Exhibit 10.02
Security Agreement
This Security Agreement (the "Agreement") dated as of September 6, 1996 by
and among LaSalle Partners Limited Partnership, a Delaware limited partnership
("LPL"), LaSalle Partners Management Limited Partnership, a Delaware limited
partnership ("LPML") (LPL and LPML are hereinafter referred to collectively as
the "Debtors" and individually as a "Debtor"), and Xxxxxx Trust and Savings Bank
("Xxxxxx") with its mailing address 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, acting as agent hereunder for the Lenders hereinafter identified and
defined (Xxxxxx acting as such agent and any successor or successors to Xxxxxx
acting in such capacity being hereinafter referred to as the "Agent");
W i t n e s s e t h T h a t:
Whereas, the Debtors, Xxxxxx, individually and as agent, and LaSalle
National Bank have entered into a Credit Agreement dated as of September 6, 1996
(such Credit Agreement as the same may be amended, modified or restated from
time to time being hereinafter referred to as the "Credit Agreement"), pursuant
to which such lenders (Xxxxxx and the other lenders which are now or which from
time to time hereafter become party to the Credit Agreement being hereinafter
referred to collectively as the "Lenders" and individually as a "Lender") have
agreed, subject to certain terms and conditions, to extend credit and make
certain other financial accommodations available to the Debtors;
Whereas, as a condition precedent to extending the credit facilities to the
Debtors under the Credit Agreement, the Lenders have required, among other
things, that each Debtor grant to the Agent a lien on and security interest in
certain personal properties of such Debtor as collateral security for such
credit facilities and related obligations pursuant to this Agreement;
Now, Therefore, for and in consideration of the execution and delivery by
the Lenders of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Grant of Security Interest in the Collateral; Obligations
Secured.
(a) Each Debtor hereby grants to the Agent for the benefit of the
Lenders a security interest in and right of set-off against, and
acknowledges and agrees that the Agent has and shall continue to have for
the benefit of the Lenders a continuing security interest in and right of
set-off against, any and all right, title and interest of each Debtor,
whether now owned or existing or hereafter created, acquired or arising, in
and to the following:
(i) Receivables. All of Debtor's present and future rights to
payment for services rendered, whether or not evidenced by instruments
or chattel paper, and whether or not they have been earned by
performance, proceeds of any letters of credit on which Debtor is
named as beneficiary, contract rights, chattel paper,
instruments, documents, notes, drafts, acceptances, insurance
proceeds, and all such obligations whatsoever owing to such Debtor,
together with all instruments and all documents of title representing
any of the foregoing (the "Receivables"); and
(ii) Equipment. Equipment, whether now owned or existing or
hereafter created, acquired or arising, or in which such Debtor now
has or hereafter acquires any rights (the term "Equipment" means and
includes all equipment, machinery, tools, trade fixtures, furniture,
furnishings, office equipment, vehicles [including vehicles subject to
a certificate of title law] and all other goods now or hereafter used
or usable in connection with such Debtor's business, together with all
parts, accessories and attachments relating to any of the foregoing);
(iii) Deposits and Property in Possession. All deposit
accounts (whether general, specific or otherwise) maintained with the
Agent or any of the Lenders and all sums now or hereafter on deposit
therein or payable thereon, and any and all other property or
interests in property which now is or may from time to time hereafter
come into the possession, custody or control of the Agent or any of
the Lenders, or any agent of any of them, in any way and for any
purpose (whether for safekeeping, custody, pledge, transmission,
collection or otherwise) but excluding all accounts of any Debtor in a
fiduciary capacity;
(iv) Records. Supporting evidence and documents relating to
any of the above-described property, including, without limitation,
computer programs, disks, tapes, and related electronic data
processing media, and all rights of such Debtor to retrieve the same
from third parties, written applications, credit information, account
cards, payment records, correspondence, delivery and installation
certificates, invoice copies, delivery receipts, notes and other
evidences of indebtedness, insurance certificates and the like,
together with all books of account, ledgers and cabinets in which the
same are reflected or maintained, all whether now existing or
hereafter arising;
(v) Accessions and Additions. All accessions and additions to
and substitutions and replacements of any and all of the foregoing,
whether now existing or hereafter arising; and
(vi) Proceeds. All substitutions for and all replacements,
proceeds of the foregoing and, to the extent not otherwise included,
all payments under any insurance (whether or not the Agent is the loss
payee thereof), or any indemnity, warranty or guaranty, payable by
reason of loss or damage to or otherwise with respect to any of the
foregoing. For purposes of this Agreement, the term "proceeds"
includes whatever is receivable or received when Receivables or
proceeds are sold, exchanged, collected or otherwise disposed of,
whether such disposition is voluntary or involuntary
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all of the foregoing being herein sometimes referred to as the
"Collateral".
(b) This Agreement is made and given to secure, and shall secure, the
payment and performance of (i) any and all indebtedness, obligations and
liabilities of each Debtor under or in connection with or evidenced by (w)
the Credit Agreement or (x) the Notes of each Debtor heretofore or
hereafter issued under the Credit Agreement and the obligations of each
Debtor to reimburse the Agent for the amount of all drawings on all Letters
of Credit issued for the account of the Debtors pursuant to the Credit
Agreement, and all other obligations of either Debtor under any and all
applications for such Letters of Credit or (y) any of the Security
Documents, in each case whether now existing or hereafter arising (and
whether arising before or after the filing of a petition in bankruptcy),
due or to become due, direct or indirect, absolute or contingent, and
howsoever evidenced, held or acquired and (ii) any and all expenses and
charges, legal or otherwise, suffered or incurred by the Agent and the
Lenders in collecting or enforcing any of such indebtedness, obligations
and liabilities or in realizing on or protecting or preserving any security
therefor, including, without limitation, the lien and security interest
granted hereby other than any of the foregoing that result from the gross
negligence or willful misconduct of the Agent or such Lender (all of the
indebtedness, obligations, liabilities, expenses and charges described in
clauses (i) and (ii) above being hereinafter referred to as the
"Obligations").
Section 2. Terms defined in Credit Agreement. All capitalized terms used
herein without definition shall have the same meanings herein as such terms have
in the Credit Agreement. The term "Debtor" and "Debtors" as used herein shall
mean and include the Debtors collectively and also each individually, with all
grants, representations, warranties and covenants of and by the Debtors, or any
of them, herein contained to constitute joint and several grants,
representations, warranties and covenants of and by the Debtors; provided,
however, that unless the context in which the same is used shall otherwise
require, any grant, representation, warranty or covenant contained herein
related to the Collateral shall be made by each Debtor only with respect to the
Collateral owned by it or represented by such Debtor as owned by it.
Section 3. Covenants, Agreements, Representations and Warranties. Each
Debtor hereby covenants and agrees with, and represents and warrants to, the
Agent and the Lenders that:
(a) Each Debtor is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware, is
the sole and lawful owner of the Collateral and has full right, power and
authority to enter into this Agreement and to perform each and all of the
matters and things herein provided for; and the execution and delivery of
this Agreement, and the observance and performance of any of the matters
and things herein set forth, will not contravene or constitute a default
under any provision of law or any judgment, injunction, order or decree
binding upon either Debtor or any provision of either Debtor's partnership
agreement or of any covenant, indenture or agreement of or affecting either
Debtor or any of their respective properties, or result in the creation or
imposition of any lien or encumbrance on any of its property. LPL's
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Federal tax identification number is 00-0000000. LPML's Federal tax
identification number is 00-0000000.
(b) The Collateral is and will remain in the Debtor's possession or
control at the locations listed on Schedule A attached hereto
(collectively, the "Permitted Collateral Locations"). If for any reason
Collateral is at any time kept or located at locations other than the
Permitted Collateral Locations, the Agent shall nevertheless have and
retain a security interest therein. Each Debtor's chief executive office
and principal place of business is at, and each Debtor keeps and shall keep
all of its books and records relating to Receivables only at, 000 Xxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000; and neither Debtor has any other
executive offices or places of business other than those listed on Schedule
A. Neither Debtor will maintain an executive office or place of business
at a location other than those specified pursuant to the immediately
preceding sentence without first providing the Agent thirty (30) days'
prior written notice of such Debtor's intent to do so; provided, however,
that each Debtor will at all times maintain its chief executive office in
the contiguous continental United States of America.
(c) The Collateral and every part thereof is and will be free and
clear of all security interests, liens (including, without limitation,
mechanics', laborers' and statutory liens), attachments, levies and
encumbrances of every kind, nature and description and whether voluntary or
involuntary, except for the security interest of the Agent therein and the
Liens permitted under Section 6.15 of the Credit Agreement.
(d) Except as permitted by the Credit Agreement, neither Debtor will,
without the Agent's prior written consent, sell, assign, mortgage, lease or
otherwise dispose of the Collateral or any interest therein. Provided that
no Event of Default has occurred and is continuing the Debtors shall be
entitled to receive and retain the proceeds of any such sale up to $100,000
for all such Debtors in any calendar year. If the Debtors receive any such
proceeds in excess of $100,000 per calendar year, the Debtors shall notify
the Agent and if the Lenders so direct, apply such proceeds to repay
outstanding Facility A Loans and reduce the Facility A Commitments by such
amount. The Agent shall, upon a Debtor's request, provide a release of its
lien on any Collateral sold or otherwise disposed of by such Debtor in
accordance with the first sentence of this paragraph.
(e) Each Debtor will insure the Collateral which is insurable against
such risks and hazards as other companies similarly situated insure
against, and including in any event loss or damage by fire, theft,
burglary, pilferage, loss in transit and such other hazards as the Agent
may reasonably specify, in amounts and under policies containing loss
payable clauses to the Agent as its interest may appear (and, if the Agent
requests, naming the Agent and the Lenders as additional insureds therein)
by insurers reasonably acceptable to the Agent. All premiums on such
insurance shall be paid by the Debtors and the policies of such insurance
(or certificates therefor) delivered to the Agent. All insurance required
hereby shall provide that any loss shall be payable notwithstanding
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any act or negligence of the relevant Debtor, shall provide that no
cancellation thereof shall be effective until at least thirty (30) days
after receipt by the relevant Debtor and the Agent of written notice
thereof, and shall be satisfactory to the Agent in all other respects.
Each Debtor may retain any proceeds of such insurance arising out of the
loss, damage, or destruction of the Collateral owned or leased by it so
long as no Event of Default (as hereinafter defined) shall have occurred
and be continuing or shall arise after giving effect to such loss, damage,
or destruction. During the existence of any Event of Default, each Debtor
will immediately pay over such proceeds of insurance to the Agent which
shall thereafter be applied to the reduction of the Obligations (whether or
not then due) or held as collateral security therefor, as the Agent may
then determine and as otherwise provided for in the Credit Agreement. All
insurance proceeds shall be subject to the lien and security interest of
the Agent. Each Debtor hereby authorizes the Agent, at the Agent's option,
to adjust, compromise and settle any losses under any insurance afforded at
any time during the existence of any Event of Default, and such Debtor does
hereby irrevocably constitute the Agent, its officers, agents and
attorneys, as such Debtor's attorneys-in-fact, with full power and
authority to effect such adjustment, compromise and/or settlement and to
endorse any drafts drawn by an insurer of the Collateral or any part
thereof and to do everything necessary to carry out such purposes and to
receive and receipt for any unearned premiums due under policies of such
insurance.
(f) Each Debtor will at all reasonable times allow the Agent, any
Lender and their respective representatives free access to and right of
inspection of the Collateral.
(g) LPL has not invoiced Receivables or otherwise transacted
business, and does not invoice Receivables or otherwise transact business,
under any trade names other than its name set forth in the introductory
paragraph of this Agreement and "LaSalle Partners Limited." LPML has not
invoiced Receivables or otherwise transacted business, and does not invoice
Receivables or otherwise transact business, under any trade names other
than its name set forth in the introductory paragraph of this Agreement and
"LaSalle Partners Management Limited." Neither Debtor will change its name
or transact business under any other trade name, in each case without first
giving the Agent thirty (30) days' prior written notice of its intent to do
so.
(h) Each Debtor agrees to execute and deliver to the Agent such
further agreements and assignments or other instruments and documents and
to do all such other things as the Agent may reasonably deem necessary or
appropriate to assure the Agent its security interest hereunder, including
such financing statement or statements or amendments thereof or supplements
thereto or other instruments and documents as the Agent may from time to
time reasonably require in order to comply with the Uniform Commercial Code
as enacted in the State of Illinois and any successor statute(s) thereto
(the "Code"). Each Debtor hereby agrees that a carbon, photographic or
other reproduction of this Agreement or any such financing statement is
sufficient for filing as a financing statement by the Agent without notice
thereof to such Debtor wherever the
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Agent in its sole discretion desires to file the same. In the event for
any reason the law of any jurisdiction other than Illinois becomes or is
applicable to the Collateral or any part thereof, or to any of the
Obligations, each Debtor agrees to execute and deliver all such instruments
and documents and to do all such other things as the Agent in its sole
discretion deems necessary or appropriate to preserve, protect and enforce
the security interest of the Agent under the law of such other
jurisdiction. Each Debtor agrees to xxxx its books and records to reflect
the security interest of the Agent in the Collateral. Without limiting the
generality of the foregoing, each Debtor will: (i) at the request of the
Agent, either turn over possession to the Agent or xxxx conspicuously each
negotiable document and each chattel paper included in the Collateral and
each of the records pertaining to the Collateral with a legend, in form and
substance satisfactory to the Agent, indicating that such document, chattel
paper or Collateral is subject to the security interest granted hereby;
(ii) if any Receivable owned by a Debtor in an amount greater than $10,000
shall be or becomes evidenced by a promissory note or other instrument
(other than checks received in payment of obligations under Receivables) or
chattel paper, deliver and pledge to the Agent hereunder such note,
instrument or chattel paper duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance
satisfactory to the Agent; and (iii) execute and file such financing or
continuation statements, or amendments thereto, and such other instruments
or notices as the Agent or any Lender may reasonably request, in order to
perfect and preserve the security interests granted or purported to be
granted hereby.
(i) After the occurrence and during the continuance of an Event of
Default or the occurrence of an event which with the lapse of time or the
giving of notice would be an Event of Default under Section 7.6 of the
Credit Agreement, on failure of a Debtor to perform any of the covenants
and agreements herein contained, the Agent may at its option perform the
same and in so doing may expend such sums as the Agent may reasonably deem
advisable in the performance thereof, including, without limitation, the
payment of any insurance premiums, the payment of any taxes, liens and
encumbrances, expenditures made in defending against any adverse claims,
and all other expenditures which the Agent may be compelled to make by
operation of law or which the Agent may make by agreement or otherwise for
the protection of the security hereof. All such sums and amounts so
expended shall be repayable by the Debtors immediately without notice or
demand, shall constitute additional Obligations secured hereunder and shall
bear interest from the date said amounts are expended at the rate per annum
(computed on the basis of a 360-day year for the actual number of days
elapsed) determined by adding 2% to the Domestic Rate as from time to time
in effect with any change in such rate per annum as so determined by reason
of a change in such Domestic Rate to be effective on the date of such
change in said Domestic Rate (such rate per annum as so determined being
hereinafter referred to as the "Default Rate"). No such performance of any
covenant or agreement by the Agent on behalf of a Debtor, and no such
advancement or expenditure therefor, shall relieve such Debtor of any
default under the terms of this Agreement or in any way obligate the Agent
or any Lender to take any further or future action with respect thereto.
The Agent is hereby authorized to charge any depository or
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other account of any Debtor maintained with the Agent but excluding all
accounts of any Debtor in a fiduciary capacity for the amount of such sums
and amounts so expended.
Section 4. Special Provisions Re: Receivables.
(a) Except as otherwise provided in this subsection (a), each Debtor
shall continue to collect, at its own expense, all amounts due or to become
due such Debtor under the Receivables. In connection with such
collections, a Debtor may take such action as such Debtor may deem
necessary or advisable to enforce collection of the Receivables; provided,
however, that the Agent shall have the right at any time, upon the
occurrence and during the continuance of an Event of Default and upon
written notice to the Debtors of its intention to do so, to notify (and, if
requested by the Agent, the Debtors shall notify) the account debtors or
obligors under any Receivables, or other obligations in which a security
interest is granted hereby, of the assignment of such Receivables or
obligations to the Agent and to direct such account debtors or obligors to
make payment of all amounts due or to become due to such Debtor thereunder
directly to the Agent and, upon such notification and at the expense of
such Debtor, to enforce collection of any such Receivables or obligations
through legal proceedings or otherwise, and to adjust, settle or compromise
the amount or payment thereof, in the same manner and to the same extent as
such Debtor might have done, and to do so in the Agent's own name or in the
name of others (including, without limitation, such Debtor). After receipt
by a Debtor of the notice from the Agent referred to in the proviso to the
preceding sentence: (i) all amounts and proceeds (including instruments)
received by a Debtor in respect of the Receivables, or other obligations in
which a security interest is granted hereby, shall be received in trust for
the benefit of the Agent hereunder, shall be segregated from other funds of
such Debtor and shall be forthwith paid over to the Agent in the same form
as so received (with any necessary endorsement) to be held as collateral
and either released to such Debtor so long as no Event of Default shall
have occurred and be continuing or if an Event of Default shall have
occurred and be continuing, applied as provided in the Credit Agreement;
and (ii) neither Debtor shall adjust, settle or compromise the amount or
payment of any Receivable, or other obligations in which a security
interest is granted hereby, or release wholly or partly any account debtor
or obligor thereof, or allow any credit or discount thereon.
Section 5. Special Provisions Re: Equipment.
(a) Each Debtor will at its own cost and expense maintain, keep and
preserve the Equipment in good repair, working order and condition,
ordinary wear and tear excepted, and, without limiting the foregoing, make
all necessary and proper repairs, replacements and additions to the
Equipment so that the efficiency thereof shall be fully preserved and
maintained.
(b) Each Debtor may, until an Event of Default has occurred and is
continuing and thereafter until otherwise notified by the Agent, sell
obsolete, worn out or unusable
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Equipment which is concurrently replaced with similar Equipment at least
equal in quality and condition to that sold and owned by such Debtor free
of any lien, charge or encumbrance other than the security interest granted
hereby and any liens permitted under Section 6.15 of the Credit Agreement.
(c) Upon the Agent's request, each Debtor shall at its own cost and
expense cause the lien of the Agent in and to any portion of the Collateral
subject to a certificate of title law to be duly noted on such certificate
of title or to be otherwise filed in such manner as is prescribed by law in
order to perfect such lien and will cause all such certificates of title
and evidences of lien to be deposited with the Agent.
(d) No material portion of the Equipment is or will be attached to
real estate in such a manner that the same may become a fixture.
Section 6. Power of Attorney. In addition to any other powers of attorney
contained herein, each Debtor hereby appoints the Agent, its nominee, or any
other person whom the Agent may designate as such Debtor's attorney in fact,
with full power upon the occurrence and during the continuation of an Event of
Default hereunder to sign such Debtor's name on verifications of accounts, to
send requests for verification of Receivables to such Debtor's customers and
account debtors, to endorse such Debtor's name on any checks, notes,
acceptances, money orders, drafts and any other forms of payment or security
that may come into the Agent's possession, to sign such Debtor's name on any
invoice or xxxx of lading relating to any Receivables, on claims to enforce
collection of any Receivable, on notices to and drafts against customers and
account debtors, on schedules and assignments of Receivables, on notices of
assignment and on public records, to notify the post office authorities to
change the address for delivery of such Debtor's mail to an address designated
by the Agent and to receive, open and dispose of all mail addressed to such
Debtor and to do all things necessary to carry out this Agreement. Such Debtor
hereby ratifies and approves all acts of any such attorney and agrees that
neither the Agent nor any such attorney will be liable for any acts or omissions
nor for any error of judgment or mistake of fact or law other than their gross
negligence or willful misconduct. The foregoing power of attorney, being
coupled with an interest, is irrevocable until the Obligations have been fully
paid and satisfied and the commitments of the Lenders to extend credit to or for
the account of the Debtors under the Credit Agreement have terminated. The
Agent may file one or more financing statements disclosing its security interest
in any or all of the Collateral without a Debtor's signature appearing thereon.
Each Debtor also hereby grants the Agent a power of attorney to execute any such
financing statements, or amendments and supplements to financing statements, on
behalf of such Debtor without notice thereof to such Debtor, which power of
attorney is coupled with an interest and is irrevocable until the Obligations
have been fully paid and satisfied and the commitments of the Lenders to extend
credit to or for the account of either Debtor under the Credit Agreement have
terminated.
Section 7. Defaults and Remedies.
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(a) The occurrence of any one or more of the following events shall
constitute an "Event of Default" hereunder:
(i) default in the payment when due (whether by lapse of time,
acceleration or otherwise) of the Obligations or any part thereof
after giving effect to any applicable notice or grace period; or
(ii) any material representation or warranty made by either
Debtor herein, or in any statement or certificate furnished by it
pursuant hereto, or in connection with this Agreement, shall be false
in any material respect as of the date of the issuance or making
thereof; or
(iii) default in the observance or performance of any
provisions hereof requiring the maintenance of insurance on the
Collateral or dealing with the use or remittance of proceeds of
Collateral after the earlier of: (a) the date of which such default
shall first become known to any officer of either Debtor or (b)
written notice thereof is given to a Debtor by the Agent or any
Lender; or
(iv) default in the observance or performance of any other
provision hereof which is not remedied within 30 days after written
notice thereof is given to a Debtor by the Agent or any Lender; or
(v) the occurrence of any event or the existence of any
condition which is specified as an "Default" under the Credit
Agreement.
(b) Upon the occurrence and during the continuation of any Event of
Default hereunder, the Agent shall have, in addition to all other rights
provided herein or by law, the rights and remedies of a secured party under
the Code (regardless of whether the Code is the law of the jurisdiction
where the rights or remedies are asserted and regardless of whether the
Code applies to the affected Collateral), and further the Agent may,
without demand and without advertisement, notice, hearing or process of
law, all of which each Debtor hereby waives, at any time or times, sell and
deliver any or all Collateral held by or for it at public or private sale,
for cash, upon credit or otherwise, at such prices and upon such terms as
the Agent deems advisable, in its sole discretion. In addition to all
other sums due the Agent or any Lender hereunder, each Debtor shall pay the
Agent and any Lender all costs and expenses incurred by the Agent or such
Lender, including attorneys' fees and court costs, in obtaining,
liquidating or enforcing payment of Collateral or the Obligations or in the
prosecution or defense of any action or proceeding by or against the Agent,
such Lender or either Debtor concerning any matter arising out of or
connected with this Agreement or the Collateral or the Obligations,
including, without limitation, any of the foregoing arising in, arising
under or related to a case under the United States Bankruptcy Code (or any
successor statute). Any requirement of reasonable notice shall be met if
such notice is personally served on or mailed, postage prepaid, to the
Debtors in accordance with Section 12(b) hereof at
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least ten (10) days before the time of sale or other event giving rise to
the requirement of such notice; provided however, no notification need be
given to a Debtor if such Debtor has signed, after an Event of Default
hereunder has occurred, a statement renouncing any right to notification of
sale or other intended disposition. The Agent shall not be obligated to
make any sale or other disposition of the Collateral regardless of notice
having been given. The Agent or any Lender may be the purchaser at any
such sale. Each Debtor hereby waives all of its rights of redemption from
any such sale. Subject to the provisions of applicable law, the Agent may
postpone or cause the postponement of the sale of all or any portion of the
Collateral by announcement at the time and place of such sale, and such
sale may, without further notice, be made at the time and place to which
the sale was postponed or the Agent may further postpone such sale by
announcement made at such time and place.
(c) Without in any way limiting the foregoing, upon the occurrence
and during the continuation of any Event of Default hereunder, the Agent
shall have the right, in addition to all other rights provided herein or by
law, to take physical possession of any and all of the Collateral and
anything found therein, the right for that purpose to enter without legal
process any premises where the Collateral may be found (provided such entry
be done lawfully), and the right to maintain such possession on each
Debtor's premises (each Debtor hereby agreeing to lease such premises
without cost or expense to the Agent or its designee if the Agent so
requests) or to remove the Collateral or any part thereof to such other
places as the Agent may desire. Upon the occurrence and during the
continuation of any Event of Default hereunder, each Debtor shall, upon the
Agent's demand, assemble the Collateral and make it available to the Agent
at a place designated by the Agent. If the Agent exercises its right to
take possession of the Collateral, each Debtor shall also at its expense
perform any and all other steps requested by the Agent to preserve and
protect the security interest hereby granted in the Collateral, such as
placing and maintaining signs indicating the security interest of the
Agent, appointing overseers for the Collateral and maintaining Collateral
records.
(d) Without in any way limiting the foregoing, each Debtor hereby
grants to the Agent and the Lenders a royalty-free irrevocable license and
right to use all of such Debtor's patents, patent applications, patent
licenses, trademarks, trademark registrations, trademark licenses, trade
names, trade styles, and similar intangibles in connection with any
foreclosure or other realization by the Agent or the Lenders on all or any
part of the Collateral. The license and right granted the Agent and the
Lenders hereby shall be without any royalty or fee or charge whatsoever.
(e) Failure by the Agent to exercise any right, remedy or option
under this Agreement or any other agreement between any Debtor and the
Agent or provided by law, or delay by the Agent in exercising the same,
shall not operate as a waiver; and no waiver shall be effective unless it
is in writing, signed by the party against whom such waiver is sought to be
enforced and then only to the extent specifically stated. Neither the
Agent or any Lender, nor any party acting as attorney for the Agent or any
Lender,
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shall be liable hereunder for any acts or omissions or for any error of
judgment or mistake of fact or law other than their gross negligence or
willful misconduct. The rights and remedies of the Agent and the Lenders
under this Agreement shall be cumulative and not exclusive of any other
right or remedy which the Agent or the Lenders may have. For purposes of
this Agreement, an Event of Default shall be construed as continuing after
its occurrence until the same is waived in writing by the Lenders or the
Required Lenders, as the case may be, in accordance with the Credit
Agreement.
Section 8. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Agent upon the occurrence and during the
continuation of any Event of Default hereunder shall, when received by the Agent
in cash or its equivalent, be applied by the Agent in reduction of the
Obligations in accordance with the terms of the Credit Agreement. Each Debtor
shall remain liable to the Agent and the Lenders for any deficiency. Any surplus
remaining after the full payment and satisfaction of the Obligations shall be
returned to the Debtors or to whomsoever the Agent reasonably determines is
lawfully entitled thereto.
Section 9. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations, both for principal and interest, have been fully paid and
satisfied and the commitments of the Lenders to extend credit to or for the
account of either Debtor under the Credit Agreement have terminated. Upon such
termination of this Agreement, the Agent shall, upon the request and at the
expense of the Debtors, forthwith release its security interest hereunder.
(a) The Agent. In acting under or by virtue of this Agreement, the
Agent shall be entitled to all the rights, authority, privileges and
immunities provided in Article IX of the Credit Agreement, all of which
provisions of said Article IX are incorporated by reference herein with the
same force and effect as if set forth herein in their entirety. The Agent
hereby disclaims any representation or warranty to the Lenders concerning
the perfection of the security interest granted hereunder or in the value
of any of the Collateral.
Section 10. Primary Security; Obligations Absolute. The lien and security
herein created and provided for stand as direct and primary security for the
Obligations. No application of any sums received by the Agent in respect of the
Collateral or any disposition thereof to the reduction of the Obligations or any
portion thereof shall in any manner entitle any Debtor to any right, title or
interest in or to the Obligations or any collateral security therefor, whether
by subrogation or otherwise, unless and until all Obligations have been fully
paid and satisfied and the commitments of the Lenders to extend credit or
otherwise make financial accommodations available to or for the account of each
Debtor under the Credit Agreement have expired or otherwise have been
terminated. Each Debtor acknowledges and agrees that the lien and security
hereby created and provided for are absolute and unconditional and shall not in
any manner be affected or impaired by any acts or omissions whatsoever of the
Agent, any Lender or any other holder of any of the Obligations, and without
limiting the generality of the foregoing, the lien and security hereof shall not
be impaired by any acceptance by the Agent, any Lender or any holder of any of
the Obligations of any other security for or guarantors upon any of the
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Obligations or by any failure, neglect or omission on the part of the Agent, any
Lender or any other holder of any of the Obligations to realize upon or protect
any of the Obligations or any collateral security therefor. Without limiting
the restrictions contained in Sections 10.13 and 10.14 of the Credit Agreement,
the lien and security hereof shall not in any manner be impaired or affected by
(and the Agent and the Lenders, without notice to anyone, are hereby authorized
to make from time to time) any sale, pledge, surrender, compromise, settlement,
release, renewal, extension, indulgence, alteration, substitution, exchange,
change in, modification or disposition of any of the Obligations, or of any
collateral security therefor, or of any guaranty thereof or of any obligor
thereon. The Lenders may at their discretion at any time grant credit to the
Borrowers, or any of them individually, without notice to any Debtor in such
amounts and on such terms as the Lenders may elect without in any manner
impairing the lien and security hereby created and provided for. No release,
compromise or discharge of any Debtor hereunder or with respect to any of the
Obligations or any Collateral provided by such Debtor shall release or
discharge, or impair the agreements of, any other Debtor hereunder or in any
manner impair the liens and security interests granted by any other Debtor
hereunder; and the Agent may proceed against the Collateral provided hereunder
by any one or more of the Debtors without proceeding against the other Debtors,
their respective properties or any other security or guaranty whatsoever.
Without limiting the generality of the foregoing, the requisite number of
Lenders (as determined in accordance with the terms of the Credit Agreement) may
at any time or from time to time release any Debtor from its obligations
hereunder or release any Collateral or effect any compromise with any Debtor,
and no such release or compromise shall in any manner impair or otherwise effect
the liens granted by, or the obligations of, the other Debtors hereunder. In
order to foreclose or otherwise realize hereon and to exercise the rights
granted the Agent hereunder and under applicable law, there shall be no
obligation on the part of the Agent, any Lender or any other holder of any of
the Obligations at any time to first resort for payment to any Debtor or any
other obligor on any of the Obligations or to any guaranty of the Obligations or
any portion thereof or to resort to any other collateral security, property,
liens or any other rights or remedies whatsoever, and the Agent shall have the
right to enforce this instrument irrespective of whether or not other
proceedings or steps are pending seeking resort to or realization upon or from
any of the foregoing.
Section 11. Miscellaneous.
(a) This Agreement cannot be changed or terminated orally. This
Agreement shall create a continuing security interest in the Collateral and
shall be binding upon the Debtors, their respective successors and assigns
and shall inure, together with the rights and remedies of the Agent and the
Lenders hereunder, to the benefit of the Agent, the Lenders, and their
successors and assigns; provided, however, that no Debtor may assign its
rights or delegate its duties hereunder without the Agent's prior written
consent. Without limiting the generality of the foregoing, and subject to
the provisions of Section 10.13 of the Credit Agreement, any Lender may
assign or otherwise transfer any indebtedness held by it secured by this
Agreement to any other person or entity, and such other person or entity
shall thereupon become vested with all the benefits in respect thereof
granted to such Lender herein or otherwise, subject, however, to the
provisions
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of the Credit Agreement. Each Debtor hereby releases the Agent and each
Lender from any liability for any act or omission relating to the
Collateral or this Agreement, except for the Agent's or such Lender's gross
negligence or willful misconduct.
(b) Except as otherwise specified herein, all notices hereunder shall
be in writing (including, without limitation, notice by telecopy) and shall
be given to the relevant party, and shall be deemed to have been made when
given to the relevant party, in accordance with Section 10.15 of the Credit
Agreement.
(c) No Lender shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure or other realization
upon any Collateral subject to this Agreement or for the execution of any
trust or power hereof or for the appointment of a receiver, or for the
enforcement of any other remedy under or upon this Agreement; it being
understood and intended that no one or more of the Lenders shall have any
right in any manner whatsoever to affect, disturb or prejudice the lien and
security interest of this Agreement by its or their action or to enforce
any right hereunder, and that all proceedings at law or in equity shall be
instituted, had and maintained by the Agent in the manner herein provided
for the benefit of the Lenders.
(d) In the event that any provision hereof shall be deemed to be
invalid or unenforceable by reason of the operation of any law or by reason
of the interpretation placed thereon by any court, this Agreement shall be
construed as not containing such provision, but only as to such
jurisdictions where such law or interpretation is operative, and the
invalidity or unenforceability of such provision shall not affect the
validity of any remaining provisions hereof, and any and all other
provisions hereof which are otherwise lawful and valid shall remain in full
force and effect.
(e) This Agreement shall be deemed to have been made in the State of
Illinois and shall be governed by, and construed in accordance with, the
laws of the State of Illinois. All terms which are used in this Agreement
which are defined in the Code shall have the same meanings herein as said
terms do in the Code unless this Agreement shall otherwise specifically
provide. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning of any provision
hereof.
(f) This Agreement may be executed in any number of counterparts and
by different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same agreement.
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In Witness Whereof, each Debtor has caused this Agreement to be duly
executed and delivered as of the date first above written.
LaSalle Partners Limited Partnership,
a Delaware limited partnership
By /s/ Xxxxxxx X. XxXxxxxxx
-------------------------
Its Vice President, Treasurer and
----------------------------------
Assistant Secretary
------------------------------
LaSalle Partners Management Limited
Partnership, a Delaware limited
partnership
By /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Its President, Managing Director,
----------------------------------
Treasurer and Secretary
-----------------------
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Accepted and agreed to in Chicago, Illinois as of the date first above
written.
Xxxxxx Trust and Savings Bank, as Agent
as aforesaid for the Lenders
By /s/ M. Xxxxxxxxx Xxxxxxx
------------------------
Its Vice President
---------------
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