Exhibit 10.10
Short-term note with American National Bank & Trust Company of
Chicago as of April 30, 1999, setting forth the terms of
the Parent Company's $5,000,000 short-term debt agreement.
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American National Bank
And Trust Company of Chicago
PROMISSORY NOTE (UNSECURED)
$5,000,000.00
Chicago, Illinois
April 30, 1999
Due April 30, 2000
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 FIVE 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 ("Borrower's Liabilities") shall be due and payable on April
30, 2000.
This Note restates and replaces a Promissory Note (Unsecured)
in the principal amount of $5,000,000.00, dated April 30, 1998
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 1.00% per annum (computed on the basis of a 360-day year and
actual days elapsed) minus 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 stun 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, 1999 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 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
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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 IN CONNECTION WITH OR RELATED TO THIS
NOTE OR ANY SUCH AMENDMENT, INSTRUMENT, DOCUMENT OR
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AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT, COUNTERCLAIM OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
400 Locust XXXXXXX XXXXX, INC.
Xxx Xxxxxx, Xxxx 00000 an Iowa corporation
By: /s/ Xxxxxx X. Xxxxxxx
FEIN: 00-0000000 Xxxxxx X. Xxxxxxx,
CFO/Treasurer/Secretary
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