Exhibit 10.1
Credit Agreement
This agreement dated as of March 31, 2005 between JPMorgan Chase Bank, N.A.
(together with its successors and assigns, the "Bank"), whose address is 000
Xxxxx Xx Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000-0000, and Main Street Trust,
Inc., an Illinois corporation, whose address is 000 Xxxx Xxxxxxxxxx, X.X. Xxx
0000, Xxxxxxxxx, XX 00000-0000 (whether one or more, and if more than one,
individually and collectively, the "Borrower").
1. Credit Facilities.
1.1 Scope. This agreement governs Facility A and Facility B, and, unless
otherwise agreed to in writing by the Bank and the Borrower or
prohibited by applicable law, governs all the Credit Facilities as
defined below.
1.2 Facility A (Line of Credit). The Bank has approved a credit facility
to the Borrower in the principal sum not to exceed $15,000,000.00 in
the aggregate at any one time outstanding ("Facility A"). Credit under
Facility A shall be repayable as set forth in a Line of Credit Note
executed concurrently with this agreement, and any renewals,
modifications, extensions, rearrangements, restatements thereof and
replacements or substitutions therefor. The proceeds of Facility A
shall be used for general working capital, for the Borrower's purchase
of a subsidized housing loan portfolio and to assist in financing the
Acquisition.
1.3 Facility B (Term Loan). The Bank agrees to extend credit to the
Borrower in the form of a three year term loan in the principal sum of
$6,000,000.00 ("Facility B"), bearing interest and payable as set
forth in the Term Promissory Note executed on or about the date of
this agreement, and with any and all renewals, modifications,
extensions, rearrangements, restatements thereof and replacements or
substitutions therefor. The proceeds of Facility B shall be used for
the purpose of financing the Acquisition.
2. Definitions. As used in this agreement, the following terms have the
following respective meanings:
2.1 "Acquisition" means the acquisition by the Borrower of the Target by
means of a merger of Citizens First Financial Corp., a Delaware
corporation registered with the OTS as a savings and loan holding
company under the federal Home Owners' Loan Act, as amended
("Citizens") with and into Citizens Acquisition LLC, a Delaware
limited liability company and a wholly owned Subsidiary of the
Borrower, as the surviving corporation, and the other Contemplated
Transactions as defined and set forth in, the Agreement and Plan of
Merger dated as of November 7, 2004 among the Borrower, Citizens First
Financial Corp. and Citizens Acquisition LLC (the "Merger Agreement").
2.2 "Affiliate" means, as to any Person, any other Person: (1) that
directly or indirectly, through one or more intermediaries, controls
or is controlled by, or is under common control with, such Person; (2)
that directly or indirectly beneficially owns or holds five percent
(5%) or more of any class of voting stock of such Person; or (3) five
percent (5%) or more of the voting stock of which is directly or
indirectly beneficially owned or held by the Person in question. The
term "control" means to possess, directly or indirectly, the power to
direct the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise. The Bank is
not under any circumstances to be deemed an Affiliate of Borrower or
any of its Subsidiaries.
2.3 "Authority Documents" means certificates of authority to transact
business, certificates of good standing, borrowing resolutions (with
secretary's certificate), secretary's certificates of incumbency, and
other documents which empower and enable the Parties or their
representatives to enter into the Related Documents or evidence such
authority.
2.4 "Business Day" means a day when the main office of the Bank is open
for the conduct of commercial lending business.
2.5 "Credit Facilities" means all extensions of credit from the Bank to
the Borrower, whether now existing or hereafter arising, including but
not limited to those described in Section 1 and those extended
contemporaneously with this agreement.
2.6 "Corporation" means corporations, partnerships, limited liability
companies, joint ventures, joint stock associations, associations,
banks, business trusts and other business entities.
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2.7 "GAAP" means generally accepted accounting principles in effect in the
United States of America, consistently applied.
2.8 "Governmental Authority" means any foreign governmental authority, the
United States of America, any state of the United States and any
political subdivision of any of the foregoing, and any agency,
department, commission, board, bureau, court or other tribunal having
jurisdiction over the Bank, the Borrower or any other Obligor, or any
Subsidiary of the Borrower, the Target or their respective properties.
Governmental Authority includes but is not limited to the Board of
Governors of the Federal Reserve System ("FRB"), the Federal Deposit
Insurance Corporation (the "FDIC"), the Illinois Department of
Financial and Professional Regulation, Division of Banks and Real
Estate (the "DBRE"), the Office of Thrift Supervision (the "OTS") and
the Securities and Exchange Commission (the "SEC").
2.9 "Indebtedness" means and includes (without duplication) (i) all items
arising from the borrowing of money, which according to GAAP, would be
included in determining total liabilities as shown on the balance
sheet; (ii) all indebtedness secured by any Lien on property owned by
the Borrower or the Subsidairies of the Borrower whether or not such
indebtedness shall have been assumed; (iii) all guarantees and similar
contingent liabilities in respect to indebtedness of others; and (iv)
all other interest-bearing obligations evidencing indebtedness to
others for borrowed money.
2.10 "Legal Requirement" means any law, ordinance, decree, requirement,
order, judgment, rule, regulation (or interpretation of any of the
foregoing) of, and the terms of any list, license or permit issued by,
any Governmental Authority.
2.11 "Liabilities" means all debts, obligations, indebtedness and
liabilities of every kind and character of the Borrower to the Bank,
its successors and assigns, now existing or later arising, whether
individual, joint and several, contingent or otherwise, including,
without limitation, all liabilities, interest, costs and fees, arising
under or from any note, open account, overdraft, credit card, lease,
Rate Management Transaction, letter of credit application,
endorsement, surety agreement, guaranty, acceptance, foreign exchange
contract or depository service contract, whether payable to the Bank
or to a third party and subsequently acquired by the Bank, any
monetary obligations (including interest) incurred or accrued during
the pendency of any bankruptcy, insolvency, receivership or other
similar proceedings, regardless of whether allowed or allowable in
such proceeding, and all renewals, extensions, modifications,
consolidations, rearrangements, restatements, replacements,
restatements or substitutions of any of the foregoing.
2.12 "Lien" means any mortgage, deed of trust, pledge, charge, encumbrance,
security interest, collateral assignment or other lien or restriction
of any kind, whether based on common law, constitutional provision,
statute or contract.
2.13 "Notes" means each and all promissory notes, instruments and/or other
agreements evidencing the terms and conditions of any of the Credit
Facilities.
2.14 "Obligor" means each Borrower and any guarantor, surety, co-signer,
general partner or other Person who may now or hereafter be obligated
to pay all or any part of the Liabilities.
2.15 "Organizational Documents" means, with respect to a corporation, the
certificate of incorporation or formation, articles of incorporation
and bylaws of such corporation; with respect to a limited liability
company, the articles of organization, regulations, operating
agreement and other documents establishing such entity, with respect
to a partnership, joint venture, or trust, the agreement, certificate
or instrument establishing such entity; in each case including all
modifications and supplements thereof as of the date of the Related
Document referring to such Organizational Document and any and all
future modifications thereof which are consented to by the Bank.
2.16 "Parties" means all Persons other than the Bank executing any Related
Document.
2.17 "Person" means any individual, Corporation, trust, unincorporated
organization, Governmental Authority or any other form of entity.
2.18 "Proper Form" means in form and substance satisfactory to the Bank.
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2.19 "Rate Management Transaction" means any transaction (including an
agreement with respect thereto) that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, forward transaction, currency
swap transaction, cross-currency rate swap transaction, currency
option, derivative transaction or any other similar transaction
(including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest rates,
foreign currencies, commodity prices, equity prices or other financial
measures.
2.20 "Related Documents" means this agreement, the Notes, all loan
agreements, credit agreements, reimbursement agreements, security
agreements, mortgages, deeds of trust, pledge agreements, assignments,
guaranties, and any other instrument or document executed in
connection with this agreement or in connection with any of the
Liabilities.
2.21 "Subordinated Debt" means any Indebtedness subordinated to
Indebtedness due the Bank pursuant to a written subordination
agreement in Proper Form by and among the Bank, subordinated creditor
and the Borrower which at a minimum must prohibit: (a) any action by
subordinated creditor which will result in an occurrence of an Event
of Default or default under this agreement, the subordination
agreement or the subordinated Indebtedness; and (b) upon the happening
of any Event of Default or default under any Related Documents, the
subordination agreement, or any instrument evidencing the subordinated
Indebtedness: (i) any payment of principal and interest on the
subordinated Indebtedness; (ii) any act to compel payment of principal
or interest on subordinated Indebtedness; and (iii) any action to
realize upon any collateral securing the subordinated Indebtedness.
2.22 "Subsidiary" means, as to a particular parent Corporation, any
Corporation of which 50% or more of the indicia of equity rights is at
the time directly or indirectly owned by such parent Corporation or by
one or more Persons controlled by, controlling or under common control
with such parent Corporation. For purposes of this agreement, the
Borrower's Subsidiaries include but are not limited to each of Main
Street Bank & Trust, FirsTech, Inc. and Citizens Acquisition LLC, and
upon completion of the Acquisition, the Borrower's Subsidiaries shall
also include the Target and each Subsidiary of the Target and Citizens
Acquisition LLC will be dissolved.
2.23 "Target" means each and both of Citizens and its wholly owned
Subsidiary, Citizens Savings Bank, an Illinois state savings bank.
3. Conditions Precedent.
3.1 Conditions Precedent to Initial Extension of Credit. Before the first
extension of credit governed by this agreement, whether by
disbursement of a loan, issuance of a letter of credit, or otherwise,
the Borrower shall deliver to the Bank in Proper Form:
A. Related Documents. The Notes, and as applicable, the letter of
credit applications, the security agreements, the pledge
agreements, financing statements, mortgages or deeds of trust,
the guaranties, the subordination agreements, and any other loan
documents which the Bank may reasonably require to give effect to
the transactions described in this agreement;
B. Organizational and Authority Documents. The Organizational and
Authority Documents of the Borrower and any other Party executing
the Related Documents.
3.2 Conditions Precedent to Each Extension of Credit. Before any extension
of credit governed by this agreement, whether by disbursement of a
loan, issuance of a letter of credit or otherwise, the following
conditions must be satisfied:
A. Representations. The representations of the Borrower and any
other Parties to the Related Documents are true on and as of the
date of the extension of credit;
B. No Event of Default. No default or Event of Default has occurred
under this agreement, the Notes or any other Related Documents
and is continuing or would result from the extension of credit,
and no event has occurred which would constitute the occurrence
of any Event of Default but for the lapse of time until the end
of any grace or cure period.
C. Additional Approvals, Opinions, and Documents. The Bank has
received any other approvals, opinions and documents as it may
reasonably request.
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3.3 Additional Conditions Precedent to Advance under Facility B. The
funding of the borrowing under Facility B shall occur simultaneously
with the completion of the Acquisition and the Effective Time, as
defined in the Merger Agreement.
3.4 Satisfaction of Conditions Precedent. The acceptance of the proceeds
and benefits of the proceeds of any Credit Facility shall constitute a
representation and warranty by the Parties that all of the conditions
specified in this Article 3 for that Credit Facility have been
satisfied as of that time.
4. Affirmative Covenants. The Borrower agrees to do, and will cause each of
its Subsidiaries to do, each of the following:
4.1 Financial information. Furnish to the Bank in Proper Form (i) as soon
as available but in any event not more than 90 days after the close of
each fiscal year of the Borrower, the Borrower's annual report and
audited financial statements with unqualified opinion, audited by an
independent certified public accountants satisfactory to the Bank and
prepared in accordance with generally accepted accounting principles,
consistently applied on consolidated and consolidating bases; (ii) as
soon as available, but in no event later than 45 days after the end of
each calendar quarter, a copy of all call reports filed with any
Governmental Authority for each of the Borrower's financial
institution Subsidiaries; (iii) as soon as available, but in no event
later than 45 days after the end of each calendar quarter (other than
the fourth quarter), a copy of the Borrower's quarterly FRY-9 report
as filed with the FRB; (iv) to the extent permitted by applicable
Legal Requirements, promptly after the same are available, copies of
each annual report or financial statement or other report or
communication sent by the Borrower to the shareholders of the
Borrower; each registration statement which the Borrower or any
Subsidairy may file with any Governmental Authority or with any
securities exchange; (v) promptly after a request is submitted to the
appropriate Governmental Authority, any request for waiver of funding
standards or extension of amortization periods with respect to any
employee benefit plan; (vi) copies of special audits, studies, reports
and analyses prepared for the management of the Borrower, any of its
Subsidiaries or any other Obligor by outside parties; and (vii) such
other information relating to the financial condition, prospects and
affairs of the Borrower, each other Obligor and their respective
Subsidiaries as the Bank may reasonably request from time to time.
Nothing in this agreement shall require the Borrower to provide any
information to the Bank which the Borrower, any other Obligor or any
of their respective Subsidiaries is prohibited by Legal Requirements
to disclose.
4.2 Existence. Maintain its existence and business operations as presently
in effect in accordance with all applicable Legal Requirements, pay
its debts and obligations when due under normal terms, and pay on or
before their due date, all taxes, assessments, fees and other
governmental monetary obligations, except as they may be contested in
good faith if they have been properly reflected on its books and, at
the Bank's request, adequate funds or security have been pledged to
insure payment.
4.3 Financial Records. Maintain proper books and records of account, in
accordance with generally accepted accounting principles, and
consistent with financial statements previously submitted to the Bank.
4.4 Inspection. Permit the Bank or its representatives, at such times and
at such intervals as the Bank may reasonably require: (1) to inspect,
examine, audit and copy its business records, and to discuss its
business, operations, prospects and financial condition with its
officers and accountants; and (2) to inspect its business operations
and sites. Nothing in this agreement shall give the Bank the right to
inspect or copy any records of any examination report of its
supervisory Governmental Authority or other information that the
Borrower or its Subsidiaries are prohibited by any Legal Requirement
from disclosing without the consent of the supervising Governmental
Authority; provided, however, the Borrower will and will cause each of
its Subsidiaries to, cooperate in obtaining any consent should the
Bank request the disclosure.
4.5 Notices of Claims, Litigation, Defaults, etc. Promptly inform the Bank
in writing of (1) all existing and threatened litigation, claims,
investigations, administrative proceedings and similar actions
affecting the Borrower or any Subsidiary of the Borrower which could
materially affect the business, property, affairs, prospects or
financial condition of Borrower or any of its Subsidiaries; (2) the
occurrence of any default or Event of Default and the circumstances
which give rise to the Bank's option to terminate the Credit
Facilities to the extent the disclosure does not violate any Legal
Requirement; (3) any additions to or changes in its locations or
businesses; and (4) any alleged breach of any provision of this
agreement or of any other Related Documents by the Bank.
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4.6 Title to Assets and Property. Maintain good and marketable title to
all of its assets and properties and defend its assets and properties
against all claims and demands of all Persons at any time claiming any
interest in them.
4.7 Additional Assurances. Promptly make, execute and deliver any and all
agreements, documents, instruments and other records that the Bank may
reasonably request to evidence any of the Credit Facilities, cure any
defect in the execution and delivery of any of the Related Documents,
perfect any Lien, comply with any Legal Requirement applicable to the
Bank or the Credit Facilities or more fully to describe particular
aspects of the agreements set forth or intended to be set forth in any
of the Related Documents.
4.8 Regulatory Capital. Borrower shall, and shall cause each of its
financial institution Subsidiaries to maintain at all times: (1) a
"Total Risk-Based Capital Ratio" (Total Capital to Total Risk-Based
Assets) in excess of ten percent (10%) at all times; (2) a "Tier I
Risk-Based Capital Ratio" (Tier I Capital to Total Risk-Based Assets)
in excess of six percent (6%); and (3) a "Leverage Ratio" (Tier I
Capital to Average Total Assets) in excess of five percent (5%). All
ratios set forth in this section shall be measured quarterly and shall
be derived from the applicable quarterly financial statements filed
with the appropriate Governmental Authority. For purposes of this
Agreement, Tier I Capital and Total Risk-Based Capital shall be
determined in accordance with the rules and regulations of the
appropriate Governmental Authority, as amended from time to time. For
purposes of this agreement, Total Risk-Based Assets shall refer to the
average total assets as set forth in the relevant report for the
applicable quarterly period.
5. Negative Covenants. Without the prior written consent of the Bank, the
Borrower will not and no Subsidiary of the Borrower will:
5.1 Liens. Create, assume, incur, suffer or permit to exist any Lien of
any kind or character upon or with respect to any of its assets or
properties, whether owned at the date hereof or hereafter acquired, or
assign or otherwise convey any right to receive income, other than (i)
in the ordinary course of its business and in accordance with
applicable laws and regulations and safe and sound banking practices;
and (ii) such Liens that would not in any one case or in the aggregate
materially adversely affect the Borrower and its Subsidiaries taken as
a whole.
5.2 Disposal of Interests in the Subsidiaries. Dispose of any stock or
other interest in the equity of any of its Subsidiaries, now owned or
hereafter acquired, by sale, assignment, lease or otherwise.
5.3 Merger or Consolidations. Without the Bank's written consent: (1)
dissolve; (2) merge or consolidate with any Person other than in
connection with the Acquisition; (3) lease, sell or otherwise convey a
material part of its assets or business outside the ordinary course of
its business; (4) lease, purchase, or otherwise acquire a material
part of the assets of any other Person, except in the ordinary course
of its business; or (5) agree to do any of the foregoing; provided,
however, that notwithstanding the foregoing, any Subsidiary may merge
or consolidate with any other Subsidiary, or with the Borrower, so
long as the Borrower is the survivor; and provided further that
Citizens Acquisition LLC shall be dissolved promptly following the
consummation of the Acquisition.
5.4 Use of Proceeds. Use, or permit any proceeds of the Credit Facilities
to be used, directly or indirectly, for the purpose of "purchasing or
carrying any margin stock" within the meaning of Federal Reserve Board
Regulation U ("Regulation U"). At the Bank's request, the Borrower
will furnish a completed Federal Reserve Board Form U-1.
5.5 Negative Pledge of Assets. Enter into any agreement with any Person
other than the Bank which prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create or permit to exist any
Lien on any of its property, assets or revenues, whether now owned or
hereafter acquired.
5.6 Affiliate Transactions. Enter into any transaction or agreement with
any Affiliate except upon terms substantially similar to those
obtainable from wholly unrelated sources.
5.7 Subsidiaries. Form, create or acquire any Subsidiary that is not
wholly owned by the Borrower.
5.8 Continuity of Operations. (1) Engage in any business activities
substantially different from those in which it is presently engaged;
or (2) cease operations, liquidate, change its name, dissolve, or sell
any assets out of the ordinary course of business; provided however,
that Citizens Acquisition LLC shall be dissolved promptly following
the consummation of the Acquisition.
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5.9 Conflicting Agreements. Enter into any agreement containing any
provision which would be violated or breached by the performance of
the Borrower's obligations under this agreement or any of the other
Related Documents.
5.10 Indebtedness. Create, assume, incur, have outstanding, or in any
manner become liable in respect of any Indebtedness, other than (1)
Indebtedness incurred in the ordinary course of business and in
accordance with applicable Legal Requriements and safe and sound
banking practices; (2) Indebtedness reflected in the financial
statements dated December 31, 2004; (3) additional Indebtedness
contracted for after the date hereof that does not exceed the amounts
reflected in those financial statements; and (4) upon the approval of
the Bank, such approval not to be unreasonably withheld, Subordinated
Debt.
5.11 Government Regulation. (1) Be or become subject at any time to any
Legal Requirement (including, without limitation, the U.S. Office of
Foreign Asset Control list) that prohibits or limits the Bank from
making any advance or extension of credit to the Borrower or from
otherwise conducting business with the Borrower; or (2) fail to
provide documentary and other evidence of the Borrower's identity as
may be requested by the Bank at any time to enable the Bank to verify
the Borrower's identity or to comply with any Legal Requirement,
including, without limitation, Section 326 of the USA Patriot Act of
2001, 31 U.S.C. Section 5318.
6. Representations, Warranties and Covenants by the Borrower. To induce the
Bank to enter into this agreement and to extend credit or other financial
accommodations under the Credit Facilities, the Borrower represents and
warrants as of the date of this agreement and as of the date of each
request for credit under the Credit Facilities that each of the following
statements is and shall remain true and correct throughout the term of this
agreement and until all Credit Facilities and all amounts owing under the
Notes and other Related Documents are paid in full:
6.1 Organization and Status. (1) The Borrower is an Illinois corporation
registered as a federal bank holding company under the laws of the
United States which has elected with the FRB to become a financial
services holding company, and the Borrower and each of its
Subsidiaries are each duly organized, validly existing and in good
standing under the laws of its organization and is duly qualified to
do business and is in good standing under the laws of each states in
which the ownership of its properties and the nature and extent of the
activities transacted by it makes such qualification necessary. (2)
The Borrower has no Subsidiary other than those listed on Annex I and
each Subsidiary is or will be upon the completion of the Acquisition,
owned by the Borrower or another of its Subsidiaries in the percentage
set forth on Annex I.
6.2 Financial Statements. All financial statements delivered to the Bank
are complete and correct and fairly present, in accordance with
generally accepted accounting principles, consistently applied, the
financial condition and the results of operations of the Borrower,
each Subsidiary of the Borrower and to the knowledge of the Borrower
after conducting appropriate due diligence with respect thereto, the
Target, as at the dates and for the periods indicated. No material
adverse change has occurred in the assets, liabilities, financial
condition, business or affairs of the Borrower or any of its
Subsidiaries since the dates of such financial statements dated
December 31, 2004. To the knowledge of the Borrower after conducting
appropriate due diligence with respect thereto, no material adverse
change has occurred in the assets, liabilities, financial condition,
business or affairs of the Target since the date of the financial
statements provided to the Bank with respect to the Target. Neither
the Borrower nor any of its Subsidiaries is subject to any instrument
or agreement materially and adversely affecting its financial
condition, business or affairs. The Target is not subject to any
instrument or agreement materially and adversely affecting its
financial condition, business or affairs.
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6.3 Enforceability. This agreement, the Notes, and the other Related
Documents have been duly authorized, executed and delivered by the
Parties thereto and are valid and binding agreements of such Parties,
enforceable according to their terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally and subject to general
principles of equity. The execution, delivery and performance of this
agreement, the Notes and the other Related Documents and the
obligations that they impose, do not violate any Legal Requirement,
conflict with any agreement by which any Party is bound, or require
the consent or approval of any Governmental Authority or other third
party which has not been promptly obtained in connection with the
execution and delivery of this agreement and the other Related
Documents, except where such violation or conflict, or the failure to
obtain such consent or approval, would not materially adversely affect
the Borrower and its Subsidiaries taken as a whole, the ability of any
Party to perform its obligations under the Related Documents or the
ability of the Bank to enforce its rights and remedies under this
agreement and the other Related Documents.
6.4 Litigation. There is no litigation, claim, investigation,
administrative proceeding or similar action (including those for
unpaid taxes) against the Borrower, any of its Subsidiaries or any
other Obligor pending or threatened, and no other event has occurred
which may in any one case or in the aggregate materially adversely
affect the Borrower, any of its Subsidiaries, any other Obligor or any
of their respective financial condition and properties, other than
litigation, claims, or other events, if any, that have been disclosed
to and acknowledged by the Bank in writing.
6.5 Title and Rights. The Borrower and each of its Subsidiaries have good
and marketable title to its properties, free and clear of any Lien
except for Liens disclosed to the Bank prior to March 31, 2005, those
permitted by this agreement and the other Related Documents. The
Borrower and each of its Subsidiaries possess all permits, licenses,
patents, trademarks and copyrights required to conduct their
respective business.
6.6 Regulation U; Business Purpose. None of the proceeds of any of the
Credit Facilities will be used to purchase or carry, directly or
indirectly, any margin stock or for any other purpose which would make
this credit a "purpose credit" within the meaning of Regulation U or
not an exempt transaction under Regulation U. All Credit Facilities
will be used for business purposes and for the express purposes that
the Borrower has informed the Bank that it will use the credit. None
of the stock of the Borrower's Subsidiaries is margin stock as defined
in Regulation U.
6.7 Capital Stock of the Borrower's Subsidiaries. (1) All of the issued
and outstanding capital stock of each of the Borrower's Subsidiaries
other than the Target (the "Borrower's Current Subsidiaries' Shares")
has been duly authorized, legally and validly issued, fully paid and
nonassessable, and the Borrower's Current Subsidiaries' Shares are
owned by the Borrower, free and clear of all Liens, except as may
exist for the benefit of the Bank; (2) to the knowledge of the
Borrower after conducting appropriate due diligence with respect
thereto, all of the issued and outstanding capital stock of the Target
(the "Target's Shares") has been duly authorized, legally and validly
issued, fully paid and nonassessable, and upon completion of the
Acquisition, the Target's Shares will be owned by the Borrower, free
and clear of all Liens, except as may exist for the benefit of the
Bank; (3) none of the Borrower's Current Subsidiaries' Shares have
been issued in violation of any shareholder's preemptive rights; (4)
to the knowledge of the Borrower after conducting appropriate due
diligence with respect thereto, none of the Target's Shares have been
issued in violation of any shareholder's preemptive rights; (5) there
are, as of the date hereof, no outstanding options, rights, warrants,
plans, understandings or other agreements or instruments obligating
the Borrower to issue, deliver or sell, or cause to be issued,
delivered or sold, or contemplating or providing for the issuance of,
additional shares of the capital stock of the Borrower's Subsidiaries
other than the Target, or obligating the Borrower or the Borrower's
Subsidiaries to grant, extend or enter into any such agreement or
commitment; and (6) to the knowledge of the Borrower after conducting
appropriate due diligence with respect thereto, there are, as of the
date hereof, no outstanding options, rights, warrants, plans,
understandings or other agreements or instruments obligating the
Borrower to issue, deliver or sell, or cause to be issued, delivered
or sold, or contemplating or providing for the issuance of, additional
shares of the capital stock of the Target, or obligating the Borrower
or the Borrower's Subsidiaries to grant, extend or enter into any such
agreement or commitment.
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6.8 Regulatory Enforcement Actions. None of the Borrower, or any of its
Subsidiaries, or any of their respective officers or directors, is now
operating under or will operate under any effective written
restrictions agreed to by the Borrower or by any of its Subsidiaries,
or agreements, memoranda, or written commitments by the Borrower or by
any of its Subsidiaries (other than restrictions of general
application) imposed or required by any Governmental Authority nor are
any such restrictions threatened or agreements, memoranda or
commitments being sought by any Governmental Authority.
6.9 No Liens. The Borrower is not a party to any agreement, instrument of
undertaking or subject to any other restriction pursuant to which the
Borrower has placed, or will be required to place (or under which any
other Person may place), a Lien upon any of its properties securing
Indebtedness, either upon demand or upon the happening of a condition,
with or without any demand.
6.10 Compliance. The Borrower and each of its Subsidiaries has filed all
applicable tax returns and paid all taxes shown thereon to be due,
except those for which extensions have been obtained and those which
are being contested in good faith and for which adequate reserves have
been established. The Borrower and each of its Subsidiaries is in
compliance with all applicable material Legal Requirements and manages
and operates (and will continue to manage and operate) its business in
accordance with good industry practices. Neither the Borrower nor any
of its Subsidiaries is in default in the payment of any other
Indebtedness or under any agreement to which it is a party. The
Parties have obtained all consents of and registered with all
Governmental Authorities and other Persons required to execute,
deliver and perform the Related Documents and complete the
Acquisition.
6.11 No Claims Against the Bank. There are no defenses or counterclaims,
offsets or adverse claims, demands or actions of any kind, personal or
otherwise, that the Borrower or any other Obligor could assert with
respect to this agreement or the Credit Facilities.
6.12 Continuing Representations. Each request for an advance or conversion
or continuation of an advance under any of the Credit Facilities shall
constitute a representation and warranty by the Borrower that all of
the representations and warranties set forth in this agreement shall
be true and correct on and as of such date with the same effect as
though such representations and warranties had been made on such date,
except to the extent that such representations and warranties are
stated to expressly relate solely to an earlier date.
7. Default/Remedies/Cure Periods.
7.1 Events of Default. Each of the following is an "Event of Default":
A. The Borrower or any other Obligor fails to pay when due any
amount payable (1) under the Notes or under any other
Liabilities; or (2) under any agreement or instrument evidencing
Indebtedness to any creditor other than the Bank.
B. The Borrower, any of its Subsidiaries or any other Obligor (1)
fails to observe or perform or otherwise violates any other term,
covenant, condition or agreement of any of the Notes or other
Related Documents; (2) makes any materially incorrect or
misleading representation, warranty, or certificate to the Bank;
(3) makes any materially incorrect or misleading representation
in any financial statement or other information delivered to the
Bank; or (4) defaults under the terms of any agreement or
instrument relating to any Indebtedness (other than the
Indebtedness evidenced by the Notes) and the effect of such
default will allow the creditor to declare the Indebtedness due
before its maturity.
C. In the event (1) there is a default under the terms of any
Related Document that is not cured within any cure period
specified therein; or (2) the Borrower fails to comply with, or
pay, or perform under any agreement, now or hereafter in effect,
between the Borrower and JPMorgan Chase & Co., or any of its
Subsidiaries or Affiliates or their successors and assigns and
the failure to comply with, pay or perform is not cured within
any cure period specified in such agreement.
D. The Borrower, any of its Subsidiaries or any other Obligor
becomes insolvent or unable to pay its debts as they become due.
8
E. The Borrower, any of its Subsidiaries or any other Obligor (1)
makes an assignment for the benefit of creditors; (2) consents to
the appointment of a custodian, receiver, or trustee for itself
or for a substantial part of its assets; or (3) commences any
proceeding under any bankruptcy, reorganization, liquidation,
insolvency or similar laws of any jurisdiction.
F. A custodian, receiver, conservator or trustee is appointed for
the Borrower, any Subsidairy of the Borrower or any other Obligor
or for a substantial part of its assets.
G. Proceedings are commenced against the Borrower, any Subsidiary of
the Borrower or any other Obligor under any bankruptcy,
reorganization, liquidation, or similar laws of any jurisdiction,
and they remain undismissed for thirty (30) days after
commencement; or the Borrower any Subsiary of the Borrower or any
other Obligor consents to the commencement of those proceedings.
H. If the any of the Borrower's assets are attached, seized,
subjected to a writ, or are levied upon or become subject to any
Lien (with the exception of statutory Liens) or come within the
possession of any receiver, trustee, custodian or assignee for
the benefit of creditors; or if a notice of Lien, levy or
assessment is filed of record or given to the Borrower or any
Subsidiary of the Borrower with respect to all or any of their
respective assets by any Governmental Authority.
I. The FRB, the FDIC, the DBRE, the OTS, the SEC or any other
Governmental Authority charged with the regulation of bank
holding companies or financial institutions issues to the
Borrower or any of its Subsidiaries, or initiates through formal
proceedings any action, suit or proceeding to obtain against,
impose on or require from the Borrower or any of its Subsidiaries
a cease and desist order or similar regulatory order, injunction,
temporary restraining order, the assessment of civil monetary
penalties, articles of agreement, a memorandum of understanding,
a capital directive, a capital restoration plan, restrictions
(other than board resolutions adopted at the direction of a
Governmental Authority) that prevent or as a practical matter
impair the payment of dividends by any of its Subsidiaries, the
payments of any Indebtedness by the Borrower or the conduct of
any or all of the business affairs of the Borrower or any of its
Subsidiaries, restrictions (other than board resolutions adopted
at the direction of a Governmental Authority) that make the
payment of the dividends by any of its Subsidiaries, the payment
of Indebtedness by the Borrower or the conduct of any or all of
the business affairs of the Borrower or any of its Subsidiaries
subject to prior regulatory approval, a notice or finding under
subsection 8(a) of the Federal Deposit Insurance Act, as amended,
or any similar enforcement action, measure or proceeding.
J. If the Borrower or any of its Subsidiaries continues to be in
default in any payment of principal or interest for any other
indebtedness for borrowed money or in default in the performance
of any other term, condition or covenant contained in any
agreement (including, but not limited to, an agreement in
connection with the acquisition of capital equipment on a title
retention or net lease basis), under which any such indebtedness
is created the effect of which default in performance is to cause
or permit the holder of the indebtedness to cause the
indebtedness to become due prior to its stated maturity.
K. A change of control of the Borrower shall occur or the Borrower
shall have the option, exercisable on at least one Business Day's
prior notice, upon the consummation, in whole or in part, of any
transaction effecting any change of control of the Borrower that,
in either case, has been approved as such, or is required to be
approved by any Governmental Agency.
7.2 Remedies. At any time after the occurrence of an Event of Default, the
Bank may do one or more of the following: (1) cease permitting the
Borrower to incur any Liabilities; (2) terminate any commitment of the
Bank evidenced by any of the Notes; (3) declare any of the Notes to be
immediately due and payable, without notice of acceleration, intention
to accelerate, presentment and demand or protest or notice of any
kind, all of which are hereby expressly waived; (4) exercise all
rights of setoff that the Bank may have contractually, by law, in
equity or otherwise; and (5) exercise any and all other rights
pursuant to any of the Related Documents, at law, in equity or
otherwise. The rights of the Bank under this agreement and the other
Related Documents are in addition to other rights (including without
limitation, other rights of setoff) the Bank may have contractually,
by law, in equity or otherwise, all of which are cumulative and hereby
retained by the Bank. Each Obligor agrees to stand still with regard
to the Bank's enforcement of its rights.
9
7.3 Cure Periods. Notwithstanding anything to the contrary contained in
the Notes or any of the Related Documents, the Bank will not exercise
its option to accelerate the maturity of the Notes upon the occurrence
of an Event of Default under Section 7.1(A)(1) or Section 7.1(B)(1)
unless (a) the Bank has notified the Borrower of such condition, event
of occurrence in writing (a "Default Notice"); and (b) such condition,
event or occurrence has not been fully cured within five (5) days, in
the case of Section 7.1(A), and thirty (30) days in the case of
Section 7.1(B)(1) following the Borrower's receipt of a Default
Notice; provided, however, that the Bank shall have no obligation to
make any advance under this agreement or any of the Related Documents
after the occurrence of an Event of Default or during any cure period.
8. Miscellaneous.
8.1 Notice. Any notices and demands under or related to this document
shall be in writing and delivered to the intended party at its address
stated herein, and if to the Bank, at its main office if no other
address of the Bank is specified herein, by one of the following
means: (1) by hand, (2) by a nationally recognized overnight courier
service, or (3) by certified mail, postage prepaid, with return
receipt requested. Notice shall be deemed given: (1) upon receipt if
delivered by hand, (2) on the Delivery Day after the day of deposit
with a nationally recognized courier service, or (3) on the third
Delivery Day after the notice is deposited in the mail. "Delivery Day"
means a day other than a Saturday, a Sunday or any other day on which
national banking associations are authorized to be closed. Any party
may change its address for purposes of the receipt of notices and
demands by giving notice of such change in the manner provided in this
provision.
8.2 No Waiver. No delay on the part of the Bank in the exercise of any
right or remedy waives that right or remedy. No single or partial
exercise by the Bank of any right or remedy precludes any other future
exercise of it or the exercise of any other right or remedy. No waiver
or indulgence by the Bank of any default is effective unless it is in
writing and signed by the Bank, nor shall a waiver on one occasion bar
or waive that right on any future occasion.
8.3 Integration. This agreement, the Notes, and any agreement related to
the Credit Facilities embody the entire agreement and understanding of
the Borrower and the Bank and supersede all prior agreements and
understandings relating to their subject matter. If any one or more of
the obligations of the Borrower under this agreement or the Notes is
invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining obligations of the
Borrower shall not in any way be affected or impaired, and the
invalidity, illegality or unenforceability in one jurisdiction shall
not affect the validity, legality or enforceability of the obligations
of the Borrower under this agreement or the Notes in any other
jurisdiction.
8.4 Joint and Several Liability. Each party executing this agreement as
the Borrower is individually, jointly and severally liable under this
agreement.
8.5 Choice of Law. THIS AGREEMENT SHALL BE DEEMED TO BE EXECUTED AND HAS
BEEN DELIVERED AND ACCEPTED IN CHICAGO, ILLINOIS BY SIGNING AND
DELIVERING IT THERE. ANY DISPUTE BETWEEN THE PARTIES HERETO ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS AND NOT THE CONFLICTS OF
LAW PROVISIONS OF THE STATE OF ILLINOIS.
8.6 Consent to Jurisdiction. THE BANK AND THE BORROWER AGREE THAT ALL
DISPUTES BETWEEN THEM ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE OTHER RELATED DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY
BY STATE OR FEDERAL COURTS LOCATED IN XXXX COUNTY, ILLINOIS, BUT THE
BANK AND THE BORROWER ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF XXXX COUNTY,
ILLINOIS. THE BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
10
8.7 Service of Process. THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND IRREVOCABLY APPOINTS: BARACK XXXXXXXXXX
XXXXXXXXXX XXXXXXX & XXXXXXXXX LLP, 000 XXXX XXXXXX XXXXX, XXXXX 0000,
XXXXXXX, XXXXXXXX 00000, ATTENTION: XXXX X. XXXXXXXXX, THE BORROWER'S
AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS WITHIN THE STATE
OF ILLINOIS. THE BANK AGREES TO PROMPTLY FORWARD BY REGISTERED MAIL
(NO RETURN RECEIPT REQUIRED) A COPY OF ANY PROCESS SO SERVED UPON SAID
AGENT TO THE BORROWER AT ITS ADDRESS SET FORTH IN IN THIS AGREEMENT.
THE BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS AS AFORESAID. THE
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
THE COURTS REFERRED TO IN SUBSECTION 8.6 HEREOF IN ANY SUCH ACTION OR
PROCEEDING BY MAILING COPIES OF SUCH SERVICE BY REGISTERED MAIL,
POSTAGE PREPAID TO IT AT SAID ADDRESS. NOTHING IN THIS AGREEMENT SHALL
AFFECT THE RIGHT OF THE BANK TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED
8.8 Captions. Section headings and titles are for convenience of reference
only and do not affect the interpretation of this agreement.
8.9 Creditors Proceedings. In any action or proceeding involving any state
corporate law, or any state, federal or foreign bankruptcy,
insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Borrower under this
agreement would otherwise be held or determined to be avoidable,
invalid or unenforceable on account of the amount of the Borrower's
liability under this agreement, then, notwithstanding any other
provision of this agreement to the contrary, the amount of such
liability shall, without any further action by the Borrower or the
Bank, be automatically limited and reduced to the highest amount that
is valid and enforceable as determined in such action or proceeding.
8.10 Survival of Representations and Warranties. The Borrower understands
and agrees that in extending the Credit Facilities, the Bank is
relying on all representations, warranties, and covenants made by the
Borrower and the other Parties in this agreement, any other Related
Documents or in any certificate or other instrument delivered by the
Parties. The Borrower further agrees that regardless of any
investigation made by the Bank, all such representations, warranties
and covenants will survive the making of the Credit Facilities and
delivery to the Bank of this agreement, shall be continuing in nature,
and shall remain in full force and effect until such time as the the
Liabilities to the Bank shall be paid in full.
8.11 Non-Liability of the Bank. The relationship of the Borrower and the
Bank created by this agreement is strictly a debtor and creditor
relationship and not fiduciary in nature, nor is the relationship to
be construed as creating any partnership or joint venture between the
Bank and the Borrower. The Borrower is exercising the Borrower's own
judgement with respect to the Borrower's business. All information
supplied to the Bank is for the Bank's protection only and no other
party is entitled to rely on such information. There is no duty for
Bank to review, inspect, supervise or inform the Borrower of any
matter with respect to the Borrower's business. The Bank and the
Borrower intent that the Bank may reasonably rely on all information
supplied by the Borrower or any other Parties to to the Bank, together
with all representations and warranties given by the Borrower and the
other Parties to the Bank, without investigation or confirmation by
the Bank and that any investigation or failure to investigate will not
diminish the Bank's right to so rely.
8.12 Indemnification of the Bank. The Borrower agrees to indemnify, defend
and hold the Bank, its parent companies, subsidiaries, affiliates,
their respective successors and assigns and each of their respective
shareholders, directors, officers, employees and agents (collectively,
the "Indemnified Persons") harmless from any and against any and all
loss, liability, obligation, damage, penalty, judgment, claim,
deficiency, expense, interest, penalties, attorneys' fees (including
the fees and expenses of attorneys engaged by the Indemnified Person
at the Indemnified Person's reasonable discretion) and amounts paid in
settlement ("Claims") to which any Indemnified Person may become
subject arising out of or relating to this agreement or the
Collateral, except to the limited extent that the Claims are
proximately caused by the Indemnified Person's gross negligence or
willful misconduct. The indemnification provided for in this paragraph
shall survive the termination of this agreement and shall not be
affected by the presence, absence or amount of or the payment or
nonpayment of any claim under, any insurance.
8.13 Counterparts. This agreement may be executed in multiple counterparts,
each of which, when so executed, shall be deemed an original, but all
such counterparts, taken together, shall constitute one and the same
agreement.
8.14 Sole Discretion of the Bank. Whenever the Bank's consent or approval
is required under this agreement, the decision as to whether or not to
consent or approve shall be in the sole and exclusive discretion of
the Bank and the Bank's decision shall be final and conclusive.
11
8.15 Recovery of Additional Costs. If the imposition of or any change in
any law, rule, regulation, or guideline, or the interpretation or
application of any thereof by any court or administrative or
governmental authority (including any request or policy not having the
force of law) shall impose, modify, or make applicable any taxes
(except federal, state, or local income or franchise taxes imposed on
the Bank), reserve requirements, capital adequacy requirements, or
other obligations which would (1) increase the cost to the Bank for
extending or maintaining the Credit Facilities; (2) reduce the amounts
payable to the Bank under the Credit Facilities; or (3) reduce the
rate of return on the Bank's capital as a consequence of the Bank's
obligations with respect to the Credit Facilities, then the Borrower
agrees to pay the Bank such additional amounts as will compensate the
Bank therefor, within five (5) days after the Bank's written demand
for such payment. The Bank's demand shall be accompanied by an
explanation of such imposition or charge and a calculation in
reasonable detail of the additional amounts payable by the the which
explanation and calculations shall be conclusive in the absence of
manifest error.
8.16 Conflicting Terms. If this agreement is inconsistent with any
provision in any Related Documents, the Bank shall determine, in the
Bank's sole and absolute discretion, which of the provisions shall
control any such inconsistency.
8.17 Expenses. The Borrower agrees to pay on demand all reasonable
out-of-pocket expenses of the Bank (including, without limitation, the
fees and expenses of counsel for Bank and court fees) in connection
with the making, servicing and collection of the Liabilities under the
Credit Facilities. The obligations of the Borrower under this section
shall survive the termination of this agreement.
8.18 Reinstatement. The Borrower agrees that to the extent any payment or
transfer is received by the Bank in connection with the Liabilities,
and all or any part of the payment or transfer is subsequently
invalidated, declared to be fraudulent or preferential, set aside or
required to be repaid or transferred by the Bank or paid or
transferred over to a trustee, receiver or any other entity, whether
under any proceeding or otherwise (any of those payments or transfers
is hereinafter referred to as a "Preferential Payment"), then this
agreement and the Credit Facilities shall continue to be effective or
shall be reinstated, as the case may be, even if all those Liabilities
have been paid in full and whether or not the Bank is in possession of
the Notes and whether any of the Notes has been marked, paid, released
or cancelled, or returned to the Borrower and, to the extent of the
payment, repayment or other transfer by the Bank, the Liabilities or
part intended to be satisfied by the Preferential Payment shall be
revived and continued in full force and effect as if the Preferential
Payment had not been made. The obligations of the Borrower under this
section shall survive the termination of this agreement.
8.19 Severability. If any provision of this agreement cannot be enforced,
the remaining portions of this agreement shall continue in effect.
8.20 Assignments. The Borrower agrees that the Bank may provide any
information or knowledge the Bank may have about the Borrower or about
any matter relating to the Notes or the Related Documents to JPMorgan
Chase & Co., or any of its subsidiaries or affiliates or their
successors, or to any one or more purchasers or potential purchasers
of the Notes or the Related Documents. The Borrower agrees that the
Bank may at any time sell, assign or transfer one or more interests or
participations in all or any part of its rights and obligations in the
Notes to one or more purchasers whether or not related to the Bank.
8.21 Waivers. All Obligors jointly and severally waive notice, demand,
presentment for payment, notice of nonpayment, notice of acceleration,
protest, notice of protest, and the filing of suit and diligence in
collecting the Notes and all other demands and notices, and consents
and agrees that the Obligor's liabilities and obligations shall not be
released or discharged by any or all of the following, whether with or
without notice to the Obligor or any other Obligor, and whether before
or after the maturity of the Notes: (1) extensions of the time of
payment; (2) renewals; (3) acceptances of partial payments; and (4)
releases or substitutions of any Collateral or any Obligor. The Bank
may waive or delay enforcing any of its rights without losing them.
Each Obligor agrees that acceptance of any partial payment shall not
constitute a waiver and that waiver of any default shall not
constitute waiver of any prior or subsequent default. Any waiver
affects only the specific terms and time period stated in the waiver.
No modification or waiver of this Agreement is effective unless it is
in writing and signed by the party against whom it is being enforced.
Nothing herein is intended to waive or vary the duties of the Bank or
the rights of the Borrower in violation of any provision of the
Uniform Commercial Code as adopted in the State of Illinois, as
amended from time to time, that would prohibit the waiver or variation
of those duties and rights by agreement of the parties.
12
9. USA PATRIOT ACT NOTIFICATION. The following notification is provided to the
Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.
Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help
the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person or entity that
opens an account, including any deposit account, treasury management
account, loan, other extension of credit, or other financial services
product. What this means for the Borrower: When the Borrower opens an
account, if the Borrower is an individual Bank will ask for the Borrower's
name, taxpayer identification number, residential address, date of birth,
and other information that will allow Bank to identify the Borrower, and if
the Borrower is not an individual Bank will ask for the Borrower's name,
taxpayer identification number, business address, and other information
that will allow Bank to identify the Borrower. Bank may also ask, if the
Borrower is an individual to see the Borrower's driver's license or other
identifying documents, and if the Borrower is not an individual to see the
Borrower's legal organizational documents or other identifying documents.
10. WAIVER OF SPECIAL DAMAGES. THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER
FROM THE BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
11. JURY WAIVER. THE BORROWER AND THE BANK HEREBY VOLUNTARILY, KNOWINGLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE
IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE)
BETWEEN THE BORROWER AND THE BANK ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT AND THE RELATED DOCUMENTS. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO PROVIDE THE FINANCING DESCRIBED HEREIN.
Borrower: MAIN STREET TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
By:
Name:
Title:
Address for Notices:
000 Xxxx Xxxxxxxxxx, X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Bank: JPMORGAN CHASE BANK, N. A.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: 1st Vice President
Address for Notices:
000 X Xx Xxxxx Xx, 0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attn.: Xxxxxxx X. Xxxx
13
ANNEX I - SUBSIDIARIES
Subsidiary Name State Where
and Address Organized % Owned
-----------------------------------------------------------------------------
Main Street Bank & Trust Illinois 100% owned by the Borrower
FirsTech, Inc. Illinois 100% owned by the Borrower
Citizens Acquisition LLC Delaware 100% owned by the Borrower
Citizens Savings Bank Illinois 100% owned by Citizens
Acquisition LLC
CSL Service Corporation Illinois 100% owned by Citizens
Savings Bank
14
