EXHIBIT 10.15
Bank Stock Control Loan
FORM OF TERM LOAN AGREEMENT
This Term Loan Agreement (the "AGREEMENT") is made and entered into as of
the _____ day of ____________, 19___ by and between _________________________
(the "BORROWER") and Firstar Bank Milwaukee, N.A. (the "BANK").
ARTICLE I DEFINITIONS
1.1 DEFINITIONS. Except as otherwise provided, all accounting terms will
be construed in accordance with generally accepted accounting principles
consistently applied and consistent with those applied in the preparation of the
financial statements referred to in paragraph 4.13, and financial data submitted
pursuant to this Agreement will be prepared in accordance with such principles.
As used herein:
(a) "ASSETS" means the sum of all assets including Loan Loss Reserves
of the Subsidiary Bank determined in accordance with generally
accepted accounting principles applicable to banks, consistently
applied.
(b) "LOAN LOSS RESERVES" means the loan loss reserves of the
Subsidiary Bank reported in the most recent call reports of the
Subsidiary Bank.
(c) "NONPERFORMING LOANS" means the sum of those loans 90 days or
more past due and those loans classified as "non-accrual" or
"renegotiated" as reported in the most recent call reports of the
Subsidiary Bank.
(d) "OTHER REAL ESTATE" means the value of all real estate owned by
the Subsidiary Bank and classified as such by the examiners of
the Comptroller of the Currency, Federal Deposit Insurance
Corporation, Federal Reserve Board or appropriate state agency
responsible for examining the Subsidiary Bank, as shown on the
most recent examination reports of the Subsidiary Bank.
(e) "PRIMARY CAPITAL" means the sum of Total Tangible Equity and Loan
Loss Reserves.
(f) "SUBSIDIARY" OR "SUBSIDIARIES" means the Subsidiary Bank and any
entity of which the Borrower owns, directly or through another
Subsidiary, at the date of determination, more than 50% of the
outstanding stock having ordinary voting power for the election
of
- 1 -
directors, irrespective of whether or not at such time stock
of any other class or classes might have voting power by reason
of the happening of any contingency.
(g) "SUBSIDIARY BANK" means, whether one or more ___________________
________________________________________________________________
________________________________________________________________
(h) "TOTAL LOANS" means the aggregate outstanding principal amount of
all loans shown as assets of the Subsidiary Bank as reported in
the most recent call reports of the Subsidiary Bank.
(i) "TOTAL TANGIBLE EQUITY" means the total amount of the capital
stock, surplus and undivided profits accounts less intangibles,
all of which will be determined in accordance with generally
accepted accounting principles applicable to banks, consistently
applied.
ARTICLE II LOANS
2.1 TERMS FOR ADVANCE(S). [CHOOSE ONE:]
/ / SINGLE ADVANCE TERM LOAN. As of the date hereof, the Borrower
has obtained a term loan from the Bank in the amount of
$_____________ (the "LOAN AMOUNT"). The term loan is evidenced
by a single promissory note of the Borrower to the order of the
Bank in the principal amount of the Loan Amount and dated as of
the date hereof (the "NOTE").
/ / MULTIPLE ADVANCE TERM LOAN. Prior to _________________ or the
earlier termination hereof, the Borrower may obtain advances from
the Bank in an aggregate amount not exceeding $____________ (the
"LOAN AMOUNT"). The term loans will be evidenced by a single
promissory note of the Borrower to the Bank in the principal
amount of the Loan Amount and dated as of the date hereof (the
"NOTE"). Although the Note will be expressed as payable in the
full Loan Amount, the Borrower will be obligated to pay only the
amounts actually disbursed hereunder, together with the accrued
interest on the outstanding balance at the rates and on the dates
specified therein and such other charges provided for herein.
2.2 ADVANCES AND PAYING PROCEDURE. The Bank is authorized and directed to
credit any of the Borrower's accounts with the Bank (or to the account the
Borrower designates in writing) for all loans made hereunder, and the Bank is
authorized to debit such account or any other account of the Borrower with the
Bank for the amount of any principal or interest due under the Note or other
accounts due hereunder on the due date with respect
- 2 -
thereto. The Borrower will maintain a demand deposit account at the Bank to
facilitate borrowings and repayments hereunder.
2.3 SECURITY. The loans provided for hereunder will be secured by all of
the common and preferred stock of the Subsidiary Bank now owned or hereafter
acquired by the Borrower, except directors qualifying shares, if any.
2.4 MANDATORY PREPAYMENT. If _________________________________________
ceases for any reason to be active in the management of the Subsidiary Bank for
a period of 30 consecutive days or more, and is not replaced by an individual of
comparable ability and experience, the Borrower will promptly give the Bank
written notice thereof and upon demand by the Bank, the Borrower will repay the
loans made hereunder, and any other loans from the Bank to the Borrower, on the
date specified in such demand.
ARTICLE III CONDITIONS TO BORROWING
3.1 CONDITIONS TO BORROWING. The Bank will not be obligated to make (or
continue to make) advances hereunder unless (i) the Bank has received executed
copies of the Note and all other documents or agreements applicable to the loans
described herein, including but not limited to the documents specified in
Article V (collectively with this Agreement the "LOAN DOCUMENTS", in form and
content satisfactory to the Bank; (ii) the Bank has received confirmation
satisfactory to it that the Bank has a properly perfected security interest,
mortgage or lien, with the proper priority; (iii) the Bank has received
certified copies of the Articles of Incorporation and By-Laws and a certificate
of status of the Borrower and the Subsidiaries; (iv) the Bank has received a
certified copy of a resolution or authorization in form and content satisfactory
to the Bank authorizing the loan and all acts contemplated by this Agreement and
all related documents, and confirmation of proper authorization of all
guaranties and other acts of third parties contemplated hereunder; (v) the Bank
has been provided with an opinion of the Borrower's counsel in form and content
satisfactory to the Bank confirming the matters outlined in paragraph 4.1 and
such other matters as the Bank requests; (vi) no default exists under this
Agreement or under any other Loan Documents, or under any other agreements by
and between the Borrower and the Bank and no condition or event will exist or
have occurred which with the passage of time, the giving of notice or both would
constitute a default under this Agreement or under any other Loan Documents or
under any other agreements by and between the Borrower and the Bank; and (vii)
all proceedings taken in connection with the transactions contemplated by this
Agreement and all instruments, authorizations and other documents applicable
thereto, will be satisfactory to the Bank and its counsel.
ARTICLE IV. WARRANTIES AND COVENANTS
During the term of this Agreement, and while any part of the credit granted
the Borrower is available or any obligations under any of the Loan Documents are
unpaid or outstanding, the Borrower warrants and agrees as follows:
- 3 -
4.1 ORGANIZATION AND AUTHORITY. The Borrower is a validly existing
corporation in good standing under the laws of its state of organization, and
has all requisite power and authority, corporate or otherwise, and possesses all
licenses necessary, to conduct its business and own its properties. The
execution, delivery and performance of this Agreement and the other Loan
Documents (i) are within the Borrower's power; (ii) have been duly authorized by
proper corporate action; (iii) do not require the approval of any governmental
agency; and (iv) will not violate any law, agreement or restriction by which the
Borrower is bound. This Agreement and the other Loan Documents are the legal,
valid and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their terms.
4.2 SUBSIDIARIES.
(a) The Borrower has __________ Subsidiaries consisting of the
Subsidiary Bank and ______________________________________
________________________________________________________________.
(b) ___________________________ has issued and outstanding __________
shares of common stock, par value $___________ per share, which
are duly authorized, validly issued, fully paid and
non-assessable, of which the Borrower owns ___________ shares,
which represent _______% of the issued and outstanding capital
stock of ____________________________________________________,
free and clear of any liens, charges, encumbrances, rights of
redemption, preemptive rights or rights of first refusal of any
kind or nature whatsoever, except liens in favor of the Bank.
__________________ has no shares of capital stock (common or
preferred), or securities or other obligations convertible into
any of the foregoing, authorized or outstanding and has no
outstanding offers, subscriptions, warrants, rights or other
agreements or commitments obligating
______________________________ to issue or sell any of the
foregoing.
(c) ____________________________________ has issued and outstanding
_______ shares of common stock, par value $____________ per
share, which are duly authorized, validly issued, fully paid and
non-assessable, of which the Borrower owns __________ shares,
which represent ________% of the issued and outstanding capital
stock of ______________________________________________________
__________________________________________________________, free
and clear of any liens, charges, encumbrances, rights of
redemption, preemptive rights or rights of first refusal of any
kind or nature whatsoever, except liens in favor of the Bank.
________________________________________________ has no shares of
capital stock (common or preferred), or securities or other
obligations convertible into any of the foregoing, authorized or
- 4 -
outstanding and has no outstanding offers, subscriptions,
warrants, rights or other agreements or commitments obligating
_________________________________________ to issue or sell any of
the foregoing.
(d) ________________________________ has issued and outstanding
_______ shares of common stock, par value $_________ per share,
which are duly authorized, validly issued, fully paid and
non-assessable, of which the Borrower owns _________ shares,
which represent _______% of the issued and outstanding capital
stock of ___________________________________, free and clear of
any liens, charges, encumbrances, rights of redemption,
preemptive rights or rights of first refusal of any kind or
nature whatsoever, except liens in favor of the Bank.
____________________________________ has no shares of capital
stock (common or preferred), or securities or other obligations
convertible into any of the foregoing, authorized or outstanding
and has no outstanding offers, subscriptions, warrants, rights or
other agreements or commitments obligating
____________________________________ to issue or sell any of the
foregoing.
(e) _________________________________ has issued and outstanding
_______ shares of common stock, par value $____________ per
share, which are duly authorized, validly issued, fully paid and
non-assessable, of which the Borrower owns _________ shares,
which represent _______% of the issued and outstanding capital
stock of _______________________ ____________________________,
free and clear of any liens, charges, encumbrances, rights of
redemption, preemptive rights or rights of first refusal of any
kind or nature whatsoever, except liens in favor of the Bank.
__________________________________________ has no shares of
capital stock (common or preferred), or securities or other
obligations convertible into any of the foregoing, authorized or
outstanding and has no outstanding offers, subscriptions,
warrants, rights or other agreements or commitments obligating
_________________________ issue or sell any of the foregoing.
4.3 LITIGATION AND COMPLIANCE WITH LAWS. The Borrower and the
Subsidiaries have complied in all material respects with and will continue to
comply with all applicable federal and state laws and regulations: (i) that
regulate or are concerned in any way with its or their banking and trust
business, including without limitation those laws and regulations relating to
the investment of funds, lending of money, collection of interest, extension of
credit, and location and operation of banking facilities; or (ii) otherwise
relate to or affect the business or assets of Borrower or any of the
Subsidiaries or the assets owned, used or occupied by them. Except to the
extent previously disclosed to Bank, there are no claims,
- 5 -
actions, suits, or proceedings pending, or to the best knowledge of Borrower,
threatened or contemplated against or affecting Borrower or any of the
Subsidiaries, at law or in equity, or before any federal, state or other
governmental authority, or before any arbitrator or arbitration panel, whether
by contract or otherwise, and there is no decree, judgment or order of any kind
in existence against or restraining Borrower or any of the Subsidiaries, or any
of their officers, employees or directors, from taking any action of any kind in
connection with the business of Borrower or any of the Subsidiaries. Except to
the extent previously disclosed to the Bank, neither Borrower nor any of the
Subsidiaries has (i) received from any regulatory authority any criticisms,
recommendations or suggestions of a material nature, and Borrower has no reason
to believe that any such is contemplated, concerning the capital structure of
any of the Subsidiaries, loan policies or portfolio, or other banking and
business practices of any of the Subsidiaries that have not been resolved to the
satisfaction of such regulatory authorities or (ii) entered into any memorandum
of understanding or similar arrangement with any federal or state regulator
relating to any unsound or unsafe banking practice or conduct or any violation
of law respecting the operations of the Borrower or the operations of any of the
Subsidiaries.
4.4 F.D.I.C. INSURANCE. The Subsidiary Bank is insured as to deposits by
the Federal Deposit Insurance Corporation and no act has occurred which could
adversely affect the status of the Subsidiary Bank as an insured bank.
4.5 CORPORATE EXISTENCE; BUSINESS ACTIVITIES; ASSETS. The Borrower will
and will cause each Subsidiary to (i) preserve its corporate existence, rights
and franchises; (ii) carry on its business activities in substantially the
manner such activities are conducted as of the date of this Agreement; (iii) not
liquidate, dissolve, merge or consolidate with or into another entity; and (iv)
not sell, lease, transfer or otherwise dispose of all or substantially all of
its assets.
4.6 USE OF PROCEEDS; MARGIN STOCK; SPECULATION. [CHOOSE ONE OR MORE] (i)
Advances by the Bank hereunder will be used exclusively by the Borrower to
refinance existing indebtedness with _________________________________ in the
amount of $_______________; (ii) for working capital purposes; (iii) to acquire
the capital stock of _____________________________________; and (iv) other
acquisition fees and expenses. The Borrower will not use any of the loan
proceeds to purchase or carry "margin" stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System). No part of any of the
proceeds will be used for speculative investment purposes, including, without
limitation, speculating or hedging in the commodities and/or futures market.
4.7 ENVIRONMENTAL MATTERS. Except as disclosed in a written schedule
attached to this Agreement (if no schedule is attached, there are no
exceptions), there exists no uncorrected violation by the Borrower of any
federal, state or local laws (including statutes, regulations, ordinances or
other governmental restrictions and requirements) relating to the discharge of
air pollutants, water pollutants or process waste water or otherwise relating to
the environment or Hazardous Substances as hereinafter defined, whether such
laws currently exist or are enacted in the future (collectively "ENVIRONMENTAL
LAWS". The term
- 6 -
"HAZARDOUS SUBSTANCES" will mean any hazardous or toxic wastes, chemicals or
other substances, the generation, possession or existence of which is prohibited
or governed by any Environmental Laws. The Borrower is not subject to any
judgment, decree, order or citation, or a party to (or threatened with) any
litigation or administrative proceeding, which asserts that the Borrower (i) has
violated any Environmental Laws; (ii) is required to clean up, remove or take
remedial or other action with respect to any Hazardous Substances (collectively
"REMEDIAL ACTION"); or (iii) is required to pay all or a portion of the cost of
any Remedial Action, as a potentially responsible party. Except as disclosed on
the Borrower's environmental questionnaire provided to the Bank, there are not
now, nor to the Borrower's knowledge after reasonable investigation have there
ever been, any Hazardous Substances (or tanks or other facilities for the
storage of Hazardous Substances) stored, deposited, recycled or disposed of on,
under or at any real estate owned or occupied by the Borrower during the periods
that the Borrower owned or occupied such real estate, which if present on the
real estate or in soils or ground water, could require Remedial Action. To the
Borrower's knowledge, there are no proposed or pending changes in Environmental
Laws which would adversely affect the Borrower or its business, and there are no
conditions existing currently or likely to exist while the Loan Documents are in
effect which would subject the Borrower to Remedial Action or other liability.
The Borrower currently complies with and will continue to timely comply with all
applicable Environmental Laws; and will provide the Bank, immediately upon
receipt, copies of any correspondence, notice, complaint, order or other
document from any source asserting or alleging any circumstance or condition
which requires or may require a financial contribution by the Borrower or
Remedial Action or other response by or on the part of the Borrower under
Environmental Laws, or which seeks damages or civil, criminal or punitive
penalties from the Borrower for an alleged violation of Environmental Laws.
4.8 RESTRICTION ON INDEBTEDNESS. The Borrower will not and will not
permit any of the Subsidiaries to create, incur, assume or have outstanding any
indebtedness for borrowed money (including capitalized leases) except (i)
indebtedness under the Note issued under this Agreement; (ii) other indebtedness
to the Bank; and (iii) any other indebtedness outstanding on the date hereof,
and shown on the Borrower's financial statements delivered to the Bank prior to
the date hereof, provided such other indebtedness shall not be renewed, extended
or increased.
4.9 RESTRICTION ON LIENS. The Borrower will not create, incur, assume or
permit to exist any mortgage, pledge, encumbrance or other lien or levy upon or
security interest in any of the Borrower's property now owned or hereafter
acquired, except (i) taxes and assessments which are either not delinquent or
which are being contested in good faith with adequate reserves provided; (ii)
easements, restrictions and minor title irregularities which do not, as a
practical matter, have an adverse effect upon the ownership and use of the
affected property; (iii) liens in favor of the Bank; and (iv) other liens
disclosed in writing to the Bank prior to the date hereof which are fully
subordinated to any security interest or other lien held by the Bank.
- 7 -
4.10 RESTRICTION ON CONTINGENT LIABILITIES. The Borrower will not and will
not permit any of the Subsidiaries to guarantee or become a surety or otherwise
contingently liable for any obligations of others, except pursuant to the
deposit and collection of checks, the issuance or confirmation of letters of
credit by the Subsidiary Bank and similar matters in the ordinary course of
banking business.
4.11 INSURANCE. The Borrower will maintain and cause each Subsidiary to
maintain insurance to such extent, covering such risks and with such insurers as
is usual and customary for businesses operating similar properties, and as is
satisfactory to the Bank, including insurance for fire and other risks insured
against by extended coverage, public liability insurance and workers'
compensation insurance.
4.12 TAXES AND OTHER LIABILITIES. The Borrower will pay and discharge, and
cause each Subsidiary to pay and discharge when due, all of its taxes,
assessments and other liabilities, except when the payment thereof is being
contested in good faith by appropriate procedures which will avoid foreclosure
of liens securing such items, and with adequate reserves provided therefor.
4.13 FINANCIAL STATEMENTS AND REPORTING. The financial statements and
other information previously provided to the Bank or provided to the Bank in the
future are or will be complete and accurate and prepared in accordance with
generally accepted accounting principles. There has been no material adverse
change in the Borrower's financial condition since such information was provided
to the Bank. The Borrower will, and will cause each Subsidiary to (i) maintain
accounting records in accordance with generally recognized and accepted
principles of accounting consistently applied throughout the accounting periods
involved; (ii) provide the Bank with such information concerning its business
affairs and financial condition (including insurance coverage) as the Bank may
reasonably request; and (iii) without request, provide the Bank with the
following information:
(a) As soon as available, and in any event within 90 days after the
end of each fiscal year of the Borrower, the Borrower's annual
audited financial statements prepared by an accounting firm
acceptable to the Bank; and
(b) Within 45 days of the end of each quarter, quarterly call reports
prepared on FFIEC forms, or any successors thereto, of the
Subsidiary Bank prepared in accordance with the guidelines of the
regulatory agency which regulates such Subsidiary Bank; and
(c) As soon as available, copies of all reports or materials
submitted or distributed to shareholders of the Borrower or filed
with the SEC or other governmental agency having regulatory
authority over the Borrower or any Subsidiary or with any
national securities exchange; and
- 8 -
(d) Promptly after the furnishing thereof, copies of any statement or
report furnished to any other holder of obligations of the
Borrower or any Subsidiary pursuant to the terms of any
indenture, loan or similar agreement and not otherwise required
to be furnished to the Bank pursuant to any other clause of this
paragraph 4.13; and
(e) Promptly, and in any event within 10 days, after the Borrower has
knowledge thereof, a statement of the chief financial officer of
the Borrower describing: (i) any event which, either of itself or
with the lapse of time or the giving of notice or both, would
constitute a default hereunder or under any other material
agreement to which the Borrower or any Subsidiary is a party,
together with a statement of the actions which the Borrower
proposes to take with respect thereto; and (ii) any pending or
threatened litigation or administrative proceeding of the type
described in paragraph 4.3; and
(f) Notice of any memorandum of understanding or any other agreement
with any banking regulatory agencies, or cease and desist order,
immediately after entered into by or issued against Borrower or
any Subsidiary; and
(g) Promptly after request therefor, any other information concerning
the business affairs and financial condition of the Borrower or
any Subsidiary as the Bank may reasonably request.
4.14 INFORMATION. The Borrower will make available for review by the Bank,
promptly upon Bank's request, financial statements, call reports and any other
records or documents of the Borrower or the Subsidiary Bank. The Borrower and
the Subsidiaries will obtain the consent of any person or regulator which it
deems necessary or appropriate for disclosure of the information described
above.
4.15 FINANCIAL COVENANTS. The Borrower will cause the Subsidiary Bank to
maintain at all times:
(a) a ratio of Primary Capital to Assets of at least 7.0%.
(b) a ratio of Nonperforming Loan plus Other Real Estate to Total
Loan plus Other Real Estate of not greater than 3.0%.
(c) a ratio of Nonperforming Loan plus Other Real Estate to Primary
Capital of not greater than 24.0%.
(d) an average return on assets of at least .75% for Signal Bank and
Xxxxxxx County National Bank and .45% for Park National Bank.
- 9 -
4.16 INSPECTION OF PROPERTIES AND RECORDS; FISCAL YEAR. The Borrower will
permit representatives of the Bank to visit and inspect any of the properties
and examine any books and records of the Borrower and the Subsidiaries including
without limitation the stock transfer records of the Subsidiary Bank, at any
reasonable time and as often as the Bank may reasonably desire. The Borrower
will not change its fiscal year.
4.17 ISSUANCE OF STOCK. The Borrower will not permit any Subsidiary Bank
to issue any additional shares of common or preferred stock, or any options,
warrants or other common stock equivalents, or sell or issue securities or
obligations convertible into such ("NEW STOCK"), whether in the form of stock
dividends or stock splits or otherwise, unless such New Stock will be issued to
the Borrower and delivered by the Borrower to the Bank, together with any
additional documents required by the Bank, as additional collateral to secure
the loan provided for hereunder.
ARTICLE V. COLLATERAL
5.1 COLLATERAL. This Agreement and the Note are secured by a Collateral
Pledge Agreement dated _______________________. The information in this Article
V is for information only and the omission of any reference to an agreement will
not affect the validity or enforceability thereof. The rights and remedies of
the Bank outlined in this Agreement and the documents identified above are
intended to be cumulative.
5.2 CREDIT BALANCES; SETOFF. As additional security for the payment of
the obligations described in the Loan Documents and any other obligations of the
Borrower to the Bank of any nature whatsoever (collectively the "OBLIGATIONS"),
the Borrower hereby grants to the Bank a security interest in, a lien on and an
express contractual right to set off against all depository account balances,
cash and any other property of the Borrower now or hereafter in the possession
of the Bank. The Bank may, at any time upon the occurrence of a default
hereunder (notwithstanding any notice requirements or grace/cure periods under
this or other agreements between the Borrower and the Bank) set off against the
Obligations WHETHER OR NOT THE OBLIGATIONS (INCLUDING FUTURE INSTALLMENTS) ARE
THEN DUE OR HAVE BEEN ACCELERATED, ALL WITHOUT ANY ADVANCE OR CONTEMPORANEOUS
NOTICE OR DEMAND OF ANY KIND TO THE BORROWER, SUCH NOTICE AND DEMAND BEING
EXPRESSLY WAIVED.
ARTICLE VI. DEFAULTS
6.1 DEFAULTS. NOTWITHSTANDING ANY CURE PERIODS DESCRIBED BELOW, THE
BORROWER WILL IMMEDIATELY NOTIFY THE BANK IN WRITING WHEN THE BORROWER OBTAINS
KNOWLEDGE OF THE OCCURRENCE OF ANY DEFAULT SPECIFIED BELOW. Regardless of
whether the Borrower has given the required notice, the occurrence of one or
more of the following will constitute a default:
(a) NONPAYMENT. The Borrower fails to pay (i) any interest due on
the Note or any fees, charges, costs or expenses under the Loan
- 10 -
Documents by 5 days after the same becomes due; or (ii) any
principal amount of the Note when due.
(b) NONPERFORMANCE. The Borrower or any guarantor of Borrower's
Obligations to the Bank ("GUARANTOR") fails to perform or observe
any agreement, term, provision, condition, or covenant (other
than a default occurring under (a), (c), (d), (e), (f) or (g) of
this paragraph 6.1) required to be performed or observed by the
Borrower or any Guarantor hereunder or under any other Loan
Document or other agreement with or in favor of the Bank.
(c) MISREPRESENTATION. Any financial information, statement,
certificate, representation or warranty given to the Bank by the
Borrower or any Guarantor (or any of their representatives) in
connection with entering into this Agreement or the other Loan
Documents and/or any borrowing thereunder, or required to be
furnished under the terms thereof, proves untrue or misleading in
any material respect (as determined by the Bank in the exercise
of its judgment) as of the time when given.
(d) DEFAULT ON OTHER OBLIGATIONS. The Borrower, any Guarantor or any
Subsidiary will be in default under the terms of any loan
agreement, promissory note, lease, conditional sale contract or
other agreement, document or instrument evidencing, governing or
securing any indebtedness owing by the Borrower, any Guarantor or
any Subsidiary to the Bank or any indebtedness in excess of
$10,000 owing by the Borrower to any third party, and the period
of grace, if any, to cure said default will have passed.
(e) JUDGMENTS. Any judgment is obtained against the Borrower, any
Guarantor or any Subsidiary which, together with all other
outstanding unsatisfied judgments against the Borrower (or such
Guarantor or Subsidiary), exceeds the sum of $10,000 and remains
unvacated, unbonded or unstayed for a period of 30 days following
the date of entry thereof.
(f) INABILITY TO PERFORM; BANKRUPTCY/INSOLVENCY. (i) the Borrower,
any Guarantor or any Subsidiary dies or ceases to exist; or (ii)
any Guarantor attempts to revoke any guaranty of the Obligations
described herein, or any guaranty becomes unenforceable in whole
or in part for any reason; or (iii) any bankruptcy, insolvency or
receivership proceedings, or an assignment for the benefit of
creditors, is commenced under any Federal or state law by or
against the Borrower, any Guarantor or any Subsidiary; or (iv)
the Borrower, any Guarantor or any Subsidiary becomes the subject
of any out-of-court settlement
- 11 -
with its creditors; or (v) the Borrower, any Guarantor or any
Subsidiary is unable or admits in writing its inability to pay
its debts as they mature; or (vi) the Borrower or any Subsidiary
is closed or taken over by a Regulatory Agency.
(g) ADVERSE CHANGE; INSECURITY. (i) There is a material adverse
change in the business, properties, financial condition or
affairs of the Borrower, any Guarantor or any Subsidiary, or in
any collateral securing the Obligations; or (ii) the Bank in good
xxxxx xxxxx itself insecure.
(h) REGULATORY ORDERS. The Borrower or any Subsidiary enters into
any memorandum of understanding or other agreement with any
banking regulatory agency relating to any unsound or unsafe
banking practice or conduct or any violation of law respecting
the operation of Borrower or such Subsidiary; or Borrower or any
Subsidiary or any of their officers, employees, or directors
become the subject of a judicial or administrative determination
restraining any of them from taking any actions of any kind in
connection with the business of Borrower or such Subsidiary,
assessing a civil penalty, finding that any criminal offense
occurred in connection with the operations of Borrower or such
Subsidiary, or suspending or removing any officer or director of
Borrower or such Subsidiary.
6.2 TERMINATION OF LOAN; ADDITIONAL BANK RIGHTS. Upon the occurrence of
any of the events identified in paragraph 6.1, the Bank may at any time
(notwithstanding any notice requirements or grace/cure periods under this or
other agreements between the Borrower and the Bank) (i) immediately terminate
its obligation, if any, to make additional loans to the Borrower; (ii) set off;
and/or (iii) take such other steps to protect or preserve the Bank's interest in
any collateral, including without limitation, notifying account debtors to make
payments directly to the Bank, advancing funds to protect any collateral and
insuring collateral at the Borrower's expense; all without demand or notice of
any kind, all of which are hereby waived.
6.3 ACCELERATION OF OBLIGATIONS. Upon the occurrence of any of the events
identified in paragraphs 6.1(a) through 6.1(e) and 6.1(g) and 6.1(h), and the
passage of any applicable cure periods, the Bank may at any time thereafter, (i)
by written notice to the Borrower, declare the unpaid principal balance of any
Obligations, together with the interest accrued thereon and other amounts
accrued hereunder and under the other Loan Documents, to be immediately due and
payable; and the unpaid balance will thereupon be due and payable, all without
presentation, demand, protest or further notice of any kind, all of which are
hereby waived, and notwithstanding anything to the contrary contained herein or
in any of the other Loan Documents; and (ii) require the Borrower to cause the
Subsidiary Bank to appoint an independent transfer agent for the purpose of
registering and transferring ownership of the capital stock of the Subsidiary
Bank. Upon the occurrence of any event under paragraph 6.1(f), the unpaid
principal balance of any Obligations, together with all
- 12 -
interest accrued thereon and other amounts accrued hereunder and under the other
Loan Documents, will thereupon be immediately due and payable, all without
presentation, demand, protest or notice of any kind, all of which are hereby
waived, and notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents. NOTHING CONTAINED IN PARAGRAPH 6.1, PARAGRAPH 6.2
OR THIS SECTION WILL LIMIT THE BANK'S RIGHT TO SET OFF AS PROVIDED IN PARAGRAPH
5.2 OR OTHERWISE IN THIS AGREEMENT.
6.4 OTHER REMEDIES. Nothing in this Article VI is intended to restrict
the Bank's rights under any of the Loan Documents or at law, and the Bank may
exercise all such rights and remedies as and when they are available.
ARTICLE VII. MISCELLANEOUS
7.1 DELAY; CUMULATIVE REMEDIES. No delay on the part of the Bank in
exercising any right, power or privilege hereunder or under any of the other
Loan Documents will operate as a waiver thereof, nor will any single or partial
exercise of any right, power or privilege hereunder preclude other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein specified are cumulative and are not exclusive of any
rights or remedies which the Bank would otherwise have.
7.2 RELATIONSHIP TO OTHER DOCUMENTS. The warranties, covenants and other
obligations of the Borrower (and the rights and remedies of the Bank) that are
outlined in this Agreement and the other Loan Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms
in the Loan Documents, all terms will be cumulative so as to give the Bank the
most favorable rights set forth in the conflicting documents, except that if
there is a direct conflict between any preprinted terms and specifically
negotiated terms (whether included in an addendum or otherwise), the
specifically negotiated terms will control.
7.3 PARTICIPATIONS; GUARANTORS. The Bank may, at its option, sell all or
any interests in the Note and other Loan Documents to other financial
institutions. Any purchaser of an interest in the Note is hereinafter referred
to as a "Participant." In connection with such sales (and thereafter), the Bank
may disclose any financial information the Bank may have concerning the Borrower
to any such Participant or potential Participant. From time to time, the Bank
may, in its discretion and without obligation to the Borrower, any guarantor or
any other third party, disclose information about the Borrower and this
Agreement to any guarantor, surety or other accommodation party. This provision
does not obligate the Bank to supply any information or release the Borrower
from its obligation to provide such information, and the Borrower agrees to keep
all Guarantors advised of its financial condition and other matters which may be
relevant to the Guarantors' obligations to the Bank.
7.4 EXPENSES AND ATTORNEYS' FEES. The Borrower will reimburse the Bank
and any Participant for all attorneys' fees and all other costs, fees and
out-of-pocket disbursements (including fees and disbursements of both inside
counsel and outside counsel)
- 13 -
incurred by the Bank or any Participant in connection with the preparation,
execution, delivery, administration, defense and enforcement of this Agreement
or any of the other Loan Documents, including fees and costs related to any
waivers or amendments with respect thereto (examples of costs and fees include
but are not limited to fees and costs for: filing, perfecting or confirming the
priority of the Bank's lien, title searches or insurance, appraisals,
environmental audits and other reviews related to the Borrower, any collateral
or the loans, if requested by the Bank). The Borrower will also reimburse the
Bank and any Participant for all costs of collection before and after judgment,
and the costs of preservation and/or liquidation of any collateral (including
fees and disbursements of both inside and outside counsel).
7.5 SUCCESSORS. The rights, options, powers and remedies granted in this
Agreement and the other Loan Documents will extend to the Bank and to its
successors and assigns, will be binding upon the Borrower and its successors and
assigns and will be applicable hereto and to all renewals and/or extensions
hereof.
7.6 INDEMNIFICATION. Except for harm arising from the Bank's willful
misconduct, the Borrower hereby indemnifies and agrees to defend and hold the
Bank harmless from any and all losses, costs, damages, claims and expenses of
any kind suffered by or asserted against the Bank relating to claims by third
parties arising out of the financing provided under the Loan Documents or
related to any collateral. This indemnification and hold harmless provision
will survive the termination of the Loan Documents and the satisfaction of the
Obligations due the Bank.
7.7 NOTICE OF CLAIMS AGAINST BANK; LIMITATION OF CERTAIN DAMAGES. In
order to allow the Bank to mitigate any damages to the Borrower from the Bank's
alleged breach of its duties under the Loan Documents or any other duty, if any,
to the Borrower, the Borrower agrees to give the Bank immediate written notice
of any claim or defense it has against the Bank, whether in tort or contract,
relating to any action or inaction by the Bank under the Loan Documents, or the
transactions related thereto, or of any defense to payment of the Obligations
for any reason. The requirement of providing timely notice to the Bank
represents the parties' agreed-to standard of performance regarding claims
against the Bank. Notwithstanding any claim that the Borrower may have against
the Bank, and regardless of any notice the Borrower may have given the Bank, THE
BANK WILL NOT BE LIABLE TO THE BORROWER FOR CONSEQUENTIAL AND/OR SPECIAL DAMAGES
ARISING THEREFROM, EXCEPT THOSE DAMAGES ARISING FROM THE BANK'S WILLFUL
MISCONDUCT.
7.8 NOTICES. Although any notice required to be given hereunder or under
any of the other Loan Documents might be accomplished by other means, notice
will always be deemed given when placed in the United States Mail, with postage
prepaid, or sent by overnight delivery service, or sent by telex or facsimile,
in each case to the address set forth below or as amended.
7.9 PAYMENTS. Payments due under the Note and other Loan Documents will
be made in lawful money of the United States, and the Bank is authorized to
charge payments
- 14 -
due under the Loan Documents against any account of the Borrower. All payments
may be applied by the Bank to principal, interest and other amounts due under
the Loan Documents in any order which the Bank elects.
7.10 APPLICABLE LAW AND JURISDICTION; INTERPRETATION; JOINT LIABILITY.
This Agreement and all other Loan Documents will be governed by and interpreted
in accordance with the internal laws of the state where the Bank's main office
is located, except to the extent superseded by Federal law. Invalidity of any
provisions of this Agreement will not affect any other provision. THE BORROWER
HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITUATED IN THE COUNTY OR FEDERAL JURISDICTION WHERE THE BANK'S OFFICE WHICH IS
DESIGNATED IN THE NOTE AS THE PLACE FOR PAYMENT IS LOCATED (OR, IN THE ABSENCE
OF SUCH DESIGNATION, THE BANK'S MAIN OFFICE), AND WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR
PROCEEDINGS RELATING TO THIS AGREEMENT, THE NOTES, THE COLLATERAL, ANY OTHER
LOAN DOCUMENT, OR ANY TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATION OF ANY OF THE FOREGOING. Nothing herein will affect the Bank's
rights to serve process in any manner permitted by law, or limit the Bank's
right to bring proceedings against the Borrower in the competent courts of any
other jurisdiction or jurisdictions. This Agreement, the other Loan Documents
and any amendments hereto (regardless of when executed) will be deemed effective
and accepted only upon the Bank's receipt of the executed originals thereof. If
there is more than one Borrower, the liability of the Borrowers will be joint
and several, and the reference to "Borrower" will be deemed to refer to all
Borrowers.
7.11 COPIES; ENTIRE AGREEMENT; MODIFICATION. The Borrower hereby
acknowledges the receipt of a copy of this Agreement and all other Loan
Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS
OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
THIS NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS
NOW IN EFFECT BETWEEN YOU AND THIS LENDER. A MODIFICATION OF ANY OTHER CREDIT
AGREEMENTS NOW IN EFFECT BETWEEN YOU AND THIS LENDER, WHICH OCCURS AFTER RECEIPT
BY YOU OF THIS NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR
IMPLIED MODIFICATIONS TO SUCH CREDIT AGREEMENTS ARE NOT ENFORCEABLE AND SHOULD
NOT BE RELIED UPON.
7.12 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY JOINTLY AND
SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY
- 15 -
IN ANY ACTION OR PROCEEDING RELATING TO ANY OF THE LOAN DOCUMENTS, THE
OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING THE OBLIGATIONS, OR ANY
TRANSACTION ARISING THEREFROM OR CONNECTED THERETO. THE BORROWER AND THE BANK
EACH REPRESENTS TO THE OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY GIVEN.
IN WITNESS WHEREOF, the undersigned have executed this TERM LOAN AGREEMENT as of
___________________, 19___.
By:
----------------------------------------
Name and Title:
---------------------------
By:
----------------------------------------
Name and Title:
---------------------------
FIRSTAR BANK MILWAUKEE, N.A.
By:
----------------------------------------
Name and Title:
---------------------------
- 16 -
