EXHIBIT 10.2
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American National Bank and
Trust Company of Chicago
REVOLVING NOTE (UNSECURED)
$12,000,000
Chicago, Illinois September 1, 2000
Due: August 31, 2003
FOR VALUE RECEIVED, the undersigned ("Borrower"), promises to pay to
the order of AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO ("Bank"),
at its principal place of business in Chicago, Illinois, or such other place
as Bank may designate from time to time hereafter, the principal sum of
TWELVE MILLION AND 00/100 Dollars ($12,000,000.00), or such lesser principal
sum as may then be owed by Borrower to Bank hereunder.
Borrower's obligations and liabilities to Bank under this Note
("Borrower's Liabilities") shall be due and payable on August 31, 2003.
This Note restates and, effective as of September 1, 2000, replaces a
Revolving Note (Unsecured) in the principal amount of $8,000,000.00, dated
June 5, 1998 executed by Borrower in favor of Bank (the "Prior Note") and is
not a repayment or novation of the Prior Note.
The unpaid principal balance of Borrower's Liabilities due hereunder
shall bear interest from the date of disbursement until paid, computed as
follows: (i) at the rate of interest announced or published publicly from
time to time by Bank as its prime or base rate of interest (the "Base Rate")
per annum (computed on the basis of a 360 day year and actual days elapsed),
or (ii) at Borrower's option exercised in accordance with and subject to the
terms of the Amended and Restated London Interbank Offered Rate ("LIBOR")
Borrowing Agreement dated September 1, 2000 (the "LIBOR Agreement"), by and
between Bank and Borrower, at the rate per annum determined by adding 1.60%
to LIBOR in accordance with the LIBOR Agreement; provided, however, that in
the event that any of Borrower's Liabilities are not paid when due, the
unpaid amount of Borrower's Liabilities shall bear interest after the due
date until paid at a rate equal to the sum of the rate that would otherwise
be in effect plus 3%.
The rate of interest to be charged by Bank to Borrower shall fluctuate
hereafter from time to time concurrently with, and in an amount equal to,
each increase or decrease in the Base Rate or with increases and decreases
in LIBOR under the LIBOR Agreement, whichever is applicable.
Accrued interest shall be payable by Borrower to Bank on the same day
of each month and at maturity, commencing with the 1st day of October, 2000,
or as billed by Bank to Borrower, at Bank's principal place of business, or
at such other place as Bank may designate from time to time hereafter.
After maturity, accrued interest on all of Borrower's Liabilities shall be
payable on demand.
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Borrower warrants and represents to Bank that Borrower shall use the
proceeds represented by this Note solely for proper business purposes and
consistently with all applicable laws and statutes.
Any deposits or other sums at any time credited by or payable or due
from Bank to Borrower, or any monies, cash, cash equivalents, securities,
instruments, documents or other assets of Borrower in the possession or
control of Bank or its bailee for any purpose, may be reduced to cash and
applied by Bank to or setoff by Bank against Borrower's Liabilities.
The occurrence of any one of the following events shall constitute a
default by the Borrower ("Event of Default") under this Note: (a) if
Borrower fails to pay any 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 or any guarantor of any of Borrower's Liabilities fails or neglects
to perform, keep or observe any term, provision, condition, covenant,
warranty or representation contained in this Note and such failure continues
for thirty (30) days after notice thereof, except default under Sections 4
and 5 of the Loan 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 an event of default under any agreement,
instrument or document heretofore, now or at any time hereafter delivered by
or on behalf of Borrower to Bank; (d) occurrence of a default or an event of
default under any agreement, instrument or document heretofore, now or at
any time hereafter delivered to Bank by any guarantor of Borrower's
Liabilities or by any person or entity which has granted to Bank a security
interest or lien in and to some or all of such person's or entity's real or
personal property to secure the payment of Borrower's Liabilities; (e) if
any of Borrower's assets are attached, seized, subjected to a writ, or are
levied upon or become subject to any lien, or come within the possession of
any receiver, trustee, custodian or assignee for the benefit of creditors
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 is enjoined, restrained or in any
way prevented by court order from conducting all or any material part of its
business affairs; (h) the death or incompetency of Borrower or any guarantor
of Borrower's Liabilities, or the appointment of a conservator for all or
any portion of Borrower's assets; (i) the revocation, termination or
cancellation of any guaranty of Borrower's Liabilities without written
consent of Bank; (j) if a contribution failure occurs with respect to any
pension plan maintained by Borrower or any corporation, trade or business
that is, along with Borrower, a member of a controlled group of corporations
or a controlled group of trades or businesses (as described in Sections
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414(b) and (c) of the Internal Revenue Code of 1986 or Section 4001 of the
Employee Retirement Income Security Act of 1974, as amended, "ERISA")
sufficient to give rise to a lien under Section 302(f) of ERISA; (k) if
Borrower or any guarantor of Borrower's Liabilities is in default in the
payment of any obligations, indebtedness or other liabilities to any third
party and such default is declared and is not cured within the time, if any,
specified therefor in any agreement governing the same; 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.
Upon the occurrence of an Event of Default, at Bank's option, without
notice by Bank to or demand by Bank of Borrower, all of Borrower's
Liabilities shall be immediately due and payable.
All of Bank's rights and remedies under this Note are cumulative and
non-exclusive. The acceptance by Bank of any partial payment made hereunder
after the time when any of Borrower's Liabilities become due and payable
will not establish a custom or waive any rights of Bank to enforce prompt
payment hereof. Bank's failure to require strict performance by Borrower of
any provision of this Note shall not waive, affect or diminish any right of
Bank thereafter to demand strict compliance and performance therewith. Any
waiver of an Event of Default hereunder shall not suspend, waive or affect
any other Event of Default hereunder. Borrower and every endorser waive
presentment, demand and protest and notice of presentment, protest, default,
non-payment, maturity, release, compromise, settlement, extension or renewal
of this Note, and hereby ratify and confirm whatever Bank may do in this
regard. Borrower further waives any and all notice or demand to which
Borrower might be entitled with respect to this Note by virtue of any
applicable statute or law (to the extent permitted by law).
Borrower agrees to pay, immediately upon demand by Bank, any and all
costs, fees and expenses (including reasonable attorneys' fees, costs and
expenses) incurred by Bank (i) in enforcing any of Bank's rights hereunder,
and (ii) in representing Bank in any litigation, contest, suit or dispute,
or to commence, defend or intervene or to take any action with respect to
any litigation, contest, suit or dispute (whether instituted by Bank,
Borrower or any other person) in any way relating to this Note or Borrower's
Liabilities, and to the extent not paid the same shall become part of
Borrower's Liabilities.
This Note shall be deemed to have been submitted by Borrower to Bank
and to have been made at Bank's principal place of business. This Note
shall be governed and controlled by, and construed in accordance with, the
internal laws of the State of 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.
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This Note is executed pursuant to a revolving line of credit under
which Borrower is indebted to Bank and evidences the aggregate unpaid
principal amount of all advances made or to be made by Bank to Borrower
under the Note. All advances and repayments hereunder shall be evidenced by
entries on the books and records of Bank which shall be presumptive evidence
of the principal amount and interest owing and unpaid on this Note, or any
renewal or extension thereof. The failure to so record any such amount or
any error so recording any such amount shall not, however, limit or
otherwise affect the obligations of Borrower hereunder or under any note to
repay the principal amount of Borrower's Liabilities together with all
interest accruing thereon.
Advances under this Note, and changes based on the exercise of any
option of Borrower hereunder, may be made by Bank upon oral or written
request of any person authorized to make such requests on behalf of Borrower
("Authorized Person"). Borrower agrees that Bank may act on requests which
Bank in good faith believes to be made by an Authorized Person, regardless
of whether such requests are in fact made by an Authorized Person. Any such
advance or change shall be conclusively presumed to have been made by Bank
to or for the benefit of Borrower. Borrower does hereby irrevocably
confirm, ratify and approve all such advances and changes by Bank and agrees
to indemnify Bank against any and all losses, liabilities and expenses
(including reasonable attorneys' fees) and shall hold Bank harmless with
respect thereto.
TO INDUCE BANK TO ACCEPT THIS NOTE, BORROWER IRREVOCABLY AGREES THAT,
SUBJECT TO BANK'S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS,
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 NOTE SHALL BE LITIGATED 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.
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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 NOTE OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH, (II) ARISING
FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS NOTE
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. BORROWER HEREBY
EXPRESSLY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR BANK TO
ACCEPT THIS REPLACEMENT NOTE.
WELLS-GARDNER ELECTRONICS CORPORATION
By:
_________________________________________
Print or Type
Name:___________________________
Its:
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