Exhibit 10.06
SUBSIDIARY COLLATERAL ASSIGNMENT OF PARTNERSHIP INTERESTS
This Collateral Assignment of Partnership Interests (the "Assignment") is
dated as of September 6, 1996, made by 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 B being herein are 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");
W I T N E S S E T H T H A T:
WHEREAS, the Assignors 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 Assignors;
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 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;
WHEREAS, the interdependent nature of the businesses of each of the
Assignors and the Borrowers is such that the viability of each Assignor is
dependent upon the continued success of the Borrowers and upon the continuation
of the Borrowers' business relationships with such Assignor, 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 Assignors execute and deliver
this Agreement;
WHEREAS, each Assignor 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:
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 its state of formation, 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 such Assignor, or any
2
provision of such Assignor's partnership agreement, or any covenant, indenture
or agreement of or affecting such Assignor or any of their respective property,
or (ii) result in the creation or imposition of any lien or encumbrance on any
property of such 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 no Assignor shall move its chief executive office without first providing
the Agent 30 days prior written notice of such 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, such 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 Section 6.11 or Section 6.15(g) of the
Credit Agreement, no 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 such 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
3
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 C 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 any Assignor maintained
with the Agent excluding all accounts of any 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
4
amendments or modifications as are attached to the copies thereof
delivered to the Agent.
(i) Each 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 affect or impair 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. Each Assignor will send to the Agent copies of all notices
and communications with respect to each Partnership alleging the existence of a
default by such Assignor in the performance of any of its obligations under any
Organizational Agreement. Each 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. Each 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 such
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 such Assignor and all funds expended for such purposes shall constitute
Obligations which such 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
5
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 an
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 Borrower 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
6
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 1l(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
7
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 be 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
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 Borrower 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
9
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 no 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.
10
(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) Notwithstanding anything herein to the contrary, the right of recovery
against each Assignor under this Assignment 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 Assignment Agreement which would render it void or voidable under
applicable law against such Assignor.
(f) 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.
(g) This Assignment constitutes an assignment of the rights of each
Assignor with respect to the Partnerships only and not an assignment of any
duties or obligations of each 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.
(h) 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.
(i) 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
11
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.
(j) 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.
12
In Witness Whereof, each Assignor has caused this Agreement to be duly
executed and delivered the day and year first above written.
LaSalle Advisors Limited, a Delaware limited
partnership
By: LaSalle Partners Limited Partnership, a
Delaware limited partnership, its
general partner
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Its Vice President, Treasurer and
-----------------------------
Assistant Secretary
13
It is Acknowledged and Agreed to as of the date first written above.
▇▇▇▇▇▇ Trust and Savings Bank, as Agent
By /s/ M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Its Vice President
---------------
14
15
