EXHIBIT 10.1
REVOLVING LOAN AGREEMENT
This REVOLVING LOAN AGREEMENT ("Agreement"), dated as of July 23, 2004, is
entered into between COMMUNITY SHORES BANK CORPORATION, a Michigan corporation
(the "Borrower"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (the "Bank").
RECITALS:
WHEREAS, the Borrower owns 100% of the issued and outstanding capital
stock of Community Shores Bank, a Michigan state bank (the "Subsidiary"; and the
capital stock of such Subsidiary shall be referred to herein as the "Subsidiary
Shares").
WHEREAS, the Borrower desires to borrow from the Bank up to the sum of
Five Million Dollars ($5,000,000).
WHEREAS, the Borrower has requested and the Bank is willing to make loans
to the Borrower in accordance with the terms, subject to the conditions and in
reliance upon 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 this 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. COMMITMENT OF THE BANK. The Bank agrees to make such revolving loans at such
times as the Borrower may from time to time request, until, but not including,
August 1, 2005 (the "Maturity Date") and in such amounts as the Borrower may
from time to time request, provided however, that the aggregate principal
balance of all revolving loans outstanding at any time shall not exceed the
principal amount of Five Million Dollars ($5,000,000) (the "Loan"), which Loan
shall be secured by the Pledge and Security Agreement of even date herewith
between the Borrower and the Bank (the "Pledge Agreement"). The Loan made by the
Bank may be repaid and, subject to the terms and conditions hereof, borrowed
again up to, but not including the Maturity Date unless the Loan is otherwise
terminated or extended as provided in this Agreement.
2. CONDITIONS OF BORROWING. Notwithstanding any other provision of this
Agreement, the Bank shall not be required to extend the Loan:
(a) if, since the date of this Agreement and up to the agreed upon date of
the Loan, there has occurred, in the Bank's sole and complete discretion, a
material adverse change in the financial condition or affairs of the Borrower or
the Subsidiary;
(b) 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;
(c) if any litigation or governmental proceeding has been instituted or
threatened against the Borrower, the Subsidiary or any of their respective
officers or shareholders which, in the sole discretion of the Bank, could
materially adversely affect the financial condition or operations of the
Borrower or the Subsidiary;
(d) if all necessary or appropriate actions and proceedings shall not have
been taken in connection with, or relating to the transactions contemplated
hereby and all documents incident thereto shall not have been completed and
tendered for delivery, in form and substance satisfactory to the Bank;
(e) if the Borrower shall not have tendered for delivery the Revolving
Note (defined below) in form and substance satisfactory to the Bank; or
(f) if the Bank shall not have received, in form and substance
satisfactory to the Bank, all certificates, affidavits, schedules, resolutions,
opinions, notes and other documents which are provided for hereunder, or which
it may reasonably request.
3. NOTES; INTEREST RATE; PAYMENTS.
(a) Revolving Note. The Loan shall be evidenced by the Revolving Credit
Note substantially in the form attached hereto as Exhibit A (the "Revolving
Note"), dated as of the date hereof and maturing on August 1, 2005. At the time
of the disbursement under the Loan or a repayment made in whole or in part
thereon, an appropriate notation thereof shall be made on the books and records
of the Bank. All amounts recorded shall be conclusive and binding evidence of
the amounts advanced or repaid unless said recording was made in error.
(b) Interest Rate. The aggregate principal amount of the Loan outstanding
under the Revolving Note 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 to
the Prime Rate (as defined below) minus 0.35% (the "Interest Rate"). Anything
herein to the contrary notwithstanding, the per annum rate of interest
applicable to the Loan shall at all times equal at least three-and-one-half
percent (3.50%). For purposes of this Agreement, the "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.
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(c) Principal and Interest Payments. If not payable sooner pursuant to the
terms of this Agreement, the Loan shall be repaid as follows: (i) interest shall
be payable quarterly, in arrears, commencing on October 31, 2004 and continuing
on the last day of each January, April, July and October thereafter, on the
unpaid principal balance of the Loan outstanding from time to time; and (ii) a
final payment of all outstanding principal plus accrued interest shall be
payable on the Maturity Date.
(d) Default Rate. Any amount of principal or interest on the Revolving
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.
(e) Manner of Borrowing. Each Loan shall be made available to the Borrower
upon its written or verbal request, from any person whose authority to so act
has not been revoked by the Borrower in writing previously received by the Bank.
A request for Loan must be received by no later than 11:00 a.m. Chicago,
Illinois time, 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, attorneys' and paralegals' fees) and shall
hold the Bank harmless with respect thereto.
(f) Business Day. 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 of the principal amount of the Loan are
permitted at any time without penalty.
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 Michigan; (ii) is duly
qualified as a foreign corporation and is 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
Subsidiary is a Michigan state banking association and has all requisite power
and authority, corporate or otherwise, to own, operate and lease its property
and to carry on its business as now being conducted. The Borrower and the
Subsidiary have made payment of all franchise and similar taxes in the State of
Michigan and in all of the respective
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jurisdictions in which they are incorporated or qualified, insofar as such taxes
are due and payable at the date of this Agreement, except for any such taxes the
validity of which is being contested in good faith and for which proper reserves
have been set aside on the books of the Borrower or the Subsidiary, as the case
may be.
(b) The Subsidiary Shares have been duly authorized, legally and validly
issued, fully paid (and are assessable as provided by Michigan banking laws),
and are owned by the Borrower free and clear of all pledges, liens, security
interests, charges or encumbrances. There are, as of the date hereof, no
outstanding options, rights or warrants obligating the Borrower or the
Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold,
additional shares of the capital stock of the Subsidiary or obligating the
Borrower or the Subsidiary to grant, extend or enter into any such agreement or
commitment.
(c) 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 Subsidiary, 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 the Subsidiary throughout the
periods involved, and fairly present the financial condition of the
Subsidiary at such dates specified therein and the results of its
operations for the periods then entered.
(d) To the best knowledge of the Borrower, since the latest date of the
financial statements referred to in Section 5(c) above, there have been no
material changes in the assets, liabilities, or condition, financial or
otherwise, of the Borrower or the Subsidiary other than changes arising from
transactions in the ordinary course of business, and no such changes have been
materially adverse, whether in the ordinary course of business or otherwise. To
the best knowledge of the Borrower, neither the business nor the properties of
the Borrower or the Subsidiary have been materially and adversely affected in
any way, including, without limitation, as a result of any fire, explosion,
accident, strike, lockout, labor dispute, flood, drought, embargo, imposition of
governmental restrictions, confiscation by a governmental agency or acts of God.
(e) There are no actions, suits, proceedings or written agreements
pending, nor to the best of the knowledge of the Borrower threatened or
proposed, against the Borrower or, to the best knowledge of the Borrower, the
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, which are of a material nature. Neither the Borrower nor,
to the best knowledge of the Borrower, the Subsidiary is in default with respect
to any order, writ, injunction
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or decree of, or any written agreement with, any court, commission, board or
agency, domestic or foreign.
(f) All tax returns and reports of the Borrower and, to the best knowledge
of the Borrower, the Subsidiary, required by law to be filed have been duly
filed, and all taxes, assessments, fees and other governmental charges upon the
Borrower and the 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 the Subsidiary for
taxes, or, except as disclosed on the financial statements referred to in
Section 5(c) above, of any basis for any such additional assessment.
(g) The Borrower's primary business is that of a bank holding company. All
necessary regulatory approvals have been obtained for the Borrower to conduct
its business.
(h) The deposit accounts of the Subsidiary are insured by the Federal
Deposit Insurance Corporation ("FDIC").
(i) None of the Subsidiary Shares 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 Revolving Note, 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; including, but not
limited to the obligation to pay in full all principal, interest and other
amounts in accordance with the terms of this Agreement and the Revolving Note.
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 and the Revolving Note, the Borrower shall not, nor
shall the Borrower cause, permit or allow the Subsidiary to:
(a) create, assume, incur, have outstanding, or in any manner become
liable in respect of any indebtedness for borrowed money, except (I) trust
preferred securities in an amount of up to $5,000,000, (II) existing unsecured
subordinated indebtedness owed to officers, directors and shareholders of
Borrower or Community Shores LLC, which indebtedness is currently in the
aggregate amount of approximately $2,750,000, and (III) 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;
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(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;
(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 property whether owned at the date hereof
or hereafter acquired by the Borrower or the Subsidiary, or assign or otherwise
convey any right to receive income, except:
(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 in good faith in
such a manner as not to make the property forfeitable;
(iii) liens and charges incidental to current operations 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) liens existing on the date hereof as shown on the financial
statements; and
(vii) in the case of the Subsidiary, liens incurred in the ordinary
course of the business of banking and in accordance with applicable laws
and regulations and safe and sound banking practices;
(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, without the prior written consent of Bank;
(e) make any loans or advances whether secured or unsecured to any person,
firm or corporation, other than loans or advances (I) made by the Borrower to
the Subsidiary in an amount not exceeding $1,200,000, and (II) made by the
Subsidiary in the ordinary course of its banking
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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, Michigan banking laws, 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, with the exception that the Borrower may acquire up to,
but not exceeding, five percent (5%) of another bank or bank holding company;
(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 capital stock owned
by the Borrower, with the exception of liens to the State of Michigan in the
ordinary course of business under Michigan banking laws;
(i) cause or allow the percent of Subsidiary Shares to diminish as a
percentage of the outstanding capital stock of the Subsidiary;
(j) sell, transfer, issue, reissue, exchange or grant any option with
respect to the Subsidiary Shares;
(k) declare a stock dividend or more than 5% per year or split or
otherwise change the capital structure of Borrower or the Subsidiary, other than
issuance of trust preferred securities permitted under Section 6(a), without
prior written approval of the Bank;
(l) breach or fail to perform or observe any of the terms and conditions
of the Revolving Note 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 Michigan banking commission 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 and the Revolving Note, it shall:
(a) furnish and deliver to the Bank:
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(i) as soon as practicable, and in no event later than forty-five
(45) days after the end of each calendar quarter of the Borrower and the
Subsidiary, a copy of (1) all quarterly call reports of the Subsidiary,
and (2) all quarterly parent only call reports of the Borrower, 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 of its fiscal years, a copy of (1) the annual
audited financial statements of the Borrower, including consolidated
balance sheet, statement of income and retained earnings, statement of
cash flows for the fiscal year then ended and such other information
(including nonfinancial information) as the Bank may request, in
reasonable detail, prepared and certified 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 any state
or federal regulatory authority;
(iii) immediately after receiving knowledge thereof, notice in
writing of all charges, assessment, actions, suits and proceedings 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 the Subsidiary (other than litigation in
the ordinary course of business not involving the FRS, the FDIC or the
Michigan banking commission, which, if adversely decided, would not have a
material effect on the financial condition or operations of the Borrower
or the Subsidiary); and
(iv) 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 the Subsidiary;
(b) 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;
(c) maintain such capital as is necessary to cause the Subsidiary to be
classified as an "well capitalized" institution 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;
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(d) cause the ratio of nonperforming loans to the primary capital of the
Subsidiary to be not more than twenty-five percent (25%) at all times (for
purposes of this Section 7(d), "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);
(e) promptly pay and discharge all taxes, assessments and other
governmental charges imposed upon the Borrower or the Subsidiary or upon the
income, profits or property of the Borrower or the Subsidiary and all claims for
labor, material or supplies which, if unpaid, may by law become a lien or charge
upon the property of the Borrower or the Subsidiary. Neither the Borrower nor
the 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 the Subsidiary as are deemed reasonably adequate by the Bank;
(f) maintain bonds and insurance and cause the 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 in the same general area in which
the Borrower or the Subsidiary respectively operate and such additional bonds
and insurance as may be reasonably required by the Bank;
(g) permit and cause the 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
the Subsidiary at such times and as often as the Bank reasonably may request;
(h) promptly provide and cause the Subsidiary promptly to provide the Bank
with such other information concerning the business, operations, financial
condition and regulatory status of the Borrower and the Subsidiary as the Bank
may from time to time reasonably request. The Bank agrees that any non-public
information shall be kept confidential in accordance with the Bank's customary
practices and procedures for handling confidential information;
(i) ensure, and cause the Subsidiary to ensure, that no person who owns a
controlling interest in or otherwise controls the Borrower or the Subsidiary is
or shall be listed on the Specially Designated Nationals and Blocked Person List
or other similar lists maintained by the Office of Foreign Assets Control
("OFAC"), the Department of the Treasury or included in any Executive Orders,
(b) not use or permit the use of the proceeds of the Loan to violate any of the
foreign asset control regulations of OFAC or any enabling statute or Executive
Order relating thereto, and (c) comply, and cause the Subsidiary to comply, with
all applicable Bank Secrecy Act laws and regulations, as amended.
8. 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
(each, a "Default"), and any
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such default shall also constitute a Default under the Revolving Note and any
other loan document, without right to notice or time to cure in favor of the
Borrower:
(a) if the Borrower fails to make any payment, as provided for herein,
which failure continues for ten (10) days following written notice;
(b) if there continues to exist any breach under any obligation of any
other documents executed pursuant to this Agreement including, without
limitation, the Revolving Note which such breach continues for ten (10) days
following written notice, or if longer, beyond the applicable cure period, if
any, specifically provided therefor;
(c) if any representation or warranty made in this Agreement shall be
false when made or be false at any time during the term of this Agreement or any
extension hereof, or if the Borrower fails to perform or observe any covenant or
agreement contained in this Agreement, which such default or failure continues
for ten (10) days following written notice;
(d) if the Borrower fails to perform or observe any covenant or agreement
contained in any other agreement between the Borrower or the Subsidiary and the
Bank, or if any condition contained in any agreement between the Borrower or the
Subsidiary and the Bank is not fulfilled which such breach continues for ten
(10) days following written notice, or if longer, beyond the applicable cure
period, if any, specifically provided therefor;
(e) if the Borrower shall continue to fail to perform and observe, or
cause or permit the 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 which such
breach continues for ten (10) days following written notice, or if longer,
beyond the applicable cure period, if any, specifically provided therefor;
(f) if the FRS, the FDIC, the Michigan banking commission or other
governmental agency charged with the regulation of bank holding companies or
depository institutions: (i) issues to the Borrower or the Subsidiary, or
initiates any action, suit or proceeding to obtain against, impose on or require
from the Borrower or the Subsidiary, a cease and desist order or similar
regulatory order, the assessment of civil monetary penalties, articles of
agreement, a memorandum of understanding, a capital directive, a capital
restoration plan, restrictions that prevent or as a practical matter impair the
payment of dividends by the Subsidiary or the payments of any debt by the
Borrower, restrictions that make the payment of dividends by the Subsidiary or
the payment of debt by the Borrower subject to prior regulatory approval, a
notice or finding under Michigan banking laws, a notice or finding under Section
8(a) of the Federal Deposit Insurance Act, or any similar enforcement action,
measure or proceeding; or (ii) issues to any officer or director of the Borrower
or the Subsidiary, or initiates any action, suit or proceeding to obtain
against, impose on or require from any such officer or director, a cease and
desist order or similar regulatory order, a removal order, a suspension order,
or the assessment of civil monetary penalties;
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(g) if the Subsidiary is notified that it is considered an institution in
"troubled condition" within the meaning of 12 U.S.C. Section 1831i and the
regulations promulgated thereunder, or if a conservator or receiver is appointed
for the Subsidiary;
(h) if the Borrower or the Subsidiary (i) becomes insolvent or is unable
to pay its debts as they mature; (ii) makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts as they mature;
(iii) suspends transaction of its usual business; or (iv) if a trustee of any
substantial part of the assets of the Borrower or the Subsidiary is applied for
or appointed;
(i) if any proceedings involving the Borrower or the Subsidiary are
commenced by or against the Borrower or the Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law or statute of the federal government or any state government; or
(j) if the Borrower or the Subsidiary continue to be in default in any
payment of principal or interest for any other obligation in the amount of
$100,000 or more, or in the performance of any other term, condition or covenant
contained in any agreement having an obligation or value of $100,000 or more
(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 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
Revolving Note 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.
9. 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 the 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 or the Revolving Note, or consent to
any departure by the Borrower therefrom, shall be effective unless in writing
and signed by the Bank, and then such waiver or consent shall be effective only
for the
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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: Community Shores Bank Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
If to the Bank: LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party complying as to delivery with the terms
of this subsection.
(d) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
(e) 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, the Bank and their respective successors and
assigns; provided, that the Borrower shall not assign its rights hereunder or
any interest herein without the prior written consent of the Bank.
(f) 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 without giving effect to the choice of law
provisions of such State.
(g) 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 lack of enforceability 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.
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(h) All covenants, agreements, representations and warranties made by the
Borrower herein shall, notwithstanding any investigation by or knowledge on the
part of the 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.
(i) This Agreement shall govern the terms of any extensions or renewals of
the Note, subject to any additional terms and conditions imposed by the Bank in
connection with any such extension or renewal.
(j) The Borrower hereby represents that the indebtedness evidenced hereby
constitutes a loan made by the Bank to enable the Borrower to carry on a
commercial enterprise for the purpose of investment or profit; and that such
loan is a loan for business purposes under the intent and purview of the Indiana
Compiled Statutes.
(k) THE BANK AND THE BORROWER, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE IRREVOCABLY THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
LEGAL PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE NOTE, THE COLLATERAL OR ANY OTHER AGREEMENT EXECUTED OR
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF
CONDUCT OR COURSE OF DEALING IN WHICH THE BANK AND THE BORROWER ARE ADVERSE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK GRANTING ANY
FINANCIAL ACCOMMODATION TO THE BORROWER.
(l) TO INDUCE THE BANK TO MAKE THE LOAN, THE BORROWER IRREVOCABLY AGREES
THAT ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT OR CONSEQUENCE OF
THIS AGREEMENT, THE REVOLVING NOTE, OR ANY OTHER AGREEMENT WITH THE BANK SHALL
BE INSTITUTED AND LITIGATED ONLY IN COURTS HAVING THEIR SITUS IN CHICAGO,
ILLINOIS. THE BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE
OF ANY STATE OR FEDERAL COURT HAVING ITS SITUS IN CHICAGO, ILLINOIS AND WAIVES
ANY OBJECTION BASED ON FORUM NON CONVENIENS. THE BORROWER HEREBY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY
BE MADE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE BORROWER AS
SET FORTH HEREIN IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF
COURT OR OTHERWISE.
(m) The Borrower will pay all reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees) in connection with the
preparation, negotiation, documentation, execution, delivery, administration,
amendment, modification, collection and enforcement of this Agreement, the
Revolving Note, and the other instruments and documents to be delivered
hereunder. In addition, the Borrower shall pay, and save Bank harmless from any
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liability for, any and all stamp and other taxes determined to be payable in
connection with the execution and delivery of this Agreement, the borrowings
hereunder, or the Note and the other instruments and documents to be delivered
hereunder, and agrees to save the Bank harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omitting to
pay such taxes. The foregoing obligations shall survive any termination of this
Agreement and the Revolving Note. Any of the foregoing amounts incurred by Bank
and not paid by the Borrower upon demand shall bear interest from the date
incurred at the Interest Rate plus two percent (2%) per annum and shall be
deemed part of the indebtedness hereunder.
(n) Any accounting term not specifically defined herein shall be construed
in accordance with generally accepted accounting principles and all financial
data submitted pursuant to this Agreement shall be prepared in accordance with
such principles.
(o) The Bank reserves the right to sell participations in this Loan or
otherwise assign, transfer or hypothecate all or any part of this Loan.
(p) 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.
(q) The Borrower agrees to do such further acts and things and to execute
and deliver to Bank such additional assignments, agreements, powers and
instruments as Bank may reasonably require or deem advisable to carry into
effect the purpose of this Agreement, the Revolving Note, or any agreement or
instrument in connection herewith, or to better assure and confirm unto the Bank
its rights, powers and remedies hereunder or under such other loan documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
COMMUNITY SHORES BANK CORPORATION,
a Michigan corporation
By: _________________________________
Its: ________________________________
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By: _________________________________
Its: ________________________________
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EXHIBIT A
REVOLVING CREDIT NOTE
$5,000,000 Dated as of July 23, 2004
FOR VALUE RECEIVED, COMMUNITY SHORES BANK CORPORATION, a Michigan
corporation (the "Maker"), promises to pay to the order of LASALLE BANK NATIONAL
ASSOCIATION (the "Bank") the lesser of the principal sum of Five Million Dollars
($5,000,000) or the aggregate unpaid principal amount outstanding under the
Agreement (as hereinafter defined) made available by the Bank to the Maker at
the maturity or maturities and in the amount or amounts as stated on the records
of the Bank together with interest (computed on actual days elapsed on the basis
of a 360 day year) on any and all principal amounts outstanding hereunder from
time to time from the date hereof until maturity. Interest shall be payable at
the rate of interest and the times set forth in the Revolving Loan Agreement of
even date herewith between Maker and the Bank, as amended from time to time (the
"Agreement"). In no event shall any principal amount have maturity later than
August 1, 2005.
This Revolving Credit Note ("Note") shall be available for direct
advances.
Principal and interest shall be paid to the Bank at its office at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or at such other place as the holder of
this Note may designate in writing to the undersigned. This Note may be prepaid
in whole or in part as provided for in the Agreement.
This Note evidences indebtedness incurred under the Agreement to which
reference is hereby made for a statement of the terms and conditions under which
the due date of the Note or any payment thereon may be accelerated. The holder
of this Note is entitled to all of the benefits and security provided for in the
Agreement.
The undersigned agrees that in any action or proceeding instituted to
collect or enforce collection of this Note, the amount endorsed by the Bank on
the reverse side of this Note shall be prima-facie evidence of the unpaid
principal balance of this Note.
COMMUNITY SHORES BANK CORPORATION,
a Michigan corporation
By: _________________________________
Its: ________________________________
