Exhibit 10.11
TENTH AMENDMENT TO
LOAN AGREEMENT
THIS TENTH AMENDMENT TO LOAN AGREEMENT dated as of February 12, 2002 (this
"Amendment") is between XXXXXX CAPITAL GROUP, INC., a Delaware corporation (the
"Borrower") and LASALLE BANK NATIONAL ASSOCIATION (formerly known as LaSalle
National Bank), a national banking association (the "Bank").
W I T N E S S E T H
WHEREAS, the Borrower and the Bank entered into a Loan Agreement dated as
of February 12, 1997, as amended by a First Amendment dated February 27, 1997,
a Second Amendment dated November 1, 1997, a Third Amendment dated as of May 1,
1998, a Fourth Amendment dated June 1, 1998, a Fifth Amendment dated as of
August 1, 1998, a Sixth Amendment dated as of September 1, 1998, a Seventh
Amendment dated as of September 1, 1999, a Eighth Amendment dated as of
September 1, 2000 and a Ninth Amendment dated as of September 1, 2001 (as so
amended, the "Agreement"); and
WHEREAS, the Borrower and the Bank have agreed to amend the Agreement as
more fully described herein.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definition
shall have the respective meanings set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
2.1 Amendment to Section 1.1. The definition of "Term Loan Maturity
Date" set forth in Section 1.1 of the Agreement is hereby amended by deleting
therefrom the date "February 12, 2002" and substituting therefor the date
"April 30, 2002".
2.2 Amendment to Section 1.1. The definition of the term "Term Note"
appearing in Section 1.1 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"Term Note" means that certain Substitute Term Note dated as of
February 12, 2002 in the original aggregate maximum principal
amount of Twenty Three Million Dollars ($23,000,000), as the same
may be amended, modified or supplemented from time to time, and
together with any renewals thereof or exchanges or substitutes
therefor.
2.3 Amendment to Section 3.2. The amount set forth in Section 3.2 of
the Agreement is hereby amended by deleting therefrom the amount "Twenty-Five
Million Dollars ($25,000,000)" and substituting therefor the amount
"Twenty-Three Million Dollars ($23,000,000)".
2.4 Replacement of Exhibit 3.2. Exhibit 3.2 attached hereto as
made a part of the Agreement is hereby deleted in its entirety and Exhibit 3.2
attached hereto is hereby substituted therefor.
3. WARRANTIES. To induce the Bank to enter into this Amendment, the
Borrower warrants that:
3.1 Authorization. The Borrower is duly authorized to execute and
deliver this Amendment and is and will continue to be duly authorized to borrow
monies under the Agreement, as amended hereby, and to perform its obligations
under the Agreement, as amended hereby.
3.2 No Conflicts. The execution and delivery of this Amendment and
the performance by the Borrower of its obligations under the Agreement, as
amended hereby, do not and will not conflict with any provision of law or of
the charter or by-laws of the Borrower or of any agreement binding upon the
Borrower.
3.3 Validity and Binding Effect. The Agreement, as amended hereby,
is a legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity limiting the availability of equitable remedies.
3.4 No Default. As of the date hereof, no Event of Default under
Section 8 of the Agreement, as amended by this Amendment, or event or condition
which, with the giving of notice or the passage of time, shall constitute an
Event of Default, has occurred or is continuing.
3.5 Warranties. As of the date hereof, the representations and
warranties in Section 7 of the Agreement are true and correct as though made on
such date, except for such changes as are specifically permitted under the
Agreement.
4. GENERAL.
4.1 Law. This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois.
4.2 Successors. This Amendment shall be binding upon the Borrower
and the Bank and their respective successors and assigns, and shall inure to
the benefit of the Borrower and the Bank and their respective successors and
assigns.
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4.3 Confirmation of the Agreement. Except as amended hereby, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
5. EFFECTIVENESS. This Amendment shall become effective upon receipt by
the Bank of the following documents, duly executed by the parties thereto:
(a) This Amendment;
(b) Substitute Term Note in the form of Exhibit 3.2
attached hereto duly executed by the Borrower;
(c) Such other documents as the Bank reasonably may request.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
LASALLE BANK NATIONAL XXXXXX CAPITAL GROUP, INC.
ASSOCIATION
By: /s/ Xxx X. Xxxxxxx By: /s/ X. X. Xxxxxxx
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Its: Sr. Vice President Its: CFO
Exhibit 3.2.
SUBSTITUTE TERM NOTE
$23,000,000 Chicago, Illinois
February 12, 2002
_______________________________________________________________________________
FOR VALUE RECEIVED, the undersigned, XXXXXX CAPITAL GROUP, INC., a
Delaware corporation (herein, together with its successors and assigns, called
the "Borrower"), promises to pay to the order of LASALLE BANK NATIONAL
ASSOCIATION, a national banking association (herein, together with its
successors and assigns, called the "Bank"), the principal sum of TWENTY-THREE
MILLION DOLLARS ($23,000,000), plus interest as described below. The entire
principal balance outstanding hereunder, if not sooner paid, shall be due and
payable April 30, 2002, pursuant to that certain Loan Agreement dated February
12, 1997 between the Borrower and the Bank (as the same has been and may
hereafter be amended, modified or supplemented from time to time, called the
"Loan Agreement"). No principal installments are required to be paid prior to
April 30, 2002.
The Borrower further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date hereof until paid in full at such rates and at such times as shall be
determined in accordance with the provisions of the Loan Agreement. Accrued
interest shall be payable on the dates specified in the Loan Agreement.
Payments of both principal and interest are to be made in the lawful money
of the United States of America in immediately available funds at the Bank's
principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at
such other place as may be designated by the Bank to the Borrower in writing.
This Note is the Substitute Term Note referred to in, evidences
indebtedness incurred under, and is subject to the terms and provisions of, the
Loan Agreement. The Loan Agreement, to which reference is hereby made, sets
forth said terms and provisions, including those under which this Note may or
must be paid prior to its due date or may have its due date accelerated. Terms
used but not otherwise defined herein are used herein as defined in the Loan
Agreement.
In addition to, and not in limitation of, the foregoing and the provisions
of the Loan Agreement hereinabove referred to, the Borrower further agrees,
subject only to any limitation imposed by applicable law, to pay all expenses,
including attorneys' fees and expenses, incurred by the holder of this Note in
seeking to collect any amounts payable hereunder which are not paid when due,
whether by acceleration or otherwise.
All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment, demand, protest and notice of dishonor in connection with
this Note.
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This Note is binding upon the undersigned and its successors and assigns,
and shall inure to the benefit of the Bank and its successors and assigns.
This Note is made under and governed by the laws of the State of Illinois
without regard to conflict of laws principles.
This Note, in part, is a replacement and substitute for, but not a
repayment of, that certain $25,000,000 Term Note dated as of February 12, 1997
of the Maker payable to the order of the Bank and does not and shall not be
deemed to constitute a novation therefor.
XXXXXX CAPITAL GROUP, INC., a Delaware corporation
By: X.X. Xxxxxxx
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Title: CFO
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Borrower's Address:
000 Xxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000