EXHIBIT 10.1
AMENDED AND RESTATED
LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement") is made and
entered into as of the 1st day of September, 2000, by and between AMERICAN
NATIONAL BANK AND TRUST COMPANY OF CHICAGO ("Bank"), a national banking
association with its principal place of business at 120 South LaSalle
Street, Chicago, Illinois 60603, and WELLS-GARDNER ELECTRONICS CORPORATION,
("Borrower"), an Illinois corporation with its principal place of business
at 2701 North Kildare Avenue, Chicago, Illinois 60639.
RECITALS:
Borrower and Bank are parties to that certain Loan Agreement dated as
of June 5, 1998 (the "Prior Agreement") pursuant to which Bank made
available to Borrower an $8,000,000.00 revolving line of credit (the "Prior
Credit Line") and a $3,350,000 term loan (the "Term Loan").
Borrower has requested that Bank make available to Borrower an
increased revolving line of credit (as more fully defined below, the
"Revolving Credit") of up to $12,000,000.00.
Pursuant to the Prior Agreement and this Agreement, at Borrower's
request, Bank heretofore, now and from time to time hereafter may loan or
advance monies, extend credit and/or extend other financial accommodations,
to or for the benefit of Borrower.
Subject to the foregoing, Borrower and Bank deem it to be in their
best interests to, and this Agreement does, amend, restate and replace the
Prior Agreement in accordance with the provisions hereof.
NOW THEREFORE, in consideration of the foregoing Recitals, each of
which is an integral part hereof, and 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, and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, 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 7.10 below) whether primary, secondary, direct,
contingent, fixed or otherwise, including Rate Hedging Obligations
(as defined in subparagraph H 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.
<PAGE>
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; (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; and (iv) liabilities with respect to unfunded vested
benefits under plans covered by Title IV of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and
in effect from time to time.
C. LIBOR: the London Interbank Offered Rate, at any time and from
time to time.
D. LIBOR Agreement: the Amended and Restated London Interbank
Offered Rate Borrowing Agreement dated as of September 1, 2000, by
and between Bank and Borrower.
E. 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 from time to time hereafter executed by
and/or on behalf of Borrower and delivered to Bank.
F. 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).
G. Prime Rate: the rate, at any time and from time to time, most
recently published or announced by Bank as its prime rate, it
being understood that such rate may not be Bank's lowest rate or
most favorable rate of interest at any one time.
H. Rate Hedging Obligations: 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.
<PAGE>
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 Subject to all of the terms and conditions hereinafter contained,
Bank agrees to make available to Borrower a revolving line of credit (the
"Revolving Credit") with a maximum aggregate principal amount at any one
time outstanding of $12,000,000.00. Advances under the Revolving Credit,
including without limitation, prior advances made under the Prior Credit
Line, shall be made against and evidenced by a revolving note of Borrower of
even date herewith (the "Revolving Note") and all such advances shall mature
as therein provided. All advances under the Revolving Credit shall bear
interest (computed for the actual number of days elapsed on the basis of a
360-day year) until maturity (whether by lapse of time, acceleration or
otherwise) at the Prime Rate from time to time in effect or, at Borrower's
option exercised in accordance with the LIBOR Agreement, the rate determined
by adding 1.60% to LIBOR determined in accordance with the LIBOR Agreement.
Interest on advances under the Revolving Credit shall be payable on the
first day of each month during the term of the Revolving Credit commencing
October 1, 2000. All outstanding principal and all accrued and unpaid
interest on the Revolving Note, including without limitation all outstanding
principal and all accrued and unpaid interest on the Prior Credit Line,
shall be due and payable on August 31, 2003.
(A) The Revolving Credit shall be subject to all of the terms hereof,
may be availed of by Borrower from time to time, may be repaid by
Borrower and availed of by Borrower again. All loan requests under
the Revolving Credit shall be in multiples of $5,000.00 and in the
minimum amount of $5,000.00. Any change in the interest rate on
advances under the Revolving Credit resulting from a change in the
Prime Rate shall be and become effective as of and on the date of the
relevant change in the Prime Rate.
(B) The amount and date of each advance made under the Revolving
Credit and the amount and date of each payment of principal and
interest thereon shall be recorded by Bank on its books and records
and the amount of principal and interest shown on the Bank's books and
records as owing on the Revolving Note from time to time shall be
prima facie evidence of the amount so owing. The failure to so record
any amount or any error in so recording any such amount, however,
shall not limit or otherwise affect Borrower's obligations hereunder
or under the Revolving Note to repay the principal amount of the
Revolving Credit together with all accrued interest thereon.
(C) Borrower shall give Bank irrevocable telephonic notice prior to
1:00 p.m. (Chicago time) on the date it requests that any advance be
made to it under the Revolving Credit. Each notice shall be effective
upon receipt by Bank and shall specify the amount and date of such
advance. The proceeds of each advance under the Revolving Credit
shall be made available to Borrower at the principal office of Bank.
Borrower does hereby irrevocably confirm, ratify and approve all such
advances by Bank and does hereby indemnify Bank against losses,
liabilities and expenses (including court costs and attorneys' fees)
and shall hold Bank harmless with respect thereto.
<PAGE>
2.2 Subject to all of the terms and conditions contained in the Prior
Agreement, as amended and restated hereby, Bank loaned to Borrower
$3,350,000 (the "Term Loan") evidenced by an installment note of Borrower
dated June 5, 1998 (the "Installment Note"). Principal under the
Installment Note shall bear interest (computed for the actual number of days
elapsed on the basis of a 360-day year) until maturity (whether by lapse of
time, acceleration or otherwise) at the Prime Rate from time to time in
effect or, at Borrower's option exercised in accordance with the LIBOR
Agreement, the rate determined by adding 2.25% to LIBOR from time to time
determined in accordance with the LIBOR Agreement. Interest shall be paid
on the first day of each month commencing on July 1, 1998. Interest and
$55,833 in principal shall be paid on the first day of each month, in
accordance with a five year amortization, commencing on February 1, 1999.
All outstanding principal and all accrued and unpaid interest on the
Installment Note shall be due and payable May 31, 2003. Any change in the
interest rate under the Installment Note resulting from a change in the
Prime Rate shall be and become effective as of and on the date of the
relevant change in the Prime Rate.
2.3 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 otherwise 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). Borrower may prepay any loan before its maturity date without
penalty, except for prepayment of any LIBOR Loan, which shall not be prepaid
on a date other than the last day of its Interest Period. 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.
2.4 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.
3. COMMITMENT FEE
[INTENTIONALLY OMITTED.]
<PAGE>
4. NEGATIVE PLEDGE
4.1 Borrower shall not, and shall not permit any of its subsidiaries
to create, 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) pledges or deposits made to secure payment of
worker's compensation insurance; (b) liens imposed by mandatory provisions
of law, such as for materials, mechanics, warehouses and other liens arising
in the ordinary course of business; (c) 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; (d) 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 (e)
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.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS
5.1 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 Borrower's Articles of
Incorporation, By-Laws or similar document, or 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; (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; and (f) since December 31, 1999, there has been no
material adverse change in the financial condition of Borrower and no change
to the information reported in Part I, Item 3 of Borrower's Form 10-K for
December 31, 1999, year end.
<PAGE>
5.2 Borrower warrants and represents to and covenants with Bank that
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 Borrower's ability to repay Borrower's Liabilities or
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; or (c) incur Indebtedness except for
(i) renewals or extensions of existing Indebtedness and interest thereon,
(ii) Indebtedness that is unsecured, in an amount approved by Bank and 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 therefor to the payment of Borrower's Liabilities, and
(iii) leases of new personal property which are for less than one year, or
which are for more than one year provided that all such leases do not
exceed, in the aggregate, $500,000.00 in outstanding total payments to
maturity.
5.3 Borrower warrants and represents to and covenants with Bank 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, financial
statements, which shall include, but not be limited to, balance sheets,
income statements and statements of cash flow of Borrower prepared in
accordance with generally accepted accounting principles, consistently
applied, audited by a firm of independent certified public accountants
selected by Borrower and acceptable to Bank; (b) as soon as available but
not later than forty-five (45) days after the end of each quarterly fiscal
period of Borrower, financial statements of Borrower, certified by Borrower
to be prepared in accordance with generally accepted accounting principles,
consistently applied, and to fairly present the financial position and
results of operations of Borrower for such period (the "Quarterly Financial
Statements"); (c) copies on the date of filing of all reports by Borrower to
the Securities and Exchange Commission, including without limitation, all
forms 8-K, 10-Q, 10-K, proxy statements and registration statements, and (d)
such other data and information (financial and otherwise) as Bank, from time
to time, may reasonably request.
5.4 Borrower warrants and represents to and covenants with Bank that
Borrower shall at all times maintain a "Tangible Net Worth" (as hereinafter
defined) in excess of $8,000,000 plus 50% of "Net Income" (as hereinafter
defined) earned during each year after 1998. As used herein, the term
"Tangible Net Worth" shall mean the book value of the tangible assets of
Borrower as determined in accordance with generally accepted accounting
principles, consistently applied, after subtracting therefrom the aggregate
book value of any intangible assets of Borrower included on its balance
sheet, including without limitation, prepaid expenses, goodwill and any
other assets reasonably deemed intangible by Bank, minus the aggregate of
all contingent and non-contingent liabilities of Borrower determined in
accordance with generally accepted accounting principles, consistently
applied. As used herein, the term "Net Income" shall mean the income after
taxes of Borrower as reported each year in its audited financial statements.
<PAGE>
5.5 Borrower warrants and represents to and covenants with Bank that
Borrower shall at all times maintain a ratio of the total liabilities of
Borrower to Tangible Net Worth below 2.5 to 1, and a ratio of current assets
of Borrower to current liabilities (including without limitation the balance
outstanding at any such time under the Credit Line) of Borrower above 1.3
to 1.
5.6 Borrower warrants and represents to and covenants with Bank that
Borrower shall maintain the respective ratios of "Funded Debt" (as
hereinafter defined) to "EBITDA" (as hereinafter defined) set forth below,
measured as of the end of each calendar quarter as set forth below:
Calendar Quarters Funded Debt/EBITDA
----------------------------------------------- ------------------
Calendar Quarter ending on September 30, 2000 7.5 to 1.0
Calendar Quarters ending on December 31, 2000 5.0 to 1.0
and March 31, 2001
Calendar Quarters ending on June 30, 2001 and 4.5 to 1.0
September 30, 2001
All Calendar Quarters ending on and after 4.0 to 1.0
December 31, 2001
As used herein, the term "Funded Debt" shall mean the total
outstanding amount of all bank debt (including without limitation all of
Borrower's Liabilities), capital leases and similar obligations of Borrower,
and the term "EBITDA" shall mean Borrower's earnings before interest, taxes,
depreciation and amortization for the twelve month period ended on the date
of determination, measured on a rolling four-quarter basis.
5.7 Borrower covenants and agrees to use Bank as its primary
depository, investment and disbursement point, maintaining demand deposit
balances sufficient to cover the cost of non-credit services in accordance
with Bank's determination. Borrower shall not maintain any depository,
investment or disbursement accounts in the United States at any bank or
financial institution other than Bank, except petty cash accounts located in
cities other than Chicago and located in the same city with an office or
facility operated by Borrower. Any such petty cash accounts at banks in
cities in which Bank or other subsidiaries of Bank's shareholder operates a
bank or branch shall be maintained at such bank or branch.
5.8 Borrower warrants and represents to and covenants with Bank that
the proceeds from the Revolving Credit shall be used for the working capital
and general business needs of Borrower and the proceeds from the Term Loan
was used for the acquisition of the coin door assets of Coin Controls, Inc.
<PAGE>
6. DEFAULT
6.1 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 scheduled principal or interest
payment or fails, after ten days' written notice, to pay any other 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 or any of the Other Agreements and such failure
continues for thirty (30) days after notice thereof, except default under
Sections 4 and 5 of this Agreement, which shall become Events of Default if
not cured within ten (10) days of their occurrence, without notice; (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 after the expiration of any
applicable cure period therein; (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 provided that in the case
of any such condition existing as to assets which, in the aggregate, are not
material in value to the Borrower's business, such condition shall not
become an Event of Default unless such condition continues for thirty days;
(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 unless Borrower is contesting the
liability for which such lien relates in good faith with adequate reserves;
(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 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 dissolution of Borrower, or the death or
incompetency of any Guarantor of Borrower's Liabilities; (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 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 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; or (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.
<PAGE>
6.2 All of Bank's rights and remedies under this Agreement and the
Other Agreements are cumulative and non-exclusive.
6.3 Upon an Event of Default or the occurrence of any one of the
events described in Paragraph 6.1, 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, all of Borrower's Liabilities
shall be immediately due and payable, forthwith.
7. GENERAL
7.1 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.
7.2 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.
7.3 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 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.
7.4 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.
7.5 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 by Borrower to Bank on demand.
<PAGE>
7.6 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.
7.7 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.
7.8 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 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, or (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. Borrower may not sell, assign or
transfer this Agreement, or the Other Agreements or any portion thereof.
7.9 This Agreement and the Other Agreements shall be governed and
controlled by, and construed in accordance with, the internal laws of the
State of Illinois applicable to contracts made and performed entirely in
Illinois, without reference to any choice of law rule, or any principles of
comity or any conflicts of law principles (whether of the State of Illinois
or any other jurisdiction) that would cause the application of the law of
any jurisdiction other than the State of Illinois.
<PAGE>
7.10 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) with respect to any consideration of or attempts to
enforce any rights of Bank against Borrower or any other Person which may be
obligated to Bank by virtue of this Agreement or the 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, then, in any such event, the
reasonable costs, fees and expenses incurred by Bank with respect to any and
all of the foregoing, shall be part of Borrower's Liabilities, payable by
Borrower to Bank on demand.
7.11 BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO BANK'S SOLE AND
ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS, INCLUDING WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, ANY CONTROVERSY, DISPUTE OR QUESTION, 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. BORROWER HEREBY
IRREVOCABLY CONSENTS TO THE EXERCISE OF JURISDICTION OVER ITS PERSON AND
PROPERTY BY, AND VENUE IN, ANY COURT OF COMPETENT JURISDICTION SITUATED IN
THE CITY OF CHICAGO, STATE OF ILLINOIS (WHETHER IT BE A COURT OF SUCH STATE,
OR A COURT OF THE UNITED STATES OF AMERICA SITUATED IN SUCH CITY AND STATE),
AND IN CONNECTION THEREWITH, AGREES TO SUBMIT TO, AND BE BOUND BY, THE
JURISDICTION AND VENUE OF SUCH COURT, ANY OBJECTION TO SUCH JURISDICTION AND
VENUE BEING EXPRESSLY WAIVED HEREBY. 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.
7.12 BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
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 DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR THEREWITH, (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,
OR (III) ARISING OUT OF, UNDER OR IN CONNECTION WITH ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
BORROWER OR BANK, AND AGREES THAT ANY SUCH ACTION, SUIT, COUNTERCLAIM OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year specified at the beginning hereof.
BORROWER:
WELLS-GARDNER ELECTRONICS CORPORATION
By:
----------------------------------
Print or Type
Name:
----------------------------------
Its:
---------------------------------
(If not signing as an individual)
Accepted this ___ day of September, 2000, in the City of Chicago,
State of Illinois.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By:
----------------------------------
Print or Type
Name:
----------------------------------
Its:
---------------------------------
