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EXHIBIT 10.1
REVOLVING LOAN AGREEMENT
The LOAN AGREEMENT (the "Agreement"), dated as of May 1st, 1995, is
entered into between FIRST MIDWEST CORPORATION OF DELAWARE, a Delaware
corporation (the "Borrower"), whose address is 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx
Xxxx, Xxxxxxxx, 00000 and LASALLE NATIONAL BANK, a national banking association
(the "Bank") , whose address is 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
RECITALS:
WHEREAS, the Borrower desires to borrow from the Bank up to the sum of
Seventeen Million Dollars ($17,000,000) in order to provide for Borrower's
working capital needs; and
WHEREAS, Bank is willing to lend to the Borrower up to Seventeen Million
Dollars ($17,000,000) in accordance with the terms, subject to the conditions
and in reliance on the representations, warranties and covenants set forth
herein and in the other documents and instruments entered into or delivered in
connection with or relating to the loan contemplated in the Agreement;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT:
1. COMMITMENTS OF THE BANK.
The Bank agrees to extend a revolving loan (the "Loan") to the Borrower in
the principal amount of up to Seventeen Million Dollars ($17,000,000), such
loan to be evidenced by the Note, and secured by securities described in the
Pledge Agreement (hereinafter defined) in accordance with terms and subject to
the conditions set forth in this Agreement, the Note and the Pledge Agreement.
Advances made by the Bank hereunder may be repaid and, subject to the terms and
conditions hereof borrowed again, up to but not including May 31, 1996.
2. CONDITIONS OF BORROWING.
Notwithstanding any other provision of this Agreement, the Bank shall not
be required to extend the Loan:
(a) if any Default (as such term is defined below) has occurred or any
event which, with the giving of notice or lapse of time, or both, would
constitute such a Default;
(b) if any litigation or governmental proceeding has been instituted or
threatened against the Borrower or any Subsidiary or any of its officers or
shareholders which
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in the sole discretion of the Bank will adversely affect the financial
condition or operations of the Borrower or such Subsidiary;
3. NOTE EVIDENCING BORROWING.
The Loan shall be evidenced by a promissory note (the "Note") executed by
the Borrower in the principal amount of $17,000,000 and shall be in the form
set forth in Exhibit A hereto. Without in any way limiting the term of the
Note:
(a) The Borrower shall pay interest on amounts outstanding under the
Note as provided herein. Borrower shall make principal payments of $500,000 on
the 1st day of each of the below identified quarters on which interest is due
commencing July 1, 1995. Principal so repaid may not be reborrowed. Interest
shall be payable quarterly, in arrears, commencing on July 1, 1995 and
continuing on the first day of each October, January, and April thereafter,
with a final payment of all outstanding amounts due under the Note, including,
but not limited to principal and interest if not sooner paid, on May 1, 1996.
The amounts outstanding from time to time shall bear interest calculated on the
actual number of days elapsed on the basis of a 360 day year, at a rate equal,
at the Borrower's option, to either (a) the London Inter-Bank Offered Rate
("LIBOR") plus 100 basis points, or (b) the Prime Rate (whichever rate is so
selected, the "Interest Rate").
For purposes of this Agreement, the term "Prime Rate" shall mean the
floating prime rate in effect from time to time as set by the Bank, and
referred to by the Bank as its Prime Rate. The Borrower acknowledges that the
Prime Rate is not necessarily the Bank's lowest or most favorable rate of
interest at any one time. The effective date of any change in the Prime Rate
shall for purposes hereof be the date the rate change is publicly announced by
the Bank.
LIBOR borrowings hereunder shall be for a period of one, two or three
months (the "Interest Period"). Prepayments of LIBOR borrowings shall be
permitted only at the conclusion of an Interest Period. Prepayments of LIBOR
borrowings prior to the conclusion of an Interest Period shall be subject to
penalty charges at the discretion of the Bank.
With respect to the renewal of any Loan, or any new borrowing hereunder,
in the event that deposits in the amount and for the term of the selected
Interest Period are unavailable to Bank, or that by reason or circumstances
affecting the LIBOR markets generally, adequate and reasonable means do not
exist for ascertaining the interest rate applicable to such LIBOR loan for the
selected Interest Period, Borrower shall either repay such loan or direct Bank
to convert such loan into a LIBOR or floating rate loan of a type which is
available on the last day of the then current Interest Period, said choice
between repayment or conversion to be solely at Borrower's option.
If it shall become unlawful (or contrary to any direction from or
requirement of any governmental authority having jurisdiction over Bank) for
Bank to honor its commitment or to continue to fund or maintain any Loan or to
perform its obligations hereunder, then upon demand
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by Bank to Borrower, if it is unlawful for Bank to honor its commitment to
make any loan, such commitment shall thereupon be cancelled and, if it is
unlawful for Bank to continue to fund or maintain any loan, Borrower shall
prepay without premium or penalty such loan together with accrued interest
thereon on the last day of the then current Interest Period or on such
earlier date as may be required by law.
Each request by Borrower for a LIBOR loan must be received by Bank no
later than 11:00 a.m. Chicago, Illinois time, on the day which is two days
prior to the day it is to be funded. Requests for all other loans must be
received by Bank no later than 11:00 a.m. Chicago, Illinois time, on the same
day it is to be funded.
(b) Borrower shall pay Bank a fee of 25 basis points on the unused
amount of the credit commitment available hereunder on a 360 day basis. Such
fee shall be paid on the same quarterly basis that interest is payable
hereunder.
(c) Any amount of principal or interest on the Note which is not paid
when due, whether at stated maturity, by acceleration or otherwise shall bear
interest payable on demand at an interest rate equal at all times to two percent
(2%) above the Interest Rate.
(d) If any payment to be made by the Borrower hereunder shall become due
on a Saturday, Sunday or Bank holiday under the laws of the State of Illinois,
such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing any interest in respect of such
payment.
4. PRINCIPAL PREPAYMENTS.
Prepayments are permitted at any time, and shall be applied to the next
succeeding principal payment due.
5. REPRESENTATIONS AND WARRANTIES.
To induce the Bank to make the Loan provided for herein, the Borrower
represents and warrants as follows:
(a) The Borrower: (i) is a corporation duly organized and validly
existing and in good standing under the laws of the State of Delaware; (ii) is
duly qualified as a foreign corporation and in good standing in all states in
which it is doing business except where the failure to so qualify would not have
a material adverse effect on the Borrower or its business; and (iii) has all
requisite power and authority, corporate or otherwise, to own, operate and lease
its properties and to carry on its business as now being conducted. The
Subsidiaries (hereinafter defined) are Illinois banking corporations, and have
all requisite power and authority, corporate or otherwise, to own, operate and
lease their property and to carry on each's business as now being conducted. The
Borrower and the Subsidiaries have made payment of all franchise and similar
taxes in the State of Illinois and in all of the respective jurisdictions in
which they are
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incorporated or qualified, and so far as such taxes are due and payable at the
date of the Agreement.
(b) The Borrower is or shall become the owner of 100% of the issued and
outstanding capital stock of Midwest Bank and Trust Company, The National Bank
of Monmouth, Midwest Bank of Hinsdale and Midwest Bank of XxXxxxx County
(collectively the "Subsidiaries"). Attached hereto as Exhibit B is a true,
correct and complete list of the shares of capital stock of the Subsidiaries
(the "Subsidiary Shares").
(c) The Subsidiary Shares have been duly authorized, legally and validly
issued, fully paid and nonassessable, and are owned by the Borrower free and
clear of all pledges, liens, security interest, charges or encumbrances, except,
upon consummation of the transactions contemplated herein, for the security
interest granted by the Borrower to the Bank. There are, as of the date hereof,
no outstanding options, rights or warrants obligating the Borrower or any
Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold,
additional shares of the capital stock of any Subsidiary or obligating the
Borrower or any Subsidiary to grant, extend or enter into any such agreement or
commitment.
(d) The financial statements of:
(i) the Borrower, all of which have heretofore been furnished to the
Bank, have been prepared in accordance with generally accepted accounting
principles consistently applied ("GAAP") and maintained by the Borrower
throughout the periods involved, and fairly present the financial condition of
the Borrower individually and on a consolidated basis at such dates specified
therein and the results of its operations for the periods then ended; and
(ii) the Subsidiaries, all of which have heretofore been furnished to
the Bank, to the best knowledge of the Borrower have been prepared in accordance
with GAAP and maintained by each Subsidiary throughout the periods involved, and
fairly present the financial condition of each such Subsidiary at such dates
specified therein and the results of its operation for the periods then entered.
(e) To the best knowledge of the Borrower, since the latest date of the
financial statements referred to in Section 5(d) above, there have been no
material changes in the assets, liabilities, or condition, financial or
otherwise, of the Borrower or any Subsidiary other than changes arising from
transactions in the ordinary course of business, and none of such changes has
been materially adverse.
(f) There are no actions, suits, proceedings or written agreements
pending, or to the best of the knowledge of the Borrower threatened or proposed,
against the Borrower or, to the best knowledge of the Borrower, against any
Subsidiary at law or in equity or before or by any federal, state, municipal, or
other governmental department, commission, board, or other administrative
agency, domestic or foreign, of a material nature; and neither of the Borrower
nor, to the best knowledge of the Borrower, any Subsidiary is in default with
respect to any order,
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writ, injunction, or decree of, or any written agreement with, any court,
commission, board or agency, domestic or foreign.
(g) all tax returns and reports of the Borrower and, to the best
knowledge of the Borrower, all Subsidiaries, required by law to be filed have
been duly filed, and all taxes, assessments, fees and other governmental charges
upon the Borrower and each Subsidiary or upon any of their properties or assets
which are due and payable have been paid, and the Borrower knows of no
additional assessment of a material nature against the Borrower or any
Subsidiary for taxes, or except as disclosed on the financial statements
referred to in Section 5(d) above, of any basis for any such additional
assessment.
(h) The Borrower's primary business is that of a bank holding company,
and all necessary regulatory approvals have been obtained for it to conduct its
business.
(i) The deposit accounts of each Subsidiary are insured by the Federal
Deposit Insurance Corporation ("FDIC").
(j) None of the Pledged Stock constitutes margin stock, as defined in
Regulation U of the Board of Governors of the Federal Reserve System ("FRS").
The foregoing representations and warranties shall survive the making of
this Agreement, and execution and delivery of the Note and the Pledge
Agreement, and shall be deemed to be continuing representations and warranties
until such time as the Borrower has satisfied all of its obligations to the
Bank.
6. NEGATIVE COVENANTS
The Borrower agrees that until the Borrower satisfies all of its
obligations to the Bank, including, but not limited to its obligations to pay
in full all principal, interest and other amounts owing in accordance with the
terms of this Agreement or the Note, the Borrower shall not itself, nor shall
Borrower cause, permit or allow any Subsidiary to:
(a) create, assume, incur, have outstanding, or in any manner become
liable in respect of any indebtedness for borrowed money, and, in the case of a
Subsidiary, indebtedness incurred in the ordinary course of the business of
banking and in accordance with applicable laws and regulations and safe and
sound banking practices. For purposes of this Agreement, the phrase
"indebtedness" shall mean and include: (i) all items arising from the borrowing
of money, which according to generally accepted accounting principles now in
effect, would be included in determining total liabilities as shown on the
balance sheet; (ii) all indebtedness secured by any lien in property owned by
the Borrower whether or not such indebtedness shall have been assumed; (iii) all
guarantees and similar contingent liabilities in respect to indebtedness of
others; and (iv) all other interest-bearing obligations evidencing indebtedness
in others;
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(b) create, assume, incur, suffer or permit to exist any mortgage,
pledge, deed of trust, encumbrance (including the lien or retained security
title of a conditional vendor) security interest, assignment, lien or charge of
any kind or character upon or with respect to any of their properties whether
owned at the date hereof or hereafter acquired, or assigned or otherwise convey
any right to receive income excepting only: (i) liens for taxes, assessments or
other governmental charges for the then current year or which are not yet due or
delinquent; (ii) liens for taxes, assessments or other governmental charges
already due, but the validity of which is being contested at the time in good
faith in such a manner as not to make the property forfeitable; (iii) liens and
charges incidental to current operation which are not due or delinquent; (iv)
liens for workmen's compensation awards not due or delinquent; (v) pledges or
deposits to secure obligations under workmen's compensation laws or similar
legislation; (vi) purchase money mortgages or other liens on real property; and
(vii) liens existing on the date hereof as shown on their financial statements;
(c) dispose by sale, assignment, lease or otherwise property or assets
now owned or hereafter acquired, outside the ordinary course of business in
excess of 10% of its consolidated assets in any fiscal year;
(d) merge into or consolidate with or into any other person, firm or
corporation;
(e) make any loans or advances whether secured or unsecured to any
person, firm or corporation, other than loans or advances made by the
Subsidiaries in the ordinary course of their banking business and in accordance
with applicable laws and regulations and safe and sound banking practices;
(f) engage in any business or activity not permitted by all applicable
laws and regulations, including without limitation, the Bank Holding Company Act
of 1954, the Illinois Banking Act, the Federal Deposit Insurance Act and any
regulations promulgated thereunder;
(g) make any loan or advance secured by the capital stock of another
bank or depository institution (except for loans made in the ordinary course of
business), or acquire the capital stock, assets or obligations of or any
interest in another bank or depository institution, without prior written
approval of the Bank;
(h) directly or indirectly create, assume, incur, suffer or permit to
exist any pledge, encumbrance, security interest, assignment, lien or charge of
any kind or character on the Subsidiary Shares or any other stock owned by the
Borrower;
(i) cause or allow the percent of the Subsidiary Shares to diminish as a
percentage of the outstanding capital stock of the Borrower;
(j) sell, transfer, issue, reissue, exchange or grant any option with
respect to the Subsidiary Shares;
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(k) redeem any of its capital stock, declare a stock dividend or split
or otherwise change the capital structure of Borrower or of any Subsidiary
without prior written approval of the Bank;
(l) breach or fail to perform or observe any of the terms and conditions
of the Note, the Pledge Agreement or any other document or agreement entered
into or delivered in connection with, or relating to, the Loan;
(m) engage in any unsafe or unsound banking practices; or
(n) violate any law or regulation, or any condition imposed by or
undertaking provided to the FRS, the FDIC or the Illinois Commissioner of Banks
and Trust Companies in connection with the Borrower's acquisition of the
Subsidiary Shares.
7. AFFIRMATIVE COVENANTS.
The Borrower agrees that until the Borrower satisfies all of its
obligations to the Bank, including, but not limited to its obligations to pay
in full all principal, interest and other amounts in accordance with the terms
of the Agreement, the Note and the Pledge Agreement, it shall:
(a) furnish and deliver to the Bank:
(i) as soon as practicable, and in no event later than forty-five (45)
days after the end of each of the first three calendar quarterly periods of the
Borrower and the Subsidiaries, a copy of: (1) the balance sheet, profit and
loss statement, surplus statement and any supporting schedules prepared in
accordance with generally accepted accounting principles consistently applied
and signed by the presidents and chief financial officers of the Borrower and
the Subsidiaries; and (2) all financial statements, including, but not limited
to, all call reports, filed with any state or federal bank regulatory authority;
(ii) as soon as practicable, and in no event later than ninety (90) days
after the end of each calendar year, a copy of: (1) the consolidated balance
sheets as of the end of such year and of the consolidated profit and loss and
surplus statements for the Borrower and the Subsidiaries for such year audited
by independent certified public accountants satisfactory to the Bank and
accompanied by an unqualified opinion; and (2) all financial statements and
reports, including, but not limited to call reports and annual reports, filed
annually with state or federal regulatory authorities;
(iii) as soon as practicable, and in no event later than forty-five (45)
days after the end of each calendar quarter, copies of the then current
loan/asset watch list, the substandard loan/asset list, the nonperforming
loan/asset list and other real estate owned list of the Subsidiaries;
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(iv) immediately after receiving knowledge thereof, notice in writing
of all charges, assessment, actions, suits and proceeding that are proposed or
initiated by, or brought before, any court or governmental department,
commission, board or other administrative agency, in connection with the
Borrower or any Subsidiary, other than ordinary course of business litigation
not involving the FRS, the FDIC or the Illinois Commissioner of Banks and Trust
Companies, which, if adversely decided, would not have a material effect on the
financial condition or operations of the Borrower or the Subsidiary; and
(v) promptly after the occurrence thereof, notice of any other matter
which has resulted in a materially adverse change in the financial condition or
operations of the Borrower or any Subsidiary;
(b) contemporaneously with the furnishing of a copy of each annual
report and of each quarterly statement provided pursuant to Section 7(a)(i) and
(ii) above, deliver to Bank, a certificate signed by the President and the
Treasurer of the Borrower, containing a computation of the then current
financial ratios specified in Subsections 7(c) through (j) of this Agreement,
and stating that no Default or unmatured Default has occurred or is continuing,
or, if there is any such event, describing such event, the steps, if any, that
are being taken to cure it, and the time within which such cure will occur;
(c) maintain such capital as is necessary to cause the Borrower to have
adequate capital in accordance with the regulations of the FRS and any
requirements or conditions that the FRS has or may impose on the Borrower;
(d) as of December 31, 1995 maintain such capital as is necessary to
cause the Subsidiaries to be classified as "well capitalized" institutions in
accordance with the regulations of the FDIC, currently measured on the basis of
information filed by Borrower in its quarterly Consolidated Report of Income and
Condition (the "Call Report") as follows:
(i) Total Capital to Risk-Weighted Assets of not less than 10%;
(ii) Tier 1 Capital to Risk-Weighted Assets of not less than 6%;
and
(iii) Tier 1 Capital to average Total Assets of not less than 5%
(For the purposes of this subsection (d) (iii) the average
Total Assets shall be determined on the basis of
information contained in the preceding four (4) Call
Reports);
(e) maintain tangible equity capital of no less than $28,000,000
commencing December 31, 1995. For the purposes of this Section 7(e), "tangible
equity capital" shall mean
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the sum of the common stock, surplus and retained earning accounts reduced by
the amount of any goodwill;
(f) cause the ratio of nonperforming loans to the primary capital of the
Subsidiaries to be not more than twenty five percent (25%) at all times. For
purposes of this Section 7(f), "primary capital" shall mean the sum of the
common stock, surplus and retained earning accounts plus the reserve for loan
and lease losses and "nonperforming loans" shall mean the sum of all non-accrual
loans and loans on which any payment is ninety (90) or more days past due;
(g) earn a minimum consolidated net income of no less than $2,700,000
commencing December 3l, 1995 and at all times thereafter;
(h) not pay dividends to shareholders on an annual basis of more than
twenty-five percent of Borrower's consolidated net income or $700,000, whichever
is the lesser amount;
(i) promptly pay and discharge all taxes, assessments and other
governmental charges imposed upon the Borrower or any Subsidiary or upon the
income, profits, or property of the Borrower or any Subsidiary and all claims
for labor, material or supplies which, if unpaid, might by law become a lien or
charge upon the property of the Borrower or any Subsidiary. Neither the
Borrower nor any Subsidiary shall be required to pay any such tax, assessment,
charge or claim, so long as the validity thereof shall be contested in good
faith by appropriate proceedings, and reserves therefor shall be maintained on
the books of the Borrower or any such Subsidiary and as such reserves are deemed
reasonably adequate by the Bank;
(j) maintain bonds and insurance and cause each Subsidiary to maintain
bonds and insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risk as is usually carried by
owners of similar businesses and properties;
(k) permit and cause each Subsidiary to permit the Bank through its
employees, attorneys, accountants or other agents, to inspect any of the
properties, corporate books and financial books and records of the Borrower and
each Subsidiary at such times and as often as the Bank reasonably may request;
and
(l) provide and cause each Subsidiary promptly to provide the
Bank with such other information concerning the business, operations, financial
condition and regulatory status of the Borrower and each Subsidiary as the Bank
may from time to time reasonably request.
8. COLLATERAL.
Pursuant to the Pledge Agreement, the Borrower has concurrently herewith
assigned, transferred, pledged and delivered to the Bank as collateral for all
of the Borrower's obligations
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from time to time to the Bank, the Subsidiary Shares and any other Pledged
Security (as defined in the Pledge Agreement) whether now or hereafter pledged.
9. EVENTS OF DEFAULT; DEFAULT; RIGHTS UPON DEFAULT.
The happening or occurrence of any of the following events or acts shall
each constitute a Default hereunder, and any such Default shall also constitute
a Default under the Note, the Pledge Agreement and any other loan document,
without right to notice or time to cure in favor of the Borrower except as
indicated below:
(a) if the Borrower fails to make payment fifteen (15) days after notice
by the Bank or where applicable upon demand, or fails to make any payments as
provided for herein;
(b) if there continues to exist any breach under any obligation of any
other documents executed pursuant to this Agreement including, without
limitation, the Note and the Pledge Agreement and such breach remains uncured
beyond the applicable time period, if any, specifically provided therefor;
(c) if any representation or warranty made in this Agreement shall
continue to be false when made or at any time during the term of this Agreement
or any extension thereof, or if the Borrower fails to perform or observe any
covenant or agreement contained in this Agreement fifteen (15) days after notice
by Bank;
(d) if the Borrower fails to perform or observe any covenant or
agreement contained in any other agreement between the Borrower or any
Subsidiary and the Bank, or if any condition contained in any agreement between
the Borrower or any Subsidiary and the Bank is not fulfilled and such failure
remains uncured beyond the applicable time period, if any, specifically provided
therefor;
(e) if the Borrower shall continue to fail to perform and observe, or
cause or permit any Subsidiary to fail to perform and observe any covenants
under this Agreement, including, without limitation, all affirmative and
negative covenants set forth in Sections 6 and 7 of this Agreement fifteen (15)
days after notice by the Bank;
(f) if the FRS, the FDIC, the Illinois Commissioner of Banks and Trust
Companies or other governmental agency charged with the regulation of bank
holding companies or depository institutions initiates any enforcement action,
suit or regulatory proceeding of any kind or character whatsoever against the
Borrower, any Subsidiary or any officer or director thereof, including, without
limitation, any action to impose restrictions that prevent or as a practical
matter impair the payment of dividends by any Subsidiary or the payments of any
debt by the Borrower or restrictions that make the payment for the dividends by
any Subsidiary or the payment of debt by the Borrower subject to prior
regulatory approval;
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(g) if any Subsidiary is notified that it is considered an institution
in "troubled condition" within the meaning of 12 U.S.C. Section 1831(i) and the
regulations promulgated thereunder, or if a conservator or receiver is appointed
for any Subsidiary;
(h) if the Borrower or any Subsidiary becomes insolvent or is unable to
pay its debts as they mature; or makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts as they mature; or
suspends transaction of its usual business, or if a trustee of any substantial
part of the assets of the Borrower or any Subsidiary is applied for or
appointed, and if appointed in a proceeding brought against the Borrower, the
Borrower by any action or failure to act indicates its approval of, consent to,
or acquiescence in such appointment, or within thirty (30) days such appointment
is not vacated or stayed on appeal or otherwise, or shall not otherwise have
ceased to continue in effect;
(i) if any proceedings involving the Borrower or any Subsidiary are
commenced by or against the Borrower or any Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law or statute of the federal government or any state government and
if such proceedings are instituted against the Borrower, the Borrower by any
action or failure to act indicates its approval of, consent to our acquiescence
therein, or an order shall be entered approving the petition in such proceedings
and within thirty (30) days after the entry thereof such order is not vacated or
stayed on appeal or otherwise, or shall not otherwise have ceased to continue in
effect; or
(j) if the Borrower or any Subsidiary continues to be in default in any
payment of principal or interest for any other obligation or in the performance
of any other term, condition or covenant contained in any agreement (including
but not limited to an agreement in connection with the acquisition of capital
equipment on a title retention or net lease basis), under which any such
obligation is created the effect of which default is to cause or permit the
holder of such obligation to cause such obligation to become due prior to its
stated maturity.
Upon the occurrence of a Default, the Bank shall have all rights and
remedies provided by applicable law and, without limiting the generality of the
foregoing, may, at its option, declare its commitments hereunder to be
terminated and the Note shall thereupon be and become forthwith, due and
payable, without any presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained
herein or in the Note or the Pledge Agreement to the contrary notwithstanding,
and may, also without limitation, appropriate and apply toward the payment of
the Note any indebtedness of the Bank to the Borrower however created or
arising, and may, also without limitation exercise any and all rights in and to
the collateral security referred to in Section 8 above and under the Pledge
Agreement. There shall be no obligation to liquidate any collateral pledged
hereunder in any order or with any priority or to exercise any remedy available
to the Bank in any order.
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10. MISCELLANEOUS.
(a) No failure or delay on the part of the Bank in exercising any right,
power or remedy hereunder shall operate as a waiver thereof. No single or
partial exercise of any such right, power or remedy shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Time is of the essence in the performance of the
covenants, agreements and obligations of the Borrower and each Subsidiary.
(b) This Agreement constitutes the entire agreement between the parties
and supersedes all prior agreements between the Bank and the Borrower with
respect to the subject matter hereof. No amendment, modification, termination
or waiver of any provision of this Agreement, the Pledge Agreement or the Note,
or consent to any departure by the Borrower therefrom, shall be effective except
for the specific purpose for which given. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances.
(c) All notices, requests, demands and other communications provided for
hereunder shall be: (i) in writing, (ii) made in one of the following manners,
and (iii) shall be deemed given (a) if and when personally delivered, (b) on the
next business day if sent by nationally recognized overnight courier addressed
to the appropriate party as set forth below, or (c) on the second business day
after being deposited in United States certified or registered mail, and
addressed as follows: if to Borrower at the address first indicated above,
Attention: President and if to Bank, at the address first indicated above,
Atention: Xxxx Xxxxx,
(d) This Agreement shall become effective when it shall have been
executed by the Borrower and the Bank and thereafter shall be binding upon and
inure to the benefit of the Borrower and the Bank and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior consent of
the Bank which may be given or denied in the Bank's sole and absolute
discretion.
(e) This Agreement and the Note shall be governed by the internal laws
of the State of Illinois, and for all purposes shall be construed in accordance
with the laws of said State.
(f) Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction; wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law.
(g) All covenants, agreements, representations and warranties made by
the Borrower herein shall, notwithstanding any investigation by or knowledge on
the part of the
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Bank, be deemed material and relied on by the Bank and shall survive the
execution and delivery to the Bank of this Agreement and the Note.
(h) This Agreement shall govern the terms of any extensions or renewals
to the Note, subject to any additional xxxxx and conditions imposed by the Bank
in connection with any such extension or renewal.
(i) The Borrower will pay all reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees) in connection with the
collection and enforcement of this Agreement, the Note, the Pledge Agreement and
any other instruments and documents to be delivered hereunder.
(j) Any accounting term not specifically defined herein shall be
construed in accordance with generally accepted accounting principles which are
applied in the preparation of the financial statements referred to in Section
5(C), and all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
(k) The Bank reserves the right to sell participations in this loan or
otherwise assign, transfer or hypothecate all or any part of this loan.
(l) All covenants, agreements, warranties, and representations of the
Borrower herein shall be deemed to have been made jointly and severally by the
Borrower and the Subsidiary.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
FIRST MIDWEST CORPORATION OF DELAWARE
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Its: President
--------------------------------
LASALLE NATIONAL BANK
By: /s/
--------------------------------
Its: F.VP.
--------------------------------
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FIRST AMENDMENT TO
REVOLVING LOAN AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT dated as of May 1, 1996
(the "Amendment"), is between FIRST MIDWEST CORPORATION OF DELAWARE, a Delaware
corporation (the "Borrower"), and LASALLE NATIONAL BANK, a national banking
association (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank entered into a Revolving Loan
Agreement, dated as of May 1, 1995 (the "Agreement"); and
WHEREAS, the Borrower and the Bank desire to amend the Agreement as more
fully described herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definition
shall have the respective meanings set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
2.1 Recitals to the Agreement. The Recitals provisions of the Agreement
are hereby amended as of the date hereof by deleting the figure "Seventeen
Million Dollars ($17,000,000)" in each place in which it appears and
substituting the figure "Eighteen Million Dollars ($18,000,000)" in lieu
thereof.
2.2 Amendment to Section 1 of the Agreement. Section 1 of the Agreement
is hereby amended as of the date hereof by restating it in its entirety, as
follows:
"1. COMMITMENT OF THE BANK.
The Bank agrees to extend a revolving loan (the "Loan") to the Borrower in
the principal amount not to exceed Eighteen Million Dollars ($18,000,000), such
Loan to be evidenced by the Note (as defined below), and secured by securities
described in the Pledge Agreement (hereinafter defined) in accordance with
terms and subject to the conditions set forth in this Agreement, the Note and
the Pledge Agreement. Advances made by the Bank hereunder may be repaid and,
subject to the terms and conditions hereof borrowed again, up to but not
including May 1, 1997."
2.3 Amendment to Section 3 of the Amendment. The first sentence of
Section 3 of the Agreement is hereby amended as of the date hereof by deleting
the figure "Seventeen Million Dollars ($17,000,000)" and substituting the figure
"Eighteen Million Dollars ($18,000,000)" in lieu thereof.
15
2.4 Amendment to Section 3(a) of the Agreement. The first paragraph of
Section 3(a) of the Agreement is hereby amended as of the date hereof by
restating it in its entirety, as follows:
"(a) The Borrower shall pay interest on amounts outstanding under the
Note as provided herein. Borrower shall make principal payments of
$500,000 on the 1st day of each of the below identified quarters on
which interest is due, commencing July 1, 1996. Interest shall be
payable quarterly, in arrears, commencing on July 1, 1996 and
continuing on the first day of each October, January, and April
thereafter, with a final payment of all outstanding amounts due under
the Note, including, but not limited to principal and interest if not
sooner paid, on May 1, 1997. The amounts outstanding from time to time
shall bear interest calculated on the actual number of days elapsed on
the basis of a 360 day year, at a rate equal, at the Borrower's option,
to either (a) the London Inter-Bank Offered Rate ("LIBOR") plus 100
basis points, or (b) the Prime Rate (whichever rate is so selected, the
"Interest Rate")."
3. WARRANTIES. To induce the Bank to enter into this Amendment, the
Borrower warrants that:
3.1 Authorization. The Borrower is duly authorized to execute and
deliver this Amendment and is and will continue to be duly authorized to borrow
monies under the Agreement, as amended hereby, and to perform its obligations
under the Agreement, as amended hereby.
3.2 No Conflicts. The execution and delivery of this Amendment and the
performance by the Borrower of its obligations under the Agreement, as amended
hereby, do not and will not conflict with any provision of law or of the charter
or by-laws of the Borrower or of any agreement binding upon the Borrower.
3.3 Validity and Binding Effect. The Agreement, as amended hereby, is a
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency or other similar laws of general application affecting
the enforcement of creditors' rights or by general principles of equity limiting
the availability of equitable remedies.
3.4 No Default. As of the date hereof, no Event of Default under
Section 9 of the Agreement, as amended by this Amendment, or event or condition
which, with the giving of notice or the passage of time, shall constitute an
Event of Default, has occurred or is continuing.
3.5 Warranties. As of the date hereof, the representations and
warranties in Section 5 of the Agreement are true and correct as though made on
such date, except for such changes as are specifically permitted under the
Agreement.
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16
4. CONDITIONS PRECEDENT. This Amendment shall become effective as of the
date above first written after receipt by the Bank of the following documents:
(a) This Amendment, duly executed by the Borrower;
(b) A Replacement Revolving Promissory Note in the form of Exhibit A-1
attached hereto, duly executed by the Borrower;
(c) First Amendment to Pledge and Security Agreement, duly executed by
the Borrower; and
(d) Such other documents and instruments as the Bank reasonably
requests.
5. GENERAL.
5.1 Law. This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois.
5.2 Successors. This Amendment shall be binding upon the Borrower and
the Bank and their respective successors and assigns, and shall inure to the
benefit of the Borrower and the Bank and their respective successors and
assigns.
5.3 Confirmation of the Agreement. Except as amended hereby, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
LASALLE NATIONAL BANK FIRST MIDWEST CORPORATION OF
DELAWARE
By: /s/ By: /s/ Xxxxxx X. Xxxxx
--------------------- ---------------------------
Its: S.V.P. Its: President
--------------------- ---------------------------
3
17
SECOND AMENDMENT TO
REVOLVING LOAN AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING LOAN AGREEMENT dated as of May 1, 1997
(this "Amendment"), is between FIRST MIDWEST CORPORATION OF DELAWARE, a
Delaware corporation (the "Borrower"), and LASALLE NATIONAL BANK, a national
banking association (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank entered into a Revolving Loan Agreement
dated as of May 1, 1995, as amended by a First Amendment thereto dated May 1,
1996 (collectively, the "Agreement"); and
WHEREAS, the Borrower and the Bank desire to amend the Agreement as more
fully described herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definition
shall have the respective meanings set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
2.1 Amendment to Section 1 of the Agreement. Section 1 of the Agreement
is hereby amended as of the date hereof by restating it in its entirety, as
follows:
"1. COMMITMENT OF THE BANK.
The Bank agrees to extend a revolving loan (the "Loan") to the Borrower in
the principal amount not to exceed Eighteen Million Dollars ($18,000,000), such
Loan to be evidenced by the Note (as defined below), and secured by securities
described in the Pledge Agreement (hereinafter defined) in accordance with
terms and subject to the conditions set forth in this Agreement, the Note and
the Pledge Agreement. Advances made by the Bank hereunder may be repaid and,
subject to the terms and conditions hereof borrowed again, up to but not
including May 1, 1998."
2.2 Amendment to Section 2 of the Agreement. Section 2 of the Agreement
is hereby amended by adding the following as new subsection (e) thereto:
"(e) The Loans may be advanced in the form of direct advances. Each
Loan shall be made available to the Borrower upon its written request,
from any person whose authority to so act has not been revoked by the
Borrower in writing previously received by the Bank. Such request must
be received by no later than 11:00 a.m. Chicago, Illinois time,
18
on the day it is to be funded. The proceeds of each Loan shall be made
available at the office of the Bank by credit to the account of the
Borrower or by other means requested by the Borrower and acceptable to
the Bank. The Bank is authorized to rely on the telephonic, telecopy or
telegraphic loan requests which the Bank believes in its good faith
judgment to emanate from a properly authorized representative of the
Borrower, whether or not that is in fact the case. The Borrower does
hereby irrevocably confirm, ratify and approve all such advances by the
Bank and does hereby indemnify the Bank against losses and expenses
(including court costs, reasonable attorneys' and paralegals' fees) and
shall hold the Bank harmless with respect thereto."
2.3 Amendment to Section 3 (a) of the Agreement. The first paragraph
of Section 3 (a) of the Agreement is hereby amended as of the date hereof by
restating it in its entirety, as follows:
"(a) The Borrower shall pay interest on amounts outstanding under the
Note as provided herein. Borrower shall make principal payments of
$500,000 on the 1st day of each of the below identified quarters on which
interest is due, commencing July 1, 1997. Interest shall be payable
quarterly, in arrears, commencing on July 1, 1997 and continuing on the
first day of each October, January, and April thereafter, with a final
payment of all outstanding amounts due under the Note, including, but not
limited to principal and interest if not sooner paid, on May 1, 1998. The
amounts outstanding from time to time shall bear interest calculated on
the actual number of days elapsed on the basis of a 360 day year, at a
rate equal, at the Borrower's option, to either (a) the London Inter-Bank
Offered Rate ("LIBOR") plus 100 basis points, or (b) the Prime Rate
(whichever rate is so selected, the "Interest Rate")."
3. WARRANTIES. To induce the Bank to enter into this Amendment, the
Borrower warrants that:
3.1 Authorization. The Borrower is duly authorized to execute and
deliver this Amendment and is and will continue to be duly authorized to borrow
monies under the Agreement, as amended hereby, and to perform its obligations
under the Agreement, as amended hereby.
3.2 No Conflicts. The execution and delivery of this Amendment and the
performance by the Borrower of its obligations under the Agreement, as amended
hereby, do not and will not conflict with any provision of law or of the charter
or by-laws of the Borrower or of any agreement binding upon the Borrower.
3.3 Validity and Binding Effect. The Agreement, as amended hereby,
is a legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity limiting the availability of equitable remedies.
2
19
3.4 No Default. As of the date hereof, no Event of Default under
Section 9 of the Agreement, as amended by this Amendment, or event or condition
which, with the giving of notice or the passage of time, shall constitute an
Event of Default, has occurred or is continuing.
3.5 Warranties. As of the date hereof, the representations and
warranties in Section 5 of the Agreement are true and correct as though made on
such date, except for such changes as are specifically permitted under the
Agreement.
4. CONDITIONS PRECEDENT. This Amendment shall become effective as of the
date above first written after receipt by the Bank of the following documents:
(a) This Amendment, duly executed by the Borrower;
(b) A Replacement Revolving Promissory Note in the form of Exhibit A-2
attached hereto, duly executed by the Borrower; and
(c) Such other documents and instruments as the Bank reasonably
requests.
5. GENERAL.
5.1 Law. This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois.
5.2 Successors. This Amendment shall be binding upon the Borrower and
the Bank and their respective successors and assigns, and shall inure to the
benefit of the Borrower and the Bank and their respective successors and
assigns.
5.3 Confirmation of the Agreement. Except as amended hereby, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
LASALLE NATIONAL BANK FIRST MIDWEST CORPORATION OF
DELAWARE
By: /s/ By: /s/ Xxxxxx X. Xxxxx
--------------------- ---------------------------
Its: Vice President Its: President
--------------------- ---------------------------
April 8, 1997
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