Exhibit 10.13
Short-term note with American National Bank & Trust Company of
Chicago as of April 30, 1995, setting forth the terms of the Parent
Company's $2,000,000 short-term debt agreement.
70
American National Bank
and Trust Company of Chicago
00 Xxxxx XxXxxxx Xxxxxx/Xxxxxxx, Xxxxxxxx 60690/(312) 661-5000
April 30, 1995
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, 1994. This letter is in
reference to the certain Promissory Note dated 4/30/95, 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
$2,000,000 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.
71
Page 2
April 30, 1995
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 Xxxxxxxxx Xxxxx, Correspondent Banking Officer of ANB.
American National Bank and Trust
Company of Chicago
By: /s/ Xxxxxxxxx X. Xxxxx
Its: Officer
Accepted and agreed to this 30th day of April, 1995
Xxxxxxx Xxxxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxx (hand written)
Xxxxxx X. Xxxxxxx (printed)
Its: Chief Financial Officer/Treasurer/Secretary
72
PROMISSORY NOTE (UNSECURED)
Grid Note Max Chicago, Illinois April 30, 1995
$2,000,000.00 Due April 30, 1996
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 no/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, 1996.
The unpaid principal balance of Borrower's Liabilities due hereunder
shall bear interest from the date hereof until paid, computed as follows
(DELETE INAPPLICABLE PROVISIONS): (i)XXXXX (ii) at a daily rate equal to the
daily rate equivalent of 0% 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 (a) the rate in effect prior to the due date and (b) 3%.
If the rate of interest to be charged by Bank to Borrower hereunder is
that specified in clause (ii) such rate 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 with each
principal installment of Borrower's Liabilities due hereunder, 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.
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.
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
pay any of Borrower's Liabilities when due and payable; (b) if Borrower fails
to perform, keep or observe any term, provision, condition, covenant,
warranty, or representation contained in this Note which is required to be
performed, kept, or observed by Borrower; (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 or Borrower's Liabilities; (e) if any of Borrower's
assets are attached, seized, subjected to a writ of distress warrant, 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 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 any section or chapter of the
Bankruptcy Reform Act of 1978 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 upon the death or incompetency of Borrower or
any such guarantor, or the appointment of a conservator for all or any
portion of Borrower's assets; or (g) 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; or (h) 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 due and payable forthwith.
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, upon Bank's demand therefor, any and all costs,
fees and expenses (including 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 hereunder.
This Note shall be deemed to have been submitted by Borrower to Bank at
Bank's principal place of business and shall be deemed to have been made
thereat. This Note shall be governed and controlled by the laws of the State
of Illinois as to interpretation, enforcement, validity, construction,
effect, choice of law and in all other respects.
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 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 AGREEMENT, AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
C/O Xxxxxxx Xxxxx, Inc. Xxxxxxx Xxxxx, Inc.
400 Locust, Box 961 By: /s/ Xxxxxx X. DeMeulenare (signature)
Xxx Xxxxxx, XX 00000 Its: President (title)
Address By: /s/ Xxxxxx X. Xxxxxxx (signature)
Its: Chief Financial Officer/Treasurer/
Secretary (title)
F77-3575 R-6-90
73
