect to this Agreement.
15.13 Further Documents. Each of Buyer and Seller will, at the request
of another party, execute and deliver to such other party all such further
instruments, assignments, assurances and other documents as such other party may
reasonably request in connection with the carrying out of this Agreement and the
transactions contemplated hereby.
15.14 Notices. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of telex,
facsimile or other means of wire transmission (with request for assurance of
receipt in a manner typical with respect to communications of that type) or by
mail, and shall become effective (x) on delivery if given in person, (y) on the
date of transmission if sent by telex, facsimile or other means of wire
transmission, or (z) three business days after being deposited in the United
States mails, with proper postage and documentation, for first-class registered
or certified mail, prepaid.
Notices shall be addressed as follows:
30
If to Buyer or Clune, to:
▇▇▇▇▇ Construction Company L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller or LaSalle, to:
LaSalle Partners Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & Associates
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
provided, however, that is any party shall have designated a difference address
by notice to the others, then to the last address so designated.
15.15 Survival. All of the terms, covenants, representations and
warranties contained in this Agreement shall survive the Closing.
15.16 Construction. The language in all parts of this Agreement shall
be construed, in all cases, according to its fair meaning. The parties
acknowledge that each party and its counsel have reviewed and revised this
Agreement and that any rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
15.17 Nonrecourse Loan. No recourse under or in respect of this
Agreement, the Note or the obligations created or evidenced
31
hereby or thereby shall be taken against the assets of ▇▇▇▇▇ or the partners of
Seller or Buyer; provided, however, this section shall not be deemed to relieve
either LaSalle or ▇▇▇▇▇ of their explicit contractual obligations hereunder
(such obligations of ▇▇▇▇▇ being only those set forth in Section 3.2.2);
provided, further, in no event shall ▇▇▇▇▇ be deemed to have personal liability
for repayment of the Note, the Working Capital Note or any other obligations of
Buyer hereunder or contemplated hereby.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
LASALLE PARTNERS LIMITED,
a Delaware limited partnership
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Title: Vice President
---------------------
LASALLE CONSTRUCTION LIMITED PARTNERSHIP
a Delaware limited partnership
By: LaSalle Construction Corporation,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Title: Vice President
--------------------
▇▇▇▇▇ CONSTRUCTION COMPANY, L.P.
a Delaware limited partnership
By: Dubline Construction Corp.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
33