Exhibit 10.04
Pledge And Security Agreement
This Pledge and Security Agreement (the "Agreement") is dated as of
September 6, 1996, made by LaSalle Partners Management Limited Partnership, a
Delaware limited partnership ("LPML") and LaSalle Partners Limited Partnership,
a Delaware limited partnership ("LPL") (LPL and LPML are hereinafter referred to
collectively as the "Grantors" and individually as a "Grantor") and Xxxxxx Trust
and Savings Bank ("Xxxxxx") with its mailing address 000 Xxxx Xxxxxx Xxxxxx,
acting as agent hereunder for the Lenders hereinafter identified and defined
(Xxxxxx acting as such agent and any successor or successors to Xxxxxx acting in
such capacity being hereinafter referred to as the "Agent");
W i t n e s s e t h T h a t:
Whereas, the Grantors, Xxxxxx, individually and as agent, and LaSalle
National Bank, have entered into a Credit Agreement dated as of September 6,
1996 (such Credit Agreement as the same may be amended, modified or restated
from time to time being hereinafter referred to as the "Credit Agreement"),
pursuant to which such lenders (Xxxxxx and the other lenders which are now or
which from time to time hereafter become party to the Credit Agreement being
hereinafter referred to collectively as the "Lenders" and individually as a
"Lender") have agreed, subject to certain terms and conditions, to extend credit
and make certain other financial accommodations available to the Grantors;
Whereas, as a condition precedent to extending the credit facilities to the
Grantors under the Credit Agreement, the Lenders have required, among other
things, that the Grantors grant to the Agent a lien on and security interest in
certain personal properties of the Grantors as collateral security for such
credit facilities and related obligations pursuant to this Agreement;
Now, Therefore, for and in consideration of the execution and delivery by
the Lenders of the Credit Agreement, and other good and valuable consideration,
receipt whereof is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Grant of Security Interest. Each Grantor hereby grants to the Agent
for the benefit of the Lenders a lien on and security interest in, and
acknowledges and agrees that the Agent has and shall continue to have a
continuing lien on and security interest in, any and all right, title and
interest of such Grantor, whether now owned or existing or hereafter created,
acquired or arising, in and to the following: (a) all promissory notes and other
instruments payable to or otherwise acquired by such Grantor and any and all
rights in and to any and all agreements and collateral securing or relating
thereto and the shares of the capital stock of the issuers, each as listed and
described 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 all substitutions
and additions to such shares, notes or instruments (herein, the "Pledged
Securities"), (b) all dividends, distributions and sums distributable or payable
from, upon or in respect of the Pledged Securities, (c) all
other rights and privileges incident to the Pledged Securities, and (d) all
proceeds and products of the foregoing (all of the foregoing being hereinafter
referred to collectively as the "Collateral"). This pledge and assignment
constitutes an assignment of the rights of each Grantor with respect to the
Collateral only and not an assignment of any duties or obligations either
Grantor may have with regard to the management of, or the giving of advice to,
the issuers of the Pledged Securities.
2. Obligations Hereby Secured. The lien and security interest granted and
provided for herein 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 Grantor
hereby covenants and agrees with, and represents and warrants to, the Agent and
Lenders that:
(a) Each Grantor is a limited partnership duly organized and validly
existing in good standing under the laws of the State of Delaware, is the sole
and lawful legal, record and beneficial owner of the Collateral, and has full
right, power and authority to enter into this Agreement and to perform each and
all of the matters and things herein provided for. The execution and delivery of
this Agreement, and the observance and performance of the matters and things
herein set forth, will not (i) contravene or constitute a default under any
provision of law, or any judgment, injunction, order or decree binding upon
either Grantor, or any provision of either Grantor's partnership agreement, or
any covenant, indenture or agreement of or affecting either Grantor or any of
their respective property, or (ii) result in the creation or imposition of any
lien or encumbrance on any property of either Grantor except for the lien and
security interest in the Collateral granted to the Lender pursuant to this
Agreement and except as permitted under Section 6.15(g) of the Credit Agreement.
Each Grantor's chief executive office is located at 000 Xxxx Xxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000, and neither Grantor shall move its chief executive office
without first providing the Agent 30 days prior written notice of such Grantor's
intent to do so, provided that each Grantor shall at all times maintain its
chief executive office in the United States of America and, with respect to any
such new location, such Grantor shall have taken all action requested by the
Agent to maintain the lien and security interest of the Agent in the Collateral
at all times fully perfected and in full force and effect.
(b) The certificates, if any, for all shares of the Pledged Securities
shall be delivered by the Grantors to the Agent duly endorsed in blank for
transfer or accompanied by an appropriate assignment or assignments or an
appropriate undated stock power or powers, in every case sufficient to transfer
title thereto. The Agent may at any time after the occurrence and during the
continuance of a Default cause to be transferred into its name or into the name
of its
nominee or nominees any and all of the shares of the Pledged Securities. The
Agent shall at all times have the right to exchange the certificates
representing the Pledged Securities for certificates of smaller or larger
denominations. The Grantors have delivered the only executed original of the
Pledged Securities to the Agent, the same has not been amended or modified in
any respect, the unpaid principal balance of each Pledged Security that
constitutes a note or instrument as of the date hereof is as set forth on
Schedule A hereto; and there is not any defense, set-off or counterclaim to the
obligation of the obligor thereon to pay the principal of and interest on each
Pledged Security that constitutes a note or instrument as and when the same
becomes due and payable. The Grantors have delivered to the Agent true and
correct copies of all instruments and documents securing the Pledged Securities
or setting forth terms and conditions applicable thereto (collectively the "Loan
Documents") and the same have not been amended or modified in any respect
(except for amendments and modifications reflected in written instruments,
copies of which have heretofore been delivered to the Agent). To the best
knowledge of the Grantor, each obligor under a Pledged Security that constitutes
a note or instrument is in full compliance with their respective obligations
thereunder and the applicable Loan Documents, and no default has occurred and
existing thereunder.
(c) The Pledged Securities have been validly issued and are fully paid and
nonassessable. There are no outstanding commitments or other obligations of the
issuer of any of the Pledged Securities to issue, and no options, warrants or
other rights of any person or entity to acquire, any share of any class or
series of capital stock of such issuer. Each Grantor further agrees that in the
event that such Grantor shall acquire any additional capital stock of any class
or series of such issuer, such Grantor shall forthwith pledge and deposit
hereunder, or cause to be pledged and deposited hereunder, all such additional
shares of such capital stock (other than directors' qualifying shares as
required by law).
(d) 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. Each Grantor shall warrant and defend the
Collateral against any claims and demands of all persons or entities at any time
claiming the same or any interest in the Collateral adverse to the Agent. Each
Grantor has the right to vote the Collateral and there are no restrictions upon
the voting rights associated with, or the transfer of, any of the Collateral,
except as provided by federal and state laws applicable to the sale of
securities generally or as otherwise disclosed to the Lender in writing.
(e) None of the Collateral constitutes margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System).
(f) Except as permitted in Section 6.11 or Section 6.15(g) of the Credit
Agreement, neither Grantor shall, without the Agent's prior written consent,
sell, assign, pledge, encumber, or otherwise dispose of the Collateral or any
interest therein.
(g) Each Grantor shall promptly pay when due all taxes, assessments and
governmental charges and levies upon or against such Grantor or the Collateral,
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 Collateral and such Grantor shall have established
adequate reserves therefor.
(h) Each Grantor 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 Grantor hereby agrees that a carbon, photographic or
other reproduction of this Agreement or any such financing statement is
sufficient for filing as a financing statement by the Agent without notice
thereof to either Grantor 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 Grantor 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 Grantor agrees to xxxx
its books and records to reflect the lien and security interest of the Agent in
the Collateral.
(i) If, as and when a Grantor delivers any securities, notes or
instruments for pledge hereunder in addition to those listed on Schedule A
hereto, such Grantor shall furnish to the Agent a duly completed and executed
amendment to such Schedule in substantially the form (with appropriate
insertions) of Schedule B hereto reflecting the securities pledged hereunder
after giving effect to such addition.
(j) 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 a
Grantor 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 Grantors 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 a
Grantor, and no such advancement or expenditure therefor, shall relieve such
Grantor 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 xxxx, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such xxxx, 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 a Grantor is
required to perform same under the terms of this Agreement. The Agent is hereby
authorized to charge any depository or other account of either Grantor
maintained with the Agent but excluding all accounts of any Grantor in a
fiduciary capacity for the amount of such sums and amounts so expended.
(k) The Grantors will cause each obligor of a Pledged Security to fully
and completely observe and perform all of its covenants and agreements under the
Pledged Security and Loan Documents and will not amend, modify or waive any of
same in any manner which materially adversely affects the Pledged Securities or
the Agent's interest therein. Each Grantor agrees that it will not release any
collateral or guarantors for any Pledged Security or otherwise take any action
which would impair the value or collectability of the Collateral or any part
thereof. Each Grantor further agrees to promptly deliver to the Agent notice of
any default under any Pledged Security.
4. Special Provisions re: Voting Rights, Dividends and Principal
Payments. Unless and until a Default has occurred and thereafter until notified
by the Agent pursuant to Section 6(a) hereof:
(a) Each Grantor shall be entitled to exercise all voting and/or
consensual powers pertaining to such Grantor's Collateral or any part thereof
for all purposes not inconsistent with the terms of this Agreement or any other
document evidencing or otherwise relating to any of the Obligations.
(b) Each Grantor shall be entitled to receive and retain all dividends
which are paid in cash out of earned surplus of the issuer of the relevant
Pledged Securities; but, except as permitted by the Credit Agreement, all
dividends paid upon or in respect of the Collateral and all stock or other
property distributed in respect thereof representing stock or liquidating
dividends or a distribution or return of capital upon or in respect of the
Collateral or any part thereof or resulting from a split-up or reclassification
of the Collateral or any part thereof or received in addition to, in
substitution of or in exchange for the Collateral or any part thereof as a
result of a merger, consolidation or otherwise, shall be paid, delivered or
transferred, as appropriate, directly to the Agent immediately upon the receipt
thereof by a Grantor and shall when received by the Agent be applied by the
Agent in reduction of the Obligations to the extent required by the Credit
Agreement.
(c) All sums due and to become due on the Pledged Securities that
constitute notes or instruments shall be remitted directly to the Agent for
application in reduction of the
indebtedness hereby secured in such order and manner and at such times as
provided in the Credit Agreement; provided, however, that the Lenders agree that
unless and until a Default or an Unmatured Default occurs hereunder the
applicable Grantor may collect and receive and retain for its own use regularly
scheduled installment payments of principal and of interest on the Pledged
Securities that constitute notes or instruments.
(d) In order to permit a Grantor to exercise such voting and/or consensual
powers which it is entitled to exercise under subsection (a) above and to
receive such distributions which such Grantor is entitled to receive and retain
under subsection (b) above, the Agent will, if necessary, upon the written
request of a Grantor, from time to time execute and deliver to such Grantor
appropriate proxies and dividend orders.
(e) In order to permit the Agent to receive all cash and other property to
which it may be entitled under subsection (b) or (c) above, each Grantor shall,
if necessary, upon the written request of the Agent, from time to time execute
and deliver to the Agent appropriate dividend orders.
5. Power of Attorney. Each Grantor hereby appoints the Agent, and each
of its nominees, officers, agents, attorneys, and any other person whom the
Agent may designate, as such Grantor'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, xxx 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 Collateral or any a part thereof, with full
power to settle, adjust or compromise any claim thereunder or therefor as fully
as such Grantor could itself do, to endorse such Grantor's name on any
assignments, stock powers, 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 Grantor, 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 Collateral, 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 Collateral and the
security intended to be afforded hereby. Each Grantor 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 Collateral without a Grantor's
signature appearing thereon, and each Grantor 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 Grantor without notice thereof to such
Grantor. 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 Grantor 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
Grantor to receive and retain the distributions which it is entitled to receive
and retain pursuant to Section 4(b) 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 receive and retain the distributions which such Grantor would otherwise have
been authorized to retain pursuant to Section 4(b) hereof and all rights of such
Grantor to exercise the voting and/or consensual powers which it is entitled to
exercise pursuant to Section 4(a) 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 Collateral
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 Collateral or any part thereof upon the merger,
consolidation, reorganization, recapitalization or other readjustment of the
respective issuer thereof or upon the exercise by or on behalf of any such
issuer or the Agent of any right, privilege or option pertaining to the
Collateral or any part thereof and, in connection therewith, to deposit and
deliver the Collateral 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 Collateral), and
further the Agent may, without demand and without advertisement, notice, hearing
or process of law, all of which each Grantor 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 the exercise of
any such remedies, the Agent may sell all the Collateral 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
Collateral, 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 Collateral. In addition to all other sums
due the Agent and Lenders hereunder, each Grantor 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 Collateral or the Obligations
or in the prosecution or defense of any action or proceeding by or against the
Agent or a Grantor 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 Grantors in accordance
with Section 11(b) hereof at least 10 days before the time of sale or other
event giving rise to the requirement of such notice; provided however, no
notification need be given to a Grantor if such Grantor 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 Collateral regardless of notice having been given.
The Agent may be the purchaser at any such sale or other disposition of the
Collateral or any part thereof. Each Grantor hereby waives all of its rights of
redemption from any sale or other disposition of the Collateral 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 Collateral by
announcement at the time and place of such sale, and such sale may, without
further notice, be made at the time and place to which the sale was postponed or
the Agent may further postpone such sale by announcement made at such time and
place.
(c) The powers conferred upon the Agent hereunder are solely to protect
its interest in the Collateral 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 Collateral in its possession if the Collateral
is 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 calls, conversions, exchanges, maturities,
tenders or other matters relating to any Collateral, 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 Collateral, or
(c) initiating any action to protect the Collateral 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 Grantor in any
way related to the Collateral, 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 a Grantor 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 Collateral 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
Grantor or to whomsoever may be lawfully entitled to receive such surplus.
The Grantors shall remain liable to the Agent and Lenders for any deficiency.
8. Continuing Agreement. This Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect until all of the
Obligations, both for principal and interest, have been fully paid and satisfied
and all agreements of the Lenders to extend credit to or for the account of
either Grantor 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 Grantors, forthwith release its security
interest hereunder.
9. The Agent. In acting under or by virtue of this Agreement, the Agent
shall bc 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
Collateral.
10. Primary Security; Obligations Absolute. The lien and security herein
created and provided for stand as direct and primary security for the
Obligations. No application of any sums received by the Agent in respect of the
Collateral or any disposition thereof to the reduction of the Obligations or any
portion thereof shall in any manner entitle any Grantor 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 Grantors under the
Credit Agreement have expired or otherwise have been terminated. Each Grantor
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 Section 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
Grantors, or any of them individually, without notice to any Grantor 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 Grantor hereunder or with respect to any of the
Obligations or any Collateral provided by such Grantor shall release or
discharge, or impair the agreements of, any other Grantor hereunder or in any
manner impair the liens and
security interests granted by any other Grantor hereunder; and the Agent may
proceed against the Collateral provided hereunder by any one or more of the
Grantors without proceeding against the other Grantors, 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 Grantor from its obligations hereunder or release any
Collateral or effect any compromise with any Grantor, and no such release or
compromise shall in any manner impair or otherwise effect the liens granted by,
or the obligations of, the other Grantors 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 Grantors and their respective legal representatives,
successors and assigns, provided that neither Grantor may assign its rights or
delegate its duties hereunder without the Agent and Lenders' prior written
consent. Each Grantor hereby releases the Agent from any liability for any act
or omission relating to the Collateral 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 Grantors at: to the Agent at:
LaSalle Partners Limited Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxxxx 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx XxXxxxxxx Attention: Emerging Majors
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a
confirmation of such telecopy has been received by the sender, (ii) if given by
mail, five (5) days after such communication is deposited in the mail, certified
or registered with return receipt requested, addressed as aforesaid, or (iii) if
given by any other means, when delivered at the addresses specified in this
Section.
(c) No Lender shall have the right to institute any suit, action or
proceeding in equity or at law for the enforcement of any remedy under or upon
this Agreement; it being understood and intended that no one or more of the
Lenders shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Agreement by its or their action or to enforce any
right hereunder, and that all proceedings at law or in equity shall be
instituted, had and maintained by the Agent in the manner herein provided and
for the benefit of the Lenders.
(d) All capitalized terms used herein without definition shall have the
same meanings herein as such terms have in the Credit Agreement. The term
"Grantor" and "Grantors" as used herein shall mean and include the Grantors
collectively and also each individually, with all grants, representations,
warranties and covenants of and by the Grantors, or any of them, herein
contained to constitute joint and several grants, representations, warranties
and covenants of and by the Grantors; 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 Grantor only with respect to the Collateral owned by it or represented by
such Grantor as owned by it.
(e) In the event that any provision hereof shall be deemed to be invalid
or unenforceable by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed as
not containing such provision, but only as to such locations where such law or
interpretation is operative, and the invalidity or unenforceability of such
provision shall not affect the validity of any remaining provisions hereof, and
any and all other provisions hereof which are otherwise lawful and valid shall
remain in full force and effect.
(f) This 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 instrument. Each
Grantor acknowledges that this Agreement is and shall be effective upon its
execution and delivery by such Grantor 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.
(h) Each Grantor 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 Grantor 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 Grantor, the Agent and the Lenders each hereby irrevocably waives any
and all right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
In Witness Whereof, the Grantor has caused this Agreement to be duly
executed and delivered the day and year first above written.
LaSalle Partners Limited Partnership,
a Delaware Limited Partnership
By /s/ Xxxxxxx X. XxXxxxxxx
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Its Vice President, Treasurer and Assistant Secretary
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LaSalle Partners Management Limited,
Partnership, a Delaware Limited Partnership
By /s/ Xxxxxxx X. Xxxxx
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Its President, Managing Director, Treasurer and Secretary
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Acknowledged and Agreed to as of the date first written above.
Xxxxxx Trust and Savings Bank, as Agent
By /s/ M. Xxxxxxxxx Xxxxxxx
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Its Vice President
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