EXHIBIT 10.03
Supporting Subsidiary Security Agreement
This Supporting Subsidiary Security Agreement (the "Agreement") dated as of
September 6, 1996 by and among the parties who have executed this Agreement
(such parties, along with any other parties who execute and deliver to the Agent
hereinafter identified and defined an agreement in the form attached hereto as
Schedule A, being herein referred to collectively as the "Debtors" and
individually as a "Debtor"), 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");
W I T N E S S E T H T H A T:
Whereas, the Debtors are subsidiaries or affiliates of either LaSalle
Partners Limited Partnership, a Delaware limited partnership ("LPL") or LaSalle
Partners Management Limited Partnership, a Delaware limited partnership ("LPML";
LPL and LPML are sometimes hereinafter referred to individually as a "Borrower"
and collectively as the "Borrowers");
Whereas, the Borrowers, ▇▇▇▇▇▇, 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 Borrowers;
Whereas, as a condition precedent to extending the credit facilities to the
Borrowers 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;
Whereas, the interdependent nature of the businesses of each of the Debtors
and the Borrowers is such that the viability of each Debtor is dependent upon
the continued success of the Borrowers and upon the continuation of the
Borrowers' business relationships with such Debtor, and the continuation thereof
necessitates the Borrowers' access to credit and other financial accommodations
from the Lenders which the Lenders will only make available on the condition,
among others, that the Debtors execute and deliver this Agreement;
Whereas, each Debtor will directly and substantially benefit from credit
and other financial accommodations extended and to be extended by the Lenders to
the Borrowers; and
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 such 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 such 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
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such Debtor's business, together with all parts, accessories and attach
ments 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
all of the foregoing being herein sometimes referred to as the "Collateral".
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(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 either Borrower or any Debtor under or in connection with or
evidenced by (w) the Credit Agreement or (x) the Notes of either Borrower
heretofore or hereafter issued under the Credit Agreement and the
obligations of either Borrower to reimburse the Agent for the amount of all
drawings on all Letters of Credit issued for the account of either Borrower
pursuant to the Credit Agreement, and all other obligations of either
Borrower 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, represen-
tations, 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 its state of formation, is
the sole and lawful owner of the Collateral and has full right, power and
authority to enter
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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 such Debtor
or any provision of such Debtor's partnership agreement or of any covenant,
indenture or agreement of or affecting such Debtor or any of their
respective properties, or result in the creation or imposition of any lien
or encumbrance on any of its property.
(b) The Collateral owned or leased by each Debtor is and will remain
in such Debtor's possession or control at the locations listed on Schedule
B 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 is located at the location specified on Schedule B. Each Debtor
keeps and shall keep all of its books and records relating to Receivables
only, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and no Debtor
has any other principal place of business other than those listed on
Schedule B. No 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, no 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
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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 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.
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(g) No Debtor has 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 on the signature pages of this Agreement. No
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 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 ▇▇▇▇ 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 ▇▇▇▇ 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 such 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
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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 such Debtor 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 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,
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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) no 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 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.
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(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, acceptan-
ces, 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
▇▇▇▇ 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
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of the Lenders to extend credit to or for the account of each Borrower under the
Credit Agreement have terminated.
Section 7. Defaults and Remedies.
(a) The occurrence of any event or the existence of any condition which is
specified as an "Default" under the Credit Agreement shall constitute an "Event
of Default" hereunder.
(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 any 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 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
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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, shall be liable hereunder for
any acts or omissions or for any error of judgment or mistake of fact or law
other than their
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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 Borrower 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.
Section 10. 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 11. 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
13
and satisfied and the commitments of the Lenders to extend credit or otherwise
make financial accommodations available to or for the account of each Borrower
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 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 Borrower or any
other
14
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 12. 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
and 10.14 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 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.
15
(d) Notwithstanding anything herein to the contrary, the right of recovery
against each Debtor under this Security Agreement shall not exceed the Maximum
Liability Amount. For purposes of this paragraph, the term "Maximum Liability
Amount" shall mean $1.00 less than the amount of the lowest claim on this
Security Agreement which would render it void or voidable under applicable law
against such Debtor.
(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 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.
(f) 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.
(g) 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.
16
In Witness Whereof, each Debtor has caused this Agreement to be duly
executed and delivered as of the date first above written.
LaSalle Partners Management (Arizona)
Limited Partnership, an Arizona
limited partnership
By: LaSalle Partners Management Limited
Partnership, a Delaware limited partnership
Its: General Partner
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its: President, Managing Director,
Treasurer and Secretary
Lasalle Partners (Georgia) Limited Partnership,
a Georgia limited partnership
By: LaSalle Partners Limited Partnership,
a Delaware limited partnership
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Vice President, Treasurer and
Assistant Secretary
S-1
LaSalle Construction Limited Partnership,
a Delaware limited partnership
By: LaSalle Construction Corporation,
an Illinois corporation
Its: General Partners
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Weele
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Weele
Its: Senior Vice President
LaSalle Advisors Limited, a Delaware
limited partnership
By: LaSalle Partners Limited Partnership,
a Delaware limited partnership
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Vice President, Treasurer
and Assistant Secretary
ABKB/LaSalle Securities Limited Partnership,
a Maryland limited partnership
By: ABKB/LaSalle Securities, Inc., a
Maryland corporation
Its: General Partners
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Weele
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Weele
Its: Senior Vice President
S-2
LaSalle Partners (New York) Limited Partnership,
By: LaSalle Partners Incorporated, a
New York corporation
Its: General Partners
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
LaSalle Partners (Colorado) Limited Partnership,
a Colorado limited partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: General Partner
LaSalle Partners Management (Illinois)
Limited Partnership, an Illinois
limited partnership
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: General Partner
LSPAM (California) Limited Partnership,
a California limited partnership
By: LaSalle Partners Asset Management of
California, Inc., a California corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its: President
S-3
LPAML-COPUB Limited Partnership,
a Delaware limited partnership
By: LPAML-COPUB Corporation, a
Delaware corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its: President
LPAML Colorado Limited Partnership,
a Colorado limited partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: General Partner
LaSalle Partners Development Limited,
a Delaware limited partnership
By: LaSalle Partners Management Limited
Partnership, a Delaware limited partnership
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Its: President
LaSalle Partners Management (Ohio) Limited
Partnership, an Illinois limited partnership
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: General Partner
S-4
LaSalle Partners Management Limited
Partnership, a Florida limited partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Its: General Partner
S-5
LSP Services (California) Limited Partnership,
a California limited partnership
By: LaSalle Partners of California, Inc., a
California corporation
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
LaSalle Partners (Illinois) Limited Partnership,
an Illinois limited partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President
S-6
Accepted and agreed to in Chicago, Illinois as of the date first above written.
▇▇▇▇▇▇ Trust And Savings Bank, as Agent
as aforesaid for the Lenders
By: /s/ M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Its: Vice President
---------------
S-7
