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LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made and entered into as of the 5th
day of June, 1998, by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO ("Bank"), a national banking association with its principal place of
business at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and
XXXXX-XXXXXXX ELECTRONICS CORPORATION, ("Borrower"), an Illinois corporation
with its principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000.
RECITALS
Pursuant to Borrower's request, Bank now and from time to time hereafter
may loan or advance monies, extend credit and/or extend other financial
accommodations to or for the benefit of Borrower.
NOW THEREFORE, in consideration of the terms and conditions set forth
herein and of any loans or extensions of credit now or hereafter made to or for
the benefit of Borrower by Bank, the parties hereto agree as follows:
1. DEFINITIONS AND TERMS
1.1 When used herein, the words, terms and/or phrases set forth below
shall have the following meanings:
A. BORROWER'S LIABILITIES: all obligations and liabilities of
Borrower to Bank (including, without limitation, all debts, claims,
indebtedness and attorneys' fees and expenses as provided for in
Paragraph 7.10) whether primary, secondary, direct, contingent,
fixed or otherwise, including Rate Hedging Obligations (as defined
in subparagraph H herein), heretofore, now and/or from time to time
hereafter owing, due or payable, however evidenced, created,
incurred, acquired or owing and however arising, whether under this
Agreement or the "Other Agreements" (hereinafter defined) or by
operation of law or otherwise.
B. INDEBTEDNESS: (i) indebtedness for borrowed money or for the
deferred purchase price of property or services; (ii) obligations as
lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded
as capital leases; (iii) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) or (ii) above; and (iv)
liabilities with respect to unfunded vested benefits under plans
covered by Title IV of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and in effect from time to time.
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C. LIBOR: the London Interbank Offered Rate, at any time and
from time to time.
D. LIBOR AGREEMENT: the LIBOR Borrowing Agreement dated June 5,
1998, by and between Bank and Borrower.
E. OTHER AGREEMENTS: all agreements, instruments and documents,
including, without limitation, guaranties, mortgages, deeds of
trust, notes, pledges, powers of attorney, consents, assignments,
contracts, notices, security agreements, leases, subordination
agreements, financing statements and all other written matter
heretofore, now and/or from time to time hereafter executed by
and/or on behalf of Borrower and delivered to Bank.
F. PERSONS: any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, entity, party
or government (whether national, federal, state, county, city,
municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
G. PRIME RATE: the rate, at any time and from time to time,
most recently published or announced by Bank as its prime rate, it
being understood that such rate may not be Bank's lowest rate or
most favorable rate of interest at any one time.
H. RATE HEDGING OBLIGATIONS: any and all obligations of the
Borrower, whether absolute or contingent, and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all agreements designed to protect the
Borrower from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or
exchange transactions, including, but not limited to: interest rate
swap agreements, dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange agreements, interest
rate cap, floor or collar agreements, forward rate currency
agreements or agreements relating to interest rate options, puts and
warrants, and (ii) any and all agreements relating to cancellations,
buy backs, reversals, terminations or assignments of any of the
foregoing.
1.2 Except as otherwise defined in this Agreement or the Other
Agreements, all words, terms and/or phrases used herein and therein shall be
defined by the applicable definition therefor (if any) in the Illinois Uniform
Commercial Code.
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2. LOANS
2.1 Subject to all of the terms and conditions hereinafter contained, Bank
agrees to make available to Borrower a revolving line of credit (the "Revolving
Credit") with a maximum aggregate principal amount at any one time outstanding
of $8,000,000. Advances under the Revolving Credit shall be made against and
evidenced by a revolving note of Borrower (the "Revolving Note") and all such
advances shall mature as therein provided. All advances under the Revolving
Credit shall bear interest (computed for the actual number of days elapsed on
the basis of a 360-day year) until maturity (whether by lapse of time,
acceleration or otherwise) at the Prime Rate from time to time in effect or, at
Borrower's option exercised in accordance with the LIBOR Agreement, the rate
determined by adding 1.75% to LIBOR determined in accordance with the LIBOR
Agreement. Interest on advances under the Revolving Credit shall be payable on
the first day of each month during the term of the Revolving Credit commencing
July 1, 1998. All outstanding principal and all accrued and unpaid interest on
the Revolving Note shall be due and payable on May 31, 2001.
(A). The Revolving Credit shall be subject to all of the terms hereof,
may be availed of by Borrower from time to time, may be repaid by
Borrower and availed of by Borrower again. All loan requests under the
Revolving Credit shall be in multiples of $5,000.00 and in the minimum
amount of $5,000.00. Any change in the interest rate on advances under
the Revolving Credit resulting from a change in the Prime Rate shall be
and become effective as of and on the date of the relevant change in the
Prime Rate.
(B). The amount and date of each advance made under the Revolving Credit
and the amount and date of each payment of principal and interest thereon
shall be recorded by Bank on its books and records and the amount of
principal and interest shown on the Bank's books and records as owing on
the Revolving Note from time to time shall be prima facie evidence of the
amount so owing. The failure to so record any amount or any error in so
recording any such amount, however, shall not limit or otherwise affect
Borrower's obligations hereunder or under the Revolving Note to repay the
principal amount of the Revolving Credit together with all accrued
interest thereon.
(C). Borrower shall give Bank irrevocable telephonic notice prior to 1:00
p.m. (Chicago time) on the date it requests that any advance be made to
it under the Revolving Credit. Each notice shall be effective upon
receipt by Bank and shall specify the amount and date of such advance.
The proceeds of each advance under the Revolving Credit shall be made
available to Borrower at the principal office of Bank. Borrower does
hereby irrevocably confirm, ratify and approve all such advances by Bank
and does hereby indemnify Bank against losses, liabilities and expenses
(including court costs and attorneys' fees) and shall hold Bank harmless
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with respect thereto.
2.2 Subject to all of the terms and conditions hereinafter contained, Bank
agrees to loan to Borrower $3,350,000 (the "Term Loan") evidenced by an
installment note of Borrower (the "Installment Note"). Principal under the
Installment Note shall bear interest (computed for the actual number of days
elapsed on the basis of a 360-day year) until maturity (whether by lapse of
time, acceleration or otherwise) at the Prime Rate from time to time in effect
or, at Borrower's option exercised in accordance with the LIBOR Agreement, the
rate determined by adding 2.25% to LIBOR from time to time determined in
accordance with the LIBOR Agreement. Interest shall be paid on the first day
of each month commencing on July 1, 1998. Interest and $55,833 in principal
shall be paid on the first day of each month, in accordance with a five year
amortization, commencing on February 1, 1999. All outstanding principal and
all accrued and unpaid interest on the Installment Note shall be due and
payable May 31, 2003. Any change in the interest rate under the Installment
Note resulting from a change in the Prime Rate shall be and become effective as
of and on the date of the relevant change in the Prime Rate.
2.3 Loans made by Bank to Borrower pursuant to this Agreement shall be
evidenced by notes or other instruments issued or made by Borrower to Bank.
Except as otherwise provided in this Agreement or in any notes executed and
delivered by Borrower to Bank in connection herewith, the principal portion of
Borrower's Liabilities shall be payable by Borrower to Bank on the maturity
date(s) described in any such note(s) (as the same may be amended or renewed).
Borrower may prepay any loan before its maturity date without penalty, except
for prepayment of any LIBOR Loan, which shall not be prepaid on a date other
than the last day of its Interest Period. All costs, fees and expenses payable
hereunder or under the Other Agreements shall be payable by Borrower to Bank on
demand, in either case at Bank's principal place of business or such other
place as Bank shall specify in writing to Borrower.
2.4 Each loan made by Bank to Borrower pursuant to this Agreement or the
Other Agreements shall constitute an automatic warranty and representation by
Borrower to Bank that there does not then exist an "Event of Default" (as
hereinafter defined) or any event or condition which with notice, lapse of time
and/or the making of such loan would constitute an Event of Default.
3. COMMITMENT FEE
3.1 Borrower shall pay to Bank a commitment fee at the rate of 1/4% per
annum on the average daily unused portion of the Revolving Credit available
hereunder, such fee to be payable on September 1, 1998, and on the fifteenth
day of each calendar quarter thereafter with respect to the period ending on
the last day of the immediately preceding month.
4. NEGATIVE PLEDGE
4.1 Borrower shall not, and shall not permit any of its subsidiaries to
create, incur, permit, or suffer to exist any lien upon any of its property or
assets, now owned or hereafter
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acquired, except for the following permitted liens: (a) pledges or deposits
made to secure payment of worker's compensation insurance; (b) liens imposed by
mandatory provisions of law, such as for materials, mechanics, warehouses and
other liens arising in the ordinary course of business; (c) liens for taxes,
assessments and governmental charges of levies imposed upon the Borrower's
income or profits or property, if the same are not yet due and payable or if
the same are being contested in good faith and as to which adequate cash
reserves have been provided; (d) liens arising out of good faith deposits in
connection with tenders, leases, real estate bids or contracts (other than
contracts involving the borrowing of money), pledges, or deposits to secure (or
in lieu of) surety, stay, appeal or customs bonds and deposits to secure the
payment of taxes, assessments, customs duties or similar charges; and (e)
encumbrances consisting of zoning restrictions, easements, or other
restrictions on the use of real property, provided that such items do not
impair the use of such property for the purposes intended, and none of which is
violated by existing or proposed structures or land use.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS
5.1 Borrower warrants and represents to and covenants with Bank that: (a)
Borrower has the right, power and capacity and is duly authorized and empowered
to enter into, execute, deliver and perform this Agreement and the Other
Agreements; (b) the execution, delivery and/or performance by Borrower of this
Agreement and the Other Agreements shall not, by the lapse of time, the giving
of notice or otherwise, constitute a violation of any applicable law or a
breach of any provision contained in Borrower's Articles of Incorporation,
By-Laws or similar document, or contained in any agreement, instrument or
document to which Borrower is now or hereafter a party or by which it is or may
be bound; (c) Borrower is now, and at all times hereafter shall be, solvent and
generally paying its debts as they mature and Borrower now owns and shall at
all times hereafter own property which, at a fair valuation, is greater than
the sum of its debts; (d) Borrower is not and will not be, during the term
hereof, in violation of any applicable federal, state or local statute,
regulation or ordinance that in any respect materially and adversely affects
its business, property, assets, operations or condition, financial or
otherwise; (e) Borrower is not in default with respect to any indenture, loan
agreement, mortgage, deed or other similar agreement relating to the borrowing
of monies to which it is a party or by which it is bound; and (f) since
December 31, 1997, there has been no material adverse change in the financial
condition of Borrower and no change to the information reported in Part I, Item
3 of Borrower's Form 10-K for December 31, 1997, year end.
5.2 Borrower warrants and represents to and covenants with Bank that
Borrower shall not, without Bank's prior written consent thereto: (a) enter
into any transaction not in the ordinary course of business which materially
and adversely affects Borrower's ability to repay Borrower's Liabilities or any
other obligations and liabilities of Borrower; (b) other than as specifically
permitted in or contemplated by this Agreement or the Other Agreements,
encumber, pledge, mortgage, sell, lease or otherwise dispose of or transfer,
whether by sale, loan, distribution, merger, consolidation or otherwise, any of
Borrower's
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assets; and (c) incur Indebtedness except for (i) renewals or extensions of
existing Indebtedness and interest thereon, (ii) Indebtedness that is
unsecured, in an amount approved by Bank and to Persons who execute and deliver
to Bank, in form and substance acceptable to Bank and its counsel,
subordination agreements subordinating their claims against Borrower therefor
to the payment of Borrower's Liabilities, and (iii) leases of new personal
property which are for less than one year, or which are for more than one year
provided that all such leases do not exceed, in the aggregate, $500,000.00 in
outstanding total payments to maturity.
5.3 Borrower warrants and represents to and covenants with Bank that
Borrower shall furnish to Bank: (a) as soon as available but not later than
ninety (90) days after the close of each fiscal year of Borrower, financial
statements, which shall include, but not be limited to, balance sheets, income
statements and statements of cash flow of Borrower prepared in accordance with
generally accepted accounting principles, consistently applied, audited by a
firm of independent certified public accountants selected by Borrower and
acceptable to Bank; (b) as soon as available but not later than forty-five (45)
days after the end of each quarterly fiscal period of Borrower, financial
statements of Borrower, certified by Borrower to be prepared in accordance with
generally accepted accounting principles, consistently applied, and to fairly
present the financial position and results of operations of Borrower for such
period (the "Quarterly Financial Statements"); (c) copies on the date of filing
of all reports by Borrower to the Securities and Exchange Commission, including
without limitation, all forms 8-K, 10-Q, 10-K, proxy statements and
registration statements, and (d) such other data and information (financial and
otherwise) as Bank, from time to time, may reasonably request.
5.4 Borrower warrants and represents to and covenants with Bank that
Borrower shall at all times maintain a "Tangible Net Worth" (as hereinafter
defined) in excess of $8,000,000 plus 50% of "Net Income" (as hereinafter
defined) earned during each year after 1998. Tangible Net Worth shall mean the
book value of the tangible assets of Borrower as determined in accordance with
the generally accepted accounting principles after subtracting therefrom the
aggregate book value of any intangible assets of Borrower included on its
balance sheet, including without limitation, prepaid expenses, goodwill and any
other assets reasonably deemed intangible by Bank, minus the aggregate of all
contingent and non-contingent liabilities of Borrower determined in accordance
with generally accepted accounting principles, consistently applied. Net
Income shall mean the income after taxes of Borrower as reported each year in
its audited financial statements.
5.5 Borrower warrants and represents to and covenants with Bank that
Borrower shall at all times maintain a ratio of the total liabilities of
Borrower to Tangible Net Worth below 2 to 1, a ratio of current assets of
Borrower to current liabilities of Borrower above 1.5 to 1 and a ratio of "Cash
Flow Coverage" (as hereinafter defined) greater than 1.2 to 1 on a rolling four
quarter basis. Cash Flow Coverage shall mean earnings before interest, taxes,
depreciation and amortization (EBITDA) less net capital expenditures, dividends
and taxes plus or minus the change in deferred taxes, divided by the total of
all debt service, including capital leases.
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5.6 Borrower covenants and agrees to use Bank as its primary depository
and disbursement point, maintaining demand deposit balances sufficient to cover
the cost of non-credit services in accordance with Bank's determination.
Borrower shall not maintain any depository accounts in the United States at any
bank or financial institution other than Bank, except xxxxx cash accounts
located in cities other than Chicago and located in the same city with an
office or factory operated by Borrower. Any such xxxxx cash accounts at banks
in cities in which Bank or other subsidiaries of Bank's shareholder operates a
bank or branch shall be maintained at such bank or branch.
5.7 Borrower warrants and represents to and covenants with Bank that the
proceeds from the Revolving Credit shall be used for the working capital and
general business needs of Borrower and the proceeds from the Term Loan shall be
used for the acquisition of the coin door assets of Coin Controls, Inc.
6. DEFAULT
6.1 The occurrence of any one of the following events shall constitute a
default by the Borrower ("Event of Default") under this Agreement: (a) if
Borrower fails to pay any scheduled principal or interest payment or fails,
after ten days' written notice, to pay any other of Borrower's Liabilities when
due and payable or declared due and payable (whether by scheduled maturity,
required payment, acceleration, demand or otherwise); (b) if Borrower fails or
neglects to perform, keep or observe any term, provision, condition, covenant,
warranty or representation contained in this Agreement or any of the Other
Agreements and such failure continues for thirty (30) days after notice
thereof, except default under Sections 4 and 5 which shall become Events of
Default if not cured within ten (10) days of their occurrence, without notice;
(c) occurrence of a default or Event of Default under any of the Other
Agreements heretofore, now or at any time hereafter delivered by or on behalf
of Borrower to Bank; (d) occurrence of a default or an event of default under
any agreement, instrument or document heretofore, now or at any time hereafter
delivered to Bank by any guarantor of Borrower's Liabilities or by any Person
which has granted to Bank a security interest or lien in and to some or all of
such Person's real or personal property to secure the payment of Borrower's
Liabilities after the expiration of any applicable cure period therein; (e) if
any of Borrower's assets are attached, seized, subjected to a writ, or are
levied upon or become subject to any lien, or come within the possession of any
receiver, trustee, custodian or assignee for the benefit of creditors provided
that in the case of any such condition existing as to assets which, in the
aggregate, are not material in value to the Borrower's business, such condition
shall not become an Event of Default unless such condition continues for thirty
days; (f) if a notice of lien, levy or assessment is filed of record or given
to Borrower with respect to all or any of Borrower's assets by any federal,
state, local department or agency unless Borrower is contesting the liability
for which such lien relates in good faith with adequate reserves; (g) if
Borrower or any guarantor of Borrower's Liabilities becomes insolvent or
generally fails to pay or admits in writing its inability to pay debts as they
become due, if a petition under Title 11 of the United States Code or any
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similar law or regulation is filed by or against Borrower or any such
guarantor, if Borrower or any such guarantor shall make an assignment for the
benefit of creditors, if any case or proceeding is filed by or against Borrower
or any such guarantor for its dissolution or liquidation, or if Borrower or any
such guarantor is enjoined, restrained or in any way prevented by court order
from conducting all or any material part of its business affairs; (h) the
dissolution of Borrower, or the death or incompetency of any Guarantor of
Borrower's Liabilities; (i) the revocation, termination, or cancellation of any
guaranty of Borrower's Liabilities without written consent of Bank; (j) if a
contribution failure occurs with respect to any pension plan maintained by
Borrower or any corporation, trade or business that is, along with Borrower, a
member of a controlled group of corporations or controlled group of trades or
businesses (as described in Sections 414(b) and (c) of the Internal Revenue
Code of 1986 or Section 4001 of ERISA) sufficient to give rise to a lien under
Section 302(f) of ERISA; (k) if Borrower or any guarantor of Borrower's
Liabilities is in default in the payment of any obligations, indebtedness or
other liabilities to any third party and such default is declared and is not
cured within the time, if any, specified therefor in any agreement governing
the same; or (l) if any material statement, report or certificate made or
delivered by Borrower, any of Borrower's partners, officers, employees or
agents or any guarantor of Borrower's Liabilities is not true and correct.
6.2 All of Bank's rights and remedies under this Agreement and the Other
Agreements are cumulative and non-exclusive.
6.3 Upon an Event of Default or the occurrence of any one of the events
described in Paragraph 6.1, without notice by Bank to or demand by Bank of
Borrower, Bank shall have no further obligation to and may then forthwith cease
advancing monies or extending credit to or for the benefit of Borrower under
this Agreement and the Other Agreements. Upon an Event of Default, without
notice by Bank to Borrower, Borrower's Liabilities shall be due and payable,
forthwith.
7. GENERAL
7.1 Borrower waives the right to direct the application of any and all
payments at any time or times hereafter received by Bank on account of
Borrower's Liabilities, and Borrower agrees that Bank shall have the continuing
exclusive right to apply and re-apply any and all such payments in such manner
as Bank may deem advisable, notwithstanding any entry by Bank upon any of its
books and records.
7.2 This Agreement and the Other Agreements shall be binding upon and
inure to the benefit of the heirs, representatives, successors and assigns of
Borrower and Bank.
7.3 Bank's failure to require strict performance by Borrower of any
provision of this Agreement shall not waive, affect or diminish any right of
Bank thereafter to demand strict compliance and performance therewith. Any
suspension or waiver by Bank of an Event of Default by Borrower under this
Agreement or the Other Agreements shall not
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suspend, waive or affect any other Event of Default by Borrower under this
Agreement or the Other Agreements, whether the same is prior or subsequent
thereto and whether of the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of Borrower
contained in this Agreement or the Other Agreements and no Event of Default by
Borrower under this Agreement or the Other Agreements shall be deemed to have
been suspended or waived by Bank unless such suspension or waiver is by an
instrument in writing, signed by an officer of Bank and directed to Borrower
specifying such suspension or waiver.
7.4 If any provision of this Agreement or the Other Agreements or the
application thereof to any person, entity or circumstance is held invalid or
unenforceable, the remainder of this Agreement and the Other Agreements and the
application of such provision to other Persons, or circumstances will not be
affected thereby and the provisions of this Agreement and the Other Agreements
shall be severable in any such instance.
7.5 Borrower hereby appoints Bank as Borrower's agent and attorney-in-fact
for the purpose of carrying out the provisions of this Agreement and taking any
action and executing any agreement, instrument or document which Bank may
reasonably deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. All monies paid for
the purposes herein, and all costs, fees and expenses paid or incurred in
connection therewith, shall be part of Borrower's Liabilities, payable by
Borrower to Bank on demand.
7.6 Except as otherwise specifically provided in this Agreement, Borrower
waives any and all notice or demand which Borrower might be entitled to receive
by virtue of any applicable statute or law, and waives presentment, demand and
protest and notice of presentment, protest, default, dishonor, non-payment,
maturity, release, compromise, settlement, extension or renewal of any and all
agreements, instruments or documents at any time held by Bank on which Borrower
may in any way be liable.
7.7 Except as otherwise provided in the Other Agreements, if any provision
contained in this Agreement is in conflict with, or inconsistent with any
provision in the Other Agreements, the provision of this Agreement shall
control.
7.8 The terms and provisions of this Agreement and the Other Agreements
shall supersede any prior agreement or understanding of the parties hereto, and
contain the entire agreement of the parties hereto with respect to the matters
covered herein. This Agreement and the Other Agreements may not be modified,
altered, or amended except by an agreement in writing signed by Borrower and
Bank. This Agreement shall continue in full force and effect so long as any
portion or component of Borrower's Liabilities shall be outstanding. All of
Borrower's warranties, representations, undertakings, and covenants contained
in this Agreement or the Other Agreements shall survive the termination or
cancellation of the same. Should a claim ("Recovery Claim") be made upon the
Bank at any time for recovery of any amount received by the Bank in payment of
Borrower's Liabilities (whether received from Borrower or otherwise) and should
the Bank repay all or part of said amount by reason
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of (1) any judgment, decree or order of any court or administrative body having
jurisdiction over Bank or any of its property; (2) any settlement or compromise
of any such Recovery Claim effected by the Bank with the claimant (including
Borrower), this Agreement and the security interests granted Bank hereunder
shall continue in effect with respect to the amount so repaid to the same
extent as if such amount had never originally been received by the Bank,
notwithstanding any prior termination of this Agreement, the return of this
Agreement to Borrower, or the cancellation of any note or other instrument
evidencing Borrower's Liabilities.
7.9 This Agreement and the Other Agreements shall be governed and
controlled by the internal laws of the State of Illinois applicable to
contracts made and performed entirely in Illinois, without regard to the law of
conflicts of laws.
7.10 If at any time or times hereafter, whether or not Borrower's
Liabilities are outstanding at such time, Bank: (a) employs counsel for advice
or other representation, (i) to represent Bank in any litigation, arbitration
contest, dispute, suit or proceeding or to commence, defend or intervene or to
take any other action in or with respect to any litigation contest, dispute,
suit or proceeding (whether instituted by Bank, Borrower or any other Person)
in any way or respect relating to this Agreement, the Other Agreements, or
Borrower's affairs, or (ii) consideration of or attempts to enforce any rights
of Bank against Borrower or any other Person which may be obligated to Bank by
virtue of this Agreement or the Other Agreements; (b) takes any action with
respect to administration of Borrower's Liabilities; and/or (c) attempts to or
enforces any of Bank's rights or remedies under this Agreement or the Other
Agreements, the reasonable costs, fees and expenses incurred by Bank with
respect to the foregoing, shall be part of Borrower's Liabilities, payable by
Borrower to Bank on demand.
7.11 BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO BANK'S SOLE AND ABSOLUTE
ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT
OF OR FROM OR RELATED TO THIS AGREEMENT OR THE OTHER AGREEMENTS SHALL BE
LITIGATED ONLY IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE OF
ILLINOIS, AND BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY
LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND STATE. BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY
LITIGATION BROUGHT AGAINST BORROWER BY BANK IN ACCORDANCE WITH THIS PARAGRAPH.
7.12 BORROWER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE OTHER AGREEMENTS, OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR (II) ARISING FROM
ANY DISPUTE OR CONTROVERSY ARISING IN CONNECTION WITH OR RELATED TO THIS
AGREEMENT, THE OTHER AGREEMENTS OR ANY SUCH AMENDMENT,
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INSTRUMENT, DOCUMENT OR AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT,
COUNTERCLAIM OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year specified at the beginning hereof.
BORROWER:
XXXXX-XXXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Print or Type Name: Xxxxxx X. Xxxx
----------------------------
Its: Vice President of Finance, CFO & Treasurer
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(If not signing as an individual)
Accepted this 5th day of June, 1998, in the City of Chicago, State of
Illinois.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: /s/ Xxxxxx X. Xxxxxx
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Print or Type Name: Xxxxxx X. Xxxxxx
----------------------------
Its: Vice President
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