Exhibit 10.10
Short-term note with American National Bank & Trust Company of Chicago as of
April 30, 1997 setting forth the terms of the Parent Company's $2,000,000
short-term debt agreement.
124
American National Bank
and Trust Company of Chicago
00 Xxxxx XxXxxxx Xxxxxx/Xxxxxxx, Xxxxxxxx 60690/(312) 661-5000
April 30, 1997
Xxxxxxx Xxxxx, Inc.
Xxxxxxx Xxxxxx
000 Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Gentlemen:
This letter will replace the previous Letter Agreement regarding the negative
pledge on Xxxxxxx Bank stock dated April 30, 1996. This letter is in reference
to the certain Promissory Note (Unsecured) dated April 30, 1997, both by
Xxxxxxx Xxxxx, Inc. ("Xxxxxxx") in favor of American National Bank and Trust
Company of Chicago ("ANB") in connection with a commitment in the amount of
Two Million and 00/100 Dollars to be extended by ANB to Xxxxxxx and any
subsequent renewals and modification ("Commitment").
In consideration of ANB providing the Commitment, Xxxxxxx hereby covenants that
it will not create, assume or suffer to exist, any Lien upon the stock of a
Subsidiary bank.
For the purpose of this Letter Agreement, the following definitions shall apply:
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, and
the filing of or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction).
"Subsidiary" shall mean a corporation with respect to which more than
50% of the outstanding shares of stock of each class having ordinary
voting power (other than stock having such power only by reason of the
happening of a contingency) is at the time owned by Xxxxxxx or by one or
more Subsidiaries of Xxxxxxx.
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If the foregoing correctly states your understanding of our agreement, please
execute the enclosed copy of the Letter Agreement in the space indicated and
return it to Xxx Xxxxxxxx, Officer of ANB.
American National Bank and Trust
Company of Chicago
By: ____________________________
Its:____________________________
Accepted and agreed to this 30th day of April, 1997.
Xxxxxxx Xxxxx, Inc.
an Iowa corporation
By: /s/ Xxxxxx X. Xxxxxxx
Its: CFO/Treasurer/Secretary
American National Bank
and Trust Company of Chicago
PROMISSORY NOTE (UNSECURED)
$2,000,000.00
Chicago, Illinois April 30, 1997
Due April 30, 1998
FOR VALUE RECEIVED the undersigned (jointly and severally if more than
one) ("Borrower"), promises to pay to the order of AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO ("Bank"), at its principal place of business in
Chicago, Illinois or such other place as Bank may designate from time to time
hereafter, the principal sum of Two Million and 00/100 Dollars, or such lesser
principal sum as may then be owed by Borrower to Bank hereunder.
Borrower's obligations and liabilities to Bank under this Note ("Borrowers
Liabilities") shall be due and payable on April 30, 1998.
This Note restated and replaces a Promissory Note (Unsecured) in the
principal amount of $2,000,000.00, dated April 30, 1996 executed by Borrower in
favor of Bank (the "Prior Note") and is not a repayment or novation of the
Prior Note.
The unpaid principal balance of Borrower's Liabilities due hereunder shall
bear interest from the date of disbursement until paid, computed at a daily
rate equal to the daily rate equivalent of 0.00% per annum (computed on the
basis of a 360-day year and actual days elapsed) in excess of the rate of
interest announced or published publicly from time to time by Bank as its
prime or base rate of interest (the "Base Rate"); provided, however, that in
the event that any of Borrower's Liabilities are not paid when due, the
unpaid amount of Borrower's Liabilities shall bear interest after the due
date until paid at a rate equal to the sum of the rate that would otherwise
be in effect plus 3%.
The rate of interest to be charged by Bank to Borrower shall fluctuate
hereafter from time to time concurrently with, and in an amount equal to, each
increase or decrease in the Base Rate, whichever is applicable.
Accrued interest shall be payable by Borrower to Bank on the same day of
each month, and at maturity, commencing with the last day of May, 1997 or as
billed by Bank to Borrower, at Bank's principal place of business, or at such
other place as Bank may designate from time to time hereafter. After maturity,
accrued interest on all of Borrower's Liabilities shall be payable on demand.
Borrower warrants and represents to Bank that Borrower shall use the
proceeds represented by this Note solely for proper business purposes and
consistently with all applicable laws and statutes.
Any deposits or other sums at any time credited by or payable or due from
Bank to Borrower, or any monies, cash, cash equivalents, securities,
instruments, documents or other assets of Borrower in the possession or
control of Bank or its bailee for any purpose, may be reduced to cash and
applied by Bank to or setoff by Bank against Borrower's Liabilities.
The occurrence of any one of the following events shall constitute a
default by the Borrower ("Event of Default") under this Note: (a) if Borrower
fails to pay any 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 or any guarantor of any of Borrower's
Liabilities fails or neglects to perform, keep or observe any term, provision,
condition, covenant, warranty or representation contained in this Note; (c)
occurrence of a default or an event of default under any agreement, instrument
or document 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 or entity which has granted to Bank a security interest or lien in
and to some or all such person's or entity's real or personal property to
secure the payment of Borrower's Liabilities; (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; (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 or local department
or agency; (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 similar law or regulation is filed by or against Borrower or
any such guarantor, if
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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 death or
incompetency of Borrower or any guarantor of Borrower's Liabilities, or the
appointment of a conservator for all or any portion of Borrower's assets; (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 a 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 the Employee Retirement Income Security Act of 1974, as
amended, "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; (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; or (m) if Bank is reasonably
insecure.
Upon the occurrence of an Event of Default, at Bank's option, without
notice by Bank to or demand by Bank of Borrower, all of Borrower's Liabilities
shall be immediately due and payable.
All of Bank's rights and remedies under this Note are cumulative and non-
exclusive. The acceptance by Bank of any partial payment made hereunder after
the time when any of Borrower's Liabilities become due and payable will not
establish a custom or waive any rights of Bank to enforce prompt payment
hereof. Bank's failure to require strict performance by Borrower of any
provision of this Note shall not waive, affect or diminish any right of Bank
thereafter to demand strict compliance and performance therewith. Any waiver
of an Event of Default hereunder shall not suspend, waive or affect any
other Event of Default hereunder. Borrower and every endorser waive
presentment, demand and protest and notice of presentment, protest, default,
non-payment, maturity, release, compromise, settlement, extension or renewal
of this Note, and hereby ratify and confirm whatever Bank may do in this
regard. Borrower further waives any and all notice or demand to which
Borrower might be entitled with respect to this Note by virtue of any
applicable statute or law (to the extent permitted by law).
Borrower agrees to pay, immediately upon demand by Bank, any and all
costs, fees and expenses (including reasonable attorneys' fees, costs and
expenses) incurred by Bank (i) in enforcing any of Bank's rights hereunder,
and (ii) in representing Bank in any litigation, contest, suit or dispute,
or to commence, defend or intervene or to take any action with respect to
any litigation, contest, suit or dispute (whether instituted by Bank,
Borrower or any other person) in any way relating to this Note or Borrower's
Liabilities, and to the extent not paid the same shall become part of
Borrower's Liabilities.
This Note shall be deemed to have been submitted by Borrower to Bank and
to have been made at Bank's principal place of business. This Note shall be
governed and controlled by the internal laws of the State of Illinois and not
the law of conflicts.
Advances under this Note may be made by Bank upon oral or written request
of any person authorized to make such requests on behalf of Borrower
("Authorized Person"). Borrower agrees that Bank may act on requests which
Bank in good faith believes to be made by an Authorized Person, regardless of
whether such requests are in fact made by an Authorized Person. Any such
advance shall be conclusively presumed to have been made by Bank to or for
the benefit of Borrower. Borrower does hereby irrevocably confirm, ratify
and approve all such advances by Bank and agrees to indemnify Bank against
any and all losses and expenses (including reasonable attorneys' fees) and
shall hold Bank harmless with respect thereto.
TO INDUCE BANK TO ACCEPT THIS NOTE, 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 NOTE SHALL
BE LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE OF
ILLINOIS. 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.
BORROWER 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 NOTE OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH, OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY
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IN CONNECTION WITH OR RELATED TO THIS NOTE OR ANY SUCH AMENDMENT, 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.
400 Locust, Box 961 Xxxxxxx Xxxxx, Inc.
Xxx Xxxxxx, Xxxx 00000 an Iowa corporation
By: /s/ Xxxxxx X. Xxxxxxx
FEIN Its: CFO/Treasurer/Secretary
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