Exhibit 10.05
Collateral Assignment of Partnership Interests
This Collateral Assignment of Partnership Interests (the "Assignment") is
dated as of September 6, 1996, made by LaSalle Partners Management Limited
Partnership, a Delaware limited partnership ("LPML") and LaSalle Partners
Limited Partnership, a Delaware limited partnership ("LPL") (LPL and LPML are
hereinafter referred to collectively as the "Assignors" and individually as an
"Assignor") and ▇▇▇▇▇▇ Trust and Savings Bank ("▇▇▇▇▇▇") with its mailing
address ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ acting as agent
hereunder for the Lenders hereinafter identified and defined (▇▇▇▇▇▇ acting as
such agent and any successor or successors to ▇▇▇▇▇▇ acting in such capacity
being hereinafter referred to as the "Agent");
Witnesseth That:
Whereas, the Assignors, ▇▇▇▇▇▇, 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 (▇▇▇▇▇▇ 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 Assignors;
Whereas, as a condition precedent to extending the credit facilities to the
Assignors under the Credit Agreement, the Lenders have required, among other
things, that the Assignors grant to the Agent a lien on and security interest in
certain properties of the Assignors 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:
1. Assignment of Partnership Interest. Each Assignor does hereby assign and
transfer to the Agent for the benefit of the Lenders and acknowledges and agrees
that the Agent for the benefit of the Lenders has and shall continue to have a
security interest in (i) all right, title and interest of such Assignor, whether
now owned or hereafter acquired in and to each partnership and limited liability
company identified on Schedule A attached hereto and made a part hereof as such
Schedule may from time to time be amended as hereinafter set forth, and each
successor to each such partnership or limited liability company (such
partnerships, limited liability companies and successors being hereinafter
referred to collectively as the "Partnerships" and individually as a
"Partnership"), (ii) all payments and distributions of whatever kind or
character and whether in cash or other property at any time made, owing or
payable to such Assignor from, in respect of or on account of its interests
(whether now owned or hereafter acquired) in each of the Partnerships, whether
due or to become due and whether representing profits, distributions pursuant to
complete or partial liquidation or dissolution of such Partnership,
distributions representing the complete or partial redemption of such Assignor's
interest in such Partnership or the complete or partial withdrawal of such
Assignor from such Partnership,
repayment of capital contributions, payment of management fees or commissions,
or otherwise, and the right to receive, receipt for, use and enjoy all such
payments and distributions, and all proceeds thereof, in every case whether now
existing or hereafter acquired or arising, and (iii) all proceeds of any of the
foregoing (all of the foregoing rights, interests, properties, and privileges
assigned and in which a security interest is granted pursuant hereto being
hereinafter collectively called the "Assigned Interests"). This pledge and
assignment constitutes an assignment of the rights of each Assignor with respect
to the Assigned Interests only and not an assignment of any duties or
obligations any Assignor may have with regard to the management of, or the
giving of advice to, the Partnerships. Notwithstanding anything herein to the
contrary, the Agent and Lenders acknowledge that the Agent does not by reason of
this assignment and pledge, and is not hereby granted the right, to become a
substituted partner in place of the relevant Assignor.
2. Obligations Hereby Secured. This Assignment is made and given to secure,
and shall secure, the payment and performance of (a) the Obligations (as defined
in the Credit Agreement) and (b) any and all expenses and charges, legal or
otherwise, suffered or incurred by the Agent or any Lender 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 foregoing being hereinafter referred to as the
"Obligations").
3. Covenants, Agreements, Representations and Warranties. Each Assignor
hereby covenants and agrees with, and represents and warrants to, the Agent and
Lenders that:
(a) Each Assignor is a limited partnership duly organized and validly
existing in good standing under the laws of the State of Delaware, is the sole
and lawful legal, record and beneficial owner of the Assigned Interests, 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. The execution and
delivery of this Agreement, and the observance and performance of the matters
and things herein set forth, will not (i) contravene or constitute a default
under any provision of law, or any judgment, injunction, order or decree binding
upon either Assignor, or any provision of either Assignor's partnership
agreement, or any covenant, indenture or agreement of or affecting either
Assignor or any of their respective property, or (ii) result in the creation or
imposition of any lien or encumbrance on any property of either Assignor except
for the lien and security interest in the Assigned Interests granted to the
Lender pursuant to this Agreement and except as permitted under Section 6.15(g)
of the Credit Agreement. Each Assignor's chief executive office is located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and neither Assignor shall move its
chief executive office without first providing the Agent 30 days prior written
notice of either Assignor's intent to do so, provided that each Assignor shall
at all times maintain its chief executive office in the United States of America
and, with respect to any such new location, either Assignor shall have taken all
action requested by the Agent to maintain the lien and security interest of the
Agent in the Assigned Interests at all times fully perfected and in full force
and effect.
(b) The Assigned Interests 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. Each Assignor shall warrant and
defend the Assigned Interests against any claims and demands of all persons or
entities at any time claiming the same or any interest in the Assigned Interests
adverse to the Agent. Each Assignor has the right to vote the Assigned Interests
and there are no restrictions upon the voting rights associated with, or the
transfer of, any of the Assigned Interests, except as provided by federal and
state laws applicable to the sale of securities generally or as otherwise
disclosed to the Lender in writing.
(c) Except as permitted under Sections 6.15(g) and 6.11 of the Credit
Agreement, neither Assignor shall, without the Agent's prior written consent,
sell, assign, pledge, encumber, or otherwise dispose of the Assigned Interests
or any interest therein.
(d) Each Assignor shall promptly pay when due all taxes, assessments and
governmental charges and levies upon or against such Assignor or the Assigned
Interests, in each case before the same become delinquent and before penalties
accrue thereon, unless and to the extent that the same are being contested in
good faith by appropriate proceedings which prevent foreclosure on or other
realization upon any of the Assigned Interests and such Assignor shall have
established adequate reserves therefor.
(e) Each Assignor agrees to execute and deliver to the Agent such further
agreements, assignments, instruments and documents and to do all such other
things as the Agent or any Lender may deem necessary or appropriate to assure
the Agent its lien and security interest hereunder, including such assignments,
stock powers, financing statements. instruments and documents as the Agent or
any Lender may from time to time 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 Assignor 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 either Assignor wherever the 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 Assigned Interests or any part
thereof, or to any of the Obligations, each Assignor agrees to execute and
deliver all such agreements, assignments, instruments and documents and to do
all such other things as the Agent or any Lender in their sole discretion deems
necessary or appropriate to preserve, protect and enforce the lien and security
interest of the Agent under the law of such other jurisdiction. Each Assignor
agrees to ▇▇▇▇ its books and records to reflect the lien and security interest
of the Agent in the Assigned Interests.
(f) If, as and when an Assignor assigns any partnership interests hereunder
in addition to those listed on Schedule A hereto, such Assignor shall furnish to
the Agent a duly completed and executed amendment to such Schedule in
substantially the form (with appropriate insertions) of Schedule B hereto
reflecting the securities pledged hereunder after giving effect to such
addition.
(g) After the occurrence and during the continuance of a Default or the
occurrence of an event which with the lapse of time or the giving of notice
would be a Default under Section 7.6 of the Credit Agreement, on failure of an
Assignor 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 deem advisable in the performance thereof, including, without
limitation, 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 Assignors 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 applicable to past due Domestic Rate Loans (as defined in the
Credit Agreement). No such performance of any covenant or agreement by the Agent
on behalf of an Assignor, and no such advancement or expenditure therefor, shall
relieve such Assignor 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, in making any payment hereby authorized, may do so
according to any ▇▇▇▇, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such ▇▇▇▇, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien or title or claim. The Agent, in
performing any act hereunder, shall be the sole judge of whether an Assignor is
required to perform same under the terms of this Agreement. The Agent is hereby
authorized to charge any depository or other account of either Assignor
maintained with the Agent excluding all accounts of either Assignor in a
fiduciary capacity for the amount of such sums and amounts so expended.
(h) Each Assignor further warrants to and agrees with the Agent as follows:
(i) that said Partnerships are valid and existing entities of the type
listed on Schedule A and are duly organized and existing under applicable law;
and
(ii) that the copies of the Organizational Agreements (as defined
below) for the Partnerships heretofore delivered to the Agent are true and
correct copies thereof and have not been amended or modified in any respect,
except for such amendments or modifications as are attached to the copies
thereof delivered to the Agent.
(i) The Assignor will not, without the prior written consent of the Agent,
consent to any amendment or modification to any of the Organizational Agreements
which would in any manner materially adversely affects or impairs the Assigned
Interests or reduce or dilute the rights of the Assignor with respect to any of
the Partnerships, any of such done without such prior written consent to be null
and void. The Assignor will send to the Agent copies of all notices and
communications with respect to each Partnership alleging the existence of a
default by Assignor in the performance of any of its obligations under any
Organizational Agreement. The Assignor agrees that it will promptly notify the
Agent of any litigation which might materially or adversely affect the Assignor
or a Partnership or any of their respective properties and of any material
adverse change in the operations, business properties, assets or conditions,
financial or otherwise, of the Assignor or any Partnership. The Assignor will
promptly perform all of its
material obligations under each Organizational Agreement. After the occurrence
and during the continuance of a Default or the occurrence of an event which with
the lapse of time or the giving of notice would be a Default under Section 7.6
of the Credit Agreement, in the event Assignor fails to pay or perform any
material obligation arising under any Organizational Agreement or otherwise
related to any Partnership, the Agent may, but need not, pay or perform such
obligation at the expense and for the account of the Assignor and all funds
expended for such purposes shall constitute Obligations which the Assignor
promises to pay to the Agent together with interest thereon at the rate per
annum determined by adding 2% to the rate from time to time announced by the
Agent as its prime commercial rate (with any change in the interest rate hereon
resulting from a change in such prime commercial rate to be and become effective
as of and on the date of the relevant change in such prime commercial rate).
4. Special Provisions re: Partnership Distributions. Each Assignor hereby
authorizes and directs the Partnerships and any other party at any time holding
funds due such Assignor and constituting part of the Assigned Interests whether
or not a default has occurred hereunder or in respect of the Obligations, to
make all distributions or payments now due or hereafter to become due to such
Assignor in respect of or constituting part of the Assigned Interests directly
to the Agent if the Agent should at any time so demand and agree that such
payment or distribution to the Agent as aforesaid shall be a good receipt and
acquittance to such Assignor to the extent so made. All proceeds in respect of
and all distributions or payments constituting part of the Assigned Interests at
any time received by the Agent may be retained by the Agent as additional
collateral security hereunder or may be applied by the Agent to the Obligations
at such time or times and in such order as the Agent may deem proper, whether or
not the Obligations be then due or otherwise adequately secured. Anything to the
contrary contained herein notwithstanding, so long as a Partnership has not
received written notice from the Agent to the contrary, such Assignor shall be
entitled to receive from such Partnership, and such Partnership shall be
entitled to distribute directly to such Assignor, so much of the ordinary net
earnings of the Partnership as such Assignor shall be entitled to pursuant to
the terms of the agreement under which such Partnership has been formed (each
such agreement being hereinafter referred to as "Organizational Agreement")
(subject to the provisions of the Credit Agreement such distributions to in no
event include distributions in complete or partial liquidation of such
Partnership or the interest of such Assignor therein or distributions out of the
proceeds of any sale of such Partnership's property other than the sale of
obsolete or worn out personal property which has been replaced by such
Partnership with property of equal utility or out of the proceeds of any loan to
a Partnership secured by the Partnership's property or out of the proceeds of
any insurance carried on the Partnership's property).
5. Power of Attorney. Each Assignor hereby appoints the Agent, and each of
its nominees, officers, agents, attorneys, and any other person whom the Agent
may designate, as such Assignor's attorney-in-fact, with full power and
authority upon the occurrence and during the continuation of a Default to ask,
demand, collect, receive, receipt for, ▇▇▇ for, compound and give acquittance
for any and all sums or properties which may be or become due, payable or
distributable in respect of the Assigned Interests or any a part thereof, with
full power to settle, adjust or compromise any claim thereunder or therefor as
fully as such Assignor could itself do, to endorse such Assignor's name on any
assignments, or other instruments of transfer and on any checks, notes,
acceptances, money orders, drafts and any other forms of payment
or security that may come into the Agent's possession and on all documents of
satisfaction, discharge or receipt required or requested in connection
therewith, and, in its discretion, to file any claim or take any other action or
proceeding, either in its own name or in the name of such Assignor, or
otherwise, which the Agent or any Lender may deem necessary or appropriate to
collect or otherwise realize upon all or any part of the Assigned Interests, or
effect a transfer thereof, or which may be necessary or appropriate to protect
and preserve the right, title and interest of the Agent in and to such Assigned
Interests and the security intended to be afforded hereby. Each Assignor 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 Agent may file one or more financing statements
disclosing its security interest in all or any part of the Assigned Interests
without a Assignor's signature appearing thereon, and each Assignor also hereby
grants the Agent a power of attorney to execute any such financing statements,
and any amendments or supplements thereto, on behalf of such Assignor without
notice thereof to such Assignor. The foregoing powers of attorney, being coupled
with an interest, are irrevocable until the Obligations have been fully paid and
satisfied and all agreements of the Agent or any Lender to extend credit to or
for the account of either Assignor under the Credit Agreement have expired or
otherwise have been terminated.
6. Defaults and Remedies.
(a) If a Default shall have occurred and be continuing, all rights of each
Assignor to receive and retain the distributions which it is entitled to receive
and retain shall, at the option of the Agent, cease and thereupon become vested
in the Agent which, in addition to all other rights provided herein or by law,
shall then be entitled solely and exclusively to receive and retain the
distributions which such Assignor would otherwise have been authorized to retain
pursuant to Section 4 hereof and all rights of such Assignor to exercise the
voting and/or consensual powers which it is entitled to exercise pursuant to
Section 4 hereof shall, at the option of the Agent, cease and thereupon become
vested in the Agent which, in addition to all other rights provided herein or by
law, shall then be entitled solely and exclusively to exercise all voting and
other consensual powers pertaining to the Assigned Interests and to exercise any
and all rights of conversion, exchange or subscription and any other rights,
privileges or options pertaining thereto as if the Agent were the absolute owner
thereof including, without limitation, the right to exchange, at its discretion,
the Assigned Interests or any part thereof upon the merger, consolidation,
reorganization, recapitalization or other readjustment of the respective issuer
thereof or upon the exercise by or on behalf of any such issuer or the Agent of
any right, privilege or option pertaining to the Assigned Interests or any part
thereof and, in connection therewith, to deposit and deliver the Assigned
Interests or any part thereof with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the Agent
may determine.
(b) Upon the occurrence and during the continuation of any Default, 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 Assigned Interests),
and further the Agent may, without demand and without
advertisement, notice, hearing or process of law, all of which each Assignor
hereby waives, at any time or times, sell and deliver any or all Assigned
Interests 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 the exercise of any such remedies, the Agent may sell
all the Assigned Interests as a unit even though the sales price thereof may be
in excess of the amount remaining unpaid on the Obligations. The Agent is
authorized at any sale or other disposition of the Assigned Interests, if it
deems it advisable so to do, to restrict the prospective bidders or purchasers
to persons who will represent and agree that they are purchasing for their own
account for investment, and not with a view to the distribution or resale of any
of the Assigned Interests. In addition to all other sums due the Agent and
Lenders hereunder, each Assignor shall pay the Agent all costs and expenses
incurred by the Agent, including attorneys' fees and court costs, in obtaining,
liquidating or enforcing payment of Assigned Interests or the Obligations or in
the prosecution or defense of any action or proceeding by or against the Agent
or an Assignor concerning any matter arising out of or connected with this
Agreement or the Assigned Interests 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 Assignors in accordance with
Section 11(b) hereof at least 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 an Assignor if such Assignor has signed, after a Default 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 Assigned Interests regardless of notice having been given.
The Agent may be the purchaser at any such sale or other disposition of the
Assigned Interests or any part thereof. Each Assignor hereby waives all of its
rights of redemption from any sale or other disposition of the Assigned
Interests or any part thereof. 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 Assigned Interests 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.
EACH ASSIGNOR AGREES THAT IF ANY PART OF THE ASSIGNED INTEREST IS SOLD AT ANY
PUBLIC OR PRIVATE SALE, THE AGENT MAY ELECT TO SELL ONLY TO A BUYER WHO WILL
GIVE FURTHER ASSURANCES, SATISFACTORY IN FORM AND SUBSTANCE TO THE BANK,
RESPECTING COMPLIANCE WITH THE REQUIREMENTS OF THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, AND A SALE SUBJECT TO SUCH CONDITION SHALL BE DEEMED
COMMERCIALLY REASONABLE.
EACH ASSIGNOR FURTHER AGREES THAT IN ANY SALE OF ANY PART OF THE ASSIGNED
INTEREST, THE AGENT IS HEREBY AUTHORIZED TO COMPLY WITH ANY LIMITATION OR
RESTRICTION IN CONNECTION WITH SUCH SALE AS IT MAY BE ADVISED BY COUNSEL IS
NECESSARY IN ORDER TO AVOID ANY VIOLATION OF APPLICABLE LAW (INCLUDING, WITHOUT
LIMITATION, COMPLIANCE WITH SUCH PROCEDURES AS MAY RESTRICT THE NUMBER OF
PROSPECTIVE BIDDERS AND PURCHASERS AND/OR FURTHER RESTRICT SUCH PROSPECTIVE
BIDDERS OR PURCHASERS TO PERSONS WHO WILL REPRESENT AND AGREE THAT THEY ARE
PURCHASING FOR THEIR OWN ACCOUNT FOR INVESTMENT AND NOT WITH A VIEW TO THE
DISTRIBUTION OR RESALE OF SUCH COLLATERAL), OR IN ORDER TO OBTAIN ANY REQUIRED
APPROVAL OF THE SALE OR OF THE PURCHASER BY ANY GOVERNMENTAL REGULATORY
AUTHORITY OR OFFICIAL, AND THE ASSIGNOR FURTHER AGREES THAT SUCH COMPLIANCE
SHALL NOT RESULT IN SUCH
SALE BEING CONSIDERED OR DEEMED NOT TO HAVE BEEN MADE IN A COMMERCIALLY
REASONABLE MANNER, NOR SHALL THE BANK BE LIABLE OR ACCOUNTABLE TO THE ASSIGNOR
FOR ANY DISCOUNT ALLOWED BY REASON OF THE FACT THAT SUCH COLLATERAL IS SOLD IN
COMPLIANCE WITH ANY SUCH LIMITATION OR RESTRICTION.
(c) The powers conferred upon the Agent hereunder are solely to protect its
interest in the Assigned Interests and shall not impose on it any duty to
exercise such powers. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Assigned Interests in its possession
if the Assigned Interests are accorded treatment substantially equivalent to
that which the Agent accords its own property, consisting of similar type
securities, it being understood, however, that the Agent shall have no
responsibility for (a) ascertaining or taking any action with respect to any
matters relating to any Assigned Interests, whether or not the Agent has or is
deemed to have knowledge of such matters, (b) taking any necessary steps to
preserve rights against any parties with respect to any Assigned Interests, or
(c) initiating any action to protect the Assigned Interests against the
possibility of a decline in market value. This Agreement constitutes an
assignment of rights only and not an assignment of any duties or obligations of
either Assignor in any way related to the Assigned Interests, and the Agent
shall have no duty or obligation to discharge any such duty or obligation.
(d) Failure by the Agent to exercise any right, remedy or option under this
Agreement or any other agreement between an Assignor 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 by the Agent or any Lender shall be effective unless it is
in writing and then only to the extent specifically stated. Neither the Agent
nor any party acting as attorney for the Agent shall he liable 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 under this Agreement shall be cumulative and not exclusive of any other
right or remedy which the Agent may have.
7. Application of Proceeds. All cash proceeds received by the Agent in
respect of any sale of, collection from, or other realization upon all or any
part of the Assigned Interests shall when received by the Agent in cash or its
equivalent, be applied by the Agent in reduction of the Obligations to the
extent required by the Credit Agreement. Any surplus of such cash or cash
proceeds held by the Agent and remaining after payment in full of all the
Obligations, and termination of this Agreement, shall be paid over to the
Assignor or to whomsoever may be lawfully entitled to receive such surplus. The
Assignors shall remain liable to the Agent and Lenders for any deficiency.
8. 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 all agreements of the Lenders to extend credit to or for the account of
either Assignor under the Credit Agreement have expired or otherwise have been
terminated. Upon such termination of this Agreement, the Agent shall, upon the
request and at the expense of the Assignors, forthwith release its security
interest and assignment hereunder.
9. 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 the Credit Agreement all of
which provisions of the Credit Agreement (including, without limitation, Article
IX thereof) are incorporated by reference herein with the same force and effect
as if set forth herein. The Agent hereby disclaims any representation or
warranty to the Lenders concerning the perfection of the security interest
granted hereunder or the value of the Assigned Interests.
10. Primary Security; Obligations Absolute. The security interest and
assignment 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 Assigned Interests or any disposition thereof to the reduction of the
Obligations or any portion thereof shall in any manner entitle any Assignor 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 the Assignors
under the Credit Agreement have expired or otherwise have been terminated. Each
Assignor acknowledges and agrees that the security interest and assignment
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 security interest and assignment
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 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 Section 10.13 and 10.14 of the Credit
Agreement, the security interest and assignment 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 Assignors, or any of them individually, without
notice to any Assignor 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 Assignor hereunder or
with respect to any of the Obligations or any Assigned Interests provided by
such Assignor shall release or discharge, or impair the agreements of, any other
Assignor hereunder or in any manner impair the security interests and
assignments granted by any other Assignor hereunder; and the Agent may proceed
against the Assigned Interests provided hereunder by any one or more of the
Assignors without proceeding against the other Assignors, 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 Assignor from its obligations hereunder or release any
Assigned Interests or effect any compromise with any Assignor, and no such
release or compromise shall in any manner impair or otherwise effect the liens
granted by, or the obligations of, the other Assignors 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 Borrower 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.
11. Miscellaneous.
(a) This Agreement cannot be changed or terminated orally. All of the
rights, privileges, remedies and options given to the Agent hereunder shall
inure to the benefit of its successors and assigns, and all the terms,
conditions, covenants, agreements, representations and warranties of and in this
Agreement shall bind the Assignors and their respective legal representatives,
successors and assigns, provided that neither Assignor may assign its rights or
delegate its duties hereunder without the Agent and Lenders' prior written
consent. Each Assignor hereby releases the Agent from any liability for any act
or omission relating to the Assigned Interests or this Agreement, except for the
Agent'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 at its address or telecopier number set forth below, or
such other address or telecopier number as such party may hereafter specify by
notice to the other given by United States certified or registered mail, by
telecopy or by other telecommunication device capable of creating a written
record of such notice and its receipt. Notices hereunder shall be addressed:
to the Assignors at: to the Agent at:
LaSalle Partners Limited ▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attention: Emerging Majors
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (ii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the addresses specified in this Section.
(c) No Lender shall have the right to institute any suit, action or
proceeding in equity or at law for the enforcement of any 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 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 and
for the benefit of the Lenders.
(d) All capitalized terms used herein without definition shall have the
same meanings
herein as such terms have in the Credit Agreement. The term "Assignor" and
"Assignors" as used herein shall mean and include the Assignors collectively and
also each individually, with all grants, representations, warranties and
covenants of and by the Assignors, or any of them, herein contained to
constitute joint and several grants, representations, warranties and covenants
of and by the Assignors; 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 Assigned Interests shall be made by
each Assignor only with respect to the Assigned Interests owned by it or
represented by such Assignor as owned by it.
(e) 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 locations 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.
(f) This Assignment constitutes an assignment of the rights of the Assignor
with respect to the Partnerships only and not an assignment of any duties or
obligations of the Assignor with respect thereto; and by its acceptance hereof,
the Agent does not undertake to perform or discharge and shall not be
responsible or liable for the performance or discharge of any such duties or
responsibilities.
(g) 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.
(h) 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 instrument. Each
Assignor acknowledges that this Agreement is and shall be effective upon its
execution and delivery by such Assignor to the Agent, and it shall not be
necessary for the Agent to execute this Agreement or any other acceptance hereof
or otherwise to signify or express its acceptance hereof.
(i) Each Assignor hereby submits to the non-exclusive jurisdiction of the
United States District Court for the Northern District of Illinois and of any
Illinois state court sitting in the City of Chicago for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Assignor irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
form. Each Assignor, the Agent and the Lenders each hereby irrevocably waives
any and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated
hereby.
In Witness Whereof, the Assignor has caused this Agreement to be duly
executed and delivered the day and year first above written.
LaSalle Partners Limited Partnership
a Delaware Limited Partnership
By
------------------------------
Its
------------------------------
LaSalle Partners Limited Partnership
Partnership, a Delaware Limited
Partnership
By
------------------------------
Its
------------------------------
Acknowledged and Agreed to as of the date first above written
▇▇▇▇▇▇ Trust and Savings Bank, as Agent
By
---------------------------------
Its
---------------------------------
Schedule A
Partnership Interests
Name of Type of Jurisdiction Of Percent Of Capital
Partnership Organization Organization Ownership Contribution
Income Parking Limited Illinois $750,000
Fund Limited Partnership
Partnership
LPMD-I Limited Delaware 31.1182% $771,446
Investors L.P. Partnership
Schedule B
Amendment to Collateral Assignment of Partnership Interests
This Amendment to Collateral Assignment of Partnership Interests (the
"Amendment") is dated as of ________________, __________, among LaSalle Partners
Limited Partnership, a Delaware Limited Partnership, LaSalle Partners Management
Limited Partnership, a Delaware Limited Partnership and ▇▇▇▇▇▇ Trust and Savings
Bank, as Agent. Reference is hereby made to that certain Collateral Assignment
of Partnership Interests (the "Assignment") dated as of September 6, 1996, made
by LaSalle Partners Limited Partnership, a Delaware Limited Partnership and
LaSalle Partners Management Limited Partnership, a Delaware Limited Partnership.
Capitalized terms not otherwise defined herein shall have the meaning set forth
in the Assignment.
Subsequent to the delivery of the Assignment, certain partnership interests
or limited liability company interests have been added as Assigned Interests
under the Assignment. As a result of such addition, Schedule A of the Assignment
does not accurately describe the partnership interests and limited liability
company interests currently held by the Agent as collateral under the
Assignment.
The Assignors now desires to amend Schedule A to the Assignment to reflect
such addition, and this instrument shall constitute an agreement between the
Assignors and the Agent amending the Assignment in the respects, but only in the
respects, hereinafter set forth:
1. Schedule A of the Assignment shall be and hereby is amended, and as so
amended it shall be restated in its entirety to read as set forth on Annex A
attached hereto.
2. As collateral security for the Obligations, each Assignor hereby grants
to the Agent for the benefit of the Lenders a continuing lien on and security
interest in, and acknowledges and agrees that the Agent has and shall continue
to have a continuing lien on and security interest in, all interests of each
organization listed and described on Annex A attached hereto and all the other
properties, rights, interests and privileges comprising the Assigned Interests
(as such term is defined in the Assignment after giving effect to this
Amendment), to the same extent and with the same force and effect as if the
interests described on Annex A had originally been included on Schedule A to the
Assignment. The foregoing granting clause is in addition to and supplemental of
and not in substitution for the granting clause contained in the Assignment.
Neither the Assignors nor the Agent intends by this Amendment to in any way
impair or otherwise affect the lien and security interest of the Assignment on
such of the Assigned Interests which were subject to the Assignment prior to
giving effect to this Amendment.
3. Each Assignor hereby repeats and reaffirms all of its covenants,
agreements, representations and warranties contained in the Assignment, each and
all of which shall be applicable to all of the properties, rights, interests and
privileges subject to the lien and security interest of the Assignment after
giving effect to this Amendment. Each Assignor hereby certifies that no Default
or event which with the giving of notice or the lapse of time, or both, would
constitute a Default exists under the Assignment after giving effect to this
Amendment.
4. No reference to this Amendment need be made in any note, instrument or
other document at any time referring to the Assignment, any reference in any of
such items to the Assignment to be deemed a reference to the Assignment as
modified hereby. All references in the Assignment to the term "Assigned
Interests" shall be deemed a reference to such terms as defined in the
Assignment after giving effect to this Amendment.
5. Except as specifically modified hereby, all the terms and conditions of
the Assignment shall stand and remain unchanged and in full force and effect.
IN WITNESS WHEREOF, each Assignor has caused this Amendment to be duly
executed and delivered the day and year first above written.
LASALLE PARTNERS LIMITED PARTNERSHIP,
a Delaware Limited Partnership
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Its Vice President, Treasurer and
---------------------------------
Assistant Secretary
LASALLE PARTNERS MANAGEMENT LIMITED
PARTNERSHIP,
a Delaware Limited Partnership
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------------
Its President, Managing Director,
---------------------------------
Treasurer and Secretary
Accepted and agreed to in Chicago, Illinois, as of the date first above
written.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as Agent
By /s/ M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Its Vice President
---------------------------------