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EXHIBIT 10.10
LOAN AGREEMENT
BY AND BETWEEN
M&I XXXXXXXX & XXXXXX BANK
AND
AMCORE FINANCIAL, INC.
DATED AS OF DECEMBER 31, 1999
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LOAN AGREEMENT
THIS LOAN AGREEMENT is made as of December __, 1999 by and between
AMCORE FINANCIAL, INC, and M&I XXXXXXXX & ILSLEY BANK.
IN CONSIDERATION of the mutual covenants, conditions and agreements
set forth herein, it is hereby agreed that:
ARTICLE I
DEFINITIONS
1.1 Definitions. When used in this Loan Agreement, the following
terms shall have the meanings specified:
"Affiliate" shall mean any Person: (a) that directly or indirectly
controls, or is controlled by, or is under common control with, the Company or
any Subsidiary; (b) that directly or indirectly beneficially owns or holds
twenty percent (20%) or more of any class of voting stock of the Company or any
Subsidiary; (c) twenty percent (20%) or more of the voting stock of which Person
is directly or indirectly beneficially owned or held by the Company or any
Subsidiary; (d) that is an officer or director of the Company or any Subsidiary;
(e) of which an Affiliate is an officer or director; or (f) who is related by
blood, adoption or marriage to an Affiliate. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Automatic Event of Default" shall mean any one or more of the
following:
(a) The Company or any of its Subsidiaries shall: (i) have an order
for relief entered with respect to it under the federal bankruptcy laws as now
or hereafter in effect; (ii) make an assignment for the benefit of creditors;
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any Substantial Portion of its Property; (iv) institute any proceeding seeking
an order for relief under the federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it; (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this paragraph (a) or (vi) fail to contest in good faith
any appointment or proceeding described in paragraph (b) below; or
(b) without the application, approval or consent of the Company or
any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Company or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in paragraph
(a)(iv) above shall be instituted against the Company or any of its Subsidiaries
and such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of thirty (30) consecutive days.
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"Banking Subsidiary means any Subsidiary which is a bank or thrift
organized under the laws of the United States or any state thereof.
"Business Day" shall mean any day other than a Saturday, Sunday,
public holiday or other day when commercial banks in Wisconsin are authorized or
required by Law to close.
"Capital Commitment" means any commitment by the Company or any of
its Subsidiaries to the Federal Deposit Insurance Corporation, the Resolution
Trust Corporation, the Director of the Office of Thrift Supervision, the
Comptroller of the Currency or the Board of Governors of the Federal Reserve
System, or any of their predecessors or successors, to maintain the capital of
an insured depository institution in a required amount, within the meaning of
Section 365(o) of Xxxxx 00, Xxxxxx Xxxxxx Code, as amended or supplemented from
time to time.
"Change in Control" means the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding shares of voting stock
of the Company.
"Closing Date" shall mean the date of the consummation of the
transactions evidenced by this Loan Agreement.
"Commercial Paper" means the interest bearing or discounted
short-term unsecured debt obligations issued by the Company under the Commercial
Paper Agreement.
"Commercial Paper Agreement" means the Commercial Paper Placement
Agreement dated as of November 10, 1995 between the Company and M&I, together
with the Exhibits attached thereto, as the same shall be amended from time to
time in accordance with the terms thereof.
"Company" shall mean AMCORE Financial, Inc., a Nevada corporation.
"Compliance Certificate" means a compliance certificate, in
substantially the form of Exhibit A hereto, signed by the Company's chief
financial officer, stating, among other things, that no Default or Event of
Default exists, or if any Default or Event of Default exists, stating the nature
and status thereof.
"Consolidated Financial Statements" means the Consolidated
Financial Statements for Bank Holding Companies With Total Consolidated Assets
of $150 Million or More, or With More Than One Subsidiary Bank--FR Y-9 C, as
such report may be amended or modified from time to time, and any similar report
required to be filed by the Company.
"Default" shall mean any event which would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
"Environmental Laws" means all Laws, judgments, decrees, permits,
licenses, agreements and other governmental restrictions, now
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or at any time hereafter in effect, relating to: (a) the emission, discharge or
release of pollutants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances, materials or wastes into the environment; or (b)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes; or (c) the
investigation, clean-up or remediation thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and as in effect from time to time.
"Event of Default" shall mean any Automatic Event of Default or any
Notice Event of Default.
"FRB" shall mean the Board of Governors of the Federal Reserve
System.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time in the United States of America, applied by the Company
and its Subsidiaries on a basis consistent with the preparation of the Company's
most recent financial statements furnished to M&I pursuant to Section 6.2
hereof.
"Indebtedness" shall mean all liabilities or obligations of the
relevant Person, whether primary or secondary or absolute or contingent: (a) for
borrowed money or for the deferred purchase price of property or services
(excluding trade obligations incurred in the ordinary course of business, which
are not the result of any borrowing); (b) as lessee under leases that have been
or should be capitalized according to GAAP; (c) evidenced by notes, bonds,
debentures or similar obligations; (d) under any guaranty or endorsement (other
than in connection with the deposit and collection of checks in the ordinary
course of business), and other contingent obligations to purchase, provide funds
for payment, supply funds to invest in any Person, or otherwise assure a
creditor against loss; or (e) secured by any Liens on assets of such Person,
whether or not the obligations secured have been assumed by such Person.
"Law" shall mean any federal, state, local or other law, rule,
regulation or governmental requirement of any kind, and the rules, regulations,
interpretations and orders promulgated thereunder.
"LIBOR" shall mean an annual rate of interest equal to the Adjusted
Interbank Rate (as defined immediately below), which rate shall change on the
first day of each calendar month. Each change in any rate of interest computed
by reference to LIBOR shall take effect on the first day of each calendar month.
"Adjusted Interbank Rate" means an annual rate for any calendar month
(rounded upwards, if necessary, to the nearest 1/100 of 1%), determined
pursuant to the following formula:
Adjusted Interbank Rate = Interbank Rate
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1 - Interbank Reserve
Requirement
"Interbank Rate" means with respect to any Loan, the rate per annum
equal to the rate (rounded upwards, if necessary, to the
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nearest 1/16 of 1%) quoted as the rate at which dollar deposits in
immediately available funds are offered on the first day of each
calendar month in the interbank Eurodollar market on or about 9:00 A.M.
Milwaukee time for a period of one (1) calendar month and in an amount
equal to or comparable to the amount of such Loan. If the first day of
any calendar month is not a Business Day, the Interbank Rate shall be
established on the preceding Business Day. Each such determination
shall be conclusive and binding upon the parties hereto in the absence
of demonstrable error. M&I currently uses the Knight Ridder Information
Service to provide information with respect to the interbank Eurodollar
market, but M&I may change the service providing such information at
any time.
"Interbank Reserve Requirement" means a percentage (expressed as a
decimal) equal to the aggregate reserve requirements in effect on the
first day of each calendar month (including all basic, supplemental,
marginal and other reserves and taking into account any transitional
adjustments or other scheduled changes in reserve requirements during
each calendar month) specified for "Eurocurrency Liabilities" under
Regulation D of the FRB, or any other regulation of the FRB which
prescribes reserve requirements applicable to "Eurocurrency
Liabilities" as presently defined in Regulation D, as then in effect,
as applicable to the class or classes of banks of which M&I is a
member. As of the date of this Loan Agreement, the Interbank Reserve
Requirement is 0%.
"Lien" shall mean, with respect to any asset: (a) any mortgage,
pledge, lien, charge, security interest or encumbrance of any kind; and (b) the
interest of a vendor or lessor under any conditional sale agreement, financing
lease or other title retention agreement relating to such asset.
"Line of Credit Commitment" shall mean the commitment of M&I to
make Line of Credit Loans to the Company up to a maximum aggregate principal
amount outstanding from time to time equal to Fifty Million Dollars
($50,000,000) minus the aggregate outstanding principal amount owing under the
Company's Commercial Paper.
"Line of Credit Loans" shall mean the loans made from time to time
to the Company by M&I pursuant to Section 2.1 of this Loan Agreement.
"Line of Credit Note" shall mean a promissory note issued by the
Company and payable to the order of M&I evidencing the Line of Credit Loans and
in substantially the form of Exhibit B attached hereto, as such note may be
amended or amended and restated from time to time and all extensions, renewals
or refinancings thereof and all substitutions therefor and replacements thereof.
"Line of Credit Termination Date" shall mean the earlier of: (a)
April 30, 2000; or (b) the date that the Line of Credit Commitment is terminated
pursuant to Section 7.1 of this Loan Agreement.
"Loan" or "Loans" shall mean the Line of Credit Loans.
"Loan Agreement" shall mean this Loan Agreement, together with the
Exhibits and any Schedules attached hereto, as the same shall be amended from
time to time in accordance with the terms hereof.
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"M&I" shall mean M&I Xxxxxxxx Xxxxxx Bank, a Wisconsin banking
corporation.
"Non-Performing Loans" means: (i) the total of loans which are
placed on a nonaccrual status; (ii) the total of loans which are past due 90
days or more and are still accruing; and (iii) the total of loans and leases
restructured and in compliance with modified terms, in each case determined in a
manner consistent with that used in preparing the Company's Consolidated
Financial Statements.
"Note" shall mean the Line of Credit Note.
"Notice Event of Default" shall mean any one or more of the
following:
(a) the Company shall fail to pay any installment of the principal
of or interest upon the Note within five (5) business days of the date when due;
or
(b) there shall be a default in the performance or observance of
any of the covenants and agreements contained in Section 3.3, Article V or
Sections 6.1(a), 6.2, 6.4, 6.5, 6.8, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14 or 6.15
of this Loan Agreement; or
(c) there shall be a default in the performance or observance of
any of the other covenants, agreements or conditions contained in this Loan
Agreement, the Note or any other document, agreement or instrument delivered in
connection with this Loan Agreement and such default shall have continued for a
period of thirty (30) calendar days after notice thereof from M&I to the
Company; or
(d) any representation or warranty made by the Company in this Loan
Agreement or in any document or financial statement delivered pursuant to this
Loan Agreement shall prove to have been false in any material respect as of the
time when made or given; or
(e) final judgments shall be entered against the Company or any
Subsidiary which, when added to other final judgments against the Company and
all Subsidiaries exceeds the aggregate amount of $1,000,000 and such final
judgments shall remain outstanding and unsatisfied, unbonded or unstayed after
thirty (30) days from the date of entry thereof; provided that no final judgment
shall be included in the calculation under this subsection to the extent that
the claim underlying such judgment is covered by insurance and defense of such
claim has been tendered to and accepted by the insurer without reservation; or
(f) (i) any Reportable Event (as defined in ERISA) shall have
occurred which constitutes grounds for the termination of any Plan by the PBGC
or for the appointment of a trustee to administer any Plan, or any Plan shall be
terminated within the meaning of Title IV of ERISA, or a trustee shall be
appointed by the appropriate court to administer any Plan, or the PBGC shall
institute proceedings to terminate any Plan or to appoint a trustee to
administer any Plan, or the Company or any trade or business which together with
the Company would be treated as a single employer under Section 4001 of ERISA
shall withdraw in whole or in part from a multi-employer Plan; and (ii) the
aggregate amount of the Company's liability for all such occurrences, whether to
a Plan, the PBGC or otherwise, may exceed
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$1,000,000 and such liability is not covered, for the benefit of the Company, by
insurance; or
(g) the Company or any Subsidiary shall: (i) fail to pay any amount
of principal or interest when due (whether by scheduled maturity, required
prepayment, acceleration or otherwise) under any Indebtedness (other than the
Note) in an aggregate amount of $1,000,000 or more and such failure shall
continue after the applicable grace period, if any, specified in any agreement
or instrument relating to such Indebtedness; or (ii) fail to perform or observe
any term, covenant or condition on its part to be performed or observed under
any agreement or instrument relating to any such Indebtedness when required to
be performed or observed, and such failure shall not be waived and shall
continue after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such failure to perform or observe is to
accelerate, or to permit acceleration of, with the giving of notice if required,
the maturity of such Indebtedness; or
(h) the occurrence of any default or event of default under any
other loan agreement, credit agreement, letter of credit application or other
document or instrument evidencing obligations of the Company or any Subsidiary
to M&I or otherwise in respect of any credit accommodation extended to the
Company or any Subsidiary by M&I;
(i) any Change in Control shall occur; or
(j) any conservator or receiver shall be appointed for the Company
or any Banking Subsidiary under the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as it may be amended or supplemented from time to time;
or
(k) any Banking Subsidiary shall cease to be insured under the
Federal Deposit Insurance Act of 1959, as amended, or a cease and desist order
shall be issued against the Company or any Subsidiary pursuant to 12 U.S.C.
1818(b) or (c) or any similar applicable provision of state law; or
(1) the Company or any Subsidiary shall enter into any Capital
Commitment with any federal or state regulator or any such regulator shall
require the Company or any Subsidiary to submit a capital maintenance or
restoration plan or the Company or any Subsidiary shall cease to be in
compliance with any such Capital Commitments or plans existing on the date of
this Loan Agreement; or
(m) the Company shall default in the payment of any Commercial
Paper or shall breach any term of the Commercial Paper Agreement.
"PBGC" shall mean the PBGC or any entity succeeding to any or all
of its functions under ERISA.
"Permitted Indebtedness" shall mean: (a) Indebtedness to M&I (b)
Indebtedness of any Subsidiary which is a bank incurred in the ordinary course
of its business to depositors or customers as such or in connection with
transactions in Federal funds and interbank credit facilities, including
Indebtedness or obligations by reason of any deposits with it or funds collected
by it, any banker's acceptance
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or letter of credit, check, note, certificate of deposit, money order, receipt,
draft or xxxx of exchange issued, accepted or endorsed by it, any discount with,
borrowing from, or other obligation to, any Federal Reserve Bank, any borrowing
from the Federal Home Loan Bank, any agreement made by it, to purchase or
repurchase securities, loans or Federal funds or any interest or participation
in any thereof, any transaction in the nature of an extension of credit, whether
in the form of a commitment, guarantee or otherwise, undertaken for the account
of a third party with the application of the same banking considerations that
would be applicable if the transaction were a loan to such party, and any
transaction in which it acts solely in a fiduciary or agency capacity; (c)
Indebtedness of any Subsidiary which is not a bank incurred in the ordinary
course of its business; and (d) unsubordinated Indebtedness for borrowed money
not to exceed $25,000,000 in the aggregate.
"Person" shall mean and include an individual, partnership, limited
liability entity, corporation, trust, incorporated organization and a government
or any department or agency thereof.
"Plan" shall mean each pension, profit sharing, stock bonus,
thrift, savings and employee stock ownership plan established or maintained, or
to which contributions have been made, by the Company or any trade or business
which together with the Company would be treated as a single employer under
Section 4001 of ERISA.
"Prime Rate" shall mean the prime rate of interest adopted by M&I
from time to time as the base rate for interest rate determinations. Each change
in any rate of interest computed by reference to the Prime Rate shall take
effect on the effective date of any change in the Prime Rate.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Subsidiary" shall mean any Person at least fifty percent (50%) of
the outstanding ownership interest of which (of any class or classes, however
designated, having ordinary voting power for the election of at least a majority
of the members of the board of directors or other managing body of such Person,
other than ownership interests having such power only by reason of the happening
of a contingency) shall at the time be owned by the Company directly or through
one or more Subsidiaries.
"Substantial Portion" means, with respect to the Property of the
Company and its Subsidiaries, Property which: (i) represents more than 10% of
the consolidated assets of the Company and its Subsidiaries as would be shown in
the consolidated financial statements of the Company and its Subsidiaries as at
the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Company and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
1.2 Interpretation. The foregoing definitions are equally applicable to
both the singular and plural forms of the terms defined. The words "hereof",
"herein", and "hereunder" and words of like import
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when used in this Loan Agreement shall refer to this Loan Agreement as a whole
and not to any particular provision of this Loan Agreement. Where the character
or amount of any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation is required
to be made for the purposes of this Loan Agreement, it shall be done in
accordance with GAAP except that the terms used in Sections 6.10, 6.11, 6.12,
6.13 and 6.14 shall be defined as provided for in those sections.
ARTICLE II
THE LOAN
2.1 Line of Credit Loans. (a) From time to time prior to the Line of
Credit Termination Date, M&I agrees to make Line of Credit Loans to the Company
subject to the terms and conditions set forth in this Loan Agreement. The amount
of Line of Credit Loans outstanding at any one time shall never exceed an amount
equal to the Line of Credit Commitment. All Line of Credit Loans shall be
evidenced by the Line of Credit Note, the Company being obligated, however, to
pay the amount of Line of Credit Loans actually made (including any
over advances), together with interest on the amount which remains outstanding
from time to time. The Company may borrow, repay and reborrow under this Section
subject to the terms and conditions of this Loan Agreement. The Line of Credit
Note shall mature on the Line of Credit Termination Date.
(b) The initial Line of Credit Loan shall be in an integral
multiple of One Hundred Thousand Dollars and not less than Five Hundred Thousand
Dollars ($500,000). Each subsequent Line of Credit Loan shall be in an integral
multiple of One Hundred Thousand Dollars ($100,000).
(c) The proceeds of the Line of Credit Loans shall be used as a
back-up line of credit to support the issuance of the Company's Commercial Paper
or in the event that the Company or its agent is unable to place the Company's
Commercial Paper.
2.2 Interest. (a) The unpaid principal of all Line of Credit Loans
shall bear interest at either: (i) LIBOR quoted for each calendar month plus
1.375%; or (ii) the Prime Rate, as selected the Company upon written or
telephonic notice at least one (1) Business Day prior to the end of any calendar
month. Each such notice shall be effective upon receipt by M&I, and must be
received by 12:30 P.M., Milwaukee time, to be considered as received on the day
given. Any interest rate conversion for all Line of Credit Loans shall be
effected only on the first day of any calendar month. Absent receipt by M&I of a
notice of interest rate conversion, all Line of Credit Loans shall continue to
bear interest at the interest rate option previously selected by the Company. If
the Line of Credit Loans bear interest at the Prime Rate, such rate shall
automatically change on the effective date of each change in the Prime Rate, and
if the Line of Credit Loans bear interest by reference to LIBOR, such rate shall
automatically change on the first day of each calendar month in accordance with
the terms hereof.
(b) In the event that any amount of the principal of, or interest
on, the Note is not paid on the date when due (whether at stated maturity, by
acceleration or otherwise), the entire principal amount outstanding under the
Note shall bear interest, in addition to
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the interest otherwise payable under the Note and to the extent permitted by
Law, at the annual rate of two percent (2.0%) from the day following the due
date until all such overdue amounts have been paid in full.
(c) All interest and other amounts due under this Loan Agreement
and the Note shall be computed for the actual number of days elapsed on the
basis of a 360 day year.
2.3 Payments. (a) The outstanding unpaid principal balance of the Line
of Credit Loans shall be paid in full on the Line of Credit Termination Date.
(b) Interest accrued on the Line of Credit Loan through the last
day of each month (including in the case of the first interest payment, interest
accrued from the Closing Date) shall be paid on the fifth day of the next month,
commencing on January 5, 2000 and continuing thereafter until all principal of
and accrued interest on the Line of Credit Loans is repaid in full.
(c) All payments of principal and interest on account of the Note
and all other payments made pursuant to this Loan Agreement shall be delivered
to M&I, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention:
Correspondent Banking or at such other place as M&I or any holder of the Note
shall designate in writing to the Company, in immediately available funds by
12:00 noon, Milwaukee time on the date when due, and if received after such time
on any day shall be deemed to have been made on the next Business Day. Whenever
any payment to be made under this Loan Agreement or under the Note shall be
stated to be due on a day which is not a Business Day, the day for such payment
shall be extended to the next succeeding Business Day, and such extension of
time shall be included in the computation of interest. The Company hereby
authorizes M&I to debit its deposit accounts at M&I, if any, for all payments of
principal and interest due and owing on the Loans and for all other payments due
and owing under this Loan Agreement.
(d) All payments owed by the Company to M&I under this Loan
Agreement and the Note shall be made without any counterclaim and free and clear
of any restrictions or conditions and free and clear of, and without deduction
for or on account of, any present or future taxes, levies, imposts, duties,
charges, fees, deductions or withholdings of any nature now or hereafter imposed
on the Company by any governmental or other authority. If the Company is
compelled by Law to make any such deductions or withholdings it will pay such
additional amounts as may be necessary in order that the net amount received by
M&I after such deductions or withholdings, shall equal the amount M&I would have
received had no such deductions or withholdings been required to be made, and it
will provide M&I with evidence satisfactory to M&I that it has paid such
deductions or withholdings.
2.4 Prepayments. The Company may, from time to time and without premium
or penalty, prepay the Line of Credit Loans in whole or in part.
2.5 Commitment Fee. On the last day of January, April, July and October
in each year, beginning on January 31, 2000 and continuing until the Line of
Credit Termination Date (with a proportionate fee due on the Line of Credit
Termination Date), the Company agrees to pay
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to M&I a commitment fee, computed at the rate of 0.1875% per annum, on the daily
average amount by which the Line of credit commitment exceeds the daily average
amount of Line of Credit Loans outstanding during the previous fiscal quarter.
2.6 Recordkeeping. M&I shall record in its records the date and amount
of each Loan and each repayment of the Loans. The aggregate amounts so recorded
shall be rebuttable presumptive evidence of the principal and interest owing and
unpaid on the Note. The failure to so record any such amount or any error in so
recording any such amount shall not, however, limit or otherwise affect the
obligations of the Company under this Loan Agreement or under the Note to repay
the principal amount of the Loans together with all interest accruing thereon.
2.7 Increased Costs. If Regulation D of the FRB, or the adoption of any
applicable law, rule or regulation of general application, or any change
therein, or any interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by M&I with any request or directive of
general application (whether or not having the force of law) or any such
authority, central bank or comparable agency:
(a) shall subject M&I to any tax, duty or other charge with respect to
the Loans or the Note, or shall change the basis of taxation of payments to M&I
of the principal of or interest on the Loans or any other amounts due under this
Loan Agreement in respect of the Loans (except for changes in the rate of tax on
the overall net income of M&I) or
(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the FRB, but excluding any reserve
included in the determination of interest rates pursuant to this Loan
Agreement), special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, M&I or
(c) shall affect the amount of capital required or expected to be
maintained by M&I or any corporation controlling M&I; or
(d) shall impose on M&I any other condition affecting the Loans or the
Note;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D referred to above, to impose a cost on) M&I of making or
maintaining any Loan hereunder, or to reduce the amount of any sum received or
receivable by M&I under this Loan Agreement or under the Note with respect
thereto, then within ten (10) days after demand by M&I (which demand shall be
accompanied by a statement setting forth the basis of such demand), the Company
shall pay directly to M&I such additional amount or amounts as will compensate
M&I for such increased cost or such reduction. Determinations by M&I for
purposes of this Section of the effect of any change in applicable laws or
regulations or of any interpretations, directives or requests thereunder on its
costs of making or maintaining the Loans hereunder, or sums receivable by it in
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respect of Loans, and of the additional amounts required to compensate M&I in
respect thereof, shall be conclusive, absent manifest error.
2.8 Warranty. Each notice of borrowing or conversion shall
automatically constitute a warranty by the Company to M&I that, on the requested
date of such Loan or continuation or conversion, as the case may be: (a) all of
the representations and warranties of the Company contained in this Loan
Agreement shall be true and correct on such date as though made on such date;
and (b) no Default or Event of Default shall exist on such date.
2.9 Deposits Unavailable or Interest Rate Unascertainable.
(a) If M&I is advised that deposits in dollars (in the applicable
amount) are not being offered to banks in the relevant market for a period of
one (1) calendar month, or M&I otherwise determines (which determination shall
be binding and conclusive on all parties) that by reason of circumstances
affecting the interbank Eurodollar market adequate and reasonable means do not
exist for ascertaining the applicable Interbank Rate; or
(b) If lenders similar to M&I have determined that the Interbank Rate
will not adequately and fairly reflect the cost to such lenders of maintaining
or funding loans based on the Interbank Rate, or that the making or funding of
such Interbank Rate loans has become impracticable as a result of an event
occurring after the date of this Loan Agreement which in the opinion of M&I
materially affects such Interbank Rate loans;
then so long as such circumstances shall continue, M&I shall not be under any
obligation to make or continue Loans based on the Interbank Rate and on the
first Business Day of the next calendar month, such Loans shall bear interest at
the Prime Rate.
2.10 Change in Law Rendering Interbank Rate Loans Unlawful. In the
event that any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it unlawful for M&I to make, maintain or
fund Loans based on the Interbank Rate, then: (a) M&I shall promptly notify the
Company; (b) the obligation of M&I to make or continue Loans based on the
Interbank Rate shall be suspended for the duration of such unlawfulness; and (c)
on the first Business Day of the next calendar month, such Loans shall bear
interest at the Prime Rate.
ARTICLE III
CONDITIONS
3.1 General Conditions. The obligation of M&I to make any Loan is
subject to the satisfaction on the date hereof and on the date of each Loan, of
the following conditions:
(a) the representations and warranties of the Company contained
in this Loan Agreement shall be true and accurate on and as of such date;
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(b) there shall not exist on such date any Default or Event of
Default;
(c) the making of the relevant Loan shall not be prohibited by
any applicable Law and shall not subject M&I to any penalty under or pursuant on
any applicable Law; and
(d) M&I shall have received all documents required by this Loan
Agreement to be delivered to M&I.
3.2 Deliveries at Closing. The obligations of M&I to make any Loan is
further subject to the condition precedent that M&I shall have received each of
the following (each to be properly executed, dated and completed) on or before
the Closing Date:
(a) this Loan Agreement;
(b) the Line of Credit Note;
(c) a Compliance Certificate, in the form of Exhibit A attached
to this Loan Agreement, containing information as of the Closing Date;
(d) a certificate of the Secretary of State of Nevada as to the
good standing of the Company, dated as of a recent date;
(e) opinion of counsel;
(f) a certificate of the Secretary or Assistant Secretary of the
Company, dated the Closing Date and in the form of Exhibit C attached to this
Loan Agreement, as to: (i) the incumbency and signature of the officers of the
Company who have signed or will sign this Loan Agreement, the Note, and any
other documents or materials to be delivered by the Company to M&I pursuant to
this Loan Agreement; (ii) the adoption and continued effect of resolutions of
the board of directors of the Company authorizing the execution, delivery and
performance of this Loan agreement; (iii) the accuracy and completeness of
copies of the articles or certificate of incorporation and bylaws of the Company
I as amended to date; and (iv) the name, title and signature of each authorized
officer; and
(g) such additional supporting documents and materials as M&I or
its counsel may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company hereby represents and warrants to M&I as follows:
4.1 Organization and Qualification. The Company is a corporation duly
and validly organized and existing and in good standing under the laws of the
State of Nevada and has the corporate power and all necessary licenses, permits
and franchises to own its assets and properties and to carry on its business and
has received all necessary approvals to conduct its business as a registered
bank holding company, as that phrase is defined in the Bank Holding Company Act
of 1956, as amended, and has made all filings presently required
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or contemplated by such act and will make all filings required in the future by
such act and is not in violation of such act. The Company is duly licensed or
qualified to do business in all jurisdictions in which failure to do so would
have a material adverse effect on its business or financial condition.
4.2 Subsidiaries. Each of the Subsidiaries is a corporation duly and
validly organized and existing and in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and all necessary
licenses, permits and franchises to own its assets and properties and to carry
on its business. Each Subsidiary is duly licensed or qualified to do business in
all jurisdictions in which failure to do so would have a material adverse effect
on its business or financial condition.
4.3 Financial Statements. All of the financial statements of the
Company and its Subsidiaries heretofore furnished to M&I are accurate and
complete, were prepared in accordance with GAAP consistently applied throughout
all periods and fairly present the financial condition and the results of
operation of the relevant Person for the periods and as of the relevant dates
thereof. There has been no material adverse change in the business, properties
or condition, financial or otherwise, of the Company and its Subsidiaries since
the date of the latest of such financial statements.
4.4 Authorization; Enforceability. The making, execution, delivery and
performance of this Loan Agreement and the Note by the Company and compliance
with their respective terms by the Company have been duly authorized by all
necessary corporate action. This Loan Agreement and the Note are the valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as the enforcement thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar Laws generally affecting the rights of creditors and subject to general
equity principles.
4.5 Absence of Conflicting Obligations. The making, execution, delivery
and performance of this Loan Agreement and the Note and compliance with their
respective terms do not violate any presently existing provision of Law or the
articles of incorporation or bylaws of the Company or any Subsidiary or any
agreement to which the Company or any Subsidiary is a party or by which it is
bound.
4.6 Taxes. The Company and each Subsidiary have filed all federal,
state, foreign and local tax returns which were required to be filed (subject to
any valid extensions of the time for filing), and have paid or made provision
for the payment of all taxes owed by them, and no tax deficiencies have been
assessed or, to the Company's knowledge, proposed against the Company or any
Subsidiary.
4.7 Absence of Litigation. Neither the Company nor any Subsidiary is a
party to, nor so far as is known to the Company is there any threat of, any
litigation or administrative proceeding which would, if adversely determined,
cause any material adverse change in the assets and properties of, or any
material impairment of the right to carry on the business as now conducted by,
or would cause any material adverse effect on the financial condition of, the
Company or any Subsidiary.
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4.8 Guarantees; Undisclosed Liabilities. Except pursuant to the deposit
and collection of checks in the ordinary course of business, neither the Company
nor any Subsidiary has guaranteed or become a surety or is otherwise
contingently liable for the obligations of any other Person, except for
Permitted Indebtedness. Neither the Company nor any Subsidiary has any
liabilities of any nature not disclosed in the financial statements supplied by
the Company to M&I.
4.9 Accuracy of Information. All information, certificates or
statements by the Company or any Subsidiary given in, or pursuant to, this Loan
Agreement shall be accurate, true and complete when given.
4.10 Title to Property. The Company and each Subsidiary have good and
marketable title to their respective assets and properties and there are no
Liens on any of the stock of the Company's Subsidiaries.
4.11 Federal Reserve Regulations. The Company will not, directly or
indirectly, use the proceeds of the Loans for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation U of the FRB, or
otherwise take or permit any action which would involve a violation of any
regulation of the FRB.
4.12 Offering of Note. Neither the Company nor any agent acting for it
has offered the Note or any similar obligation of the Company for sale to or
solicited any offers to buy the Note or any similar obligation of the Company
from any Person other than M&I, and neither the Company nor any agent acting for
it will take any action which would subject the sale of the Note to the
registration provisions of the Securities Act of 1933, as amended.
4.13 Banker's Blanket Bond. Each Subsidiary that is a bank has a
current and valid banker's blanket bond covering it and its operations, officers
and employees.
4.14 ERISA. The Company has no knowledge that any Plan is in
noncompliance in any material respect with the applicable provisions of ERISA or
the Internal Revenue Code. The Company has no knowledge of any pending or
threatened litigation or governmental proceeding or investigation against or
relating to any Plan, and has no knowledge of any reasonable basis for any
material proceedings, claims or actions against or relating to any Plan. The
Company has no knowledge that the Company has incurred any "accumulated funding
deficiency" within the meaning of Section 302 (a)(2) of ERISA in connection with
any Plan. The Company has no knowledge that there has been any Reportable Event
or Prohibited Transaction (as such terms are defined in ERISA) with respect to
any Plan, the occurrence of which would have a material adverse effect on the
business or condition (financial or otherwise) of the Company, or that the
Company has incurred any liability to the PBGC under Section 4062 of ERISA in
connection with any Plan.
4.15 Compliance With Laws. Each of the Company and each Subsidiary: (a)
is in material compliance with all applicable Environmental Laws; and (b) is in
compliance in all material respects with all other Laws applicable to the
Company or any Subsidiary, their respective assets or operations.
4.16 Investment Company Act. Neither the Company nor any Subsidiary is
an "investment company" or a company "controlled" by an
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"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
4.17 Public Utility Holding Company Act. Neither the Company nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a holding company", within the meaning of the Public Utility Holding any
Act of 1935, as amended.
4.18 Subsidiaries. Schedule 4.18 hereto contains an accurate list of
all of the presently existing Subsidiaries of the Company, setting forth their
respective jurisdictions of incorporation and the percentage of their respective
capital stock owned by the Company or other Subsidiaries as well as an accurate
list of all investments in existing Subsidiaries. All of the issued and
outstanding shares of capital stock of such Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable.
ARTICLE V
NEGATIVE COVENANTS
From and after the date of this Loan Agreement and until the entire
amount of principal of and interest due on the Loans, and all other amounts of
fees and payments due under this Loan Agreement and the Note, are paid in full,
without the prior written consent of M&I:
5.1 Liens. The Company shall not incur, create, assume or permit to be
created or allow to exist any Lien upon, in or on any of the stock of the
Company's Subsidiaries.
5.2 Indebtedness. The Company shall not, and shall cause each of its
Subsidiaries to not, incur, create, assume or otherwise become primarily or
secondarily liable, or absolutely or contingently liable, permit to exist, any
Indebtedness, except for Permitted Indebtedness, unless such Indebtedness, in
the case of the Company, is subordinated to the Indebtedness created under this
Loan Agreement and the Note in a written subordination agreement in form and
substance satisfactory to M&I.
5.4 Pension Plans. The Company shall not, and shall cause each of its
Subsidiaries to not, take, permit or omit any action with respect to any of its
private pension plans which would give rise to a liability to the PBGC under the
provisions of ERISA.
5.5 Transactions with Affiliates. The Company shall not engage in any
transaction with affiliate on terms materially less favorable to the Company
than would be available at the time from a Person who is not an Affiliate.
ARTICLE VI
AFFIRMATIVE COVENANTS
From and after the date of this Loan Agreement and until the entire
amount of principal of and interest due on the Loans, and all other amounts of
fees and payments due under this Loan Agreement and the Note, are paid in full:
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6.1 Corporate Existence, Properties. The Company shall, and shall cause
each Subsidiary to: (a) maintain its corporate existence; it being understood
by the parties that mergers of current and future Subsidiaries into one another
and into the Company do not constitute a violation of this Section 6.1(a); (b)
comply with all applicable Laws; (c) conduct its business substantially as now
conducted; (d) maintain all assets in good repair, working order and condition;
and (e) maintain a standard and (e) modern system of accounting in accordance
with GAAP consistently applied throughout all accounting periods.
6.2 Reporting Requirements. The Company shall, and shall cause each
Subsidiary to, furnish to M&I such information respecting the business, assets
and financial condition of the Company and the Subsidiaries as M&I may
reasonably request and, without request furnish to M&I:
(a) Within 120 days after the close of each of its fiscal years,
an unqualified (except for qualifications relating to changes in accounting
principles or practices reflecting changes in generally accepted principles of
accounting and required or approved by the Company's independent certified
public accountants) audit report certified by independent certified public
accountants, acceptable to M&I, prepared in accordance with generally accepted
accounting principles on a consolidated and consolidating basis (consolidating
statements need not be certified by such accountants) for itself and the
Subsidiaries, including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and a statement of
cash flows, accompanied by: (i) any management letter prepared by said
accountants; and (ii) a certificate of said accountants that, in the course of
their examination necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Event of Default, or if, in the opinion
of such accountants, any Default or Event of Default shall exist, stating the
nature and status thereof.
(b) Within 45, plus a reasonable time for delivery (not to exceed
15 days), days after the close of the first three quarterly periods of each of
its fiscal years, for itself and the Subsidiaries, consolidated and
consolidating unaudited balance sheet as at the close of each such period and a
consolidated profit and loss and reconciliation of surplus statements and a
statement of cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief financial officer.
(c) Together with the financial statements required hereunder, a
duly completed Compliance Certificate.
(d) Simultaneously with the preparation thereof, and not more
than 45 days after the close of each of the first three fiscal quarters of the
Company and not more than 60 days after the close of the last fiscal quarter of
the Company in each fiscal year: (i) call reports for each Banking Subsidiary in
the form delivered to (A) the Federal Reserve District Bank, the Comptroller of
the Currency or The Federal Deposit Insurance Corporation, as the case may be,
such reports, to include the applicable Consolidated Reports of Condition and
Income required by regulators and all schedules thereto; and (B) the Office of
Thrift Supervision, such reports to include the applicable Thrift Financial
Reports and all schedules thereto, and (ii) the Consolidated Financial
Statements and the applicable Parent
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Company Only Financial Statements of the Company as at the end of such quarter,
each in the form delivered to the appropriate Federal Reserve District Bank and
each to include all schedules thereto. The Company may transmit the information
required by this paragraph (d) to M&I electronically if and when such means are
readily available and as agreed to at such time by acknowledged letter between
M&I and the Company.
(e) Promptly upon the furnishing thereof to the shareholders of
the Company, copies of all financial statements, reports and proxy statements so
furnished.
(f) Promptly upon the filing thereof, copies of all registration
statements an annual, quarterly, monthly or other regular reports which the
Company or any of its Subsidiaries files with the Securities and Exchange
Commission.
(g) Promptly upon the receipt or execution thereof: (i) notice by
the Company or any Subsidiary that (A) it has received a request or directive
from any federal or state regulatory agency which requires it to submit a
capital maintenance or restoration plan or restricts the payment of dividends by
any Subsidiary to the Company or any other subsidiary or (B) it has submitted a
capital maintenance or restoration plan to any federal or state regulatory
agency or has entered into an agreement with any such agency, including, without
limitation, any agreement which restricts the payment of dividends by any
Subsidiary to the Company or any other Subsidiary; and (ii) copies of any such
plan or agreement, unless disclosure is prohibited by the terms thereof and
after the Company or such Subsidiary has in good faith attempted to obtain the
consent of such regulatory agency, such agency will not consent to the
disclosure of such plan or agreement to M&I.
(h) Such other information (including non-financial information
and examination reports to the extent permitted by applicable regulatory
authorities) as M&I may from time to time reasonably request.
6.3 Taxes. The Company shall, and shall cause each Subsidiary to, pay
all taxes and assessments prior to the date on which penalties attach thereto,
except for any tax or assessment which is either not delinquent or which is
being contested in good faith and by proper proceedings and against which
adequate reserves have been provided.
6.4 Inspection of Properties and Records. The Company shall, and shall
cause each Subsidiary to, permit representatives of M&I to visit any of its
properties and examine any of its books and records at any reasonable time and
as often as may be reasonably desired and facilitate such inspection and
examination.
6.5 Insurance. The Company shall, and shall cause each Subsidiary to,
maintain insurance coverage (including public liability, larceny, forgery,
embezzlement or other criminal misappropriation insurance and banker's blanket
bonds) by financially sound and reputable insurers in such forms and amounts and
against such risks as are customary in the case of corporations of established
reputation engaged in the same or similar business and owning similar
properties.
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6.6 Compliance with Laws. (a) The company shall, and shall cause each
Subsidiary to, comply with the requirements of all applicable Environmental
Laws, all applicable health, safety and sanitation Laws and orders of regulatory
and administrative authorities with respect thereto, and without limiting the
generality of the foregoing, promptly undertake and diligently pursue to
completion appropriate and legally authorized remedial containment and clean-up
action in the event of any release of oil or hazardous material or substance on,
upon or into any real property owned, operated or in the control of the Company
or any Subsidiary.
(b) The Company shall, and shall cause each Subsidiary to, comply
in all material respects with all other applicable Laws.
6.7 Compliance with Agreements. The Company shall, and shall cause
each Subsidiary to, perform and comply in all respects with the provisions of
any agreement binding upon the Company, any Subsidiary or their respective
assets or properties, if the failure to so perform or comply would have a
material adverse effect on the condition (financial or otherwise) of the
business, assets or properties of the Company or any Subsidiary.
6.8 Notices. The Company shall:
(a) as soon as possible and in any event within five (5) business
days after the occurrence of any Default or Event of Default, notify M&I in
writing of such Default or Event of Default and set forth the details thereof
and the action which is being taken or proposed to be taken by the Company with
respect thereto;
(b) promptly notify M&I of the commencement of any litigation or
administrative proceeding that would cause the representation and warrant of the
Company contained in Section 4.7 of this Loan Agreement to be untrue;
(c) promptly notify M&I (i) of the occurrence of any Reportable
Event or Prohibited Transaction (as such terms are defined in ERISA) that has
occurred with respect to any Plan, and (ii) of the institution by the PBGC or
the Company of proceedings under Title IV of ERISA to terminate any Plan, if
either of the foregoing could reasonably be expected to have an adverse effect
on the financial condition of the Company in excess of $1,000,000; and
(d) promptly notify M&I of the commencement of any investigation,
litigation, or administrative or regulatory proceeding by, or the receipt of any
notice, citation, pleading, order, decree or similar document issued by, any
federal, state or local governmental agency or regulatory authority that results
in, or may result in, the termination or suspension for any license or permit
necessary to the Company's or any Subsidiary's business, or that imposes, or may
result in the imposition of, a material fine or penalty on the Company or any
Subsidiary.
6.9 Use of Proceeds. The Company shall use the proceeds of the Loans
solely for the purposes set forth in Section 2.1(c) of this Loan Agreement.
6.10 Risk-Based Capital/Risk-weighted Assets. The Company and its
Banking Subsidiaries shall maintain as of the last day of each
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fiscal quarter a consolidated ratio of risk-based capital to weighted-risk
assets, as defined by Regulatory agencies having jurisdiction over the Company
and its Banking Subsidiaries or in guidelines published by the FRB, of not less
than 10.0%. In the event that the Company's and its Banking Subsidiaries' ratio
is less than 10%. but 9.34% or higher, it shall not constitute an Event of
Default hereunder if the Company and its Banking Subsidiaries shall achieve a
ratio of at least 10% within ninety days after the occurrence of the Default. In
the event that the Company's and its Banking Subsidiaries, ratio is less than
9.34% but 8.67% or higher, it shall not constitute an Event of Default hereunder
if the Company and its Banking Subsidiaries shall achieve a ratio of at least
10% within sixty days after the occurrence of the Default. In the event that the
Company's and its Banking Subsidiaries' ratio is less than 8.67% but 8% or
greater, then it shall not constitute an Event of Default hereunder if the
Company and its Banking Subsidiaries sha11 achieve a ratio of at least 10%
within thirty days after the occurrence of the Default. It shall constitute an
immediate Event of Default hereunder in the event that the Company's and its
Banking Subsidiaries' ratio is less than 8%. It shall constitute an Event of
Default hereunder in the event that the Company and its Banking Subsidiaries
have not achieved a ratio of at least 10% within the applicable grace period
provided by this Section 6.10.
6.11 Tier 1 Capital/Risk-Weighted Assets. The Company and its Banking
Subsidiaries shall maintain as of the last day of each fiscal quarter a
consolidated ratio of tier 1 capital to weighted-risk assets, as defined by
regulatory agencies having jurisdiction over the Company and its Banking
Subsidiaries or in guidelines published by the FRB, in an amount not less than
6.0%. In the event that the Company's and its Banking Subsidiaries' ratio is
less than 6% but 5.34% or higher, it shall not constitute an Event of Default
hereunder if the Company and its Banking Subsidiaries shall achieve a ratio of
at least 6% within ninety days after the occurrence of the Default. In the event
that the Company's and its Banking Subsidiaries' ratio is less than 5.34% but
4.67%; or higher, it shall not constitute an Event of Default hereunder in the
event that the Company and its Banking Subsidiaries shall achieve a ratio of at
least 6% within sixty days after the occurrence of the Default. In the event
that the Company's and its Banking Subsidiaries' ratio is less than 4.67% but
equal to or greater than 4%, it shall not constitute an Event of Default
hereunder if the Company and its Banking Subsidiaries shall achieve a ratio of
at least 6% within thirty days after the occurrence of the Default. It shall
constitute an immediate Event of Default hereunder in the event that the
Company's and its Banking Subsidiaries' ratio is less than 4%. It shall
constitute an Event of Default hereunder in the event that the Company and its
Banking Subsidiaries have not achieved a ratio of at least 6% within the
applicable grace period provided by this Section 6.11.
6.12 Tier 1 Capital/Average Total Assets. The Company and its Banking
Subsidiaries shall maintain as of the last day of each fiscal quarter a
consolidated ratio of tier 1 capital to average total assets, as defined by
regulatory agencies having jurisdiction over the Company and its Banking
Subsidiaries or in guidelines published by the FRB, in an amount not less than
5%. In the event that the Company's and its Banking Subsidiaries' ratio is less
than 5% but 4.66% or higher, it shall not constitute an Event of Default
hereunder if the Company and its Banking Subsidiaries shall achieve a ratio of
not less
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than 5% within ninety days after the occurrence of the Default. In the event
that the Company's and its Banking subsidiaries' ratio is less than 4.66% but
4.33% or higher, it shall not constitute an Event of Default hereunder if the
Company and its Banking Subsidiaries shall achieve a ratio of not less than 5%
within sixty days after the occurrence of the Default. In the event that the
Company's and its Banking Subsidiaries' ratio is less than 4.33% but 4.0% or
higher, it shall not constitute an Event of Default hereunder if the Company and
its Banking Subsidiaries shall achieve a ratio of at least 5% within thirty days
after the occurrence of the Default. It shall constitute an immediate Event of
Default hereunder in the event that the Company's and its Banking Subsidiaries'
ratio is less than 4%. It shall constitute an Event of Default hereunder in the
event that the Company and its Banking Subsidiaries have not achieved a ratio of
at least 5% within the applicable grace period provided by this Section 6.12.
6.13 Non-Performing Loans/Total Loans. The Company and its Banking
Subsidiaries shall maintain as of the last day of each fiscal quarter a
consolidated ratio of Non-Performing Loans to total loans, as defined by
regulatory agencies having jurisdiction over the Company and its Banking
Subsidiaries or in guidelines published by the FRB or other applicable regulator
agency, of not greater than 3.0%.
6.14 Return on Average Assets. The Company and its Subsidiaries shall
maintain as of the last day of each fiscal quarter a consolidated return on
average assets (excluding non-recurring charges to expense), as defined by
regulatory agencies having jurisdiction over the Company and its Subsidiaries or
in guidelines published by the FRB or other applicable regulatory agency, in an
amount not less than 0.75% for the two just-ended consecutive fiscal quarters.
6.15 Consolidation or Merger. The Company shall not consolidate with or
merge into any other person, or permit another Person to merge into it, or
acquire substantially all of the assets of any other Person, whether in one or a
series of transactions, unless (a) at the time of any such proposed transaction
no Default or Event of Default has occurred and is then existing hereunder and
after taking into account any such merger or consolidation, no Default or Event
of Default would exist, without giving effect to any grace periods provided
herein, and (b) the Company or any Subsidiary is the surviving entity.
6.16 Calculation of Covenants. For purposes of determining compliance
with Sections 6.10, 6.11 and 6.12 hereof, the Company may take advantage of only
one grace period as provided in the relevant Section. That is, for example, if
the Company is in default of Section 6.10 because its ratio of risk-based
capital to weighted-risk assets is less than 8.67% but 8% or greater, the
Company must achieve a ratio of not less than 10% within the 30-day cure period
provided in Section 6.10 and the Company shall not be provided an additional
cure period in the event that the Company achieves a higher ratio but such
higher ratio is not at least 10%.
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ARTICLE VII
REMEDIES
7.1 Acceleration. (a) Upon the occurrence of an Automatic Event of
Default, then, without notice, demand or action of any kind by M&I: (i) the
obligation of M&I to make any Loans under this Loan Agreement shall
automatically and immediately terminate; and (ii) the entire amount of unpaid
principal of, and accrued and unpaid interest on, the Note, and the entire
amount of unpaid fees and expenses under this Loan Agreement, shall be
automatically and immediately due and payable.
(b) Upon the occurrence of a Notice Event of Default, M&I may, upon
written notice and demand to the Company: (i) terminate its obligation to make
any Loans under this Loan Agreement; and (ii) declare the entire amount of
unpaid principal of, and accrued and unpaid interest on, the Note, and the
entire amount of unpaid fees and expenses under this Loan Agreement, immediately
due and payable.
7.2 Remedies Not Exclusive. No remedy herein conferred upon M&I is
intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given under
this Loan Agreement or the Note or now or hereafter existing at law or in
equity. No failure or delay on the part of M&I in exercising any right or remedy
shall operate as a waiver thereof nor shall any single or partial exercise of
any right preclude other or further exercise thereof or the exercise of any
other right or remedy.
7.3 Setoff. The Company agrees that M&I shall have all rights of
set-off and bankers' Lien provided by applicable Law, and in addition thereto,
the Company agrees that if at any time any payment or other amount owing by the
Company under the Note or this Loan Agreement is then due to M&I, M&I may apply
to the payment of such payment or other amount any and all balances, credits,
deposits, accounts or moneys of the Company then or thereafter with M&I.
7.4 M&I's Right to Cure Default. In case of failure by the Company
to procure or maintain insurance, M&I shall have the right, but shall not he
obligated, to effect such insurance, and, in that event, the cost thereof shall
be payable by the Company to M&I immediately upon demand together with interest
at an annual rate equal to the Prime Rate plus two percent (2%) (to the extent
permitted by applicable Law) from the date of disbursement by M&I to the date of
payment by the Company.
ARTICLE VIII
MISCELLANEOUS
8.1 Expenses and Attorneys' Fees. The Company shall pay all
reasonable fees and expenses incurred by M&I and any loan participant, including
the reasonable fees of counsel, in connection with the preparation, issuance,
maintenance and amendment of this Loan Agreement and the Note and the
consummation of the transactions contemplated by this Loan Agreement, and the
administration (including, without limitation, matters related to waivers),
protection and enforcement of M&I's rights under this Loan Agreement and the
Note, including without limitation the protection and
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enforcement of such rights (before and after judgment) in any bankruptcy,
reorganization or insolvency proceeding involving the Company or any Subsidiary.
The Company further agrees to pay on demand all reasonable internal fees and
accountants' fees incurred M&I in connection with the enforcement of this Loan
Agreement, the Note, or any other documents or materials to be delivered by the
Company to M&I pursuant to this Loan Agreement.
8.2 Assignability; Successors. The Company's rights and liabilities
under this Loan Agreement are not assignable or delegable, in whole or in part,
without the prior written consent of M&I. The provisions of this Loan Agreement
shall inure to the benefit of M&I and its successors and assigns and shall be
binding upon the Company and its permitted successors and assigns.
8.3 Survival. All agreements, representations and warranties made
in this Loan Agreement or in any document delivered pursuant to this Loan
Agreement shall survive the execution and delivery of this Loan Agreement, the
issuance of the Note and the delivery of any such document.
8.4 Governing Law. This Loan Agreement, the Note and the other
instruments, agreements and documents issued pursuant to this Loan Agreement
shall be governed by, and construed and interpreted in accordance with, the Laws
of the State of Wisconsin applicable to agreements made and wholly performed
within such state.
8.5 Counterparts; Headings. This Loan Agreement may be executed in
several counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same agreement. The table
of contents and article and section headings in this Loan Agreement are inserted
for convenience of reference only and shall not constitute a part of this Loan
Agreement.
8.6 Entire Agreement. This Loan Agreement and the Note and the
other documents referred to herein and therein contain the entire understanding
of the parties with respect to the subject matter hereof. There are no
restrictions, promises, warranties, covenants or undertakings other than those
expressly set forth in this Loan Agreement. This Loan Agreement supersedes all
prior negotiations, agreements and undertakings between the parties with respect
to such subject matter.
8.7 Notices. All communications or notices required or permitted by
this Loan Agreement shall be in writing and shall be deemed to have been given:
(a) upon delivery if hand delivered, or (b) upon deposit in the United States
mail, postage prepaid, or with a nationally recognized overnight commercial
carrier, air xxxx prepaid, or (c) upon transmission if by facsimile, provided
that such transmission is promptly confirmed by hand delivery, mail or courier
as provided above, and each such communication or notice shall be addressed as
follows, unless and until any party notifies the other in accordance with this
Section 8.7 of a change of address:
22
24
If to the Company: AMCORE Financial, Inc.
000 Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx
Executive VP & CFO
If to M&I: M&I Xxxxxxxx & Xxxxxx Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
8.8 Amendment. No amendment of this Loan Agreement shall be
effective unless in writing and signed by the Company and M&I.
8.9 Taxes. If any transfer or documentary taxes, assessments or
charges levied by any governmental authority shall be payable by reason of the
execution, delivery or recording of this Loan Agreement, the Note or any other
document or instrument issued or delivered pursuant to this Loan Agreement, the
Company shall pay all such taxes, assessments and charges, including interest
and penalties, and hereby indemnifies M&I against any liability therefor.
8.10 Accounting Terms. All accounting terms used in this Loan
Agreement shall be construed in accordance with GAAP consistent with those used
in the preparation of the financial statements referred to in Section 6.2 of
this Loan Agreement.
8.11 Severability. Any provision of this Loan 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 of this Loan Agreement in such
jurisdiction or affecting the validity or enforceability of any provision in any
other jurisdiction.
8.12 Indemnification. The Company hereby indemnifies, agrees to
defend and holds M&I harmless from and against all loss, liability, damage and
expense, including costs associated with administrative and judicial proceedings
and attorneys', fees, suffered or incurred by M&I on account of: (i) the
Company's or any Subsidiary's failure to comply with any Environmental Law, or
any order of any regulatory or administrative authority with respect thereto;
(ii) any release of petroleum products or hazardous materials or substances on,
upon or into real property owned, operated or controlled by the Company or any
Subsidiary; and (iii) any and all damage to natural resources or real property
or harm or injury to Persons resulting or alleged to have resulted from any
failure to comply or any release of petroleum products or hazardous materials or
substances as described in clauses (i) and (ii) above. All indemnities set forth
in this Loan Agreement shall survive the execution and delivery of this Loan
Agreement and the Note and the making and repayment of the Loans.
8.13 WAIVER OF RIGHT TO JURY TRIAL. M&I AND THE COMPANY ACKNOWLEDGE
AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LOAN AGREEMENT OR THE
NOTE OR WITH RESPECT TO THE TRANSACTION CONTEMPLATED HEREBY AND THEREBY WOULD BE
BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT
ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
23
25
8.14 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS. AS A MATERIAL
INDUCEMENT TO M&I TO ENTER INTO THIS LOAN AGREEMENT:
(a) THE COMPANY AGREES THAT ALL ACTIONS OR PROCEEDINGS IN ANY MANNER
RELATING TO OR ARISING OUT OF THIS LOAN AGREEMENT OR THE NOTE MAY BE BROUGHT
ONLY IN COURTS OF THE STATE OF WISCONSIN LOCATED IN MILWAUKEE COUNTY OR THE
FEDERAL COURT FOR THE EASTERN DISTRICT OF WISCONSIN, AND THE COMPANY CONSENTS
TO THE JURISDICTION OF SUCH COURTS. THE COMPANY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH COURT AND ANY RIGHT IT MAY HAVE NOW
OR HEREAFTER HAVE TO CLAIM THAT ANY SUCH ACTION OR PROCEEDING IS IN AN
INCONVENIENT COURT; and
(b) The Company consents to the service of process in any such
action or proceeding by certified mail sent to the address specified in Section
8.7.
(c) Nothing contained herein shall affect the right of M&I to serve
process in any other manner permitted by law or to commence an action or
proceeding in any other jurisdiction.
8.15 Participation. M&I may grant a silent participation in any part of
the Loans to any bank or banks; provided that such participants shall have no
direct relationship with the Company and shall not have approval rights with
respect to the terms of the relationship or the Loans between M&I and the
Company. M&I will provide the Company with notice of any participation in the
Loans it has made.
8.16 Prior Loan Agreements. This Loan Agreement replaces in their entirety
any prior loan agreements executed by the Company and M&I and all such other
loan agreements are hereby terminated.
24
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Exhibit B
LINE OF CREDIT NOTE
$50,000,000 Milwaukee, Wisconsin
December 31, 1999
FOR VALUE RECEIVED, AMCORE FINANCIAL, INC., a Nevada corporation (the
"Company") hereby promises to pay to the order of M&I XXXXXXXX & XXXXXX BANK
("M&I"), the principal sum of FIFTY MILLION DOLLARS ($50,000,000), or such
lesser amount of loans which remain outstanding under this Note, on April 30,
2000.
The unpaid principal shall bear interest from the date hereof until
paid at an annual rate, computed on the basis of a 360-day year, as provided in
the Loan Agreement referenced below. Interest accrued on the outstanding
principal balance shall be payable on the fifth day of each month, commencing on
January 5, 2000, and continuing thereafter until the outstanding principal
balance is repaid in full, with all accrued interest paid with the final payment
of principal.
In the event that any amount of the principal of, or interest on, this
Note is not paid when due (whether at stated maturity, by acceleration or
otherwise), the entire principal amount outstanding under this Note shall bear
interest, in addition to the interest otherwise payable hereunder, at an annual
rate of two percent (2%) from the day following the due date until all such
overdue amounts have been paid in full.
Payments of principal, interest and other amounts due hereunder are to
be made in lawful money of the United States of America to M&I at 000 X. Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Correspondent Banking, or at such
other place as the holder shall designate in writing to the Company.
The maker and all endorsers hereby severally waive presentment for
payment, protest and demand, notice of protest, demand and of dishonor and
nonpayment of this Note. The Company hereby agrees to pay all reasonable fees
and expenses incurred by M&I or any subsequent holder, including the reasonable
fees of counsel, in connection with the protection and enforcement of the rights
of M&I or any subsequent holder under this Note, including without limitation
the collection of any amounts due under this Note and the protection and
enforcement of such rights (before or after judgment) in any bankruptcy,
reorganization or insolvency proceeding involving the Company.
This Note constitutes the Line of Credit Note issued pursuant to a Loan
Agreement (the "Loan Agreement") dated as of December 31, 1999, as amended from
time to time, by and between M&I and the Company, to which Loan Agreement
reference is hereby made for a statement of the terms and conditions under which
the Line of Credit Loans evidenced hereby may be made and a description of the
terms and conditions upon which this Note may be prepaid in whole or in part. In
case an Event of Default, as defined in the Loan Agreement, shall occur, the
entire unpaid principal and accrued interest may be automatically due and
payable or may be declared due and payable as provided in the Loan Agreement.
27
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Wisconsin applicable to contracts
made and wholly performed within such state.
AMCORE FINANCIAL, INC.
By: /s/ XXXX X. XXXXX
---------------------------------
Name: Xxxx X. Xxxxx
-------------------------------
Title: EVP & CFO
------------------------------
2
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SCHEDULE 4.18
SUBSIDIARIES AND OTHER INVESTMENTS
29
AMCORE FINANCIAL, INC.
CUSTOMER FOCUSED ORGANIZATIONAL STRUCTURE
----------------------------------
MID-STATES TITLE
COMPANY, INC.
----------------------------------
(Illinois)
---------------------------------- ---------------------------------- ----------------------------------
AMCORE BANK, N.A. ARP HOLDINGS, AMCORE REAL PROPERTIES,
---------------------------------- LLC LLC
2098 (National) 00-0000000 ---------------------------------- ----------------------------------
2927 (Delaware) 00-0000000 2801 (Delaware) 00-0000000
----------------------------------
AMCORE
MORTGAGE, INC.
----------------------------------
2095 (Nevada) 00-0000000
----------------------------------
AFI NEVADA, INC.
----------------------------------
2051 (Nevada) 88-0273424
----------------------------------
AIG LIQUIDATION, CORP.
----------------------------------
2082 (Illinois) 00-0000000
----------------------------------
BF FINANCIAL SERVICES, INC.
----------------------------------
2027 (Wisconsin) 39-1647501
---------------------------------- ----------------------------------
AMCORE AMCORE INVESTMENT
FINANCIAL, INC. SERVICES, INC.
---------------------------------- ----------------------------------
2096 (Nevada) 00-0000000 2088 (Illinois) 00-0000000
----------------------------------
INVESTORS MANAGEMENT
---------------------------------- GROUP, LTD.
AMCORE INVESTMENT ----------------------------------
GROUP, N.A. 2079 (Iowa) 00-0000000
----------------------------------
2085 (National) 00-0000000 ----------------------------------
INVESTORS MANAGEMENT
GROUP, LTD.
----------------------------------
2087 (Illinois) 00-0000000
----------------------------------
AMCORE CAPITAL
VALUE, INC.
----------------------------------
2085 (Iowa) 00-0000000
----------------------------------
AMCORE CONSUMER
FINANCE COMPANY, INC.
----------------------------------
2098 (Nevada) 00-0000000
---------------------------------- -----------------------------------------
AMCORE INVESTMENT Footnotes
BANKING, INC. -----------------------------------------
---------------------------------- (1) Inactive.
2088 (Illinois) 00-0000000 (2) RC 5015
(3) RC 8911
---------------------------------- (4) Statutory business ("Grantor") trust.
AMCORE FINANCIAL -----------------------------------------
LIFE INSURANCE CO.
----------------------------------
2083 (Arizona) 00-0000000
----------------------------------
AMCORE CAPITAL
TRUST I
----------------------------------
2800 (Delaware) 00-0000000
