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Exhibit 10.13
TERM NOTE
$8,000,000.00 Chicago, Illinois
March 12, 1997
FOR VALUE RECEIVED, the undersigned, XXXXX-XXXX CONVENIENCE STORES,
INC., a Colorado corporation ("Borrower"), hereby unconditionally promises to
pay to the order of XXXXXX FINANCIAL, INC. ("Lender"), at its office 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the holder of
this Term Note may from time to time designate in writing, in lawful money of
the United States of America and in immediately available funds, the principal
sum of EIGHT MILLION AND 00/100 CENTS ($8,000,000.00) at such times as are
specified in accordance with the provisions of that certain Term and Loan and
Security Agreement dated as of March 12, 1997 between Lender and Borrower (as
the same may be amended, restated, modified or supplemented and in effect from
time to time, the "Loan Agreement").
This Term Note is one of the Notes referred to in, was executed and
delivered pursuant to, and evidences obligations of the Borrower under the Loan
Agreement, to which reference is hereby made for a statement of the terms and
conditions under which the loan evidenced hereby is made and is to be repaid
and for a statement of Xxxxxx's remedies upon the occurrence of an Event of
Default (as defined therein). The Loan Agreement is incorporated herein by
reference in its entirety. Capitalized terms used but not otherwise defined
herein are used in this Term Note as defined in the Loan Agreement.
Borrower further promises to pay interest on the outstanding unpaid
principal amount hereof from the date hereof until payment in full hereof at
the rate from time to time applicable to the Term Loan as determined in
accordance with the Loan Agreement.
Interest on this Term Note shall be payable at the rates, at the times
and from the dates specified in the Loan Agreement, on the date of any
prepayment hereof, at maturity, whether due by acceleration or otherwise, and
as otherwise provided in the Loan Agreement.
This Term Note is secured pursuant to the Loan Agreement and the Loan
Documents referred to therein, and reference is made thereto for a statement of
the terms and conditions of such security.
Borrower hereby waives demand, presentment and protest and notice of
demand, presentment, protest and nonpayment. Borrower also waives all rights
to notice and hearing of any kind upon the occurrence and continuance of an
Event of Default prior to the exercise by Lender of its right to repossess the
Collateral without judicial process or to replevy, attach or levy upon the
Collateral without notice or hearing.
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In addition to, and not in limitation of, the foregoing and the
provisions of the Loan Agreement, the undersigned further agrees, subject only
to any limitation imposed by applicable law, to pay all expenses, including
attorneys' fees and legal expenses, incurred by the holder of this Term Note in
endeavoring to collect any amounts payable hereunder which are not paid when
due, whether by acceleration or otherwise.
THIS TERM NOTE SHALL BE DEEMED TO HAVE BEEN DELIVERED AND MADE AT
CHICAGO, ILLINOIS AND SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED
TO CONFLICTS OF LAW PROVISIONS) AND JUDICIAL DECISIONS OF THE STATE OF
ILLINOIS.
This Term Note may not be changed, modified or terminated orally, but
only by an agreement in writing. Whenever possible each provision of this Term
Note shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Term Note shall be prohibited by
or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Term Note. Whenever in this
Term Note reference is made to Lender or Borrower, such reference shall be
deemed to include, as applicable, a reference to their respective permitted
successors and assigns and, in the case of Lender, any financial institutions
to which it has sold or assigned all or any part of its commitment to make the
Term Loan as permitted under the Loan Agreement. The provisions of this Term
Note shall be binding upon and shall inure to the benefit of such permitted
successors and assigns. Xxxxxxxx's successors and assigns shall include,
without limitation, a receiver, trustee or debtor in possession of or for
Borrower.
XXXXX-XXXX CONVENIENCE STORES, INC.,
a Colorado corporation
By:
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Name: Xxxxx Xxxxxx
Title: President
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