Exhibit 4.5
LOAN AGREEMENT
This LOAN AGREEMENT (the "Agreement"), dated as of June 26, 2001, is
entered into between CORUS BANKSHARES, INC., a Minnesota corporation (the
"Borrower"), and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association (the "Bank")
RECITALS:
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WHEREAS, the Borrower desires to borrow from the Bank up to the sum of
SEVENTY MILLION DOLLARS ($70,000,000) (the "Loan") to provide for Borrower's
working capital needs;
WHEREAS, the Borrower has agreed to pledge to the Bank, in consideration
of the Loan, 100% of the capital stock (the "Subsidiary Shares") of CORUS BANK,
NATIONAL ASSOCIATION, a national banking association (the "Subsidiary"); and
WHEREAS, Bank is willing make the Loan to the Borrower 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 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:
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1. COMMITMENT OF THE BANK.
The Bank agrees to extend the Loan to the Borrower in the principal
amount of up to SEVENTY MILLION DOLLARS ($70,000,000). The Loan will consist of
a Revolving Loan (the "Revolving Loan") in an amount not to exceed $20,000,000
and a Term Loan (the "Term Loan") in an amount not to exceed $50,000,000,
evidenced by the Notes (as such term is defined below), and secured by the
Pledge Agreement (as such term is defined below) in accordance with terms and
subject to the conditions set forth in this Agreement, the Notes and the Pledge
Agreement.
Until June 30, 2002, Borrower may request draws on the Term Loan in
increments of not less than $1,000,000. No draws made be made on the Term Loan
after June 30, 2002. Loans repaid under the Term Loan may not be reborrowed.
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 any Loan, there has occurred, in the exercise of Bank's
reasonable business judgment, 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 or the Subsidiary or any of its
officers or shareholders which in the reasonable business judgment of the Bank
will adversely affect the financial condition or operations of the Borrower or
the Subsidiary;
(d) if the Borrower shall not have tendered for delivery the
Term Note, the Revolving Note and that certain Pledge and Security Agreement
(the "Pledge Agreement") dated of even date herewith executed by Borrower for
the benefit of Bank, together with all of the Pledged Security (as such term is
defined in the Pledge Agreement) all in form and content satisfactory to the
Bank;
(e) if the Borrower shall not have tendered for delivery a
legal opinion from the Borrower's counsel in form and substance satisfactory to
the Bank and Bank's legal counsel; or
(f) if the Bank shall not have received in substance and
form satisfactory to the Bank, all certificates, affidavits, schedules,
resolutions, opinions, notes, and/or other documents which are provided for
hereunder, or which it may reasonably request.
3. NOTES EVIDENCING BORROWING.
The Loans shall be evidenced by a Term Note (the "Term Note"), executed
by the Borrower in the principal amount of $50,000,000 and shall be in the form
set forth in Exhibit A hereto, and a Revolving Note (the "Revolving Note"),
executed by the Borrower in the principal amount of $20,000,000 and shall be in
the form set forth in Exhibit B hereto (the Term Note and the Revolving shall
are collectively referred to as the "Notes"). Without in any way limiting the
terms of the Notes:
(a) The Borrower shall pay interest on amounts outstanding
under the Notes as provided herein. Interest shall be payable quarterly, in
arrears, commencing on September 30, 2001 and continuing on the last day of each
of December, March, June and September thereafter, with a final payment of all
outstanding amounts due under the Notes, including, but not limited to
principal, interest and any amounts owing under Subsection 10(k) of the
Agreement, if not sooner paid, on June 25, 2004 (the "Maturity Date"). 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 the Borrower's
option of the following:
(i) the "Prime Rate", which 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. Requests for Prime Rate advances must be received
by Bank no later than 11:00 a.m. Chicago, Illinois time, on the same day
they are to be funded; or
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(ii) "LIBOR", which shall mean a rate of interest equal to
150 basis points in excess of the per annum rate of interest equal to
the offered rate for deposits in United States dollars for a period
equal to such Interest Period as published in Bloomberg's LIBOR BBA US
Dollar Fixing Report at 11:00 a.m. (Chicago time) two Business Days
prior to the first day of such Interest Period, such rate to remain
fixed for the applicable Interest Period. "Interest Period" shall mean a
three month period (except that the first and last periods of the Loan
may be less than a 90 day period) as selected by the Borrower by notice
given to the Bank not less than three banking days prior to the first
day of each respective Interest Period; provided that: (i) the final
Interest Period shall be such that its expiration occurs on or before
the stated maturity date of the Note; and (ii) if for any reason the
Borrower shall fail to select or renew timely an Interest Period, then
such LIBOR Loan shall convert to a loan bearing interest at the Prime
Rate. Interest on each LIBOR Loan shall be payable on the last day of
each September, December, March and June hereafter, at maturity, or
after maturity on demand.
(a) Subject to the provisions of this Agreement,
Borrower shall have the option (i) as of any date, to
convert all or any part of the Prime Rate Loans to, or
request that new Loans be made as, LIBOR Rate Loans (if
Borrower requests a new Loan as a LIBOR Rate Loan, the
interest rate shall be fixed at the same rate as any
existing LIBOR Rate Loans for the then remaining portion
of the applicable Interest Period), (ii) as of the last
day of any Interest Period, to continue all or any
portion of the relevant LIBOR Rate Loans as LIBOR Rate
Loans; (iii) as of the last day of any Interest Period,
to convert all or any portion of the LIBOR Rate Loans to
Prime Rate Loans; and (iv) at any time, to request new
Loans as Prime Rate Loans; provided, that Loans may not
be continued as or converted to LIBOR Rate Loans, if the
continuation or conversion thereof would violate the
provisions of subparagraph (b) or(c) hereof or if an
Event of Default has occurred.
(b) Lender's determination of LIBOR as provided
above shall be conclusive, absent manifest error.
Furthermore, if Lender determines, in good faith (which
determination shall be conclusive, absent manifest
error), prior to the commencement of any Interest Period
that (i) U.S. Dollar deposits of sufficient amount and
maturity for funding the Loans are not available to
Lender in the London Interbank Eurodollar market in the
ordinary course of business, or (ii) by reason of
circumstances affecting the London Interbank Eurodollar
market, adequate and fair means do not exist for
ascertaining the rate of interest to be applicable to
the Loans requested by Borrower to be LIBOR Rate Loans
or the Loans bearing interest at the rates set forth in
this paragraph shall not represent the effective pricing
to Lender for U.S. Dollar deposits of a comparable
amount for the relevant period (such as for example, but
not limited to, official reserve requirements required
by Regulation D to the extent not given effect in
determining the rate), Lender shall promptly notify
Borrower and (x) all existing LIBOR Rate Loans shall
convert to Prime Rate Loans upon the end of the
applicable Interest Period, and (y) no additional LIBOR
Rate Loans shall be made until such circumstances are
cured.
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(c) If, after the date hereof, the introduction of,
or any change in any applicable law, treaty, rule,
regulation or guideline or in the interpretation or
administration thereof by any governmental authority or
any central bank or other fiscal, monetary or other
authority having jurisdiction over Lender or its lending
offices (a "Regulatory Change"), shall, in the opinion
of counsel to Lender, make it unlawful for Lender to
make or maintain LIBOR Rate Loans, then Lender shall
promptly notify Borrower and (i) the LIBOR Rate Loans
shall immediately convert to Prime Rate Loans on the
last Business Day of the then existing Interest Period
or on such earlier date as required by law and (ii) no
additional LIBOR Rate Loans shall be made until such
circumstance is cured.
(d) If, for any reason, a LIBOR Rate Loan is paid
prior to the last Business Day of any Interest Period or
if a LIBOR Rate Loan does not occur on a date specified
by Borrower in its request (other than as a result of a
default by Lender), Borrower agrees to indemnify Lender
against any loss (including any loss on redeployment of
the deposits or other funds acquired by Lender to fund
or maintain such LIBOR Rate Loan) cost or expense
incurred by Lender as a result of such prepayment.
(e) If any Regulatory Change (whether or not having
the force of law) shall (i) impose, modify or deem
applicable any assessment, reserve, special deposit or
similar requirement against assets held by, or deposits
in or for the account of or loans by, or any other
acquisition of funds or disbursements by, Lender; (ii)
subject Lender or the LIBOR Rate Loans to any Tax ("Tax"
shall mean in relation to any LIBOR Rate Loans and the
applicable LIBOR Rate, any tax, levy, impost, duty,
deduction, withholding or charges of whatever nature
required (i) to be paid by Lender and/or (ii) to be
withheld or deducted from any payment otherwise required
hereby to be made by Borrower to Lender; provided, that
the term "Tax" shall not include any taxes imposed upon
the net income of Lender) or change the basis of
taxation of payments to Lender of principal or interest
due from Borrower to Lender hereunder (other than a
change in the taxation of the overall net income of
Lender); or (c) impose on Lender any other condition
regarding the LIBOR Rate Loans or Lender's funding
thereof, and Lender shall determine (which determination
shall be conclusive, absent any manifest error) that the
result of the foregoing is to increase the cost to
Lender of making or maintaining the LIBOR Rate Loans or
to reduce the amount of principal or interest received
by Lender hereunder, then Borrower shall pay to Lender,
on demand, such additional amounts as Lender shall, from
time to time, determine are sufficient to compensate and
indemnify Lender from such increased cost or reduced
amount.
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(f) Lender shall receive payments of amounts of
principal of and interest with respect to the LIBOR Rate
Loans free and clear of, and without deduction for, any
Tax. If (1) Lender shall be subject to any Tax in
respect of any LIBOR Rate Loans or any part thereof or,
(2) Borrower shall be required to withhold or deduct any
Tax from any such amount, the LIBOR Rate applicable to
such LIBOR Rate Loans shall be adjusted by Lender to
reflect all additional costs incurred by Lender in
connection with the payment by Lender or the withholding
by Borrower of such Tax and Borrower shall provide
Lender with a statement detailing the amount of any such
Tax actually paid by Borrower. Determination by Lender
of the amount of such costs shall be conclusive, absent
manifest error. If after any such adjustment any part of
any Tax paid by Lender is subsequently recovered by
Lender, Lender shall reimburse Borrower to the extent of
the amount so recovered. A certificate of an officer of
Lender setting forth the amount of such recovery and the
basis therefor shall be conclusive, absent manifest
error.
(g) Each request for a Term Loan shall be in an
amount not less than One Million and No/100 Dollars
($1,000,000.00), and in integral multiples of, One
Million and No/100 Dollars ($1,000,000.00). Each Request
for a Revolving Loan shall be in increments of not less
than $100,000.
(h) Unless otherwise specified by Borrower, all
Loans shall be Prime Rate Loans.
(i) No more than one Interest Period may be in
effect with respect to outstanding LIBOR Rate Loans at
any one time.
(b) Principal on the Term Loan shall be payable quarterly,
beginning September 30, 2001 and continuing on the last day of each December,
March, June and September thereafter, in the amount of ONE MILLION DOLLARS
($1,000,000), with a final payment of all outstanding principal, plus interest
thereon, due and payable on the Maturity Date. Prepayments of the Term Loan are
permitted at any time without premium or penalty in the inverse order of
maturity.
(c) Principal on the Revolving Loan shall be due and payable
on the Maturity Date. Prepayments of the Revolving Loan are permitted at any
time without premium or penalty.
(d) Any amount of principal or interest on the Notes 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 Prime Rate.
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(e) 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. UNUSED LOAN FEE.
In consideration of the Bank making the Loans available to the Borrower,
the Borrower agrees to pay to the Bank a fee (the "Unused Loan Fee") of 1/4% of
the amount not borrowed hereunder (any portion of the Term Loan once borrowed
shall be considered as borrowed for the purposes of this calculation, whether or
not thereafter repaid), payable on the last day of each September, December,
March and June hereafter, and calculated by multiplying (a) the average
difference during any quarterly period between the amount available hereunder
and the total amount actually borrowed hereunder, and (b) 1/4%. Such amount
shall be due and payable ten (10) days after the end of each quarter set forth
above.
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 Minnesota;
(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 Subsidiary is a national 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 all
of the respective jurisdictions in which they are incorporated or qualified, and
so far 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 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 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
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(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 each Subsidiary
throughout the periods involved, and fairly present the financial
condition of the Subsidiary at such dates specified therein and the
results of its operation 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 none of such changes has
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 disputes, food, 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, or 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, of a material nature; and neither of the Borrower
nor, to the best knowledge of the Borrower, the Subsidiary is in default with
respect to any order, writ, injunction, 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, and all necessary regulatory approvals have been obtained for
it to conduct its business.
(h) The deposit accounts of the Subsidiary are insured by
the Federal Deposit Insurance Corporation ("FDIC").
(i) None of the Pledged Stock constitutes margin stock, as
defined in Regulation U of the Board of Governors of the Federal Reserve System
("FRS").
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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,
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 or the
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 or the Note, the Borrower shall not itself, nor shall
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
in the case of Borrower, secured indebtedness under Section 6(b)(vi) or margin
securities loans under Section 6(b)(ix), and, in the case of the Subsidiary,
indebtedness incurred in the ordinary course of the business of banking,
including, but not limited to borrowings from the Federal Home Loan Bank 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;
(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;
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(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
including those incurred for the construction of a banking facility, and
bank furniture and fixtures acquired or held in the ordinary course of
business to secure the purchase price of such property or to secure the
indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property to be
subject to such mortgages or other liens, or mortgages or other liens
existing on any such property at the time of acquisition, or extensions,
renewals, or replacements of any of the foregoing for the same or a
lesser amount, provided that no such mortgage or other liens shall
extend to or cover any property other than the property being acquired,
constructed or improved, and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject to the
mortgage or lien being extended, renewed or replaced, and provided
further that no such mortgage or lien shall exceed 75% of the price of
acquisition, construction or improvement at the time of acquisition,
construction or improvement, and provided, further that the aggregate
principal amount of consolidated indebtedness at any one time
outstanding and secured by mortgages, liens, conditional sale agreements
and other security interests permitted by this clause (vi) shall not
exceed 10% of the consolidated capital of the Borrower or the
Subsidiary, as the case may be;
(vii) liens existing on the date hereof as shown on their
financial statements;
(viii) 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;
and
(ix) subject to the limitations of Section 7(l) hereof, loans
to Borrower in an amount not to exceed $50,000,000 and for which
Borrower has pledged "margin securities".
(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 (i) loans or advances made by the
Subsidiary in the ordinary course of its banking business, or (ii)
participations in loans or advances made by the Subsidiary, which loans are
secured by first mortgages on real estate, and in which the aggregate
participations do not exceed, at any one time outstanding, $50,000,000;
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(f) engage in any business or activity not permitted by all
applicable laws and regulations, including without limitation, the Bank Holding
Company Act of 1956, 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);
(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;
(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) redeem any of its capital stock in excess of 200,000
shares in any calendar year, or, without the prior written approval of the Bank
or otherwise change the capital structure of Borrower or the Subsidiary which
would result in a change in control;
(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 or the FDIC in connection with the
Borrower's ownership 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
this 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 Subsidiary, 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 Subsidiary; and (2)
all financial statements, including, but not limited to, all call
reports, filed with any state or federal bank regulatory authority;
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(ii) as soon as practicable, and in no event later than one
hundred twenty (120) 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 Subsidiary 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 Subsidiary;
(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 the Subsidiary, other than
ordinary course of business litigation not involving the FRS or the
FDIC, 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 the 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 (g) 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 be well capitalzed 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 March 31, 2001 maintain such capital as is
necessary to cause the Subsidiary to be classified as a "well capitalized"
institution in accordance with the regulations of the FDIC, currently measured
on the basis of information filed by Subsidiary 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
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(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 contain in the
preceding four (4) Call Reports);
(e) cause the Subsidiary to maintain tangible equity capital
of no less than $200,000,000. For the purposes of this Section 7(e), "tangible
equity capital" shall mean 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 Subsidiary to be not more than thirty percent (30%) 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 nonaccrual
loans and loans on which any payment is ninety (90) or more days past due,
provided, however, 75% of the amount of any nonperforming loan secured by a
first mortgage shall not be included when calculating the amount of
nonperforming loans;
(g) cause the ratios of the loan and lease loss reserve to
the total loans of the Subsidiary to be not less than one percent (1%) at all
times;
(h) 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, might by law become a
lien or charge upon the property of the Borrower or the 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 the Subsidiary as are deemed reasonably adequate by
the Bank;
(i) 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, operates, and such additional bonds
and insurance as may be reasonably required by the Bank;
(j) 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;
(k) 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; and
(l) maintain securities listed on national securities
exchanges which are (i) comprised of financial institutions other than Borrower,
(ii) not pledged to any Person or encumbered in any manner, and (iii) have a
market value of (x) $50,000,000 or (y) the maximum amount of Loans which may at
any time borrowed hereunder, whichever is less. Such securities shall be placed
in a custodian account at Bank.
- 12 -
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 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 five (5) days
after written notice thereof 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 written notice thereof by Bank;
(d) if the Borrower fails to perform or observe any covenant
or agreement contained in any agreement other than this 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
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 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 fifteen
(15) days after written notice thereof by the Bank;
(f) if the FRS, the FDIC 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, or (ii) a notice or finding under Section 8(a) of the Federal Deposit
Insurance Act, or any similar enforcement action, measure or proceeding;
- 13 -
(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 any Subsidiary;
(h) if the Borrower or the 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 the 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 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 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 the Subsidiary continue 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 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 pledge hereunder in any order
or with any priority or to exercise any remedy available to the Bank in any
order.
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 the
Subsidiary.
- 14 -
(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: Corus Bankshares, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, President
with a copy to: Xxx Xxxxxx, Chief Financial Officer
Corus Bankshares, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to the Bank: LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to: Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx Chartered
000 X. XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
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.
- 15 -
(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 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.
(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.
(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.
(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 to 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 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 815
ILCS 205/4(c).
(k) The Borrower will pay all reasonable costs and expenses
(including, without limitation, reasonable attorneys, fees) in connection with
the preparation, negotiations, documentation, execution, delivery,
administration, amendment, modification, collection and enforcement of this
Agreement, the Note, the Pledge Agreement and the other instruments and
documents to be delivered hereunder. In addition, the Borrower shall pay, and
save Bank harmless from any 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, the Note of the Pledge Agreement. 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 Prime Rate plus two percent
(21) per annum and shall be deemed part of the indebtedness hereunder.
- 16 -
(l) 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.
(m) The Bank reserves the right to sell participations in
this loan or otherwise assign, transfer or hypothecate all or any part of this
loan.
(n) 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.
(o) 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 Note, the Pledge Agreement
or any agreement or instrument in connection herewith, or to better assure and
confirm unto Bank its rights, powers and remedies hereunder or under such other
loan documents.
- 17 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Its:
-----------------------------------
- 18 -
Exhibit A
---------
TERM NOTE
$50,000,000.00 Date: June 26, 2001
On June 25, 2004, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of FIFTY
MILLION and 00/100 DOLLARS ($50,000,000.00), together with interest computed on
the actual number of days elapsed on the basis of a 360 day year, on any and all
principal amounts remaining unpaid hereunder from time to time outstanding from
the date of borrowing until payment at a rate equal to the Maker's option of the
Prime Rate or LIBOR, as those terms are defined in the Loan Agreement as
identified below. Interest shall be payable quarterly beginning September 30,
2001 and continuing on the last day of each December, March, June and September
thereafter. A final payment of outstanding principal and interest will be due
and payable on June 25, 2004.
Principal payments shall be due and payable in the amount of One Million
and 00/100 Dollars ($1,000,000.00) on a quarterly basis beginning September 30,
2001 and continuing on the last day of each December, March, June and September
thereafter, with a final payment of all principal outstanding, plus interest
thereon, due on June 25, 2004.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Term Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Term Note shall be payable in
lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Term Note evidences indebtedness incurred under a Loan Agreement
dated of even date herewith (as amended from time to time, the "Loan Agreement")
between the Maker and the Payee, to which reference is hereby made. This Term
Note is entitled to all of the benefits provided in the Loan Agreement. The
terms of the Loan Agreement are incorporated herein by reference. This Term Note
may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Term Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
- 19 -
Exhibit B
---------
REVOLVING NOTE
$20,000,000.00 Date: June 26, 2001
On June 25, 2004, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of TWENTY
MILLION and 00/100 DOLLARS ($20,000,000.00), together with interest computed on
the actual number of days elapsed on the basis of a 360 day year, on any and all
principal amounts remaining unpaid hereunder from time to time outstanding from
the date of borrowing until payment at a rate equal to the Maker's option of the
Prime Rate or LIBOR, as those terms are defined in the Loan Agreement as
identified below. Interest shall be payable quarterly beginning September 30,
2001 and continuing on the last day of each December, March, June and September
thereafter. A final payment of outstanding principal and interest will be due
and payable on June 25, 2004.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Revolving Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Revolving Note shall be payable
in lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Revolving Note evidences indebtedness incurred under a Loan
Agreement dated of even date herewith (as amended from time to time, the "Loan
Agreement") between the Maker and the Payee, to which reference is hereby made.
This Revolving Note is entitled to all of the benefits provided in the Loan
Agreement. The terms of the Loan Agreement are incorporated herein by reference.
This Revolving Note may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Revolving Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
- 20 -
FIRST AMENDMENT TO LOAN AGREEMENT
This First Amendment to Loan Agreement, dated as of June 30, 2003, is
entered into between CORUS BANKSHARES, INC., a Minnesota corporation (the
"Borrower") and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
A. The parties have previously entered into a Loan Agreement dated
as of June 26, 2001 (the "Agreement").
B. The Borrower has requested an extension of the maturity date, a
Term Note evidencing the amount of indebtedness as of the date
hereof and a waiver that will permit Borrower to issue up to
$47,500,000 of trust preferred securities, and the Bank has
agreed to the request of the Borrower, all in accordance with
the terms and provisions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have
the meaning given such terms in the Agreement.
2. The Maturity Date, as defined in Section 3(a) of the Amendment
is hereby amended to June 25, 2006
3. Notwithstanding anything to the contrary contained in Section
6(a) or in any other provision of the Agreement, Borrower may issue up to Forty
Seven Million Five Hundred Thousand Dollars ($47,500,000) of its trust preferred
securities without further consent from the Bank.
4. Concurrently with the execution of this Amendment, Borrower
shall pay Bank all accrued interest through June 30, 2003.
5. Borrower shall also be responsible to pay Bank's legal fees and
expenses incurred by the Bank in connection with this Amendment.
6. As of June 30, 2003, the amount due and owing on the Term Loan
is $37,000,000. Borrower shall execute a Replacement Term Note substantially in
the form of Exhibit A attached to this Amendment.
7. In order to induce the Bank to execute and deliver this
Amendment, Borrower hereby represents to the Bank that as of the date hereof and
as of the time that this Amendment becomes effective, as follows:
(a) it has all necessary power and authority to execute and
deliver this Amendment and perform its obligations hereunder;
(b) this Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their terms;
(c) each of the representations and warranties set forth in
Section 5 of the Agreement is, and shall be and remain, true and correct
(with the exception that the representations contained in Section 5(c)
shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Bank);
(d) Borrower is, and shall be and remain, in full compliance
with all of the terms and conditions of the Agreement and other loan
documents, and except as disclosed to the Bank in writing, no event of
default has occurred under the Agreement or any document in connection
therewith; and
(e) after giving effect to this Amendment, no fact or
circumstance exists which with the lapse of time, the giving of notice
or both would constitute an event of default under the Agreement.
8. This Amendment shall be effective as of the date hereof but only
when the Bank shall have received each of the following:
(a) An original of this Amendment which has been signed by
the Borrower and the Bank;
(b) A signed Replacement Term Note in the form of Exhibit A
attached hereto;
(c) A signed Replacement Revolving Note in the form of
Exhibit B attached hereto;
(d) Payment of all accrued interest through June 30, 2003.
9. Borrower expressly acknowledges and agrees that all collateral,
security interests, liens, pledges, and mortgages heretofore, under this
Amendment, or hereafter granted to Bank, including, without limitation, such
collateral, security interests, liens, pledges and mortgages granted under the
Agreement, and all other supplements to the Agreement, extend to and cover all
of the obligations of Borrower to Bank, now existing or hereafter arising
including, without limitation, those arising in connection with the Agreement,
as amended by this Amendment, upon the terms set forth in such agreements, all
of which security interests, liens, pledges, and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
10. The parties hereto acknowledge and agree that the terms and
provisions of this Amendment amend, add to and constitute a part of the
Agreement. Except as expressly modified and amended by the terms of this
Amendment, all of the other terms and conditions of the Agreement and all
documents executed in connection therewith or referred to or incorporated
therein remain in full force and effect and are hereby ratified, reaffirmed,
confirmed and approved.
- 2 -
11. If there is an express conflict between the terms of this
Amendment and the terms of the Agreement, or any of the other agreements or
documents executed in connection therewith or referred to or incorporated
therein, the terms of this Amendment shall govern and control.
12. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original.
13. This Amendment was executed an delivered in Chicago, Illinois
and shall be governed by and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Illinois.
(THE NEXT PAGE IS THE SIGNATURE PAGE)
- 3 -
IN WITNESS WHEREOF, this Amendment has been signed as of the date first
above appearing.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Its:
-----------------------------------
- 4 -
EXHIBIT A
REPLACEMENT TERM NOTE
$37,000,000.00 Date: June 30, 2003
On June 25, 2006, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of THIRTY
SEVEN MILLION 00/100 DOLLARS ($37,000,000.00), together with interest computed
on the actual number of days elapsed on the basis of a 360 day year, on any and
all principal amounts remaining unpaid hereunder from time to time outstanding
from the date of borrowing until payment at a rate equal to the Maker's option
of the Prime Rate or LIBOR, as those terms are defined in the Loan Agreement as
identified below. Interest shall be payable quarterly beginning September 30,
2003 and continuing on the last day of each December, March, June and September
thereafter. A final payment of outstanding principal and interest will be due
and payable on June 25, 2006.
Principal payments shall be due and payable in the amount of One Million
and 00/100 Dollars ($1,000,000.00) on a quarterly basis beginning September 30,
2003 and continuing on the last day of each December, March, June and September
thereafter, with a final payment of all principal outstanding, plus interest
thereon, due on June 25, 2006.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Term Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Term Note shall be payable in
lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Term Note evidences indebtedness incurred under a Loan Agreement
dated of even date herewith (as amended from time to time, the "Loan Agreement")
between the Maker and the Payee, to which reference is hereby made. This Term
Note is entitled to all of the benefits provided in the Loan Agreement. The
terms of the Loan Agreement are incorporated herein by reference. This Term Note
may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Term Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
This Replacement Term Note is a replacement of that certain Term Note
dated June 26, 2001 in the original prinicipal amount of $50,000,000 and does
not constitute payment thereof or a novation therefor.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
A-1
EXHIBIT B
---------
REPLACEMENT REVOLVING NOTE
$20,000,000.00 Date: June 30,2003
On June 25, 2006, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of TWENTY
MILLION and 00/100 DOLLARS ($20,000,000.00), together with interest computed on
the actual number of days elapsed on the basis of a 360 day year, on any and all
principal amounts remaining unpaid hereunder from time to time outstanding from
the date of borrowing until payment at a rate equal to the Maker's option of the
Prime Rate or LIBOR, as those terms are defined in the Loan Agreement as
identified below. Interest shall be payable quarterly beginning September 30,
2001 and continuing on the last day of each December, March, June and September
thereafter. A final payment of outstanding principal and interest will be due
and payable on June 25, 2006.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Revolving Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Revolving Note shall be payable
in lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Revolving Note evidences indebtedness incurred under a Loan
Agreement dated of even date herewith (as amended from time to time, the "Loan
Agreement") between the Maker and the Payee, to which reference is hereby made.
This Revolving Note is entitled to all of the benefits provided in the Loan
Agreement. The terms of the Loan Agreement are incorporated herein by reference.
This Revolving Note may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Revolving Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
This Replacement Revolving Note replaces that certain Revolving Note in
the original principal amount of $20,000,000, dated June 26, 2001, and does not
constitute payment thereof or a novation therefor.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
B-1
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement, dated as of April 30, 2004, is
entered into between CORUS BANKSHARES, INC., a Minnesota corporation (the
"Borrower") and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
A. The parties have previously entered into a Loan Agreement dated
as of June 26, 2001, as amended by that certain First Amendment to Loan
Agreement dated as of June 30, 2003 (collectively with all amendments and
modifications, the "Agreement").
B. The Borrower has requested an increase in the amount of the
Revolving Loan from $20,000,000 to $50,000,000, and the Bank has agreed to the
request of the Borrower, all in accordance with the terms and provisions set
forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have
the meaning given such terms in the Agreement.
2. Paragraph 1 of the Loan Agreement is hereby amended by deleting
the number "$20,000,000" and inserting in lieu thereof the number "$50,000,000".
3. The Revolving Note referred to in Paragraph 3 in the form of
Exhibit B is hereby amended to refer to the Revolving Note executed by Borrower
in the principal amount of $50,000,000 and shall be replaced by the Revolving
Note attached hereto as Exhibit B.
4. Borrower shall also be responsible to pay Bank's legal fees and
expenses incurred by the Bank in connection with this Amendment.
5. In order to induce the Bank to execute and deliver this
Amendment, Borrower hereby represents to the Bank that as of the date hereof and
as of the time that this Amendment becomes effective, as follows:
(a) it has all necessary power and authority to execute and
deliver this Amendment and perform its obligations hereunder;
(b) this Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their terms;
(c) each of the representations and warranties set forth in
Section 5 of the Agreement is, and shall be and remain, true and correct
(with the exception that the representations contained in Section 5(c)
shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Bank);
(d) Borrower is, and shall be and remain, in full compliance
with all of the terms and conditions of the Agreement and other loan
documents, and except as disclosed to the Bank in writing, no event of
default has occurred under the Agreement or any document in connection
therewith; and
(e) after giving effect to this Amendment, no fact or
circumstance exists which with the lapse of time, the giving of notice
or both would constitute an event of default under the Agreement.
6. This Amendment shall be effective as of the date hereof but only
when the Bank shall have received each of the following:
(a) An original of this Amendment which has been signed by
the Borrower and the Bank;
(b) A signed Replacement Revolving Note in the form of
Exhibit B attached hereto;
(c) Certified copies of Resolutions authorizing Borrower to
increase the Revolving Loan to $50,000,000;
(d) Payment of all accrued interest on the Revolving Note
through the date hereof; and
(e) Payment of all fees and expenses incurred by Lender in
connection with the preparation of this Amendment.
7. Borrower expressly acknowledges and agrees that all collateral,
security interests, liens, pledges, and mortgages heretofore, under this
Amendment, or hereafter granted to Bank, including, without limitation, such
collateral, security interests, liens, pledges and mortgages granted under the
Agreement, and all other supplements to the Agreement, extend to and cover all
of the obligations of Borrower to Bank, now existing or hereafter arising
including, without limitation, those arising in connection with the Agreement,
as amended by this Amendment, upon the terms set forth in such agreements, all
of which security interests, liens, pledges, and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
8. The parties hereto acknowledge and agree that the terms and
provisions of this Amendment amend, add to and constitute a part of the
Agreement. Except as expressly modified and amended by the terms of this
Amendment, all of the other terms and conditions of the Agreement and all
documents executed in connection therewith or referred to or incorporated
therein remain in full force and effect and are hereby ratified, reaffirmed,
confirmed and approved.
9. If there is an express conflict between the terms of this
Amendment and the terms of the Agreement, or any of the other agreements or
documents executed in connection therewith or referred to or incorporated
therein, the terms of this Amendment shall govern and control.
10. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original.
- 2 -
11. This Amendment was executed an delivered in Chicago, Illinois
and shall be governed by and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Illinois.
(THE NEXT PAGE IS THE SIGNATURE PAGE)
- 3 -
IN WITNESS WHEREOF, this Amendment has been signed as of the date first
above appearing.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Its:
-----------------------------------
- 4 -
EXHIBIT B
---------
REPLACEMENT REVOLVING NOTE
$50,000,000.00 Date: April 30, 2004
On June 25, 2006, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of FIFTY
MILLION and 00/100 DOLLARS ($50,000,000.00), together with interest computed on
the actual number of days elapsed on the basis of a 360 day year, on any and all
principal amounts remaining unpaid hereunder from time to time outstanding from
the date of borrowing until payment at a rate equal to the Maker's option of the
Prime Rate or LIBOR, as those terms are defined in the Loan Agreement as
identified below. Interest shall be payable quarterly beginning June 30, 2004
and continuing on the last day of each December, March, June and September
thereafter. A final payment of outstanding principal and interest will be due
and payable on June 25, 2006.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Revolving Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Revolving Note shall be payable
in lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Revolving Note evidences indebtedness incurred under a Loan
Agreement dated of even date herewith (as amended from time to time, the "Loan
Agreement") between the Maker and the Payee, to which reference is hereby made.
This Revolving Note is entitled to all of the benefits provided in the Loan
Agreement. The terms of the Loan Agreement are incorporated herein by reference.
This Revolving Note may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Revolving Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
This Replacement Revolving Note replaces that certain Revolving Note in
the original principal amount of $20,000,000, dated June 30, 2003, and does not
constitute payment thereof or a novation therefor.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
B-1
THIRD AMENDMENT TO LOAN AGREEMENT
This Third Amendment to Loan Agreement, dated as of October 1, 2004, is
entered into between CORUS BANKSHARES, INC., a Minnesota corporation (the
"Borrower") and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
A. The parties have previously entered into a Loan Agreement dated
as of June 26, 2001, as amended by that certain First Amendment to Loan
Agreement dated as of June 30, 2003 and as amended by that certain Second
Amendment to Loan Agreement dated as of April 30, 2004 (collectively with all
amendments and modifications, the "Agreement").
B. The Borrower has requested an increase in the amount of the
Revolving Loan from $50,000,000 to $80,000,000, and the Bank has agreed to the
request of the Borrower, all in accordance with the terms and provisions set
forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have
the meaning given such terms in the Agreement.
2. Paragraph 1 of the Loan Agreement is hereby amended by deleting
the number "$50,000,000" and inserting in lieu thereof the number "$80,000,000".
3. The Revolving Note referred to in Paragraph 3 in the form of
Exhibit B is hereby amended to refer to the Revolving Note executed by Borrower
in the principal amount of $80,000,000 and shall be replaced by the Revolving
Note attached hereto as Exhibit B.
4. Paragraph 3(a)(ii) of the Agreement is hereby deleted and in
lieu thereof is inserted the following:
(ii) "LIBOR", which shall mean a rate of interest
equal to 140 basis points in excess of the per annum
rate of interest equal to the offered rate for deposits
in United States dollars for a period equal to such
Interest Period as published in Bloomberg's LIBOR BBA US
Dollar Fixing Report at 11:00 a.m. (Chicago time) two
Business Days prior to the first day of such Interest
Period, such rate to remain fixed for the applicable
Interest Period. "Interest Period" shall mean a three
month period (except that the first and last periods of
the Loan may be less than a 90 day period) as selected
by the Borrower by notice given to the Bank not less
than three banking days prior to the first day of each
respective Interest Period; provided that: (i) the final
Interest Period shall be such that its expiration occurs
on or before the stated maturity date of the Note; and
(ii) if for any reason the Borrower shall fail to select
or renew timely an Interest Period, then such LIBOR Loan
shall convert to a loan bearing interest at the Prime
Rate. Interest on each LIBOR Loan shall be payable on
the last day of each December, March, June and September
hereafter, at maturity, or after maturity on demand.
5. Paragraph 7(g) of the Agreement is hereby deleted in its
entirety and in lieu thereof is inserted the following:
(g) cause the sum of the: (i) allowance for loan
loss reserves, and (ii) loss reserve for unfunded
commitments as a percentage of total loans of the
Subsidiary to be not less than one percent (1%) at all
times.
6. Paragraph 7(l) of the Agreement is hereby deleted in its
entirety, and any references thereto in the Agreement are also deleted.
7. Borrower shall also be responsible to pay Bank's legal fees and
expenses incurred by the Bank in connection with this Amendment.
8. In order to induce the Bank to execute and deliver this
Amendment, Borrower hereby represents to the Bank that as of the date hereof and
as of the time that this Amendment becomes effective, as follows:
(a) it has all necessary power and authority to execute and
deliver this Amendment and perform its obligations hereunder;
(b) this Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their terms;
(c) each of the representations and warranties set forth in
Section 5 of the Agreement is, and shall be and remain, true and correct
(with the exception that the representations contained in Section 5(c)
shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Bank);
(d) Borrower is, and shall be and remain, in full compliance
with all of the terms and conditions of the Agreement and other loan
documents, and except as disclosed to the Bank in writing, no event of
default has occurred under the Agreement or any document in connection
therewith; and
(e) after giving effect to this Amendment, no fact or
circumstance exists which with the lapse of time, the giving of notice
or both would constitute an event of default under the Agreement.
9. This Amendment shall be effective as of the date hereof but only
when the Bank shall have received each of the following:
(a) An original of this Amendment which has been signed by
the Borrower and the Bank;
(b) A signed Replacement Revolving Note in the form of
Exhibit B attached hereto;
- 2 -
(c) Certified copies of Resolutions authorizing Borrower to
increase the Revolving Loan to $80,000,000;
(d) Payment of all accrued interest on the Revolving Note
through the date hereof;
(d) Payment in full of all principal and accured interest on
the Term Note; and
(e) Payment of all fees and expenses incurred by Lender in
connection with the preparation of this Amendment.
10. Borrower expressly acknowledges and agrees that all collateral,
security interests, liens, pledges, and mortgages heretofore, under this
Amendment, or hereafter granted to Bank, including, without limitation, such
collateral, security interests, liens, pledges and mortgages granted under the
Agreement, and all other supplements to the Agreement, extend to and cover all
of the obligations of Borrower to Bank, now existing or hereafter arising
including, without limitation, those arising in connection with the Agreement,
as amended by this Amendment, upon the terms set forth in such agreements, all
of which security interests, liens, pledges, and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
11. The parties hereto acknowledge and agree that the terms and
provisions of this Amendment amend, add to and constitute a part of the
Agreement. Except as expressly modified and amended by the terms of this
Amendment, all of the other terms and conditions of the Agreement and all
documents executed in connection therewith or referred to or incorporated
therein remain in full force and effect and are hereby ratified, reaffirmed,
confirmed and approved.
12. If there is an express conflict between the terms of this
Amendment and the terms of the Agreement, or any of the other agreements or
documents executed in connection therewith or referred to or incorporated
therein, the terms of this Amendment shall govern and control.
13. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original.
14. This Amendment was executed an delivered in Chicago, Illinois
and shall be governed by and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Illinois.
(THE NEXT PAGE IS THE SIGNATURE PAGE)
- 3 -
IN WITNESS WHEREOF, this Amendment has been signed as of the date first
above appearing.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
-----------------------------------
Its:
-----------------------------------
- 4 -
EXHIBIT B
---------
REPLACEMENT REVOLVING NOTE
$80,000,000.00 Date: October 1, 2004
On June 25, 2006, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of EIGHTY
MILLION and 00/100 DOLLARS ($80,000,000.00), or however much may be outstanding
from time to time, together with interest computed on the actual number of days
elapsed on the basis of a 360 day year, on any and all principal amounts
remaining unpaid hereunder from time to time outstanding from the date of
borrowing until payment at a rate equal to the Maker's option of the Prime Rate
or LIBOR, as those terms are defined in the Loan Agreement as identified below.
Interest shall be payable quarterly beginning December 31, 2004 and continuing
on the last day of each March, June, September and December thereafter. A final
payment of outstanding principal and interest will be due and payable on June
25, 2006.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Revolving Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Revolving Note shall be payable
in lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Revolving Note evidences indebtedness incurred under a Loan
Agreement dated as of June 26, 2001 (as amended from time to time, the "Loan
Agreement") between the Maker and the Payee, to which reference is hereby made.
This Revolving Note is entitled to all of the benefits provided in the Loan
Agreement. The terms of the Loan Agreement are incorporated herein by reference.
This Revolving Note may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Revolving Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
This Replacement Revolving Note replaces that certain Revolving Note in
the original principal amount of $50,000,000, dated April 30, 2004, and does not
constitute payment thereof or a novation therefor.
CORUS BANKSHARES, INC.
By:
-----------------------------------
Its:
-----------------------------------
B-1
FOURTH AMENDMENT TO LOAN AGREEMENT
This Fourth Amendment to Loan Agreement, dated as of March 31, 2005, is
entered into between CORUS BANKSHARES, INC., a Minnesota corporation (the
"Borrower") and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
A. The parties have previously entered into a Loan Agreement dated
as of June 26, 2001, as amended by that certain First Amendment to Loan
Agreement dated as of June 30, 2003, as amended by that certain Second Amendment
to Loan Agreement dated as of April 30, 2004 and as amended by that certain
Third Amendment to Loan Agreement dated as of October 1, 2004 (collectively with
all amendments and modifications, the "Agreement").
B. The Borrower has requested an extension of the Maturity Date and
the Bank has agreed to the request of the Borrower, all in accordance with the
terms and provisions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have
the meaning given such terms in the Agreement.
2. The Maturity Date, as defined in Section 3(a) of the Amendment,
is hereby amended to March 31, 2008.
3. The Revolving Note referred to in Paragraph 3 of the Agreement
in the form of Exhibit B is hereby amended to refer to the Revolving Note
executed by Borrower in the principal amount of $80,000,000 and shall be
replaced by the Revolving Note attached hereto as Exhibit B.
4. Borrower shall also be responsible to pay Bank's legal fees and
expenses incurred by the Bank in connection with this Amendment.
5. In order to induce the Bank to execute and deliver this
Amendment, Borrower hereby represents to the Bank that as of the date hereof and
as of the time that this Amendment becomes effective, as follows:
(a) it has all necessary power and authority to execute and
deliver this Amendment and perform its obligations hereunder;
(b) this Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their terms;
(c) each of the representations and warranties set forth in
Section 5 of the Agreement is, and shall be and remain, true and correct
(with the exception that the representations contained in Section 5(c)
shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Bank);
(d) Borrower is, and shall be and remain, in full compliance
with all of the terms and conditions of the Agreement and other loan
documents, and except as disclosed to the Bank in writing, no event of
default has occurred under the Agreement or any document in connection
therewith; and
(e) after giving effect to this Amendment, no fact or
circumstance exists which with the lapse of time, the giving of notice
or both would constitute an event of default under the Agreement.
6. This Amendment shall be effective as of the date hereof but only
when the Bank shall have received each of the following:
(a) An original of this Amendment which has been signed by
the Borrower and the Bank;
(b) A signed Replacement Revolving Note in the form of
Exhibit B attached hereto;
(c) Payment of all accrued interest on the Revolving Note
through the date hereof; and
(e) Payment of all fees and expenses incurred by Lender in
connection with the preparation of this Amendment.
7. Borrower expressly acknowledges and agrees that all collateral,
security interests, liens, pledges, and mortgages heretofore, under this
Amendment, or hereafter granted to Bank, including, without limitation, such
collateral, security interests, liens, pledges and mortgages granted under the
Agreement, and all other supplements to the Agreement, extend to and cover all
of the obligations of Borrower to Bank, now existing or hereafter arising
including, without limitation, those arising in connection with the Agreement,
as amended by this Amendment, upon the terms set forth in such agreements, all
of which security interests, liens, pledges, and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
8. The parties hereto acknowledge and agree that the terms and
provisions of this Amendment amend, add to and constitute a part of the
Agreement. Except as expressly modified and amended by the terms of this
Amendment, all of the other terms and conditions of the Agreement and all
documents executed in connection therewith or referred to or incorporated
therein remain in full force and effect and are hereby ratified, reaffirmed,
confirmed and approved.
9. If there is an express conflict between the terms of this
Amendment and the terms of the Agreement, or any of the other agreements or
documents executed in connection therewith or referred to or incorporated
therein, the terms of this Amendment shall govern and control.
- 2 -
10. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original.
11. This Amendment was executed an delivered in Chicago, Illinois
and shall be governed by and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Illinois.
(THE NEXT PAGE IS THE SIGNATURE PAGE)
- 3 -
IN WITNESS WHEREOF, this Amendment has been signed as of the date first
above appearing.
CORUS BANKSHARES, INC.
By:
----------------------------------
Its:
----------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
----------------------------------
Its:
----------------------------------
- 4 -
EXHIBIT B
---------
REPLACEMENT REVOLVING NOTE
$80,000,000.00 Date: March 31, 2005
On March 31, 2008, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of EIGHTY
MILLION and 00/100 DOLLARS ($80,000,000.00), or however much may be outstanding
from time to time, together with interest computed on the actual number of days
elapsed on the basis of a 360 day year, on any and all principal amounts
remaining unpaid hereunder from time to time outstanding from the date of
borrowing until payment at a rate equal to the Maker's option of the Prime Rate
or LIBOR, as those terms are defined in the Loan Agreement as identified below.
Interest shall be payable quarterly beginning June 30, 2005 and continuing on
the last day of each September, December, March and June thereafter. A final
payment of outstanding principal and interest will be due and payable on March
31, 2008.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Revolving Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Revolving Note shall be payable
in lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Revolving Note evidences indebtedness incurred under a Loan
Agreement dated as of June 26, 2001 (as amended from time to time, the "Loan
Agreement") between the Maker and the Payee, to which reference is hereby made.
This Revolving Note is entitled to all of the benefits provided in the Loan
Agreement. The terms of the Loan Agreement are incorporated herein by reference.
This Revolving Note may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Revolving Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
This Replacement Revolving Note replaces that certain Revolving Note in
the original principal amount of $80,000,000, dated October 1, 2004, and does
not constitute payment thereof or a novation therefor.
CORUS BANKSHARES, INC.
By:
----------------------------------
Its:
----------------------------------
B-1
FIFTH AMENDMENT TO LOAN AGREEMENT
This Fifth Amendment to Loan Agreement, dated as of August 20, 2005, is
entered into between CORUS BANKSHARES, INC., a Minnesota corporation (the
"Borrower") and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
A. The parties have previously entered into a Loan Agreement dated
as of June 26, 2001, as amended by that certain First Amendment to Loan
Agreement dated as of June 30, 2003, as amended by that certain Second Amendment
to Loan Agreement dated as of April 30, 2004, as amended by that certain Third
Amendment to Loan Agreement dated as of October 1, 2004, as amended by that
certain Fourth Amendment to Loan Agreement dated as of March 31, 2005
(collectively with all amendments and modifications, the "Agreement").
B. The Borrower has requested a modification to one of the
covenants and the Bank has agreed to the request of the Borrower, all in
accordance with the terms and provisions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have
the meaning given such terms in the Agreement.
2. Section 7(e) of the Agreement is hereby deleted in its entirety
and in lieu thereof is inserted the following:
(e) cause the Subsidiary to maintain tangible equity capital
of no less than $320,000,000. For the purposes of this Section
7(e), "tangible equity capital" shall mean the sum of the common
stock, surplus and retained earning accounts reduced by the
amount of any goodwill;
3. Section 7(g) of the Agreement is hereby deleted in its entirety
and in lieu thereof is inserted the following:
(g) cause the sum of the: (i) allowance for loan loss
reserves, and (ii) loss reserve for unfunded commitments as a
percentage of total loans of the Subsidiary to be not less than
eighty-five hundredths of one percent (.85%) at all times;
4. Borrower shall also be responsible to pay Bank's legal fees and
expenses incurred by the Bank in connection with this Amendment.
5. In order to induce the Bank to execute and deliver this
Amendment, Borrower hereby represents to the Bank that as of the date hereof and
as of the time that this Amendment becomes effective, as follows:
(a) it has all necessary power and authority to execute and
deliver this Amendment and perform its obligations hereunder;
B-1
(b) this Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their terms;
(c) each of the representations and warranties set forth in
Section 5 of the Agreement is, and shall be and remain, true and correct
(with the exception that the representations contained in Section 5(c)
shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Bank);
(d) Borrower is, and shall be and remain, in full compliance
with all of the terms and conditions of the Agreement and other loan
documents, and except as disclosed to the Bank in writing, no event of
default has occurred under the Agreement or any document in connection
therewith; and
(e) after giving effect to this Amendment, no fact or
circumstance exists which with the lapse of time, the giving of notice
or both would constitute an event of default under the Agreement.
6. This Amendment shall be effective as of the date hereof but only
when the Bank shall have received each of the following:
(a) An original of this Amendment which has been signed by
the Borrower and the Bank; and
(b) Payment of all fees and expenses incurred by Lender in
connection with the preparation of this Amendment.
7. Borrower expressly acknowledges and agrees that all collateral,
security interests, liens, pledges, and mortgages heretofore, under this
Amendment, or hereafter granted to Bank, including, without limitation, such
collateral, security interests, liens, pledges and mortgages granted under the
Agreement, and all other supplements to the Agreement, extend to and cover all
of the obligations of Borrower to Bank, now existing or hereafter arising
including, without limitation, those arising in connection with the Agreement,
as amended by this Amendment, upon the terms set forth in such agreements, all
of which security interests, liens, pledges, and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
8. The parties hereto acknowledge and agree that the terms and
provisions of this Amendment amend, add to and constitute a part of the
Agreement. Except as expressly modified and amended by the terms of this
Amendment, all of the other terms and conditions of the Agreement and all
documents executed in connection therewith or referred to or incorporated
therein remain in full force and effect and are hereby ratified, reaffirmed,
confirmed and approved.
9. If there is an express conflict between the terms of this
Amendment and the terms of the Agreement, or any of the other agreements or
documents executed in connection therewith or referred to or incorporated
therein, the terms of this Amendment shall govern and control.
10. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original.
11. This Amendment was executed an delivered in Chicago, Illinois
and shall be governed by and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Illinois.
(THE NEXT PAGE IS THE SIGNATURE PAGE)
IN WITNESS WHEREOF, this Amendment has been signed as of the date first
above appearing.
CORUS BANKSHARES, INC.
By:
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Its:
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LASALLE BANK NATIONAL ASSOCIATION
By:
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Its:
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SIXTH AMENDMENT TO LOAN AGREEMENT
This Sixth Amendment to Loan Agreement, dated as of November 25, 2005,
is entered into between CORUS BANKSHARES, INC., a Minnesota corporation (the
"Borrower") and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
A. The parties have previously entered into a Loan Agreement dated
as of June 26, 2001, as amended by that certain First Amendment to Loan
Agreement dated as of June 30, 2003, as amended by that certain Second Amendment
to Loan Agreement dated as of April 30, 2004, as amended by that certain Third
Amendment to Loan Agreement dated as of October 1, 2004, as amended by that
certain Fourth Amendment to Loan Agreement dated as of March 31, 2005 and as
amended by that certain Fifth Amendment to Loan Agreement dated as of August 20,
2005 (collectively with all amendments and modifications, the "Agreement").
B. The Borrower has requested an increase in the amount of the
Revolving Loan from $80,000,000 to $100,000,000, and has also requested an
extension of the Maturity Date, and the Bank has agreed to the request of the
Borrower, all in accordance with the terms and provisions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. All capitalized terms used herein without definition shall have
the meaning given such terms in the Agreement.
2. Paragraph 1 of the Loan Agreement is hereby amended by deleting
the number "$80,000,000" and inserting in lieu thereof the number
"$100,000,000".
3. The Maturity Date, as defined in Section 3(a) of the Agreement,
is hereby amended to November 30, 2008.
4. The Revolving Note referred to in Paragraph 3 in the form of
Exhibit B is hereby amended to refer to the Revolving Note executed by Borrower
in the principal amount of $100,000,000 and shall be replaced by the Revolving
Note attached hereto as Exhibit B.
5. Borrower shall also be responsible to pay Bank's legal fees and
expenses incurred by the Bank in connection with this Amendment.
6. In order to induce the Bank to execute and deliver this
Amendment, Borrower hereby represents to the Bank that as of the date hereof and
as of the time that this Amendment becomes effective, as follows:
(a) it has all necessary power and authority to execute and
deliver this Amendment and perform its obligations hereunder;
(b) this Amendment and the Agreement, as amended hereby,
constitute the legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their terms;
(c) each of the representations and warranties set forth in
Section 5 of the Agreement is, and shall be and remain, true and correct
(with the exception that the representations contained in Section 5(c)
shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Bank);
(d) Borrower is, and shall be and remain, in full compliance
with all of the terms and conditions of the Agreement and other loan
documents, and except as disclosed to the Bank in writing, no event of
default has occurred under the Agreement or any document in connection
therewith; and
(e) after giving effect to this Amendment, no fact or
circumstance exists which with the lapse of time, the giving of notice
or both would constitute an event of default under the Agreement.
7. This Amendment shall be effective as of the date hereof but only
when the Bank shall have received each of the following:
(a) An original of this Amendment which has been signed by
the Borrower and the Bank;
(b) Certified copies of Resolutions authorizing Borrower to
increase the Revolving Loan to $100,000,000; and
(c) Payment of all fees and expenses incurred by Lender in
connection with the preparation of this Amendment.
8. Borrower expressly acknowledges and agrees that all collateral,
security interests, liens, pledges, and mortgages heretofore, under this
Amendment, or hereafter granted to Bank, including, without limitation, such
collateral, security interests, liens, pledges and mortgages granted under the
Agreement, and all other supplements to the Agreement, extend to and cover all
of the obligations of Borrower to Bank, now existing or hereafter arising
including, without limitation, those arising in connection with the Agreement,
as amended by this Amendment, upon the terms set forth in such agreements, all
of which security interests, liens, pledges, and mortgages are hereby ratified,
reaffirmed, confirmed and approved.
9. The parties hereto acknowledge and agree that the terms and
provisions of this Amendment amend, add to and constitute a part of the
Agreement. Except as expressly modified and amended by the terms of this
Amendment, all of the other terms and conditions of the Agreement and all
documents executed in connection therewith or referred to or incorporated
therein remain in full force and effect and are hereby ratified, reaffirmed,
confirmed and approved.
2
10. If there is an express conflict between the terms of this
Amendment and the terms of the Agreement, or any of the other agreements or
documents executed in connection therewith or referred to or incorporated
therein, the terms of this Amendment shall govern and control.
11. This Amendment may be executed in one or more counterparts, each
of which shall be deemed to be an original.
12. This Amendment was executed an delivered in Chicago, Illinois
and shall be governed by and construed in accordance with the internal laws (as
opposed to conflicts of law provisions) of the State of Illinois.
(THE NEXT PAGE IS THE SIGNATURE PAGE)
3
IN WITNESS WHEREOF, this Amendment has been signed as of the date first
above appearing.
CORUS BANKSHARES, INC.
By:
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Its:
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LASALLE BANK NATIONAL ASSOCIATION
By:
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Its:
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4
EXHIBIT B
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REPLACEMENT REVOLVING NOTE
$100,000,000.00 Date: November 25, 0000
Xx November 30, 2008, for value received, CORUS BANKSHARES, INC., a
Minnesota corporation (the "Maker"), hereby promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (the "Payee") the principal sum of ONE HUNDRED
MILLION and 00/100 DOLLARS ($100,000,000.00), or however much may be outstanding
from time to time, together with interest computed on the actual number of days
elapsed on the basis of a 360 day year, on any and all principal amounts
remaining unpaid hereunder from time to time outstanding from the date of
borrowing until payment at a rate equal to the Maker's option of the Prime Rate
or LIBOR, as those terms are defined in the Loan Agreement as identified below.
Interest shall be payable quarterly beginning December 31, 2005 and continuing
on the last day of each March, June, September and December thereafter. A final
payment of outstanding principal and interest will be due and payable on
November 30, 2008.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration, or otherwise, shall bear interest
payable on demand at an interest rate per annum equal at all times to two
percent (2%) above the interest rate on this Revolving Note.
All payments hereunder shall be applied first to interest then due on
the unpaid principal balance at the rate herein specified and then to principal.
All payments of principal and interest on this Revolving Note shall be payable
in lawful money of the United States of America.
Principal and interest shall be paid to the Payee 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 Maker.
This Revolving Note evidences indebtedness incurred under a Loan
Agreement dated as of June 26, 2001 (as amended from time to time, the "Loan
Agreement") between the Maker and the Payee, to which reference is hereby made.
This Revolving Note is entitled to all of the benefits provided in the Loan
Agreement. The terms of the Loan Agreement are incorporated herein by reference.
This Revolving Note may be declared due as provided in the Loan Agreement.
In the event of default, any indebtedness due from the holder may be set
off and applied against this Revolving Note, whether due or not. The Maker also
agrees to pay all costs of collection, including court costs and reasonable
attorneys, fees incurred by the holder.
This Replacement Revolving Note replaces that certain Revolving Note in
the original principal amount of $80,000,000, dated March 31, 2005, and does not
constitute payment thereof or a novation therefor.
CORUS BANKSHARES, INC.
By:
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Its:
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B-1
