1
[AMERICAN NATIONAL BANK LOGO]
Ex.2
CONSUMER PLEDGE AND SECURITY AGREEMENT
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Principal Loan Date Maturity Loan No Call Collateral Account Officer Initials
$4,219,000.01 07-30-1997 07-30-1998 19792
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
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BORROWER: XXXXXX X. XXXXXXXXXX (SSN: ###-##-####) LENDER: AMERICAN NATIONAL BANK & TRUST CO. OF CHICAGO
XXXXXX X. XXXXXXXXXX (SSN: ###-##-####) EXECUTIVE & PROFESSIONAL DIVISION
000 XXXX XXXX XXXX 00 X. XXXXXXX XXXXXX
XXXXXXXXXX XXXXX, XX 00000 XXXXXXX XX 00000
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THIS CONSUMER PLEDGE AND SECURITY AGREEMENT IS ENTERED INTO BETWEEN XXXXXX
X. XXXXXXXXXX AND XXXXXX X. XXXXXXXXXX (REFERRED TO BELOW AS "I"); AND AMERICAN
NATIONAL BANK & TRUST CO. OF CHICAGO (REFERRED TO BELOW AS "LENDER").
GRANT OF SECURITY INTEREST. TO SECURE THE INDEBTEDNESS DESCRIBED BELOW
(INCLUDING ALL OBLIGATIONS UNDER THE NOTE AND THIS AGREEMENT), I GRANT TO
LENDER A SECURITY INTEREST IN ALL OF THE PROPERTY DESCRIBED BELOW. I UNDERSTAND
THAT THE FOLLOWING STATEMENTS SET FORTH MY RESPONSIBILITIES AND LENDER'S RIGHTS
CONCERNING THE PROPERTY. I AGREE AS FOLLOWS:
DEFINITIONS. When the following words are used in this Agreement, I
understand they will have the following meanings:
AGREEMENT. The word "Agreement" means this Consumer Pledge and Security
Agreement, as this Consumer Pledge and Security Agreement may be amended or
modified from time to time, together with all exhibits and schedules
attached to this Consumer Pledge and Security Agreement from time to time.
I. The word "I" means Xxxxxx X. Xxxxxxxxxx and Xxxxxx X. Xxxxxxxxxx.
Income. The word "Income" means all income, earnings and proceeds from
the Property, including all payments, interest, profits, rights, options,
dividends, stock dividends, increases, proceeds of any insurance on the
Property, shares of stock issued in exchange for shares included in the
Property, and all other property given in exchange or substitution for the
Property.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced
by the Note described below, including all principal and interest, together
with all other amounts and costs and expenses for which I am responsible
under this Agreement or under any other agreement with Lender pertaining to
the loan.
LENDER. The word "Lender" means American National Bank & Trust Co. of
Chicago, its successors and assigns. The words "successors or assigns" mean
any person or company which acquires all or any part of Lender's interest
in the Note.
Note. The word "Note" means the promissory note or credit agreement
executed by me in the principal amount of $4,219,000.01 dated July 30,
1997, together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or
credit agreement.
Obligor. The word "Obligor" means each and every person or company that is
obligated to pay money or to perform some other act under the Property,
such as the person who pays dividends on stock.
PROPERTY. THE WORD "PROPERTY" MEANS THE FOLLOWING SPECIFICALLY DESCRIBED
PROPERTY, WHICH I HAVE DELIVERED OR WILL DELIVER (OR WILL CAUSE TO BE
DELIVERED) IMMEDIATELY TO LENDER, TOGETHER WITH ALL INCOME AS DEFINED
ABOVE:
1277481.000 shares of Xxxx X. Xxxxxxxxxx & Son, Inc. Common Stock
RIGHT OF SETOFF. I grant to Lender a contractual possessory security interest
in, and hereby assign, convey, deliver, pledge and transfer to Lender, all my
right, title and interest in and to all my accounts with Lender (whether
checking, savings, or some other account). This includes all accounts I hold
jointly with someone else and all accounts I may open in the future. However,
this does not include any XXX or Xxxxx accounts, or any trust accounts for
which the grant of a security interest would be prohibited by law. I authorize
Lender, to the extent permitted by applicable law, to charge or setoff all
sums owing on the Indebtedness against any and all such accounts.
REPRESENTATIONS AND PROMISES WITH RESPECT TO THE PROPERTY. I represent and
promise to Lender that:
Ownership. I am the lawful owner of the Property. The Property is free of
all loans, liens, mortgages, and claims of others except for those I
have disclosed to Lender in writing, and which have been accepted by
Lender, prior to my signing of this Agreement.
RIGHT TO PLEDGE. I have the full right, power and authority to enter
into this Agreement and to grant a security interest in the Property to
Lender.
NO FURTHER TRANSFER. I have not and will not sell, transfer, mortgage,
or otherwise dispose of any of my rights in the Property except as allowed
in this Agreement.
No Defaults. There are no defaults existing under the Property, and
there are no offsets or counterclaims to the same. I will strictly and
promptly do everything required of me under all the terms, conditions,
promises, and agreements contained in or relating to the Property.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE PROPERTY. Lender may
hold the Property until all Indebtedness has been paid. Thereafter Lender
may deliver the Property to me or to any other owner of the Property. Lender
will have the following rights in addition to all other rights Lender
may have by law:
MAINTENANCE AND PROTECTION OF PROPERTY. Lender may do such things as it
thinks necessary or desirable to protect, maintain, insure, store, or care
for the Property, including paying of any liens or claims against the
Property. This may include such things as hiring other people, such as
attorneys, appraisers or other experts. Lender may charge me for any cost
incurred in so doing. When applicable law provides more than one method of
perfection of Lender's security interest, Lender may choose the method(s)
to be used. If the Property consists of stocks, bonds or other securities
for which no certificate has been issued, I agree, at lender's request,
either to request issuance of an appropriate certificate or to give
instructions on Lender's forms to the issuer, transfer agent, mutual fund
company, or broker, as the case may be, to record on its books or records
Lender's security interest in the Property.
INCOME FROM THE PROPERTY. Lender may receive all Income and add it to
the Property held by Lender under this Agreement. If I receive any Income
from the Property, and if Lender requires me to do so, I immediately will
advise Lender. If Lender requests, I will deliver the Income to Lender
immediately upon my receipt in the exact form received. Unless permitted
by Lender, I will not mix the Income with any of my accounts or
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CONSUMER PLEDGE AND SECURITY AGREEMENT
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other property, and if required by Lender, I will deliver the Income
to Lender whether the Income is an addition to, in discharge of, in
substitution of, or in exchange for any of the Property.
APPLICATION OF CASH. Lender, at its option, may apply any cash
(whether included in the Property or received as Income or proceeds of a
sale of any of the Property) to the payment of part or all of the
Indebtedness, whether or not the Indebtedness is then due.
MODIFYING THE INDEBTEDNESS. Lender may (a) extend time for payment or
other performance, (b) grant a renewal or change, or (c) compromise or
release any obligation, with any one or more Borrowers, endorsers, or
guarantors of the Indebtedness, as Lender deems advisable, without
obtaining my prior written consent. No such act or failure to act will
affect Lender's rights against me or the Property.
ALL PROPERTY SECURES INDEBTEDNESS. All Property will be security for
the Indebtedness, whether the Property is located at one or more offices
or branches of Lender. This will be the case whether or not the office or
branch where I obtained my loan knows about the Property or relies upon
the Property as security.
COLLECTION OF PROPERTY. Lender at its option may, but need not, collect
the Income directly from the Obligors. I authorize and direct the
Obligors, if Lender decides to collect the Income, to pay and deliver to
Lender all Income from the Property and to accept Lender's receipt for the
payments.
POWER OF ATTORNEY. I appoint Lender as my attorney-in-fact, with full
power to act for me. This power of attorney will remain in effect until
all Indebtedness is paid in full. Lender, as my attorney-in-fact, may
among other things (a) demand, collect, receive, receipt for, xxx and
recover all Income which may now or hereafter become due, owing or payable
from the Obligors in accordance with the terms of the Property; (b)
execute, sign and endorse any and all instruments, receipts, checks,
drafts and warrants issued as Income or in payment for the Property; (c)
settle or compromise any and all claims arising under the Property and, in
my place and name, execute and deliver its release and acquittance for me;
(d) file any claim or claims or take any action or institute or take part
in any proceedings, either in Lender's own name or in my name, or
otherwise, which in Lender's opinion may seem to be necessary or
advisable; and (e) execute in my name and deliver to the Obligors on my
behalf, at the time and in the manner specified by the Property, any
necessary instruments or documents.
LENDER'S EXPENDITURES. All expenditures made by Lender under this
Agreement will become a part of the Indebtedness secured by this Agreement.
All expenses incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by me. All such expenses, at Lender's option,
will (a) be payable on demand, (b) be added to the balance of the Note and be
apportioned among and be payable with any installment payments to become due
during either (i) the term of any applicable insurance policy or (ii) the
remaining term of the Note, or (c) be treated as a balloon payment which will
be due and payable at the Note's maturity. This Agreement also will secure
payment of these amounts.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender will use ordinary reasonable care
in the physical preservation and custody of the Property in Lender's
possession, but will have no other obligation to protect the Property or its
value. Lender will not be responsible for (a) collecting or protecting any
Income from the Property; (b) preserving rights against parties to the
Property or against third persons; (c) ascertaining any maturities, calls,
conversions, exchanges, offers, tenders, or similar matters relating to any of
the Property; or (d) informing me about any of these matters, whether or not
Lender has or is deemed to have knowledge of such matters. Except as provided
above, Lender will have no responsibility or liability whatsoever for any
deterioration or decrease in the value of the Property.
DEFAULT. I WILL BE IN DEFAULT IF ANY OF THE FOLLOWING HAPPENS: (a) I fail to
make any payment when due on the Indebtedness. (b) I break any promise made to
Lender in this Agreement or in any other agreement or loan with Lender. (c) I
die, become insolvent, or file a petition in bankruptcy or similar
proceedings, or am adjudged bankrupt. (d) Any creditor or governmental agency
tries to take any of the Property. This includes the taking or garnishment of
any of my accounts with Lender. (e) Lender deems itself insecure. (f) Any of
the events described above in this default section happens to any guarantor of
any of the Indebtedness.
RIGHTS AND REMEDIES ON DEFAULT. If I am in default under this Agreement,
Lender may do any or all of the following:
ACCELERATE INDEBTEDNESS. Declare all Indebtedness immediately due and
payable, subject to any cure and notice provisions required by law,
without notice.
COLLECT THE PROPERTY. Collect any of the Property, and, at Lender's
option and to the extent permitted by applicable law; retain possession
of the Property while suing on the Indebtedness.
SELL THE PROPERTY. Sell the Property, at Lender's discretion, as a unit
or in parcels, at one or more public or private sales. Unless the Property
is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, Lender will give or mail to me
notice at least ten (10) days in advance of the time and place of public
sale, or of the date after which private sale may be made. I agree that
any requirement of reasonable notice is satisfied if Lender mails notice
by ordinary mail addressed to me at the last address I have given Lender
in writing. If public sale is held, there will be sufficient compliance
with all requirements of notice to the public by a single publication in
any newspaper of general circulation in the county where the Property is
located. The notice will set forth the time and place of sale and a brief
description of the property to be sold. Lender may be a purchaser at any
public sale.
REGISTER SECURITIES. Register any securities included in the Property in
Lender's name and exercise any rights normally of an owner of securities.
SELL SECURITIES. Sell any securities included in the Property in a manner
consistent with applicable federal and state securities laws. If, because
of restrictions under such laws, Lender is unable, or believes it is
unable, to sell the securities in an open market transaction, I agree that
Lender will have no obligation to delay sale until the securities can be
registered. Then Lender may make a private sale to one or more persons or
to a restricted group of persons, even though such sale may result in a
price that is less favorable than might be obtained in an open market
transaction. Such a sale will be considered commercially reasonable. If
any securities held as Property are "restricted securities" as defined in
the Rules of the Securities and Exchange Commission (such as Regulation D
or Rule 144) or the rules of state securities departments under state
"Blue Sky" laws, or if I or any other owner of the Property is an
affiliate of the issuer of the securities, I agree that neither I, nor any
member of my family, nor any other person signing this Agreement will
sell or dispose of any securities of such issuer without obtaining
Lender's prior written consent.
TRANSFER TITLE. Transfer title to the Property upon the sale of all or
part of the Property. For this purpose, I irrevocably appoint Lender as my
attorney-in-fact to execute such endorsements, assignments and
instruments in my name as Lender in its judgment may think to be necessary
or reasonable.
OTHER RIGHTS AND REMEDIES. Exercise any or all of the rights and remedies
of a secured creditor under the provisions of the Uniform Commercial
Code, at law, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the Property or
Income or which is received from the collection or sale of the Property
as follows: (a) to reimbursement of Lender's expenses incurred in
connection with the collection and sale of the Property, such as Lender's
attorneys' fees and court costs, costs of securities registration or
commissions incurred in connection with a sale, and other costs of sale;
(b) to the payment of the Indebtedness; and (c) any excess funds to be
paid to me or to any other Borrower as our interests may appear. I
agree, to the extent permitted by law, to pay any deficiency remaining
after application of the proceeds of the Property to the Indebtedness.
Cumulative Remedies. All of Lender's rights and remedies will be
cumulative and may be exercised alone or together. An election by Lender
to
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CONSUMER PLEDGE AND SECURITY AGREEMENT PAGE 3
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choose any one remedy will not bar Lender from using any other remedy. If
Lender decides to spend money or to perform any of my obligations under
this Agreement, after my failure to do so, that decision by Lender will not
affect Lender's right to declare me in default and to exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS AND INTERPRETATION. (a) What is written in this Agreement is my
entire agreement with Lender concerning the Property. This Agreement may not
be changed except by another written agreement between us. (b) If more than
one person signs below, our obligations are joint and several. This means
that the words "I," "me," and "my" mean each and every person or entity
signing this Agreement, and that, if Lender brings a lawsuit, Lender may
xxx any one or more of us. (c) The names given to paragraphs or sections in
this Agreement are for convenience purposes only. They are not to be used
to interpret or define the provisions of this Agreement. (d) I agree that
this Agreement is the best evidence of my agreements with Lender. If a
court finds that any provision of this Agreement is not valid or should not
be enforced, that fact by itself will not mean that the rest of this
Agreement will not be valid or enforced. Therefore, a court will enforce
the rest of the provisions of this Agreement even if a provision of this
Agreement may be found to be invalid or unenforceable.
APPLICABLE LAW. THIS AGREEMENT HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY
LENDER IN THE STATE OF ILLINOIS. IF THERE IS A LAWSUIT, I AGREE UPON
LENDER'S REQUEST TO SUBMIT TO THE JURISDICTION OF THE COURTS OF XXXX
COUNTY, THE STATE OF ILLINOIS. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
ATTORNEYS' FEES AND OTHER COSTS. If Lender hires or pays money to someone
else to help enforce this Agreement or to collect any Indebtedness, I will
pay that amount. This amount includes Lender's attorneys' fees and Lender's
legal expenses whether or not there is a lawsuit, including attorneys' fees
and legal expenses for bankruptcy proceedings (and including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. I will also pay court costs.
in addition to all other sums provided by law. This Agreement also secures
all of these amounts.
FINANCING STATEMENTS. At Lender's request, I will promptly sign all other
documents, such as financing statements and certificates of title, to
perfect, protect, and continue Lender's security interest in the Property.
This includes making sure Lender is shown as the first and only security
interest holder on the title covering the Property. I will pay all filing
fees, title transfer fees, and other fees and costs involved unless
prohibited by law or unless Lender is required by law to pay such fees and
costs. I irrevocably appoint Lender as my attorney-in-fact to execute
financing statements and documents of title in my name and to execute all
documents necessary to transfer title if there is a default. Lender may
file a copy of this Agreement as a financing statement. If I change my name
or obtain a new Social Security Number, or if the name or Social Security
Number of any person granting a security interest under this Agreement
changes, I will promptly notify the Lender of such change.
NOTICES. I understand that all notices when required to be given under this
Agreement, whether from Lender to me or from me to Lender, must be given in
writing. Notices may be sent by telefacsimile, and will not be effective
until actually delivered, or when deposited with a nationally recognized
overnight courier or when deposited in the United States mail, first class,
postage prepaid, addressed to the party to whom the notice is to be given
at the address shown above. Any person may change his or her address for
notices under this Agreement by giving formal written notice to the other
person or persons, specifying that the purpose of the notice is to change
the person's address. I agree that, to the extent permitted by law, if
there is more than one person signing this Agreement, Lender may give
notice to any one of us and that will be considered as giving notice to all
of us unless the law requires notice to all signers. It will be our
responsibility to tell the others of the notice from Lender. For this
purpose, I agree to keep Lender informed at all times of my current
address.
WAIVER. I understand Lender will not give up any of its rights under this
Agreement unless it does so in writing. The fact that Lender delays or
omits to exercise any right will not mean that Lender has given up that
right. If Lender does agree in writing to give up one of its rights, that
does not mean I will not have to comply with the other provisions of this
Agreement. I also understand that if Lender does consent to a request, that
does not mean that I will not have to get Lender's consent again if the
situation happens again. I further understand that just because Lender
consents to one or more of my requests, that does not mean Lender will be
required to consent to any of my future requests. I waive presentment,
demand for payment, protest, and notice of dishonor.
I HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS CONSUMER PLEDGE AND
SECURITY AGREEMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED JULY 30,1997.
GRANTOR:
x /s/ Xxxxxx X. Xxxxxxxxxx x /s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxxxxx
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