exhibit 10.15
COLLATERAL SAFEKEEPING AGREEMENT
THIS COLLATERAL SAFEKEEPING AGREEMENT (this "Agreement") dated as of the
15th day of June, 2001, is entered into by XXXXXX CAPITAL GROUP, INC. (the
"Borrower"), LASALLE BANK NATIONAL ASSOCIATION, a national banking association
(the "Bank"), and STANDARD FEDERAL BANK, a federal savings bank (the
"Custodian").
A. The Bank and the Borrower have previously entered into that certain
Loan Agreement dated as of February 12, 1997 (the "Loan Agreement"), in
connection with loans in an aggregate amount of $37,000,000 (and as the same is
extended, modified or renewed, the "Loan").
B. The Loan is secured by, among other things, certain shares of Xxxx
Xxxxxx Bank.
C. The Borrower has requested the Collateral be held by the Custodian,
and the Bank has agreed to such request, subject to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
1. Collateral. (a) As security for the payment of the obligations of the
Borrower to the Bank, whether now or hereafter existing and howsoever
evidenced, or any extension or renewal thereof, including, without limitation,
the Loan (the "Obligations"), Borrower has previously pledged and assigned to
the Bank, among other things, 1,500,000 shares of common stock of Xxxx Xxxxxx
Bank (the "Collateral").
(b) The Collateral is concurrently herewith being delivered to the
Custodian for safekeeping.
2. Collateral. Until the Custodian shall receive written notice from
the Bank that all of the Obligations have been fully paid and satisfied, the
parties hereto agree as follows:
(a) The Custodian is hereby appointed as agent for the Bank, as
secured party, and the Custodian shall hold and retain possession of the
Collateral for the Bank as security for the payment of the Obligations;
(b) The Borrower shall be unable to withdraw any of the Collateral
without the Bank's prior written consent;
(c) The Custodian shall deliver all or any part of the Collateral to
the Bank upon its request at any time after the occurrence of an Event of
Default (as defined in the Loan Agreement); and
(d) The Bank's receipt for any of the Collateral so delivered by the
Custodian shall be a full and complete receipt and acquittance to the Custodian
as fiduciary for the Collateral.
3. Sale After Default. If the Bank elects to exercise its rights to
dispose of the Collateral pursuant to the terms of Section 9-504 of the Illinois
Uniform Commercial Code (or Section 9-610 under Revised Article 9 of the
Illinois Uniform Commercial Code effective as of July 1, 2001), it shall provide
Borrower with not less than 120 days prior written notice thereof. The notice
shall state in reasonable detail the method and manner of sale. Provided that
the Borrower, within said 120 day period, delivers to Bank a fully executed bona
fide contract for the sale of the Collateral (or a sale of the assets which will
be in an amount sufficient to repay the Obligations), the Borrower shall have an
additional period of 60 days (starting at the conclusion of the original 120 day
period) within which to close the sale and repay the Obligations. The Borrower
shall have until the date of sale in which to repay the Obligations at which
time the Bank shall release its lien on the Collateral. If the Collateral is in
the possession of the Bank, or its agents, the Bank shall also return the
Collateral to the Borrower.
4. Acceptance. The Custodian hereby acknowledges that the Collateral has
been pledged as security for the Obligations, and the Custodian hereby accepts
appointment as agent for the Bank, as secured party, and agrees to act in
accordance with the terms and provisions hereof. Until the termination of this
Agreement, the Custodian agrees that it shall not have or assert, and waives any
right, whether created by contract, statute or otherwise, to assert any right of
offset against or lien or interest in any of the Collateral. The Collateral has
been coded as assigned in the records of the Custodian, and none of the
Collateral will be released by the Custodian without the prior written consent
of the Bank.
5. Indemnity; Assumption of Risk. (a) To the fullest extent permitted by
law, the Borrower shall defend, indemnify and hold harmless each of the Bank and
the Custodian, and their respective officers, directors, agents, employees,
members and affiliated companies (collectively, the "Indemnitees"), from and
against all claims, judgments, damages, losses, penalties, liabilities, costs
and expenses of investigation and defense of any claim and of any good faith
settlement of whatever kind or nature, contingent or otherwise, matured or
unmatured, foreseeable or unforeseeable, including, without limitation,
reasonable attorneys' fees and expenses, any of which are incurred at any time
as a result of, or in connection with, the entering into of this Agreement or
the transactions contemplated thereby, except to the extent arising from the
gross negligence or willful misconduct of the Custodian or the Bank.
(b) The Borrower and the Borrower's counsel have requested that the Bank
and the Custodian enter into this Agreement. None of the Indemnitees shall be
liable for any expense, cost, loss or damage of any kind or nature resulting or
sustained by the Borrower as a result of the entering into of this Agreement,
including, without limitation, any franchise or other taxes payable as a result
thereof, and the Borrower expressly assumes all risk of loss or damage by
entering into this Agreement except to the extent arising from the gross
negligence or willful misconduct of the Custodian or the Bank. Notwithstanding
anything herein to the contrary, the Custodian shall remain liable for the
actual losses incurred by the Borrower for the Custodian's
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failure to return the Collateral to the Bank within a reasonable period of time
following receipt of a proper request to do so from the Bank, unless the
Custodian is prohibited or restrained from delivering the Collateral by virtue
of any judicial order, decree or other legal process.
5. Fees. The Borrower shall pay a fee of $500.00 to the Bank upon the
execution of this Agreement and shall pay a $500.00 fee to the Bank on each
anniversary of this Agreement until such time as this Agreement has been
terminated.
IN WITNESS WHEREOF, this Agreement has been signed as of the date first
above appearing.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
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Title: SVP
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XXXXXX CAPITAL GROUP, INC.
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
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Title: CFO
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STANDARD FEDERAL BANK
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: EVP
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