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EXHIBIT 7.2
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), dated as of the 1st day of
July, 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 X. XXXXXX,
("Borrower"), who resides at 00 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxxxx, XX 00000, has
reference to the following facts and circumstances:
Pursuant to Borrower's request, Bank heretofore, now and from time to
time hereafter, has and/or may loan or advance monies, extend credit and/or
extend other financial accommodations 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 heretofore, 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 6.10) whether primary, secondary,
direct contingent, fixed or otherwise, including Rate Hedging
Obligations (as defined in subparagraph E 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; and (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.
C. "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
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from time to time hereafter executed by and/or on behalf of
Borrower and delivered to Bank.
D. "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).
E. "RATE HEDGING OBLIGATIONS": shall mean 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.
2. LOANS
2.1 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 other wise 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).
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.
2.2 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.
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2.3 This Agreement shall be in effect until all of Borrower's Liabilities
have been paid in full and any and all commitments of Bank to make loans have
terminated.
2.4 Bank's commitment to loan shall expire on the earlier of (i) the date
on which Borrower's Liabilities mature under the terms of any note given by
Borrower to Bank, or (ii) the occurrence of an Event of Default pursuant to
Section 5 hereof.
3. NEGATIVE PLEDGE
3.1 Borrower shall not incur, permit, or suffer to exist any lien upon any
of its property or assets, now owned or hereafter acquired, except for the
following permitted liens: (a) 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; (b) 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 (c) 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.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS; GENERAL
4.1 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 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; and (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.
4.2 Borrower warrants and represents to and covenants with Bank that,
unless permitted by the Rider attached hereto, 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
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Borrower's ability to repay Borrower's Liabilities, 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
assets; and (c) incur Indebtedness except renewals or extensions of existing
Indebtedness and interest thereon, and except Indebtedness that is unsecured and
is 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 therefore to the payment of Borrower's Liabilities.
4.3 Borrower warrants and represents to and covenants with 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, updated personal financial
statements of Borrower, (b) income tax returns of Borrower as soon as they are
available, and (c) such other data and information (financial and otherwise) as
Bank, from time to time, may reasonably request.
5. DEFAULT
5.1 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 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 which remains uncured for a period
of thirty (30) days after written notice thereof; (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; (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, 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 12 of the United States
Code or any 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 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 Borrower or any guarantor of Borrower's Liabilities is in default in the
payment of any obligations, indebtedness or other
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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 (k) 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.
5.2 All of Bank's rights and remedies under this Agreement and the Other
Agreements are cumulative and non-exclusive.
5.3 Upon an Event of Default or the occurrence of any one of the events
described in Paragraph 5.1, 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.
5.4 Any notice required to be given by Bank to Borrower deposited in the
United States mail, postage prepaid shall be delivered by registered or
certified mail to the address specified at the beginning of this Agreement not
less than ten (10) days prior to such proposed action, shall constitute
commercially reasonable and fair notice to Borrower thereof.
5.5 Under an Event of Default Borrower waives and releases any cause of
action and claim against Bank's possession or collection of the monies,
reserves, deposits, deposit accounts and interest or dividends thereof, cash or
cash equivalents, collectively the "Monies", in conjunction with this Loan
Agreement.
6. GENERAL
6.1 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.
6.2 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.
6.3 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 suspend, waive or affect any other
Event of
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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.
6.4 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.
6.5 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 to Borrower to Bank
on demand.
6.6 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.
6.7 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. If any provision of the Rider attached hereto is in conflict with, or
inconsistent with any provision in this Agreement, the terms of the Rider shall
control.
6.8 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
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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 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.
6.9 This Agreement and the Other Agreements shall be governed and
controlled by the internal laws of the State of Illinois and not the law of
conflicts.
6.10 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) with respect to this Agreement, the Other
Agreements or the administration of Borrower's Liabilities, (ii) 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 (iii) to enforce any
rights of Bank against Borrower or any other Person which may be obligated to
Bank by virtue of this Agreement or 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; PROVIDED, HOWEVER, that the foregoing obligations of
Borrower shall terminate from and after the repayment in full of all of the
Borrower's Indebtedness to Bank.
6.11 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
6.12 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
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DELIVERED OR WHICH MAY TN 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,
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.
6.13 THIS LOAN AGREEMENT IS SUBJECT TO THE TERMS OF A RIDER OF EVEN DATE
HEREWITH BETWEEN BORROWER AND BANK WHICH IS ATTACHED HERETO AND MADE A PART
HEREOF.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year specified at the beginning hereof.
BORROWER:
By:
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Print or Type Name:
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Its:
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Accepted this __ day of ___________, 19__, a Bank's principal place of
business in the City of Chicago, State of Illinois.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By:
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Print or Type Name:
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Its:
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RIDER
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This Rider ("Rider") to Loan Agreement ("Loan Agreement") is made and
entered into this ______ day of ______________, 1998 by and between Xxxxx X.
Xxxxxx ("Borrower") and American National Bank and Trust Company of Chicago
("Bank").
1. COVENANTS OF THE BORROWER. Borrower agrees that, so long as any of the
Borrower's Liabilities remain outstanding, except to the extent compliance
in any case or cases is waived in writing by Bank:
(a) Borrower shall, as of the end of each calendar year, maintain a ratio
of Indebtedness (including Borrower's Liabilities) to net worth (determined in
accordance with generally accepted accounting principals consistently applied)
of not more than .5 to 1.
(b) Borrower shall, at all times, maintain a ratio of liquid assets
(excluding Conseco, Inc. common stock and stock and other equity holdings of
Central Reserve Life Corporation) to one-half (1/2) of the then outstanding
"Revolving Commitment" of not less than 2 to 1. For the purposes hereof, the
term "Revolving Commitment" means the maximum credit availability under the
Revolving Note of even date herewith in the original principal amount of
$15,000,000 from Borrower to Bank ("Revolving Note").
(c) Borrower will furnish or cause to be furnished to Bank in form
reasonably acceptable to Bank:
(i) On June 30 of each year and upon request of Bank from time to
time, a certificate from Borrower that no material adverse change has occurred
with respect to Borrower's assets or financial condition as reported to Bank at
each fiscal year end; and
(ii) Within fifteen (15) days after the end of each month, brokerage
statements verifying Borrower's asset holdings;
(d) Notwithstanding anything contained in Section 4.2 of the Loan Agreement
to the contrary, Borrower may, without the Bank's consent, (i) sell assets in an
amount not to exceed $10,000,000 in any calendar year and (ii) guaranty
additional Indebtedness in an aggregate amount not to exceed $5,000,000.
2. USE OF PROCEEDS. Borrower shall use the proceeds of the Revolving Note
solely to purchase shares of Central Reserve Life Corporation, an Ohio
Corporation ("CRLC") Notwithstanding the foregoing, Borrower may use the
proceeds of the Revolving Note to make loans ("Recipient Loans") to Xxx
Xxxxx, Xxxx Xxxxxxxx and/or Xxxxx Xxxx (the "Recipients"), provided (i)
each Recipient uses the proceeds of the Recipient Loans to purchase shares
of CRLC, (ii) the terms of the Recipient Loans are acceptable to the Bank
in its sole discretion, (iii) Borrower pledges and grants to Bank a
security interest in and to the Recipient Loans in form and substance
satisfactory to Bank (which security interest shall terminate with respect
to a Recipient Loan upon full repayment, either in cash, marketable
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securities or a combination thereof, of such Recipient Loan to Borrower), and
(iv) the aggregate amount of the Recipient Loans does not exceed the lesser of
(a) $3,000,000 or (b) one-third (1/3) of the outstanding principal balance of
the Revolving Note.
3. CONDITIONS PRECEDENT. The obligation of Bank to make the initial or any
subsequent advances under the Revolving Note are subject to the following
conditions precedent:
(a) Each of the representations and warranties in the Loan Agreement are
true and correct in all material respects.
(b) Borrower shall be in full compliance in all material respects with all
of the terms and conditions of the Loan Agreement (including this Rider) and no
Default or Event of Default shall have occurred and be continuing.
(c) Bank shall have received all other documents required under the Loan
Agreement (including this Rider), duly executed by the appropriate parties
thereto.
(d) The loan by the Bank to Strategic Acquisition Partners, L.L.C. dated
December 16, 1997 in the principal amount of $20,000,000 shall have been repaid
to the Bank in full.
(e) No material adverse changes, as determined by Bank, shall have occurred
in the financial condition or assets of the Borrower.
(f) There shall not have been instituted or threatened, any material (as
determined by Bank) litigation or proceeding in any court or administrative
forum to which the Borrower is or is threatened to be a party.
(g) Such other documents, assignments, financial statements or other items
as shall be reasonably required by the Bank.
4. CONFLICTS. In the event of a conflict between the terms of this Rider and
the terms of the Loan Agreement, the terms of this Rider shall govern
as control.
5. DEFINED TERMS. Terms not defined herein shall have the meanings ascribed to
them in the Loan Agreement.
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IN WITNESS WHEREOF, the parties have executed this Rider or the date
first above written.
Borrower:
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Xxxxx X. Xxxxxx
Accepted:
American National Bank and Trust
Company of Chicago
By:
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Its:
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