EXHIBIT 10.6 - CREDIT AGREEMENT DATED AS OF NOVEMBER 30, 2001, BETWEEN MAF
BANCORP, INC. AND XXXXXX TRUST AND SAVINGS BANK
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Credit Agreement
Dated as of November 30, 2001,
Between
MAF Bancorp, Inc.
And
Xxxxxx Trust And Savings Bank
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Table of Contents
Section Description Page
Section 1. The Credits ........................................................ 1
Section 1.1. Revolving Credit ................................................... 1
Section 1.2. Revolving Credit Loans ............................................. 1
Section 1.3. Letters of Credit .................................................. 2
Section 1.4. Term Credit ........................................................ 3
Section 1.5. Manner and Disbursement of Loans ................................... 4
Section 2. Interest and Change In Circumstances ............................... 5
Section 2.1. Interest Rate Options .............................................. 5
Section 2.2. Minimum LIBOR Portions ............................................. 6
Section 2.3. Computation of Interest ............................................ 6
Section 2.4. Manner of Rate Selection ........................................... 6
Section 2.5. Change of Law ...................................................... 6
Section 2.6. Unavailability of Deposits or Inability to Ascertain Adjusted
LIBOR ........................................................ 7
Section 2.7. Taxes and Increased Costs .......................................... 7
Section 2.8. Funding Indemnity .................................................. 8
Section 2.9. Lending Branch ..................................................... 8
Section 2.10. Discretion of Lender as to Manner of Funding. ...................... 8
Section 3. Fees, Prepayments, Terminations, and Applications. ................. 9
Section 3.1. Fees ............................................................... 9
Section 3.2. Voluntary Prepayments .............................................. 9
Section 3.3. Mandatory Termination .............................................. 10
Section 3.4. Voluntary Terminations ............................................. 10
Section 3.5. Place and Application of Payments .................................. 10
Section 3.6. Notations .......................................................... 10
Section 4. Definitions; Interpretation ........................................ 11
Section 4.1. Definitions ........................................................ 11
Section 4.2. Interpretation ..................................................... 17
Section 5. Representations and Warranties. .................................... 18
Section 5.1. Organization and Qualification ..................................... 18
Section 5.2. Subsidiaries ....................................................... 18
Section 5.3. Corporate Authority and Validity of Obligations .................... 19
Section 5.4. Use of Proceeds; Margin Stock ...................................... 19
Section 5.5. Financial Reports .................................................. 19
Section 5.6. No Material Adverse Change ......................................... 20
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Section 5.7. Full Disclosure .................................................... 20
Section 5.8. Good Title ......................................................... 20
Section 5.9. Litigation and Other Controversies ................................. 20
Section 5.10. Taxes .............................................................. 20
Section 5.11. Approvals .......................................................... 21
Section 5.12. Affiliate Transactions ............................................. 21
Section 5.13. Investment Company; Public Utility Holding Company ................. 21
Section 5.14. ERISA .............................................................. 21
Section 5.15. Compliance with Laws ............................................... 21
Section 5.16. Other Agreements ................................................... 22
Section 5.17. Merger ............................................................. 22
Section 5.18. No Default ......................................................... 22
Section 6. Conditions Precedent ............................................... 22
Section 6.1. All Advances ....................................................... 23
Section 6.2. Initial Advance .................................................... 23
Section 7. Covenants .......................................................... 24
Section 7.1. Maintenance of Business ............................................ 24
Section 7.2. Maintenance of Properties .......................................... 25
Section 7.3. Taxes and Assessments .............................................. 25
Section 7.4. Insurance .......................................................... 25
Section 7.5. Financial Reports .................................................. 26
Section 7.6. Inspection ......................................................... 27
Section 7.7. Non-Performing Assets .............................................. 28
Section 7.8. Regulatory Capital Requirements .................................... 28
Section 7.9. Adjusted Net Worth ................................................. 28
Section 7.10. Adjusted Net Income ................................................ 28
Section 7.11. Indebtedness for Borrowed Money .................................... 28
Section 7.12. Liens .............................................................. 30
Section 7.13. Mergers and Consolidations ......................................... 30
Section 7.14. Maintenance of Subsidiaries ........................................ 30
Section 7.15. Dividends and Certain Other Restricted Payments .................... 30
Section 7.16. ERISA .............................................................. 30
Section 7.17. Compliance with Laws ............................................... 30
Section 7.18. Burdensome Contracts With Affiliates ............................... 31
Section 7.19. Change in the Nature of Business ................................... 31
Section 7.20. Subordinated Debt .................................................. 31
Section 8. Events of Default and Remedies ..................................... 31
Section 8.1. Events of Default .................................................. 31
Section 8.2. Non-Bankruptcy Defaults ............................................ 33
Section 8.3. Bankruptcy Defaults ................................................ 33
Section 8.4. Collateral for Undrawn Letters of Credit ........................... 34
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Section 9. Miscellaneous ...................................................... 34
Section 9.1. Non-Business Days .................................................. 34
Section 9.2. No Waiver, Cumulative Remedies ..................................... 34
Section 9.3. Amendments ......................................................... 35
Section 9.4. Costs and Expenses ................................................. 35
Section 9.5. Documentary Taxes .................................................. 35
Section 9.6. Survival of Representations ........................................ 35
Section 9.7. Participations ..................................................... 35
Section 9.8. Notices ............................................................ 36
Section 9.9. Confidentiality .................................................... 36
Section 9.10. Headings ........................................................... 37
Section 9.11. Severability of Provisions ......................................... 37
Section 9.12. Counterparts ....................................................... 37
Section 9.13. Entire Understanding ............................................... 37
Section 9.14. Binding Nature, Governing Law, Etc ................................. 37
Section 9.15. Submission to Jurisdiction; Waiver of Jury Trial ................... 37
Signature ............................................................................ 38
Exhibit A -- Revolving Credit Note
Exhibit B -- Term Note
Exhibit C -- Compliance Certificate
Exhibit D-1 -- Opinion of Counsel
Exhibit D-2 -- Opinion of Company Counsel/Merger
Schedule 5.2 -- Subsidiaries
Schedule 7.12 -- Existing Indebtedness
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CREDIT AGREEMENT
Xxxxxx Trust and Savings Bank
Chicago, Illinois
Ladies and Gentlemen:
The undersigned, MAF Bancorp, Inc., a Delaware corporation (the "Company"),
applies to you (the "Lender") for your commitment, subject to the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, to extend credit to the Company, all as more fully
hereinafter set forth.
Section 1. The Credits.
Section 1.1. Revolving Credit. Subject to the terms and conditions hereof,
the Lender agrees to extend a revolving credit (the "Revolving Credit") to the
Company which may be availed of by the Company from time to time during the
period from and including the date hereof to but not including the Revolving
Credit Termination Date, at which time the commitment of the Lender to extend
credit under the Revolving Credit shall expire. The Revolving Credit may be
utilized by the Company in the form of Revolving Credit Loans and Letters of
Credit, all as more fully hereinafter set forth, provided that the aggregate
principal amount of Revolving Credit Loans and Letters of Credit outstanding at
any one time shall not exceed the Revolving Credit Commitment. During the period
from and including the date hereof to but not including the Revolving Credit
Termination Date, the Company may use the Revolving Credit Commitment by
borrowing, repaying and reborrowing Revolving Credit Loans in whole or in part
and/or by having the Lender issue Letters of Credit, having such Letters of
Credit expire or otherwise terminate without having been drawn upon or, if drawn
upon, reimbursing the Lender for each such drawing, and having the Lender issue
new Letters of Credit, all in accordance with the terms and conditions of this
Agreement. For purposes of this Agreement, where a determination of the unused
or available amount of the Revolving Credit Commitment is necessary, the
Revolving Credit Loans and Letters of Credit shall be deemed to utilize the
Revolving Credit Commitment in an amount equal to the outstanding principal
amounts thereof.
Section 1.2. Revolving Credit Loans. Subject to the terms and conditions
hereof, the Revolving Credit may be availed of by the Company in the form of
loans (individually a "Revolving Credit Loan" and collectively the "Revolving
Credit Loans"). Each Revolving Credit Loan shall be in an amount of $500,000 or
such greater amount which is an integral multiple of $100,000; provided,
however, that a Revolving Credit Loan, or part thereof, which bears interest
with reference to the Adjusted LIBOR shall be in such greater amount as is
required by Section 2.2 hereof. All Revolving Credit Loans made by the Lender
shall be made against and evidenced by a single Revolving Credit Note of the
Company (the "Revolving Credit Note") payable to the order of the Lender in the
amount of its Revolving Credit Commitment, with the Revolving Credit Note to be
in the form (with appropriate insertions) attached hereto as Exhibit A. The
Revolving Credit Note shall be dated the date of issuance thereof, be expressed
to bear interest as set forth in Section 2 hereof, and be expressed to mature
on the Revolving Credit Termination Date. Without regard to the principal amount
of the Revolving Credit Note stated on its face, the actual principal amount at
any time outstanding and owing by the Company on account thereof shall be the
sum of all advances then or theretofore made thereon less all payments of
principal actually received.
Section 1.3. Letters of Credit.
(a) General Terms. Subject to the terms and conditions hereof, the
Revolving Credit may be availed of by the Company in the form of standby letters
of credit issued by the Lender for the account of the Company or, at the
Company's option, for the account of the Company and MAF Developments (and any
joint venture in which MAF ~Developments is a partner), jointly and severally
(individually a "Letter of Credit" and collectively the "Letters of Credit"),
provided that the aggregate amount of Letters of Credit issued and outstanding
hereunder shall not at any time exceed $20,000,000. For purposes of this
Agreement, a Letter of Credit shall be deemed outstanding as of any time in an
amount equal to the maximum amount which could be drawn thereunder under any
circumstances and over any period of time plus any unreimbursed drawings then
outstanding with respect thereto. If and to the extent any Letter of Credit
expires or otherwise terminates without having been drawn upon, the availability
under the Revolving Credit Commitment shall to such extent be reinstated.
(b) Term. Each Letter of Credit issued hereunder shall expire not later
than 18 months from the date of issuance (or be cancelable not later than 18
months from the date of issuance and each renewal); provided, however, that for
any Letter of Credit with an expiry date extending beyond the Revolving Credit
Termination Date, the Company hereby agrees to (i) deposit cash with the Lender
on or before the Revolving Credit Termination Date in an amount equal to the
aggregate amount of such Letter of Credit or (ii) deposit with the Lender on or
before the Revolving Credit Termination Date investments in direct obligations
of the United States of America or of any agency or instrumentality thereof
whose obligations constitute full faith and credit obligations of the United
States of America in amounts and with such maturities as are acceptable to the
Lender, in each case to be held by the Lender in the Account referred to in
Section 8.4 hereof as collateral security for any and all Obligations pursuant
to the terms of Section 8.4 hereof, provided that if the amount of any such
Letter of Credit is thereafter reduced, and so long as no Default or Event of
Default has occurred and is continuing, at the request of the Company, the
Lender will immediately return any cash or investments in the Account, and any
proceeds or earnings on such cash and investments, in excess of the remaining
amount of such Letter of Credit.
(c) General Characteristics. Each Letter of Credit issued hereunder shall
be payable in U.S. Dollars, conform to the general requirements of the Lender
for the issuance of standby letters of credit as to form and substance, and be a
letter of credit which the Lender may lawfully issue.
(d) Applications. At the time the Company requests each Letter of Credit to
be issued (or prior to the first issuance of a Letter of Credit in the case of a
continuing application), the Company shall execute and deliver to the Lender an
application for such Letter of Credit in the form then customarily prescribed by
the Lender (individually an "Application" and collectively the "Applications").
Subject to the other provisions of this subsection, the obligation of the
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Company to reimburse the Lender for drawings under a Letter of Credit shall be
governed by the Application for such Letter of Credit. Anything contained in the
Applications to the contrary notwithstanding, (i) in the event the Lender is not
reimbursed by the Company for the amount the Lender pays on any drawing made
under a Letter of Credit issued hereunder by 2:00 p.m. (Chicago time) on the
date when such drawing is paid, the obligation of the Company to reimburse the
Lender for the amount of such drawing shall bear interest (which the Company
hereby promises to pay on demand) from and after the date the draft is paid
until payment in full thereof at a fluctuating rate per annum determined by
adding 2.0% to the Base Rate as from time to time in effect (computed on the
basis of a year of 360 days for the actual number of days elapsed), (ii) the
Company shall pay fees in connection with each Letter of Credit as set forth in
Section 3 hereof, (iii) except during the existence of a Default or an Event of
Default, the Lender will not call for additional collateral security for the
obligations of the Company under the Applications except as otherwise provided
in Section 1.3(b) hereof, and (iv) except during the existence of a Default or
an Event of Default, the Lender will not call for the funding of a Letter of
Credit by the Company prior to being presented with a drawing thereunder (or, in
the event the drawing is a time draft, prior to its due date) except as
otherwise provided in Section 1.3(b) hereof.
(e) Change in Laws. If the Lender shall determine that any change in any
applicable law, regulation or guideline (including, without limitation,
Regulation D of the Board of Governors of the Federal Reserve System) or any new
law, regulation or guideline, or any interpretation of any of the foregoing by
any governmental authority charged with the administration thereof or any
central bank or other fiscal, monetary or other authority having jurisdiction
over the Lender (whether or not having the force of law), shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against the Letters of Credit, or the Lender's or
the Company's liability with respect thereto; or
(ii) impose on the Lender any penalty with respect to the
foregoing or any other condition regarding this Agreement, the Applications
or the Letters of Credit;
and the Lender shall determine that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to the
Lender of issuing or maintaining the Letters of Credit hereunder (without
benefit of, or credit for, any prorations, exemptions, credits or other offsets
available under any such laws, regulations, guidelines or interpretations
thereof), then the Company shall pay on demand to the Lender from time to time
as specified by the Lender such additional amounts as the Lender shall determine
are sufficient to compensate and indemnify it for such increased cost. If the
Lender makes such a claim for compensation, it shall provide the Company a
certificate setting forth the computation of the increased cost as a result of
any event mentioned herein in reasonable detail and such certificate shall be
conclusive if reasonably determined (absent manifest error).
Section 1.4. Term Credit. Subject to the terms and conditions hereof, the
Lender agrees to make a loan (the "Term Loan") to the Company in an amount up to
the Lender's Term Loan Commitment. There shall be a single borrowing under the
Term Loan Commitment which shall be made, if at all, on or before December 10,
2001, at which time the commitment of the Lender
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to make the Term Loan under the Term Loan Commitment shall expire. There shall
be one borrowing under the Term Loan Commitment, and any portion of the Term
Loan Commitment not requested by the Company on the occasion of such borrowing
shall thereupon expire. The Term Loan made by the Lender to the Company shall be
evidenced by a Term Note of the Company (the "Term Note") payable to the order
of the Lender in the amount of its Term Loan Commitment, with the Term Note to
be in the form (with appropriate insertions) attached hereto as Exhibit B. The
Term Note shall be dated the date of issuance thereof and be expressed to bear
interest as set forth in Section 2 hereof. The Company hereby promises to make
principal payments on the Term Note in installments on the dates set forth in
column A below each in an amount equal to the amount set forth in column B below
opposite the relevant due date:
The Company hereby agrees to repay the balance of the Term Loan in the
amounts and on the dates set fourth below:
A B
Scheduled Principal
Payment Date Payment on Term Note
12/31/2002 $4,000,000
12/31/2003 $6,000,000
12/31/2004 $7,000,000
12/31/2005 $8,000,000
12/31/2006 $8,000,000
12/31/2007 $11,000,000
12/31/2008 $11,000,000 or such lesser amount
representing the remaining principal
balance of the Term Loan
Section 1.5. Manner and Disbursement of Loans. The Company shall give
written or telephonic notice to the Lender (which notice shall be irrevocable
once given) by no later than 11:00 a.m. (Chicago time) on the date the Company
requests that any Loan be made to it under the Commitments. Each such notice
shall specify the date of the Loan requested (which must be a Business Day), the
type of Loan being requested, and the amount thereof. Each Loan shall initially
constitute part of the applicable Base Rate Portion except to the extent the
Company has otherwise timely elected that such Loan, or any part thereof,
constitute part of a LIBOR Portion as provided in Section 2 hereof. The Company
agrees that the Lender may rely upon any written or telephonic notice given by
any person the Lender in good faith believes is an Authorized Representative
without the necessity of independent investigation and, in the event any
telephonic notice conflicts with any written confirmation, such telephonic
notice shall govern if the Lender has acted in reliance thereon. Subject to the
provisions of Section 6 hereof, the proceeds of each Loan shall be made
available to the Company at the principal office of the Lender in Chicago,
Illinois, in immediately available funds.
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Section 2. Interest and Change in Circumstances.
Section 2.1. Interest Rate Options.
(a) Portions. Subject to the terms and conditions of this Section 2,
portions of the principal indebtedness evidenced by the Notes (all of the
indebtedness evidenced by Notes of the same type bearing interest at the same
rate for the same period of time being hereinafter referred to as a "Portion")
may, at the option of the Company, bear interest with reference to the Base Rate
("Base Rate Portions") or with reference to the Adjusted LIBOR ("LIBOR
Portions"). Subject to the terms and conditions of this Section 2, the Base Rate
Portion or LIBOR Portions of Notes of the same type may be converted from time
to time from one basis to the other. All of the indebtedness evidenced by a Note
which is not part of a LIBOR Portion shall constitute a single Base Rate Portion
applicable to such Note. All of the indebtedness evidenced by a Note which bears
interest with reference to a particular Adjusted LIBOR for a particular Interest
Period shall constitute a single LIBOR Portion applicable to such Note. There
shall not be more than five LIBOR Portions applicable to the Revolving Credit
Note outstanding at any one time. There shall be not more than seven LIBOR
Portions applicable to the Term Note outstanding at any one time. Anything
contained herein to the contrary notwithstanding, the obligation of the Lender
to create, continue or effect by conversion any LIBOR Portion shall be
conditioned upon the fact that at the time no Default or Event of Default shall
have occurred and be continuing. The Company hereby promises to pay interest on
each Portion at the rates and times specified in this Section 2.
(b) Base Rate Portion. Each Base Rate Portion shall bear interest at the
rate per annum determined equal to the Base Rate as in effect from time to time
plus the Applicable Base Rate Margin, provided that if a Base Rate Portion or
any part thereof is not paid when due (whether by lapse of time, acceleration or
otherwise), or at the election of the Lender upon notice to the Company after
the occurrence and during the continuation of any other Event of Default, such
Portion shall bear interest, whether before or after judgment, until payment in
full of the amount then due at the rate per annum determined by adding 2.0% to
the interest rate which would otherwise be applicable thereto from time to time.
Interest on each Base Rate Portion shall be payable quarterly in arrears on the
last day of each March, June, September and December in each year and at
maturity of the applicable Note, and interest after maturity (whether by lapse
of time, acceleration or otherwise) shall be due and payable upon demand. Any
change in the interest rate on the Base Rate Portions resulting from a change in
the Base Rate shall be effective on the date of the relevant change in the Base
Rate.
(c) Libor Portions. Each LIBOR Portion shall bear interest for each
Interest Period selected therefor at a rate per annum determined by adding the
Applicable LIBOR Margin to the Adjusted LIBOR for such Interest Period, provided
that if any LIBOR Portion is not paid when due (whether by lapse of time,
acceleration or otherwise), or at the election of the Lender upon notice to the
Company after the occurrence and during the continuation of any other Event of
Default, such Portion shall bear interest, whether before or after judgment,
until payment in full of the amount then due through the end of the Interest
Period then applicable thereto at the rate per annum determined by adding 2.0%
to the interest rate which would otherwise be applicable thereto, and effective
at the end of such Interest Period such LIBOR Portion shall automatically be
converted into and added to the applicable Base Rate Portion and shall
thereafter bear interest
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at the interest rate applicable to such Base Rate Portion. Interest on each
LIBOR Portion shall be due and payable on the last day of each Interest Period
applicable thereto, and, with respect to any LIBOR Portion with an Interest
Period in excess of three months, on the last day of every three-month period
following the first day of such Interest Period and on the last day of such
Interest Period, and interest after maturity (whether by lapse of time,
acceleration or otherwise) shall be due and payable upon demand. The Company
shall notify the Lender on or before 11:00 a.m. (Chicago time) on the third
Business Day preceding the end of an Interest Period applicable to a LIBOR
Portion whether such LIBOR Portion is to continue as a LIBOR Portion, in which
event the Company shall notify the Lender of the new Interest Period selected
therefor, and in the event the Company shall fail to so notify the Lender, such
LIBOR Portion shall automatically be converted into and added to the applicable
Base Rate Portion as of and on the last day of such Interest Period.
Section 2.2. Minimum LIBOR Portions. Each LIBOR Portion applicable to the
Revolving Credit Note shall be in an amount equal to $1,000,000 or such greater
amount which is an integral multiple of $1,000,000, and each LIBOR Portion
applicable to the Term Note shall be in an amount equal to $5,000,000 or such
greater amount which is an integral multiple of $1,000,000.
Section 2.3. Computation of Interest. All interest on the Notes shall be
computed on the basis of a year of 360 days for the actual number of days
elapsed.
Section 2.4. Manner of Rate Selection. The Company shall notify the Lender
by 11:00 a.m. (Chicago time) at least three Business Days prior to the date upon
which the Company requests that any LIBOR Portion be created or that any part of
the applicable Base Rate Portion be converted into a LIBOR Portion (each such
notice to specify in each instance the amount thereof and the Interest Period
selected therefor). If any request is made to convert a LIBOR Portion into the
relevant Base Rate Portion hereunder, such conversion shall only be made so as
to become effective as of the last day of the Interest Period applicable
thereto. All requests for the creation, continuance and conversion of LIBOR
Portions under this Agreement shall be irrevocable. Such requests may be written
or oral and the Lender is hereby authorized to honor telephonic requests for
creations, continuances and conversions received by it from any person the
Lender in good faith believes to be an Authorized Representative without the
necessity of independent investigation, the Company hereby indemnifying the
Lender from any liability or loss ensuing from so acting.
Section 2.5. Change of Law. Notwithstanding any other provisions of this
Agreement or any Note, if at any time the Lender shall determine that any change
in applicable laws, treaties or regulations or in the interpretation thereof
makes it unlawful for the Lender to create or continue to maintain any LIBOR
Portion, it shall promptly so notify the Company and the obligation of the
Lender to create, continue or maintain any such LIBOR Portion under this
Agreement shall be suspended until it is no longer unlawful for the Lender to
create, continue or maintain such LIBOR Portion. The Company, on demand, shall,
if the continued maintenance of any such LIBOR Portion is unlawful, thereupon
prepay the outstanding principal amount of the affected LIBOR Portion, together
with all interest accrued thereon and all other amounts payable to the Lender
with respect thereto under this Agreement; provided, however, that the
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Company may elect to convert the principal amount of the affected LIBOR Portion
into the relevant Base Rate Portion hereunder, subject to the terms and
conditions of this Agreement.
Section 2.6. Unavailability of Deposits or Inability to Ascertain Adjusted
LIBOR. Notwithstanding any other provision of this Agreement or any Note, if
prior to the commencement of any Interest Period, the Lender shall determine
that deposits in the amount of any LIBOR Portion scheduled to be outstanding
during such Interest Period are not readily available to the Lender in the
relevant market or, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining Adjusted LIBOR, then
the Lender shall promptly give notice thereof to the Company and the obligation
of the Lender to create, continue or effect by conversion any such LIBOR Portion
in such amount and for such Interest Period shall be suspended until deposits in
such amount and for the Interest Period selected by the Company shall again be
readily available in the relevant market and adequate and reasonable means exist
for ascertaining Adjusted LIBOR.
Section 2.7. Taxes and Increased Costs. With respect to any LIBOR Portion,
if the Lender shall determine that any change in any applicable law, treaty,
regulation or guideline (including, without limitation, Regulation D of the
Board of Governors of the Federal Reserve System) or any new law, treaty,
regulation or guideline, or any interpretation of any of the foregoing by any
governmental authority charged with the administration thereof or any central
bank or other fiscal, monetary or other authority having jurisdiction over the
Lender or its lending branch or the LIBOR Portions contemplated by this
Agreement (whether or not having the force of law), shall:
(i) impose, increase, or deem applicable any 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, the Lender which is not in any instance already
accounted for in computing the interest rate applicable to such LIBOR
Portion;
(ii) subject the Lender, any LIBOR Portion or a Note to the
extent it evidences any LIBOR Portion to any tax (including, without
limitation, any United States interest equalization tax or similar tax
however named applicable to the acquisition or holding of debt
obligations and any interest or penalties with respect thereto), duty,
charge, stamp tax, fee, deduction or withholding in respect of this
Agreement, any LIBOR Portion or a Note to the extent it evidences any
LIBOR Portion, except such taxes as may be measured by the overall net
income or gross receipts of the Lender or its lending branches and
imposed by the jurisdiction, or any political subdivision or taxing
authority thereof, in which the Lender's principal executive office or
its lending branch is located;
(iii) change the basis of taxation of payments of principal and
interest due from the Company to the Lender hereunder or under a Note
to the extent it evidences any LIBOR Portion (other than by a change in
taxation of the overall net income or gross receipts of the Lender or
its lending branches); or
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(iv) impose on the Lender any penalty with respect to the
foregoing or any other condition regarding this Agreement, any LIBOR
Portion, or a Note to the extent it evidences any LIBOR Portion;
and the Lender shall determine that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to the
Lender of creating or maintaining any LIBOR Portion hereunder or to reduce the
amount of principal or interest received or receivable by the Lender (without
benefit of, or credit for, any prorations, exemption, credits or other offsets
available under any such laws, treaties, regulations, guidelines or
interpretations thereof), then the Company shall pay on demand to the Lender
from time to time as specified by the Lender the additional amounts as the
Lender shall reasonably determine are sufficient to compensate and indemnify it
for such increased cost or reduced amount. If the Lender makes such a claim for
compensation, it shall provide to the Company a certificate setting forth the
computation of the increased cost or reduced amount as a result of any event
mentioned herein in reasonable detail and such certificate shall be conclusive
if reasonably determined (absent manifest error).
Section 2.8. Funding Indemnity. In the event the Lender shall incur any
loss, cost or expense (including, without limitation, any loss (including loss
of profit), cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired or contracted to be acquired
by the Lender to fund or maintain its part of any LIBOR Portion or the relending
or reinvesting of such deposits or other funds or amounts paid or prepaid to the
Lender) as a result of:
(i) any payment of a LIBOR Portion on a date other than the
last day of the then applicable Interest Period for any reason, whether
before or after default, and whether or not such payment is required by
any provisions of this Agreement; or
(ii) any failure by the Company to create, borrow, continue or
effect by conversion a LIBOR Portion on the date specified in a notice
given pursuant to this Agreement;
then, upon the demand of the Lender, the Company shall pay to the Lender such
amount as will reimburse the Lender for such loss, cost or expense. If the
Lender requests such reimbursement under this Section, it shall provide to the
Company a certificate setting forth the computation of the loss, cost, or
expense giving rise to the request for reimbursement in reasonable detail and
such certificate shall be conclusive if reasonably determined (absent manifest
error).
Section 2.9. Lending Branch. The Lender may, at its option, elect to
make, fund or maintain the Loans hereunder at the branches or offices specified
on the signature pages hereof or at such of its branches or offices as the
Lender may from time to time elect.
Section 2.10. Discretion of Lender as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, the Lender
shall be entitled to fund and maintain its funding of all or any part of the
Notes in any manner it sees fit (provided the same is in accordance with this
Agreement), it being understood, however, that for purposes of this Agreement
all determinations hereunder with respect to LIBOR Portions (including, without
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limitation, determinations under Sections 2.6, 2.7 and 2.8 hereof) shall be made
as if the Lender had actually funded and maintained each LIBOR Portion during
each Interest Period applicable thereto through the purchase of deposits in the
relevant market in the amount of such LIBOR Portion, having a maturity
corresponding to such Interest Period, and bearing an interest rate equal to the
LIBOR for such Interest Period.
SECTION 3. Fees, Prepayments, Terminations, and Applications.
Section 3.1. Fees. (a) Revolving Credit Facility Fee. For the period from
and including the date hereof, to but not including the Revolving Credit
Termination Date, the Company shall pay to the Lender a facility fee at the rate
of .10% per annum (computed on the basis of a year of 360 days for the actual
number of days elapsed) on the average daily Revolving Credit Commitment in
effect during such time (whether or not in use). Such facility fee shall be
payable quarterly in arrears on the last day of each March, June, September, and
December in each year and on the Revolving Credit Termination Date unless the
Revolving Credit Commitment is terminated in whole on an earlier date, in which
event the facility fee for the period to the date of such termination in whole
shall be paid on the date of such termination.
(b) Letter of Credit Fees. On the date of issuance of each Letter of
Credit, and as condition thereto, and annually thereafter, the Company shall pay
to the Lender a letter of credit fee computed at the rate of 1.0% per annum
(computed on the basis of a year of 360 days for the actual number of days
elapsed) on the maximum amount of the related Letter of Credit which is
scheduled to be outstanding during the immediately succeeding twelve (12)
months. In addition to the letter of credit fee called for above, the Company
further agrees to pay to the Lender such processing and transaction fees and
charges as the Lender from time to time customarily imposes in connection with
any amendment, cancellation, negotiation and/or payment of letters of credit and
drafts drawn thereunder.
(c) Arrangement Fee. On the date hereof, the Company shall pay to the
Lender an arrangement fee as mutually agreed upon by the Company and the Lender.
Section 3.2. Voluntary Prepayments. The Company shall have the privilege of
prepaying the Revolving Credit Loans and the Term Loan in whole or in part (but
if in part, then (i) if such Loans constitute part of a Base Rate Portion, in an
amount not less than $100,000, (ii) if such Loan constitutes part of a LIBOR
Portion, in an amount not less than $1,000,000, and (iii) in each case, in an
amount such that the minimum amount required for a borrowing of Revolving Credit
Loans or for a LIBOR Portion of the relevant Loans pursuant to Sections 1.2 and
2.2 hereof remains outstanding) at any time upon 1 Business Day prior notice to
the Lender (such notice if received subsequent to 2:00 p.m. (Chicago time) on a
given day to be treated as though received at the opening of business on the
next Business Day), by paying to the Lender the principal amount to be prepaid
and (i) if such a prepayment prepays the Term Note in whole or in part, accrued
interest thereon to the date of prepayment, (ii) if such a prepayment prepays
the Revolving Credit Note in full and is accompanied by the termination in whole
of the Revolving Credit Commitment, accrued interest and facility fees thereon
to the date of prepayment, and (iii) any amounts due to the Lender under Section
2.8 hereof.
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Section 3.3. Mandatory Termination. After the occurrence of a Change of
Control, the Lender may, by written notice to the Company at any time on or
before the date occurring 120 days after the date the Company notifies the
Lender of such Change of Control, terminate the remaining Commitments and all
other obligations of the Lender hereunder on the date stated in such notice
(which shall in no event be sooner than 120 days after the occurrence of such
Change of Control). On the date the Commitments are so terminated, all
outstanding Obligations (including, without limitation, all principal of and
accrued interest on the Notes) shall forthwith be due and payable without
further demand, presentment, protest, or notice of any kind and the Company
shall immediately pay to the Lender the full amount then available for drawing
under each Letter of Credit, such amount to be held in the Account referred to
in Section 8.4 hereof (the Company agreeing to immediately make such payment on
the date the Commitments are so terminated and acknowledging and agreeing that
the Lender would not have an adequate remedy at law for the failure by the
Company to honor any such demand and that the Lender shall have the right to
require the Company to specifically perform such undertaking whether or not any
drawings or other demands for payment have been made under any Letter of
Credit).
Section 3.4. Voluntary Terminations. The Company shall have the right at
any time and from time to time, upon 1 Business Day prior notice to the Lender,
to terminate without premium or penalty and in whole or in part (but if in part,
then in an aggregate amount not less than $1,000,000 or such greater amount
which is an integral multiple of $1,000,000) the Revolving Credit Commitment,
provided that the Revolving Credit Commitment may not be reduced to an amount
less than the aggregate principal amount of the Revolving Credit Loans and
Letters of Credit then outstanding. Any termination of the Revolving Credit
Commitment pursuant to this Section may not be reinstated.
Section 3.5. Place and Application of Payments. All payments of principal,
interest, fees and all other Obligations payable hereunder and under the other
Loan Documents shall be made to the Lender at its office at 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx (or at such other place as the Lender may specify), on
the date any such payment is due and payable. Payments received by the Lender
after 2:00 p.m. (Chicago time) shall be deemed received as of the opening of
business on the next Business Day. All such payments shall be made in lawful
money of the United States of America, in immediately available funds at the
place of payment, without set-off or counterclaim and without reduction for, and
free from, any and all present or future taxes, levies, imposts, duties, fees,
charges, deductions, withholdings, restrictions and conditions of any nature
imposed by any government or any political subdivision or taxing authority
thereof (but excluding any taxes imposed on or measured by the net income of the
Lender). No amount paid or prepaid on the Term Note may be reborrowed, and
partial prepayments of the Term Note shall be applied in the order of their
scheduled maturities. Unless the Company otherwise directs, principal payments
of a Note shall be first applied to the Base Rate Portion until payment in full
thereof, with any balance applied to the relevant LIBOR Portions in the order in
which their Interest Periods expire.
Section 3.6. Notations. Each Loan made against a Note, the status of all
amounts evidenced by a Note as constituting part of the Base Rate Portion or a
LIBOR Portion, and, in the case of any LIBOR Portion, the rates of interest and
Interest Periods applicable to such Portions shall be recorded by the Lender on
its books and records or, at its option in any instance, endorsed on a schedule
to its Note and the unpaid principal balance and status, rates
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and Interest Periods so recorded or endorsed by the Lender shall, absent
manifest error, be prima facie evidence in any court or other proceeding brought
to enforce such Note of the principal amount remaining unpaid thereon, the
status of the Loan or Loans evidenced thereby and the interest rates and
Interest Periods applicable thereto; provided that the failure of the Lender to
record any of the foregoing shall not limit or otherwise affect the obligation
of the Company to repay the principal amount of each Note together with accrued
interest thereon. Prior to any negotiation of a Note, the Lender shall record on
a schedule thereto the status of all amounts evidenced thereby as constituting
part of the applicable Base Rate Portion or a LIBOR Portion and, in the case of
any LIBOR Portion, the rates of interest and the Interest Periods applicable
thereto.
Section 4. Definitions; Interpretation.
Section 4.1. Definitions. The following terms when used herein shall have
the following meanings:
"Adjusted LIBOR" means a rate per annum determined by the Lender in
accordance with the following formula:
Adjusted LIBOR = LIBOR
-----------------------
100%-Reserve Percentage
"Reserve Percentage" means, for the purpose of computing Adjusted LIBOR, the
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental or other special reserves) imposed by the
Board of Governors of the Federal Reserve System (or any successor) under
Regulation D on Eurocurrency liabilities (as such term is defined in Regulation
D) for the applicable Interest Period as of the first day of such Interest
Period, but subject to any amendments to such reserve requirement by such Board
or its successor, and taking into account any transitional adjustments thereto
becoming effective during such Interest Period. For purposes of this definition,
LIBOR Portions shall be deemed to be Eurocurrency liabilities as defined in
Regulation D without benefit of or credit for prorations, exemptions or offsets
under Regulation D. "LIBOR" means, for each Interest Period, (a) the LIBOR Index
Rate for such Interest Period, if such rate is available, and (b) if the LIBOR
Index Rate cannot be determined, the arithmetic average of the rates of interest
per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) at which
deposits in U.S. Dollars in immediately available funds are offered to the
Lender at 11:00 a.m. (London, England time) 2 Business Days before the beginning
of such Interest Period by 3 or more major banks in the interbank eurodollar
market selected by the Lender for a period equal to such Interest Period and in
an amount equal or comparable to the applicable LIBOR Portion scheduled to be
outstanding during such Interest Period. "LIBOR Index Rate" means, for any
Interest Period, the rate per annum (rounded upwards, if necessary, to the next
higher one hundred-thousandth of a percentage point) for deposits in U.S.
Dollars for a period equal to such Interest Period which appears on the Telerate
Page 3750 as of 11:00 a.m. (London, England time) on the date 2 Business Days
before the commencement of such Interest Period. "Telerate Page 3750" means the
display designated as "Page 3750" on the Telerate Service (or such other page as
may replace Page 3750 on that service or such other service as may be nominated
by the British Bankers' Association as the information vendor for the purpose of
displaying British Banker's
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Association Interest Settlement Rates for U.S. Dollar deposits). Each
determination of LIBOR made by the Lender shall be conclusive and binding on the
Company absent manifest error.
"Adjusted Net Income" means, with reference to any period, Net Income,
before extraordinary items (including, without limitation, for purposes of this
definition charges relating to SAIF recapitalization and the recapture of tax
bad debt reserves), of the Company and its Subsidiaries for such period computed
on a consolidated basis.
"Adjusted Net Worth" means, at any time the same is to be determined, Net
Worth of the Company and its Subsidiaries determined on a consolidated basis
minus the sum of (i) investments in, and loans and advances to, MAF Developments
and (ii) goodwill associated with, and all other intangible assets of, Mid
America.
"Affiliate" means any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to control another Person for the purposes of this
definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise.
"Agreement" means this Credit Agreement, as the same may be amended,
modified or restated from time to time in accordance with the terms hereof.
"Applicable Base Rate Margin" means, with respect to the Revolving Credit
Loans and the Term Loans, -0.50%.
"Applicable LIBOR Margin" means (i) with respect to the Revolving Credit
Loans, 1.0% and (ii) with respect to the Term Loans, 1.10%.
"Application" is defined in Section 1.3 hereof.
"Authorized Representative" means those persons shown on the list of
officers provided by the Company pursuant to Section 6.2(a) hereof or on any
update of any such list provided by the Company to the Lender, or any further or
different officer of the Company so named by any Authorized Representative of
the Company in a written notice to the Lender.
"Banking Subsidiary" means any Subsidiary of the Company which is a bank or
thrift organized under the laws of the United States of America or any state
thereof.
"Base Rate" means, for any day, the rate of interest announced by the
Lender from time to time as its prime commercial rate, as in effect on such day
(it being understood and agreed that such rate may not be the Lender's best or
lowest rate).
"Base Rate Portions" is defined in Section 2.1(a) hereof.
"Business Day" means any day other than a Saturday or Sunday on which banks
are not authorized or required to close in Chicago, Illinois and, when used with
respect to LIBOR
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Portions, a day on which banks are also dealing in United States Dollar deposits
in London, England and Nassau, Bahamas.
"Capital Lease" means any lease of Property which in accordance with GAAP
is required to be capitalized on the balance sheet of the lessee.
"Capitalized Lease Obligation" means the amount of the liability shown on
the balance sheet of any Person in respect of a Capital Lease determined in
accordance with GAAP.
"Change of Control" means, during the 12-month period occurring after the
date of this Agreement and each 12-month period occurring thereafter,
individuals who at the beginning of such period were directors of the Company
shall cease for any reason to constitute a majority of the board of directors of
the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto.
"Commitments" means and includes the Revolving Credit Commitment and the
Term Loan Commitment.
"Company" is defined in the introductory paragraph hereof.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or application for a letter of credit.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Company or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Default" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute thereto.
"Event of Default" means any event or condition identified as such in
Section 8.1 hereof.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied by the Company and its Subsidiaries on a basis consistent
with the preparation of the Company's most recent financial statements furnished
to the Lender pursuant to Section 5.5 hereof.
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"Indebtedness for Borrowed Money" means for any Person (without
duplication) (i) all indebtedness created, assumed or incurred in any manner by
such Person representing money borrowed (including by the issuance of debt
securities), (ii) all indebtedness for the deferred purchase price of property
or services, (iii) all indebtedness secured by any Lien upon Property of such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness, (iv) all Capitalized Lease Obligations of such Person, (v)
all Contingent Obligations of such Person, (vi) all obligations of such Person
on or with respect to letters of credit, bankers' acceptances and other
extensions of credit whether or not representing obligations for borrowed money,
and (vii) Permitted Banking Subsidiary Indebtedness of such Person; provided
however, the above shall not include (a) trade accounts payable arising in the
ordinary course of business, or (b) accrued compensation for officers and
directors of such Person.
"Interest Period" means, with respect to any LIBOR Portion, the period
commencing on, as the case may be, the creation, continuation or conversion date
with respect to such LIBOR Portion and ending 1, 2, 3, 6 or 12 months thereafter
as selected by the Company in its notice as provided herein; provided that, all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day, unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) no Interest Period may extend beyond the final maturity date of
the relevant Note;
(iii) the interest rate to be applicable to each Portion for each
Interest Period shall apply from and including the first day of such
Interest Period to but excluding the last day thereof; and
(iv) no Interest Period may be selected if after giving effect
thereto the Company will be unable to make a principal payment scheduled to
be made during such Interest Period without paying part of a LIBOR Portion
on a date other than the last day of the Interest Period applicable
thereto.
For purposes of determining an Interest Period, a month means a period starting
on one day in a calendar month and ending on a numerically corresponding day in
the next calendar month, provided, however, if an Interest Period begins on the
last day of a month or if there is no numerically corresponding day in the month
in which an Interest Period is to end, then such Interest Period shall end on
the last Business Day of such month.
"Lender" is defined in the introductory paragraph hereof.
"Letter of Credit" is defined in Section 1.3 hereof.
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"LIBOR Portions" is defined in Section 2.1(a) hereof.
"Lien" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a
vendor or lessor under any conditional sale, Capital Lease or other title
retention arrangement.
"Loan Documents" means this Agreement, the Notes, the Applications, and
each other instrument or document to be delivered hereunder or thereunder or
otherwise in connection therewith.
"Loans" means and includes Revolving Credit Loans and the Term Loan.
"MAF Developments" means MAF Developments, Inc., an Illinois corporation,
and its successors and assigns.
"Merger" means, collectively, the merger of Lincoln Acquisition Corp,. with
and into Mid Town with Mid Town surviving as a wholly-owned subsidiary of the
Company, and the merger of Mid Town Bank with and into Mid America, with Mid
America surviving the merger.
"Merger Documents" means the Agreement and Plan of Merger, dated as of July
2, 2001, among the Company, Lincoln Acquisition Corp., a wholly-owned subsidiary
of the Company and Mid Town, and all other instruments and documents executed
and delivered in connection therewith and the consummation of the Merger
described therein.
"Mid America" means Mid America Bank, fsb.
"Mid Town" means Mid Town Bancorp, Inc., an Illinois corporation.
"Mid Town Bancorp Acquisition" means the acquisition by the Company of Mid
Town and its subsidiaries pursuant to the Merger Documents.
"Net Income" means, with reference to a Person for any period, the net
income (or net loss) of such Person for such period, computed in accordance with
GAAP.
"Net Worth" means, with reference to any Person at any time the same is to
be determined, the total shareholders' equity (including capital stock,
additional paid-in capital, accumulated other comprehensive income, and retained
earnings after deducting treasury stock, but excluding any minority interests in
subsidiaries) which would appear on the balance sheet of such Person determined
in accordance with GAAP or, when such term is used with respect to the Tangible
Capital Ratio of a Banking Subsidiary, regulatory accounting principles of the
applicable bank or thrift regulatory authority.
"Non-Performing Assets" means with reference to any Person, as of any time
the same is to be determined, the sum of all non-performing assets of such
Person as determined in accordance with regulatory accounting principles
applicable to such Person, but in any event including, without limitation, (i)
loans or other extensions of credit on which any payment (whether principal or
interest or otherwise) is not made within 90 days of its original due date,
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(ii) loans which have been placed on a non-accrual basis, (iii) loans
restructured so as to not bear interest at a then market rate or so that other
terms thereof have been compromised, and (iv) property acquired by repossession
or foreclosure and, without duplication, property acquired pursuant to
in-substance foreclosure.
"Notes" means and includes the Revolving Credit Note and the Term Note.
"Obligations" means all obligations of the Company to pay principal and
interest on the Loans, all reimbursement obligations owing under the
Applications, all fees and charges payable hereunder, and all other payment
obligations of the Company arising under or in relation to any Loan Document, in
each case whether now existing or hereafter arising, due or to become due,
direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"Permitted Banking Subsidiary Indebtedness" means obligations incurred by
any Banking Subsidiary in the ordinary course of business in such circumstances
as may be incidental or usual in carrying on the banking or trust business of a
bank, thrift or trust company incurred in accordance with applicable laws and
regulations and safe and sound banking practices.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or agency or political subdivision thereof.
"Plan" means any employee pension benefit plan covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code that
either (i) is maintained by a member of the Controlled Group for employees of a
member of the Controlled Group, or (ii) is maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding five
plan years made contributions.
"Portion" is defined in Section 2.1(a) hereof.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Revolving Credit" is defined in Section 1.1 hereof.
"Revolving Credit Commitment" means $40,000,000, as such amount may be
reduced pursuant hereto.
"Revolving Credit Loan" is defined in Section 1.2 hereof.
"Revolving Credit Note" is defined in Section 1.2 hereof.
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"Revolving Credit Termination Date" means November 29, 2002, or such
earlier date on which the Revolving Credit Commitment is terminated in whole
pursuant to Section 3.3, 3.4, 8.2, or 8.3 hereof.
"Subordinated Debt" means indebtedness for borrowed money of the Company
owing to any other Person or group of Persons on such other terms and conditions
which are reasonably acceptable to the Lender, which is subordinated (subject to
applicable standstill provisions) in right of payment to the prior payment in
full of the Obligations.
"Subsidiary" means any corporation or other Person more than 50% of the
outstanding ordinary voting shares or other equity interests of which is at the
time directly or indirectly owned by the Company, by one or more of its
Subsidiaries, or by the Company and one or more of its Subsidiaries.
"Tangible Capital" means, at any time the same is to be determined, for any
Banking Subsidiary, Net Worth of such Banking Subsidiary minus intangible assets
of such Banking Subsidiary (excluding, however, from the determination of
intangible assets investments of such Banking Subsidiary in any of its real
estate subsidiaries to the extent characterized as an intangible asset).
"Tangible Capital Ratio" means, at any time the same is to be determined,
for any Banking Subsidiary, the ratio of (i) Tangible Capital of such Banking
Subsidiary to (ii) total assets minus intangible assets of such Banking
Subsidiary, all as defined and determined, except as otherwise provided herein,
from time to time by applicable bank or thrift regulatory authorities.
"Term Loan" is defined in Section 1.4 hereof.
"Term Loan Commitment" means $55,000,000.
"Term Note" is defined in Section 1.4 hereof.
"Unfunded Vested Liabilities" means, for any Plan at any time, the amount
(if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.
"Welfare Plan" means a "welfare plan" as defined in Section 3(1) of ERISA.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of the issued and
outstanding shares of capital stock (other than directors' qualifying shares as
required by law) or other equity interests are owned by the Company and/or one
or more Wholly-Owned Subsidiaries within the meaning of this definition.
Section 4.2. Interpretation. The foregoing definitions are equally applicable
to both the singular and plural forms of the terms defined. The words "hereof",
"herein", and "hereunder"
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and words of like import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. All
references to time of day herein are references to Chicago, Illinois time unless
otherwise specifically provided. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, it shall be done in accordance with GAAP except
where such principles are inconsistent with the specific provisions of this
Agreement.
Section 5. Representations and Warranties.
At the time the Company requests the initial extension of credit under this
Agreement and at all times thereafter in accordance with Section 6.1 hereof, the
Company represents and warrants to the Lender as follows:
Section 5.1. Organization and Qualification. The Company is duly
organized, validly existing and in good standing as a corporation under the laws
of the State of Delaware, has full and adequate corporate power to own its
Property and conduct its business as now conducted, and is duly licensed or
qualified and in good standing in each jurisdiction in which the nature of the
business conducted by it or the nature of the Property owned or leased by it
requires such licensing or qualifying, except where the failure to so qualify
will not have a material adverse effect on the financial condition, Properties,
business or operations of the Company. Without limiting the generality of the
foregoing, the Company is a savings and loan holding company and, as such, the
Company has received all necessary approvals from, and has filed all necessary
reports with, all applicable federal and state regulatory authorities, except
where the failure to do so will not have a material adverse effect on the
financial condition, Properties, business, or operations of the Company.
Section 5.2. Subsidiaries. Each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated or organized, as the case may be, has full and adequate power to
own its Property and conduct its business as now conducted, and is duly licensed
or qualified and in good standing in each jurisdiction in which the nature of
the business conducted by it or the nature of the Property owned or leased by it
requires such licensing or qualifying, except where the failure to so qualify
will not have a material adverse effect on the financial condition, Properties,
business or operations of such Subsidiary. Schedule 5.2 hereto identifies each
Subsidiary, the jurisdiction of its incorporation or organization, as the case
may be, the percentage of issued and outstanding shares of each class of its
capital stock or other equity interests owned by the Company and the
Subsidiaries and, if such percentage is not 100% (excluding directors'
qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of
each class issued and outstanding, in each case after giving effect to the
Merger. All of the outstanding shares of capital stock and other equity
interests of each Subsidiary are validly issued and outstanding and fully paid
and nonassessable and all such shares and other equity interests indicated on
Schedule 5.2 as owned by the Company or a Subsidiary are or will be owned
immediately after giving effect to the Merger, beneficially and of record, by
the Company or such Subsidiary free and clear of all Liens. There are no
outstanding commitments or other obligations of any Subsidiary to issue, and no
options, warrants or other rights of any Person to
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acquire, any shares of any class of capital stock or other equity interests of
any Subsidiary, except as disclosed on Schedule 5.2 hereof.
Section 5.3. Corporate Authority and Validity of Obligations. The Company
has full right and authority to enter into this Agreement and the other Loan
Documents, to make the borrowings herein provided for, to issue its Notes in
evidence thereof, and to perform all of its obligations hereunder and under the
other Loan Documents. The Loan Documents delivered by the Company have been duly
authorized, executed and delivered by the Company and constitute valid and
binding obligations of the Company enforceable in accordance with their terms
except as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether the application of such principles
is considered in a proceeding in equity or at law); and this Agreement and the
other Loan Documents do not, nor does the performance or observance by the
Company of any of the matters and things herein or therein provided for,
contravene or constitute a default under any provision of law or any judgment,
injunction, order or decree binding upon the Company or any provision of the
charter, articles of incorporation or by-laws of the Company or any material
covenant, indenture or agreement of or affecting the Company or any of its
Properties, or result in the creation or imposition of any Lien on any Property
of the Company.
Section 5.4. Use of Proceeds; Margin Stock. The Company shall use the
proceeds of (i) the Revolving Credit Loans and Letters of Credit made available
hereunder to acquire land for development in the ordinary course of business,
for general working capital purposes and to finance the Mid Town Bancorp
Acquisition and (ii) the Term Loan, to finance the Mid Town Bancorp Acquisition,
and to refinance existing indebtedness owing by the Company to the Lender. No
part of the proceeds of any Revolving Credit Loan or Letter of Credit made
hereunder will be used to purchase or carry any margin stock (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System), or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock. No part of the proceeds of the Term Loan will be used to purchase
or carry any margin stock (as defined above), or to extend credit to others for
the purpose of purchasing or carrying any such margin stock, in violation of
such Regulation U. After giving effect to the Merger, margin stock (as defined
above) constitutes less than 25% of those assets of the Company and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
Section 5.5. Financial Reports. (a) The consolidated balance sheet of the
Company and its Subsidiaries as of December 31, 2000, and the related
consolidated statements of income, retained earnings and cash flows of the
Company and its Subsidiaries for the fiscal year then ended, and accompanying
notes thereto, which financial statements are accompanied by the audit report of
KPMG LLP, independent public accountants, and the unaudited interim consolidated
balance sheet of the Company and its Subsidiaries as of June 30, 2001, and the
related consolidated statements of income, retained earnings and cash flows of
the Company and its Subsidiaries for the 6 months then ended, heretofore
furnished to the Lender, fairly present the consolidated financial condition of
the Company and its Subsidiaries as at said dates and the consolidated results
of their operations and cash flows for the periods then ended in conformity with
generally accepted accounting principles applied on a consistent basis, subject
to year-end audit adjustments in the case of such interim financial statements.
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(b) To the best of the Company's knowledge, the financial statements of Mid
Town and its subsidiaries referred to in the Proxy Statement of Mid Town and
Prospectus of the Company dated October 4, 2001, fairly present the consolidated
financial condition of Mid Town and its subsidiaries and the consolidated
results of their operations and cash flows as of the dates of such statements in
conformity with generally accepted accounting principles applied on a consistent
basis, subject to year-end audit adjustments in the case of interim financial
statements.
(c) Neither the Company nor any Subsidiary has contingent liabilities which
are material to the Company and its Subsidiaries on a consolidated basis other
than as indicated on the financial statements referred to in clause (a) above
and, to the best of the Company's knowledge, neither Mid Town nor any of its
subsidiaries has contingent liabilities which are material to Mid Town and its
subsidiaries on a consolidated basis other than as indicated on the financial
statements referred to in clause (b) above or, in all cases, with respect to
future periods, on the financial statements furnished pursuant to Section 7.5
hereof.
Section 5.6. No Material Adverse Change. Since June 30, 2001, there has
been no material adverse change in the condition (financial or otherwise) or
business prospects of the Company and its Subsidiaries taken as a whole and, to
the best of the Company's knowledge, since June 30, 2001, there has been no
material adverse change in the condition (financial or otherwise) or business
prospects of Mid Town and its subsidiaries taken as a whole.
Section 5.7. Full Disclosure. The statements and information furnished to
the Lender in connection with the negotiation of this Agreement and the other
Loan Documents and the commitments by the Lender to provide all or part of the
financing contemplated hereby do not contain any untrue statements of a material
fact or omit a material fact necessary to make the material statements contained
herein or therein not misleading, the Lender acknowledging that as to any
projections furnished to the Lender, the Company only represents that the same
were prepared on the basis of information and estimates the Company believed to
be reasonable.
Section 5.8. Good Title. The Company and its Subsidiaries each have good
and defensible title to their assets as reflected on the most recent
consolidated balance sheet of the Company and its Subsidiaries furnished to the
Lender (except for assets and Properties disposed of in the ordinary course of
business and assets subject to Liens which, individually and in the aggregate,
do not have a material adverse effect on the financial condition, Properties,
business or operations of the Company or any Subsidiary) and, in the case of
assets consisting of stock or other equity interests in Subsidiaries, subject to
no Liens.
Section 5.9. Litigation and Other Controversies. There is no litigation
or governmental proceeding or labor controversy pending, nor to the knowledge of
the Company threatened, against the Company or any Subsidiary which if adversely
determined would (a) impair the validity or enforceability of, or impair the
ability of the Company to perform its obligations under, this Agreement or any
other Loan Document or (b) result in any material adverse change in the
financial condition, Properties, business or operations of the Company or any
Subsidiary.
Section 5.10. Taxes. All tax returns required to be filed by the Company
or any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes,
assessments, fees and other governmental charges upon the Company or any
Subsidiary or upon any of their respective
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Properties, income or franchises, which are shown to be due and payable in such
returns, have been paid, except for taxes, assessments, fees and other
governmental charges being contested in good faith and for which adequate
reserves therefor have been established on the books of the Company or any
Subsidiary, as applicable. The Company does not know of any proposed additional
tax assessment against it or its Subsidiaries under applicable tax laws in
effect at the time this representation is made or deemed made for which adequate
provision in accordance with GAAP has not been made on its accounts. Adequate
provisions in accordance with GAAP for taxes on the books of the Company and
each Subsidiary have been made for all open years, and for its current fiscal
period.
Section 5.11. Approvals. No authorization, consent, license, or exemption
from, or filing or registration with, any court or governmental department,
agency or instrumentality, nor any approval or consent of the stockholders of
the Company or any other Person, is or will be necessary to the valid execution,
delivery or performance by the Company of this Agreement or any other Loan
Document, except for such consents and approvals which have been or will be
obtained prior to the initial extension of credit made under this Agreement.
Section 5.12. Affiliate Transactions. Neither the Company nor any
Subsidiary is a party to any contracts or agreements with any of its Affiliates
on terms and conditions which are less favorable to the Company or such
Subsidiary than would be usual and customary in similar contracts or agreements
between Persons not affiliated with each other.
Section 5.13. Investment Company; Public Utility Holding Company. Neither
the Company nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "public utility holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 5.14. ERISA. To the best of the Company's knowledge, the Company
and each other member of its Controlled Group has fulfilled its obligations
under the minimum funding standards of and is in compliance in all material
respects with ERISA and the Code to the extent applicable to it and has not
incurred any liability to the PBGC or a Plan under Title IV of ERISA other than
a liability to the PBGC for premiums under Section 4007 of ERISA. Neither the
Company nor any Subsidiary has any material contingent liabilities with respect
to any post-retirement benefits under a Welfare Plan, other than liability for
continuation coverage described in article 6 of Title I of ERISA.
Section 5.15. Compliance with Laws. To the best of the Company's
knowledge, the Company and each of its Subsidiaries are in compliance with the
requirements of all federal, state and local laws, rules and regulations
applicable to or pertaining to their Properties or business operations,
non-compliance with which could have a material adverse effect on the financial
condition, Properties, business or operations of the Company or any Subsidiary.
Neither the Company (or any of its directors or officers) nor any Banking
Subsidiary (or any of its directors or officers) is a party to, or subject to,
any agreement with, or directive or order issued by, any federal or state bank
or thrift regulatory authority which imposes restrictions or requirements on it
which are not generally applicable to banks or thrifts, or their holding
companies; and no action or administrative proceeding is pending or, to the
Company's
-21-
knowledge, threatened against the Company or any Banking Subsidiary or any of
their directors or officers which seeks to impose any such restriction or
requirement. Neither the Company nor any Subsidiary has received written notice
to the effect that its operations are not in compliance with any of the
requirements of applicable federal, state or local environmental, health and
safety statutes and regulations or are the subject of any governmental
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could have a material adverse effect on the
financial condition, Properties, business or operations of the Company or any
Subsidiary.
Section 5.16. Other Agreements. Neither the Company nor any Subsidiary is
in default under the terms of any covenant, indenture or agreement of or
affecting the Company, any Subsidiary or any of their Properties, which default
if uncured would have a material adverse effect on the financial condition,
Properties, business or operations of the Company or any Subsidiary.
Section 5.17. Merger. The Company and Mid America each have full right and
authority to enter into the Merger Documents executed by it and, prior to the
Company's request for the initial extension of credit to be made under this
Agreement and at all times thereafter, to perform its obligations under, and
consummate the transactions described in, the Merger Documents executed by it.
The Merger Documents have been duly authorized, executed, and delivered by the
Company and Mid America and constitute valid and binding obligations of the
Company and Mid America enforceable against them in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether the
application of such principles is considered in a proceeding in equity or at
law); and the Merger Documents do not, nor will the performance or observance by
the Company or Mid America of any of the matters or things therein provided for,
after giving effect to the required consents and approvals referred to in
Section 5.11 hereof, contravene or constitute default under any provision of law
or any judgment, injunction, order or decree binding upon the Company or Mid
America or any provision of the charter, articles of incorporation, or by-laws
of the Company or Mid America or any material covenant, indenture, or agreement
of or affecting the Company or Mid America or any of their Properties, or result
in the creation or imposition of any Lien on any Property of the Company or Mid
America. Prior to or concurrently with the Company requesting the initial
extension of credit under this Agreement, all conditions to the Merger shall
have been satisfied (including, without limitation, all necessary shareholder
and governmental consents), all filings and other matters necessary to make the
Merger effective shall have been done and performed, and the Merger shall have
become effective in accordance with the terms of the Merger Documents.
Section 5.18. No Default. No Default or Event of Default has occurred and
is continuing.
Section 6. Conditions Precedent.
The obligation of the Lender to make any Loan or to issue any Letter of
Credit under this Agreement is subject to the following conditions precedent:
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Section 6.1. All Advances. As of the time of the making of each extension
of credit (including the initial extension of credit) hereunder:
(a) each of the representations and warranties set forth in
Section 5 hereof and in the other Loan Documents shall be true and
correct in all material respects as of such time, except to the extent
the same expressly relate to an earlier date;
(b) no Default or Event of Default shall have occurred and be
continuing or would occur as a result of making such extension of
credit;
(c) after giving effect to such extension of credit the
aggregate principal amount of all Revolving Credit Loans and Letters of
Credit outstanding under this Agreement shall not exceed the Revolving
Credit Commitment then in effect;
(d) in the case of the issuance of any Letter of Credit, the
Lender shall have received a properly completed Application therefor
together with the fees called for hereby; and
(e) such extension of credit shall not violate any order,
judgment or decree of any court or other authority or any provision of
law or regulation applicable to the Lender (including, without
limitation, Regulation U of the Board of Governors of the Federal
Reserve System) as then in effect.
The Company's request for any Loan or Letter of Credit shall constitute its
warranty as to the facts specified in subsections (a) through (d), both
inclusive, above.
Section 6.2. Initial Advance. At or prior to the making of the initial
extension of credit hereunder, the following conditions precedent shall also
have been satisfied:
(a) the Lender shall have received the following (each to be
properly executed and completed) and the same shall have been approved
as to form and substance by the Lender:
(i) the Notes;
(ii) copies (executed or certified, as may be
appropriate) of all legal documents or proceedings taken in
connection with the execution and delivery of this Agreement
and the other Loan Documents to the extent the Lender or its
counsel may reasonably request;
(iii) an incumbency certificate containing the name,
title and genuine signatures of each of the Company's
Authorized Representatives; and
(iv) an arrangement fee letter.
(b) the Lender shall have received the initial fees called
for hereby;
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(c) the Lender shall have received the favorable written
opinion of counsel for the Company in substantially the form attached
hereto as Exhibit D;
(d) the Lender shall have been furnished copies, certified as
being true and correct by the Secretary or other officer of the Company
acceptable to the Lender, of (i) the Proxy and Prospectus dated October
4, 2001, and all amendments and supplements thereto, (ii) the Agreement
and Plan of Merger among the Company, Lincoln Acquisition Corp. and Mid
Town and all amendments and supplements thereto, (iii) copy of the
Certificate of Merger filed with the Illinois Secretary of State as to
the merger of Mid Town with and into Lincoln Acquisition Corp., (iv)
approval letter as to the Merger from the Office of Thrift Supervision
and acknowledgement letter from the Illinois Office of Banks & Real
Estate, (v) evidence of shareholder approval of the Merger from the
shareholders of Mid Town, (vi) certified copies of the Resolutions
adopted by the Board of Directors of the Company and of Mid Town
authorizing the execution, delivery, and performance of the Merger
Documents and the consummation of the transaction contemplated thereby,
and (vii) the opinion letter delivered by counsel to Mid Town to the
Company with respect to the Merger;
(e) the Lender shall have received a good standing
certificate for the Company (dated as of the date no earlier than 30
days prior to the date hereof) from the office of the secretary of
state of the state of its incorporation and each state in which it is
qualified to do business as a foreign corporation, and a certificate
from the Office of Thrift Supervision as to the registration of the
Company as a savings and loan holding company;
(f) the Lender shall have been furnished a statement by the
Company as to the sources and uses of cash required to finance the
Merger; and
(g) by signing in the space provided for that purpose below,
the parties agree that the Credit Agreement dated as of May 22, 1996,
as amended, between the Company and the Bank, the loans outstanding
under which are evidenced by the promissory notes of the Company issued
pursuant to the terms thereof (the "Prior Notes"), will be, effective
upon the making of the initial extension of credit hereunder,
terminated and no further borrowings may be made thereunder, and any
loans outstanding and evidenced by the Prior Notes shall be repaid in
full on the date thereof.
Section 7. Covenants.
The Company agrees that, at the time the initial extension of credit is
made to the Company under this Agreement and thereafter so long as any credit is
available to or in use by the Company hereunder, except to the extent compliance
in any case or cases is waived in writing by the Lender:
Section 7.1. Maintenance of Business. The Company shall, and shall
cause each Subsidiary to, preserve and maintain its existence; provided,
however, that nothing in this Section shall prevent the Company from dissolving
any Subsidiary (other than a Banking Subsidiary or MAF Developments) if such
action is, in the judgment of the Company, desirable
-24-
in the conduct of its business and is not disadvantageous in any material
respect to the Lender. The Company shall, and shall cause each Subsidiary to,
preserve and keep in force and effect all licenses, permits and franchises
necessary to the proper conduct of its business; provided, however, that nothing
in this Section shall prevent the Company or any Subsidiary (other than a
Banking Subsidiary or MAF Developments) from permitting any license, permit or
franchise to lapse if such action is, in the judgment of the Company, desirable
in the conduct of its business and is not disadvantageous in any material
respect to the Lender.
Section 7.2. Maintenance of Properties. The Company shall maintain,
preserve and keep its property, plant and equipment in good repair, working
order and condition (ordinary wear and tear excepted) and shall from time to
time make all needful and proper repairs, renewals, replacements, additions and
betterments thereto so that at all times the efficiency thereof shall be
preserved and maintained in all material respects, and shall cause each
Subsidiary to do so in respect of Property owned or used by it; provided,
however, that nothing in this Section shall prevent (a) the Company or any
Subsidiary (other than a Banking Subsidiary or MAF Developments) from
discontinuing the operation and maintenance of any of its properties if such
discontinuation is, in the judgment of the Company, desirable in the conduct of
its business and is not disadvantageous in any material respect to the Lender or
(b) any Banking Subsidiary from closing or selling a branch office if such
closing or sale is, in the judgment of the Company, desirable in the conduct of
its business and is not disadvantageous in any material respect to the Lender.
Section 7.3. Taxes and Assessments. The Company shall duly pay and
discharge, and shall cause each Subsidiary to duly pay and discharge, all taxes,
rates, assessments, fees and governmental charges upon or against it or its
Properties, in each case before the same become delinquent and before penalties
accrue thereon, unless and to the extent that the same are being contested in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves are provided therefor.
Section 7.4. Insurance. The Company shall insure and keep insured, and
shall cause each Subsidiary to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Company shall insure, and shall cause each Subsidiary to
insure, such other hazards and risks (including employers' and public liability
risks) with good and responsible insurance companies as and to the extent
usually insured by Persons similarly situated and conducting similar businesses.
The Company shall upon request furnish to the Lender a certificate setting forth
in summary form the nature and extent of the insurance maintained pursuant to
this Section.
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Section 7.5. Financial Reports. The Company shall, and shall cause each
Subsidiary to, maintain a standard system of accounting in accordance with GAAP
and shall furnish to the Lender and its duly authorized representatives, subject
to Section 9.9 hereof, such information respecting the business and financial
condition of the Company and its Subsidiaries (including non-financial
information and examination reports and supervisory letters to the extent
permitted by applicable regulatory authorities) as the Lender may reasonably
request; and without any request, shall furnish to the Lender:
(a) as soon as available, and in any event within 50 days after the
close of each fiscal quarter of the Company, a copy of the consolidated
balance sheet of the Company and its Subsidiaries as of the last day of
such period and the consolidated statements of income of the Company and
its Subsidiaries for the quarter and for the fiscal year-to-date period
then ended and the consolidated statements of stockholders' equity and cash
flows for the fiscal year-to-date period then ended, each in reasonable
detail showing in comparative form the figures for the corresponding date
and period in the previous fiscal year, prepared by the Company in
accordance with GAAP (subject to year-end audit adjustments and the absence
of footnote disclosures) and certified to by the Chief Executive Officer or
Chief Financial Officer of the Company;
(b) as soon as available, and in any event within 120 days after the
close of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its Subsidiaries as of the close of such
fiscal year and the consolidated statements of income, retained earnings
and cash flows of the Company and its Subsidiaries for such fiscal year,
and accompanying notes thereto, each in reasonable detail showing in
comparative form the figures for the previous fiscal year, accompanied by
an unqualified opinion thereon of KPMG LLP or another firm of independent
public accountants of recognized national standing selected by the Company,
to the effect that the financial statements have been prepared in
accordance with GAAP and present fairly in accordance with GAAP the
consolidated financial condition of the Company and its Subsidiaries as of
the close of such fiscal year and the results of their operations and cash
flows for the fiscal year then ended and that an examination of such
accounts in connection with such financial statements has been made in
accordance with generally accepted auditing standards and, accordingly,
such examination included such tests of the accounting records and such
other auditing procedures as were considered necessary in the
circumstances;
(c) as soon as available, and in any event within 50 days after the
close of each fiscal quarter of each Banking Subsidiary, all call reports
and other financial statements required to be delivered by such Banking
Subsidiary to any governmental authority or authorities having jurisdiction
over such Banking Subsidiary and all schedules thereto;
(d) promptly after receipt thereof, any additional written reports,
management letters or other detailed information contained in writing
concerning significant aspects of the Company's or any Subsidiary's
operations and financial affairs given to it by its independent public
accountants;
-26-
(e) promptly upon the furnishing thereof to the shareholders of the
Company, copies of all financial statements, reports and proxy statements
so furnished;
(f) promptly upon the filing thereof, copies of all registration
statements, Form 10-K, Form 10-Q and Form 8-K reports and proxy statements
which the Company or any of its Subsidiaries file with the Securities and
Exchange Commission;
(g) promptly upon the receipt or execution thereof, (i) notice by the
Company or any Banking Subsidiary that (1) it has received a request or
directive from any federal or state regulatory agency which requires it to
submit a capital maintenance or restoration plan or restricts the payment
of dividends by any Banking Subsidiary to the Company or (2) it has
submitted a capital maintenance or restoration plan to any federal or state
regulatory agency or has entered into a memorandum or agreement with any
such agency, including, without limitation, any agreement which restricts
the payment of dividends by any Banking Subsidiary to the Company or
otherwise imposes restrictions or requirements on it which are not
generally applicable to banks or thrifts or their holding companies, and
(ii) copies of any such plan, memorandum, or agreement, unless disclosure
is prohibited by the terms thereof and, after the Company or such Banking
Subsidiary has in good faith attempted to obtain the consent of such
regulatory agency, such agency will not consent to the disclosure of such
plan, memorandum, or agreement to the Lender;
(h) prompt written notice of a Change of Control; and
(i) promptly after knowledge thereof shall have come to the attention
of any responsible officer of the Company, written notice of any threatened
or pending litigation or governmental proceeding or labor controversy
against the Company or any Subsidiary which, if adversely determined, would
materially and adversely effect the financial condition, Properties,
business or operations of the Company or any Subsidiary or of the
occurrence of any Default or Event of Default hereunder.
Each of the financial statements furnished to the Lender pursuant to subsections
(a) and (b) of this Section shall be accompanied by a written certificate in the
form attached hereto as Exhibit C signed by the Chief Executive Officer or Chief
Financial Officer of the Company to the effect that to the best of such
officer's knowledge and belief no Default or Event of Default has occurred
during the period covered by such statements or, if any such Default or Event of
Default has occurred during such period, setting forth a description of such
Default or Event of Default and specifying the action, if any, taken by the
Company to remedy the same. Such certificate shall also set forth the
calculations supporting such statements with respect to Sections 7.7, 7.9 and
7.10 of this Agreement.
Section 7.6. Inspection. Subject to Section 9.9 hereof, the Company shall,
and shall cause each Subsidiary to, permit the Lender and its duly authorized
representatives and agents to visit and inspect any of the Properties, corporate
books and financial records of the Company and each Subsidiary, to examine and
make copies of the books of accounts and other financial records of the Company
and each Subsidiary, and to discuss the affairs, finances and accounts of the
Company and each Subsidiary with, and to be advised as to the same by, its
officers,
-27-
employees and independent public accountants (and by this provision the Company
hereby authorizes such accountants to discuss with the Lender the finances and
affairs of the Company and of each Subsidiary) at such reasonable times and
reasonable intervals as the Lender may designate; provided, however, that
neither the Company nor any Subsidiary shall be required to make available to
the Lender any customer lists or other proprietary information unless such
information is required by the Lender to determine the financial condition of
the Company or any Subsidiary or to determine the ability of the Company to meet
its obligations hereunder.
Section 7.7. Non-Performing Assets. The Company shall, as of the last day
of each fiscal quarter, maintain on a consolidated basis with its Subsidiaries,
and shall cause each Banking Subsidiary to maintain as of such day on a
consolidated basis with its subsidiaries, a ratio (a) of Non-Performing Assets
of the Company or such Banking Subsidiary on a consolidated basis, as the case
may be, to (b) the sum of (i) shareholders' equity for the Company or core
capital for such Banking Subsidiary, as the case may be, plus (ii) loan loss
reserves established by the Company or such Banking Subsidiary, as the case may
be, on a consolidated basis in accordance with regulatory accounting principles
applicable to the Company or such Banking Subsidiary, of not more than .25 to
1.0.
Section 7.8. Regulatory Capital Requirements. (a) Each Banking Subsidiary
shall at all times be at least "well capitalized" as defined in the Federal
Deposit Insurance Corporation Improvement Act of 1991 and any regulations to be
issued thereunder, as such statute or regulations may each be amended or
supplemented from time to time.
(b) The requirements described in subsection (a) above shall be
computed and determined in accordance with the rules and regulations as in
effect from time to time established by the rules and regulations as in effect
from time to time established by the appropriate governmental authority having
jurisdiction over the Company or such Banking Subsidiary. In addition to the
provisions set forth above, the Company shall, and shall cause each Banking
Subsidiary to, comply with any and all capital guidelines and requirements as in
effect from time to time established by the relevant governmental authority or
authorities having jurisdiction over the Company or any Banking Subsidiary.
Section 7.9. Adjusted Net Worth. The Company shall, as of the last day of
each fiscal quarter of the Company, maintain Adjusted Net Worth of the Company
and its Subsidiaries determined on a consolidated basis in an amount not less
than $225,000,000.
Section 7.10. Adjusted Net Income. As of the last day of each fiscal year
of the Company, the Company shall have Adjusted Net Income for the year then
ended of not less than $40,000,000.
Section 7.11. Indebtedness for Borrowed Money. The Company shall not, nor
shall it permit any Subsidiary to, issue, incur, assume, create or have
outstanding any Indebtedness for Borrowed Money; provided, however, that the
foregoing shall not restrict nor operate to prevent:
(a) the Obligations of the Company owing to the Lender hereunder and
under the other Loan Documents and any other indebtedness or obligations
of the Company or any Subsidiary owing to the Lender;
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(b) Permitted Banking Subsidiary Indebtedness;
(c) indebtedness of the Company or any Subsidiary owing to the
Company or any Subsidiary;
(d) Contingent Obligations incurred with respect to (i) the
endorsement of instruments for deposit or collection in the ordinary course
of business and (ii) private mortgage reinsurance arrangements through Mid
America Re, Inc., in the ordinary course of business;
(e) obligations of the Company or MAF Developments arising under or
in connection with letters of credit issued by or for the benefit of the
Company or MAF Developments (and any joint venture in which MAF Development
is a partner) relating to land development activities of the Company or MAF
Developments (and any joint venture in which MAF Developments is a partner)
in an aggregate amount not to exceed $30,000,000 at any one time
outstanding;
(f) indebtedness consisting of (i) unsecured Subordinated Debt and
(ii) junior subordinated debentures issued by the Company in connection
with trust preferred securities issued by one or more of the Company's
Wholly-Owned Subsidiaries qualifying as Tier 1 Capital under the Federal
Reserve Capital Requirements, and the Company's performance guarantee of
such Subsidiary's obligation to remit all payments made by the Company to
such Subsidiary in respect of the junior subordinated debentures to the
holder of the such Subsidiary's trust preferred securities, all on terms
and conditions reasonably acceptable to the Lender;
(g) indebtedness of MAF Developments (or joint venture Subsidiary) as
purchaser under land purchase contracts entered into in the ordinary course
of its land development activities and any cost to complete liabilities
related thereto and amounts due to joint venture partners incurred in the
ordinary course of its land development activities;
(h) indebtedness of the Company or any Banking Subsidiary as
purchaser under land purchase contracts for branch sites for Banking
Subsidiaries entered into in the ordinary course of business;
(i) currently outstanding indebtedness of the Company and of its
Subsidiaries not otherwise permitted under this Section which is disclosed
on Schedule 7.11 attached hereto;
(j) unsecured indebtedness of the Company or any Subsidiary not
otherwise permitted under this Section in an aggregate amount not to exceed
$10,000,000 at any one time outstanding, except that, in the event the
Revolving Credit Commitment is terminated in whole either at the Revolving
Credit Termination Date or otherwise (except by virtue of an Event of
Default), the limitation on additional indebtedness imposed by this Section
7.11(j) shall be increased to $40,000,000 in the aggregate at any one time
outstanding; and
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(k) performance or surety bonds for the benefit of the
Company or MAF Developments (or any joint venture in which MAF
Developments is a partner) in the ordinary course of land development
activities.
Section 7.12. Liens. The Company shall not, nor shall it permit any
Subsidiary to, create, incur or permit to exist any Lien of any kind on any
stock or other equity interest of any kind in any Subsidiary, whether now or
hereafter owned, directly or indirectly, by the Company or any Subsidiary.
Section 7.13. Mergers and Consolidations. The Company shall not, nor
shall it permit any Banking Subsidiary or MAF Developments to, be a party to any
merger or consolidation in which the Company, the Banking Subsidiary or MAF
Developments is not the surviving entity unless, at or prior to the consummation
of any such event, the Obligations are paid in full and the Commitments are
terminated in full.
Section 7.14. Maintenance of Subsidiaries. The Company shall not assign,
sell or transfer, or permit any Banking Subsidiary or MAF Developments to issue,
assign, sell or transfer, any shares of capital stock of a Banking Subsidiary or
MAF Developments unless, at or prior to the consummation of any such event, the
Obligations are paid in full and the Commitments are terminated in full;
provided that the foregoing shall not operate to prevent the issuance, sale and
transfer to any person of any shares of capital stock of a Banking Subsidiary or
MAF Developments solely for the purpose of qualifying, and to the extent legally
necessary to qualify, such person as a director of such Banking Subsidiary or
MAF Developments.
Section 7.15. Dividends and Certain Other Restricted Payments. The
Company shall not during any fiscal year (a) declare or pay any dividends on or
make any other distributions in respect of any class or series of its capital
stock (other than dividends payable solely in its capital stock) or (b) directly
or indirectly purchase, redeem or otherwise acquire or retire any of its capital
stock (collectively, "Restricted Payments"); provided, however, that the Company
may make any such Restricted Payment so long as no Default or Event of Default
then exists or would arise after giving effect thereto.
Section 7.16. ERISA. The Company shall, and shall cause each Subsidiary
to, promptly pay and discharge all obligations and liabilities arising under
ERISA of a character which if unpaid or unperformed might result in the
imposition of a Lien against any of its Properties. The Company shall, and shall
cause each Subsidiary to, promptly notify the Lender of (a) the occurrence of
any material adverse reportable event (as defined in ERISA) with respect to a
Plan, (b) receipt of any notice from the PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (c) its intention
to terminate or withdraw from any Plan, and (d) the occurrence of any event with
respect to any Plan which would result in the incurrence by the Company or any
Subsidiary of any material liability, fine or penalty, or any material increase
in the contingent liability of the Company or any Subsidiary with respect to any
post-retirement Welfare Plan benefit.
Section 7.17. Compliance with Laws. The Company shall, and shall cause
each Subsidiary to, comply in all respects with the requirements of all federal,
state and local laws, rules, regulations, ordinances and orders applicable to or
pertaining to their Properties or
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business operations, non-compliance with which could have a material adverse
effect on the financial condition, Properties, business or operations of the
Company and its Subsidiaries taken as a whole or could result in a Lien upon any
material portion of their Property.
Section 7.18. Burdensome Contracts With Affiliates. The Company shall
not, nor shall it permit any Subsidiary to, enter into any material contract,
agreement or business arrangement with any of its Affiliates on terms and
conditions which are less favorable to the Company or such Subsidiary than would
be usual and customary in similar contracts, agreements or business arrangements
between Persons not affiliated with each other.
Section 7.19. Change in the Nature of Business. The Company shall not,
and shall not permit any Subsidiary to, engage in any business or activity if as
a result the general nature of the business of the Company or any Subsidiary
would be changed in any material respect from the general nature of the business
engaged in by the Company or such Subsidiary on the date of this Agreement
(after giving effect to the consummation of the Mid Town Bancorp Acquisition and
the Merger).
Section 7.20. Subordinated Debt. The Company shall not, nor shall it
permit any Subsidiary to, amend or modify in any material respect any of the
terms and conditions relating to any Subordinated Debt or make any voluntary
prepayment thereof or effect any voluntary redemption thereof or make any
payment on account of any Subordinated Debt which in any such case is prohibited
under the terms of any instrument or agreement subordinating the same to the
Obligations.
Section 8. Events of Default and Remedies.
Section 8.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" hereunder:
(a) default in the payment when due of all or any part of the
principal of any Note (whether at the stated maturity thereof or at any
other time provided for in this Agreement) or of any reimbursement
obligation owing under any Application, or default for a period of 5
days in the payment when due of any interest on any Note or of any fee
or other Obligation payable by the Company hereunder or under any other
Loan Document; or
(b) default in the observance or performance of any covenant set
forth in Sections 7.5(i), 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, or 7.14
hereof; or
(c) default in the observance or performance of any provision of
Section 7.5 hereof (other than Section 7.5(i) referred to in Section
8.1(b) above) which is not remedied within 5 days after the occurrence
thereof, or default in the observance or performance of any other
provision hereof or of any other Loan Document which is not remedied
within 30 days after written notice thereof is given to the Company by
the Lender; or
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(d) any representation or warranty made by the Company herein
or in any other Loan Document, or in any statement or certificate
furnished by it pursuant hereto or thereto, or in connection with any
extension of credit made hereunder, proves untrue in any material
respect as of the date of the issuance or making thereof; or
(e) default shall occur under any Indebtedness for Borrowed
Money aggregating more than $5,000,000 issued, assumed or guaranteed by
the Company or any Subsidiary, or under any indenture, agreement or
other instrument under which the same may be issued, and such default
shall continue for a period of time sufficient to permit the
acceleration of the maturity of any such Indebtedness for Borrowed
Money (whether or not such maturity is in fact accelerated), or any
such Indebtedness for Borrowed Money shall not be paid when due
(whether by lapse of time, acceleration or otherwise); or
(f) any judgment or judgments, writ or writs, or warrant or
warrants of attachment, or any similar process or processes, the
aggregate amount of which (after reduction by the amount covered by
insurance) exceeds $5,000,000, shall be entered or filed against the
Company or any Subsidiary or against any of their Property and which
remains unvacated, unbonded, unstayed or unsatisfied for a period of 45
days; or
(g) the Company or any member of its Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of
$500,000 which it shall have become liable to pay to the PBGC or to a
Plan under Title IV of ERISA; or notice of intent to terminate a Plan
or Plans having aggregate Unfunded Vested Liabilities in excess of
$500,000 (collectively, a "Material Plan") shall be filed under Title
IV of ERISA by the Company or any other member of its Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan
against the Company or any member of its Controlled Group to enforce
Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have
been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or
(h) dissolution or termination of the existence of the
Company or any Banking Subsidiary or MAF Developments.; or
(i) any conservator or receiver shall be appointed for the
Company or any Banking Subsidiary under applicable federal or state law
applicable to banks, thrifts, or their holding companies, or any
Banking Subsidiary shall suspend payment of any material portion of its
obligations, or any Banking Subsidiary shall cease to be a federally
insured depositary institution, or a cease and desist order shall be
issued against the Company or any Banking Subsidiary pursuant to
applicable federal or state law applicable to banks, thrifts, or their
holding companies which has or is reasonably likely to have a material
adverse effect on the condition (financial or otherwise), Properties or
business prospects of such Persons, or the Company or any Banking
Subsidiary shall enter into any commitment to maintain the capital of
an insured depository institution in a required amount with any federal
or state regulator or any such regulator shall require the
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Company or any Banking Subsidiary to submit a capital maintenance or
restoration plan; or
(j) the Company, any Banking Subsidiary, or MAF Developments
shall (i) have entered involuntarily against it an order for relief
under the United States Bankruptcy Code, as amended, (ii) not pay, or
admit in writing its inability to pay, its debts generally as they
become due, (iii) make an assignment for the benefit of creditors, (iv)
apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official
for it or any substantial part of its Property, (v) institute any
proceeding seeking to have entered against it an order for relief under
the United States Bankruptcy Code, as amended, to adjudicate it
insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action in furtherance of any matter
described in parts (i) through (v) above, or (vii) fail to contest in
good faith any appointment or proceeding described in Section 8.1(k)
hereof; or
(k) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Company, any Banking
Subsidiary, or MAF Developments or any substantial part of any of their
Property, or a proceeding described in Section 8.1(j)(v) shall be
instituted against the Company, any Banking Subsidiary, or MAF
Developments, and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of 60 days.
Section 8.2. Non-Bankruptcy Defaults. When any Event of Default, other
than those described in subsection (j) or (k) of Section 8.1 hereof, has
occurred and is continuing, the Lender may, by written notice to the Company, do
all or any of the following: (a) terminate the remaining Commitments and all
other obligations of the Lender hereunder on the date stated in such notice
(which may be the date thereof); (b) declare the principal of and the accrued
interest on all outstanding Notes to be forthwith due and payable and thereupon
all outstanding Notes, including both principal and interest thereon, shall be
and become immediately due and payable together with all other amounts payable
under the Loan Documents without further demand, presentment, protest or notice
of any kind; and (c) demand that the Company immediately pay to the Lender the
full amount then available for drawing under each or any Letter of Credit, and
the Company agrees to immediately make such payment and acknowledges and agrees
that the Lender would not have an adequate remedy at law for failure by the
Company to honor any such demand and that the Lender shall have the right to
require the Company to specifically perform such undertaking whether or not any
drawings or other demands for payment have been made under any Letter of Credit.
Section 8.3. Bankruptcy Defaults. When any Event of Default described
in subsection (j) or (k) of Section 8.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Loan Documents without presentment,
demand, protest or notice of any kind, the obligation of the Lender to extend
further credit pursuant to any of the terms hereof shall immediately terminate
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and the Company shall immediately pay to the Lender the full amount then
available for drawing under all outstanding Letters of Credit, the Company
acknowledging and agreeing that the Lender would not have an adequate remedy at
law for failure by the Company to honor any such demand and that the Lender
shall have the right to require the Company to specifically perform such
undertaking whether or not any draws or other demands for payment have been made
under any of the Letters of Credit.
Section 8.4. Collateral for Undrawn Letters of Credit. (a) If the
prepayment of the amount available for drawing under any or all outstanding
Letters of Credit is required under Section 1.3(b), 3.3, 8.2, or 8.3 hereof, the
Company shall forthwith pay the amount required to be so prepaid, to be held by
the Lender as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held by
the Lender in a separate collateral account (such account, and the credit
balances, properties and any investments from time to time held therein, and any
substitutions for such account, any certificate of deposit or other instrument
evidencing any of the foregoing and all proceeds of and earnings on any of the
foregoing being collectively called the "Account") as security for, and for
application by the Lender (to the extent available) to, the reimbursement of any
payment under any Letter of Credit then or thereafter made by the Lender, and to
the payment, after the occurrence of any Event of Default, of the unpaid balance
of any Loans and all other Obligations. The Account shall be held in the name of
and subject to the exclusive dominion and control of the Lender. If and when
requested by the Company, the Lender shall invest funds held in the Account from
time to time in direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America with a remaining maturity of one year or less, provided that the Lender
is irrevocably authorized to sell investments held in the Account when and as
required to make payments out of the Account for application to amounts due and
owing from the Company to the Lender; provided, however, that if (i) the Company
shall have made payment of all such obligations referred to in subsection (a)
above, (ii) all relevant preference or other disgorgement periods relating to
the receipt of such payments have passed, and (iii) no Letters of Credit,
Commitments, or other Obligations then due and owing remain outstanding
hereunder, then the Lender shall release to the Company, at its request, any
remaining amounts held in the Account.
Section 9. Miscellaneous.
Section 9.1. Non-Business Days. If any payment hereunder becomes due and
payable on a day which is not a Business Day, the due date of such payment shall
be extended to the next succeeding Business Day on which date such payment shall
be due and payable. In the case of any payment of principal falling due on a day
which is not a Business Day, interest on such principal amount shall continue to
accrue during such extension at the rate per annum then in effect, which accrued
amount shall be due and payable on the next scheduled date for the payment of
interest.
Section 9.2. No Waiver, Cumulative Remedies. No delay or failure on the
part of the Lender or on the part of any holder of any of the Obligations in the
exercise of any power or right shall operate as a waiver thereof or as an
acquiescence in any default, nor shall any single or partial exercise of any
power or right preclude any other or further exercise thereof or the
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exercise of any other power or right. The rights and remedies hereunder of the
Lender and any of the holders of the Obligations are cumulative to, and not
exclusive of, any rights or remedies which any of them would otherwise have.
Section 9.3. Amendments. Any provision of this Agreement or the other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Company and the Lender.
Section 9.4. Costs and Expenses. The Company agrees to pay on demand the
costs and expenses of the Lender in connection with the negotiation,
preparation, execution and delivery of this Agreement, the other Loan Documents
and the other instruments and documents to be delivered hereunder or thereunder,
and in connection with the transactions contemplated hereby or thereby, and in
connection with any consents hereunder or waivers or amendments hereto or
thereto, including the fees and expenses of counsel for the Lender with respect
to all of the foregoing (whether or not the transactions contemplated hereby are
consummated). The Company further agrees to pay to the Lender all costs and
expenses (including court costs and attorneys' fees), if any, incurred or paid
by the Lender in connection with any Default or Event of Default or in
connection with the enforcement of this Agreement or any of the other Loan
Documents or any other instrument or document delivered hereunder or thereunder.
The Company further agrees to indemnify and save the Lender and any security
trustee for the Lender harmless from any and all liabilities, losses, costs and
expenses incurred by the Lender, or any such security trustee, in connection
with any action, suit or proceeding brought against the Lender, or any such
security trustee, by any Person which arises out of the transactions
contemplated or financed hereby or out of any action or inaction by the Lender
or any such security trustee hereunder or thereunder, except for such thereof as
is caused by the gross negligence or willful misconduct of the party seeking to
be indemnified. The provisions of this Section and the protective provisions of
Section 2 hereof shall survive payment of the Obligations.
Section 9.5. Documentary Taxes. The Company agrees to pay on demand any
documentary, stamp or similar taxes payable in respect of this Agreement or any
other Loan Document, including interest and penalties, in the event any such
taxes are assessed, irrespective of when such assessment is made and whether or
not any credit is then in use or available hereunder.
Section 9.6. Survival of Representations. All representations and
warranties made herein or in any of the other Loan Documents or in certificates
given pursuant hereto or thereto shall survive the execution and delivery of
this Agreement and the other Loan Documents, and shall continue in full force
and effect with respect to the date as of which they were made as long as any
credit is in use or available hereunder.
Section 9.7. Participations. The Lender may grant participations in its
extensions of credit hereunder to any other bank or other lending institution (a
"Participant"), provided that (a) no Participant shall thereby acquire any
direct rights under this Agreement and (b) no sale of a participation in
extensions of credit shall in any manner relieve the Lender of its obligations
hereunder.
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Section 9.8. Notices. Except as otherwise specified herein, all notices
hereunder shall be in writing (including, without limitation, notice by
telecopy) and shall be given to the relevant party at its address or telecopier
number set forth below, or such other address or telecopier number as such party
may hereafter specify by notice to the other given by United States certified or
registered mail, by telecopy or by other telecommunication device capable of
creating a written record of such notice and its receipt. Notices hereunder to
the Company shall be addressed to:
MAF Bancorp, Inc. Xxxxxx Trust and Savings Bank
55th and Xxxxxx 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx Attention: Xx. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopy: (000) 000-0000 Telecopy: (000) 000-0000
with a copy of all written notices
of default also to:
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each such notice, request or other communication shall be effective (a) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (b) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid or (c) if given by any other means, when delivered at the
addresses specified in this Section; provided that any notice given pursuant to
Section 1 or Section 2 hereof shall be effective only upon receipt.
Section 9.9. Confidentiality. The Lender shall hold in confidence any
nonpublic information delivered or made available to it by the Company or any
Subsidiary or their respective officers, employees and independent public
accountants. The foregoing to the contrary notwithstanding, nothing herein shall
prevent the Lender from disclosing any information delivered or made available
to it by the Company or any Subsidiary (a) upon the order of any court or
administrative agency, (b) upon the request or demand of any regulatory agency
or authority, (c) which has been publicly disclosed other than as a result of a
disclosure by the Lender which is not permitted by this Agreement, (d) in
connection with any litigation to which the Lender or any of its Affiliates may
be a party, along with the Company, any Subsidiary or any of their respective
Affiliates, (e) to the extent reasonably required in connection with the
exercise of any right or remedy under this Agreement, the other Loan Documents
or otherwise, (f) to legal counsel and financial consultants and independent
auditors of the Lender, and (g) to any actual or proposed participant or
assignee of all or part of its rights under the credit contemplated hereby
provided such participant or assignee agrees in writing to
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be bound by the duty of confidentiality under this Section to the same extent as
if it were the Lender hereunder.
Section 9.10. Headings. Section headings used in this Agreement are for
convenience of reference only and are not a part of this Agreement for any other
purpose.
Section 9.11. Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. All rights, remedies and powers provided in this Agreement and the
other Loan Documents may be exercised only to the extent that the exercise
thereof does not violate any applicable mandatory provisions of law, and all the
provisions of this Agreement and the other Loan Documents are intended to be
subject to all applicable mandatory provisions of law which may be controlling
and to be limited to the extent necessary so that they will not render this
Agreement or the other Loan Documents invalid or unenforceable.
Section 9.12. Counterparts. This Agreement may be executed in any number of
counterparts, and by different parties hereto on separate counterpart signature
pages, and all such counterparts taken together shall be deemed to constitute
one and the same instrument.
Section 9.13. Entire Understanding. This Agreement together with the other
Loan Documents constitute the entire understanding of the parties with respect
to the subject matter hereof and any prior agreements, whether written or oral,
with respect thereto are superseded hereby.
Section 9.14. Binding Nature, Governing Law, Etc. This Agreement shall be
binding upon the Company and its successors and assigns, and shall inure to the
benefit of the Lender and the benefit of its successors and assigns, including
any subsequent holder of an interest in the Obligations. The Company may not
assign its rights hereunder without the written consent of the Lender. THIS
AGREEMENT AND THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 9.15. Submission to Jurisdiction; Waiver of Jury Trial. The Company
hereby submits to the non-exclusive jurisdiction of the United States District
Court for the Northern District of Illinois and of any Illinois State court
sitting in the City of Chicago for purposes of all legal proceedings arising out
of or relating to this Agreement, the other Loan Documents or the transactions
contemplated hereby or thereby. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum. THE COMPANY AND THE LENDER EACH HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
[Signature Page to Follow]
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Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this 30th day of November, 2001.
MAF Bancorp, Inc.
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxxx , Exec. V.P. & CFO
------------------------- ----------------
(Print or Type Name) (Title)
Accepted and Agreed to at Chicago, Illinois, as of the day and year
last above written.
Xxxxxx Trust and Savings Bank
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx , V.P.
----------------------------- -------------
(Print or Type Name) (Title)
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Exhibit A
MAF Bancorp, Inc.
Revolving Credit Note
Chicago, Illinois
$40,000,000 November 30, 2001
On the Revolving Credit Termination Date, for value received, the
undersigned, MAF Bancorp, Inc., a Delaware corporation (the "Company"), hereby
promises to pay to the order of Xxxxxx Trust and Savings Bank (the "Lender"), at
the principal office of the Lender in Chicago, Illinois, the principal sum of
(i) Forty Million Dollars ($40,000,000), or (ii) such lesser amount as may at
the time of the maturity hereof, whether by acceleration or otherwise, be the
aggregate unpaid principal amount of all Revolving Credit Loans owing from the
Company to the Lender under the Revolving Credit provided for in the Credit
Agreement hereinafter mentioned.
This Note evidences loans constituting part of a "Base Rate Portion"
and "LIBOR Portions" as such terms are defined in that certain Credit Agreement
dated as of November 30, 2001, as amended, between the Company and the Lender
(said Credit Agreement, as the same may be amended, modified or restated from
time to time, being referred to herein as the "Credit Agreement") made and to be
made to the Company by the Lender under the Revolving Credit provided for under
the Credit Agreement, and the Company hereby promises to pay interest at the
office described above on each loan evidenced hereby at the rates and at the
times and in the manner specified therefor in the Credit Agreement.
Each loan made under the Revolving Credit against this Note, any
repayment of principal hereon, the status of each such loan from time to time as
part of the Base Rate Portion or a LIBOR Portion and, in the case of any LIBOR
Portion, the interest rate and Interest Period applicable thereto shall be
endorsed by the holder hereof on a schedule to this Note or recorded on the
books and records of the holder hereof (provided that such entries shall be
endorsed on a schedule to this Note prior to any negotiation hereof). The
Company agrees that in any action or proceeding instituted to collect or enforce
collection of this Note, the entries so endorsed on a schedule to this Note or
recorded on the books and records of the holder hereof shall be prima facie
evidence (absent manifest error) of the unpaid principal balance of this Note,
the status of each such loan from time to time as part of the Base Rate Portion
or a LIBOR Portion, and, in the case of any LIBOR Portion, the interest rate and
Interest Period applicable thereto.
This Note is issued by the Company under the terms and provisions of
the Credit Agreement, and this Note and the holder hereof are entitled to all of
the benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity, voluntary prepayments
may be made hereon, and certain prepayments are required to be made hereon, all
in the events, on the terms and with the effects provided in the Credit
Agreement. All
capitalized terms used herein without definition shall have the same meanings
herein as such terms are defined in the Credit Agreement.
The Company hereby promises to pay all costs and expenses (including
attorneys' fees) suffered or incurred by the holder hereof in collecting this
Note or enforcing any rights in any collateral therefor. The Company hereby
waives presentment for payment and demand. This note shall be construed in
accordance with, and governed by, the internal laws of the State of Illinois
without regard to principles of conflicts of laws.
MAF Bancorp, Inc.
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxxxxx, Exec. V.P. & CFO
------------------------- ------------------
(Print or Type Name) (Title)
-2-
Exhibit B
MAF Bancorp, Inc.
Term Note
Chicago, Illinois
$55,000,000 November 30, 2001
For Value Received, the undersigned, MAF Bancorp, Inc., a Delaware
corporation (the "Company"), hereby promises to pay to the order of Xxxxxx Trust
and Savings Bank (the "Lender"), at the principal office of the Lender in
Chicago, Illinois, the principal sum of Fifty-Five Million Dollars ($55,000,000)
or, if less, the aggregate principal amount of the Term Loan made to the Company
under Section 1.4 of the Credit Agreement hereinafter referred to, in seven (7)
consecutive annual principal installments in the amounts called for by Section
1.4 of the Credit Agreement hereinafter referred to, commencing on December 31,
2002, and continuing on the last day of each December thereafter to and
including December 31, 2008, the final maturity hereof.
This Note evidences a loan constituting part of the "Base Rate Portion"
and "LIBOR Portions" as such terms are defined in that certain Credit Agreement
dated as of November 30, 2001, between the Company and the Lender (said Credit
Agreement, as the same may be amended, modified or restated from time to time,
being referred to herein as the "Credit Agreement") made to the Company by the
Lender under the Term Loan Commitment provided for under the Credit Agreement,
and the Company hereby promises to pay interest at the office specified above on
the loan evidenced hereby at the rates and at the times and in the manner
specified therefor in the Credit Agreement.
The loan made under the Term Loan Commitment against this Note, any
repayment of principal hereon, the status of such loan from time to time as part
of the Base Rate Portion or a LIBOR Portion and, in the case of any LIBOR
Portion, the interest rate and Interest Period applicable thereto shall be
endorsed by the holder hereof on a schedule to this Note or recorded on the
books and records of the holder hereof (provided that such entries shall be
endorsed on a schedule to this Note prior to any negotiation hereof). The
Company agrees that in any action or proceeding instituted to collect or enforce
collection of this Note, the entries so endorsed on a schedule to this Note or
recorded on the books and records of the holder hereof shall be prima facie
evidence (absent manifest error) of the unpaid balance of this Note and the
status of such loan from time to time as part of the Base Rate Portion or a
LIBOR Portion and, in the case of any LIBOR Portion, the interest rate and
Interest Period applicable thereto.
This Note is issued by the Company under the terms and provisions of
the Credit Agreement, and this Note and the holder hereof are entitled to all of
the benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity and voluntary
prepayments may be made hereon, all in the events, on the terms and with the
effects provided in the Credit Agreement. All capitalized terms used herein
without definition shall have the same meanings herein as such terms are defined
in the Credit Agreement.
The Company hereby promises to pay all costs and expenses (including
attorneys' fees) suffered or incurred by the holder hereof in collecting this
Note or enforcing any rights in any collateral therefor. The Company hereby
waives presentment for payment and demand. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF ILLINOIS
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAW.
MAF Bancorp, Inc.
By /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxxxx, Exec. V.P. & CFO
------------------------- ------------------
(Print or Type Name) (Title)
-2-
Exhibit C
Compliance Certificate
To: Xxxxxx Trust and Savings Bank
Chicago, Illinois
This Compliance Certificate is furnished to Xxxxxx Trust and Savings Bank
pursuant to that certain Credit Agreement dated as of November 30, 2001, between
MAF Bancorp, Inc. and you (the "Credit Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Credit Agreement.
The Undersigned hereby certifies that:
1. I am the duly elected _________________________________ of the Company;
2. In my corporate capacity, I have reviewed the terms of the Credit
Agreement and I have made, or have caused to be made under my supervision, a
detailed review of the transactions and conditions of the Company and its
Subsidiaries during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or the occurrence of any event
which constitutes a Default or Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below;
4. The financial statements required by Section 7.5 of the Credit Agreement
and being furnished to you concurrently with this Certificate are true, correct
and complete as of the date and for the periods covered thereby; and
5. The Attachment hereto sets forth financial data and computations
evidencing the Company's compliance with certain covenants of the Credit
Agreement, all of which data and computations are, to the best of my knowledge,
true, complete and correct and have been made in accordance with the relevant
Sections of the Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Company has taken, is taking, or proposes to
take with respect to each such condition or event:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
The foregoing certifications, together with the computations set forth in
the Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _________ day of
__________________ 20___.
By
_________________________, ___________
(Print or Type Name) (Title)
-2-
Attachment To Compliance Certificate
MAF Bancorp, Inc.
Compliance Calculations for Credit Agreement
Dated as of November 30, 2001
Calculations as of _____________, 20___
================================================================================
A. Ratio of Non-Performing Assets to Stockholders' Equity/Core Capital and
Loan Loss Reserves (Section 7.7)
1. Non-Performing Assets for Company
a. Loans more than 90 days past due $________
b. Loans placed on non-accrual basis $________
c. Loans restructured $________
d. Assets acquired by repossession or
foreclosure $________
Sum of Lines 1a-1d $
========
2. Stockholders' equity and loan loss reserves
a. Stockholders' equity of Company $________
b. Loan loss reserves of Company $________
Sum of Lines 2a-2b $
========
3. Ratio of Line 1 to Line 2 ___:__
4. Non-Performing Assets for each Banking Subsidiary
a. Loans more than 90 days past due $________
b. Loans placed on non-accrual basis $________
c. Loans restructured $________
d. Assets acquired by repossession or foreclosure $________
Sum of Lines 4a-4d $
========
5. Core capital and loan loss reserves
(a) Core capital of Banking Subsidiary $
---------------
(b) Loan loss reserves of Banking Subsidiary $
---------------
Sum of Lines 5a-5b $
===============
6. Ratio of Line 4 to Line 5 _____:_____
7. Line 4 and Line 6 ratios each must be not more than 25:1.0
8. Company is in compliance?
(Circle Yes or No) Yes/No
B. Adjusted Net Worth (Section 7.9)
1. Total stockholders' equity of the Company $
============
2. Sum of
(i) investments in, and loans and advances to,
MAF Developments $
---------------
(ii) goodwill relating to, and other intangible
assets of, of Mid America $
---------------
$
============
3. Line 1 minus Line 2 $
============
4. Line 3 must be greater than or equal to $225,000,000
5. Company is in compliance?
(Circle Yes or No) Yes/No
C. Adjusted Net Income (Section 7.10)
1. Net income of the Company, before
extraordinary items $
============
2. Line 1 must be greater than $ 40,000,000
3. Company is in compliance?
(Circle Yes or No) Yes/No
-2-
EXHIBIT D
November 30, 2001
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: MAF Bancorp, Inc.
Ladies and Gentlemen:
We have acted as counsel to MAF Bancorp, Inc., a Delaware corporation (the
"Company"), in connection with that certain Credit Agreement of even date
herewith (the "Credit Agreement"), between the Company and Xxxxxx Trust and
Savings Bank (the "Bank"), an Illinois banking corporation (referred to herein
as the "Transaction"). This Opinion Letter is furnished to you at the request of
the Company pursuant to Section 6.2(c) of the Credit Agreement.
-------------
This Opinion Letter is governed by, and shall be interpreted in accordance with,
the Legal Opinion Accord (the "Accord") of the ABA Section of Business Law
(1991). As a consequence, it is subject to a number of qualifications,
exceptions, definitions, limitations on coverage and other limitations, all as
more particularly described in the Accord, including but not limited to, the
assumptions contained in (S).4 of the Accord and the General Qualifications (as
defined in the Accord), and this Opinion Letter should be read in conjunction
therewith. The law covered by the opinions expressed herein is limited to the
Federal Law of the United States and the Law of the State of Illinois. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
assigned to them in the Accord.
Based upon the foregoing and subject to the qualifications, assumptions and
limitations set forth herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good standing
under the laws of the State of Delaware and is a registered savings and loan
holding company under the Federal Savings and Loan Holding Company Act, as
amended.
2. The Company has adequate corporate power and authority to conduct
its business as it is now being conducted.
3. The execution and delivery by the Company of the documents set
forth on Exhibit A hereto (collectively, the "Transaction Documents") and the
---------
performance by the Company of its agreements under such documents have been duly
authorized by all requisite corporate action on the part of the Company.
4. The Transaction Documents have been duly executed by the Company and
are enforceable against the Company in accordance with their respective terms.
5. No approval, consent or authorization of, or filing with, any
governmental agency or authority of the United States of America or the State of
Illinois, is required on the part of the Company to make valid and legally
binding the execution, delivery and performance by the Company of the
Transaction Documents, except for approvals, consents, authorizations and
filings already obtained or made.
-2-
6. The execution and delivery by the Company of the Transaction
Documents, and the performance by the Company of its agreements under such
documents, do not (a) violate the Company's Constituent Documents, (b) assuming
the proper pay-off and termination of the prior Credit Agreement dated as of May
26, 1996 between the Company and the Bank in accordance with the terms of this
Transaction, result in a breach of, constitute a default under, or result in the
creation of any lien, security interest or other encumbrance upon any material
agreement or instrument Actually Known to us to which the Company is a party or
by which any of its properties is bound, (c) breach or otherwise violate any
existing obligation of the Company under any material decree or order of the
United States of America or the State of Illinois Actually Known to us to which
the Company is a party or in which it is named, or (d) violate applicable
provisions of statutory law or regulation.
7. The Company is not an "investment company" or an "affiliated person"
of or "promoter" or "principal underwriter" for, an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended. The
execution of the Term Note (as defined in the Credit Agreement), the application
of the proceeds thereof by the Company as provided in the Credit Agreement, and
the consummation of the transactions contemplated by the Credit Agreement will
not result in any violation by the Company of any provision of such Act or any
rule, regulation or order issued by the Securities and Exchange Commission
thereunder.
8. Assuming that the Company applies the proceeds of the Loans (as
defined in the Credit Agreement) as provided in the Credit Agreement, the Loans
will not violate the provisions of Regulations U and X of the Federal Reserve
Board.
The General Qualifications, the Bankruptcy and Insolvency Exception,
the Equitable Principles Limitations and the Other Common Qualifications apply
to the opinion set forth in paragraph 4.
We hereby confirm to you that, based solely upon a review of our
litigation docket, there are no actions or proceedings against the Company,
pending or overtly threatened in writing, before any court, governmental agency
or arbitrator which (i) seek to affect the enforceability of the Transaction
Documents, or (ii) could reasonably be expected to have a material adverse
effect on the business or financial condition of the Company.
This Opinion Letter may be relied upon by you only in connection with
the Transaction and may not be used or relied upon by you or any other person
for any purpose whatsoever, except to the extent authorized in the Accord,
without in each instance our prior written consent.
Very truly yours,
Vedder, Price, Xxxxxxx & Kammholz
JRE
MTO
-3-
EXHIBIT A
TRANSACTION DOCUMENTS
---------------------
(a) Credit Agreement dated as of November 30, 2001, between the Company
and Xxxxxx Trust and Savings Bank.
(b) Revolving Credit Note dated as of November 30, 2001, of the Company
payable to the order of the Bank in the principal sum of $40,000,000.
(c) Term Note dated as of November 30, 2001, of the Company payable to
the order of the Bank in the principal sum of $55,000,000.
-4-
Schedule 5.2
Subsidiaries
Jurisdiction of
Name Incorporation Percentage Ownership
Mid America Bank, fsb United States Company - 100%
MAF Developments, Inc. Illinois Company - 100%
Mid America Investment Services, Inc. Illinois Mid America Bank, fsb
- 100%
Mid America Finance Corporation Illinois Mid America Bank, fsb - 100%
Mid America Mortgage Securities, Inc. Illinois Mid America Bank, fsb - 100%
Mid America Insurance Agency, Inc. Illinois Mid America Investment Services,
Inc. - 100%
N.W. Financial Corporation Illinois Mid America Bank, fsb - 100%
Ambria Development Corp. Illinois N.W. Financial Corporation - 100%
Xxxxxxx Road Development Corp. Illinois N.W. Financial Corporation - 100%
Reigate Xxxxx Development Corp. Illinois N.W. Financial Corporation - 100%
Centre Point Title Services, Inc. Illinois Mid America Bank, fsb - 100%
MAF Realty Co., L.L.C. - III Delaware Mid America Bank, fsb - 100%
MAF Realty Co., L.L.C. - IV Delaware MAF Realty Co., L.L.C. - III -
100%*
Lincoln Acquisition Corp. Illinois Company - 100%
________________
* 11% of the preferred membership interests of MAF Realty Co., L.L.C. - IV is
owned by employees, former employees and directors of Mid America Bank. The
remaining preferred membership interests and all of the common membership
interests are owned by MAF Realty Co., L.L.C. - III.
Jurisdiction of
Name Incorporation Percentage Ownership
Mid America Re, Inc. Vermont Mid America Investment
Services, Inc. - 100%
Mid Town Development Corporation Illinois Company - 100%
Equitable Finance Corp. Illinois Company - 100%
-2-
Schedule 7.11
1. LaSalle Bank has issued a $250,000 letter of credit on behalf of Mid
America Re, Inc. for the benefit of the State of Vermont relating to the state's
capital requirements for captive mortgage reinsurance companies.
2. Mid America Investment Services, Inc. ("MAIS") has recorded on its books
as of October 31, 2001, an amount of $6,075,925 classified as A/P-Other. This
relates to a property MAIS sold in 2000 (which had previously been REO of the
Bank and had been contributed to MAIS), under an agreement in which the buyer
assumed an industrial revenue bond obligation in the amount of $6,000,000. Mid
America has issued a letter of credit guaranteeing the repayment of the IRB
obligation and this letter of credit remains outstanding. Because Mid America
provided an additional loan to the buyers for tenant improvements and remains
contingently liable relative to the IRB obligation (pursuant to the letter of
credit), for GAAP purposes, MAIS could not record this transaction as a sale.
MAIS was required to keep the liability (including the deferred profit on the
sale of approximately $83,000) on its books as well as the asset relating to the
property of $6,000,872 (recorded as A/R-Other)
-3-
