EXHIBIT 10.6
LOAN AGREEMENT
BETWEEN
BANK ONE, NA
AND
FIRST BUSEY CORPORATION
Dated as of June 1, 2004
i
TABLE OF CONTENTS
Page
----
ARTICLE I THE LOANS AND THE NOTES................................................. 2
1.1. Certain Definitions...................................................... 2
1.2. The Loans................................................................ 5
1.3. The Notes................................................................ 7
1.4. General Payment Provisions............................................... 7
1.5. Advances Prior to Interest Rate Determination............................ 9
1.6. Determination of Interest Rate on Advances; Renewals and Conversions..... 10
1.7. Collateral............................................................... 10
1.8. Expenses................................................................. 11
1.9. The Closing.............................................................. 11
ARTICLE II CONDITIONS ............................................................ 12
2.1. Documents................................................................ 12
2.2. Other Conditions of Borrowing............................................ 13
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................ 14
3.1. Corporate Organization................................................... 14
3.2. Capital Stock of the Borrower............................................ 15
3.3. Capital Stock of the Bank Subsidiaries................................... 16
3.4. Margin Securities........................................................ 16
3.5. Financial Statements..................................................... 16
3.6. Title to Properties...................................................... 17
3.7. Transaction is Legal and Authorized...................................... 18
3.8. No Defaults or Restrictions.............................................. 18
3.9. Governmental Consent..................................................... 19
3.10. Taxes................................................................... 19
3.11. Compliance with Law..................................................... 19
3.12. Restrictions on the Borrower............................................ 20
3.13. ERISA................................................................... 20
3.14. No Material Adverse Change.............................................. 20
3.15. Loans................................................................... 17
3.16. Reserve for Possible Loan and Lease Losses.............................. 21
3.17. Regulatory Enforcement Actions.......................................... 21
3.18. Hazardous Materials..................................................... 21
3.19. Pending Litigation...................................................... 22
3.20. Investment Company Act.................................................. 23
3.21. No Burdensome Agreements................................................ 23
3.22. Solvency................................................................ 23
3.23. Corporate Names......................................................... 23
3.24. No Misstatement......................................................... 23
ARTICLE IV COVENANTS.............................................................. 24
i
4.1. Negative Covenants....................................................... 24
4.2. Affirmative Covenants.................................................... 26
ARTICLE V EVENTS OF DEFAULT; DEFAULT; RIGHTS UPON DEFAULT......................... 32
5.1. Events of Default....................................................... 32
5.2. Remedies of the Lender.................................................. 35
ARTICLE VI MISCELLANEOUS.......................................................... 36
6.1. Waiver By the Lender..................................................... 36
6.2. Entire Agreement and Modifications of Agreement.......................... 36
6.3. Notices.................................................................. 36
6.4. Counterparts............................................................. 37
6.5. Successors and Assigns................................................... 37
6.6. Governing Law............................................................ 37
6.7. Severability............................................................. 38
6.8. Survival of Representations and Warranties............................... 39
6.9. Extensions and Renewals.................................................. 39
6.10. Interest Rate Regulation................................................ 39
6.11. Accounting Terms........................................................ 39
6.12. Participations.......................................................... 39
6.13. Additional Actions...................................................... 39
6.14. Revival of Liabilities.................................................. 40
6.15. Change of Control....................................................... 40
6.16. Release; Environmental Indemnity........................................ 40
SCHEDULES:
Schedule 3.2 - Borrower
Schedule 3.3 - Subsidiaries
Schedule 3.6 - Financing Statements
Schedule 3.13 - ERISA
Schedule 3.15 - Contested Loans
Schedule 3.19 - Pending Litigation
Schedule 4.1 - Certain Lienholders
ii
LOAN AGREEMENT
This LOAN AGREEMENT ("Agreement"), dated as of June 1, 2004, is executed
and delivered by and between FIRST BUSEY CORPORATION, a financial holding
company incorporated under the laws of the State of Nevada, having its principal
place of business at the location referenced in Section 6.3 below ("Borrower"),
and BANK ONE, NA, a national banking association, having its principal place of
business at the location referenced in Section 6.3 below ("Lender").
R E C I T A L S:
A. The Borrower issued to Lender a Promissory Note, dated January 24,
2004, in the amount of $10,000,000 (the "Old Note") and Borrower and Lender
entered a LIBOR Agreement dated January 24, 2004 relating to the Old Note.
B. The Borrower's obligations under the Old Note were secured by the
Amended and Restated Stock Pledge Agreement, dated October 29, 1999 (the "Old
Pledge Agreement").
C. As of the date hereof, the Borrower does not owe anything to Lender
under the Old Note.
D. The Borrower desires to borrow $42,000,000 from Lender (the "Term
Loan") which will be evidenced by a Promissory Note, dated June 1, 2004, as the
same may be amended, restated, supplemented or modified from time to time (the
"Term Note"), and the Borrower wishes to establish a revolving line of credit of
$10,000,000 with Lender (the "Revolving Loan" with the Term Loan and the
Revolving Loan being referred to collectively as the "Loans") which will be
evidenced by a Promissory Note, dated June 1, 2004, as the same may be amended,
restated, supplemented or modified from time to time (the "Revolving Note" with
the Term Note and the Revolving Note being collectively referred to herein as
the "Notes").
E. To secure the obligations of Borrower to Lender under the Notes,
Borrower and Lender executed and delivered that certain Stock Pledge and
Security Agreement, dated as of June 1, 2004 ("Pledge Agreement"), pursuant to
which Borrower pledged certain securities to and in favor of Lender.
F. The Lender is willing to lend to the Borrower up to an aggregate
principal amount of Fifty-Two Million Dollars ($52,000,000) under the Loans in
accordance with the terms, subject to the conditions, and in reliance on the
representations, warranties, and covenants, set forth herein and in the other
documents and instruments entered into, or delivered in connection with, or
relating to, the Loans (collectively, including this Agreement, the "Loan
Documents").
G. The Borrower shall use the proceeds of the Loans to acquire all of the
issued and outstanding shares of First Capital Bankshares, Inc. pursuant to the
Merger Agreement, dated January 5, 2004, by and between Borrower and FBC
Acquisition II Corporation and First Capital Bankshares, Inc. ("FCB") for an
aggregate purchase price of Forty-Two Million Dollars
($42,000,000), with any remaining proceeds to be used for general corporate
purposes.
H. The Borrower is a financial holding company that, as of the date
hereof, owns: (i) 1,100,000 shares ("Busey Shares") of the outstanding common
stock of Busey Bank, an Illinois state-chartered bank with its main banking
premises located in Urbana, Illinois ("Busey"), and such Busey Shares represent
100% of the outstanding capital stock of Busey Bank.
I. The Busey Shares and all other shares pledged in substitution may be
referred to collectively as the "Pledge Subsidiary Shares."
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, and agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
THE LOANS AND THE NOTES
I. CERTAIN DEFINITIONS. AS USED IN THIS AGREEMENT, THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING DEFINITIONS.
A. "ADVANCE" SHALL MEAN ANY ADVANCE MADE WITH RESPECT TO
THE LOANS AND SHALL INCLUDE THE INITIAL ADVANCES MADE AT
CLOSING AS WELL AS ADVANCES THAT RESULT FROM THE CONVERSION OR
RENEWAL OF PREVIOUS ADVANCES.
B. "AFFILIATE" SHALL MEAN, WITH RESPECT TO A PERSON, ANY
OTHER PERSON CONTROLLING, CONTROLLED BY OR UNDER COMMON
CONTROL WITH SUCH PERSON.
C. "BANK SUBSIDIARIES" SHALL MEAN BUSEY, BUSEY FLORIDA, AND
FIRST CAPITAL.
D. "BUSEY FLORIDA" SHALL MEAN BUSEY BANK FLORIDA.
E. "BUSINESS DAY" SHALL MEAN: (i) FOR ALL PURPOSES OTHER
THAN AS COVERED BY CLAUSE (ii) HEREOF, ANY DAY, OTHER THAN
SATURDAY, SUNDAY, A DAY THAT IS A LEGAL HOLIDAY UNDER THE LAWS
OF THE STATE OF ILLINOIS OR ANY OTHER DAY ON WHICH BANKING
INSTITUTIONS LOCATED IN ILLINOIS ARE AUTHORIZED OR REQUIRED BY
LAW OR OTHER GOVERNMENTAL ACTION TO CLOSE; AND (ii) WITH
RESPECT TO DETERMINATIONS IN CONNECTION WITH, AND PAYMENTS OF
PRINCIPAL AND INTEREST IN EURODOLLAR ADVANCES, ANY DAY
2
WHICH IS A BUSINESS DAY DESCRIBED IN CLAUSE (i) AND WHICH IS
ALSO A DAY FOR TRADING BY AND BETWEEN BANKS IN U.S.
DOLLAR-DENOMINATED DEPOSITS IN THE LONDON INTERBANK EURODOLLAR
MARKET.
F. "ENVIRONMENTAL CLAIM" AS DEFINED IN SECTION 4.2(i),(iV).
G. "EURODOLLAR ADVANCE" SHALL MEAN AN ADVANCE THAT BEARS
INTEREST BASED ON THE LIBOR RATE.
H. "EURODOLLAR RESERVE REQUIREMENT" SHALL MEAN THE MAXIMUM
RESERVE REQUIREMENT PERCENTAGE (EXPRESSED AS A DECIMAL) AS
SPECIFIED IN REGULATION D OF THE FRB THAT THE LENDER
DETERMINES WOULD BE APPLICABLE ON THE FIRST DAY OF ANY
INTEREST PERIOD IN RESPECT OF ANY EURODOLLAR ADVANCE, BUT
SUBJECT TO ANY AMENDMENTS TO SUCH RESERVE REQUIREMENT BY THE
FRB, AND TAKING INTO ACCOUNT ANY TRANSITIONAL ADJUSTMENTS
THERETO BECOMING EFFECTIVE DURING SUCH INTEREST PERIOD.
EURODOLLAR ADVANCES 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.
I. "FIRST CAPITAL" SHALL MEAN FIRST CAPITAL BANK.
J. "FRB" SHALL MEAN THE BOARD OF GOVERNORS OF THE FEDERAL
RESERVE SYSTEM.
K. "GOVERNMENT AGENCY" SHALL MEAN ANY FEDERAL OR STATE
GOVERNMENTAL DEPARTMENT, COMMISSION, BOARD, REGULATORY
AUTHORITY OR AGENCY INCLUDING, WITHOUT LIMITATION, THE FRB,
THE OBRE, THE OFFICE OF THRIFT SUPERVISION (THE "OTS"), AND
THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE "FDIC")
(COLLECTIVELY, THE "GOVERNMENTAL AGENCIES").
L. "GOVERNMENTAL AUTHORIZATIONS" SHALL MEAN LICENSE, PERMIT
OR APPROVAL BY ANY OR ALL GOVERNMENTAL AGENCY AS REQUIRED.
M. "IMMEDIATE FAMILY MEMBER" OF A PERSON SHALL MEAN A
LINEAL DESCENDANT OF SUCH PERSON.
N. "INDEBTEDNESS" OF A PERSON SHALL MEAN AND INCLUDE: (i)
ALL ITEMS ARISING FROM THE BORROWING OF MONEY THAT, ACCORDING
TO GAAP NOW IN EFFECT, WOULD BE INCLUDED IN DETERMINING TOTAL
LIABILITIES AS SHOWN ON THE BALANCE SHEET OF SUCH PERSON; (ii)
ALL OBLIGATIONS SECURED BY ANY LIEN IN PROPERTY OR ASSETS
OWNED BY SUCH PERSON IRRESPECTIVE OF WHETHER SUCH OBLIGATIONS
SHALL HAVE BEEN ASSUMED; (iii) ALL GUARANTEES AND SIMILAR
CONTINGENT LIABILITIES WITH RESPECT TO OBLIGATIONS OF OTHERS;
AND (iV) ALL OTHER OBLIGATIONS (INCLUDING, WITHOUT LIMITATION,
LETTERS OF CREDIT) EVIDENCING OBLIGATIONS TO OTHERS.
3
O. "INTEREST PERIOD" SHALL MEAN, FOR A DESIGNATED ADVANCE,
THE PERIOD OF TIME DURING WHICH THE INTEREST RATE SHALL APPLY.
THE INTEREST PERIOD FOR ANY EURODOLLAR ADVANCE SHALL BE 30,
60, 90, OR 180 DAYS FROM AND AFTER THE DATE ON WHICH SUCH
EURODOLLAR ADVANCE IS MADE, BUT SHALL NOT EXCEED THE TERM LOAN
MATURITY DATE OR THE REVOLVING LOAN MATURITY DATE.
P. "LIBOR RATE" MEANS, WITH RESPECT TO EACH INTEREST
PERIOD, A RATE PER ANNUM (ROUNDED UPWARD, IF NECESSARY, TO THE
NEAREST 1/16 OF 1%) DETERMINED PURSUANT TO THE FOLLOWING
FORMULA:
LIBOR Rate = Telerate Quoted Rate
--------------------
1-Eurodollar Reserve
Requirement
Q. "LIEN" MEANS A LIEN, CLAIM, CHARGE, MORTGAGE,
ASSIGNMENT, EASEMENT, PRIORITY, PREFERENCE, RESTRICTION,
ENCUMBRANCE, PLEDGE, OR SECURITY INTEREST, OF ANY KIND,
NATURE, OR CHARACTER.
R. "MERGER AGREEMENT" SHALL MEAN MERGER AGREEMENT DATED
JANUARY 5, 2004, BY AND BETWEEN BORROWER, FBC ACQUISITION II
CORP, AND FIRST CAPITAL BANKSHARES, INC. ("FCB") FOR AN
AGGREGATE PURCHASE PRICE OF FORTY-TWO MILLION DOLLARS
($42,000,000.00), WITH ANY REMAINING PROCEEDS TO BE USED FOR
GENERAL CORPORATE PURPOSES.
S. "OBRE" MEANS THE OFFICE OF BANKS AND REAL ESTATE OF THE
STATE OF ILLINOIS.
T. "PERSON" SHALL MEAN AN INDIVIDUAL, A PARTNERSHIP, A
CORPORATION, A LIMITED LIABILITY COMPANY, AN ASSOCIATION, A
JOINT STOCK COMPANY, A TRUST, A JOINT VENTURE, AN
UNINCORPORATED ORGANIZATION, AND ANY DOMESTIC OR FOREIGN
FEDERAL, STATE, LOCAL, OR GOVERNMENT, AND EACH POLITICAL
SUBDIVISION THEREOF, AND OTHER BUREAU, BOARD, AGENCY,
COMMISSION, COURT, TRIBUNAL, DEPARTMENT, INSTRUMENTALITY, AND
ENTITY EXERCISING EXECUTIVE, LEGISLATIVE, JUDICIAL,
REGULATORY, OR ADMINISTRATIVE FUNCTIONS.
U. "PRIME RATE" SHALL MEAN THE RATE OF INTEREST (EXPRESSED
AS A PERCENTAGE PER ANNUM) MOST RECENTLY ANNOUNCED OR
PUBLISHED PUBLICLY FROM TIME TO TIME BY THE LENDER AS ITS
PRIME RATE OR BASE RATE OF INTEREST, WHICH IS NOT NECESSARILY
THE LOWEST OR MOST FAVORABLE RATE OF INTEREST CHARGED BY THE
LENDER ON COMMERCIAL LOANS AT ANY ONE TIME. THE RATE OF
INTEREST SHALL CHANGE AUTOMATICALLY AND IMMEDIATELY AS AND
WHEN THE PRIME RATE OR BASE RATE SHALL CHANGE, WITHOUT NOTICE
TO THE BORROWER, AND ANY NOTICE TO WHICH IT MAY BE ENTITLED IS
HEREBY WAIVED, AND ANY SUCH CHANGE IN THE LENDER'S PRIME RATE
OR BASE RATE SHALL NOT AFFECT ANY OF THE TERMS AND CONDITIONS
OF THE NOTES (AS
4
DEFINED BELOW) OR THIS AGREEMENT, ALL OF WHICH SHALL REMAIN IN
FULL FORCE AND EFFECT.
V. "PRIME RATE ADVANCE" SHALL MEAN AN ADVANCE THAT BEARS
INTEREST BASED ON THE PRIME RATE.
W. "SUBSIDIARIES" MEANS FBC ACQUISITION II CORPORATION AND
THE BANK SUBSIDIARIES.
X. "TELERATE QUOTED RATE" SHALL MEAN, WITH RESPECT TO EACH
INTEREST PERIOD, AND IN ACCORDANCE WITH THE NORMAL PRACTICE OF
THE LENDER IN THE LONDON INTERBANK EURODOLLAR MARKET, THE
OFFERED RATE FOR THE PERIOD EQUAL TO, OR NEXT GREATER THAN,
THE INTEREST PERIOD FOR U.S. DOLLAR DEPOSITS OF NOT LESS THAN
$1,000,000.00 AS OF 11:00 A.M. (CITY OF LONDON, ENGLAND TIME)
TWO (2) BUSINESS DAYS PRIOR TO THE FIRST DAY OF THE INTEREST
PERIOD AS SHOWN ON THE DISPLAY DESIGNATED AS "BRITISH BANKERS
ASSOCIATION INTEREST SETTLEMENT RATES" ON REUTERS SCREEN FRDB,
OR SUCH OTHER SCREEN AS MAY REPLACE SUCH SCREEN ON REUTERS FOR
THE PURPOSE OF DISPLAYING SUCH RATE. IN THE EVENT THAT SUCH
RATE IS NOT AVAILABLE ON REUTERS, THEN SUCH OFFERED RATE SHALL
BE OTHERWISE INDEPENDENTLY DETERMINED BY LENDER IN ITS
REASONABLE JUDGMENT FROM AN ALTERNATE, SUBSTANTIALLY SIMILAR
INDEPENDENT SOURCE AVAILABLE TO LENDER OR SHALL BE CALCULATED
BY LENDER BY A SUBSTANTIALLY SIMILAR METHODOLOGY AS THAT
THERETOFORE USED TO DETERMINE SUCH OFFERED RATE.
II. THE LOANS. THE LENDER AGREES TO EXTEND TO THE BORROWER THE
FOLLOWING CREDIT FACILITIES IN AN AGGREGATE PRINCIPAL AMOUNT AT ANY
TIME OUTSTANDING NOT TO EXCEED FIFTY-TWO MILLION DOLLARS
($52,000,000):
5
A. THE TERM LOAN. THE LENDER AGREES TO EXTEND THE TERM LOAN
TO THE BORROWER IN ACCORDANCE WITH THE TERMS OF, AND SUBJECT
TO THE CONDITIONS SET FORTH IN, THIS AGREEMENT, THE TERM NOTE
(AS DEFINED BELOW), AND THE OTHER LOAN DOCUMENTS. AN INITIAL
ADVANCE UNDER THE TERM LOAN SHALL BE MADE ON THE CLOSING DATE
AND ANY OBLIGATION UNDER THE TERM LOAN SHALL EXPIRE IF NOT
DRAWN WITHIN 30 DAYS THEREAFTER, ANY SUCH ADVANCE MAY BE
CONVERTED OR RENEWED FROM TIME TO TIME IN ACCORDANCE WITH THE
TERMS AND SUBJECT TO THE CONDITIONS SET FORTH IN THIS
AGREEMENT. SUBJECT TO SECTION VI, ANY ADVANCE UNDER THE TERM
LOAN SHALL BE TREATED AS:
1. A EURODOLLAR ADVANCE AND SHALL BEAR INTEREST PER
ANNUM AT A RATE EQUAL TO THE LIBOR RATE PLUS ONE HUNDRED
AND TWENTY-FIVE (125) BASIS POINTS; OR
2. AT THE BORROWER'S ELECTION MADE IN ACCORDANCE WITH
THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH
HEREIN, A PRIME RATE ADVANCE AND SHALL BEAR INTEREST PER
ANNUM EQUAL TO THE PRIME RATE.
B. THE REVOLVING LOAN. THE LENDER AGREES TO EXTEND THE
REVOLVING LOAN TO THE BORROWER IN ACCORDANCE WITH THE TERMS
OF, AND SUBJECT TO THE CONDITIONS SET FORTH IN, THIS
AGREEMENT, THE REVOLVING NOTE (AS DEFINED BELOW), AND THE
OTHER LOAN DOCUMENTS. AN INITIAL ADVANCE UNDER THE REVOLVING
LOAN SHALL BE MADE ON THE CLOSING DATE AT THE REQUEST OF THE
BORROWER AND SUBSEQUENT ADVANCES CAN BE MADE AS PROVIDED IN
THE AGREEMENT AT THE REQUEST OF THE BORROWER AND, THEREAFTER,
ANY SUCH ADVANCE MAY BE CONVERTED OR RENEWED FROM TIME TO TIME
IN ACCORDANCE WITH THE TERMS AND SUBJECT TO THE CONDITIONS SET
FORTH IN THIS AGREEMENT. SUBJECT TO SECTION 1.6, ANY ADVANCE
UNDER THE REVOLVING LOAN SHALL BE TREATED AS:
1. A EURODOLLAR ADVANCE AND SHALL BEAR INTEREST PER
ANNUM AT A RATE EQUAL TO THE LIBOR RATE PLUS ONE HUNDRED
AND TWENTY-FIVE (125) BASIS POINTS; OR
2. AT THE BORROWER'S ELECTION MADE IN ACCORDANCE WITH
THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH
HEREIN, A PRIME RATE ADVANCE AND SHALL BEAR INTEREST PER
ANNUM EQUAL TO THE PRIME RATE.
C. REQUIRED PAYMENTS.
1. THE TERM LOAN SHALL BE PAID AS FOLLOWS: A
PRINCIPAL PAYMENT OF FOUR MILLION DOLLARS ($4,000,000)
WILL BE MADE ON THE TERM LOAN BY JANUARY 25, 2006 AND
ANNUALLY BY EACH SUBSEQUENT JANUARY 25TH THEREAFTER. THE
BORROWER MAY PAY THE ANNUAL PRINCIPAL PAYMENT IN
QUARTERLY INSTALLMENTS OR ANNUALLY IN ITS SOLE
DISCRETION. THE FINAL PAYMENT OF ALL OUTSTANDING AMOUNTS
DUE UNDER THE TERM LOAN, INCLUDING, BUT NOT LIMITED TO,
PRINCIPAL, ACCRUED BUT UNPAID INTEREST, AND ANY EXPENSES
PURSUANT TO SECTION VIII, SHALL BE PAID ON JUNE 1, 2011,
OR SUCH LATER DATE THROUGH WHICH THE TERM LOAN MAY BE
EXTENDED OR RENEWED IN THE SOLE AND ABSOLUTE DISCRETION
OF THE LENDER (THE "TERM LOAN MATURITY DATE"), OR SUCH
EARLIER DATE ON WHICH SUCH AMOUNTS SHALL BECOME DUE AND
PAYABLE ON ACCOUNT OF
6
ACCELERATION BY THE LENDER IN ACCORDANCE WITH THE TERMS
OF THE TERM NOTE AND THIS AGREEMENT
2. THE REVOLVING LOAN, INCLUDING, BUT NOT LIMITED TO,
PRINCIPAL, ACCRUED BUT UNPAID INTEREST, AND ANY EXPENSES
PURSUANT TO SECTION VIII, SHALL BE DUE AND PAYABLE ON
JANUARY 21, 2005, OR SUCH LATER DATE THROUGH WHICH THE
REVOLVING LOAN MAY BE EXTENDED OR RENEWED IN THE SOLE
AND ABSOLUTE DISCRETION OF THE LENDER (THE "REVOLVING
LOAN MATURITY DATE"), OR SUCH EARLIER DATE ON WHICH SUCH
AMOUNTS SHALL BECOME DUE AND PAYABLE ON ACCOUNT OF
ACCELERATION BY THE LENDER IN ACCORDANCE WITH THE TERMS
OF THE REVOLVING NOTE AND THIS AGREEMENT.
3. INTEREST SHALL ACCRUE ON THE TERM LOAN AND THE
REVOLVING LOAN BEGINNING ON THE CLOSING DATE, AND SHALL
BE PAYABLE QUARTERLY, IN ARREARS, ON THE THE 25TH DAY OF
APRIL, JULY, OCTOBER, AND JANUARY, COMMENCING ON JULY
25, 2004 AND CONTINUING QUARTERLY THEREAFTER, IF NOT
SOONER PAID, ON THE TERM LOAN MATURITY DATE OR REVOLVING
LOAN MATURITY DATE, AS APPLICABLE. ALL AMOUNTS
OUTSTANDING FROM TIME TO TIME UNDER EACH OF THE NOTES
SHALL BEAR INTEREST ON THE BASIS OF A 360-DAY YEAR,
COUNTING THE ACTUAL NUMBER OF DAYS ELAPSED TO AND
INCLUDING THE DATE OF PAYMENT.
III. THE NOTES. THE TERM LOAN SHALL BE EVIDENCED BY A PROMISSORY
NOTE IN THE AGGREGATE PRINCIPAL AMOUNT OF FORTY-TWO MILLION DOLLARS
($42,000,000), TO BE EXECUTED AND DELIVERED CONCURRENTLY HEREWITH,
SUBSTANTIALLY IN THE FORM OF EXHIBIT A HERETO. THE REVOLVING LOAN
SHALL BE EVIDENCED BY A PROMISSORY NOTE IN THE AGGREGATE PRINCIPAL
AMOUNT OF TEN MILLION DOLLARS ($10,000,000), TO BE EXECUTED AND
DELIVERED CONCURRENTLY HEREWITH, SUBSTANTIALLY IN THE FORM OF
EXHIBIT B HERETO. THE NOTES IN THIS AGREEMENT SHALL REFER TO EACH
NOTE THAT MAY BE DELIVERED IN SUBSTITUTION OR EXCHANGE FOR ANY OF
SUCH NOTES AND, WHEN APPLICABLE, SHALL INCLUDE THE SINGULAR NUMBER
AS WELL AS THE PLURAL.
IV. GENERAL PAYMENT PROVISIONS.
7
A. USURY. THE PARTIES HERETO INTEND TO CONFORM STRICTLY TO
APPLICABLE USURY LAWS AS IN EFFECT FROM TIME TO TIME DURING
THE TERMS OF THE LOANS. ACCORDINGLY, IF THE TRANSACTION
CONTEMPLATED HEREBY WOULD BE USURIOUS UNDER APPLICABLE LAW
(INCLUDING THE LAWS OF THE UNITED STATES OF AMERICA, OR OF ANY
OTHER JURISDICTION WHOSE LAWS MAY BE MANDATORILY APPLICABLE),
THEN, IN THAT EVENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS AGREEMENT OR ANY OF THE NOTES, THE BORROWER AND THE
LENDER AGREE THAT THE AGGREGATE OF ALL CONSIDERATION THAT
CONSTITUTES INTEREST UNDER APPLICABLE LAW THAT IS CONTRACTED
FOR, CHARGED OR RECEIVED UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED THE MAXIMUM
AMOUNT OF INTEREST ALLOWED BY APPLICABLE LAW, AND ANY EXCESS
SHALL BE CREDITED TO THE BORROWER BY THE LENDER (OR IF SUCH
CONSIDERATION SHALL HAVE BEEN PAID IN FULL, SUCH EXCESS
REFUNDED TO THE BORROWER BY THE LENDER).
B. DEFAULT RATE OF INTEREST. UPON THE OCCURRENCE OF ANY
DEFAULT (AS SUCH TERM IS DEFINED IN SECTION I), EXCEPT FOR A
DEFAULT PURSUANT TO SECTION I.J, THE RATE OF INTEREST ON THE
NOTES (THE "DEFAULT RATE OF INTEREST") SHALL BE ONE HUNDRED
AND FIFTY BASIS POINTS ABOVE THE INTEREST RATE OTHERWISE
APPLICABLE FROM THE DATE OF OCCURRENCE, AND DURING THE
CONTINUANCE, OF THE DEFAULT; PROVIDED, FURTHER, THAT UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT UNDER SECTION I.J HEREOF,
THE DEFAULT RATE OF INTEREST SHALL BE THREE HUNDRED BASIS
POINTS ABOVE THE INTEREST RATE OTHERWISE APPLICABLE FROM THE
DATE, AND DURING THE CONTINUANCE, OF THE EVENT OF DEFAULT.
C. APPLICATION OF PAYMENTS. ALL PAYMENTS RECEIVED BY THE
LENDER FROM, OR ON BEHALF OF, THE BORROWER SHALL BE APPLIED IN
THE FOLLOWING ORDER OF PRIORITY: FIRST, TO AMOUNTS DUE UNDER
SECTION VIII, SECOND TO ACCRUED INTEREST UNDER THE TERM NOTE,
THIRD TO ACCRUED INTEREST UNDER THE REVOLVING NOTE, FOURTH TO
PRINCIPAL AMOUNTS OUTSTANDING UNDER THE REVOLVING NOTE, AND
FIFTH TO PRINCIPAL AMOUNTS OUTSTANDING UNDER THE TERM NOTE;
PROVIDED, HOWEVER, THAT AFTER THE DATE ON WHICH THE FINAL
PAYMENT OF PRINCIPAL WITH RESPECT TO ANY LOAN IS DUE OR
FOLLOWING AND DURING ANY DEFAULT, ALL PAYMENTS RECEIVED ON
ACCOUNT OF THE BORROWER'S LIABILITIES (AS SUCH TERM IS DEFINED
IN SECTION VII) SHALL BE APPLIED IN WHATEVER ORDER,
COMBINATION AND AMOUNTS AS THE LENDER DETERMINES, IN ITS SOLE
AND ABSOLUTE DISCRETION, TO ALL COSTS, EXPENSES AND OTHER
INDEBTEDNESS OWING TO THE LENDER EXCEPT IN SUCH CASE OF
PREPAYMENTS, PRINCIPAL ONLY. NO AMOUNT PAID OR PREPAID ON THE
TERM LOAN MAY BE REBORROWED.
D. METHOD OF PAYMENT. THE BORROWER WILL PAY TO THE LENDER
IN IMMEDIATELY AVAILABLE FUNDS, AT ITS OFFICE AT THE ADDRESS
AS SPECIFIED IN SECTION III, OR SUCH OTHER ADDRESS AS THE
LENDER SHALL SPECIFY IN WRITING, ALL AMOUNTS PAYABLE TO IT IN
RESPECT OF THE PRINCIPAL OF, OR INTEREST ON, EACH OF THE NOTES
THEN-HELD BY THE LENDER, WITHOUT ANY
8
PRESENTMENT, DEMAND, PROTEST, OR OTHER NOTICE OF ANY KIND. ALL
SUMS AND AMOUNTS DUE, OWING, OR OTHERWISE TO BE PAID UNDER ANY
OF THE LOAN DOCUMENTS SHALL BE PAID IN SUCH COIN OR CURRENCY
OF THE UNITED STATES WHICH SHALL BE LEGAL TENDER IN PAYMENT OF
ALL DEBTS AND DUES, PUBLIC AND PRIVATE, AT THE TIME OF
PAYMENTS. LENDER IS HEREBY AUTHORIZED TO RECORD ON THE FACE OF
ANY NOTE (OR ANY SCHEDULE ATTACHED THERETO), OR TO OTHERWISE
RECORD IN ITS BOOKS AND RECORDS, ALL AMOUNTS DUE ON ANY NOTE
AND ANY MODIFICATION, AMENDMENT, ALTERATION, GUARANTY OR
ASSUMPTION OF ANY SUCH NOTE (WHICH RECORDINGS, ABSENT MANIFEST
ERROR, SHALL BE CONCLUSIVE AND BINDING EVIDENCE OF THE BALANCE
DUE AND OWING ON SUCH NOTE); PROVIDED, HOWEVER, THAT THE
FAILURE OF LENDER TO MAKE ANY SUCH NOTATIONS OR RECORDINGS
SHALL NOT LIMIT OR OTHERWISE AFFECT ANY OBLIGATIONS OF
BORROWER OR RIGHT OF LENDER HEREUNDER, OR UNDER ANY NOTE OR
ANY LOAN DOCUMENT.
E. PREPAYMENT. THE BORROWER MAY, UPON AT LEAST ONE BUSINESS
DAY'S NOTICE TO THE LENDER, PREPAY, WITHOUT PENALTY, ALL OR A
PORTION OF THE PRINCIPAL AMOUNT OUTSTANDING UNDER THE
REVOLVING LOAN AND THE TERM LOAN IN A MINIMUM AGGREGATE AMOUNT
OF $100,000 OR ANY LARGER INTEGRAL MULTIPLE OF $50,000 BY
PAYING THE PRINCIPAL AMOUNT TO BE PREPAID. IN ADDITION,
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE
IMMEDIATELY PRECEDING SENTENCE, THE DATE OF ANY PREPAYMENT
PURSUANT TO THIS SECTION SHALL BE CONSIDERED TO BE THE
BUSINESS DAY FOLLOWING RECEIPT OF THE PREPAYMENT BY THE LENDER
UNLESS SUCH PREPAYMENT IS RECEIVED BY THE LENDER BEFORE 1:00
P.M. CHICAGO TIME AND IS MADE IN IMMEDIATELY AVAILABLE FUNDS.
F. PAYMENTS TO BE MADE ON BUSINESS DAYS. IF ANY PAYMENT TO
BE MADE BY THE BORROWER HEREUNDER SHALL BECOME DUE ON A DAY
OTHER THAN A BUSINESS DAY, THEN SUCH PAYMENT SHALL BE MADE ON
THE NEXT SUCCEEDING BUSINESS DAY AND SUCH EXTENSION OF TIME
SHALL BE INCLUDED IN COMPUTING ANY INTEREST IN RESPECT OF SUCH
PAYMENT.
V. ADVANCES PRIOR TO INTEREST RATE DETERMINATION. NOTWITHSTANDING
ANY PROVISION HEREIN TO THE CONTRARY, IF LENDER DETERMINES, IN ITS
SOLE AND ABSOLUTE DISCRETION, THAT MAKING A EURODOLLAR ADVANCE WOULD
VIOLATE ANY APPLICABLE LAW, RULE, REGULATION, OR DIRECTIVE, OR THAT,
FOR ANY REASON WHATSOEVER, THE LIBOR RATE IS NOT THEN BEING QUOTED
FOR THE RELEVANT INTEREST PERIOD AND IN THE AMOUNT OF SUCH ADVANCE,
THEN THE LENDER SHALL GIVE THE BORROWER PROMPT NOTICE THEREOF AND:
(A) THE OBLIGATION OF LENDER TO MAKE AVAILABLE ANY EURODOLLAR
ADVANCE SHALL BE SUSPENDED; AND (B) ANY ADVANCE OR SUBSEQUENT
ADVANCES TO BE CONVERTED INTO, OR RENEWED AS, A EURODOLLAR ADVANCE
SHALL BE CONVERTED INTO A PRIME RATE ADVANCE.
9
VI. DETERMINATION OF INTEREST RATE ON ADVANCES; RENEWALS AND
CONVERSIONS.
A. SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING, AND THE CONDITIONS SET FORTH IN ARTICLE II HAVE
BEEN FULLY SATISFIED, THE BORROWER SHALL HAVE THE OPTION,
SUBJECT TO THE OTHER PROVISIONS OF THIS AGREEMENT, TO: (i)
REQUEST THAT ADVANCES UNDER ANY LOAN BE TREATED AS A
EURODOLLAR ADVANCE BY GIVING TELEPHONIC NOTICE TO THE LENDER
PRIOR TO 11:00 A.M. (CHICAGO TIME) AT LEAST TWO (2) BUSINESS
DAYS PRIOR TO THE CLOSING DATE OR SUCH OTHER REQUESTED DATE OF
THE ADVANCE; PROVIDED THAT THE BORROWER GIVES THE LENDER
WRITTEN CONFIRMATION OF ITS TELEPHONIC NOTICE IN THE FORM OF
EXHIBIT C HERETO BY FACSIMILE PRIOR TO THE CLOSING DATE; AND
(ii) CONVERT (FROM ONE TYPE OF ADVANCE TO ANOTHER TYPE OF
ADVANCE), ON ANY BUSINESS DAY, ALL, BUT NOT ANY PARTIAL
AMOUNT, OF THE OUTSTANDING PRINCIPAL AMOUNT OF ANY ADVANCE BY
GIVING TO THE LENDER AT LEAST TWO (2) BUSINESS DAYS PRIOR
TELEPHONIC NOTICE THEREOF IN THE CASE OF A CONVERSION TO A
EURODOLLAR ADVANCE, OR ONE (1) BUSINESS DAY PRIOR TELEPHONIC
NOTICE THEREOF IN THE CASE OF A CONVERSION TO A PRIME RATE
ADVANCE; PROVIDED THAT THE BORROWER GIVES THE LENDER WRITTEN
CONFIRMATION OF ITS TELEPHONIC NOTICE IN THE FORM OF EXHIBIT C
HERETO BY FACSIMILE PRIOR TO THE DAY ANY SUCH CONVERSION IS
MADE HEREUNDER. IN THE ABSENCE OF NOTICE TO THE CONTRARY
PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE AND SUBJECT TO
THE REQUIREMENTS SET FORTH IN THIS AGREEMENT, AN EXISTING
ADVANCE WILL AUTOMATICALLY BE RENEWED AS THE SAME TYPE OF
ADVANCE ON THE LAST DAY OF THE CURRENT INTEREST PERIOD TO TAKE
EFFECT FOR THE NEXT INTEREST PERIOD. NO EURODOLLAR ADVANCE MAY
BE CONVERTED INTO A PRIME RATE ADVANCE PURSUANT TO THIS
SECTION VIA OR OTHERWISE, EXCEPT ON THE LAST DAY OF THE
INTEREST PERIOD APPLICABLE TO SUCH CONVERTING ADVANCE.
BORROWER MAY NOT SELECT AN INTEREST PERIOD THAT EXTENDS BEYOND
THE TERM LOAN MATURITY DATE OR THE REVOLVING LOAN MATURITY
DATE. THE INITIAL ADVANCE UNDER THIS AGREEMENT SHALL BE A
EURODOLLAR ADVANCE.
B. IN THE EVENT AN EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR THE CONDITIONS SET FORTH IN ARTICLE II HAVE NOT
BEEN FULLY SATISFIED ON THE DATE OF A REQUESTED EURODOLLAR
ADVANCE (INCLUDING A RENEWAL OF A EURODOLLAR ADVANCE OR THE
CONVERSION OF A PRIME RATE ADVANCE INTO A EURODOLLAR ADVANCE),
THEN SUCH EURODOLLAR ADVANCE SHALL BE TREATED AS A PRIME RATE
ADVANCE.
VII. COLLATERAL. THE BORROWER'S OBLIGATIONS UNDER THIS AGREEMENT,
THE TERM NOTE, THE REVOLVING NOTE, AND ALL OTHER LOAN DOCUMENTS
(COLLECTIVELY, THE "BORROWER'S LIABILITIES") SHALL BE SECURED BY A
PLEDGE OF THE PLEDGED SUBSIDIARY SHARES PURSUANT TO THE TERMS OF THE
PLEDGE AGREEMENT, DATED AS OF THE CLOSING DATE, BY AND BETWEEN THE
BORROWER AND THE LENDER IN THE FORM ATTACHED AS EXHIBIT D HERETO.
10
VIII. EXPENSES. IRRESPECTIVE OF WHETHER ANY LOAN IS MADE, THE
BORROWER WILL: (A) PROMPTLY PAY ALL REASONABLE COSTS AND EXPENSES OF
THE LENDER INCIDENT TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT INCLUDING, BUT NOT LIMITED TO, ALL COSTS AND EXPENSES
INCURRED IN CONNECTION WITH THE PREPARATION, NEGOTIATION, DELIVERY,
AND EXECUTION OF ANY OF THE LOAN DOCUMENTS, AND IN CONNECTION WITH
ANY MODIFICATION, AMENDMENT, ALTERATION OF ANY OF THE LOAN
DOCUMENTS, AND IN CONNECTION WITH THE ENFORCEMENT OR COLLECTION OF
ANY OF THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THE
LENDER'S OUT-OF-POCKET EXPENSES AND THE CHARGES AND DISBURSEMENTS TO
COUNSEL RETAINED BY THE LENDER; AND (B) PROMPTLY PAY AND SAVE THE
LENDER AND ALL OTHER HOLDERS OF THE NOTES HARMLESS AGAINST ANY AND
ALL LIABILITY WITH RESPECT TO AMOUNTS PAYABLE AS A RESULT OF: (I)
ANY TAXES WHICH MAY BE DETERMINED TO BE PAYABLE IN CONNECTION WITH
THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE NOTES OR THE OTHER
LOAN DOCUMENTS OR ANY MODIFICATION, AMENDMENT OR ALTERATION OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS; (II) ANY INTEREST OR PENALTIES RESULTING FROM NONPAYMENT
OR DELAY IN PAYMENT OF SUCH EXPENSES, CHARGES, DISBURSEMENTS,
LIABILITIES OR TAXES; AND (III) ANY INCOME TAXES IN RESPECT OF ANY
REIMBURSEMENT BY THE BORROWER FOR ANY OF SUCH VIOLATIONS, TAXES,
INTERESTS OR PENALTIES PAID BY THE LENDER. THE OBLIGATIONS OF THE
BORROWER UNDER THIS SECTION VIII SHALL SURVIVE THE REPAYMENT IN FULL
OF THE NOTES. ANY OF THE FOREGOING AMOUNTS INCURRED BY THE LENDER
AND NOT PAID BY THE BORROWER UPON DEMAND SHALL BEAR INTEREST FROM
THE DATE INCURRED AT THE PRIME RATE PLUS THREE HUNDRED BASIS POINTS
PER ANNUM AND SHALL BE DEEMED PART OF THE BORROWER'S LIABILITIES
HEREUNDER.
IX. THE CLOSING. THE INITIAL FUNDING OF THE LOANS (THE "CLOSING")
WILL OCCUR AT THE OFFICES OF THE LENDER AT 000 XXXXX XXXXXXX XXXXXX,
XXXXXXX, XXXXXXXX AT 9:30 A.M. ON JUNE1, 2004(THE "CLOSING DATE"),
OR AT SUCH OTHER PLACE OR TIME OR ON SUCH OTHER DATE AS THE PARTIES
HERETO MAY AGREE, BY DISBURSING THE PROCEEDS OF THE LOANS IN
ACCORDANCE WITH THE BORROWER'S WRITTEN INSTRUCTIONS RECEIVED AT
LEAST ONE BUSINESS DAY PRIOR TO CLOSING (THE "DISBURSEMENT
INSTRUCTIONS").
11
CONDITIONS
The Lender's obligation to make any Loan shall be subject to the
performance by the Borrower prior to the Closing Date of all of its agreements
theretofore to be performed under this Agreement and to the satisfaction of the
following further conditions precedent:
I. DOCUMENTS. THE OBLIGATION OF THE LENDER TO MAKE ANY LOAN IS,
IN ADDITION TO THE CONDITIONS PRECEDENT SPECIFIED ELSEWHERE IN THIS
ARTICLE II, SUBJECT TO THE CONDITION PRECEDENT THAT THE LENDER SHALL
HAVE RECEIVED ALL OF THE FOLLOWING, WHERE APPROPRIATE, DULY EXECUTED
AND DATED THE CLOSING DATE AND IN FORM AND SUBSTANCE SATISFACTORY TO
THE LENDER AND ITS COUNSEL:
A. THE NOTES;
B. THE PLEDGE AGREEMENT;
C. THE ACTUAL CERTIFICATES REPRESENTING ALL OF THE
SECURITIES CONSTITUTING THE PLEDGED PROPERTY (AS DEFINED IN
THE PLEDGE AGREEMENT) TOGETHER WITH IRREVOCABLE STOCK POWERS
FOR EACH SUCH CERTIFICATE ENDORSED BY THE BORROWER IN BLANK;
D. THE DISBURSEMENT INSTRUCTIONS;
E. GOOD STANDING CERTIFICATES FOR: (i) THE BORROWER ISSUED
BY THE SECRETARY OF STATE OF THE STATE OF NEVADA; (ii) BUSEY
BANK AND FIRST CAPITAL ISSUED BY THE OBRE; AND (iii) BUSEY
FLORIDA ISSUED BY THE OTS;
F. COPIES CERTIFIED BY THE SECRETARY OR AN ASSISTANT
SECRETARY OF THE BORROWER OF RESOLUTIONS OF THE BOARD OF
DIRECTORS OF THE BORROWER AUTHORIZING THE EXECUTION AND
DELIVERY (INCLUDING THE AUTHORITY TO PLEDGE THE PLEDGED
PROPERTY) OF THIS AGREEMENT, THE NOTES, AND THE OTHER LOAN
DOCUMENTS, AND THE PERFORMANCE BY BORROWER OF ITS OBLIGATIONS
HEREUNDER, UNDER THE NOTES, AND THE OTHER LOAN DOCUMENTS;
G. COPIES CERTIFIED BY THE SECRETARY OR AN ASSISTANT
SECRETARY OF THE BORROWER OF ALL DOCUMENTS EVIDENCING ALL
NECESSARY CONSENTS, APPROVALS AND DETERMINATIONS OF ANY
FEDERAL OR STATE GOVERNMENTAL DEPARTMENT, COMMISSION, BOARD,
REGULATORY AUTHORITY OR AGENCY INCLUDING, WITHOUT LIMITATION,
THE GOVERNMENTAL AGENCIES GOVERNMENTAL AGENCY WITH RESPECT TO
THE TRANSACTIONS CONTEMPLATED
12
IN THE LOAN DOCUMENTS, INCLUDING APPROVALS OF THE GOVERNMENTAL
AGENCIES OF THE MERGER, AND ANY OTHER TRANSACTIONS BETWEEN THE
LENDER, ON THE ONE PART, AND BORROWER OR ANY OF THE BANK
SUBSIDIARIES, ON THE OTHER PART;
H. AN INCUMBENCY CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE BORROWER CERTIFYING THE NAMES OF
THE OFFICER OR OFFICERS OF THE BORROWER AUTHORIZED TO SIGN
THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS,
TOGETHER WITH A SAMPLE OF THE TRUE, ACCURATE, AND COMPLETE
SIGNATURE OF EACH SUCH OFFICER (THE LENDER MAY CONCLUSIVELY
RELY ON SUCH CERTIFICATE UNTIL FORMALLY ADVISED BY A LIKE
CERTIFICATE OF ANY CHANGES THEREIN);
I. A CERTIFICATE SIGNED BY THE PRESIDENT OR A VICE
PRESIDENT OF THE BORROWER CERTIFYING THAT THE CONDITIONS
SPECIFIED IN ARTICLE II HAVE BEEN FULLY SATISFIED AND THAT NO
EVENT OF DEFAULT HAS OCCURRED;
J. A CERTIFICATE SIGNED BY THE CHAIRMAN OF THE BORROWER
WITH REGARDS TO THE MERGER AGREEMENT THAT ALL PARTIES PURSUANT
TO THE MERGER AGREEMENT HAVE COMPLIED WITH ALL TERMS AND
CONDITIONS SET FORTH THEREIN;
K. A CERTIFIED COPY OF THE CERTIFICATE OF MERGER RELATING
TO THE MERGER, WHICH SHALL BE DELIVERED WITHIN FIFTEEN (15)
DAYS AFTER THE CLOSING DATE;
L. A LETTER, ENTERED INTO BY AND AMONG THE BORROWER, THE
LENDER, AND A THIRD PARTY CUSTODIAN AND PROVIDING FOR THE
HOLDING OF THE PLEDGED SUBSIDIARY SHARES FOR THE BENEFIT AND
SECURITY OF THE LENDER, AS SOON AS POSSIBLE, BUT IN ANY EVENT
NOT MORE THAN THIRTY (30) DAYS AFTER THE CLOSING DATE.
II. OTHER CONDITIONS OF BORROWING.
Notwithstanding any other provision of this Agreement, the Lender shall
not be required to make any Advance under any Loan at any time if, as of the
date of any request for an Advance or as of the proposed date for an Advance:
A. THERE HAS OCCURRED, IN THE LENDER'S SOLE AND COMPLETE
DISCRETION, A MATERIAL ADVERSE CHANGE IN THE FINANCIAL
CONDITION OR AFFAIRS OF THE BORROWER OR ANY OF THE
SUBSIDIARIES SINCE DECEMBER 31, 2003;
B. ANY OF THE REPRESENTATIONS AND WARRANTIES OF THE
BORROWER CONTAINED IN THIS AGREEMENT, (INCLUDING IN ARTICLE
III) OR THE INFORMATION SET FORTH IN THE RECITALS HERETO SHALL
NOT BE TRUE, ACCURATE, AND COMPLETE ON AND AS OF THE DATE OF
ANY ADVANCE, WITH THE SAME EFFECT AS THOUGH SUCH
REPRESENTATIONS AND WARRANTIES HAD BEEN MADE,
13
OR SUCH INFORMATION HAD BEEN PRESENTED, ON AND AS OF SUCH
DATE;
C. ANY EVENT OF DEFAULT (AS SUCH TERM IS DEFINED IN SECTION
I BELOW) HAS OCCURRED OR ANY EVENT WHICH, WITH THE GIVING OF
NOTICE OR LAPSE OF TIME, OR BOTH, WOULD CONSTITUTE AN EVENT OF
DEFAULT;
D. ANY LITIGATION OR GOVERNMENTAL PROCEEDING HAS BEEN
INSTITUTED OR THREATENED AGAINST THE BORROWER OR ANY OF THE
SUBSIDIARIES OR ANY OF THEIR OFFICERS OR SHAREHOLDERS WHICH,
IN THE SOLE DISCRETION OF THE LENDER, MAY ADVERSELY AFFECT THE
FINANCIAL CONDITION, BUSINESS, PROPERTIES, ASSETS,
LIABILITIES, OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS
OF THE BORROWER OR ANY OF THE SUBSIDIARIES;
E. ALL NECESSARY OR APPROPRIATE ACTIONS AND PROCEEDINGS
SHALL NOT HAVE BEEN TAKEN IN CONNECTION WITH, OR RELATING TO,
THE LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY,
AND ALL DOCUMENTS INCIDENT THERETO SHALL NOT HAVE BEEN
COMPLETED AND TENDERED FOR DELIVERY, IN SUBSTANCE AND FORM
SATISFACTORY TO THE LENDER, INCLUDING, BUT NOT LIMITED TO, IF
APPROPRIATE IN THE OPINION OF THE LENDER, THE LENDER'S FAILURE
TO HAVE RECEIVED EVIDENCE THAT ALL NECESSARY APPROVALS FROM
GOVERNMENTAL AGENCIES TO ENTER INTO THIS AGREEMENT AND TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREIN HAVE BEEN
RECEIVED;
F. THE LENDER SHALL NOT HAVE RECEIVED IN SUBSTANCE AND FORM
REASONABLY SATISFACTORY TO THE LENDER, ALL CERTIFICATES,
AFFIDAVITS, SCHEDULES, RESOLUTIONS, OPINIONS, NOTES, AND OTHER
DOCUMENTS WHICH ARE REQUIRED HEREUNDER, OR WHICH IT MAY
REASONABLY REQUEST; OR
G. ANY OF THE PLEDGED SUBSIDIARY SHARES ARE SUBJECT TO ANY
LIEN, OTHER THAN IN FAVOR OF THE LENDER.
REPRESENTATIONS AND WARRANTIES
To induce the Lender to make the Loans provided for herein, the Borrower
hereby represents and warrants as set forth below.
I. CORPORATE ORGANIZATION. THE BORROWER: (A) IS A CORPORATION
DULY ORGANIZED VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF THE STATE OF NEVADA; (B) IS DULY QUALIFIED AS A FOREIGN
CORPORATION AND IN GOOD STANDING IN ALL STATES IN WHICH IT IS DOING
BUSINESS EXCEPT WHERE THE FAILURE TO SO QUALIFY WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT ON THE FINANCIAL CONDITION, BUSINESS,
PROPERTIES,
14
ASSETS, LIABILITIES, OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS
OF BORROWER; AND (C) HAS ALL REQUISITE POWER AND AUTHORITY,
CORPORATE OR OTHERWISE, TO OWN, OPERATE AND LEASE ITS PROPERTIES AND
TO CARRY ON ITS BUSINESS AS NOW BEING CONDUCTED AND AS PROPOSED TO
BE CONDUCTED. BUSEY AND FIRST CAPITAL ARE DULY ORGANIZED, VALIDLY
EXISTING AND CHARTERED UNDER THE LAWS OF ILLINOIS, AND HAVE ALL
REQUISITE POWER AND AUTHORITY, CORPORATE OR OTHERWISE, TO OWN,
OPERATE AND LEASE ITS PROPERTIES AND TO CARRY ON ITS BUSINESS AS NOW
BEING CONDUCTED AND AS PROPOSED TO BE CONDUCTED. BUSEY FLORIDA IS
DULY ORGANIZED, VALIDLY EXISTING AND CHARTERED UNDER THE OTS, AND
HAS ALL REQUISITE POWER AND AUTHORITY, CORPORATE OR OTHERWISE, TO
OWN, OPERATE AND LEASE ITS PROPERTIES AND TO CARRY ON ITS BUSINESS
AS NOW BEING CONDUCTED AND AS PROPOSED TO BE CONDUCTED. THE DEPOSIT
ACCOUNTS OF EACH OF THE BANK SUBSIDIARIES ARE FULLY INSURED BY THE
FDIC. THE BORROWER AND EACH OF THE BANK SUBSIDIARIES HAVE MADE
PAYMENT (ON A TIMELY BASIS) OF ALL FRANCHISE AND SIMILAR TAXES IN
THE STATE OF NEVADA, THE STATE OF ILLINOIS, AND THE STATE OF FLORIDA
AND IN ALL OF THE RESPECTIVE JURISDICTIONS IN WHICH THEY ARE
INCORPORATED, CHARTERED OR QUALIFIED, EXCEPT FOR ANY SUCH TAXES: (A)
WHERE THE FAILURE TO PAY SUCH TAXES WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT ON THE FINANCIAL CONDITION, BUSINESS, PROPERTIES,
ASSETS, LIABILITIES, OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS
OF BORROWER OR ANY OF THE BANK SUBSIDIARIES; (B) THE VALIDITY OF
WHICH IS BEING CONTESTED IN GOOD FAITH; AND (C) FOR WHICH PROPER
RESERVES HAVE BEEN SET ASIDE ON THE BOOKS OF THE BORROWER OR THE
BANK SUBSIDIARIES, AS THE CASE MAY BE.
II. CAPITAL STOCK OF THE BORROWER
A. SCHEDULE 3.2 CORRECTLY SETS FORTH: (i) THE STATE OR
STATES IN WHICH THE BORROWER CONDUCTS ITS BUSINESSES; AND (ii)
A LIST OF ALL DIRECT AND INDIRECT SUBSIDIARIES OF THE
BORROWER. EXCEPT AS OTHERWISE STATED IN SCHEDULE 3.2, THERE IS
NO PLAN, AGREEMENT OR UNDERSTANDING PROVIDING FOR, OR
CONTEMPLATING, THE ISSUANCE OF ANY ADDITIONAL SHARES OF
CAPITAL STOCK OF THE BORROWER.
B. ALL OF THE OUTSTANDING CAPITAL STOCK OF THE BORROWER HAS
BEEN DULY AUTHORIZED, LEGALLY AND VALIDLY ISSUED, FULLY PAID
AND NONASSESSABLE. NONE OF BORROWER'S CAPITAL STOCK HAS BEEN
ISSUED IN VIOLATION OF ANY SHAREHOLDER'S PREEMPTIVE RIGHTS.
EXCEPT AS OTHERWISE STATED IN SCHEDULE 3.2, THERE ARE, AS OF
THE DATE HEREOF, NO OUTSTANDING OPTIONS, RIGHTS, WARRANTS OR
OTHER AGREEMENTS OR INSTRUMENTS OBLIGATING THE BORROWER TO
ISSUE, DELIVER OR SELL, OR CAUSE TO BE ISSUED, DELIVERED OR
SOLD, ADDITIONAL SHARES OF THE CAPITAL STOCK OF THE BORROWER
OR OBLIGATING THE BORROWER TO GRANT, EXTEND OR ENTER INTO
15
ANY SUCH AGREEMENT OR COMMITMENT.
III. CAPITAL STOCK OF THE BANK SUBSIDIARIES.
A. SCHEDULE 3.3 CORRECTLY SETS FORTH: (i) THE STATE OR
STATES IN WHICH EACH OF THE BANK SUBSIDIARIES CONDUCTS ITS
RESPECTIVE BUSINESSES; AND (ii) A LIST OF EACH CLASS OF STOCK
OF EACH OF THE BANK SUBSIDIARIES AS WELL AS THE OWNERS OF
RECORD AND BENEFICIAL OWNERS THEREOF, INCLUDING THE NUMBER OF
SHARES HELD BY EACH. EXCEPT AS OTHERWISE STATED IN SCHEDULE
3.3, THERE IS NO PLAN, AGREEMENT OR UNDERSTANDING PROVIDING
FOR, OR CONTEMPLATING, THE ISSUANCE OF ANY ADDITIONAL SHARES
OF CAPITAL STOCK OF ANY OF THE BANK SUBSIDIARIES.
B. ALL OF THE OUTSTANDING CAPITAL STOCK OF EACH OF THE BANK
SUBSIDIARIES, INCLUDING ALL OF THE PLEDGED SUBSIDIARY SHARES,
HAVE BEEN DULY AUTHORIZED, LEGALLY AND VALIDLY ISSUED, FULLY
PAID AND NONASSESSABLE, AND THE PLEDGED SUBSIDIARY SHARES ARE
OWNED BY THE BORROWER, FREE AND CLEAR OF ALL LIENS, EXCEPT AS
MAY EXIST FOR THE BENEFIT OF THE LENDER. NONE OF THE PLEDGED
SUBSIDIARY SHARES HAVE BEEN ISSUED IN VIOLATION OF ANY
SHAREHOLDER'S PREEMPTIVE RIGHTS. EXCEPT AS OTHERWISE STATED IN
SCHEDULE 3.3, THERE ARE, AS OF THE DATE HEREOF, NO OUTSTANDING
OPTIONS, RIGHTS, WARRANTS OR OTHER AGREEMENTS OR INSTRUMENTS
OBLIGATING THE BORROWER TO ISSUE, DELIVER OR SELL, OR CAUSE TO
BE ISSUED, DELIVERED OR SOLD, ADDITIONAL SHARES OF THE CAPITAL
STOCK OF ANY OF THE BANK SUBSIDIARIES, OR OBLIGATING THE
BORROWER OR ANY OF THE BANK SUBSIDIARIES TO GRANT, EXTEND OR
ENTER INTO ANY SUCH AGREEMENT OR COMMITMENT.
IV. MARGIN SECURITIES. THE BORROWER DOES NOT OWN ANY "MARGIN
SECURITY" AS SUCH TERM IS DEFINED IN REGULATION G OF THE FRB.
V. FINANCIAL STATEMENTS.
A. THE BORROWER HAS DELIVERED TO THE LENDER: (i) COPIES OF
THE CONSOLIDATED AND CONSOLIDATING FINANCIAL STATEMENTS OF THE
BORROWER AS OF AND FOR THE YEAR OR OTHER PERIOD ENDING
DECEMBER 31, 2003 AND THE RELATED STATEMENTS OF INCOME AND
CASH FLOWS FOR THE 12-MONTH PERIOD THEN-ENDING, AUDITED BY
MCGLADREY & XXXXXX ("MCGLADREY"), ITS CERTIFIED PUBLIC
ACCOUNTANTS AND FOR THE THREE MONTH PERIOD ENDING MARCH 31,
2004 (THE "FINANCIAL STATEMENTS"); (ii) COPIES OF THE ANNUAL
REPORT ON FORM 10-K FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE "SEC") FOR THE PERIOD ENDING DECEMBER 31,
2003; (iii) COPIES OF THE QUARTERLY REPORT ON FORM 10-Q FILED
WITH THE SEC FOR THE PERIOD ENDING MARCH 31, 2004 (THE ANNUAL
AND QUARTERLY REPORTS BEING COLLECTIVELY REFERRED TO AS THE
"SEC REPORTS") THE FINANCIAL STATEMENTS HAVE BEEN PREPARED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
("GAAP") APPLIED ON A BASIS
16
CONSISTENT WITH PRIOR PERIODS. SINCE MARCH 31, 2004, THERE HAS
BEEN NO ADVERSE CHANGE IN THE FINANCIAL CONDITION, BUSINESS,
PROPERTIES, ASSETS, LIABILITIES, OPERATIONS, PROSPECTS, OR
RESULTS OF OPERATIONS OF THE BORROWER OR ANY OF ITS
SUBSIDIARIES.
B. THE BORROWER HAS DELIVERED TO THE LENDER COPIES OF ALL
CALL REPORTS FILED BY BUSEY, BUSEY FLORIDA, AND FIRST CAPITAL
BANK FOR THE PERIOD ENDING DECEMBER 31, 2003 AND COPIES OF
FORM FRY-9C FILINGS FILED BY THE BORROWER AND FIRST CAPITAL
BANCSHARES FOR THE PERIOD ENDING DECEMBER 31, 2003 (SUCH CALL
REPORTS AND FORMS FRY-9C, TOGETHER WITH THE FINANCIAL
STATEMENTS, COLLECTIVELY, THE "REPORTS"). ALL OF THE REPORTS
AND THE SEC REPORTS ARE TRUE, ACCURATE, AND COMPLETE AND ARE
IN ACCORDANCE WITH THE RESPECTIVE BOOKS OF ACCOUNT AND RECORDS
OF THE BORROWER AND ITS SUBSIDIARIES, AND HAVE BEEN PREPARED
IN ACCORDANCE WITH APPLICABLE BANKING REGULATIONS, RULES AND
GUIDELINES ON A BASIS CONSISTENT WITH PRIOR PERIODS, AND
FAIRLY AND ACCURATELY PRESENT THE FINANCIAL CONDITION,
BUSINESS, PROPERTIES, ASSETS, LIABILITIES, OPERATIONS,
PROSPECTS, AND RESULTS OF OPERATIONS OF THE BORROWER AND ITS
SUBSIDIARIES AS OF THEIR RESPECTIVE DATES. THE REPORTS AND THE
SEC REPORTS CONTAIN AND REFLECT ADEQUATE PROVISIONS FOR TAXES,
RESERVES AND OTHER LIABILITIES OF THE BORROWER AND ITS BANK
SUBSIDIARIES IN ACCORDANCE WITH GAAP. NEITHER THE BORROWER NOR
ANY OF THE BANK SUBSIDIARIES HAS ANY MATERIAL DEBT, LIABILITY
OR OBLIGATION OF ANY NATURE (WHETHER ACCRUED, CONTINGENT,
ABSOLUTE OR OTHERWISE) THAT IS NOT PROVIDED FOR OR DISCLOSED
IN THE REPORTS AND THE SEC REPORTS.
VI. TITLE TO PROPERTIES.
A. THE BORROWER AND EACH OF THE BANK SUBSIDIARIES HAS,
RESPECTIVELY, GOOD AND MARKETABLE FEE TITLE TO ALL REAL
PROPERTY, AND GOOD AND MARKETABLE TITLE TO ALL OTHER PROPERTY
AND ASSETS REFLECTED IN THE REPORTS, EXCLUDING: (i) REAL
PROPERTY AND OTHER PROPERTIES AND ASSETS ACQUIRED AND/OR BEING
ACQUIRED FROM DEBTORS IN FULL OR PARTIAL SATISFACTION OF
OBLIGATIONS OWED TO ANY OF THE BANK SUBSIDIARIES; (ii)
PROPERTY OR OTHER ASSETS LEASED BY THE BORROWER OR ANY OF THE
BANK SUBSIDIARIES; AND (iii) PROPERTY AND ASSETS SOLD OR
OTHERWISE DISPOSED OF SUBSEQUENT TO THE DATE OF SUCH REPORTS.
ALL PROPERTY AND ASSETS OF ANY KIND (REAL OR PERSONAL,
TANGIBLE OR INTANGIBLE) OF THE BORROWER AND EACH OF THE BANK
SUBSIDIARIES ARE FREE AND CLEAR FROM ANY AND ALL LIENS AND
DEFECTS IN TITLE, EXCEPT FOR ANY LIENS GRANTED HEREWITH OR
PREVIOUSLY BY THE BORROWER TO THE LENDER. EXCEPT AS IDENTIFIED
IN SCHEDULE 3.6, NO FINANCING STATEMENT UNDER THE UNIFORM
COMMERCIAL CODE THAT NAMES THE BORROWER OR ANY OF THE BANK
SUBSIDIARIES HAS BEEN FILED, AND NEITHER THE BORROWER NOR ANY
OF THE BANK SUBSIDIARIES HAS SIGNED ANY FINANCING STATEMENT OR
ANY SECURITY AGREEMENT AUTHORIZING ANY SECURED PARTY
THEREUNDER TO FILE ANY SUCH FINANCING
17
STATEMENT.
B. THE BORROWER AND EACH OF THE BANK SUBSIDIARIES ENJOYS
PEACEFUL AND UNDISTURBED POSSESSION UNDER ALL OF THE LEASES
COVERING ALL PROPERTY AND OTHER ASSETS LEASED BY BORROWER AND
EACH OF THE BANK SUBSIDIARIES, AS APPLICABLE (ALL OF WHICH
PERMIT THE CUSTOMARY OPERATIONS OF THE BORROWER AND EACH OF
THE BANK SUBSIDIARIES, AS APPLICABLE). NONE OF SUCH LEASES IS
IN MATERIAL DEFAULT AND NO EVENT HAS OCCURRED WHICH WITH THE
PASSAGE OF TIME OR THE GIVING OF NOTICE, OR BOTH, WOULD
CONSTITUTE A MATERIAL DEFAULT UNDER ANY THEREOF.
VII. TRANSACTION IS LEGAL AND AUTHORIZED. THE BORROWING OF THE
PRINCIPAL AMOUNT OF THE LOANS, THE EXECUTION OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS AND COMPLIANCE BY THE BORROWER WITH ALL OF
THE PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ARE
WITHIN THE CORPORATE AND OTHER POWERS OF THE BORROWER. THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS HAVE BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED, AND ARE LEGAL, VALID AND BINDING OBLIGATIONS
OF THE BORROWER, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS.
VIII. NO DEFAULTS OR RESTRICTIONS. NEITHER THE EXECUTION AND
DELIVERY OF THE LOAN DOCUMENTS NOR COMPLIANCE WITH THEIR RESPECTIVE
TERMS AND CONDITIONS WILL: (A) CONFLICT WITH, OR RESULT IN A BREACH
OF, OR CONSTITUTE A DEFAULT UNDER: (I) ANY OF THE TERMS,
OBLIGATIONS, COVENANTS, CONDITIONS OR PROVISIONS OF ANY CORPORATE
RESTRICTION OR OF ANY INDENTURE, MORTGAGE, DEED OF TRUST, PLEDGE,
BANK LOAN, CREDIT AGREEMENT, CORPORATE CHARTER, BYLAW OR ANY OTHER
AGREEMENT, DOCUMENT, OR INSTRUMENT TO WHICH THE BORROWER OR ANY OF
THE BANK SUBSIDIARIES IS A PARTY OR BY WHICH ANY OF THEM OR ANY OF
THEIR PROPERTIES OR ASSETS MAY BE BOUND OR AFFECTED; OR (II) ANY
JUDGMENT, ORDER, WRIT, INJUNCTION, DECREE OR DEMAND OF ANY COURT,
ARBITRATOR, GRAND JURY, OR GOVERNMENTAL AGENCY; OR (B) RESULT IN THE
CREATION OR IMPOSITION OF ANY LIEN UPON ANY PROPERTY OR ASSET OF THE
BORROWER OR ANY OF THE BANK SUBSIDIARIES UNDER THE TERMS OR
PROVISIONS OF ANY OF THE FOREGOING. NEITHER THE BORROWER NOR ANY OF
THE BANK SUBSIDIARIES IS IN DEFAULT IN THE PERFORMANCE, OBSERVANCE
OR FULFILLMENT OF ANY OF THE TERMS, OBLIGATIONS, COVENANTS,
CONDITIONS OR PROVISIONS CONTAINED IN ANY INDENTURE, INSTRUMENT, OR
OTHER AGREEMENT CREATING, EVIDENCING OR SECURING INDEBTEDNESS OF ANY
KIND OR PURSUANT TO WHICH ANY SUCH INDEBTEDNESS IS ISSUED, OR OTHER
AGREEMENT OR INSTRUMENT TO WHICH THE BORROWER OR ANY OF THE BANK
SUBSIDIARIES IS A PARTY OR BY WHICH THE BORROWER OR ANY OF THE BANK
SUBSIDIARIES OR THEIR PROPERTIES MAY BE BOUND OR AFFECTED.
18
IX. GOVERNMENTAL CONSENT. NO GOVERNMENTAL ORDERS, PERMISSIONS,
CONSENTS, APPROVALS OR AUTHORIZATIONS ARE REQUIRED TO BE OBTAINED BY
THE BORROWER OR ANY OF THE BANK SUBSIDIARIES, AND NO REGISTRATIONS
OR DECLARATIONS ARE REQUIRED TO BE FILED BY THE BORROWER OR ANY OF
THE BANK SUBSIDIARIES IN CONNECTION WITH, OR CONTEMPLATION OF, THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, OR THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED
THEREBY.
X. TAXES. THE BORROWER AND EACH OF THE BANK SUBSIDIARIES HAS
FILED ON A TIMELY BASIS ALL UNITED STATES INCOME TAX RETURNS AND ALL
STATE AND MUNICIPAL TAX RETURNS WHICH ARE REQUIRED TO BE FILED, AND
HAVE PAID ON A TIMELY BASIS, OR MADE ADEQUATE PROVISION FOR THE
PAYMENT OF, ALL TAXES WHICH HAVE BECOME DUE PURSUANT TO SAID RETURNS
OR PURSUANT TO ANY ASSESSMENT RECEIVED BY THE BORROWER OR ANY OF THE
BANK SUBSIDIARIES, EXCEPT SUCH TAXES, IF ANY, AS ARE BEING CONTESTED
IN GOOD FAITH AND AS TO WHICH ADEQUATE RESERVES HAVE BEEN PROVIDED
ON THE FINANCIAL STATEMENTS. EXCEPT AS OTHERWISE DISCLOSED TO
LENDER, THE BORROWER IS UNAWARE OF ANY AUDIT, ASSESSMENT OR OTHER
PROPOSED ACTION OR INQUIRY OF THE INTERNAL REVENUE SERVICE WITH
RESPECT TO THE UNITED STATES INCOME TAX LIABILITY OF THE BORROWER OR
ANY OF THE BANK SUBSIDIARIES. TO THE BEST OF THE BORROWER'S
KNOWLEDGE, THE BORROWER AND EACH OF THE BANK SUBSIDIARIES HAVE
WITHHELD AMOUNTS FROM THEIR EMPLOYEES, SHAREHOLDERS OR HOLDERS OF
PUBLIC DEPOSIT ACCOUNTS IN FULL AND COMPLETE COMPLIANCE WITH THE TAX
WITHHOLDING PROVISIONS OF APPLICABLE FEDERAL, STATE AND LOCAL LAWS
AND EACH HAS FILED ALL FEDERAL, STATE AND LOCAL RETURNS AND REPORTS
FOR ALL YEARS FOR WHICH ANY SUCH RETURN OR REPORT WOULD BE DUE WITH
RESPECT TO EMPLOYEE INCOME TAX WITHHOLDING, SOCIAL SECURITY,
UNEMPLOYMENT TAXES, INCOME AND OTHER TAXES AND ALL PAYMENTS OR
DEPOSITS WITH RESPECT TO SUCH TAXES HAVE BEEN MADE WITHIN THE TIME
PERIOD REQUIRED BY LAW.
XI. COMPLIANCE WITH LAW. THE BORROWER AND EACH OF THE BANK
SUBSIDIARIES HAVE COMPLIED WITH ALL APPLICABLE STATUTES, RULES,
REGULATIONS, ORDERS AND RESTRICTIONS OF ANY DOMESTIC OR FOREIGN
GOVERNMENT OR ANY INSTRUMENTALITY OR AGENCY THEREOF, HAVING
JURISDICTION OVER THE CONDUCT OF THEIR RESPECTIVE BUSINESSES OR THE
OWNERSHIP OF THEIR RESPECTIVE PROPERTIES AND ASSETS, EXCEPT WHERE
ANY SUCH FAILURE TO COMPLY WOULD NOT MATERIALLY AND ADVERSELY AFFECT
THE FINANCIAL CONDITION, BUSINESS, PROPERTIES, ASSETS, LIABILITIES,
OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS OF THE BORROWER OR
ANY OF THE BANK SUBSIDIARIES.
19
XII. RESTRICTIONS ON THE BORROWER. NEITHER THE BORROWER NOR ANY OF
THE BANK SUBSIDIARIES IS A PARTY, OR IS BOUND BY, ANY CONTRACT OR
AGREEMENT OR INSTRUMENT, OR SUBJECT TO ANY CHARTER OR OTHER
CORPORATE RESTRICTION THAT WOULD MATERIALLY AND ADVERSELY AFFECT ITS
FINANCIAL CONDITION, BUSINESS, PROPERTIES, ASSETS, LIABILITIES,
OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS.
XIII. ERISA. ALL EMPLOYEE BENEFIT PLANS (AS DEFINED IN SECTION 3(3)
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA")) ESTABLISHED OR MAINTAINED BY THE BORROWER OR ANY ERISA
AFFILIATE (AS DEFINED IN THIS SECTION XIII) OR TO WHICH THE BORROWER
OR ANY ERISA AFFILIATE CONTRIBUTES ARE IN MATERIAL COMPLIANCE WITH
APPLICABLE REQUIREMENTS OF ERISA, AND ARE IN MATERIAL COMPLIANCE
WITH APPLICABLE REQUIREMENTS (INCLUDING QUALIFICATION AND
NON-DISCRIMINATION REQUIREMENTS) OF THE CODE FOR OBTAINING THE TAX
BENEFITS THE CODE THEREUPON PERMITS WITH RESPECT TO SUCH PLANS. EACH
EMPLOYEE BENEFIT PLAN WHICH IS A GROUP HEALTH PLAN (WITHIN THE
MEANING OF SECTION 5000(B)(1) OF THE CODE) COMPLIES WITH AND HAS
BEEN MAINTAINED AND OPERATED IN MATERIAL COMPLIANCE WITH EACH OF THE
REQUIREMENTS OF SECTION 4980B OF THE CODE. NEITHER THE BORROWER NOR
ANY ERISA AFFILIATE HAS FAILED TO MAKE ANY CONTRIBUTIONS OR TO PAY
ANY AMOUNTS WITH RESPECT TO ANY EMPLOYEE BENEFIT PLAN OR ERISA OR
ANY OTHER APPLICABLE LAW. NO "REPORTABLE EVENT" OR "PROHIBITED
TRANSACTION," AS DEFINED IN ERISA, HAS OCCURRED AND IS CONTINUING AS
TO ANY EMPLOYEE BENEFIT PLAN AND NO EXCISE TAXES HAVE BEEN INCURRED
OR SECURITY IS REQUIRED WITH RESPECT TO ANY EMPLOYEE BENEFIT PLAN.
EXCEPT AS SET FORTH IN SCHEDULE 3.13, NO EMPLOYEE BENEFIT PLAN HAS,
OR AS OF THE CLOSING DATE WILL HAVE, ANY AMOUNT OF UNFUNDED BENEFIT
LIABILITIES (AS DEFINED IN SECTION 4001(A)(18) OF ERISA) FOR WHICH
THE BORROWER OR ANY ERISA AFFILIATE COULD BE LIABLE TO ANY PERSON
UNDER TITLE IV OF ERISA IF ANY SUCH PLAN WERE TERMINATED. ALL
EMPLOYEE BENEFIT PLANS ARE FUNDED IN ACCORDANCE WITH SECTION 412 OF
THE CODE (IF APPLICABLE). THERE WOULD BE NO OBLIGATIONS UNDER TITLE
IV OF ERISA RELATING TO ANY EMPLOYEE BENEFIT PLAN THAT IS A
MULTIEMPLOYER PLAN IF ANY SUCH PLAN WERE TERMINATED OR IF THE
BORROWER OR ANY ERISA AFFILIATE WITHDREW FROM ANY SUCH PLAN.
XIV. NO MATERIAL ADVERSE CHANGE. SINCE DECEMBER 31, 2003, NEITHER
THE FINANCIAL CONDITION, BUSINESS, PROPERTIES, ASSETS, LIABILITIES,
OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS OF THE BORROWER OR
ANY OF THE BANK SUBSIDIARIES HAVE BEEN MATERIALLY AND ADVERSELY
AFFECTED IN ANY MANNER, INCLUDING, WITHOUT LIMITATION, AS A RESULT
OF FIRE, EXPLOSION, ACCIDENT, ACT OF GOD, STRIKE, LOCKOUT, FLOOD,
DROUGHT, STORM, EARTHQUAKE, COMBINATION OF WORKMEN OR OTHER
20
LABOR DISTURBANCE, RIOT, ACTIVITY OF ARMED FORCES OR OF THE PUBLIC
ENEMY, EMBARGO, OR NATIONALIZATION, CONDEMNATION, REQUISITION OR
TAKING OF PROPERTY, OR CANCELLATION OR MODIFICATION OF CONTRACTS, BY
ANY DOMESTIC OR FOREIGN GOVERNMENT OR ANY INSTRUMENTALITY OR AGENCY
THEREOF. SINCE DECEMBER 31, 2003, THERE HAVE BEEN NO MATERIAL
CHANGES IN THE PROPERTIES, ASSETS, LIABILITIES, OR CONDITION,
FINANCIAL OR OTHERWISE, OF THE BORROWER OR ANY OF THE BANK
SUBSIDIARIES OTHER THAN CHANGES ARISING FROM TRANSACTIONS IN THE
ORDINARY COURSE OF BUSINESS, NONE OF WHICH HAS BEEN MATERIALLY
ADVERSE, WHETHER IN THE ORDINARY COURSE OF BUSINESS OR OTHERWISE.
XV. RESERVE FOR POSSIBLE LOAN AND LEASE LOSSES. THE RESERVES FOR
POSSIBLE LOAN AND LEASE LOSSES SHOWN IN THE REPORTS ARE ADEQUATE IN
ALL RESPECTS TO PROVIDE FOR LOSSES, NET OF RECOVERIES RELATING TO
LOANS PREVIOUSLY CHARGED OFF, ON LOANS AND LEASES OUTSTANDING AND
CONTAIN AN ADDITIONAL AMOUNT OF UNALLOCATED RESERVES FOR
UNANTICIPATED FUTURE LOSSES AT LEVELS CONSIDERED ADEQUATE BASED UPON
GENERALLY ACCEPTED SAFE AND SOUND BANKING PRACTICES, AS OF THE DATE
OF SUCH REPORTS. THE AGGREGATE PRINCIPAL AMOUNT OF LOANS CONTAINED
IN THE LOAN PORTFOLIOS OF EACH OF THE BANK SUBSIDIARIES IN EXCESS OF
THE CORRESPONDING RESERVE IS FULLY COLLECTIBLE.
XVI. REGULATORY ENFORCEMENT ACTIONS. NEITHER THE BORROWER NOR ANY
OF THE BANK SUBSIDIARIES OR ANY OF THEIR RESPECTIVE OFFICERS OR
DIRECTORS IS NOW OPERATING UNDER ANY RESTRICTIONS, AGREEMENTS,
MEMORANDA, OR COMMITMENTS (OTHER THAN RESTRICTIONS OF GENERAL
APPLICATION) IMPOSED BY ANY GOVERNMENTAL AGENCY, NOR ARE ANY SUCH
RESTRICTIONS AGREEMENTS, MEMORANDA OR COMMITMENTS THREATENED OR
BEING SOUGHT BY ANY GOVERNMENTAL AGENCY.
XVII. HAZARDOUS MATERIALS. NEITHER THE BORROWER NOR ANY HM
SUBSIDIARY (AS SUCH TERM IS DEFINED IN THIS SECTION XVII) OF
BORROWER IS IN VIOLATION OF ANY APPLICABLE STATUTE, REGULATION,
ORDINANCE OR POLICY OF ANY GOVERNMENTAL ENTITY RELATING TO THE
ECOLOGY, HUMAN HEALTH, SAFETY OR THE ENVIRONMENT AND NO HAZARDOUS
MATERIAL (AS SUCH TERM IS DEFINED IN THIS SECTION XVII) IS LOCATED
ON ANY REAL PROPERTY OWNED OR LEASED BY THE BORROWER OR ANY HM
SUBSIDIARY OR HAS BEEN DISCHARGED FROM OR TO, OR PENETRATED INTO,
ANY REAL PROPERTY (OR SURFACE OR SUBSURFACE RIVERS OR STREAMS
CROSSING OR ADJOINING ANY REAL PROPERTY) OWNED OR LEASED BY THE
BORROWER OR ANY HM SUBSIDIARY OF BORROWER OR THE AQUIFER UNDERLYING
ANY REAL PROPERTY OWNED OR LEASED BY THE BORROWER OR ANY HM
SUBSIDIARY OF BORROWER. "HAZARDOUS MATERIAL" AS USED HEREIN MEANS
ANY ASBESTOS, POLYCHLORINATED BYPHENYLS AND PETROLEUM PRODUCTS,
SOLID
21
WASTES, UREAFORMALDEHYDE, DISCHARGES OF SEWER OR EFFLUENT, PAINT
CONTAINING LEAD AND ANY OTHER HAZARDOUS OR TOXIC MATERIAL, SUBSTANCE
OR WASTE WHICH IS DEFINED, DETERMINED OR IDENTIFIED BY THOSE OR
SIMILAR TERMS OR IS REGULATED AS SUCH UNDER ANY STATUTE, LAW,
ORDINANCE, RULE OR REGULATION OR BY ANY LOCAL, STATE OR FEDERAL
AUTHORITY (WHETHER AS THE RESULT OF ANY JUDICIAL OR ADMINISTRATIVE
INTERPRETATION OF ANY SUCH STATUTE, LAW, ORDINANCE, RULE OR
REGULATION OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, ANY
MATERIAL, SUBSTANCE OR WASTE WHICH IS A HAZARDOUS SUBSTANCE WITHIN
THE MEANING OF 33 U.S.C. Section 1251 ET SEQ., AS AMENDED, OR 42
U.S.C. Section 9601 ET SEQ., AS AMENDED, OR IS A HAZARDOUS WASTE
WITHIN THE MEANING OF 42 U.S.C. Section 6901 ET SEQ., AS AMENDED.
"HM SUBSIDIARY" SHALL MEAN AS TO ANY PERSON (AS SUCH TERM IS DEFINED
IN THIS SECTION XVII): (A) ANY CORPORATION MORE THAN TWENTY-FIVE
PERCENT (25%) OF WHOSE STOCK OF ANY CLASS OR CLASSES HAVING BY THE
TERMS THEREOF ORDINARY VOTING POWER TO ELECT A MAJORITY OF THE
DIRECTORS OF SUCH CORPORATION (WITHOUT REGARD TO WHETHER AT THE TIME
STOCK OF ANY CLASS OR CLASSES OF SUCH CORPORATION SHALL HAVE OR
MIGHT HAVE VOTING POWER BY REASON OF THE HAPPENING OF ANY
CONTINGENCY) IS AT THE TIME OWNED BY SUCH PERSON AND/OR ONE OR MORE
HM SUBSIDIARIES OF SUCH PERSON; (B) ANY PARTNERSHIP, ASSOCIATION,
JOINT VENTURE OR OTHER ENTITY IN WHICH SUCH PERSON AND/OR ONE OR
MORE HM SUBSIDIARIES OF SUCH PERSON HAS MORE THAN A TWENTY-FIVE
PERCENT (25%) EQUITY INTEREST AT THE TIME; OR (C) ANY PERSON WHICH
IS AT THE TIME CONTROLLED, DIRECTLY OR INDIRECTLY, THROUGH EITHER:
(I) THAT PERSON BEING A BORROWER OF ANY OF THE BANK SUBSIDIARIES,
AND ANY OF THE BANK SUBSIDIARIES, AS THAT PERSON'S LENDER, ACTUALLY
INFLUENCING OR ALTERING SUCH PERSON'S PROCEDURES, METHODS OR ACTIONS
RELATING TO THE USE, HANDLING, GENERATION, TRANSPORTATION, STORAGE,
TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS; OR (II) COMMON
DIRECTORS, OFFICERS OR EMPLOYEES, BY THAT PERSON OR ONE OR MORE OF
THE OTHER HM SUBSIDIARIES OF THAT PERSON OR A COMBINATION THEREOF.
XVIII. PENDING LITIGATION. EXCEPT AS OTHERWISE DISCLOSED IN SCHEDULE
3.18: (I) THERE ARE NO ACTIONS, SUITS, PROCEEDINGS OR WRITTEN
AGREEMENTS PENDING, OR, TO THE BEST KNOWLEDGE OF THE BORROWER,
THREATENED OR PROPOSED, AGAINST THE BORROWER OR ANY OF THE BANK
SUBSIDIARIES, AT LAW OR IN EQUITY, OR BEFORE OR BY ANY FEDERAL,
STATE, MUNICIPAL, OR OTHER GOVERNMENTAL DEPARTMENT, COMMISSION,
BOARD, OR OTHER ADMINISTRATIVE AGENCY, DOMESTIC OR FOREIGN, THAT,
EITHER SEPARATELY OR IN THE AGGREGATE, WOULD MATERIALLY AND
ADVERSELY AFFECT THE FINANCIAL CONDITION, BUSINESS, PROPERTIES,
ASSETS, LIABILITIES, OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS
OF THE BORROWER OR ANY OF THE BANK SUBSIDIARIES; AND (II) NEITHER
THE BORROWER NOR ANY OF THE BANK SUBSIDIARIES IS IN DEFAULT WITH
RESPECT TO ANY ORDER,
22
WRIT, INJUNCTION, OR DECREE OF, OR ANY WRITTEN AGREEMENT WITH, ANY
COURT, COMMISSION, BOARD OR AGENCY, DOMESTIC OR FOREIGN, THAT,
EITHER SEPARATELY OR IN THE AGGREGATE, WOULD MATERIALLY AND
ADVERSELY AFFECT THE FINANCIAL CONDITION, BUSINESS, PROPERTIES,
ASSETS, LIABILITIES, OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS
OF THE BORROWER OR ANY OF THE BANK SUBSIDIARIES.
XIX. INVESTMENT COMPANY ACT. THE BORROWER IS NOT AN "INVESTMENT
COMPANY" OR A COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY,"
WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED.
XX. NO BURDENSOME AGREEMENTS. NEITHER THE BORROWER NOR ANY OF THE
BANK SUBSIDIARIES IS A PARTY TO ANY AGREEMENT, INSTRUMENT OR
UNDERTAKING OR SUBJECT TO ANY OTHER RESTRICTION: (A) WHICH PRESENTLY
HAS A MATERIAL ADVERSE AFFECT UPON THE FINANCIAL CONDITION,
BUSINESS, PROPERTIES, ASSETS, LIABILITIES, OPERATIONS, PROSPECTS, OR
RESULTS OF OPERATIONS OF THE BORROWER OR ANY OF THE BANK
SUBSIDIARIES.
XXI. SOLVENCY. AFTER GIVING EFFECT TO THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE BORROWER AND EACH
OF THE BANK SUBSIDIARIES HAVE CAPITAL SUFFICIENT TO CARRY ON THEIR
RESPECTIVE BUSINESSES AND TRANSACTIONS AS CURRENTLY CONDUCTED AND AS
PRESENTLY PROPOSED TO BE CONDUCTED, AND EACH IS SOLVENT AND ABLE TO
PAY ITS DEBTS AS THEY MATURE. NO TRANSFER OF PROPERTY OR ASSETS IS
BEING MADE AND NO INDEBTEDNESS IS BEING INCURRED IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WITH THE INTENT TO
HINDER, DELAY OR DEFRAUD EITHER PRESENT OR FUTURE CREDITORS OF THE
BORROWER OR ANY OF THE BANK SUBSIDIARIES.
XXII. CORPORATE NAMES. THE BORROWER HAS NO ASSUMED CORPORATE NAMES
AND IS NOT DOING BUSINESS UNDER ANY NAME OTHER THAN "FIRST BUSEY
CORPORATION."
XXIII. NO MISSTATEMENT. NO INFORMATION, EXHIBIT, REPORT OR DOCUMENT
FURNISHED BY THE BORROWER TO THE LENDER IN CONNECTION WITH THE
NEGOTIATION OR EXECUTION OF THIS AGREEMENT OR THE MAKING OF ANY LOAN
CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT, OR OMITS TO STATE
A MATERIAL FACT OR ANY FACT NECESSARY TO MAKE THE STATEMENTS
CONTAINED THEREIN NOT MISLEADING IN LIGHT OF THE CIRCUMSTANCES WHEN
MADE OR FURNISHED TO THE LENDER.
Each Loan made pursuant to a request by Borrower shall be deemed to
constitute a representation and warranty by Borrower to Lender that each of the
representations and warranties of Borrower contained in this Agreement is true,
accurate, and complete as of the date of such Loan with the same force and
effect as though made on the date of such Loan.
23
COVENANTS
I. NEGATIVE COVENANTS. THE BORROWER AGREES THAT UNTIL THE BORROWER
SATISFIES ALL OF ITS OBLIGATIONS TO THE LENDER, INCLUDING, BUT NOT LIMITED
TO, ITS OBLIGATIONS TO PAY IN FULL ALL OF THE BORROWER'S LIABILITIES, THE
BORROWER SHALL NOT ITSELF, NOR SHALL THE BORROWER CAUSE, PERMIT OR ALLOW
ANY BANK SUBSIDIARY TO:
A. CREATE, ASSUME, INCUR, HAVE OUTSTANDING, OR IN ANY MANNER
BECOME LIABLE IN RESPECT OF ANY INDEBTEDNESS, GREATER THAN
$5,000,000.00, OTHER THAN TO LENDER OR, WITH RESPECT TO ANY OF THE
BANK SUBSIDIARIES, IN THE ORDINARY COURSE OF BUSINESS AND IN
ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS AND SAFE AND SOUND
BANKING PRACTICES;
B. CREATE, ASSUME, INCUR, SUFFER OR PERMIT TO EXIST ANY MORTGAGE,
PLEDGE, DEED OF TRUST, ENCUMBRANCE (INCLUDING THE LIEN OR RETAINED
SECURITY TITLE OF A CONDITIONAL VENDOR), OR LIEN UPON OR WITH
RESPECT TO ANY OF THEIR REAL OR PERSONAL PROPERTY, INCLUDING,
WITHOUT LIMITATION, ANY CAPITAL STOCK OWNED BY BORROWER OR ANY OF
THE BANK SUBSIDIARIES, WHETHER OWNED AT THE DATE HEREOF OR HEREAFTER
ACQUIRED, OR ASSIGN OR OTHERWISE CONVEY ANY RIGHT TO RECEIVE INCOME,
EXCEPT ONLY: (i) LIENS FOR TAXES, ASSESSMENTS OR OTHER GOVERNMENTAL
CHARGES FOR THE THEN CURRENT YEAR OR WHICH ARE NOT YET DUE OR
DELINQUENT; AND (ii) IN THE CASE OF ANY OF THE BANK SUBSIDIARIES,
LIENS INCURRED IN THE ORDINARY COURSE OF THE BUSINESS OF BANKING
OPERATIONS AND IN ACCORDANCE WITH APPLICABLE LAWS AND REGULATIONS
AND SAFE AND SOUND BANKING PRACTICES; AND (iii) ANY LIEN GRANTED BY
THE BORROWER TO THE LENDER;
C. DISPOSE OF BY SALE, ASSIGNMENT, LEASE OR OTHERWISE, PROPERTY
OR ASSETS NOW OWNED OR HEREAFTER ACQUIRED IF SUCH PROPERTY OR ASSETS
PLUS ALL OTHER PROPERTIES AND ASSETS SOLD, LEASED, TRANSFERRED OR
OTHERWISE DISPOSED OF DURING THE 12-MONTH PERIOD ENDING ON THE DATE
OF SUCH SALE, LEASE OR OTHER DISPOSITION SHALL HAVE AN AGGREGATE
VALUE OF MORE THAN TEN PERCENT (10%) OF THE CONSOLIDATED ASSETS OF
THE BORROWER AS REFLECTED IN THE MOST RECENT BALANCE SHEET DELIVERED
TO THE LENDER PURSUANT TO SECTION II.A.1, EXCEPT THAT ANY OF THE
BANK SUBSIDIARIES MAY DISPOSE OF ITS PROPERTY OR ASSETS TO THE
BORROWER OR SELL RESIDENTIAL MORTGAGE LOANS IN THE ORDINARY COURSE
OF ITS BANKING BUSINESS AND CONSISTENT WITH SAFE AND SOUND BANKING
PRACTICES;
D. BECOME A GUARANTOR, SURETY OR OTHERWISE LIABLE FOR THE DEBTS
OR OTHER OBLIGATIONS OF ANY OTHER PERSON, OTHER THAN AS IT RELATES
TO
24
BORROWER'S ESOP;
E. PURCHASE THE PROPERTIES OR ASSETS OF, MERGE WITH OR INTO OR
CONSOLIDATE WITH OR INTO, ANY OTHER PERSON WITHOUT THE PRIOR WRITTEN
CONSENT OF THE LENDER, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD;
F. MAKE ANY LOANS OR ADVANCES, WHETHER SECURED OR UNSECURED, TO
ANY PERSON, OTHER THAN LOANS OR ADVANCES MADE BY ANY OF THE BANK
SUBSIDIARIES IN THE ORDINARY COURSE OF BUSINESS AND IN ACCORDANCE
WITH APPLICABLE LAWS AND REGULATIONS AND SAFE AND SOUND BANKING
PRACTICES;
G. ENGAGE IN ANY BUSINESS OR ACTIVITY NOT PERMITTED BY ALL
APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, THE
BANK HOLDING COMPANY ACT OF 1956, AS AMENDED, THE ILLINOIS BANKING
ACT, AS AMENDED ("IBA"), THE NEVADA BANKING ACT, AS AMENDED ("NBA"),
THE NATIONAL BANK ACT, AS AMENDED, THE FEDERAL DEPOSIT INSURANCE
ACT, AS AMENDED ("FDI ACT"), AND ANY REGULATIONS PROMULGATED
THEREUNDER;
H. MAKE ANY LOAN OR ADVANCE SECURED BY THE CAPITAL STOCK OF
ANOTHER BANK OR DEPOSITORY INSTITUTION, OR ACQUIRE THE CAPITAL
STOCK, ASSETS OR OBLIGATIONS OF, OR ANY INTEREST IN, ANOTHER BANK OR
DEPOSITORY INSTITUTION, IN EACH CASE OTHER THAN IN THE ORDINARY
COURSE OF BUSINESS AND IN ACCORDANCE WITH APPLICABLE LAWS AND
REGULATIONS AND SAFE AND SOUND BANKING PRACTICES;
I. DIRECTLY OR INDIRECTLY CREATE, ASSUME, INCUR, SUFFER OR
PERMIT TO EXIST ANY LIEN ON THE PLEDGED SUBSIDIARY SHARES OR ANY
OTHER STOCK OWNED BY BORROWER OR ANY OF THE SUBSIDIARIES, EXCEPT FOR
ANY SECURITY INTEREST GRANTED HEREWITH OR PREVIOUSLY BY THE BORROWER
TO THE LENDER.
J. SELL, TRANSFER, ISSUE, REISSUE, EXCHANGE OR GRANT ANY
OPTION OR OTHER ACQUISITION RIGHT WITH RESPECT TO ANY PLEDGED
SUBSIDIARY SHARES;
K. BREACH OR FAIL TO PERFORM OR OBSERVE ANY OF THE TERMS AND
CONDITIONS OF THE NOTES, THE PLEDGE AGREEMENT OR ANY OTHER LOAN
DOCUMENT;
L. ENGAGE IN ANY UNSAFE OR UNSOUND BANKING PRACTICES AS
DETERMINED BY A GOVERNMENTAL AGENCY;
M. ENTER INTO ANY TRANSACTION INCLUDING, WITHOUT LIMITATION,
THE PURCHASE, SALE OR EXCHANGE OF PROPERTY OR ASSETS OR THE
RENDERING OF ANY SERVICE, WITH ANY AFFILIATE (AS SUCH TERM IS
DEFINED IN THIS SECTION IM) EXCEPT IN THE ORDINARY COURSE OF
BUSINESS AND PURSUANT TO
25
THE REASONABLE REQUIREMENTS OF THE BORROWER'S OR SUCH AFFILIATE'S
BUSINESS AND UPON TERMS REASONABLY FOUND BY THE APPROPRIATE
BOARD(S) OF DIRECTORS TO BE FAIR AND REASONABLE AND NO LESS
FAVORABLE TO THE BORROWER OR SUCH AFFILIATE THAN WOULD BE
OBTAINED IN A COMPARABLE ARM'S LENGTH TRANSACTION WITH A PERSON
NOT AN AFFILIATE.
N. TO, CREATE, INCUR OR SUFFER TO EXIST ANY INDEBTEDNESS,
EXCEPT:
1. ANY INDEBTEDNESS ARISING UNDER, IN CONNECTION WITH OR
PURSUANT TO AN INDENTURE IF, AND ONLY IF, SUCH INDEBTEDNESS
(A) IS ISSUED BY THE BORROWER, (B) IS ISSUED IN CONNECTION
WITH THE ISSUANCE BY A TRUST OF SECURITIES REPRESENTING AN
UNDIVIDED INTEREST IN SUCH TRUST, AND (C) IS SUBORDINATE
AND JUNIOR IN ALL RESPECTS TO THE LOANS AS PROVIDED BY THE
EXPRESS TERMS OF THE INDENTURE GOVERNING SUCH INDEBTEDNESS,
AND PROVIDED THAT (1) BORROWER DELIVERS WITHIN THIRTY (30)
DAYS OF THE DATE OF ANY INSTRUMENT EVIDENCING SUCH
INDEBTEDNESS (i) TRUE, ACCURATE, AND COMPLETE (WITH NO
FEWER SIGNATURES THAN THOSE OF THE BORROWER AND ANY
SUBSIDIARY THAT MAY BE A PARTY TO ANY OF SUCH DOCUMENTS)
COPIES OF THE FINAL OFFERING CIRCULARS (IN THE CASE OF
STAND-ALONE TRANSACTIONS, BUT NOT POOLED TRANSACTIONS),
TRUST AGREEMENTS, GUARANTEES, INDENTURES, AND OTHER
DOCUMENTATION EVIDENCING OR RELATING TO SUCH INDEBTEDNESS
(AND BORROWER AGREES TO DELIVER TO LENDER FULLY EXECUTED
COPIES OF SUCH DOCUMENTS WITHIN TEN (10) DAYS OF THEIR
RECEIPT BY BORROWER), AND (ii) A TRUE, ACCURATE AND
COMPLETE COPY OF THE APPROVAL ORDER, IF REQUIRED, ISSUED BY
THE BOARD OF GOVERNORS OF FRB WITH RESPECT TO SUCH
INDEBTEDNESS.
II. AFFIRMATIVE COVENANTS.
The Borrower agrees that until the Borrower satisfies all of the
Borrower's Liabilities, including, but not limited to its obligations to pay in
full all the Borrower's Liabilities, the Borrower shall satisfy the covenants
set forth below:
26
A. THE BORROWER SHALL FURNISH AND DELIVER TO THE LENDER:
1. AS SOON AS AVAILABLE, BUT IN ANY EVENT NOT MORE THAN
NINETY (90) DAYS AFTER THE CLOSE OF EACH FISCAL YEAR OF THE
BORROWER, OR WITHIN SUCH FURTHER TIME AS THE LENDER MAY
PERMIT, CONSOLIDATED AND CONSOLIDATING AUDITED FINANCIAL
STATEMENTS FOR THE BORROWER AND THE SUBSIDIARIES, INCLUDING A
BALANCE SHEET AND RELATED PROFIT AND LOSS STATEMENT, PREPARED
IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE
PERIODS REFLECTED THEREIN BY MCGLADREY OR OTHER INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS ACCEPTABLE TO THE LENDER, WHO
SHALL GIVE THEIR UNQUALIFIED OPINION WITH RESPECT THERETO,
WHICH OPINION SHALL EXPRESSLY STATE THAT THE LENDER MAY RELY
ON SUCH OPINION AND THE FINANCIAL STATEMENTS REFERENCED
THEREIN;
2. AS SOON AS AVAILABLE, BUT IN ANY EVENT NOT MORE THAN
NINETY (90) DAYS AFTER THE CLOSE OF EACH FISCAL YEAR OF THE
BORROWER, OR WITHIN SUCH FURTHER TIME AS THE LENDER MAY
PERMIT, THE FORM 10-K FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION;
3. AS SOON AS AVAILABLE, BUT IN ANY EVENT NOT MORE THAN
FORTY-FIVE (45) DAYS AFTER THE CLOSE OF EACH QUARTERLY PERIOD
OF EACH FISCAL YEAR OF THE BORROWER, OR WITHIN SUCH FURTHER
TIME AS THE LENDER MAY PERMIT, THE FORM 10-Q FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION;
4. AS SOON AS AVAILABLE, BUT IN ANY EVENT NOT MORE THAN
FORTY-FIVE (45) DAYS AFTER THE CLOSE OF EACH QUARTERLY PERIOD
OF EACH FISCAL YEAR OF THE BORROWER, OR WITHIN SUCH FURTHER
TIME AS THE LENDER MAY PERMIT: (A) THE REPORTS FILED BY THE
BORROWER OR ANY OF THE SUBSIDIARIES WITH STATE OR FEDERAL BANK
REGULATORY AGENCIES; (B) INTERNALLY PREPARED "WATCH LIST" OR
OTHER REPORTS OF THE BORROWER OR ANY OF THE SUBSIDIARIES WITH
RESPECT TO DELINQUENT, CLASSIFIED OR ASSETS REQUIRING SPECIAL
ATTENTION; AND (C) FORMS FRY-9C FILED BY THE BORROWER WITH
FEDERAL BANK REGULATORY AGENCIES;
5. THE BORROWER SHALL FURNISH THE LENDER, AT THE SAME
TIME AS THE QUARTERLY FINANCIAL REPORTS REFERRED TO IN SECTION
IIA2, A QUARTERLY COMPLIANCE CERTIFICATE IN THE FORM SET FORTH
AS EXHIBIT E HERETO, WHICH CERTIFICATE SHALL STATE THAT: (A)
THE BORROWER IS IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH
ALL COVENANTS CONTAINED IN THIS AGREEMENT; (B) THAT NO DEFAULT
OR EVENT OF DEFAULT HAS OCCURRED OR IS CONTINUING, OR, IF
THERE IS ANY SUCH EVENT, DESCRIBING SUCH EVENT, THE STEPS, IF
ANY, THAT ARE BEING TAKEN TO CURE IT, AND THE TIME WITHIN
WHICH SUCH CURE WILL OCCUR; AND (C) ALL REPRESENTATIONS AND
WARRANTIES MADE BY THE BORROWER HEREIN (OTHER THAN IN SECTION
V) CONTINUE TO BE TRUE, ACCURATE, AND COMPLETE AS OF THE DATE
OF SUCH CERTIFICATE. SUCH QUARTERLY COMPLIANCE CERTIFICATE
SHALL BE SIGNED BY THE CHIEF EXECUTIVE OFFICER, PRESIDENT OR
CHIEF FINANCIAL OFFICER OF THE BORROWER AND SHALL ALSO
CONTAIN, IN A FORM AND WITH SUCH SPECIFICITY AS IS REASONABLY
SATISFACTORY TO THE LENDER, SUCH ADDITIONAL INFORMATION AS THE
LENDER SHALL HAVE REASONABLY REQUESTED BY THE BORROWER PRIOR
TO THE SUBMISSION THEREOF;
6. TO THE EXTENT PERMITTED BY LAW, PROMPTLY AFTER SAME
ARE AVAILABLE, COPIES OF EACH ANNUAL REPORT, PROXY OR
FINANCIAL STATEMENT OR OTHER REPORT OR COMMUNICATION SENT BY
THE BORROWER OR ANY OF THE SUBSIDIARIES TO THE STOCKHOLDERS OF
THE BORROWER OR ANY OF THE
27
SUBSIDIARIES, AND COPIES OF ALL ANNUAL, REGULAR, PERIODIC AND
SPECIAL REPORTS AND REGISTRATION STATEMENTS WHICH THE BORROWER
OR ANY OF THE SUBSIDIARIES MAY FILE OR BE REQUIRED TO FILE
WITH ANY FEDERAL OR STATE BANKING REGULATORY AGENCY OR ANY
OTHER GOVERNMENTAL AGENCY OR WITH ANY SECURITIES EXCHANGE;
7. IMMEDIATELY AFTER RECEIVING KNOWLEDGE THEREOF, NOTICE
IN WRITING OF ALL CHARGES, ASSESSMENTS, ACTIONS, SUITS AND
PROCEEDINGS (AS WELL AS NOTICE OF THE OUTCOME OF ANY SUCH
CHARGES, ASSESSMENTS, ACTIONS, SUITS AND PROCEEDINGS) THAT ARE
INITIATED BY, OR BROUGHT BEFORE, ANY COURT OR GOVERNMENTAL
DEPARTMENT, COMMISSION, BOARD OR OTHER ADMINISTRATIVE AGENCY,
IN CONNECTION WITH THE BORROWER OR ANY OF THE SUBSIDIARIES,
OTHER THAN ORDINARY COURSE OF BUSINESS LITIGATION NOT
INVOLVING THE FRB, THE FDIC, OR THE OTS, , WHICH, IF ADVERSELY
DECIDED, WOULD NOT HAVE A MATERIAL ADVERSE EFFECT ON THE
FINANCIAL CONDITION, BUSINESS, PROPERTIES, ASSETS,
LIABILITIES, OPERATIONS, PROSPECTS, OR RESULTS OF OPERATIONS
OF THE BORROWER OR ANY OF THE SUBSIDIARIES;
8. PROMPTLY UPON RECEIPT THEREOF, ONE COPY OF EACH WRITTEN AUDIT
REPORT SUBMITTED TO THE BORROWER BY ITS INDEPENDENT AUDITORS;
AND
9. PROMPTLY AFTER THE OCCURRENCE THEREOF, NOTICE OF ANY OTHER
MATTER WHICH HAS RESULTED IN, OR WHICH MIGHT OR COULD RESULT
IN, A MATERIALLY ADVERSE CHANGE IN THE FINANCIAL CONDITION,
BUSINESS, PROPERTIES, ASSETS, LIABILITIES, OPERATIONS,
PROSPECTS, OR RESULTS OF OPERATIONS OF THE BORROWER OR ANY OF
THE SUBSIDIARIES.
B. THE BORROWER SHALL MAINTAIN A RATIO OF NON-PERFORMING
ASSETS TO TOTAL LOANS AND OTHER REAL ESTATE TO BE LESS THAN TWO AND
THREE QUARTERS PERCENT (2.75%) AT ALL TIMES. ALL RATIOS SET FORTH IN
THIS SECTION SHALL BE MEASURED QUARTERLY AND SHALL BE DERIVED FROM
THE APPLICABLE QUARTERLY FINANCIAL STATEMENTS FILED WITH THE
APPROPRIATE GOVERNMENTAL AGENCY. FOR PURPOSES OF THIS SECTION
"NONPERFORMING ASSETS" SHALL MEAN THE SUM OF ALL OTHER REAL ESTATE
OWNED, NON-ACCRUAL LOANS, RESTRUCTURED LOANS AND LOANS ON WHICH ANY
PAYMENT IS NINETY (90) OR MORE DAYS PAST DUE WHICH IS STILL ACCRUING
INTEREST AND "TOTAL LOANS AND OTHER REAL ESTATE OWNED" SHALL MEAN
TOTAL LOANS AND OTHER REAL ESTATE OWNED.
C. THE BORROWER SHALL MAINTAIN, ON AN ANNUALIZED BASIS, AN
ANNUAL RETURN ON AVERAGE TOTAL ASSETS OF GREATER THAN 7/10 OF ONE
PERCENT (0.70%) BEGINNING WITH THE QUARTER ENDED JUNE 30, 2004. THIS
COVENANT SHALL BE CALCULATED ON A QUARTERLY BASIS BEGINNING WITH THE
QUARTER ENDED JUNE 30, 2004.
D. THE BORROWER (ON A CONSOLIDATED BASIS) SHALL AT ALL TIMES
MAINTAIN SUCH CAPITAL AS MAY BE NECESSARY TO CAUSE EACH OF THE
BORROWER AND EACH OF THE BANK SUBSIDIARIES TO BE CLASSIFIED AS A
"WELL CAPITALIZED" INSTITUTION IN ACCORDANCE WITH THE REGULATIONS OF
THEIR PRIMARY FEDERAL REGULATOR AS IN EFFECT ON THE DATE OF THIS
AGREEMENT.
28
E. THE BORROWER SHALL PROMPTLY PAY AND DISCHARGE ALL TAXES,
ASSESSMENTS AND OTHER GOVERNMENTAL CHARGES IMPOSED UPON THE BORROWER
OR ANY OF THE BANK SUBSIDIARIES OR UPON THE INCOME, PROFITS,
PROPERTY, OR ASSETS OF THE BORROWER OR ANY OF THE BANK SUBSIDIARIES
AND ALL CLAIMS FOR LABOR, MATERIAL OR SUPPLIES WHICH, IF UNPAID,
MIGHT BY LAW BECOME A LIEN UPON THE PROPERTY OR ASSETS OF THE
BORROWER OR ANY OF THE BANK SUBSIDIARIES. NEITHER THE BORROWER NOR
ANY OF THE BANK SUBSIDIARIES SHALL BE REQUIRED TO PAY ANY SUCH TAX,
ASSESSMENT, CHARGE OR CLAIM, SO LONG AS THE VALIDITY THEREOF SHALL
BE CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS, AND RESERVES
THEREFOR SHALL BE MAINTAINED ON THE BOOKS OF THE BORROWER OR ANY OF
THE BANK SUBSIDIARIES AS ARE DEEMED ADEQUATE BY THE LENDER.
F. THE BORROWER SHALL MAINTAIN BONDS AND INSURANCE AND SHALL
CAUSE EACH OF THE BANK SUBSIDIARIES TO MAINTAIN BONDS AND INSURANCE
WITH RESPONSIBLE AND REPUTABLE INSURANCE COMPANIES OR ASSOCIATIONS
IN SUCH AMOUNTS AND COVERING SUCH RISK AS IS USUALLY CARRIED BY
OWNERS OF SIMILAR BUSINESSES, PROPERTIES, AND ASSETS IN THE SAME
GENERAL AREA IN WHICH THE BORROWER AND EACH OF THE BANK SUBSIDIARIES
OPERATES, AND SUCH ADDITIONAL BONDS AND INSURANCE AS MAY REASONABLY
BE REQUIRED BY THE LENDER.
G. THE BORROWER SHALL PERMIT AND CAUSE EACH OF THE BANK
SUBSIDIARIES TO PERMIT THE LENDER THROUGH ITS EMPLOYEES, ATTORNEYS,
ACCOUNTANTS OR OTHER AGENTS, TO INSPECT ANY OF THE PROPERTIES,
CORPORATE BOOKS AND FINANCIAL BOOKS AND RECORDS OF THE BORROWER AND
EACH OF THE BANK SUBSIDIARIES AT THE REQUEST OF THE LENDER, BUT NOT
MORE OFTEN THAN ANNUALLY, UNLESS THERE IS A CAUSE FOR CONCERN.
H. AS SOON AS POSSIBLE, AND IN ANY EVENT WITHIN TEN (10)
BUSINESS DAYS, AFTER: (i) THE BORROWER OR ANY ERISA AFFILIATE KNOWS
THAT WITH RESPECT TO ANY EMPLOYEE BENEFIT PLAN, A "PROHIBITED
TRANSACTION," A "REPORTABLE EVENT," OR ANY OTHER EVENT OR CONDITION
WHICH COULD SUBJECT THE BORROWER OR ANY ERISA AFFILIATE TO LIABILITY
UNDER ERISA OR THE CODE; OR (ii) THE INSTITUTION OF STEPS BY THE
BORROWER OR ANY ERISA AFFILIATE TO WITHDRAW FROM, OR THE INSTITUTION
OF ANY STEPS BY ANY PARTY TO TERMINATE, ANY EMPLOYEE BENEFIT PLAN;
HAS OR MAY HAVE OCCURRED, THE BORROWER SHALL DELIVER TO THE LENDER A
CERTIFICATE OF A RESPONSIBLE OFFICER SETTING FORTH THE DETAILS OF
SUCH MATTER, THE ACTION THAT THE BORROWER PROPOSES TO TAKE WITH
RESPECT THERETO, AND, WHEN KNOWN, ANY ACTION TAKEN OR THREATENED BY
THE INTERNAL REVENUE SERVICE, THE U.S. DEPARTMENT OF LABOR, OR THE
PENSION BENEFIT GUARANTEE CORPORATION. FOR PURPOSES OF THIS
COVENANT, THE BORROWER SHALL BE DEEMED TO HAVE KNOWLEDGE OF ALL
FACTS KNOWN BY THE FIDUCIARIES OF ANY PLAN OF THE BORROWER OR ANY
ERISA AFFILIATE.
I. THE BORROWER SHALL:
29
1. EXERCISE AND CAUSE EACH OF THE BANK SUBSIDIARIES TO
EXERCISE DUE DILIGENCE IN ORDER TO COMPLY WITH ALL FEDERAL,
STATE AND LOCAL LAWS, STATUTES, ORDINANCES, REGULATIONS AND
POLICIES RELATING TO HEALTH, SAFETY, ECOLOGY OR THE
ENVIRONMENT (COLLECTIVELY, THE "ENVIRONMENTAL LAWS");
2. PERMIT THE LENDER, FROM TIME TO TIME AND IN ITS SOLE
AND ABSOLUTE DISCRETION, TO RETAIN, AT THE BORROWER'S EXPENSE,
AN INDEPENDENT PROFESSIONAL CONSULTANT TO REVIEW ANY REPORT
RELATING TO HAZARDOUS MATERIALS PREPARED BY OR FOR BORROWER OR
ANY OF THE BANK SUBSIDIARIES AND AT REASONABLE TIMES AND
SUBJECT TO REASONABLE CONDITIONS TO CONDUCT ITS OWN
INVESTIGATION OF ANY REAL PROPERTY OR OTHER FACILITY CURRENTLY
OR THEN OWNED, LEASED, OPERATED OR USED BY BORROWER OR ANY OF
THE BANK SUBSIDIARIES, AND BORROWER AGREES TO USE ITS BEST
EFFORTS TO OBTAIN PERMISSION FOR THE LENDER'S PROFESSIONAL
CONSULTANT TO CONDUCT ITS OWN INVESTIGATION OF ANY REAL
PROPERTY OR OTHER FACILITY PREVIOUSLY OWNED, LEASED, OPERATED
OR USED BY BORROWER AND SHALL CAUSE EACH OF THE BANK
SUBSIDIARIES TO DO THE SAME. BORROWER HEREBY GRANTS TO THE
LENDER, ITS AGENTS, EMPLOYEES, CONSULTANTS, AND CONTRACTORS
THE RIGHT TO ENTER INTO OR ON TO, AT REASONABLE TIMES, THE
REAL PROPERTY OR OTHER FACILITIES OWNED, LEASED, OPERATED OR
USED BY BORROWER AND EACH OF THE BANK SUBSIDIARIES
(HEREINAFTER, EACH A "FACILITY" AND COLLECTIVELY THE
"FACILITIES") TO PERFORM SUCH TESTS ON SUCH PROPERTY AS ARE
REASONABLY NECESSARY TO CONDUCT SUCH A REVIEW AND/OR
INVESTIGATION;
3. PROMPTLY ADVISE THE LENDER IN WRITING AND IN
REASONABLE DETAIL OF: (A) ANY PRESENCE, USE, STORAGE,
TRANSPORTATION, DISCHARGE, DISPOSAL, RELEASE OR THREATENED
RELEASE (EACH OF THE FOREGOING BEING HEREINAFTER REFERRED TO
AS A "CONDITION OR RELEASE") OF ANY HAZARDOUS MATERIALS
REQUIRED TO BE REPORTED TO ANY FEDERAL, STATE OR LOCAL
GOVERNMENTAL OR REGULATORY AGENCY UNDER ANY APPLICABLE
ENVIRONMENTAL LAWS; (B) ANY AND ALL WRITTEN COMMUNICATIONS
WITH RESPECT TO CLAIMS OR THREATENED CLAIMS UNDER OR WITH
RESPECT TO ANY ENVIRONMENTAL LAWS (AN "ENVIRONMENTAL CLAIM")
OR ANY CONDITION OR RELEASE OF HAZARDOUS MATERIAL REQUIRED TO
BE REPORTED TO ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL OR
REGULATORY AGENCY; (C) ANY REMEDIAL ACTION TAKEN BY BORROWER
OR ANY OTHER PERSON IN RESPONSE TO: (1) ANY HAZARDOUS MATERIAL
ON, UNDER OR ABOUT ANY FACILITY, THE EXISTENCE OF WHICH COULD
RESULT IN AN ENVIRONMENTAL CLAIM; OR (2) ANY ENVIRONMENTAL
CLAIM THAT COULD HAVE A MATERIAL ADVERSE EFFECT ON BORROWER OR
ANY OF THE BANK SUBSIDIARIES; (D) BORROWER'S DISCOVERY OF ANY
OCCURRENCE OR CONDITION ON ANY REAL PROPERTY ADJOINING OR IN
THE VICINITY OF ANY FACILITY THAT COULD CAUSE SUCH FACILITY OR
ANY PART THEREOF TO BE SUBJECT TO ANY RESTRICTIONS ON THE
OWNERSHIP, OCCUPANCY, TRANSFERABILITY OR USE THEREOF UNDER ANY
ENVIRONMENTAL LAWS, AND (E) ANY REQUEST FOR INFORMATION FROM
ANY GOVERNMENTAL AGENCY INDICATING THAT SUCH AGENCY HAS
INITIATED AN INVESTIGATION AS TO WHETHER THE BORROWER OR ANY
OF THE BANK SUBSIDIARIES MAY BE POTENTIALLY RESPONSIBLE FOR
ANY CONDITION OR RELEASE OF HAZARDOUS MATERIAL;
4. PROMPTLY NOTIFY THE LENDER OF: (A) ANY ACQUISITION OF
STOCK, ASSETS, OR PROPERTY BY BORROWER OR ANY OF THE BANK
SUBSIDIARIES THAT
30
REASONABLY COULD BE EXPECTED TO EXPOSE ANY PROPOSED ACTION
OUTSIDE THE NORMAL COURSE OF BUSINESS TO BE TAKEN BY THE
BORROWER OR ANY OF THE BANK SUBSIDIARIES TO, OR RESULT IN,
ENVIRONMENTAL CLAIMS THAT COULD HAVE A MATERIAL ADVERSE EFFECT
OR THAT COULD BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON
ANY GOVERNMENTAL AUTHORIZATION, (THEN-HELD BY BORROWER OR ANY
OF THE BANK SUBSIDIARIES; AND (B) ANY PROPOSED ACTION OUTSIDE
THE NORMAL COURSE OF BUSINESS TO BE TAKEN BY BORROWER OR ANY
OF THE BANK SUBSIDIARIES TO COMMENCE INDUSTRIAL OR OTHER
OPERATIONS THAT COULD SUBJECT BORROWER OR ANY OF THE BANK
SUBSIDIARIES TO ADDITIONAL LAWS, RULES OR REGULATIONS,
INCLUDING, WITHOUT LIMITATION, LAWS, RULES AND REGULATIONS
REQUIRING ADDITIONAL ENVIRONMENTAL PERMITS OR LICENSES;
5. AT THEIR OWN EXPENSE, PROVIDE COPIES OF SUCH
DOCUMENTS OR INFORMATION AS THE LENDER MAY REASONABLY REQUEST
IN RELATION TO ANY MATTERS DISCLOSED PURSUANT TO THIS SECTION
III; AND
6. PROMPTLY TAKE ANY AND ALL NECESSARY REMEDIAL ACTION
IN CONNECTION WITH ANY CONDITION OR RELEASE OF ANY HAZARDOUS
MATERIALS, ON, UNDER OR ABOUT ANY FACILITY IN ORDER TO COMPLY
WITH ALL APPLICABLE ENVIRONMENTAL LAWS AND GOVERNMENTAL
AUTHORIZATIONS. IN THE EVENT BORROWER OR ANY OF THE BANK
SUBSIDIARIES UNDERTAKES ANY REMEDIAL ACTION WITH RESPECT TO
ANY HAZARDOUS MATERIAL ON, UNDER OR ABOUT ANY FACILITY, SUCH
BORROWER OR BANK SUBSIDIARY SHALL CONDUCT AND COMPLETE SUCH
REMEDIAL ACTION IN COMPLIANCE WITH ALL APPLICABLE
ENVIRONMENTAL LAWS AND IN ACCORDANCE WITH THE POLICIES, ORDERS
AND DIRECTIVES OF ALL FEDERAL, STATE AND LOCAL GOVERNMENT
AUTHORITIES.
J. THE BORROWER SHALL DO OR CAUSE TO BE DONE ALL THINGS
NECESSARY TO MAINTAIN, PRESERVE AND RENEW THE CORPORATE EXISTENCE OF
BORROWER AND EACH OF THE BANK SUBSIDIARIES AND ITS AND THEIR RIGHTS
AND FRANCHISES, AND COMPLY WITH ALL RELATED LAWS APPLICABLE TO THE
BORROWER AND EACH OF THE BANK SUBSIDIARIES.
K. THE BORROWER SHALL COMPLY AND CAUSE EACH OF THE BANK
SUBSIDIARIES TO COMPLY WITH ALL APPLICABLE STATUTES, RULES,
REGULATIONS, ORDERS AND RESTRICTIONS IN RESPECT OF THE CONDUCT OF
THEIR RESPECTIVE BUSINESSES AND THE OWNERSHIP OF THEIR RESPECTIVE
PROPERTIES AND ASSETS, UNLESS A NON-COMPLIANCE DOES NOT, AND WILL
NOT, RESULT IN A MATERIAL ADVERSE EFFECT ON THE BORROWER AND ITS
BANK SUBSIDIARIES, AS A WHOLE.
L. THE BORROWER SHALL USE THE PROCEEDS OF THE LOANS TO
PURCHASE ALL OF THE ISSUED AND OUTSTANDING SHARES OF FIRST CAPITAL
BANKSHARES, INC. PURSUANT TO THE MERGER AGREEMENT, FOR AN AGGREGATE
PURCHASE PRICE OF FORTY-TWO MILLION DOLLARS ($42,000,000), WITH ANY
REMAINING PROCEEDS TO BE USED FOR GENERAL CORPORATE PURPOSES. THE
BORROWER WILL NOT USE ANY PART OF THE PROCEEDS OF THE LOANS: (i)
DIRECTLY OR INDIRECTLY TO PURCHASE OR CARRY ANY MARGIN SECURITY OR
REDUCE OR RETIRE ANY INDEBTEDNESS ORIGINALLY INCURRED TO PURCHASE
ANY SUCH MARGIN SECURITY WITHIN THE MEANING OF REGULATION U OF THE
FRB; OR (ii) SO AS TO INVOLVE THE BORROWER OR THE LENDER IN A
VIOLATION OF REGULATION U OF THE FRB.
31
EVENTS OF DEFAULT; DEFAULT; RIGHTS UPON
DEFAULT
I. EVENTS OF DEFAULT. THE HAPPENING OR OCCURRENCE OF ANY OF THE
FOLLOWING EVENTS, ACTS OR CONDITIONS (AN "EVENT OF DEFAULT") AND THE
BORROWER'S FAILURE TO CURE SAME AFTER EXPIRATION OF ANY APPLICABLE CURE
PERIOD SHALL EACH CONSTITUTE A "DEFAULT" HEREUNDER, AND ANY SUCH DEFAULT
SHALL ALSO CONSTITUTE A DEFAULT UNDER EACH OF THE NOTES, THE PLEDGE
AGREEMENT, AND ANY OTHER LOAN DOCUMENT, WITHOUT RIGHT TO NOTICE OR TIME TO
CURE IN FAVOR OF THE BORROWER EXCEPT AS INDICATED BELOW:
32
A. IF THE BORROWER FAILS TO MAKE PAYMENT WHEN DUE OR WHERE
APPLICABLE UPON DEMAND, OR FAILS TO MAKE ANY PAYMENTS AS PROVIDED
FOR HEREIN AND SUCH FAILURE CONTINUES FOR THREE (3) DAYS;
B. IF THERE CONTINUES TO EXIST ANY BREACH OF ANY OBLIGATION OF
BORROWER UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND SUCH
BREACH REMAINS UNCURED BEYOND THE APPLICABLE TIME PERIOD,
SPECIFICALLY PROVIDED THEREFOR OR IF NO TIME PERIOD IS SPECIFICALLY
PROVIDED, IF SUCH BREACH CONTINUES FOR TEN (10) DAYS;
C. IF ANY REPRESENTATION OR WARRANTY MADE BY THE BORROWER
HEREIN, OR IN ANY OTHER AGREEMENT NOW OR AT ANY TIME HEREAFTER
EXISTING BETWEEN THE BORROWER AND THE LENDER, IS BREACHED OR IS
FALSE OR MISLEADING IN ANY MATERIAL RESPECT, OR ANY SCHEDULE,
CERTIFICATE, FINANCIAL STATEMENT, REPORT, NOTICE OR OTHER WRITING
FURNISHED BY THE BORROWER OR ANY OF THE SUBSIDIARIES TO THE LENDER
IS FALSE OR MISLEADING IN ANY MATERIAL RESPECT ON THE DATE AS OF
WHICH THE FACTS THEREIN SET FORTH ARE STATED OR CERTIFIED;
D. IF: (i) THE BORROWER, ANY OF THE SUBSIDIARIES, OR ANY
AFFILIATE OF THE BORROWER OR ANY OF THE SUBSIDIARIES, FAILS TO
PERFORM OR OBSERVE ANY COVENANT OR AGREEMENT CONTAINED IN ANY OTHER
AGREEMENT WITH THE LENDER, OR IF ANY CONDITION CONTAINED IN ANY
AGREEMENT WITH THE LENDER IS NOT FULFILLED, AND SUCH FAILURE OR
NONFULFILLMENT REMAINS UNCURED BEYOND THE APPLICABLE TIME PERIOD, IF
ANY, SPECIFICALLY PROVIDED THEREFOR, OR IF NO TIME PERIOD IS
SPECIFICALLY PROVIDED, CONTINUES FOR TEN (10) DAYS; OR (ii) A
DEFAULT OR EVENT OF DEFAULT (AS DEFINED IN ANY SUCH AGREEMENT)
OCCURS UNDER ANY OTHER AGREEMENT WITH THE LENDER AND SUCH DEFAULT OR
EVENT OF DEFAULT CONTINUES FOR TEN (10) DAYS;
E. IF ANY GOVERNMENTAL AGENCY CHARGED WITH THE REGULATION OF
BANK HOLDING COMPANIES, DEPOSITORY INSTITUTIONS, OR THRIFTS: (i)
ISSUES TO THE BORROWER OR ANY OF THE SUBSIDIARIES, OR INITIATES ANY
ACTION, SUIT OR PROCEEDING TO OBTAIN AGAINST, IMPOSE ON OR REQUIRE
FROM THE BORROWER OR ANY OF THE SUBSIDIARIES, A CEASE AND DESIST
ORDER OR SIMILAR REGULATORY ORDER, THE ASSESSMENT OF CIVIL MONETARY
PENALTIES, ARTICLES OF AGREEMENT, A MEMORANDUM OF UNDERSTANDING, A
CAPITAL DIRECTIVE, A CAPITAL RESTORATION PLAN, RESTRICTIONS THAT
PREVENT OR AS A PRACTICAL MATTER IMPAIR THE PAYMENT OF DIVIDENDS BY
ANY OF THE SUBSIDIARIES OR THE PAYMENTS OF ANY DEBT BY THE BORROWER,
RESTRICTIONS THAT MAKE THE PAYMENT OF THE DIVIDENDS BY ANY OF THE
SUBSIDIARIES OR THE PAYMENT OF DEBT BY THE BORROWER SUBJECT TO PRIOR
REGULATORY APPROVAL, A NOTICE OR FINDING UNDER SECTION 8(a) OF THE
FDI ACT, OR ANY SIMILAR ENFORCEMENT ACTION, MEASURE OR PROCEEDING;
OR (ii) PROPOSES OR ISSUES TO ANY EXECUTIVE OFFICER OR DIRECTOR OF
THE BORROWER OR ANY OF THE SUBSIDIARIES, OR INITIATES ANY ACTION,
SUIT OR
33
PROCEEDING TO OBTAIN AGAINST, IMPOSE ON OR REQUIRE FROM ANY SUCH
OFFICER OR DIRECTOR, A CEASE AND DESIST ORDER OR SIMILAR REGULATORY
ORDER, A REMOVAL ORDER OR SUSPENSION ORDER, OR THE ASSESSMENT OF
CIVIL MONETARY PENALTIES;
F. IF THE BORROWER OR ANY OF THE SUBSIDIARIES BECOMES
INSOLVENT OR IS UNABLE TO PAY ITS DEBTS AS THEY MATURE; OR MAKES AN
ASSIGNMENT FOR THE BENEFIT OF CREDITORS OR ADMITS IN WRITING ITS
INABILITY TO PAY ITS DEBTS AS THEY MATURE; OR SUSPENDS TRANSACTION
OF ITS USUAL BUSINESS; OR IF A TRUSTEE OF ANY SUBSTANTIAL PART OF
THE ASSETS OF THE BORROWER OR ANY OF THE SUBSIDIARIES IS APPLIED FOR
OR APPOINTED, AND IF APPOINTED IN A PROCEEDING BROUGHT AGAINST THE
BORROWER, THE BORROWER BY ANY ACTION OR FAILURE TO ACT INDICATES ITS
APPROVAL OF, CONSENT TO, OR ACQUIESCENCE IN SUCH APPOINTMENT, OR
WITHIN THIRTY (30) DAYS AFTER SUCH APPOINTMENT, SUCH APPOINTMENT IS
NOT VACATED OR STAYED ON APPEAL OR OTHERWISE, OR SHALL NOT OTHERWISE
HAVE CEASED TO CONTINUE IN EFFECT;
G. IF ANY PROCEEDINGS INVOLVING THE BORROWER OR ANY OF THE
SUBSIDIARIES ARE COMMENCED BY OR AGAINST THE BORROWER OR ANY OF THE
SUBSIDIARIES UNDER ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT,
INSOLVENCY, READJUSTMENT OF DEBT, DISSOLUTION OR LIQUIDATION LAW OR
STATUTE OF THE FEDERAL GOVERNMENT OR ANY STATE GOVERNMENT AND, WITH
RESPECT TO THE BORROWER ONLY, IF SUCH PROCEEDINGS ARE INSTITUTED
AGAINST THE BORROWER, THE BORROWER BY ANY ACTION OR FAILURE TO ACT
INDICATES ITS APPROVAL OF, CONSENT TO OR ACQUIESCENCE THEREIN, OR AN
ORDER SHALL BE ENTERED APPROVING THE PETITION IN SUCH PROCEEDINGS
AND WITHIN THIRTY (30) DAYS AFTER THE ENTRY THEREOF SUCH ORDER IS
NOT VACATED OR STAYED ON APPEAL OR OTHERWISE, OR SHALL NOT OTHERWISE
HAVE CEASED TO CONTINUE IN EFFECT;
H. IF ANY JUDGMENT OR JUDGMENTS, WRIT OR WRITS, OR WARRANT OR
WARRANTS OF ATTACHMENT, OR ANY SIMILAR PROCESS OR PROCESSES, IN AN
AGGREGATE AMOUNT IN EXCESS OF $500,000, SHALL BE ENTERED OR FILED
AGAINST THE BORROWER OR ANY OF THE BANK SUBSIDIARIES OR AGAINST ANY
OF THEIR PROPERTY AND WHICH REMAINS UNVACATED, UNBONDED, UNSTAYED OR
UNSATISFIED FOR A PERIOD OF THIRTY (30) DAYS;
I. THIRTY (30) AFTER NOTICE THEREOF, IF THE BORROWER OR ANY OF
THE BANK SUBSIDIARIES CONTINUES TO BE IN DEFAULT IN ANY PAYMENT OF
PRINCIPAL OR INTEREST FOR ANY OTHER OBLIGATION OR IN THE PERFORMANCE
OF ANY OTHER TERM, CONDITION OR COVENANT CONTAINED IN ANY AGREEMENT
(INCLUDING BUT NOT LIMITED TO AN AGREEMENT IN CONNECTION WITH THE
ACQUISITION OF CAPITAL EQUIPMENT ON A TITLE RETENTION OR NET LEASE
BASIS), UNDER WHICH ANY SUCH OBLIGATION IS CREATED THE EFFECT OF
WHICH DEFAULT IS TO CAUSE OR PERMIT THE HOLDER OF SUCH OBLIGATION TO
CAUSE SUCH OBLIGATION TO BECOME DUE PRIOR TO ITS STATED MATURITY;
34
J. IF ANY OR ALL OF THE PLEDGED PROPERTY, AS DEFINED IN THE
PLEDGE AGREEMENT, IS ATTACHED, SEIZED, SUBJECTED TO A WRIT OF
DISTRESS WARRANT, OR IS LEVIED UPON OR BECOMES SUBJECT TO ANY LIEN,
OR COMES WITHIN THE POSSESSION OF ANY RECEIVER, TRUSTEE, CUSTODIAN
OR ASSIGNEE FOR THE BENEFIT OF CREDITORS;
K. IF THE BORROWER APPLIES FOR, CONSENTS TO OR ACQUIESCES IN
THE APPOINTMENT OF A TRUSTEE, RECEIVER, CONSERVATOR OR LIQUIDATOR
FOR ITSELF UNDER CHAPTER 7 OR CHAPTER 11 OF THE UNITED STATES
BANKRUPTCY CODE (THE "CODE PROVISIONS"), OR IN THE ABSENCE OF SUCH
APPLICATION, CONSENT OR ACQUIESCENCE, A TRUSTEE, CONSERVATOR,
RECEIVER OR LIQUIDATOR IS APPOINTED FOR THE BORROWER UNDER THE CODE
PROVISIONS, AND IS NOT DISCHARGED WITHIN THIRTY (30) DAYS, OR ANY
BANKRUPTCY, REORGANIZATION, DEBT ARRANGEMENT OR OTHER PROCEEDING OR
ANY DISSOLUTION, LIQUIDATION, OR CONSERVATORSHIP PROCEEDING IS
INSTITUTED BY OR AGAINST THE BORROWER UNDER THE CODE PROVISIONS, AND
IF INSTITUTED AGAINST THE BORROWER, IS CONSENTED OR ACQUIESCED IN BY
IT OR REMAINS FOR THIRTY (30) DAYS UNDISMISSED, OR IF THE BORROWER
IS ENJOINED, RESTRAINED OR IN ANY WAY PREVENTED FROM CONDUCTING ALL
OR ANY MATERIAL PART OF ITS BUSINESS UNDER THE CODE PROVISIONS;
L. IF ANY OF THE SUBSIDIARIES APPLIES FOR, CONSENTS TO OR
ACQUIESCES IN THE APPOINTMENT OF A RECEIVER FOR ITSELF, OR IN THE
ABSENCE OF SUCH APPLICATION, CONSENT OR ACQUIESCENCE, A RECEIVER IS
APPOINTED FOR OR ANY OF THE SUBSIDIARIES, AND IS NOT DISCHARGED
WITHIN THIRTY (30) DAYS; OR
M. IF THE MERGER IS NOT CONSUMMATED WITHIN TEN (10) DAYS OF
THE CLOSING DATE.
II. REMEDIES OF THE LENDER. FROM AND AFTER THE OCCURRENCE OF AN
EVENT OF DEFAULT, THE LENDER SHALL HAVE ALL RIGHTS AND REMEDIES PROVIDED
BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MAY,
AT ITS OPTION, DECLARE ITS COMMITMENTS UNDER THE LOAN DOCUMENTS AND
OTHERWISE TO BE TERMINATED AND THE NOTES SHALL THEREUPON BE AND BECOME
IMMEDIATELY DUE AND PAYABLE, WITHOUT ANY PRESENTMENT, DEMAND, PROTEST OR
OTHER NOTICE OF ANY KIND, ALL OF WHICH (NOTWITHSTANDING ANY PROVISION IN
ANY OF THE LOAN DOCUMENTS TO THE CONTRARY) ARE HEREBY EXPRESSLY WAIVED BY
THE BORROWER, AND LENDER MAY ALSO, WITHOUT LIMITATION, APPROPRIATE AND
APPLY TOWARD THE PAYMENT OF ANY NOTE ANY INDEBTEDNESS OF THE LENDER TO THE
BORROWER HOWEVER CREATED OR ARISING, AND MAY ALSO, WITHOUT LIMITATION,
EXERCISE ANY AND ALL RIGHTS IN AND TO THE COLLATERAL, WHETHER PURSUANT TO
THE PLEDGE AGREEMENT OR OTHERWISE. THERE SHALL BE NO OBLIGATION TO
LIQUIDATE ANY COLLATERAL PLEDGED HEREUNDER IN ANY ORDER OR WITH ANY
35
PRIORITY OR TO EXERCISE ANY REMEDY AVAILABLE TO THE LENDER IN ANY
ORDER.
MISCELLANEOUS
I. WAIVER BY THE LENDER. NO FAILURE OR DELAY ON THE PART OF
THE LENDER IN EXERCISING ANY RIGHT, POWER OR REMEDY HEREUNDER SHALL
OPERATE AS A WAIVER THEREOF. NO SINGLE OR PARTIAL EXERCISE OF ANY
SUCH RIGHT, POWER OR REMEDY SHALL PRECLUDE ANY OTHER OR FURTHER
EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY
HEREUNDER. THE REMEDIES HEREIN PROVIDED ARE CUMULATIVE AND NOT
EXCLUSIVE OF ANY REMEDIES PROVIDED BY LAW. TIME IS OF THE ESSENCE IN
THE PERFORMANCE OF THE COVENANTS, AGREEMENTS AND OBLIGATIONS OF THE
BORROWER AND EACH OF THE SUBSIDIARIES.
II. ENTIRE AGREEMENT AND MODIFICATIONS OF AGREEMENT. THIS
AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND
SUPERSEDES ALL PRIOR AGREEMENTS BETWEEN THE LENDER AND THE BORROWER
WITH RESPECT TO THE SUBJECT MATTER HEREOF. NO AMENDMENT,
MODIFICATION, TERMINATION OR WAIVER OF ANY PROVISION OF THIS
AGREEMENT, THE PLEDGE AGREEMENT, OR THE NOTES, OR CONSENT TO ANY
DEPARTURE BY THE BORROWER THEREFROM, SHALL IN ANY EVENT BE EFFECTIVE
UNLESS THE SAME SHALL BE IN WRITING AND SIGNED BY THE LENDER, AND
THEN SUCH WAIVER OR CONSENT SHALL BE EFFECTIVE ONLY IN THE SPECIFIC
PURPOSE FOR WHICH GIVEN. NO NOTICE TO OR DEMAND ON THE BORROWER IN
ANY CASE SHALL ENTITLE THE BORROWER TO ANY OTHER OR FURTHER NOTICE
OR DEMAND IN SIMILAR OR OTHER CIRCUMSTANCES.
III. NOTICES. ALL NOTICES AND REQUESTS TO OR UPON THE
RESPECTIVE PARTIES HERETO SHALL BE IN WRITING AND SHALL BE DEEMED TO
HAVE BEEN GIVEN OR MADE FIVE (5) DAYS AFTER HAVING BEEN DEPOSITED IN
THE UNITED STATES MAIL, CERTIFIED OR REGISTERED WITH RETURN RECEIPT
REQUESTED, OR WHEN DELIVERED PERSONALLY (BY COURIER SERVICE SUCH AS
FEDERAL EXPRESS, OR BY OTHER MESSENGER) AT THE ADDRESS OR WHEN
DISPATCHED BY TELECOPY OR OTHER MEANS OF FACSIMILE TRANSMISSION, TO
THE NUMBER SET FORTH BELOW:
36
if to the Lender:
Bank One, NA
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx. Xxxxx Xxxxx
Facsimile: (000) 000-0000
Email: xxxxx_xxxxx@xxxxxxx.xxx
if to the Borrower:
First Busey Corporation
000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Email: xxxxxxx@xxxxx.xxx
or to such addresses as may be hereafter designated by the respective parties
hereto in writing by a notice given in accordance herewith.
IV. COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN SEPARATE
COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE
DEEMED TO BE AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
V. SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL BECOME
EFFECTIVE WHEN IT SHALL HAVE BEEN EXECUTED BY THE BORROWER AND THE
LENDER AND THEREAFTER SHALL BE BINDING UPON AND INURE TO THE BENEFIT
OF THE BORROWER AND THE LENDER AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, EXCEPT THAT THE BORROWER SHALL NOT HAVE THE RIGHT TO ASSIGN
ITS RIGHTS HEREUNDER OR ANY INTEREST HEREIN WITHOUT THE PRIOR
WRITTEN CONSENT OF THE LENDER WHICH MAY BE GIVEN OR DENIED IN THE
LENDER'S SOLE AND ABSOLUTE DISCRETION.
VI. GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
HAVE BEEN NEGOTIATED, EXECUTED AND DELIVERED AT, AND SHALL BE DEEMED
TO HAVE BEEN MADE AT, CHICAGO, ILLINOIS. THE LOANS PROVIDED FOR
HEREIN IS TO BE FUNDED AND REPAID AT, AND THIS AGREEMENT IS
OTHERWISE TO BE PERFORMED AT, CHICAGO, ILLINOIS AND THIS AGREEMENT
SHALL BE INTERPRETED, AND THE RIGHTS AND LIABILITIES OF THE PARTIES
HERETO DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF ILLINOIS WITHOUT REFERENCE TO: (A) ITS
37
JUDICIALLY OR STATUTORILY PRONOUNCED RULES REGARDING CONFLICT OF
LAWS OR CHOICE OF LAW; (B) WHERE ANY OTHER AGREEMENT IS EXECUTED OR
DELIVERED; (C) WHERE ANY PAYMENT OR OTHER PERFORMANCE REQUIRED BY
ANY SUCH AGREEMENT IS MADE OR REQUIRED TO BE MADE; (D) WHERE ANY
BREACH OF ANY PROVISION OF ANY SUCH AGREEMENT OCCURS, OR ANY CAUSE
OF ACTION OTHERWISE ACCRUES; (E) WHERE ANY ACTION OR OTHER
PROCEEDING IS INSTITUTED OR PENDING; (F) THE NATIONALITY,
CITIZENSHIP, DOMICILE, PRINCIPAL PLACE OF BUSINESS, OR JURISDICTION
OR ORGANIZATION OR DOMESTICATION OF ANY PARTY; (G) WHETHER THE LAWS
OF THE FORUM JURISDICTION OTHERWISE WOULD APPLY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF ILLINOIS; OR (H) ANY
COMBINATION OF THE FOREGOING. AS PART OF THE CONSIDERATION FOR NEW
VALUE THIS DAY RECEIVED, THE BORROWER RECOGNIZES THAT THE LENDER'S
PRINCIPAL OFFICE IS LOCATED IN CHICAGO, ILLINOIS AND THAT THE LENDER
MAY BE IRREPARABLY HARMED IF REQUIRED TO INSTITUTE OR DEFEND ANY
ACTIONS AGAINST THE BORROWER IN ANY JURISDICTION OTHER THAN THE
NORTHERN DISTRICT OF ILLINOIS OR XXXX COUNTY, ILLINOIS; THEREFORE,
THE BORROWER IRREVOCABLY (I) AGREES THAT ANY SUIT, ACTION OR OTHER
LEGAL PROCEEDING RELATING TO THE AGREEMENT AND/OR THE LOAN
REFERENCED HEREIN MAY BE BROUGHT IN THE NORTHERN DISTRICT OF
ILLINOIS, IF FEDERAL JURISDICTION IS AVAILABLE, AND, OTHERWISE, IN
THE CIRCUIT COURT OF XXXX COUNTY, AT THE LENDER'S OPTION; (II)
CONSENTS TO THE JURISDICTION OF EACH SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING; (III) WAIVES ANY OBJECTION WHICH THE BORROWER
MAY HAVE TO THE LAYING OF VENUE IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN EITHER SUCH COURT; AND (IV) AGREES TO JOIN THE LENDER
IN ANY PETITION FOR REMOVAL TO EITHER SUCH COURT BROUGHT BY THE
LENDER. THE BORROWER WAIVES TRIAL BY JURY AND ANY OBJECTION TO
JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREUNDER IN THE
COURTS REFERENCED IN SECTION 6.6(I) AND AGREES NOT TO ASSERT ANY
DEFENSE BASED ON LACK OF JURISDICTION OR VENUE IN THE COURTS
REFERENCED IN SECTION 6.6(I). NOTHING CONTAINED HEREIN SHALL AFFECT
THE RIGHT OF THE LENDER TO SERVE LEGAL PROCESS IN ANY MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF THE LENDER TO BRING ANY
ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTION.
VII. SEVERABILITY. ANY PROVISION OF THIS AGREEMENT WHICH IS
PROHIBITED OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH
JURISDICTION, BE INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR
UNENFORCEABILITY WITHOUT INVALIDATING THE REMAINING PROVISIONS
HEREOF OR AFFECTING THE VALIDITY OR ENFORCEABILITY OF SUCH PROVISION
IN ANY OTHER JURISDICTION; WHEREVER POSSIBLE, EACH PROVISION OF THIS
AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND
VALID UNDER APPLICABLE LAW.
38
VIII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL
COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES MADE BY THE
BORROWER HEREIN OR IN ANY CERTIFICATE OR OTHER INSTRUMENT DELIVERED
BY IT OR ON ITS BEHALF UNDER THIS AGREEMENT SHALL, NOTWITHSTANDING
ANY INVESTIGATION BY OR KNOWLEDGE ON THE PART OF THE LENDER, BE
DEEMED MATERIAL AND RELIED ON BY THE LENDER AND SHALL SURVIVE THE
MAKING OF THIS AGREEMENT, AND EXECUTION AND DELIVERY OF THE NOTES,
THE PLEDGE AGREEMENT, AND SHALL BE DEEMED TO BE CONTINUING
REPRESENTATIONS AND WARRANTIES UNTIL SUCH TIME AS THE BORROWER HAS
SATISFIED ALL OF ITS OBLIGATIONS TO THE LENDER, INCLUDING, BUT NOT
LIMITED TO THE OBLIGATION TO PAY IN FULL ALL PRINCIPAL, INTEREST AND
OTHER AMOUNTS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND THE
NOTES. ALL WARRANTIES AND REPRESENTATIONS IN ANY SUCH CERTIFICATES
OR OTHER INSTRUMENT SHALL CONSTITUTE WARRANTIES AND REPRESENTATIONS
BY THE BORROWER HEREUNDER.
IX. EXTENSIONS AND RENEWALS. THIS AGREEMENT SHALL GOVERN THE
TERMS OF ANY EXTENSIONS OR RENEWALS TO THE NOTES, SUBJECT TO ANY
ADDITIONAL TERMS AND CONDITIONS IMPOSED BY THE LENDER IN CONNECTION
WITH ANY SUCH EXTENSION OR RENEWAL.
X. INTEREST RATE REGULATION. THE BORROWER HEREBY REPRESENTS
AND WARRANTS THAT THE INDEBTEDNESS EVIDENCED HEREBY CONSTITUTES
LOANS MADE BY THE LENDER TO ENABLE THE BORROWER TO CARRY ON A
COMMERCIAL ENTERPRISE FOR THE PURPOSE OF INVESTMENT OR PROFIT; AND
THAT SUCH LOANS ARE LOANS FOR BUSINESS PURPOSES UNDER THE INTENT AND
PURVIEW OF CHAPTER 815, SECTION 205/4 OF THE ILLINOIS COMPILED
STATUTES.
XI. ACCOUNTING TERMS. ANY ACCOUNTING TERM NOT SPECIFICALLY
DEFINED HEREIN SHALL BE CONSTRUED IN ACCORDANCE WITH GAAP, AND ALL
FINANCIAL DATA SUBMITTED PURSUANT TO THIS AGREEMENT SHALL BE
PREPARED IN ACCORDANCE WITH SUCH PRINCIPLES.
XII. PARTICIPATIONS. THE LENDER SHALL HAVE THE RIGHT TO SELL
PARTICIPATIONS IN ANY LOAN OR OTHERWISE ASSIGN, TRANSFER OR
HYPOTHECATE ALL OR ANY PART OF ANY LOAN ALONG WITH THE CORRESPONDING
RIGHTS IN THE LOAN DOCUMENTS.
XIII. ADDITIONAL ACTIONS. THE BORROWER AGREES TO DO AND CAUSE
EACH OF THE SUBSIDIARIES TO DO SUCH FURTHER ACTS AND THINGS AND TO
EXECUTE AND DELIVER TO THE LENDER SUCH ADDITIONAL ASSIGNMENTS,
AGREEMENTS, POWERS AND INSTRUMENTS, AS THE LENDER MAY REASONABLY
REQUIRE OR DEEM ADVISABLE TO CARRY INTO EFFECT THE PURPOSES OF THIS
AGREEMENT, THE NOTES, THE PLEDGE AGREEMENT, OR ANY AGREEMENT OR
INSTRUMENT IN CONNECTION HEREWITH, OR TO
39
BETTER ASSURE AND CONFIRM UNTO THE LENDER ITS RIGHTS, POWERS AND
REMEDIES HEREUNDER OR UNDER SUCH OTHER LOAN DOCUMENTS. SUCH FURTHER
ACTIONS MAY INCLUDE, BUT NOT BE LIMITED TO, THE FILING OF UCC-1
FINANCING STATEMENTS, IN FORM SATISFACTORY TO THE LENDER AND ITS
COUNSEL, WITH THE SECRETARY OF STATE OF ILLINOIS IN FAVOR OF THE
LENDER WITH RESPECT TO THE PLEDGED PROPERTY AND ANY PROCEEDS
THEREFROM.
XIV. REVIVAL OF LIABILITIES. TO THE EXTENT THAT THE LENDER
RECEIVES ANY PAYMENT ON ACCOUNT OF THE BORROWER'S LIABILITIES AND
ANY SUCH PAYMENT(S) AND/OR PROCEEDS OR ANY PART THEREOF ARE
SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL,
SET ASIDE, SUBORDINATED AND/OR REQUIRED TO BE REPAID TO A TRUSTEE,
RECEIVER OR ANY OTHER PERSON UNDER ANY BANKRUPTCY ACT, STATE OR
FEDERAL LAW, COMMON LAW OR EQUITABLE CAUSE, THEN, TO THAT OF SUCH
PAYMENT(S) OR PROCEEDS RECEIVED, THE BORROWER'S LIABILITIES OR PART
THEREOF INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUE IN
FULL FORCE AND EFFECT, AS IF SUCH PAYMENT(S) AND/OR PROCEEDS HAD NOT
BEEN RECEIVED BY THE LENDER AND APPLIED ON ACCOUNT OF THE BORROWER'S
LIABILITIES; PROVIDED, HOWEVER, IF THE LENDER SUCCESSFULLY CONTESTS
ANY SUCH INVALIDATION, DECLARATION, SET ASIDE, SUBORDINATION OR
OTHER ORDER TO PAY ANY SUCH PAYMENT AND/OR PROCEEDS TO ANY THIRD
PARTY, THE REVIVED BORROWER'S LIABILITIES SHALL BE DEEMED SATISFIED.
XV. CHANGE OF CONTROL. THE LENDER SHALL HAVE THE OPTION,
EXERCISABLE ON AT LEAST ONE BUSINESS DAY PRIOR NOTICE, UPON THE
CONSUMMATION, IN WHOLE OR IN PART, OF ANY TRANSACTION EFFECTING ANY
CHANGE OF CONTROL OF THE BORROWER THAT HAS BEEN APPROVED AS SUCH BY
ANY FEDERAL OR STATE REGULATORY AGENCY, TO DECLARE THE ENTIRE
PRINCIPAL OF, AND INTEREST ACCRUED ON, THE LOANS THEN OUTSTANDING TO
BE, AND THE NOTES AND ALL OF BORROWER'S LIABILITIES SHALL THEREUPON
BECOME, FORTHWITH, DUE AND PAYABLE, WITHOUT ANY PRESENTMENT, DEMAND,
PROTEST OR OTHER NOTICE OF ANY KIND, ALL OF WHICH ARE HEREBY
EXPRESSLY WAIVED, AND THE BORROWER WILL FORTHWITH PAY TO EACH HOLDER
OF THE NOTES THE ENTIRE OUTSTANDING PRINCIPAL OF AND INTEREST
ACCRUED ON THE NOTES AND TO THE LENDER ALL OF BORROWER'S
LIABILITIES.
XVI. RELEASE; ENVIRONMENTAL INDEMNITY. THE BORROWER RELEASES
THE LENDER FROM ANY AND ALL CAUSES OF ACTION, CLAIMS OR RIGHTS WHICH
THE BORROWER MAY NOW OR HEREAFTER HAVE FOR, OR WHICH MAY ARISE FROM,
ANY LOSS OR DAMAGE CAUSED BY OR RESULTING FROM: (A) ANY FAILURE OF
THE LENDER TO PROTECT, ENFORCE OR COLLECT IN WHOLE OR IN PART ANY OF
THE COLLATERAL; AND (B) ANY OTHER ACT OR OMISSION TO ACT ON THE PART
OF THE LENDER, ITS OFFICERS, AGENTS OR
40
EMPLOYEES, EXCEPT IN EACH INSTANCE FOR WILLFUL MISCONDUCT AND GROSS
NEGLIGENCE. THE BORROWER AGREES TO INDEMNIFY AND SAVE THE LENDER,
ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS OF, FROM AND
AGAINST ANY LIABILITY, LOSS, DAMAGE OR EXPENSE (INCLUDING REASONABLE
ATTORNEYS' FEES) TO WHICH THE LENDER OR ANY OF SUCH PERSONS MAY
BECOME SUBJECT, ARISING FROM OR BASED UPON: (A) ANY VIOLATION, OR
CLAIM OF VIOLATION, BY THE BORROWER OF ANY LAWS, REGULATIONS OR
ORDINANCES RELATING TO HAZARDOUS MATERIALS; OR (B) ANY HAZARDOUS
MATERIALS LOCATED OR DISPOSED OF ON, OR RELEASED OR TRANSPORTED
FROM, ANY PROPERTY OR ASSETS OWNED, LEASED OR OPERATED BY THE
BORROWER OR ANY OF THE SUBSIDIARIES, OR ANY CLAIM OF ANY OF THE
FOREGOING.
[Remainder of Page Intentionally Left Blank]
41
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to
be executed as of the date first above written.
FIRST BUSEY CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman & CEO
BANK ONE, NA
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Commercial
42
