TERM NOTE
(For Term Loan Agreement; No Prepayment Premium)
$ 750,000.00 October 22, 1996
FOR VALUE RECEIVED, the undersigned borrower (the
Borrower ), promises to pay to the order of FIRSTAR BANK
ILLINOIS (the Bank ), at its main office in CHICAGO, ILLINOIS,
the principal sum of TWO HUNDRED TWENTY- FIVE THOUSAND AND NO/100
Dollars ($750,000.00).
Interest.
The unpaid principal balance will bear interest at any annual
rate of 8.625%.
Payment Schedule.
See Attached Payment Schedule Rider
Interest will be computed for the actual number of days
principal is unpaid, using a daily factor obtained by dividing
the stated interest rate by 360.
Principal amounts remaining unpaid after the maturity
thereof, whether t fixed maturity or by reason of acceleration of
maturity, shall bear interest from and after maturity until paid
at a rate of 2% per annum plus the rate otherwise payable
hereunder.
In no event will the interest rate hereunder exceed that
permitted by applicable law. If any interest or other charge is
finally determined by a court of competent jurisdiction to exceed
the maximum amount permitted by law, the interest or charge shall
be reduced to the maximum permitted by law, and the Bank may
credit any excess amount previously collected against the balance
due or refund the amount to the Borrower.
If any payment is not made on or before its due date, the
Bank may collect a delinquency charge of 5.00% of the unpaid
amount. Collection of the late payment fee shall not be deemed
to be a waiver of the Bank s right to declare a default
hereunder.
This Note may be prepaid in full or in part at any time
without premium. Prepayments of less than all the outstanding
principal amount of this Note shall be applied upon principal
payments in the inverse order of their maturities.
Without affecting the liability of any Borrower, endorser,
surety or guarantor, the Bank may, without notice, renew or
extend the time for payment, accept partial payments, release or
impair any collateral security for the payment of this Note, or
agree not to sue any party liable on it.
This Term Note constitutes the Note issued under a Term Loan
Agreement dated as of the date hereof between the Borrower and
Bank, to which Agreement reference is hereby made for a statement
of the terms under which the loan evidenced hereby was made and a
description of the terms and conditions upon which the maturity
of this Note may be accelerated, and for a description of the
collateral securing this Note.
The Borrower hereby acknowledges the receipt of a copy of the
Note.
(Individual Borrower) LASALLE NATIONAL TRUST, as trustee
under trust
Borrower Name (Organization)
(SEAL) Agreement No. 38160, dated 02/01/69
and not personally
Borrower Name N/A By /s/ Xxxxxxx Xxx,
Name and Title Xxxxxxx Xxx,
Vice President
By
Borrower Name N/A Name and Title
TERM LOAN AGREEMENT
This Term Loan Agreement (the Agreement ) is made and entered
into by and between the undersigned borrower (the Borrower ) and
the undersigned bank (the Bank ) as of the date set forth on the
last page of this Agreement.
ARTICLE I. LOANS
1.1 Terms for Advance(s). [Choose One:]
(X) Single Advance Term Loan. As of the date hereof, the
Borrower has obtained a term loan from the Bank in the
amount of $750,000.00 (the Loan Amount ). The term
loan is evidenced by a single promissory note of the
Borrower to the order of the Bank in the principal
amount of the Loan Amount and dated as of the date
hereof (the Note ).
( ) Multiple Advance Term Loan. Prior to N/A or the
earlier termination hereof, the Borrower may obtain
advances from the Bank in an aggregate amount not
exceeding $ N/A (the Loan Amount ). The term loans
will be evidenced by a single promissory note of the
Borrower to the Bank in the principal amount of the
Loan Amount and dated as of the date hereof (the
Note ). Although the Note will be expressed as
payable in the full Loan Amount, the Borrower will be
obligated to pay only the amounts actually disbursed
hereunder, together with accrued interest on the
outstanding balance at the rates and on the dates
specified therein and such other charges provided for
herein.
1.2 Advances and Paying Procedure. The Bank is authorized and
directed to credit any of the Borrower s accounts with the Bank
(or to the account the Borrower designates in writing) for all
loans made hereunder, and the Bank is authorized to debit such
account or any other account of the Borrower with the Bank for
the amount of any principal or interest due under the Note or
other amount due hereunder on the due date with respect thereto.
1.3 Closing Fee. The Borrower will pay the Bank a one-time
closing fee of $6000.00 contemporaneously with execution of this
Agreement. This fee is in addition to all other fees, expenses
and other amounts due hereunder.
1.4 Compensating Balances. The Borrower will maintain on deposit
with the Bank in non-interest bearing accounts average daily
collected balances, in excess of that required to support account
activity and other credit facilities extended to the Borrower by
the Bank, an amount at least equal to the sum of (i) $ N/A and
(ii) N/A % of the Loan Amount as computed on a monthly basis. If
the Borrower fails to keep and maintain such balances, it will
pay a deficiency fee, payable within five days after receipt of a
statement therefor calculated on the amount by which the
Borrower s average daily balances are less than the requirements
set forth above, computed at a rate equal to the rate set forth
in the Note.
1.5 Expenses and Attorneys Fees. The Borrower will reimburse
the Bank and any Participant (defined below) for all attorneys
fees and all other costs, fees and out-of-pocket disbursements
(including fees and disbursements of both inside counsel and
outside counsel) incurred by the Bank or any Participant in
connection with the preparation, execution, delivery,
administration, defense and enforcement of this Agreement or any
of the other Loan Documents (defined below), including fees and
costs related to any waivers or amendments with respect thereto
(examples of costs and fees include but are not limited to fees
and costs for: filling, perfecting or confirming the priority of
the Bank s lien, title searches or insurance, appraisals,
environmental audits and other reviews related to the Borrower,
any collateral or the loans, if requested by the Bank). The
Borrower will also reimburse the Bank and any Participant for all
costs of collection before and after judgment, and the costs of
preservation and/or liquidation of any collateral (including fees
and disbursements of both inside and outside counsel).
1.6 Conditions to Borrowing. The Bank will not be obligated to
make (or continue to make) advances hereunder unless (i) the Bank
has received executed originals of the Note and all other
documents or agreements applicable to the loans described herein,
including but not limited to the documents specified in Article
III (collectively with this Agreement the Loan Documents ), in
form and content Satisfactory to the Bank; (ii) if the loan is
secured, the Bank has received confirmation satisfactory to it
that the Bank has a properly perfected security interest,
mortgage or lien, with the proper priority; (iii) the Bank has
received certified copies of the Borrower s Articles as
Incorporation and By-Laws, or it Partnership Agreement (as
appropriate), certification of corporate or partnership status
satisfactory to the Bank and all other relevant documents; (iv)
the Bank has received a certified copy of a resolution or
authorization in form and content satisfactory to the Bank
authorizing the loan and all acts contemplated by this Agreement
and all related documents and confirmation of proper
authorization of all guaranties and other acts of third parties
contemplated hereunder (v) the Bank has been provided with an
Opinion of the Borrower s counsel in form and content
satisfactory to the Bank confirming the matters outlined in
Section 2.2 and such other matters as the Bank requests; (vi) no
default exists under this Agreement or under any other Loan
Documents, or under any other agreements by and between the
Borrower and the Bank; and (vii) all proceedings taken in
connection with the transactions contemplated by this Agreement
(including any required environmental assessments), and all
instruments, authorizations and other documents applicable
thereto, are satisfactory to the Bank and its counsel.
ARTICLE II. WARRANTIES AND COVENANTS
While any part of the credit granted to the Borrower under this
Agreement or the other Loan Documents is available or any
obligations under any of the Loan Documents are unpaid or
outstanding, the Borrower continuously warrants and agrees as
follows:
2.1 Accuracy of Information. All information, certificates or
statements given to the Bank pursuant to this Agreement and the
other Loan Documents will be true and complete when given.
2.2 Organization and Authority; Litigation. If the Borrower is a
corporation or partnership, the Borrower is a validly existing
corporation or partnership (as applicable) in good standing under
the laws of its state of organization, and has all requisite
power and authority, corporate or otherwise, and possesses all
licenses necessary, to conduct its business and own its
properties. The execution, delivery and performance of this
Agreement and the other Loan Documents (i) are within the
Borrower s power; (ii) have been duly authorized by proper
corporate or partnership action (as applicable); (iii) do not
require the approval of any governmental agency, other entity or
person; and (iv) will not violate any law, agreement or
restriction by which the Borrower is bound. This Agreement and
the other Loan Documents are the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in
accordance with their terms. There is no litigation or
administrative proceeding threatened or pending against the
Borrower which would, if adversely determined, have a material
adverse effect on the Borrower s financial condition or its
property.
2.3 Existence; Business Activities; Assets. The Borrower will
(i) preserve its corporate or partnership (as applicable)
existence, rights and franchises; (ii) not make any material
change in the nature or manner of its business activities; (iii)
not liquidate, dissolve, merge or consolidate with or into
another entity; and (iv) not sell, lease, transfer or otherwise
dispose of all or substantially all of its assets.
2.4 Use of Proceeds; Margin Stock; Speculation. Advances by the
Bank hereunder will be used exclusively by the Borrower for
working capital and other regular and valid purposes. The
Borrower will not use any of the loan proceeds to purchase or
carry margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System). No part of any of the
proceeds will be used for speculative investment purposes,
including, without limitation, speculating or hedging in the
commodities and/or futures market.
2.5 Environmental Matters. Except as disclosed in a written
schedule attached to this Agreement (if no schedule is attached,
there are no exceptions), there exists no uncorrected violation
by the Borrower of any federal, state or local laws (including
statutes, regulations, ordinances or other governmental
restrictions and requirements) relating to the discharge of air
pollutants, water pollutants or process waste water or otherwise
relating to the environment of Hazardous Substances as
hereinafter defined, whether such laws currently exist or are
enacted in the future (collectively Environmental Laws ). The
term Hazardous Substances will mean any hazardous or toxic
wastes, chemicals or other substances, the generation, possession
or existence of which is prohibited or governed by any
Environmental Laws. The Borrower is not subject to any judgment,
decree, order or citation, or a party to (or threatened with) any
litigation or administrative proceedings, which asserts that the
Borrower (i) has violated any Environmental Laws; (ii) is
required to clean up, remove or take remedial or other action
with respect to any Hazardous Substances (collectively Remedial
Action ); or (iii) is required to pay all or a portion of the
cost of any Remedial Action, as a potentially responsible party.
Except as disclosed on the Borrower s environmental questionnaire
provided to the Bank, there are not now, nor to the Borrower s
knowledge after reasonable investigation have there ever been,
any Hazardous Substances (or tanks or other facilities for the
storage of Hazardous Substances) stored, deposited, recycled or
disposed of on, under or at any real estate owned or occupied by
the Borrower during the periods that the Borrower owned or
occupied such real estate, which if present on the real estate or
in soils or ground water, could require Remedial Action. To the
Borrower s knowledge, there are no proposed or pending changes in
Environmental laws which would adversely affect the Borrower or
its business, and there are no conditions existing currently or
likely to exist while the Loan Documents are in effect which
would subject the Borrower to Remedial Action or other liability.
The Borrower currently complies with and will continue to timely
comply with all applicable Environmental Laws; and will provide
the Bank, immediately upon receipt, copies of any correspondence,
notice, complaint, order or other document from any source
asserting or alleging any circumstance or condition which
requires or may require a financial contribution by the Borrower
or Remedial Action or other response by or on the part of the
Borrower under Environmental Laws, or which seeks damages or
civil, criminal or punitive penalties from the Borrower for an
alleged violation of Environmental Laws.
2.6 Compliance with Laws. The Borrower has complied with all
laws applicable to its business and its properties, and has all
permits, licenses and approvals required by such laws, copies of
which have been provided to the Bank.
2.7 Restriction on Indebtedness. The Borrower will not create,
incur, assume or have outstanding any indebtedness for borrowed
money (including capitalized leases) except (i) any indebtedness
owing to the Bank, and (ii) any other indebtedness outstanding on
the date hereof, and shown on the Borrower s financial statements
delivered to the Bank prior to the date hereof, provided that
such other indebtedness will not be increased.
2.8 Restriction on Liens. The Borrower will not create, incur,
assume or permit to exist any mortgage, pledge, encumbrance or
other lien or levy upon or security interest in any of the
Borrower s property now owned or hereafter acquired, except (i)
taxes and assessments which are either not delinquent or which
are being contested in good faith with adequate reserves
provided; (ii) easements, restrictions and minor title
irregularities which do not, as a practical matter, have an
adverse effect upon the ownership and use of the affected
property; (iii) liens in favor of the Bank; and (iv) other liens
disclosed in writing to the Bank prior to the date hereof.
2.9 Restriction on Contingent Liabilities. The Borrower will not
guarantee or become a surety or otherwise contingently liable for
any obligations of others, except pursuant to the deposit and
collection of checks and similar matters in the ordinary course
of business.
2.10 Insurance. The Borrower will maintain insurance to such
extent, covering such risks and with such insurers as is usual
and customary for businesses operating similar properties and as
is satisfactory to the Bank including insurance for fire and
other risks insured against by extended coverage, public
liability insurance and workers compensation insurance; and will
designate the Bank as loss payee with a Lender s Loss Payable
endorsement on any casualty policies and take such other action
as the Bank may reasonably request to ensure that the Bank will
receive (subject to no other interests) the insurance proceeds on
the Bank s collateral.
2.11 Taxes and Other Liabilities. The Borrower will pay and
discharge, when due, all of its taxes, assessments and other
liabilities, except when the payment thereof is being contested
in good faith by appropriate procedures which will avoid
foreclosure of liens securing such items and with adequate
reserves provided therefor.
2.12 Financial Statements and Reporting. The financial
statements and other information previously provided to the Bank
or provided to the Bank in the future are or will be complete and
accurate and prepared in accordance with generally accepted
accounting principles. There has been no material adverse change
in the Borrower s financial condition since such information was
provided to the Bank. The Borrower will (i) maintain accounting
records in accordance with generally recognized and accepted
principles of accounting consistently applied throughout the
accounting periods involved; (ii) provided the Bank with such
information concerning its business affairs and financial
condition (including insurance coverage) as the Bank may request;
and (iii) without request, provide the Bank with management-
prepared financial statements:
(X) quarterly within 60 days of the end of each quarter;
( ) monthly within N/A days of the end of each month;
and annual audited financial statements prepared by an accounting
firm acceptable to the Bank within 120 days of the end of each
fiscal year.
2.13 Inspection of Properties and Records; Fiscal Year. The
Borrower will permit representatives of the Bank to visit and
inspect any of the properties and examine any of the books and
records of the Borrower at any reasonable time and as often as
the Bank may reasonably desire. The Borrower will not change its
fiscal year.
2.14 Financial Status. The Borrower will maintain at all times:
(i) Net Working Capital in the amount of at least $ N/A.
(ii) Tangible Net Worth in the Amount of at least $ N/A.
(iii) Debt to Worth Ratio of not more than N/A.
(iv) Current Ratio of at least N/A.
(v) Capital Expenditures not to exceed $ N/A per fiscal year.
(vi) Cash Flow Coverage Ratio of at least N/A.
The terms used in this Section 2.14 will have the meanings set
forth in a supplement entitled Financial Definitions, a copy of
which the Borrower hereby acknowledges having received with this
Agreement and which is incorporated herein by reference.
ARTICLE III. COLLATERAL AND GUARANTIES
3.1 Collateral. This Agreement and the Note are secured by any
and all security interests, pledges, mortgages or liens now or
hereafter in existence granted to the Bank to secure indebtedness
of the Borrower to the Bank, including without limitation as
described in the following documents:
(X) Real Estate Mortgage(s)/Deed(s) of Trust dated OCTOBER 22,
1996
covering real estate located at 0000 X Xxxxxxxxx Xxxx,
Xxxxxxxx, XX 00000
(X) Security Agreement(s) dated OCTOBER 22, 1996
( ) Collateral Pledge Agreement(s) dated
( ) Other
3.2 Guaranties. This loan is guaranteed by LAIN & SONS, INC.
3.3 Credit Balances; Set off. As additional security for the
payment of the obligations described in the Loan Documents and
any other obligations of the Borrower to the Bank of any nature
whatsoever (collectively the Obligations ), the Borrower hereby
grants to the Bank a security interest in, a lien on and an
express contractual right to set off against all depository
account balances, cash and any other property of the Borrower now
or hereafter in the possession of the Bank. The Bank may, at any
time upon the occurrence of a default hereunder (notwithstanding
any notice requirements or grace/cure periods under this or other
agreements between the Borrower and the Bank) set off against the
Obligations whether or not the Obligations (including future
installments) are then due or have been accelerated, all without
any advance or contemporaneous notice or demand of any kind to
the Borrower, such notice and demand being expressly waived.
The information in this Article III is for information only and
the omission of any reference to the agreement will not affect
the validity or enforceability thereof. The rights and remedies
of the Bank outlined in this Agreement and the Documents
identified above are intended to be cumulative.
ARTICLE IV. DEFAULTS
4.1 Defaults. Notwithstanding any cure periods described below,
the Borrower will immediately notify the Bank in writing when the
Borrower obtains knowledge of the occurrence of any default
specified below. Regardless of whether the Borrower has given
the required notice, the occurrence of one or more of the
following will constitute a default:
(a) Nonpayment. The Borrower shall fail to pay (i) any interest
due on the Note or any fees, charges, costs or expenses
under the Loan Documents by 5 days after the same becomes
due; or (ii) any principal amount of the Note when due.
(b) Nonperformance. The Borrower or any guarantor of Borrower s
Obligations to the Bank ( Guarantor ) shall fail to perform
or observe any agreement, term, provision, condition, or
covenant (other than a default occurring under
(a),(c),(d),(e),(f) or (g) of this Section 4.1) required to
be performed or observed by the Borrower or any Guarantor
hereunder or under any other Loan Document or other
agreement with or in favor of the Bank.
(c) Misrepresentation. Any financial information, statement,
certificate, representation or warranty given to the Bank by
the Borrower or any Guarantor (or any of their
representatives) in connection with entering into this
Agreement or the other Loan Documents and/or any borrowing
thereunder, or required to be furnished under the terms
thereof, shall prove untrue or misleading in any material
respect (as determined by the Bank in the exercise of its
judgment) as of the time when given.
(d) Default on Other Obligations. The Borrower or any Guarantor
shall be in default under the terms of any loan agreement,
promissory note, lease, conditional sale contract or other
agreement, document or instrument evidencing, governing or
securing any indebtedness owing by the Borrower or any
Guarantor to the Bank or any indebtedness in excess of
$10,000 owing by the Borrower to any third party, and the
period of grace, if any, to cure said default shall have
passed.
(e) Judgments. Any judgment shall be obtained against the
Borrower or any Guarantor which, together with all other
outstanding unsatisfied judgments against the Borrower (or
such Guarantor), shall exceed the sum of $10,000 and shall
remain unvacated, unbonded or unstayed for a period of 30
days following the date of entry thereof.
(f) Inability to Perform; Bankruptcy/Insolvency. (i) the
Borrower or any Guarantor shall die or cease to exist; or
(ii) any Guarantor shall attempt to revoke any guaranty of
the Obligations described herein, or any guaranty becomes
unenforceable in whole or in part for any reason; or (iii)
any bankruptcy, insolvency or receivership proceedings, or
an assignment for the benefit of creditors, shall be
commenced under any federal or state law by or against the
Borrower or any Guarantor; or (iv) the Borrower or any
Guarantor shall become the subject of any out-of-court
settlement with its creditors; or (v) the Borrower or any
Guarantor is unable or admits in writing its inability to
pay its debts as they mature.
(g) Adverse Change; Insecurity. (i) there is a material
adverse change in the business, properties, financial
condition or affairs of the Borrower or any Guarantor, or in
any collateral securing the Obligations; or (ii) the Bank in
good xxxxx xxxxx itself insecure.
4.2 Termination of Loans; Additional Bank Rights. Upon the
occurrence of any of the events identified in Section 4.1, the
Bank may at any time (notwithstanding any notice requirements or
grace/cure periods under this or other agreements between the
Borrower and the Bank) (i) immediately terminate its obligation,
if any, to make additional loans to the Borrower; (ii) set off,
and/or (iii) take such other steps to protect or preserve the
Bank s interest in any collateral, including without limitation,
notifying account debtors to make payments directly to the Bank,
advancing funds to protect any collateral and insuring collateral
at the Borrower s expense; all without demand or notice of any
kind, all of which are hereby waived.
4.3 Acceleration of Obligations. Upon the occurrence of any of
the events identified in Sections 4.1(a) through 4.1(e) and
4.1(g), and the passage of any applicable cure periods, the Bank
may at any time thereafter, by written notice to the Borrower,
declare the unpaid principal balance of any Obligations, together
with the interest accrued thereon and other amounts accrued
hereunder and under the other Loan Documents, to be immediately
due and payable; and the unpaid balance will thereupon be due and
payable, all without presentation, demand, protest or further
notice of any kind, all of which are hereby waived, and
notwithstanding anything to the contrary contained herein or in
any of the other Loan Documents. Upon the occurrence of any
event under Section 4.1(f), the unpaid principal balance of any
Obligations, together with all interest accrued thereon and other
amounts accrued hereunder and under the other Loan Documents,
will thereupon be immediately due and payable, all without
presentation, demand, protest or notice of any kind, all of which
are hereby waived, and notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents. Nothing
contained in Section 4.1, Section 4.2 or this section will limit
the Bank s right to set off as provided in Section 3.3 or
otherwise in this Agreement.
4.4 Other Remedies. Nothing in this Article IV is intended to
restrict the Bank s rights under any of the Loan Documents or at
law, and the Bank may exercise all such rights and remedies as
and when they are available.
ARTICLE V. OTHER TERMS
5.1 Financial Definitions Supplement. If a Borrowing Base or
covenants regarding financial status apply to this loan, the
Financial Definitions Supplement identified in Sections 1.2 and
2.14 of this Agreement is hereby incorporated into this
Agreement. The Borrower acknowledges receiving a copy of such
Supplement.
5.2 Additional Terms; Addendum/Supplements. The warranties,
covenants, conditions and other terms described in this Section
and/or in the Addendum and/or other attached document(s)
referenced in this Section are incorporated into this Agreement:
FIXED ASSET EXPENDITURES. THE BORROWER WILL NOT EXPEND SUMS FOR
THE ACQUISITION OF FIXED ASSETS (INCLUDING CAPITALIZED LEASES) IN
ANY ONE FISCAL YEAR EXCEEDING $175,000.00 IN THE AGGREGATE.
ARTICLE VI. MISCELLANEOUS
6.1 Delay; Cumulative Remedies. No delay on the part of the Bank
in exercising any right, power or privilege hereunder or under
any of the other Loan Documents will operate as a waiver thereof,
nor will any single or partial exercise of any right, power or
privilege hereunder preclude other or further exercise thereof or
the exercise of any other right, power or privilege. The rights
and remedies herein specified are cumulative and are not
exclusive of any rights or remedies which the Bank would
otherwise have.
6.2 Relationship to Other Documents. The warranties, covenants
and other obligations of the Borrower (and the rights and
remedies of the Bank) that are outlined in this Agreement and the
other Loan Documents are intended to supplement each other. In
the event of any inconsistencies in any of the terms in the Loan
Documents, all terms will be cumulative so as to give the Bank
the most favorable rights set forth in the conflicting documents,
except that if there is a direct conflict between any preprinted
terms and specifically negotiated terms (whether included in an
addendum or otherwise), the specifically negotiated terms will
control.
6.3 Participations; Guarantors. The Bank may, at its option sell
all or any interests in the Note and other Loan Documents to
other financial institutions (the Participant ), and in
connection with such sales (and thereafter) disclose any
financial information the Bank may have concerning the Borrower
to any such Participant or potential Participant. From time to
time, the Bank may, in its discretion and without obligation to
the Borrower, any guarantor or any other third party, disclose
information about the Borrower and this loan to any guarantor,
surety or other accommodation party. This provision does not
obligate the Bank to supply any information or release the
Borrower from its obligation to provide such information, and the
Borrower agrees to keep all Guarantors advised of its financial
condition and other matters which may be relevant to the
Guarantors obligations to the Bank.
6.4 Successors. The rights, options, powers and remedies granted
in this Agreement and the other Loan Documents will extend to the
Bank and to its successors and assigns, will be binding upon the
Borrower and its successors and assigns and will be applicable
hereto and to all renewals and/or extensions hereof.
6.5 Indemnification. Except for harm arising from the Bank s
willful misconduct, the Borrower hereby indemnifies and agrees to
defend and hold the Bank harmless from any and all losses, costs,
damages, claims and expenses of any kind suffered by or asserted
against the Bank relating to claims by third parties arising out
of the financing provided under the Loan Documents or related to
any collateral (including, without limitation, the Borrower s
failure to perform its obligations relating to Environmental
Matters described in Section 2.5 above). This indemnification
and hold harmless provision will survive the termination of the
Loan Documents and the satisfaction of the Obligations due the
Bank.
6.6 Notice of Claims Against Bank; Limitation of Certain Damages.
In order to allow the Bank to mitigate any damages to the
Borrower from the Bank s alleged breach of its duties under the
Loan Documents or any other duty, if any, to the Borrower, the
Borrower agrees to give the Bank immediate written notice of any
claim or defense it has against the Bank, whether in tort or
contract, relating to any action or inaction by the Bank under
the Loan Documents, or the transactions related thereto, or of
any defense to payment of the Obligations for any reason. The
requirement of providing timely notice to the Bank represents the
parties agreed-to standard of performance regarding claims
against the Bank. Notwithstanding any claim that the Borrower
may have against the Bank, and regardless of any notice the
Borrower may have given the Bank, the Bank will not be liable to
the Borrower for consequential and/or special damages arising
therefrom, except those damages arising from the Bank s willful
misconduct.
6.7 Notices. Although any notice required to be given hereunder
or under any of the other Loan Documents might be accomplished by
other means, notice will always be deemed given when placed in
the United States Mail, with postage prepaid, or sent by
overnight delivery service, or sent by telex or facsimile, in
each case to the address set forth below or as amended.
6.8 Payments. Payments due under the Note and other Loan
Documents will be made in lawful money of the United States, and
the Bank is authorized to charge payments due under the Loan
Documents against any account of the Borrower. All payments may
be applied by the Bank to principal, interest and other amounts
due under the Loan Documents in any order which the Bank elects.
6.9 Applicable Law and Jurisdiction; Interpretation; Joint
Liability. This Agreement and all other Loan Documents will be
governed by and interpreted in accordance with the internal laws
of the state where the Bank s mail office is located, except to
the extent superseded by Federal law. Invalidity of any
provisions of this Agreement will not affect any other provision.
THE BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT SITUATED IN THE COUNTY OR FEDERAL
JURISDICTION WHERE THE BANK S OFFICE IS DESIGNATED IN THE NOTE AS
THE PLACE FOR PAYMENT IS LOCATED (OR, IN THE ABSENCE OF SUCH
DESIGNATION, THE BANK S MAIN OFFICE), AND WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS,
CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS AGREEMENT, THE
NOTE, THE COLLATERAL, ANY OTHER LOAN DOCUMENT, OR ANY
TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATION OF ANY OF THE FOREGOING. Nothing herein will
affect the Bank s rights to serve process in any manner permitted
by law, or limit the Bank s right to bring proceedings against
the Borrower in the competent courts of any other jurisdiction or
jurisdictions. This Agreement, the other Loan Documents and any
amendments hereto (regardless of when executed) will be deemed
effective and accepted only upon the Bank s receipt of the
executed originals thereof. If there is more than one Borrower,
the liability of the Borrowers will be joint and several, and the
reference to Borrower will be deemed to refer to all Borrowers.
6.10 Copies; Entire Agreement; Modification. The Borrower hereby
acknowledges the receipt of a copy of this Agreement and all
other Loan Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN
THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE
THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
THIS NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER
CREDIT AGREEMENTS NOW IN EFFECT BETWEEN YOU AND THIS LENDER. A
MODIFICATION OF ANY OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN
YOU AND THIS LENDER, WHICH OCCURS AFTER RECEIPT BY YOU OF THIS
NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR
IMPLIED MODIFICATIONS TO SUCH CREDIT AGREEMENTS ARE NOT
ENFORCEABLE AND SHOULD NOT BE RELIED UPON.
6.11 Waiver of Jury Trial. THE BORROWER AND THE BANK HEREBY
JOINTLY AND SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING RELATING TO ANY OF THE LOAN DOCUMENTS,
THE OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING THE
OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR CONNECTED
THERETO. THE BORROWER AND THE BANK EACH REPRESENTS TO THE OTHER
THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
IN WITNESS WHEREOF, the undersigned have executed this REVOLVING
CREDIT AGREEMENT AS OF OCTOBER 22, 1996.
(Individual Borrower) OAKRIDGE HOLDINGS, INC.
Borrower Name (Organization)
(SEAL) a MINNESOTA Corporation
Borrower Name N/A By /s/ X. X. Xxxxxx
Name and Title XXXXXX XXXXXX, PRES.
(SEAL)
By
Borrower Name N/A Name and Title
FIRSTAR BANK ILLINOIS (Bank)
By /s/ Xxxx Xxxxxxx, V.P.
Name and Title Xxxx Xxxxxxx, V.P.
Borrower Address: 000 X XXXXXXX XXXXXX, XXXXXXX, XX 00000
Borrower Telephone No.:
MARITAL PURPOSE STATEMENT
(To be completed by married Wisconsin residents)
Each Borrower who is married represents that this obligation is
incurred in the interest of his or her marriage or family.
Date: n/a
Printed Name:
Date: n/a
Printed Name:
Borrower Name Name and Title
PAYMENT SCHEDULE RIDER
This rider is made part of the Term Note (the Note ) by the
undersigned borrower (the Borrower ) in favor of FIRSTAR BANK
ILLINOIS (the Bank ) as of the date identified below.
The following payment schedule is hereby added to the Note:
Thereafter, principal and interest are payable in 59 installments
of $9,350.00 each, beginning February 1, 1997, and on the same
date of each consecutive month thereafter (except that if a given
month does not have such a date, the last day of such month),
plus a final payment equal to all unpaid principal and accrued
interest on DECEMBER 1, 2001, the maturity date.
Dated as of: OCTOBER 22, 1996
(Individual Borrower) OAKRIDGE HOLDINGS, INC.
Borrower Name (Organization)
a MINNESOTA Corporation
By /s/ Xxxxxx X. Xxxxxx
Xxxxxxxx Name N/A
Name and Title Xxxxxx Xxxxxx, Pres.
(Seal)
By
Borrower Name N/A Name and Title
ADDENDUM
(Land Trust)
This Addendum is made part of the Term Loan Agreement, Note
and Mortgage dated on or about 10/22/96 (the Land Trust
Documents ) by the undersigned borrowers (the Borrowers ) in
favor of FIRSTAR BANK ILLINOIS as of the date identified below.
The following provisions are hereby added to the Land Trust
Documents:
The Undersigned Beneficiary Borrower, being the sole
beneficiary of the Trustee Borrower, does hereby join with
the Trustee Borrower in the making of the Land Trust
Documents, including the assignment of rents contained in
the Mortgage, it being intended that the Borrowers are each
jointly, severally and primarily liable as makers of the
Land Trust Documents and are each liable for the payment and
performance of all obligations under the Land Trust
Documents, including, without limitation, the making of all
representations and warranties contained in the Land Trust
Documents, and neither of the Borrowers shall be deemed a
surety, accommodation maker or guarantor.
Notwithstanding the foregoing, this instrument is signed by
the undersigned Trustee Borrower, not individually, but
solely as Trustee under a certain Trust Agreement known as
Trust No. 38160. Said Trust Agreement is hereby made a part
hereof and any claims against Trustee which may result from
the signing of the Land Trust Documents shall be payable
only out of any trust property which may be held thereunder,
and said Trustee shall not be personally liable for the
performance of any of the terms and conditions of the Land
Trust Documents or the validity or condition of title of
said property or for any agreement with respect thereto.
Any and all personal liability of the undersigned Trustee is
hereby expressly waived by the parties hereto and the
respective successors and assignees.
Dated as of 10/22/96
OAKRIDGE CEMETERY (HILLSIDE), INC. LASALLE NATIONAL TRUST
Beneficiary Borrower (Organization) Trustee Borrower
a Illinois Corporation (Organization)
By: /s/ X. X. Xxxxxx By: /s/ Xxxxxxx Xxx
Name: Xxxxxx Xxxxxx Name: Xxxxxxx Xxx
Title: President Title: Vice President
By:
Name:
Title:
(Individual Beneficiary Borrower)
(Seal)
Beneficiary Borrower Name: N/A
(Seal)
Beneficiary Borrower Name: N/A
BUSINESS SECURITY AGREEMENT
(FOR USE WITH FIRSTAR LOAN DOCUMENTS ONLY)
This Business Security Agreement ( Agreement ) is made and
entered into by the undersigned borrower, guarantor and/or other
obligor (the Debtor ) in favor of FIRSTAR BANK ILLINOIS (the
Bank ) as of the date set forth on the last page of this
Agreement.
ARTICLE 1. SECURITY INTEREST
1.1 Grant of Security Interest. The Debtor hereby grants a
security interest in and collaterally assigns the Collateral
(defined below) to the Bank to secure all of the Debtor s
Obligations (defined below) to the Bank. The intent of the
parties hereto is that the Collateral secures all Obligations of
the Debtor to the Bank, whether or not such Obligations exist
under this Agreement or any other agreements, whether now or
hereafter existing, between the Debtor and the Bank or in favor
of the Bank, including, without limitation, any note, any loan or
security agreement, any lease, any mortgage, deed of trust or
other pledge of an interest in real or personal property, any
guaranty, any letter of credit or banker s acceptance, any
agreement for any other services or credit extended by the Bank
to the Debtor even though not specifically enumerated herein, and
any other agreement with Bank (together and individually, the
Loan Documents ).
1.2 Collateral means all of the following whether now owned or
existing or hereafter acquired by the Debtor (or by the Debtor
with spouse), wherever located (including all documents, general
intangibles, additions and accessions, spare and repair parts,
special tools, replacements, returned or repossessed goods and
books and records relating to the following; and all proceeds and
products of the following) [Check all that apply]:
(X) All accounts, instruments, documents, chattel paper,
general intangibles, contract rights, all investment
property (including any securities entitlements and/or
securities accounts held by Debtor), securities and
certificates of deposit, and all funds on deposit with and
all property in the possession of the Bank or any other
depository institution;
(X) All inventory;
(X) All equipment;
(X) All fixtures; and
( ) Specific Collateral (the following, whether constituting
equipment, inventory or fixtures):
The terms set forth in this Agreement shall have the meanings set
forth in the Uniform Commercial Code as adopted in the state
where the Bank s main office is located, unless otherwise defined
herein.
1.3 Obligations means all the Debtor s debts (except for
consumer credit if the Debtor is a natural person), liabilities,
obligations, convenants, warranties, and duties to the Bank (plus
its affiliates including any Elan entity), whether now or
hereafter existing or incurred, whether liquidated or
unliquidated, whether absolute or contingent, whether arising out
of the Loan Documents or otherwise, and regardless of whether
such Obligations arise out of existing or future credit granted
by the Bank to any Debtor, to any Debtor and others, to others
guaranteed, endorsed or otherwise secured by any Debtor or to any
debtor-in-possession or other successor-in-interest of any
Debtor, and including principal, interest, fees, expenses and
charges relating to any of the foregoing.
ARTICLE II. WARRANTIES AND COVENANTS
In addition to all other warranties and covenants of the Debtor
under the Loan Documents which are expressly incorporated herein
as part of this Agreement and while any part of the credit
granted the Debtor under the Loan Documents is available or any
Obligations of the Debtor to the Bank are unpaid or outstanding,
the Debtor continuously warrants and agrees as follows:
2.1 Debtor s Name, Location; Notice of Location Changes. The
Debtor s name and organizational structure has remained the same
during the past five (5) years. The Debtor will continue to use
only the name set forth with the Debtor s signature unless the
Debtor gives the Bank prior written notice of any change.
Furthermore, the Debtor shall not do business under another name
nor use any trade name without giving ten (10) days prior written
notice to the Bank. The address appearing in Schedule A below is
the Debtor s chief executive office and principal place of
business; and all Collateral shall be located at such address or
the other addresses listed on Schedule A except to the extent the
Debtor has provided prior written notice to the Bank of any
change of address/new location.
2.2 Status of Collateral. All collateral is genuine and validly
existing. Except for items of insignificant value or as
otherwise reflected in writing by the Debtor to the Bank under a
borrowing base or otherwise, (i) Collateral constituting
inventory, equipment and fixtures is in good condition, not
obsolete and is either currently saleable or usable; and (ii)
Collateral constituting accounts, contract rights, notes, chattel
paper and other third-party obligations to pay is fully
enforceable in accordance with its terms and not subject to
return, dispute, Set off, credit allowance or adjustment, except
for discounts for prompt payment. Unless the Debtor provides the
Bank with written notice to the contrary, the Debtor has no
notice or knowledge of anything that would impair the ability of
any third-party obligor to pay any debt to the Debtor when due.
2.3 Ownership; Maintenance of Collateral, Restrictions of Liens
and Dispositions. The Debtor is the sole owner of the Collateral
free of all liens, claims, other encumbrances and security
interests except as permitted in writing by the Bank. The Debtor
shall; (i) maintain the Collateral in good condition and repair
(reasonable wear and tear excepted), and not permit its value to
be impaired; (ii) not permit waste, removal or loss of identity
of the Collateral; (iii) keep the Collateral free from all liens,
executions, attachments, claims, encumbrances and security
interests (other than the Bank s paramount security interest and
those permitted in writing by the Bank); (iv) defend the
Collateral against all claims and legal proceedings by persons
other than the Bank; (v) pay and discharge when due all taxes,
levies and other charges or fees upon the Collateral except for
payment of taxes contested by the Debtor in good faith by
appropriate proceedings so long as no levy or lien has been
imposed upon the Collateral; (vi) not lease, sell or transfer the
Collateral to any party nor move it to any new location outside
of the ordinary course of business; (vii) not permit the
Collateral, without the consent of the Bank, to become a fixture
or an accession to other goods; (viii) not permit the Collateral
to be used in violation of any applicable law, regulation or
policy of insurance; and (ix) as to the Collateral consisting of
instruments and chattel paper, preserve the Bank s rights in it
against all other parties. Notwithstanding the above, the Debtor
may sell, lease or transfer inventory in the ordinary course of
its business provided that no sale, lease or transfer shall
include any transfer or sale in satisfaction (partial or
complete) of a debt owed by the Debtor; title will not pass to
buyer until the Debtor physically delivers the goods to buyer or
the Debtor ships the goods F.O.B. to buyer s destination; and
sales and/or leases to the Debtor s affiliates shall be for fair
market value, cash on delivery, with the proceeds remitted to the
Bank.
2.4 Maintenance of Security Interest; Purchase Money Security
Interests. The Debtor shall take any action requested by the
Bank to preserve the Collateral and to establish the value of,
the priority of, to perfect, to continue the perfection of or to
enforce the Bank s interest in the Collateral and the Bank s
rights under this Agreement; and shall pay all costs and expenses
related thereto. The Debtor and the Bank intend to maintain the
full effect of any purchase money security interest granted in
favor of the Bank notwithstanding the fact that the Collateral so
purchased is also pledged as security for other Obligations under
the Loan Documents.
2.5 Collateral Inspections; Modifications and Changes in
Collateral. At reasonable times, the Bank may examine the
Collateral and the Debtor s records pertaining to it, wherever
located, and make copies of such records at the Debtor s expense;
and the Debtor shall assist the Bank in so doing. Without the
Bank s prior written consent, the Debtor shall not alter, modify,
discount, extend, renew or cancel any Collateral, except for
ordinary discounts for prompt payment on accounts, physical
modifications to the inventory occurring in the manufacturing
process or alterations to equipment which do not materially
affect its value. The Debtor shall promptly notify the Bank in
writing of any material change in the condition of the Collateral
and of any change in location of the Collateral.
2.6 Collateral Records, Reports and Statements. The Debtor shall
keep accurate and complete records respecting the Collateral in
such form as the Bank may approve. At such times as the Bank may
require, the Debtor shall furnish to the Bank any
records/information the Bank might require, including, without
limitation, a statement certified by the Debtor and in such form
and containing such information as may be prescribed by the Bank
showing the current status and value of the Collateral.
2.7 Chattel Paper, Instruments, Etc. Chattel Paper, instruments,
drafts, notes, acceptances, and other documents which constitute
Collateral shall be on forms satisfactory to the Bank. The
Debtor shall promptly mark chattel paper to indicate
conspicuously the Bank s security interest therein, shall not
deliver any chattel paper or negotiable instruments to any other
entity and, upon request, shall deliver all original chattel
paper, instruments, drafts, notes, acceptances and other
documents which constitute Collateral to the Bank.
2.8 United States Government Contracts. If any accounts or
contract rights arose out of contracts with the United States or
any of its departments, agencies or instrumentalities, the Debtor
shall promptly notify the Bank and execute any writings required
by the Bank so that all money due or to become due under such
contracts shall be assigned to the Bank under the Federal
Assignment of Claims Act.
2.9 Environmental Matters. Except as disclosed in a written
schedule attached to this Agreement (if no schedule is attached,
there are no exceptions), there exists no uncorrected violation
by the Debtor of any federal, state or local laws (including
statutes, regulations, ordinances or other governmental
restrictions and requirements) relating to the discharge of air
pollutants, water pollutants or process waste water or otherwise
relating to the environment or Hazardous Substances as
hereinafter defined, whether such laws currently exist or are
enacted in the future (collectively Environmental Laws ). The
term Hazardous Substances shall mean any hazardous or toxic
wastes, chemicals or other substances, the generation, possession
or existence of which is prohibited or governed by any
Environmental Laws. The Debtor is not subject to any judgment,
decree, order or citation, or a party to (or threatened with) any
litigation or administrative proceedings, which asserts that the
Debtor (i) has violated any Environmental Laws; (ii) is required
to clean up, remove or take remedial or other action with respect
to any Hazardous Substances (collectively Remedial Action ); or
(iii) is required to pay all or a portion of the cost of any
Remedial Action, as a potentially responsible party. There are
not now, or to the Debtor s knowledge after reasonable
investigation have there ever been, any Hazardous Substances (or
tanks or other facilities for the storage of Hazardous
Substances) stored, deposited, recycled or disposed of on, under
or at any real estate owned or occupied by the Debtor during the
periods that the Debtor owned or occupied such real estate, which
if present on the real estate or in soils or ground water, could
require Remedial Action. To the Debtor s knowledge, there are
no proposed or pending changes in Environmental Laws which would
adversely affect the Debtor or its business, and there are no
conditions existing currently or likely to exist while the Loan
Documents are in effect which would subject the Debtor to
Remedial Action or other liability. The Debtor currently
complies with and will continue to timely comply with all
applicable Environmental Laws; and will provide the Bank,
immediately upon receipt, copies of any correspondence, notice,
complaint, order or other document from any source asserting or
alleging any circumstance or condition which requires or may
require a financial contribution by the Debtor or Remedial Action
or other response by or on the part of the Debtor under
Environmental Laws, or which seeks damages or civil, criminal or
punitive penalties from the Debtor for an alleged violation of
Environmental Laws.
2.10 Insurance. The Debtor will maintain insurance to such
extent, covering such risks and with such insurers as is usual
and customary for businesses operating similar properties, and as
is satisfactory to the Bank, including insurance for fire and
other risks insured against by extended or comprehensive
coverage, public liability insurance and workers compensation
insurance; and will designate the Bank as loss payee with a
Lender s Loss Payable endorsement on any casualty policies and
take such other action as the Bank may reasonably request to
ensure that the Bank will receive (subject to no other interest)
the insurance proceeds of the Collateral. The Debtor hereby
assigns all insurance proceeds to and irrevocably directs, while
any Obligations remain unpaid, any insurer to pay to the Bank the
proceeds of all such insurance and any premium refund; and
authorizes the Bank to endorse the Debtor s name to effect the
same, to make, adjust or settle, in the Debtor s name, any claim
on any insurance policy relating to the Collateral; and, at the
option of the Bank, to apply such proceeds and refunds to the
Obligations or to restoration of the Collateral, returning any
excess to the Debtor.
ARTICLE III. COLLECTIONS
3.1 Deposit with the Bank. At any time the Bank may require that
all proceeds of Collateral received by the Debtor shall be held
by the Debtor upon an express trust for the Bank, shall not be
commingled with any other funds or property of the Debtor and
shall be turned over to the Bank in precisely the form received
(but endorsed by the Debtor, if necessary for collection) not
later than the business day following the day of their receipt.
All proceeds of Collateral received by the Bank directly or from
the Debtor shall be applied against the Obligations in such order
and at such times as the Bank shall determine.
ARTICLE IV. RIGHTS AND DUTIES OF THE BANK
In addition to all other rights (including Set off) and duties of
the Bank under the Loan Documents which as expressly incorporated
herein as a part of this Agreement, the following provisions
shall also apply:
4.1 Authority to Perform for the Debtor. The Debtor presently
appoints any officer of the Bank as the Debtor s attorney-in-fact
(coupled with an interest and irrevocable while any Obligations
remain unpaid) to do any of the following upon the occurrence of
an event of default by the Debtor hereunder: (i) to endorse or
place the name of the Debtor on any invoice or document of title
relating to accounts, drafts against customers, notices to
customers, notes, acceptances, assignments of government
contracts, instruments, financing statements, checks, drafts,
money orders, insurance claims or payments or other documents
evidencing payment or a security interest relating to the
Collateral; (ii) to receive, open and dispose of all mail
addressed to the Debtor and to notify the Post Office authorities
to change the address for delivery of mail addressed to the
Debtor to an address designated by the Bank; (iii) to do all such
other acts and things necessary to carry out the Debtor s duties
under this Agreement and the other Loan Documents; and (iv) to
perfect, protect and/or realize upon the Bank s interest in the
Collateral. If the Collateral includes funds or property in
depository accounts, the Debtor authorizes each of its depository
institutions to remit to the Bank, without liability to the
Debtor, all of the Debtor s funds on deposit with such
institution upon written direction by the Bank after default by
the Debtor hereunder. All acts by the Bank are hereby ratified
and approved, and the Bank shall not be liable for any acts of
commission or omission, nor for any errors of judgment or
mistakes of fact or law.
4.2 Verification and Notification; Bank s Rights. The bank may
verify Collateral in any manner, and the Debtor shall assist the
Bank in so doing. Upon the occurrence of a default hereunder,
the Bank may at any time and the Debtor shall, upon request of
the Bank, notify the account debtors to make payment directly to
the Bank; and the Bank may enforce collection of, sell, settle,
compromise, extend or renew the indebtedness of such account
debtors; all without notice to or the consent of the Debtor.
Until account debtors are so notified, the Debtor, as agent of
the Bank, shall make collections on the Collateral. The Bank may
at any time notify any bailee possessing Collateral of the Bank s
security interest and, upon the occurrence of a default
hereunder, direct such bailee to turn over the Collateral to the
Bank.
4.3 Collateral Preservation. The Bank shall use reasonable care
in the custody and preservation of any Collateral in its physical
possession but in determining such standard of reasonable care,
the Debtor expressly acknowledges that the Bank has no duty to:
(i) insure the Collateral against hazards; (ii) ensure that the
Collateral will not cause damage to property or injury to third
parties; (iii) protect it from seizure, theft or conversion by
third parties, third parties claims or acts of God; (iv) give to
the Debtor any notices received by the Bank regarding the
Collateral; (v) perfect or continue perfection of any security
interest in favor of the Debtor; (vi) perform any services,
complete any work-in-process or take any other action in
connection with the management or maintenance of the Collateral;
or (vii) sue or otherwise effect collection upon any accounts
even if the Bank shall have made a demand for payment upon
individual account debtors. Notwithstanding any failure by the
Bank to use reasonable care in preserving the Collateral, the
Debtor agrees that the Bank shall not be liable for consequential
or special damages arising therefrom.
ARTICLE V. DEFAULTS AND REMEDIES
The Bank may enforce its rights and remedies under this Agreement
upon default. A default (as defined in the Loan Documents) shall
occur if the Debtor fails to comply with the terms of any Loan
Documents, and said default is not cured within 15 days of notice
thereof.
5.1 Cumulative Remedies; Notice; Waiver. In addition to the
remedies for default set forth in the Loan Documents, the Bank
upon default shall have all other rights and remedies for default
provided by the Uniform Commercial Code, as well as any other
applicable law and this Agreement, INCLUDING, WITHOUT LIMITATION,
THE RIGHT TO REPOSSESS, RENDER UNUSABLE AND/OR DISPOSE OF THE
COLLATERAL WITHOUT JUDICIAL PROCESS. The rights and remedies
specified herein are cumulative and are not exclusive of any
rights or remedies which the Bank would otherwise have. With
respect to such rights and remedies:
(a) Assembling Collateral; Storage; Use of the Debtor
Name/Other Property. The Bank may require the Debtor to
assemble the Collateral and to make it available to the Bank
at any convenient place designated by the Bank. The Debtor
recognizes that the Bank will not have an adequate remedy in
Law if this obligation is breached and accordingly, Debtor s
obligation to assemble the Collateral shall be specifically
enforceable. The Bank shall have the right to take
immediate possession of said Collateral and the Debtor
irrevocably authorizes the Bank to enter any of the premises
wherever said Collateral shall be located, and to store,
repair, maintain, assemble, manufacture, advertise and sell,
lease or dispose of (by public sale or otherwise) the same
on said premises until sold, all without charge or rent to
the Bank. The Bank is hereby granted an irrevocable license
to use, without charge, the Debtor s equipment, inventory,
labels, patents, copyrights, franchises, names, trade
secrets, trade names, trademarks and advertising matter and
any property of a similar nature; and the Debtor s rights
under all licenses and franchise agreements shall inure to
the Bank s benefit. Further, the Debtor releases the Bank
from obtaining a bond or surety with respect to any
repossession and/or disposition of the Collateral.
(b) Notice of Disposition. Written notice, when required by
law, sent to any address of the Debtor in this Agreement, at
least ten (10) calendar days (counting the day of sending)
before the date of proposed disposition of the Collateral is
reasonable notice. Notification to account debtors by the
Bank shall not be deemed a disposition of the Collateral.
(c) Possession of Collateral/Commercial Reasonableness. The
Bank shall not, at any time, be obligated to either take or
retain possession or control of the Collateral. With
respect to Collateral in the possession or control of the
Bank, the Debtor and the Bank agree that as a standard for
determining commercial reasonableness, the Bank need not
liquidate, collect, sell or otherwise dispose of any of the
Collateral if the Bank believes, in good faith, that
disposition of the Collateral would not be commercially
reasonable, would subject the Bank to third-party claims or
liability, that other potential purchasers could be
attracted or that a better price could be obtained if the
Bank held the Collateral for up to one year; and the Bank
shall not then be deemed to have retained the Collateral in
satisfaction of the Obligations. Furthermore, the Bank may
sell the Collateral on credit (and reduce the Obligations
only when payment is received from the buyer), at wholesale
and/or with or without an agent or broker; and the Bank need
not complete process or repair the Collateral prior to
disposition.
(d) Waiver by the Bank. The Bank may permit the Debtor to
attempt to remedy any default without waiving its rights and
remedies hereunder, and the Bank may waive any default
without waiving any other subsequent or prior default by the
Debtor. Furthermore, delay on the part of the Bank in
exercising any right, power or privilege hereunder or at law
shall not operate as a waiver thereof, nor shall any single
or partial exercise of such right, power or privilege
preclude other exercise thereof or the exercise of any other
right, power or privilege. No waiver or suspension shall be
deemed to have occurred unless the Bank has expressly agreed
in writing specifying such waiver or suspension.
ARTICLE VI. MISCELLANEOUS
All other provisions in the Loan Documents are expressly
incorporated as a part of this Agreement.
IN WITNESS WHEREOF, the undersigned has/have executed this
BUSINESS SECURITY AGREEMENT as of OCTOBER 22, 1996.
Oakridge Cemetery (Hillside, Inc. Oakridge Holding, Inc.
Debtor name (Organization Debtor Name (Organization)
an Illinois Corporation a Minnesota Corporation
By: /s/ X. X. Xxxxxx By: /s/ X. X. Xxxxxx
Name & Title: Xxxxxx Xxxxxx, Name & Title: Xxxxxx Xxxxxx,
President President
Lain & Sons, Inc. Glenoak Cemetery Company
Debtor Name (Organization) Debtor Name (Organization)
an Illinois Corporation an Illinois Corporation
By: /s/ X. X. Xxxxxx By: /s/ X. X. Xxxxxx
Name & Title: Xxxxxx Xxxxxx, Name & Title: Xxxxxx Xxxxxx,
President President
SCHEDULE A
IDENTIFICATION, CHIEF EXECUTIVE OFFICE AND COLLATERAL
LOCATIONS LIST
Taxpayer Identification Number: 00-0000000
(or Social Security Number)
Name of Landlord or Warehouse
(If applicable)
Address of Chief Executive Office: Street:
City State Zip Code
0000 X Xxxxxxxxx Xx
Xxxxxx
Hillside, IL 60106
City State Zip Code Name of Landlord or Warehouse
(If applicable)
Other Collateral Locations List Street
(Include name of third party
[landlord, warehouse, etc.] City State Zip Code
If applicable and collateral
location address)
Name of Landlord or Warehouse Name of Landlord or Warehouse
(If applicable) (If applicable)
0000 000xx Xxxxxx Xxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
City State Zip Code City State Zip
