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EXHIBIT 10.1
DRAFT
12/5/96
LOAN AGREEMENT
Dated as of December ___, 1996
among
XXXXXX CAPITAL GROUP, INC.
as Borrower,
and
LASALLE NATIONAL BANK
as Bank
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached but
is inserted for convenience only.
1. DEFINITIONS AND TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Certain UCC and Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. LOANS: BANK'S COMMITMENTS AND BORROWING PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.1 Revolving Credit Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.2 Term Loan Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3 Borrowing Procedures under the Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.4 All Loans to Constitute One Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.5 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3. LOANS: NOTES EVIDENCING LOANS; SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.1 Revolving Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.2 Term Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.3 Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.4 Security Interest in Stock of Xxxx Xxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4. LOANS: AMOUNTS; INTEREST; BALANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.1 Applicable Borrowing Amounts; Interest Rates; Default Rate . . . . . . . . . . . . . . . . . . . . . 16
4.2 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.3 Conversion and Reborrowing of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.4 Change of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.5 Unavailability of Deposits or Inability to Ascertain the LIBOR Rate or Adjusted LIBOR Rate . . . . . 19
4.6 Yield Protection, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.7 Funding Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4.8 Discretion of Bank as to Manner of Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.9 Interest Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5. LOANS: GENERAL TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.1 Payments to Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.2 Application of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.3 Conditions Precedent Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.4 Offset. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.5 Credit Termination Date; Continuance of Obligations, Etc. . . . . . . . . . . . . . . . . . . . . . . 23
5.6 Loan Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.7 Over-Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
5.8 Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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6. LOANS: CONDITIONS TO LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.1 Initial Loan Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
7. REPRESENTATIONS AND WARRANTIES; COVENANTS; INDEMNIFICATION; CONTINUING OBLIGATION . . . . . . . . . . . . . . . . 26
7.1 Representations and Warranties of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.2 Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.3 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.2 Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.3 Acceleration and Termination of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.4 Rights of Creditor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.5 Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.1 Payment Application Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.2 Statement of Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.3 Manner of Application; Waiver of Setoff Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . 42
9.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.5 Integration; Amendment; Assignment; Participation . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.6 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.9 Conflict with Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.10 No Impairment by Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.11 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.12 Costs, Fees and Expenses Related to Agreement and Other
Agreements . . . . . . . . . . . . . . 45
9.13 Environmental Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.14 Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.15 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.16 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.17 FORUM; BANK; VENUE; JURY TRIAL WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.18 Other Costs, Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.19 Revival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.20 Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.21 Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.22 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.23 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
9.24 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of the ___ day of
December, 1996, by and between XXXXXX CAPITAL GROUP, INC., a Delaware
corporation ("Borrower"), and LASALLE NATIONAL BANK, a national banking
association ("Bank").
W I T N E S E T H:
WHEREAS, Borrower desires to borrow funds and obtain other financial
accommodations from Bank; and
WHEREAS, pursuant to Borrower's request, Bank is willing to lend
monies to Borrower pursuant hereto;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements set forth herein, Borrower agrees to borrow from Bank, and Bank
agrees to lend to Borrower, subject to and upon the following terms and
conditions:
1. DEFINITIONS AND TERMS
1.1 Certain Definitions. The following words, terms and/or
phrases shall have the meanings set forth thereafter and such meanings shall be
applicable to the singular and plural form thereof, giving effect to the
numerical difference.
"Adjusted LIBOR Rate" shall mean a rate per annum determined
pursuant to the following formula:
Adjusted LIBOR Rate = LIBOR
-----------------------------------------------
100% - Reserve Percentage
"Affiliate" means any Person (a) that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or
is under common control with Borrower or one or more Subsidiaries, (b)
that directly or beneficially owns or holds 10% or more of any equity
interest in Borrower or one or more Subsidiaries or (c) 10% or more of
whose voting stock (or in the case of a Person which is not a
corporation, 10% or more of any equity interest) is owned directly or
beneficially or held by Borrower or one or more Subsidiaries. For
purposes of this definition and this Agreement, the term "control"
shall mean, the power to direct or cause the direction, directly or
indirectly, of the management or policies of a Person, whether through
ownership interest or otherwise, including without limitation the
power to elect or appoint, directly or indirectly, a majority of the
members of its governing board or body.
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"Allowance for Loan and Lease Losses" means the valuation
reserve established and maintained by Xxxx Xxxxxx to absorb credit
losses related to loans and leases in accordance with GAAP and
regulatory accounting.
"Authorized Officer" means the Chairman, President, or Chief
Financial Officer of Borrower.
"Bank Stock" means all of the issued and outstanding Stock of
Xxxx Xxxxxx.
"Banking Liabilities" means (i) any deposits with Xxxx Xxxxxx
or funds collected by Xxxx Xxxxxx, (ii) any banker's acceptance credit
of Xxxx Xxxxxx, (iii) any check, note, certificate of deposit, money
order, letter of credit, travelers check, draft or xxxx of exchange
issued, accepted or endorsed by Xxxx Xxxxxx, (iv) any discount with,
borrowing from, or other obligation to, any Federal Reserve Bank, (v)
any agreement made by Xxxx Xxxxxx to purchase or repurchase
securities, loans or federal funds or any interest or participation in
any thereof, (vi) any guarantee or similar obligation incurred by Xxxx
Xxxxxx in such circumstances as may be incidental or usual in carrying
on the banking or trust business of a bank or trust company, (vii) any
transaction in the nature of an extension of credit, whether in the
form of a commitment or otherwise, undertaken by Xxxx Xxxxxx for the
account of a third party with the application of the same banking
considerations and legal lending limits that would be applicable if
the transaction were a loan to such party, (viii) any transaction in
which Xxxx Xxxxxx acts solely in a fiduciary or agency capacity, (ix)
any obligation of Xxxx Xxxxxx on account of any loans from the Federal
Deposit Insurance Corporation which may or may not be secured by any
assets of Xxxx Xxxxxx; and (x) any Lien, in favor of a public or
governmental authority, upon securities guaranteed by agencies and
instrumentalities of the federal government held by Borrower or any
Subsidiary equal in market value to the amount by which the funds
deposited by such public or governmental authority with Xxxx Xxxxxx
exceeding the federally insured amount of such deposits and any Lien
arising in connection with any commercial repurchase agreement entered
into the normal course of business by Borrower or a Subsidiary.
"BHCA" means the Bank Holding Company Act of 1956, as amended.
"Base Rate" shall have the meaning assigned to such term in
the definition of "Prime Rate" in this Paragraph 1.1 below.
"Base Rate Loan" shall mean a Loan bearing interest as
specified in Paragraph 4.1(a).
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"Borrower's Liabilities" means all obligations and liabilities
of Borrower in the aggregate to Bank (including, without limitation,
all debts, claims and indebtedness) whether primary, secondary,
direct, contingent, fixed or otherwise, heretofore, now and/or from
time to time hereafter owing, due or payable, however evidenced,
created, incurred, acquired or owing and however arising, whether
under this Agreement or the Other Agreements or by operation of law or
otherwise.
"Business Day" means (i) for all purposes other than as
covered by clause (ii) below, any day on which commercial banking
institutions are open for the transaction of commercial banking
business in Chicago, Illinois other than a Saturday or Sunday, and
(ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, any LIBOR Loan, any
day which is a Business Day described in clause (i) and which is also
a day for trading by and between banks in U.S. dollar deposits in the
interbank eurodollar market.
"Capital" means the Tier 1 capital of Xxxx Xxxxxx as that term
is defined in Appendix A to 12 C.F.R Section 208.
"Capital Lease" as applied to any Person shall mean any lease
of property (whether real, personal or mixed) by that Person as lessee
which, in conformity with GAAP, is accounted for as a capital lease on
the balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Borrower or any of its Subsidiaries in
each case taken at the amount thereof accounted for as liabilities in
accordance with GAAP.
"Charges" means all national, federal, state, county, city,
municipal and/or other governmental (or any instrumentality, division,
agency, body or department thereof, including, without limitation, the
PBGC) taxes, levies, assessments, charges, liens, claims or
encumbrances upon and/or relating to Borrower's Liabilities,
Borrower's business, Borrower's ownership and/or use of its assets,
income and/or gross receipts.
"Closing Date" means ____________, 1996.
"Code" means the Internal Revenue Code of 1986, as amended.
"Xxxx Xxxxxx" means Xxxx Xxxxxx Bank, an Illinois banking
corporation and a 100% owned subsidiary of Borrower (after giving
effect to the Transactions).
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"Collateral Interest" means a Lien held by Borrower or Xxxx
Xxxxxx in another Person which is granted to the holder pursuant to a
financing arrangement, and shall also include any Lien held during and
after foreclosure of that Lien by the holder thereof, unless and until
the subject holder first commences to treat, in any manner (howsoever
evidenced by a single act or a course of dealing or otherwise), the
subject Lien, or the subject other Person, as an on-going equity
investment or an affiliated business operation, rather than a Lien.
"Commitment" means as to Bank, the aggregate obligation of the
Bank to Borrower under the Revolving Credit Commitment and the Term
Loan Commitment.
"Conversion Date" means the Business Day on which a Base Rate
Loan is converted to a LIBOR Loan.
"CT Mortgage Company" means CT Mortgage Company, Inc., a
________ corporation and a 100% owned subsidiary of Borrower (after
giving effect to the Transactions).
"Debt" means, without duplication, all of a Person's
liabilities, obligations and indebtedness to any Person of any and
every kind and nature, whether primary, secondary, direct, indirect,
absolute, contingent, fixed or otherwise, heretofore, now and/or from
time to time hereafter owing, due or payable, however evidenced,
created, incurred, acquired or owing and however arising, whether
under written or oral agreement, by operation of law or otherwise.
Without in any way limiting the generality of the foregoing, Debt
specifically includes (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations as lessee under leases which
shall have been or should be, in accordance with GAAP, recorded as
capital leases, and (v) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) through (iv) above.
"Default" shall have the meaning assigned to such term in
Paragraph 6.1(b)(iii) hereof.
"Default Rate" shall have the meaning assigned to such term in
Paragraph 4.1(c) hereof.
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"Early Termination Date" means the date, pursuant to Paragraph
8.3, upon which, whether by notice or by right hereunder, Bank's
Commitment is terminated.
"Environmental Claim" means any notice of violation, claim,
demand, abatement order or other order or direction (conditional or
otherwise) by any governmental authority for any damage, including,
without limitation, personal injury (including sickness, disease or
death), tangible or intangible property damage, contribution,
indemnity, indirect or consequential damages, damage to the
environment, nuisance, pollution, release of any Hazardous Material to
the environment, contamination or other adverse effects on the
environment, or for fines, penalties or restrictions, resulting from
or based upon (i) the occurrence of a Release (whether sudden or
non-sudden or accidental or non-accidental) of, or exposure to, any
Hazardous Material, in, into or onto the environment at, in, by, from,
onto or related to any Facility, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of Hazardous Materials
in connection with the operation of any Facility, or (iii) the
violation, or alleged violation, of any Environmental Laws or any
Governmental Authorizations relating to environmental matters in
connection with the Facilities.
"Environmental Laws" means all statutes, ordinances, orders,
rules, regulations, plans, policies, or decrees and the like relating
to (i) environmental matters, including, without limitation, those
relating to fines, injunctions, penalties, damages, contribution, cost
recovery compensation, losses or injuries resulting from the Release
or threatened Release of Hazardous Materials, (ii) the generation,
use, handling, transportation, storage, treatment or disposal of
Hazardous Materials or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or
animal health or welfare related to Hazardous Materials, in any manner
applicable to Borrower or an Affiliate or any of their respective
properties, including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C.
Section 9601 et seq.), the Hazardous Materials Transportation Act (49
U.S.C. Section 1801 et seq.), the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act
(29 U.S.C. Section 651 et seq.) and the Emergency Planning and
Community Right-To-Know Act (42 U.S.C. Section 11001 et seq.), each as
amended or supplemented, and any analogous present or future local,
state and federal statutes and regulations promulgated pursuant
thereto, each as in effect as of the date of determination.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time and, unless the
context otherwise requires, the regulations promulgated thereunder and
any successor statute.
"ERISA Affiliate" means each trade or business (whether or not
incorporated) which together with Borrower or an Affiliate would be
deemed to be a "single employer" within the meaning of Section 4001(b)
of ERISA or, where applicable, would be treated as a "single employer"
under Section 412(c)(11) of the Code.
"ERISA Termination Event" means (i) a "Reportable Event"
described in Section 4043 of ERISA (other than a "Reportable Event"
not subject to the provision for 30-day notice to the PBGC under such
regulations), (ii) the withdrawal of Borrower or any Affiliate from a
Plan during a plan year in which it was a "substantial employer," as
defined in Section 4001(a) of ERISA, including a cessation of
operations that is treated as a withdrawal by a "substantial employer"
under Section 4062(e) of ERISA, (iii) the filing of a notice of
intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, (iv) the institution of
proceedings to terminate a Plan by the PBGC, (v) any other event or
condition which in the reasonable judgment of Borrower is likely to
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to or any ERISA administer, any Plan,
or (vi) the partial or complete withdrawal of Borrower or any ERISA
Affiliate from a Multiemployer Plan.
"Event of Default" shall have the meaning assigned to such
term in Paragraph 8.1 hereof.
"Excess Interest" shall have the meaning assigned to such term
in Paragraph 4.9 hereof.
"Facilities" means any and all real property (including,
without limitation, all buildings, or other improvements located
thereon) now, hereafter or heretofore, owned, leased, operated or used
by Borrower, its Subsidiaries or any of its respective successors and
assigns.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day,
provided that (i) if the day for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for
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such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to Bank on such
day on such transactions as determined by Bank.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System or its designee, the Federal Reserve Bank of Chicago.
"Financials" means those financial statements of Borrower
heretofore or concurrently herewith delivered by or on behalf of
Borrower to Bank.
"Five Year Average Yield" means the average yield to maturity
for actively traded marketable U.S. Treasury fixed interest rate
securities (adjusted to constant maturities of five years).
"Fixed Rate" means the Five Year Average Yield plus one
hundred sixty (160) basis points.
"Fixed Rate Election" shall have the meaning assigned to such
term in Paragraph 4.1(c) hereof.
"Fixed Rate Loan" means a Term Loan bearing interest at the
Fixed Rate.
"GAAP" shall mean generally accepted accounting principles as
in effect from time to time.
"Governmental Authorization" means any permit, license,
authorization, plan, directive, consent order or consent decree of or
from any federal, state or local governmental authority, agency or
court having jurisdiction over Borrower or any Facility.
"Hazardous Materials" means (i) any chemical, material or
substance defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous waste," "restricted hazardous waste," "infectious waste,"
"toxic substances" or any other formulations intended to define, list
or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words of
similar import under any applicable Environmental Laws or publications
promulgated pursuant thereto, (ii) any oil, petroleum or petroleum
derived substance, (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or
production of crude oil, natural gas or geothermal resources, (iv) any
flammable substances or explosives, (v) any
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radioactive materials, (vi) asbestos in any form (which is or could
become friable), (vii) urea formaldehyde foam insulation, (viii)
electrical equipment which contains any oil or dielectric fluid
containing levels of polychlorinated biphenyls in excess of fifty
parts per million, (ix) pesticides or (x) any other chemical, material
or substance, exposure to which is prohibited, limited or regulated by
any governmental authority or which may or could pose a hazard to the
health and safety of the owners, occupants or any Persons in the
vicinity of the Facilities.
"Interest Period" means with respect to the LIBOR Loans, the
period used for the computation of interest commencing on the date the
relevant LIBOR Loan is effected by conversion or continued and
concluding on the date one (1), two (2) or three (3) months
thereafter, at Borrower's option, with any subsequent Interest Period
commencing on the last day of the immediately preceding Interest
Period and concluding one (1), two (2) or three (3) months thereafter,
at Borrower's option; provided, however, that no Interest Period for
any LIBOR Loan made under the Commitment may extend beyond the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as the
case may be. Each Interest Period for a LIBOR Loan which would
otherwise end on a day which is not a Business Day shall end on the
next succeeding Business Day (unless such next succeeding Business Day
is the first Business Day of a calendar month, in which case such
Interest Period shall end on the next preceding Business Day).
"Liabilities" means, as of any date, the aggregate amount of
all liabilities of Borrower, in accordance with GAAP.
"LIBOR" means for each Interest Period the rate of interest
per annum as determined by Bank (rounded upward, if necessary, to the
nearest whole multiple of one-sixteenth of one percent (1/16th of 1%)
or such other integral multiple thereof at which interest rates for
LIBOR-based loans are commonly quoted to major banks in the interbank
eurodollar market) at which deposits of United States Dollars in
immediately available and freely transferable funds would be offered
at 11:00 a.m., Chicago time, two (2) Business Days prior to the
commencement of such Interest Period by the principal offshore funding
office of Bank to major banks in the interbank eurodollar market upon
request by such major banks for a period equal to such Interest Period
and in an amount equal to the principal amount of the LIBOR Loan to be
outstanding from Bank during such Interest Period. Each determination
of LIBOR made by Bank in accordance with this paragraph shall be
conclusive and binding on Borrower except in the case of manifest
error.
"LIBOR Loan" means a Loan bearing interest as specified in
Paragraph 4.1(b).
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"LIBOR Margin" means one and 25/100 percent (1.25%).
"Lien" means, with respect to any asset of Borrower, any
mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any lease in the
nature thereof and the filing of or agreement to give any financing
statement under the Uniform Commercial Code in effect in any
jurisdiction).
"Loan" or "Loans" means and includes all Prime Rate Loans and
LIBOR Loans made under the Commitment, unless the context in which
such term is used shall otherwise require.
"Loan Loss Reserve" means that amount reserved for possible
loan losses as reflected in the financial statements of Xxxx Xxxxxx.
"Material Adverse Effect" means: (i) a material adverse effect
upon the financial condition of (x) either Borrower or Xxxx Xxxxxx,
(y) Borrower and the Subsidiaries, taken as a whole, or (z) any
Subsidiary comprising 20% or more of the assets or earning power of
Borrower, and other Subsidiaries, taken as a whole, in any such case
measured against the most recently delivered Financials (or, if more
favorable to Borrower, measured against the Financials as of the
fiscal year-end of Borrower immediately preceding the date hereof); or
(ii) a change in the business, operations or assets of Borrower, or
any Subsidiary which could reasonably be expected to cause Borrower to
be unable to repay Borrower's Liabilities or satisfy the covenants set
forth in Paragraphs 7.2 and 7.3.
"Maximum Rate" shall have the meaning assigned to such term
in Paragraph 4.9 hereof.
"Multiemployer Plan" means a plan defined as such in Section
4001(a)(3) of ERISA to which contributions have been made by Borrower
or an ERISA Affiliate.
"Net Worth" means, as of any date of determination thereof,
the amount of all assets of Xxxx Xxxxxx as may be properly classified
as such less the amount of all unsubordinated Liabilities of Xxxx
Xxxxxx, all as determined in accordance with GAAP.
"Non-Performing Assets" means those assets of Xxxx Xxxxxx
classified as non-performing in accordance with standard industry
practices on the most recent consolidated financial statements of
Borrower.
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"Non-Performing Loans" means those loans of Xxxx Xxxxxx
classified as non-performing in accordance with standard industry
practices on the most recent consolidated financial statements of
Borrower.
"Notes" means the Revolving Note and the Term Note.
"OBRE" means Illinois Office of Banks and Real Estate.
"Other Agreements" means all agreements, instruments and
documents, including, without limitation, guaranties, mortgages, deeds
of trust, guaranties, pledges, powers of attorney, consents,
assignments, contracts, notices, security agreements, leases,
financing statements and all other written matter heretofore, now
and/or from time to time hereafter executed by and/or on behalf of
Borrower and delivered to the Bank in connection with this Agreement
including, without limitation, the Notes, the Safekeeping Agreement
and the Pledge Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Debt" means (i) Debt incurred pursuant to this
Agreement; (ii) the Capitalized Lease Obligations of Borrower,
provided that the aggregate Capitalized Lease Obligations under all
Capital Leases shall not exceed $500,000; (iii) Subordinated Debt of
Borrower; (iv) legal fees with respect to the transactions
contemplated by this Agreement; (v) Debt incurred in the ordinary
course of business not exceeding $100,000 in aggregate; (vi) Debt
arising or accruing in the ordinary course of business, which Debt
does not give rise to a Lien or other security interest, other than a
Permitted Lien; (vii) guarantees of the obligations of CT Mortgage
Company under sales of loan pools; and (viii) trade payables accrued
in the ordinary course of business.
"Permitted Liens" means (i) Liens securing the payment by
Borrower or a Subsidiary of taxes, assessments or governmental
charges, provided that Borrower is contesting in good faith, by an
appropriate proceeding, the validity, amount or imposition of the
above while maintaining reserves deemed adequate by Bank to cover the
above and (a) such contest does not have or cause a Material Adverse
Effect, (b) Borrower has made an adequate provision for the payment of
all taxes, assessments, penalties, interest and other governmental
charges which are accruing but are not yet due and payable, and (c)
Borrower has no knowledge and is not aware of any deficiency or
additional assessment which may have or has arisen in connection with
the foregoing, in all cases where such failure could not reasonably be
expected to have a Material Adverse Effect; (ii) Liens securing
charges, levies, claims or demands against Borrower or a Subsidiary of
materialmen, mechanics, carriers, warehousemen, landlords
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and other like persons, provided that the obligations secured by
such Liens are otherwise permitted hereunder; (iii) Liens incurred or
deposits made in the ordinary course of business (a) in connection with
workmen's compensation, unemployment insurance, social security and
other like laws against Borrower or a Subsidiary, and (b) to secure the
performance of letters of credit, bids, tenders, contracts, leases,
surety, appeal and performance bonds and other similar obligations
against Borrower or a Subsidiary not incurred in connection with the
borrowing of money; (iv) Liens to secure, or which are granted in
connection with, Banking Liabilities of Borrower or a Subsidiary; (v)
attachment, judgment and other similar Liens arising in connection with
court proceedings involving Borrower or a Subsidiary, provided that
such Liens do not involve any judgement or order requiring payment of
monies in excess of $10,000 in aggregate which are not covered by
insurance; (vi) Liens on the property of a Bank or a Subsidiary
securing obligations owing to Borrower, a Bank or a Subsidiary; (vii)
reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other similar title
exceptions or encumbrances affecting real property of Borrower or a
Subsidiary, provided that such Liens do not interfere with the use or
value of the real property in a manner which would have a Material
Adverse Effect; (viii) Liens, mortgages, pledges, conditional sales
contracts, security interests, capitalized leases and arrangements for
the retention of title existing as to Borrower or a Subsidiary
outstanding on the date of this Agreement; (ix) Liens issued or
incurred pursuant to Collateral Interests; (x) Liens of a Subsidiary
arising under the Interest Rate and Currency Exchange Agreement dated
as of April 16, 1992 and related documents, granted by Xxxx Xxxxxx Bank
in favor of Bear Xxxxxxx Capital Markets, Inc. and liens of a
Subsidiary granted to others in connection with interest rate swaps and
other hedging devices comparable in function to the foregoing
arrangement with Bear Xxxxxxx Capital Markets, Inc.; (xi) Liens or
mortgages incurred by a Bank or Subsidiary after the date hereof, given
to secure the payment of the purchase price incurred in connection with
the acquisition of assets intended to be used in carrying on the
business of a Subsidiary; provided that (a) such Liens or mortgages
attach solely to the property acquired or purchased, (b) at the time of
the acquisition of such assets, the aggregate amount remaining unpaid
on all Debt secured by the applicable Lien shall not exceed an amount
equal to seventy percent (70%) of the lesser of the total purchase
price or the fair market value at the time of acquisition of such
assets (as determined in good faith by the Board of Directors of such
Subsidiary), and (c) the Debt secured by such Liens shall not result in
or cause a Default of the financial covenants contained in Paragraph
7.2(i) hereof; (xii) (A) Liens or encumbrances granted in connection
with leases of real property and (B) Liens granted in connection with
leases on personal property (long-term, capital or otherwise) so long
as such leases qualify as Permitted Debt; and (xiii) Liens issued or
incurred in connection with the replacement, extension and renewal of
any obligations secured by a Lien permitted under this
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definition provided that the Debt secured by such Liens shall
not result in or cause a Default of the financial covenants contained
in Paragraph 7.2(i) hereof.
"Person" means and includes an individual, a partnership, a
joint venture, a corporation (whether or not for profit), a trust, an
unincorporated organization, a government or any department or agency
thereof or any other entity or organization.
"Plan" means, at any time, any single-employer plan, as
defined in Section 4001(a) and subject to Title IV of ERISA, which is
maintained, or at any time during the five calendar years preceding
the time in question was maintained, for employees of Borrower or an
Affiliate.
"Pledge Agreement" means that certain pledge agreement made by
Borrower in favor of the Bank which may be executed and delivered from
time to time by Borrower in connection with the Safekeeping Agreement.
"Prime Rate" or "Base Rate" means the rate of interest
(expressed as a percentage per annum) most recently announced or
published publicly from time to time by Bank as its prime or base rate
of interest, which is not necessarily the lowest or most favorable
rate of interest charged by Bank on commercial loans at any one time.
The rate of interest shall change automatically and immediately as and
when the prime or base rate shall change, without notice to Borrower,
and any notice to which it may be entitled is hereby waived, and any
such change in Bank's prime or base rate shall not affect any of the
terms and conditions of this Agreement, all of which shall remain in
full force and effect.
"Release" means any release, spill, emission, leaking,
pumping, pouring, injection, escaping, deposit, disposal, discharge,
dumping, leaching, or migration of Hazardous Materials into the indoor
or outdoor environment (including, without limitation, the abandonment
or disposal of any barrels, containers or other closed receptacles
containing any Hazardous Materials), or into or out of any Facility.
"Reserve Percentage" means, for the purpose of computing the
Adjusted LIBOR Rate, the reserve requirement imposed by the Board of
Governors of the Federal Reserve System (or any successor) under
Regulation D on "Eurocurrency liabilities" (as such term is defined in
Regulation D) for the applicable Interest Period as of the first day
of such Interest Period, but subject to any amendments of such reserve
requirement by such Board or its successor, and taking into account
any transitional adjustments thereto becoming effective during such
Interest Period. For purposes of this definition, LIBOR Loans shall
be deemed to be Eurocurrency liabilities as defined in
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Regulation D without benefit of or credit for prorations, exemptions
or offsets under Regulation D.
"Return on Average Assets" means Xxxx Xxxxxx'x ratio of (i)
net income after taxes but before extraordinary items to (ii) total
assets, all as determined in accordance with GAAP.
"Revolving Credit Commitment" shall have the meaning assigned
to such term in Paragraph 2.1 hereof.
"Revolving Credit Maturity Date" means December ____, 1997.
"Revolving Credit Termination Date" means the earlier to occur
of (i) the Revolving Credit Maturity Date or (ii) the Early
Termination Date.
"Revolving Loan" means and includes all Loans made under the
Revolving Credit Commitment.
"Revolving Note" means that certain Revolving Note of even
date herewith in the original aggregate maximum principal amount of
Five Million Dollars ($5,000,000), as the same may be amended,
modified or supplemented from time to time, and together with any
renewals thereof or exchanges or substitutes therefor.
"Safekeeping Agreement" means that certain Safekeeping
Agreement of even date herewith between Borrower and Bank.
"Stock" means all shares, interests, participation or other
equivalents, however designated, of or in a corporation, bank, limited
liability corporation, partnership or other entity, whether or not
voting, including but not limited to common stock, warrants, preferred
stock, convertible debentures, and all agreements, instruments and
documents convertible, in whole or in part, into any one or more or
all of the foregoing.
"Subordinated Debt" means, as of any date, the amount of Debt
which is subordinated in right of payment to Borrower's Liabilities on
terms reasonably satisfactory to the Bank in each particular case.
"Subsidiary" means any corporation of which a Person owns,
directly or indirectly through one or more intermediaries, more than
50% of the voting stock at the time of determination.
"Term Loan Commitment" shall have the meaning assigned to such
term in Paragraph 2.2 hereof.
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"Term Loan" means and includes all Loans made under the Term
Loan Commitment, unless the context in which such term is used shall
otherwise require.
"Term Loan Maturity Date" means December ____, 2001.
"Term Loan Termination Date" means the earlier to occur of the
(i) Term Loan Maturity Date or (ii) Early Termination Date.
"Term Note" means that certain Term Note of even date herewith
made payable by Borrower in favor of Bank in the original aggregate
principal amount of Twenty-Five Million Dollars ($25,000,000), as the
same may be amended, modified or supplemented from time to time, and
together with any renewals thereof or exchanges or substitutes
therefor.
"Termination Date" means the later to occur of the (i)
Revolving Credit Termination Date and (ii) the Term Loan Termination
Date.
"Transactions" means the transactions contemplated by that
certain Amended and Restated Share Exchange Agreement dated as of June
12, 1996, among Xxxx Xxxxxx Financial Group, Inc. and various
shareholders of the Borrower.
1.2 Certain UCC and Accounting Terms. Except as otherwise defined
in this Agreement or the Other Agreements, all words, terms and/or phrases used
herein and therein shall be defined by the applicable definition therefor (if
any) in the Uniform Commercial Code as adopted by the State of Illinois.
Notwithstanding the foregoing, any accounting terms used in this Agreement
which are not specifically defined herein shall have the meaning customarily
given to them in accordance with GAAP. All financing computations hereunder
shall be computed, unless otherwise specifically provided herein, in accordance
with GAAP as consistently applied.
2. LOANS: BANK'S COMMITMENTS AND BORROWING PROCEDURES
2.1 Revolving Credit Commitment. On the terms and subject to the
conditions set forth in this Agreement, Bank agrees to make revolving credit
available to Borrower from time to time prior to the Revolving Credit
Termination Date in such aggregate amounts as Borrower may from time to time
request but in no event exceeding Five Million Dollars ($5,000,000) (the
"Revolving Credit Commitment"). The Revolving Credit Commitment shall be
available to Borrower by means of Revolving Loans, it being understood that
Revolving Loans may be repaid and used again during the period from the date
hereof to and including the Revolving Credit Termination Date, at which time
the Revolving Credit Commitment shall expire.
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2.2 Term Loan Commitment. On the terms and subject to the
conditions set forth in this Agreement, Bank agrees to make the Term Loan to
Borrower in the aggregate principal amount of Twenty-Five Million Dollars
($25,000,000) (the "Term Loan Commitment"). The Term Loan shall be funded in
one drawing. Amounts borrowed in respect of the Term Loan and repaid may not
be reborrowed; provided LIBOR Loans consisting of Term Loans may be continued
as LIBOR Loans or converted into Base Rate Loans pursuant to Paragraph 4.3
hereof.
2.3 Borrowing Procedures under the Commitment. Borrower shall
give Bank irrevocable telephonic notice (with prompt written confirmation),
written notice or telecopied notice by no later than 11:00 a.m., Chicago time,
on the date it requests to make a Base Rate Loan hereunder. Each such notice
shall be effective upon receipt by Bank and shall specify the date the Loan
shall be funded by Bank (which shall be a Business Day) and the amount of such
Loan. Borrower shall give Bank irrevocable telephonic notice (which notice
shall be promptly confirmed in writing) no later than 10:00 a.m., Chicago time,
two (2) Business Days prior to the date that it requests Bank to make a LIBOR
Loan hereunder or to effect a conversion from a Base Rate Loan to a LIBOR Loan,
including a reborrowing as provided in Paragraph 4.3. Each such notice shall
be effective upon receipt by Bank, and shall specify the date of such Loan
(which shall be a Business Day), the amount of such Loan, and the Interest
Period applicable thereto. Borrower agrees that Bank may rely on any notice
given by any person it reasonably believes to be an Authorized Officer without
the necessity of independent investigation. Each borrowing shall be on a
Business Day. Each borrowing shall be funded by Bank by 2:00 p.m., Chicago
time, on the applicable Business Day determined above.
2.4 All Loans to Constitute One Obligation. The Loans shall
constitute one general obligation of Borrower.
2.5 Use of Proceeds. The proceeds of the Term Loan shall be used
by Borrower primarily to infuse additional capital into Xxxx Xxxxxx to comply
with the minimum capital requirements of any applicable banking laws or
regulations or any requirements of any regulatory agencies and any funds not so
used shall be applied to expenses for the Transactions or for general working
capital purposes. The proceeds of the Revolving Loans will be used for general
working capital purposes.
3. LOANS: NOTES EVIDENCING LOANS; SECURITY
3.1 Revolving Note. The Revolving Loans made by Bank under the
Revolving Credit Commitment shall be evidenced by the Revolving Note
substantially in the form set forth in Exhibit 3.1, with appropriate
insertions, dated the date hereof (or such other date prior thereto as shall be
satisfactory to Bank), payable to the order of Bank in the maximum aggregate
principal amount of Five Million Dollars ($5,000,000). The unpaid principal
amount of the Revolving Loan shall bear interest and be due and
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payable as provided in this Agreement and the Revolving Note. Payments to be
made by Borrower under the Revolving Note shall be made at the time, in the
amounts and upon the terms set forth herein and therein.
3.2 Term Note. The Term Loan made by Bank under the Term Loan
Commitment shall be evidenced by the Term Note substantially in the form set
forth in Exhibit 3.2, with appropriate insertions, dated the date hereof (or
such other date prior thereto as shall be satisfactory to Bank), payable to the
order of Bank in the aggregate principal amount of Twenty-Five Million Dollars
($25,000,000). The unpaid principal amount of the Term Loan shall bear
interest and be due and payable as provided in this Agreement and the Term
Note. Payments to be made by Borrower under the Term Note shall be made at the
time, in the amounts and upon the terms set forth herein and therein.
3.3 Recordation. The type, date and amount of each Loan made by
Bank, the interest rate, and the date and amount of each repayment of principal
received by Bank shall be recorded by Bank in its records. The aggregate
unpaid principal amount so recorded shall be prima facia evidence of the
principal amount owing and unpaid on the Revolving Note and the Term Note. The
failure to so record any such amount or any error in so recording any such
amount shall not limit or otherwise affect the obligations of Borrower
hereunder or under the Revolving Note and the Term Note to repay the principal
amount of the Loans together with all interest accrued thereon.
3.4 Security Interest in Stock of Xxxx Xxxxxx. In the
circumstances described in the Safekeeping Agreement, Borrower agrees that it
shall immediately pledge, assign, transfer, deliver and set over to Bank
pursuant and subject to the Safekeeping Agreement and the Pledge Agreement, all
of Borrower's right, title and interest in and to, and grant Bank a
first-priority Lien on and security interest in, all of the Stock of Xxxx
Xxxxxx, to be retained subject to the terms of such agreements by Bank.
4. LOANS: AMOUNTS; INTEREST; BALANCES
4.1 Applicable Borrowing Amounts; Interest Rates; Default Rate
(a) Borrower hereby promises to pay interest on the
unpaid principal amount of each Revolving Loan that is a Base Rate Loan at a
rate per annum equal to the Base Rate from time to time in effect for the
period commencing on the date of such Loan until such Base Rate Loan is (A)
converted to a LIBOR Loan pursuant to Paragraph 4.3 hereof, or (B) paid in
full. Borrower hereby promises to pay interest on the unpaid principal amount
of the Term Loan that is a Base Rate Loan at a rate per annum equal to the Base
Rate from time to time in effect for the period commencing on the date of such
Loan until such Base Rate Loan is (i) converted to a LIBOR Loan pursuant to
Paragraph 4.3 hereof or (ii) paid in full. Accrued interest on the outstanding
principal amount of Loans shall be payable (i) quarterly in arrears on the
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last Business Day of each calendar quarter in the case of a Base Rate Loan or a
Fixed Rate Loan, (ii) on the last day of the Interest Period therefor in the
case of a LIBOR Loan, (iii) upon conversion of any Loan into a LIBOR Loan (such
amount of accrued interest then coming due to be calculated based on the
principal amount of the Loan so converted) and (iv) upon the Revolving Credit
Termination Date (in the case of a Revolving Loan) and the Term Loan Maturity
Date (in the case of a Term Loan), which payments shall commence with the last
Business Day of December, 1996 in the case of a Base Rate Loan or a Fixed Rate
Loan. After the Revolving Credit Termination Date (in the case of a Revolving
Loan) and the Term Loan Maturity Date (in the case of a Term Loan) or
Conversion Date covered in (ii) above, as applicable, accrued interest on such
Loans shall be payable on demand.
(b) Each LIBOR Loan shall be in a minimum amount of
$1,000,000 or such greater amount which is an integral multiple of $100,000 and
shall bear interest (computed on the basis of a year of 360 days and actual
days elapsed) on the unpaid principal amount thereof from the date such LIBOR
Loan is effected by conversion or continued until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the LIBOR
Margin plus the Adjusted LIBOR Rate, with such interest payable in accordance
with Paragraph 4.1(a) above.
(c) Notwithstanding the provisions of Paragraph 4.1(a)
above, prior to the occurrence of a Default or Event of Default, Borrower may
make a single, irrevocable election to convert the rate of interest on the
entire outstanding principal amount of the Term Loan to the Fixed Rate (the
"Fixed Rate Election"); provided, however, that prior to the effectiveness of a
Fixed Rate Election, the following shall occur: (i) all LIBOR Loans in respect
of the Term Loan shall have been converted into a Base Rate Loan and (ii) all
unpaid interest on the outstanding principal amount of the Term Loan shall be
paid in full at a rate per annum equal to the Five Year Average Yield.
(d) If an Event of Default shall have occurred and be
continuing hereunder, the Loans shall bear interest from the date of such Event
of Default, payable on demand, at a rate per annum (the "Default Rate") equal
to the sum of two percent (2%) plus the applicable interest rate from time to
time in effect (computed on the basis of a 360 day year and actual days
elapsed).
4.2 Computation of Interest. Interest on each Loan shall be
computed for the actual number of days elapsed on the basis of a 360-day year.
The interest rate applicable to each Base Rate Loan shall change simultaneously
with each change in such Base Rate. Upon conversion of less than all the
aggregate principal amount of Base Rate Loans outstanding at any one time to a
LIBOR Loan, interest on the remaining principal amount of Base Rate Loans
outstanding after such conversion shall be calculated assuming such LIBOR Loan
replaced a corresponding amount of Base Rate Loans bearing interest at the Base
Rate applicable thereto immediately prior to
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such conversion such that the remaining principal amount of Base Rate Loans
outstanding after such conversion shall bear interest at the Base Rate which
would have been applicable to such Base Rate Loans had no such conversion been
effected.
4.3 Conversion and Reborrowing of Loans.
(a) Provided that no Event of Default has occurred and is
continuing, Base Rate Loans may, subject to Paragraphs 2.3 and 4.1(b) hereof,
at any time be converted by Borrower to LIBOR Loans, which LIBOR Loans shall
mature and become due and payable on the last day of the Interest Period
applicable thereto. Provided that no Event of Default has occurred and is
continuing, Borrower shall have the right, subject to the terms and conditions
of this Agreement, to reborrow through a new LIBOR Loan in whole or in part,
subject to Paragraph 4.1(b), any LIBOR Loan from any current Interest Period
into a subsequent Interest Period, provided that Borrower shall give Bank
notice of the reborrowing of any such LIBOR Loan as provided in Paragraph 2.3
hereof.
(b) In the event that (i) Borrower fails to give notice
pursuant to Paragraph 2.3 hereof of the reborrowing of any LIBOR Loan or fails
to specify the Interest Period applicable to such reborrowing or (ii) an Event
of Default has occurred and is continuing at the time any such LIBOR Loan is to
be reborrowed hereunder, then such LIBOR Loan shall be automatically reborrowed
as a Base Rate Loan, subject to Paragraphs 4.1(c) (in the case of subpart (ii)
of this Paragraph 4.3(b)) and 8.3 hereof if an Event of Default has occurred
and is continuing, whichever is applicable, unless the relevant LIBOR Loan is
paid in full on the last day of the then applicable Interest Period.
(c) Notwithstanding anything contained herein to the
contrary, Borrower may not have outstanding at any one time more than (i) three
(3) LIBOR Loans in respect of the Revolving Credit Commitment and (ii) five (5)
LIBOR Loans in respect of the Term Loan Commitment.
4.4 Change of Law. Notwithstanding any other provisions of this
Agreement or the Notes, if at any time Bank shall determine in good faith that
any change in applicable law or regulation or in the interpretation thereof
makes it unlawful or impossible for Bank to effect a conversion of a Base Rate
Loan into a LIBOR Loan or to continue to maintain any LIBOR Loan, Bank shall
promptly give notice thereof to Borrower, and the obligation of Bank to effect
by conversion or continue such LIBOR Loan under this Agreement shall terminate
until it is no longer unlawful or impossible for Bank to effect by conversion
or maintain such LIBOR Loan. Upon the receipt of such notice, Borrower may
elect to either (i) pay or prepay, as the case may be, the outstanding
principal amount of any such LIBOR Loan, together with all interest accrued
thereon and all other amounts payable to Bank under this Agreement, or
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(ii) convert the principal amount of such affected LIBOR Loan to a Base Rate
Loan available hereunder, subject to the terms and conditions of this
Agreement.
4.5 Unavailability of Deposits or Inability to Ascertain the LIBOR
Rate or Adjusted LIBOR Rate. Notwithstanding any other provision of this
Agreement or the Notes to the contrary, if prior to the commencement of any
Interest Period Bank shall determine in good faith (i) that deposits in the
amount of any LIBOR Loan scheduled to be outstanding are not available to Bank
in the relevant market or (ii) by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist for ascertaining
the LIBOR rate or Adjusted LIBOR Rate, then Bank shall promptly give notice
thereof to Borrower, and the obligation of Bank to effect by conversion or
continue any such LIBOR Loan in such amount and for such Interest Period shall
terminate until deposits in such amount and for the Interest Period selected by
Borrower shall again be readily available in the relevant market and adequate
and reasonable means exist for ascertaining the LIBOR rate or Adjusted LIBOR
Rate, as the case may be. Upon the giving of such notice, Borrower may elect
to either (i) pay or prepay, as the case may be, the outstanding principal
amount of any such LIBOR Loan, together with all interest accrued thereon and
all other amounts payable to the Bank under this Agreement or (ii) convert the
principal amount of such affected LIBOR Loan to a Base Rate Loan available
hereunder, subject to all the terms and conditions of this Agreement.
4.6 Yield Protection, Etc.
(a) Increased Costs. If (x) Regulation D of the Board of
Governors of the Federal Reserve System, or (y) the adoption of any applicable
law, treaty, rule, regulation or guideline, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank or its lending branch with
any request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency,
(i) shall subject Bank, its lending branch or any
Loan to any tax, duty, change, stamp tax, fee, deduction, withholding
or other charge in respect of this Agreement, any Loan, the Notes or
the obligation of Bank to make or maintain any Loan, or shall change
the basis of taxation of payments to Bank of the principal of or
interest on any Loan or any other amounts due under this Agreement in
respect of any Loan or its obligation to make or maintain any Loan
(except for changes in the rate of tax on the overall net income of
Bank imposed by the federal, state or local jurisdiction in which
Bank's principal executive office or its lending branch is located);
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed by the
Board of Governors
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of the Federal Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, Bank; or
(iii) shall impose on Bank any penalty with respect
to the foregoing or any other condition affecting this Agreement, any
Loan, the Notes or the obligation of Bank to make or maintain any
Loan;
and the result of any of the foregoing is to increase the cost to (or to impose
a cost on) Bank of making or maintaining any Loan, or to reduce the amount of
any sum received or receivable by Bank under this Agreement or under the Notes
with respect thereto, then Bank shall notify Borrower after it receives final
notice of any of the foregoing and, within forty-five (45) days after demand by
Bank (which demand shall be accompanied by a statement setting forth in
reasonable detail with calculations the basis of such demand), Borrower shall
pay directly to Bank for such additional amount or amounts as will compensate
Bank for such increased cost or such reduction.
In the event that an additional payment is made under Paragraph 4.6(a)(i) for
the account of Bank and Bank, in its good faith judgment, determines that it
has finally and irrevocably received or been granted a credit against or
release or remission for, or repayment of, any tax paid or payable by it in
respect of or calculated with reference to the deduction or withholding giving
rise to such payment, Bank shall, to the extent that it determines that it can
do so without prejudice to the retention of such amount or such credit, relief,
remission or repayment, pay to Borrower such amount as Bank shall, in its good
faith judgment, have determined to be attributable to such deduction or
withholding and to leave Bank (after such payment and net of related expenses)
in no worse position than it would have been in if Borrower had not been
required to make such deduction or withholding.
(b) Capital Adequacy. If either (i) the introduction of
or any change in or change in the interpretation of any law or regulation or
(ii) compliance by Bank with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects
or would affect the amount of capital required or expected to be maintained by
Bank or any corporation controlling Bank and Bank determines that the amount of
such capital is increased solely by or solely based upon the existence of
Bank's Commitment and other commitments of this type, then, upon demand by
Bank, Borrower shall immediately pay to Bank, from time to time as specified by
the Bank, additional amounts sufficient to compensate Bank in the light of such
circumstances, to the extent that Bank reasonably determines such increase in
capital to be allocable to the existence of Bank's commitment to lend
hereunder; provided such demand shall be accompanied by a summary in reasonable
detail with calculations showing the bases therefor.
4.7 Funding Indemnity. In the event Bank shall incur any loss,
cost or expense (including, without limitation, any loss of profit and any
loss, cost or expense
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incurred by reason of the liquidation or re-employment of deposits or other
funds acquired by Bank to fund or maintain any LIBOR Loan or the relending or
reinvesting of such deposits or amounts paid or prepaid to Bank) as a result
of:
(a) any payment of a LIBOR Loan on a date other than the
last day of the then applicable Interest Period;
(b) any failure by Borrower to effect by conversion or
continue any LIBOR Loan on the date specified in the notice given pursuant to
Paragraph 2.3 hereof;
(c) any failure by Borrower to make any payment of
principal or interest when due on any LIBOR Loan, whether at stated maturity,
by acceleration or otherwise; or
(d) the occurrence of any Event of Default;
then, upon the demand by Bank, Borrower shall pay to the applicable Bank such
amount as will reimburse Bank for such loss, cost or expense. If Bank makes
such a claim for compensation under this Paragraph 4.7, Bank shall provide to
Borrower a certificate setting forth the amount of such loss, cost or expense
in reasonable detail with calculations and such certificate shall be conclusive
and binding on Borrower as to the amount thereof except in the case of manifest
error.
4.8 Discretion of Bank as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary other than Paragraph 4.7, Bank
shall be entitled to fund and maintain its funding of all or any part of the
Loans in any manner each sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if
Bank had actually funded and maintained each LIBOR Loan during each Interest
Period for such LIBOR Loan through the purchase of deposits in the London
Interbank Market having a maturity corresponding to such Interest Period and
bearing an interest rate equal to the Adjusted LIBOR Rate for such Interest
Period.
4.9 Interest Laws. Notwithstanding any provision to the contrary
contained in this Agreement or the Other Agreements, Borrower shall not be
required to pay, and Bank shall not be permitted to collect, any amount of
interest in excess of the maximum amount of interest permitted by law ("Excess
Interest"). If any Excess Interest is provided for or determined by a court of
competent jurisdiction to have been provided for in this Agreement or in any of
the Other Agreements, then in such event: (a) the provisions of this Paragraph
shall govern and control; (b) Borrower shall not be obligated to pay any Excess
Interest; (c) any Excess Interest Bank may have received hereunder shall be, at
Bank's option, (i) applied as a credit against the outstanding principal
balance of Borrower's Liabilities or accrued and unpaid interest (not to exceed
the maximum amount permitted by law), (ii) refunded to the payor thereof, or
(iii) any
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combination of the foregoing; (d) the interest rate(s) provided for herein
shall be automatically reduced to the maximum lawful rate allowed from time to
time under applicable law (the "Maximum Rate"), and this Agreement and the
Other Agreements shall be deemed to have been and shall be reformed and
modified to reflect such reduction; and (e) Borrower shall not have any action
against Bank for any damages arising out of the payment or collection of any
Excess Interest. Notwithstanding the foregoing, if for any period of time
interest on any Borrower's Liabilities is calculated at the Maximum Rate rather
than the applicable rate under this Agreement, and thereafter such applicable
rate becomes less than the Maximum Rate, the rate of interest payable on such
Borrower's Liabilities shall remain at the Maximum Rate until Bank shall have
received the amount of interest which Bank would have received during such
period on such Borrower's Liabilities had the rate of interest not been limited
to the Maximum Rate during such period.
5. LOANS: GENERAL TERMS
5.1 Payments to Bank. That portion of Borrower's Liabilities
consisting of: (a) principal payable on account of the Loans made by Bank to
Borrower pursuant to this Agreement shall be payable by Borrower to Bank (i) as
provided in the Revolving Note in respect of the Revolving Loans and (ii) as
provided in the Term Note in respect of the Term Loan; (b) costs, fees and
expenses payable pursuant to this Agreement shall be payable by Borrower on
demand; (c) interest payable pursuant to this Agreement shall be payable by
Borrower for account of Bank as provided in Paragraph 4.1; and (d) the balance
of Borrower's Liabilities, if any, shall be payable by Borrower as and when
provided in this Agreement or the Other Agreements.
5.2 Application of Payment. Borrower shall, at the time of making
each payment under this Agreement or any Note (whether by account debit or
otherwise), specify to the Bank the Loan or other amounts payable by Borrower
hereunder to which such payment is to be applied (and in the event that it
fails to so specify, or if an Event of Default has occurred and is continuing,
Bank may distribute such payment in such manner as it may determine to be
appropriate).
5.3 Conditions Precedent Events. Each Loan made by the Bank to
Borrower, other than a conversion from a LIBOR Loan to a Base Rate Loan, at the
request of Borrower pursuant to this Agreement or the Other Agreements shall in
any event be subject to the following conditions precedent: (a) there shall not
then exist an Event of Default (as hereinafter defined) or any event or
condition which with notice, lapse of time and/or the making of such Loan would
constitute an Event of Default; (b) the representations, warranties and
covenants of Borrower contained in this Agreement shall be true and correct in
all material respects as of the date of such Loan with the same effect as
though made on such date; (c) all of the covenants and agreements of Borrower
in this Agreement, and all of the requirements of this Agreement with respect
to such Loan, shall have been complied with; and (d) there shall not have
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occurred, since the date of this Agreement, any material adverse change in the
financial condition, results of operations or business of Borrower. Each
borrowing by Borrower hereunder shall be deemed a representation and warranty
by Borrower that the foregoing conditions have been fulfilled as of the date of
such borrowing. Bank shall have received upon request a certificate signed by
an Authorized Officer of Borrower dated the date of such requested Loan
certifying satisfaction of the conditions specified in clauses (a)-(d) of this
Paragraph 5.3.
5.4 Offset. Borrower agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim Bank may
otherwise have, Bank shall be entitled, at its option to offset balances held
by it for account of Borrower at any of its offices, in United States Dollars
or in any other currency, against any principal of or interest on any of its
Loans, or any other amount payable to Bank hereunder, which is not paid when
due (regardless of whether such balances are then due to Borrower).
5.5 Credit Termination Date; Continuance of Obligations, Etc.
This Agreement, Bank's Commitment and Borrower's ability to borrow monies from
Bank shall be in effect until the Revolving Credit Termination Date or Term
Loan Termination Date, as applicable. Notwithstanding the foregoing and until
such date when Borrower's Liabilities shall be paid in full, Borrower's
obligations hereunder and under the Other Agreements shall continue, interest
shall continue to be paid in accordance with the foregoing and the Bank shall
retain all of its rights and remedies under this Agreement and the Other
Agreements.
5.6 Loan Evidence. Loans made by Bank to Borrower pursuant to
this Agreement may or may not (at Bank's sole and absolute discretion) be
evidenced by notes or other instruments issued or made by Borrower to Bank.
Where such loans are not so evidenced, such loans shall be evidenced solely by
entries upon the ledgers, books, records and/or computer records of Bank
maintained for that purpose, which entries shall be rebuttably presumptive
evidence of such loans in the absence of manifest error.
5.7 Over-Advances. If, at any time and for any reason, the
aggregate amount of Borrower's Liabilities outstanding hereunder exceeds the
limitations set forth in Paragraph 2.1 or Paragraph 2.2 (an "Over-Advance"),
then Borrower shall immediately pay to Bank, in cash, the amount of such
Over-Advance. If such Over-Advance remains outstanding for more than three (3)
days, until such Over-Advance is so repaid to Bank, the amount of such
Over-Advance shall bear interest at the applicable Default Rate.
5.8 Prepayment. If Borrower, after the Fixed Rate Election,
prepays the Term Loan, in whole or in part, prior to the Termination Date, the
same shall pay (i) the Make-Whole Amount (as defined below) plus (ii) one
percent (1%) prior to the
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third (3rd) anniversary of the Closing Date and zero percent (0%) thereafter.
For the purposes hereof, the "Make-Whole Amount" shall be the amount calculated
as follows:
(i) There shall first be determined, as of the
date fixed for prepayment (the "Prepayment Date"), the amount, if any,
by which (A) the Fixed Rate exceeds (B) the yield to maturity
percentage for the United States Treasury Note dated ______________,
2001 (the "Treasury Note") as published in The Wall Street Journal on
the fifth business day preceding the Prepayment Date plus two hundred
and twenty-five basis points (2.25%) (the "Current Yield"). If (A)
publication of The Wall Street Journal is discontinued, or (B)
publication of the Treasury Note in The Wall Street Journal is
discontinued, Bank, in its sole discretion, shall designate another
daily financial or governmental publication of national circulation to
be used to determine the Current Yield;
(ii) The difference calculated pursuant to clause
(i) above shall be multiplied by the outstanding principal balance
hereof as of the Prepayment Date;
(iii) The product calculated pursuant to clause
(ii) above shall be multiplied by the quotient, rounded to the nearest
one-hundredth of one percent, obtained by dividing (A) the number of
days from and including the Prepayment Date to and including the Term
Loan Maturity Date, by (B) 365; and
(iv) The sum calculated pursuant to clause (iii)
above shall be discounted at the annual rate of the Current Yield to
the present value thereof as of the Prepayment Date, on the assumption
that said sum would be received in equal monthly installments on each
monthly anniversary of the Prepayment Date prior to the Maturity Date,
with the final such installment to be deemed received on the Maturity
Date;
provided that Borrowers shall not be entitled in any event to a credit against,
or a reduction of, the Debt being prepaid if the Current Yield exceeds the
Fixed Rate or for any other reason.
6. LOANS: CONDITIONS TO LENDING
6.1 Initial Loan Conditions Precedent. In addition to those
conditions set forth in Paragraph 5.4 above with respect to all Loans and
advances hereunder, prior to or contemporaneously with the making of the
initial advance of funds, Bank's obligation to make any Loan is subject to the
satisfaction of the following conditions precedent:
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(a) Fees and Expenses. Borrower shall have paid all fees
owed to Bank and reimbursed Bank for all expenses due and payable hereunder on
or before the date hereof including, but not limited to, reasonable counsel
fees provided for in Paragraph 9.12 hereof.
(b) Documents. Bank shall have received the following
documents, in form and substance reasonably satisfactory to Bank, and all of
the transactions contemplated by each such document shall have been consummated
or each condition contemplated by each such document shall have been satisfied:
(i) Related Documents. Copies of this Agreement
as required by Bank and one copy of the Revolving Note and the Term
Note conforming to the requirements hereof duly executed by Borrower.
(ii) Legal Opinion. The legal opinion of counsel
to Borrower.
(iii) Officer's Certificate. A certificate
executed by the President of Borrower stating that (A) no Event of
Default or event which, but for the giving of notice or lapse of time
or both, would be an Event of Default (each such event, a "Default")
has occurred and is continuing, (B) the representations, warranties
and covenants of Borrower contained herein are true and correct, and
(C) all of the covenants, conditions and agreements of Borrower in
this Agreement, and all of the requirements of this Agreement shall
have been complied with.
(iv) Insurance Policies. Certificates from
Borrower's insurance carriers evidencing that all insurance policies
and coverage required by Paragraph 7.2(h) below are in effect.
(v) Certificate of Incorporation and Bylaws. A
copy of Borrower's Certificate or Articles of Incorporation, and all
amendments, certified by the Secretary of State of its jurisdiction of
incorporation, and a copy of Borrower's Bylaws certified by the
Secretary of Borrower.
(vi) Good Standing Certificate. A Good Standing
Certificate for Borrower from its jurisdiction of incorporation and
each state in which Borrower is required to be qualified to transact
business as a foreign corporation.
(vii) Regulatory Certificate. Regulatory
certificate from the Federal Reserve indicating that Borrower is a
registered bank holding company that was duly organized and registered
and is validly existing and has filed all reports required by the
Federal Reserve.
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(viii) Affiliate Regulatory Certificate.
Certificate from the OBRE that Xxxx Xxxxxx is an Illinois banking
corporation in good standing and authorized to transact the business
of banking dated as of a date not earlier than ten (10) business days
prior to the date hereof.
(ix) Affiliate Charter Documents. A copy of the
charter of Xxxx Xxxxxx certified to be true and correct by the OBRE.
(x) Board Resolutions. Certified copies of
resolutions of the Board of Directors of Borrower authorizing the
execution and delivery of and the consummation of the transactions
contemplated by this Agreement and the Other Agreements and all other
documents or instruments to be executed and delivered in conjunction
herewith and therewith on behalf of Borrower.
(xi) Incumbency Certificate. A certificate of the
Secretary or an Assistant Secretary of Borrower certifying the names
of the officer or officers of Borrower authorized to sign this
Agreement and the Other Agreements on behalf of Borrower together with
a sample of the true signature of each such officer.
(xii) Other Documents. Such other documents as
Bank may reasonably request.
(xiii) Disbursement Instructions. Written
instructions executed by an Authorized Officer as to the disbursement
of the initial advances of funds hereunder.
(c) Consummation of Split Off Transaction. The
transactions contemplated by that certain Amended and Restated Share Exchange
Agreement dated as of June 12, 1996 (the "Exchange Agreement") among Xxxx
Xxxxxx Financial Group, Inc. and certain members of the Xxxxxx family listed
therein shall close simultaneously with this Agreement and 100% of the Stock of
Xxxx Xxxxxx shall simultaneously with this Agreement be owned, directly and
beneficially, by Borrower.
7. REPRESENTATIONS AND WARRANTIES; COVENANTS;
INDEMNIFICATION; CONTINUING OBLIGATION
7.1 Representations and Warranties of Borrower. Borrower hereby
represents and warrants to the Bank as of the date hereof and, with respect to
subsections (a) through (e) and subsections (g) through (ee) below, the date of
disbursement of each Loan or advance hereunder, as follows:
(a) Corporate Existence, Authority and Capitalization.
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(i) Borrower is a corporation registered as a
bank holding company under the BHCA. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and is duly qualified to do business and is in good
standing under the laws of each state in which the ownership of its
properties and the nature and extent of the activities transacted by
it makes such qualification necessary except where the failure to be
so qualified could not reasonably be expected to have a Material
Adverse Effect.
(ii) Borrower has all requisite corporate power
and authority to conduct its activities as presently conducted, to own
its properties and to perform its obligations under this Agreement.
(iii) The authorized and issued capital stock of
Borrower, pursuant to Borrower's Certificate or Articles of
Incorporation and By-Laws, as of the Closing Date, consists of ______
shares of common stock, $______ par value per share, ______ of which
shares are validly issued and outstanding and fully paid and
non-assessable. As of the Closing Date, no other shares of Borrower's
Stock are authorized, issued or outstanding. As of the Closing Date,
the ownership of the Stock of Borrower is as set forth on Exhibit
7.1(a)(iii) . Borrower is not subject to any obligation, option,
warrant, put or call right (contingent or otherwise) to repurchase,
issue, acquire or retire any of its Stock nor are there any agreements
between any parties with respect to the voting or transfer of
Borrower's Stock. Borrower has not violated any applicable federal or
state securities laws in connection with the offer, sale or issuance
of its Stock.
(b) Corporate Existence and Capitalization of Xxxx
Xxxxxx. Xxxx Xxxxxx is an Illinois state banking corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois,
with deposit accounts federally insured by the Federal Deposit Insurance
Corporation, and has the requisite power and authority, corporate or otherwise,
to conduct its business as now conducted and as proposed to be conducted while
this Agreement is in effect. The authorized capital stock of Xxxx Xxxxxx
consists of _________ shares of common stock, $______ par value per share,
__________ of which shares are validly issued and outstanding and fully paid
and non- assessable (except as provided by state banking law). Borrower is the
beneficial and record owner of 100% of the issued and outstanding Stock of Xxxx
Xxxxxx, free and clear of all liens, encumbrances, rights of first refusal,
options or other restrictions of any nature whatsoever, and there are no
options, warrants or rights outstanding to acquire any capital stock of Xxxx
Xxxxxx and no Person has any other right to purchase or acquire any unissued
shares of Xxxx Xxxxxx, nor does Xxxx Xxxxxx have any obligation of any nature
with respect to its unissued shares of capital stock. Such Stock owned by
Borrower represents 100% of the voting power of Xxxx Xxxxxx.
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(c) Authorization; No Conflict. The execution, delivery
and performance by Borrower of this Agreement and the Other Agreements to which
it is a party are within Borrower's corporate powers, have been duly authorized
by all necessary corporate action and do not contravene (i) Borrower's
Certificate or Articles of Incorporation or Bylaws or (ii) any law or any
contractual restriction binding on or affecting Borrower, or its respective
properties, and do not result in or require the creation of any Lien (except as
may be created under this Agreement or the Other Agreements) upon or with
respect to any of its properties except for which consent has been obtained and
remains effective.
(d) No Approval. No authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
Borrower of this Agreement or any Other Agreement to which Borrower is a party
except for which the same has been obtained and remains effective.
(e) Validity and Binding Nature. This Agreement is, and
the Other Agreements to which Borrower is a party when delivered hereunder will
be, legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their respective terms except as such
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights, generally.
(f) Financial Statements and Condition.
(i) Borrower has delivered to Bank a pro forma
opening balance sheet as of September 30, 1996. The pro forma balance
sheet fairly presents on a pro forma basis the financial condition of
the Borrower as of September 30,1996, on a consolidated basis, after
giving effect to the consummation of the Exchange Agreement and
acquisition by Borrower of the Stock of Xxxx Xxxxxx including, without
limitation, all material fees and expenses incurred in connection
therewith. All pro forma information with respect to the Borrower
included in the pro forma balance sheet or otherwise provided by Xxxx
Xxxxxx has been derived from financial statements and information
prepared on the basis of accounting consistent with GAAP and with
accounting principles currently used by Borrower and all material
assumptions on which such pro forma information was based are
disclosed therein. The pro forma balance sheet has been prepared in
good faith and represents the good faith opinion of the Borrower as to
the assets and liabilities of Borrower at such date after giving
effect to the acquisition of Xxxx Xxxxxx. The portion of such pro
forma balance sheet involving Xxxx Xxxxxx has been prepared in
accordance with the rules and regulations of the OBRE.
(ii) Borrower has delivered to Bank copies of audited
financial statements as of and for the year ended December 31, 1995,
and interim
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financials as of the nine month period ended September 30, 1996 for
Xxxx Xxxxxx. All of these financial statements are complete and
correct, are in accordance with the respective books of account and
records of Xxxx Xxxxxx have been prepared in accordance with GAAP
applied on a basis consistent with prior periods and the rules and
regulations of the OBRE and fairly present the financial condition of
Xxxx Xxxxxx and its respective assets and liabilities and the results
of its operations as at such date. Since September 30, 1996, there
has been no material adverse change in the respective financial
condition, business, properties and operations of Xxxx Xxxxxx.
(iii) Borrower has delivered to Bank copies of Form FFIEC
032 filed by Xxxx Xxxxxx for the periods ended June 30, 1996,
September 30, 1996 and the year ended December 31, 1995 and copies of
Form FRY-9 filed by Xxxx Xxxxxx Financial Group, Inc. and the most
recent Form 10-K and Form 10-Q filings of Xxxx Xxxxxx Financial Group,
Inc. for the periods ended June 30, 1996, September 30, 1996 and for
the year ended December 31, 1995. All of these reports are complete
and correct, are in accordance with the respective books of account
and records of Xxxx Xxxxxx, and have been prepared in accordance with
applicable banking regulations, rules and guidelines on a basis
consistent with prior periods, and fairly and accurately present the
financial condition of Xxxx Xxxxxx and its respective assets and
liabilities and the results of their operations as at such date.
(g) Litigation. Except as set forth on Exhibit 7.1(g),
there is no pending or, to the knowledge of Borrower, threatened action, suit,
inquiry, investigation, or proceeding affecting, directly or indirectly,
Borrower, its Subsidiaries or their respective properties before any court,
governmental agency or arbitrator, which, in any case, (i) could reasonably be
expected to have a Material Adverse Effect, (ii) seeks to restrain the
transactions contemplated herein, or (iii) would affect the validity or
enforceability of this Agreement or the Other Agreements. Neither Borrower nor
any Subsidiary is currently operating under any restriction (other than
restrictions of general application to bank holding companies or Illinois
banking corporations, as applicable) imposed by any bank regulatory authority
having jurisdiction over Borrower or any Subsidiary.
(h) Securities Transaction. No proceeds of any Loan or
advance made by Bank to Borrower hereunder will be used to acquire any security
in any transaction which is subject to Section 13 or 14 of the Securities
Exchange Act of 1934, as amended.
(i) Regulation U. Neither Borrower nor its Subsidiaries
are engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System), and no proceeds of any Loan
or advance made by Bank to
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Borrower hereunder will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
(j) ERISA Termination Event and Funding. No ERISA
Termination Event has occurred nor is expected to occur with respect to any
Plan and all Plans, to the extent governed by ERISA, meet the minimum funding
standards of Section 302 of ERISA.
(k) Withdrawal Liability and Reportable Events. Neither
Borrower nor any ERISA Affiliate has incurred, or expects to incur, any
withdrawal liability under Section 4201 of ERISA to any Multiemployer Plan. No
Reportable Event (as defined in ERISA) has occurred with respect to any Plan.
(l) Taxes. Borrower and each of its Subsidiaries have
filed all tax returns (Federal, state and local) required to be filed and paid
all taxes shown thereon to be due, including interest and penalties, other than
such taxes that Borrower or a Subsidiary is contesting in good faith by
appropriate legal proceedings and proper reserves therefor have been
established on the respective books of Borrower or such Subsidiary. Each of
Borrower and its Subsidiaries have withheld amounts from its employees,
shareholders or holders of public deposit accounts in full and complete
compliance with the tax withholding provisions of applicable federal, state and
local laws and each has filed all federal, state and local returns and reports
for all years for which any such return or report would be due with respect to
employee income tax withholding, social security, unemployment taxes, income
and other taxes and all payments or deposits with respect to such taxes have
been made within the time period required by law.
(m) Liens. There are no Liens upon or with respect to
any of the properties of Borrower or any right to receive revenues of Borrower
or any of its Subsidiaries other than Permitted Liens.
(n) Conflicts. Neither Borrower nor any of its
Subsidiaries is a party to any indenture, loan or credit agreement or any lease
or other agreement or instrument (including corporate charters) which is likely
to have a Material Adverse Effect.
(o) Environmental Matters. To the best of Borrower's
knowledge after diligent inquiry:
(i) the operations of Borrower and each of its
Subsidiaries (including, without limitation, all operations and
conditions at or in the Facilities) comply with all Environmental
Laws; and
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(ii) no Hazardous Materials are stored or
otherwise located on any Facility owned, leased or operated by
Borrower, and no part of such Facility, including the groundwater
located thereon or thereunder, is contaminated by any Hazardous
Materials.
(p) Investment Company Act. Neither Borrower nor any of
its Subsidiaries is an "investment company" or a company "controlled by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
(q) Compliance with Laws. Borrower and its Subsidiaries
are in compliance with all laws, orders, regulations and ordinances of all
federal, foreign, state and local governmental authorities and regulatory
authorities binding upon or affecting the business, operation or assets of
Borrower and such Subsidiaries except where non-compliance therewith could not
reasonably be expected to have a Material Adverse Effect. Neither Borrower nor
any Subsidiary has received any notice or other information indicating that
subsidiary is not an "insured depository institution" as defined in 12 U.S.C.
1813.
(r) Other Agreements. Borrower makes each of the
representations and warranties contained in the Other Agreements to which
Borrower is a party operative and applicable for the benefit of the Bank as if
the same were set forth at length herein.
(s) Regulatory Reporting. Borrower and its Subsidiaries
have filed all reports, notices and other statements, together with any
amendments required to be made with respect thereto, if any, that they were
each required to file with the Federal Reserve and the OBRE and any other
governmental agency or authority with jurisdiction over Borrower or its
Subsidiaries and each of such reports, notices and other statements, including
the financial statements, exhibits and schedules thereto, complied in all
material respects with the relevant statutes, rules and regulations enforced or
promulgated by the regulatory authority with which they were filed. Xxxx
Xxxxxx has complied in all material respects with all laws and regulations
relating to the extension of credit.
(t) Affiliate Transactions. Neither Borrower nor its
Subsidiaries are a party to any transactions or agreements with any of
Borrower's other Affiliates; it being understood the foregoing shall not
prohibit transactions between Borrower and its Subsidiaries or between
Borrowers' Subsidiaries, provided such transactions or agreements shall be
arms' length transactions on terms no more favorable than would be applicable
in a third party transaction.
(u) Affiliates and Subsidiaries. Except as disclosed on
Exhibit 7.1(u), Borrower has no Affiliates or Subsidiaries.
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(v) Labor. As of the Closing Date, none of the employees
of Borrower or its Subsidiaries are subject to any collective bargaining
agreement. There are no strikes, work stoppages, election or decertification
petitions or proceedings, unfair labor charges, equal employment opportunity
proceedings, wage payment or material unemployment compensation proceedings,
material worker's compensation proceedings or other material labor or employee-
related controversies pending or threatened involving Borrower and any of its
employees.
(w) Solvency. Borrower has capital sufficient to carry
on its business and transactions and all businesses and transactions in which
it is about to engage and is solvent and able to pay its debts as they mature.
No transfer of property is being made and no Debt is being incurred in
connection with the transactions contemplated by this Agreement with the intent
to hinder, delay or defraud either present or future creditors of Borrower, its
Subsidiaries or any Affiliate.
(x) Loan Loss Reserve. The reserves for possible loan
and lease losses shown on the financial statements and reports for Borrower and
its Subsidiaries described in the financial statements specified in Paragraph
7.1(f) are adequate in all material respects to provide for all losses, net of
recoveries relating to loans previously charged off, on loans outstanding, as
of the date of such statement, and Borrower and its Subsidiaries have no reason
to believe that the loan portfolios of its Subsidiaries at such date will incur
losses in excess of such reserves.
(y) Title. Borrower has good, indefeasible and
merchantable title to and ownership of its assets, free and clear of all Liens,
claims, security interests and other encumbrances, except for Permitted Liens.
(z) Debt. As of the date of this Agreement, Borrower has
no Debt except for the Permitted Debt.
(aa) Insurance. Borrower and its Subsidiaries are
adequately insured under its policies of insurance currently in effect, no
notice of cancellation has been received with respect to such policies and
Borrower and its Subsidiaries are in compliance with all conditions contained
in such policies.
(bb) Absence of Default. No event has occurred which
either of itself or with the lapse of time or the giving of notice or both,
would give any creditor of Borrower or its Subsidiaries, the right to
accelerate the maturity of any Debt of Borrower or its Subsidiaries having a
principal amount, individually or in the aggregate in excess of $50,000.
Neither Borrower nor any Subsidiary is in default under any other lease,
agreement or instrument, or any law, rule, regulation, order, writ, injunction,
decree, determination or award, non-compliance with which could reasonably be
expected to have a Material Adverse Effect.
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(cc) No Burdensome Agreements. Neither Borrower nor any
Subsidiary or Affiliate is a party to any agreement, instrument or undertaking
or subject to any other restriction, (i) which presently has a Material Adverse
Effect, or (ii) under or pursuant to which Borrower or any Subsidiary or
Affiliate is 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 such demand.
(dd) Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of Borrower to Bank
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other factual information (taken as a whole)
hereafter furnished by or on behalf of Borrower to Bank will be, true and
accurate in every material respect on the date as of which such information is
dated or certified, and Borrower has not omitted and will not omit any material
fact necessary to prevent such information from being false or misleading.
7.2 Affirmative Covenants. At all times prior to the Termination
Date and thereafter for so long as any amounts are due or owing to the Bank
hereunder, Borrower hereby covenants that it will, and cause its Subsidiaries
to, unless the Bank otherwise consents in writing:
(a) Existence, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect Borrower's and each
Subsidiary's corporate existence in good standing in their respective
jurisdictions of incorporation and in each other jurisdiction where the failure
to be in good standing could reasonably be expected to have a Material Adverse
Effect.
(b) Compliance with Laws, Etc. Comply, and cause each
Subsidiary to comply, with all applicable present and future laws, rules,
ordinances, regulations and orders including, without limitation, laws, rules,
ordinances, regulations and orders regarding the operation and maintenance of
Borrower's and each Subsidiary's respective business including, without
limitation, the BHCA, the Illinois Banking Act and the Federal Deposit
Insurance Act.
(c) Payment of Taxes and Other Claims. Pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (i)
all Charges levied or imposed upon Borrower and each Subsidiary or upon the
income, profits or property of Borrower and each Subsidiary, and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a Lien upon the property of Borrower or any Subsidiary; provided,
however, that Borrower or any Subsidiary shall not be required to pay or
discharge or cause to be paid or discharged any such Charge or claim whose
amount, applicability or validity is being contested in good faith by
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appropriate proceedings to the extent adequate reserves have been established
on the books of Borrower or any Subsidiary, as the case may be.
(d) Reporting Requirements. Keep true books of record
and account in which full, true and correct entries in accordance with GAAP
consistently applied will be made of all dealings or transactions in relation
to its business and activities, and shall furnish to the Bank:
(i) within ninety (90) days after the close of
each fiscal year of Borrower, consolidated audited financial
statements for Borrower and its Subsidiaries, including a balance
sheet and related profit and loss statement, prepared in accordance
with GAAP consistently applied throughout the periods reflected
therein by independent certified public accountants acceptable to
Bank, who shall give their opinion with respect thereto subject only
to such qualifications which are reasonably acceptable to Bank and
including Borrower-only financial statements prepared in accordance
with GAAP consistently applied throughout the periods reflected
therein for the same fiscal year as the annual audited financials;
(ii) within forty-five (45) days after the close
of each quarter of each fiscal year of Borrower (other than the last
fiscal quarter of each fiscal year), consolidated financial statements
for Borrower and its Subsidiaries, including a balance sheet and
related profit and loss statement, prepared in accordance with GAAP
consistently applied throughout the period reflected therein;
(iii) within forty-five (45) days after the close
of each quarter of each fiscal year of Borrower, or within such
further time as Bank may permit, copies of the Form FFIEC 032 as filed
by Xxxx Xxxxxx with federal bank regulatory agencies, and as soon as
available, but in any event not more than forty-five (45) days after
the close of each quarter of each fiscal year of Borrower, or within
such further time as Bank may permit, a copy of Form Y-9 filed by
Borrower with the Federal Reserve;
(iv) concurrently with the delivery of the
financial statements required by subsection (i) above, Borrower shall
deliver to Bank (a) a certificate of the accountants who performed the
audit in connection with such statements (1) containing a computation
of, and showing compliance with the financial covenants and
restrictions set forth in Paragraph 7.2(i) of this Agreement; (2)
stating that in making the audit necessary to the issuance of a report
on such financial statements, they have obtained no knowledge that any
Event of Default or event which, with notice or a lapse of time or
both, would constitute an Event of Default, as it relates to
accounting matters, has occurred and is continuing or, if such
accountants have obtained knowledge of an Event
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of Default or such event, specifying the nature and period of
existence thereof and (b) a certificate of Borrower executed by the
President or Chief Financial Officer of Borrower stating whether any
Event of Default, or Default, currently exists and is continuing and
what activities, if any, Borrower is taking or proposing to take with
respect thereto;
(v) concurrently with the delivery of the
financial statements referred to in Paragraphs (i) and (ii) , a
compliance certificate duly completed and executed by both the
Chairman of the Board or President and the Chief Financial Officer of
Borrower (a) stating that Borrower has observed and performed all of
its covenants and other agreements and satisfied every condition,
contained in this Agreement, the Term Note, the Revolving Note and all
Other Agreements to which Borrower is a party to be observed,
performed or satisfied by it and that such officer has no knowledge of
any Event of Default except as specified in such certificate, (b)
stating that, to the best of such officer's knowledge, all such
financial statements are complete and correct in all respects and have
been prepared in accordance with GAAP consistently applied throughout
the periods reflected therein, and (c) showing calculations of
compliance with the financial covenants set forth in Paragraph 7.2(i).
(vi) as soon as possible and in any event within
ten (10) days after the occurrence of an Event of Default or Default,
the statement of an Authorized Officer of Borrower setting forth
details of such Event of Default or Default and the action which
Borrower has taken or proposes to take to cure the same;
(vii) (A) as soon as possible and in any event
(i) within thirty (30) days after Borrower or any ERISA Affiliate
knows or has reason to know that any ERISA Termination Event described
in clause (i) of the definition of ERISA Termination Event with
respect to any Plan has occurred and (ii) within ten (10) days after
Borrower or any ERISA Affiliate knows or has reason to know that any
other ERISA Termination Event with respect to any Plan has occurred, a
statement of the Chief Financial Officer (or designee) of Borrower
describing such ERISA Termination Event and the action, if any, which
Borrower, or any such ERISA Affiliate proposes to take with respect
thereto;
(B) promptly and in any event within two
(2) Business Days after receipt thereof by Borrower or any ERISA
Affiliate from the PBGC, copies of each notice received of the PBGC's
intention to terminate any Plan or to have a trustee appointed to
administer any Plan; and
(C) promptly and in any event within ten
(10) Business Days after receipt thereof by Borrower or any ERISA
Affiliate from a Multiemployer Plan sponsor, a copy of each notice
received concerning the
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imposition or amount of withdrawal liability pursuant to Section 4202
of ERISA;
(viii) promptly after notice to Borrower of the commencement
thereof, notice, in writing, of any action, suit, arbitration or other
proceeding instituted, commenced or threatened in writing against or
affecting Borrower with an amount in controversy in excess of
$100,000;
(ix) if requested by Bank, Borrower's federal,
state and local tax returns as soon as said returns are completed in
the form said returns will be filed with the Internal Revenue Service
and any state or local department of revenue or taxing authority;
(x) promptly upon their becoming available,
copies of (A) all registration statements and regular periodic reports
which Borrower shall have filed with the Securities and Exchange
Commission (or any governmental agency substituted therefor) or any
national securities exchange and (B) all financial statements, reports
and proxy statements so mailed; and
(xi) such other information respecting the
condition or operations, financial or otherwise, of Borrower or any
Affiliate as the Bank may from time to time reasonably request.
(e) Loan Loss Reserves. Xxxx Xxxxxx shall maintain a
reserve for possible loan losses which is adequate in all respects to provide
for possible or specific losses, net of recoveries relating to loans previously
charged off, on loans outstanding and which contains an additional amount of
unallocated reserves for unanticipated future losses at a level consistent with
administrative policies approved by the Board of Directors of Xxxx Xxxxxx.
(f) Visitation Rights. At any time or times during
regular business hours, permit Bank or any agents or representatives thereof,
to examine and make copies of and abstracts from the records and books of
account of and visit and inspect the properties of Borrower, all as Bank shall
reasonably request, and to discuss the affairs, finances and accounts with
Borrower's officers or directors; provided, however, that prior to the
occurrence of an Event of Default, no more than one (1) such visit shall be
made by Bank in any calendar year. In furtherance and not in limitation of the
foregoing, Borrower agrees to bear all expenses of any visitation made by Bank
for the purposes set forth in this Paragraph 7.2(f).
(g) Environmental Disclosure and Inspection.
(i) Exercise due diligence in order to comply in
all material respects with all Environmental Laws.
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(ii) Promptly advise Bank in writing and in
reasonable detail of (i) any Release of any Hazardous Materials
required to be reported to any federal, state or local governmental or
regulatory agency under any applicable Environmental Laws, (ii) any
and all written communications with respect to Environmental Claims or
any Release of Hazardous Material required to be reported to any
federal, state or local governmental or regulatory agency, (iii) any
remedial action taken by Borrower or any other person in response to
(1) any Hazardous Material on, under or about any Facility, the
existence of which is reasonably likely to give rise to an
Environmental Claim, or (2) any Environmental Claim that could have a
material adverse effect on Borrower or any Affiliate, (iv) Borrower's
discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such
Facility or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use there of under any
Environmental Laws, and (v) any request for information from any
governmental agency indicating that such agency has initiated an
investigation as to whether Borrower or any Affiliate may be
potentially responsible for a Release or threatened Release of
Hazardous Materials.
(iii) At its own expense, provide copies of such
documents or information as Bank may reasonably request in relation to
any matters disclosed pursuant to this Paragraph 7.2(g).
(iv) Promptly take any and all necessary remedial
action in connection with the presence, storage, use, disposal,
transportation, Release or threatened Release of any Hazardous
Materials on, under or about any Facility in order to comply with all
applicable Environmental Laws and Governmental Authorizations. In the
event Borrower or any Affiliate undertakes any remedial action with
respect to any Hazardous Material on, under or about any Facility,
Borrower or such Affiliate shall conduct and complete such remedial
action in compliance with all applicable Environmental Laws and in
accordance with the policies, orders and directives of all federal,
state and local governmental authorities.
(h) Insurance.
(i) At its sole cost and expense, keep and
maintain business interruption insurance and public liability and
property damage insurance relating to its business and properties.
All such policies of insurance shall be in form and with insurers
recognized as adequate by prudent business persons and all such
policies shall be in amounts reasonably satisfactory to Bank.
Borrower shall deliver to Bank the original (or certified) copy of
each policy of insurance, or a certificate of insurance, and evidence
of payment of all premiums for each such policy on or prior to the
date of this Agreement. Such policies shall:
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(A) contain a lender's loss payable clause naming Bank, for the
benefit of Bank, as loss payee and additional insured as its interest
may appear; and (B) provide that the insurance companies will give
Bank at least thirty (30) days written notice before any such policy
or policies of insurance shall be altered or cancelled.
(ii) In the event Borrower at any time or times hereafter
shall fail to obtain or maintain any of the policies of insurance
required above or to pay any premium in whole or in part relating
thereto, then Bank after giving five (5) days' prior notice to
Borrower, without waiving or releasing any obligation or Event of
Default by Borrower hereunder, may at any time or times thereafter
(but shall be under no obligation to) obtain and maintain such
policies of insurance and pay such premium and take any other action
with respect thereto which Bank deems advisable. All sums so
disbursed by Bank, including reasonable attorneys fees, court costs,
expenses and other charges relating thereto, shall be part of
Borrower's Liabilities, payable by Borrower to Bank on demand.
(i) Financial Covenants. Borrower warrants and
represents to and covenants with the Bank that it shall cause Xxxx Xxxxxx to:
(i) Maintain applicable regulatory ratios at or
above the "Well Capitalized" level at all times as determined by the
Federal Reserve in accordance with 12 C.F.R. Section 208 or any
successor thereof.
(ii) Maintain Capital, at all times, of not less
than $110.0 million.
(iii) Maintain a Return on Average Assets, at all
times, of at least (A) one-half of one percent (0.50%) from the
Closing Date to December 31, 1997; (B) six-tenths of one percent
(0.60%) from January 1, 1998 until December 31, 1998; and (C)
seven-tenths of one percent (0.70%) from January 1, 1999 through the
Termination Date, in each case calculated in accordance with GAAP.
(iv) Maintain a ratio of (a) Non-Performing Assets
to (b) Capital (plus the amount of the Allowance for Loan and Lease
Losses) not exceeding twenty-five percent (25%) at any time.
(v) Maintain ratio of (a) Allowance for Loan and
Lease Losses to (b) Non-Performing Loans of not less than 1:1, at any
time, determined in accordance with GAAP.
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Borrower further agrees to maintain a ratio of (a) Debt to (b)
shareholder's equity (as determined in accordance with GAAP) not exceeding
thirty percent (30%) at any time. Notwithstanding anything contained herein to
the contrary, all of the financial covenants contained in this Paragraph 7.2(i)
shall be measured as of the end of each calendar quarter.
7.3 Negative Covenants. Prior to the Term Loan Termination Date
and thereafter for so long as any amount is due or owing to the Bank hereunder,
unless the Bank shall otherwise consent in writing, Borrower shall not:
(a) Liens, Etc. Create or suffer to exist, any Lien,
other charge, pledge or encumbrance, or any other type of preferential
arrangement, upon or with respect to any of its assets or properties including,
but not limited to, the Stock of Xxxx Xxxxxx, whether now owned or hereafter
acquired, or assign any right to receive income, except for Permitted Liens.
(b) Maintain Existence, Merger, Etc. (i) dissolve or
liquidate or amend or modify its Articles or Certificate of Incorporation, as
applicable, or the Charter, of any Affiliate or Subsidiary; or (ii) convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) any assets (whether now owned or hereafter acquired) to
any Person except in the ordinary course of business; or (iii) together with
one or more Affiliates convey, transfer, lease or otherwise dispose of (whether
in one transaction or in a series of transactions) all or substantially all of
the assets of Borrower and such Affiliates (whether now owned or hereafter
acquired) to any Person; or (iv) purchase, lease or otherwise acquire all or
substantially all of the assets or properties of, or acquire any capital stock,
equity interests, debt or other securities of any Person, or enter into any
joint venture or become a partner in any partnership; (v) engage in any
transaction out of the ordinary course of business; or (vi) merge or
consolidate with any Person.
(c) Transfer of Stock. Sell, pledge, transfer, assign or
otherwise dispose of, nor permit any stockholder of Borrower to sell, pledge,
transfer, assign or otherwise dispose of, to any person or entity, or group of
persons or entities acting in concert, directly or indirectly, in one
transaction or a series of transactions, any shares of the outstanding Stock of
Borrower or any Subsidiary or Affiliate.
(d) Debt. Incur, create, assume, become or be liable in
any manner with respect to or permit to exist, any Debt, obligations or
indebtedness, except for Permitted Debt.
(e) Investments or Loans. Make or permit to exist
investments or loans in or to any other Person. Nothing in this Paragraph
7.3(e) shall prohibit Xxxx Xxxxxx from making loans, advances or other
extensions of credit in the ordinary course of its banking business upon
substantially the same terms as may at the time
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be customary in the banking business, which loans, advances, or other
extensions of credit may (but need not) be secured by capital stock or other
security of any third party. Furthermore, nothing in this Paragraph 7.3(e)
shall prohibit Xxxx Xxxxxx from acquiring capital stock or other security from
any third party by foreclosure or otherwise, provided such capital stock or
other security is acquired in the ordinary course of Xxxx Xxxxxx'x banking
business when collecting a debt previously contracted in good faith.
(f) Guaranties. Guaranty, endorse or otherwise in any
way directly, indirectly or contingently become liable for the obligations or
liabilities of any other Person, except endorsements of negotiable instruments
for collection in the ordinary course of business.
(g) Stock and Dividends.
(i) Redeem, retire, purchase or otherwise acquire,
directly or indirectly, any Stock of Borrower or other evidence of
ownership interest, or declare or pay dividends upon any Stock of
Borrower or make any distribution of Borrower's property or assets,
except for (a) if no Event of Default exists or would result
therefrom, dividend payments on common and preferred stock issued
prior to the date hereof or concurrent with the consummation of the
Transactions in accordance with Borrower's Certificate or Articles of
Incorporation, (b) redemptions of Stock from retiring employees, or
(c) redemptions of Stock from former employees or their estates in
connection with Borrower's Employee Stock Ownership Plan or other
employee benefit plans.
(ii) Authorize or issue any Stock of Borrower or any
Subsidiary or Affiliate thereof, except for such Stock authorized,
issued or outstanding on the date hereof.
(h) Transactions with Affiliates or Insiders. Enter
into, or be a party to, any transaction with any Affiliate or stockholder of
Borrower, except in the ordinary course of and pursuant to the reasonable
requirements of Borrower's business and upon fair and reasonable terms which
are fully disclosed to Bank and are no less favorable to Borrower than would
obtain in a comparable arm's length transaction with a Person not an Affiliate
or stockholder of Borrower.
(i) Safe and Sound Banking Practices. Engage in, or permit
any Affiliate to engage in, any unsafe or unsound banking practices.
8. DEFAULT
8.1 Events of Default. The occurrence of any one of the following
events shall constitute a default ("Event of Default") by Borrower under this
Agreement: (a) if
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Borrower fails or neglects to perform, keep or observe any covenant or agreement
contained in this Agreement or in the Other Agreements which is required to be
performed, kept or observed by Borrower and such failure continues for thirty
(30) days after notice thereof from Bank; (b) any representation or warranty
made by Borrower herein or in any Other Agreement is breached or is false or
misleading in any material respect, or any exhibit, schedule, certificate,
financial statement, report, notice or other writing furnished by Borrower or
any of its partners, shareholders, directors, officers, employees, or agents
to any Bank is false or misleading in any material respect on the date as of
which the facts therein set forth are stated or certified; (c) if Borrower
fails to pay Borrower's Liabilities when due and payable or declared due and
payable; (d) if any of Borrower's assets are attached, seized, subjected to a
writ or distress warrant or is levied upon, or comes within the possession of
any receiver, trustee, custodian or assignee for the benefit of creditors and
the same is not terminated or dismissed within thirty (30) days thereafter; (e)
if a petition under any section or chapter of the Bankruptcy Reform Act of 1978,
as amended, or any similar law or regulation shall be filed by Borrower or if
Borrower shall make an assignment for the benefit of its creditors or if any
case or proceeding is filed by Borrower for its dissolution or liquidation; (f)
if Borrower is enjoined, restrained or in any way prevented by court order from
conducting all or any material part of its business affairs or if a petition
under any section or chapter of the Bankruptcy Reform Act of 1978, as amended,
or any similar law or regulation is filed against Borrower or if any case or
proceeding is filed against Borrower for its dissolution or liquidation and such
injunction, restraint or petition is not dismissed or stayed within forty-five
(45) days after the entry or filing thereof; (g) if an application is made by
Borrower for the appointment of a receiver, trustee or custodian for any of
Borrower's assets; (h) if an application is made by any Person other than
Borrower for the appointment of a receiver, trustee or custodian for the assets
of Borrower and the same is not dismissed within forty-five (45) days after the
application therefor; (i) if a notice of lien, levy, or assessment is filed of
record with respect to all or any of the assets of Borrower by the United States
or any department, agency or instrumentality thereof or by any state, county,
municipal or other governmental agency, including without limitation the PBGC,
or if any taxes or debts owing at any time or times thereafter to any one of
them becomes a lien or encumbrance upon any of the assets of Borrower and the
same is not released within forty-five (45) days after the same becomes a lien
or encumbrance; (j) if Borrower becomes insolvent or is unable generally to pay
its debts as they become due; (k) if Borrower is in default in the payment of
Debt in an amount in excess of $100,000; (l) the appointment of a conservator
for all or any portion of the assets of Borrower; or (m) the occurrence of a
material breach, a default or an event of default by Borrower under any of the
Other Agreements after any cure period applicable to any such breach, default or
event of default has expired.
8.2 Cumulative Remedies. All of the Bank' and Bank's rights and
remedies under this Agreement and the Other Agreements are cumulative and
non-exclusive.
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8.3 Acceleration and Termination of Loans. Upon the occurrence
and during the continuance of an Event of Default, (a) upon notice by any Bank
to Borrower, Borrower's Liabilities shall be immediately due and payable,
unless there shall have occurred an Event of Xxxxxxx xxxxx xxxxxxxxxxxxx
0.0(x), (x), (x), (x), (x), (x), (x) or (l), in which case Borrower's
Liabilities shall automatically become due and payable without notice or
demand, and (b) without notice by any Bank to or demand by any Bank of
Borrower, the Bank shall have no further obligation to and may then forthwith
cease advancing monies or extending credit to or for the benefit of Borrower
under this Agreement and the Other Agreements.
8.4 Rights of Creditor. Upon an Event of Default, Bank, in its
sole and absolute discretion, may exercise any one or more of the rights and
remedies accruing (a) under applicable law upon default by a debtor, (b) under
any instrument or (c) under any document or agreement. Nothing contained
herein shall interfere with Bank's right under law to set-off the balances of
any deposit accounts maintained by Borrower with Bank against Borrower's
Liabilities.
8.5 Injunctive Relief. Borrower recognizes that in the event
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement or the Other Agreements, no remedy of law will
provide adequate relief to Bank, and agrees that Bank shall be entitled to
temporary and permanent injunctive relief in any such case without the
necessity of proving actual damages or the posting of bond, surety or other
security.
9. GENERAL
9.1 Payment Application Date. Any check, draft, or similar item
of payment by or for the account of Borrower delivered to Bank on account of
Borrower's Liabilities shall be applied by Bank on account of Borrower's
Liabilities on the date final settlement thereof is reflected by irrevocable
credit to Bank.
9.2 Statement of Account. Each statement of account by Bank
delivered to Borrower relating to Borrower's Liabilities shall be presumed
correct and accurate, absent manifest error, and shall constitute an account
stated between Borrower and Bank unless, within ninety (90) days after
Borrower's receipt of said statement, Borrower delivers to Bank, by registered
or certified mail addressed to Bank at its Address for Notices specified on the
signature pages hereto, written objection thereto specifying the error or
errors, if any, contained in any such statement.
9.3 Manner of Application; Waiver of Setoff Prohibition. Upon the
occurrence and during the continuance of an Event of Default, Borrower waives
the right to direct the application of any and all payments at any time or
times hereafter received by Bank on account of Borrower's Liabilities and
Borrower agrees that Bank shall have the right, in its absolute and sole
discretion, to apply and re-apply any and
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all such payments in such manner as Bank may deem advisable, notwithstanding
any entry by Bank upon any of its books and records. Borrower further waives
any right under or benefit of any law that would restrict or limit the right or
ability of Bank to obtain payment of Borrower's Liabilities, including any law
that would restrict or limit Bank in the exercise of its right to appropriate
any indebtedness owing from Bank to Borrower and any deposits or other property
of Borrower in the possession or control of Bank and apply the same toward or
setoff the same against the payment of Borrower's Liabilities.
9.4 Survival of Representations and Warranties. Borrower
covenants, warrants and represents to Bank that all representations and
warranties of Borrower contained in this Agreement and the Other Agreements
shall be true at the time of Borrower's execution of this Agreement and the
Other Agreements and shall survive the execution, delivery and acceptance
thereof by the parties thereto and the closing of the transactions described
therein or related thereto.
9.5 Integration; Amendment; Assignment; Participation.
(a) This Agreement and the Other Agreements constitute
the entire agreement and understanding between the parties relating to the
subject matter hereof and supersede all prior agreements, whether oral or
written, including without limitation, that certain Commitment Letter dated
October 17, 1996. This Agreement and the Other Agreements may not be modified,
altered or amended except by an agreement in writing signed by Borrower and
Bank, and no provision of this Agreement may be waived except with the consent
in writing of Bank in accordance with Paragraph 9.6 below.
(b) Bank shall have the right to assign to one or more
banks or other financial institutions all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Commitment, the Loans and the Other Agreements). Upon any such
assignment, (i) the assignee shall become a party hereto and, to the extent of
such assignment, have all rights and obligations of Bank hereunder and under
the Other Agreements and (ii) Bank shall, to the extent of such assignment,
relinquish its rights and be released from its obligations hereunder and under
the Other Agreements. Borrower hereby agrees to execute and deliver such
documents, and to take such other actions, as Bank may reasonably request to
accomplish the foregoing.
(c) In addition to the assignments permitted in
subsection (b) of this Paragraph 9.5, Bank and any assignee pursuant to
subsection (b) above shall have the right to grant participations to one or
more banks or other financial institutions in or to any Loan hereunder (and the
Other Agreements) without notice to or consent from Borrower.
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9.6 No Waiver. Bank's failure at any time or times hereafter to
require strict performance by Borrower of any provision of this Agreement shall
not waive, affect or diminish any right of Bank or Bank thereafter to demand
strict compliance and performance therewith. Any suspension or waiver by Bank
of an Event of Default by Borrower under this Agreement or the Other Agreements
shall not suspend, waive or affect any other Event of Default by Borrower under
this Agreement or the Other Agreements, whether the same is prior or subsequent
thereto and whether of the same or of a different type. None of the
undertakings, agreements, warranties, covenants or representations of Borrower
contained in this Agreement or the Other Agreements and no Event of Default by
Borrower under this Agreement or the Other Agreements shall be deemed to have
been suspended or waived by Bank unless such suspension or waiver is by an
instrument in writing by Bank specifying such suspension or waiver and given
pursuant to the requirements of Paragraph 9.16 hereof.
9.7 Severability. If any provision of this Agreement or the Other
Agreements or the application thereof to any Person or circumstance is held
invalid or unenforceable, the remainder of this Agreement and the Other
Agreements and the application of such provision to other Persons or
circumstances will not be affected thereby and the provisions of this Agreement
and the Other Agreements shall be severable in any such instance.
9.8 Successors and Assigns. This Agreement and the Other
Agreements shall be binding upon and inure to the benefit of the successors and
assigns of Borrower and Bank. This provision, however, shall not be deemed to
modify Paragraph 9.5 hereof.
9.9 Conflict with Other Agreements. The provisions of the Other
Agreements are incorporated in this Agreement by this reference thereto.
Except as otherwise provided in the Other Agreements by specific reference to
the applicable provision of this Agreement, if any provision contained in this
Agreement is in conflict with, or inconsistent with, any provision in the Other
Agreements, the provision contained in this Agreement shall govern and control.
9.10 No Impairment by Termination. Except to the extent provided
to the contrary in this Agreement and in the Other Agreements, no termination
or cancellation (regardless of cause or procedure) of this Agreement or the
Other Agreements shall in any way affect or impair the powers, obligations,
duties, rights and liabilities of Borrower or Bank in any way or respect
relating to (a) any transaction or event occurring prior to such termination or
cancellation and/or (b) any of the undertakings, agreements, covenants,
warranties and representations of Borrower contained in this Agreement or the
Other Agreements. All such undertakings, agreements, covenants, warranties and
representations shall survive such termination or cancellation.
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9.11 Waivers. Except as otherwise specifically provided in this
Agreement, Borrower waives any and all notice or demand which Borrower might be
entitled to receive with respect to this Agreement or the Other Agreements by
virtue of any applicable statute or law and waives presentment, demand and
protest and notice of presentment, protest, default, dishonor, non-payment,
maturity, release, compromise, settlement, extension or renewal of any or all
commercial paper, accounts, contract rights, documents, instruments, chattel
paper and guaranties at any time held by the Bank on which Borrower may in any
way be liable and hereby ratifies and confirms whatever Bank may do in this
regard.
9.12 Costs, Fees and Expenses Related to Agreement and Other
Agreements. In accordance with this Agreement on or prior to the date hereof
and thereafter upon demand by Bank therefor, Borrower shall pay or reimburse
Bank for all costs, fees and expenses incurred by Bank, or for which Bank
becomes obligated, in connection with the negotiation, preparation and
consummation of this Agreement and the Other Agreements, including but not
limited to, reasonable attorneys' fees, costs and expenses; search fees, costs
and expenses; and all taxes (other than taxes payable on the net income of
Bank) payable in connection with this Agreement or the Other Agreements. That
portion of Borrower's Liabilities consisting of costs, expenses or advances to
be reimbursed by Borrower to Bank pursuant to this Agreement or the Other
Agreements which are not paid on or prior to the date hereof shall be payable
by Borrower to Bank on demand.
9.13 Environmental Indemnity. Borrower agrees to indemnify and
save Bank, its officers, directors, employees and agents, harmless of, from and
against any liability, loss, damage or expense (including reasonable attorneys'
fees) to which Bank or any of such persons may become subject, arising from or
based upon (a) any violation, or claim of violation, by Borrower of any laws,
regulations or ordinances relating to Hazardous Materials, or (b) any Hazardous
Materials located or disposed of on or released or transported from any
property owned, leased or operated by Borrower, or any claim of any of the
foregoing.
9.14 Release. Borrower releases Bank from any and all causes of
action, claims or rights which Borrower may now or hereafter have for, or which
may arise from, any loss or damage caused by or resulting from any act or
omission to act on the part of Bank, its officers, agents or employees, except
in each instance for willful misconduct and gross negligence.
9.15 Governing Law. This Agreement and the Other Agreements shall
be governed and controlled by the laws of the State of Illinois as to
interpretation, enforcement, validity, construction, effect, choice of law, and
in all other respects including, but not limited to, the legality of the
interest rate and other charges.
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9.16 Notices. All notices, consents, requests, demands and other
communications hereunder shall be in writing and shall be deemed duly given to
any party or parties (a) upon delivery to the address of the party or parties
as specified in the "Address for Notices" below such party or parties' name on
the signature pages hereof if delivered in person or by courier or if sent by
certified or registered mail (return receipt requested), or (b) upon dispatch
if transmitted by telecopy or other means of facsimile transmission and
electronic confirmation of receipt, in any case to the party or parties at the
telecopy numbers specified on the same, or to such other address or telecopy
number as any party may hereafter designate by written notice in the aforesaid
manner.
9.17 FORUM; BANK; VENUE; JURY TRIAL WAIVER. TO INDUCE BANK TO
ACCEPT THIS AGREEMENT AND THE OTHER AGREEMENTS, BORROWER, IRREVOCABLY AGREES
THAT, SUBJECT TO BANK'S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS
IN ANY WAY, MANNER, OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS
AGREEMENT OR THE OTHER AGREEMENTS SHALL BE LITIGATED ONLY IN COURTS HAVING
SITUS WITHIN CHICAGO, ILLINOIS. BORROWER HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED WITHIN SAID CITY AND
STATE. BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE
VENUE OF ANY LITIGATION BROUGHT AGAINST BORROWER BY BANK IN ACCORDANCE WITH
THIS PARAGRAPH. BORROWER HEREBY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY ACTION IN WHICH BORROWER IS A PARTY.
9.18 Other Costs, Fees and Expenses. If at any time or times
hereafter Bank: (a) employs counsel for advice or other representation (i) with
respect to this Agreement or the Other Agreements, (ii) to represent Bank in
any litigation, contest, dispute, suit or proceeding or to commence, defend, or
intervene or to take any other action in or with respect to any litigation,
contest, dispute, suit, or proceeding (whether instituted by Bank, Borrower, or
any other Person) in any way or respect relating to this Agreement, the Other
Agreements or Borrower's affairs, or (iii) to enforce any rights of Bank
against Borrower or any other Person which may be obligated to Bank by virtue
of this Agreement or the Other Agreements; and/or (b) attempts to or enforces
any of Bank's rights or remedies under the Agreement or the Other Agreements,
the reasonable costs and expenses incurred by Bank in any manner or way with
respect to the foregoing, shall be part of Borrower's Liabilities, payable by
Borrower to Bank on demand.
9.19 Revival. To the extent that Bank receives any payment on
account of Borrower's Liabilities and any such payment(s) and/or proceeds or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside, subordinated and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy act, state or federal
law, common law or equitable cause, then,
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to the extent of such payment(s) and/or proceeds received, Borrower's
Liabilities or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment(s) and/or proceeds had
not been received by Bank and applied on account of Borrower's Liabilities.
9.20 Acknowledgments. Borrower acknowledges that (i) it has been
advised by counsel of its choice with respect to this Agreement and the
transactions contemplated hereby, (ii) each of the waivers set forth herein was
knowingly and voluntarily made; and (iii) the obligations of Bank hereunder,
including the obligation to advance and lend funds to Borrower in accordance
herewith, shall be strictly construed and shall be expressly subject to
Borrower's compliance in all respects with the terms and conditions herein set
forth.
9.21 Section Headings. Section headings used in this Agreement are
for convenience only and shall not effect the construction or interpretation of
this Agreement.
9.22 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
9.23 Effectiveness. This Agreement shall become effective upon the
execution and delivery to Bank of counterparts of this Agreement by Borrower
and the Bank.
9.24 Effectiveness. Bank shall hold all non-public information
obtained pursuant to this Agreement in accordance with its customary procedures
for handling confidential information of this nature and will use such
information only in connection with the transactions contemplated by this
Agreement, and in any event may make disclosure of any such information (i) to
the extent required by law (including statute, rule, regulation or judicial
process), (ii) to counsel for Bank or to their accountants, each of whom shall
also be bound by the confidentiality obligations set forth herein, (iii) to
bank examiners and auditors and appropriate government examining authorities,
(iv) to the extent necessary or appropriate in connection with any litigation
to which Bank is a party, or (v) to any permitted actual or prospective
participant in or any Loan owing to or Note held by Bank; provided that each
such person or entity shall undertake in writing to Bank (for the benefit of
Bank and Borrower) prior to such disclosure by Bank to maintain the
confidentiality of such information subject to the same terms and restrictions
provided in this Paragraph 9.24 for Bank.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year specified at the beginning hereof.
ATTEST: XXXXXX CAPITAL GROUP, INC.
By:
--------------------------------------- ---------------------------------
------------------------------Secretary Title:
---------------------------
Address for Notices:
000 Xxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (847)
--------------
Telephone No.: (847)
--------------
Attention:
--------------------------
LASALLE NATIONAL BANK
By:
---------------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
Address for Notices:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxx X. Xxxxxxx
Vice President
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
Vedder, Price, Xxxxxxx & Kammholz
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
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LIST OF EXHIBITS
Exhibit 3.1 Form of Revolving Note
Exhibit 3.2 Form of Term Note
Exhibit 7.1(a)(iii) Ownership of the Stock of Borrower
Exhibit 7.1(g) Litigation
Exhibit 7.1(u) Affiliates and Subsidiaries
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EXHIBIT 3.1
to
Loan Agreement
REVOLVING NOTE
$5,000,000 Chicago, Illinois
December____, 1996
FOR VALUE RECEIVED, on or before December _____, 1997 (or, if such day
is not a Business Day, on the next following Business Day), the undersigned,
XXXXXX CAPITAL GROUP, INC., a Delaware corporation (herein, together with its
successors and assigns, called the "Borrower"), promises to pay to the order of
LASALLE NATIONAL BANK, a national banking association (herein, together with
its successors and assigns, called the "Bank"), the maximum principal sum of
FIVE MILLION and 00/100 DOLLARS ($5,000,000) or, if less, the aggregate unpaid
principal amount of all Revolving Loans made by the Bank to the undersigned
pursuant to that certain Loan Agreement of even date herewith between the
Borrower and Bank (herein, as the same may be amended, modified or supplemented
from time to time, called the "Loan Agreement") as shown in the Bank's records.
The Borrower further promises to pay to the order of the Bank interest
on the aggregate unpaid principal amount hereof from time to time outstanding
from the date hereof until paid in full at such rates and at such times as
shall be determined in accordance with the provisions of the Loan Agreement.
Accrued interest shall be payable on the dates specified in the Loan Agreement.
Payments of both principal and interest are to be made in the lawful
money of the United States of America in immediately available funds at the
Bank's principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
or at such other place as may be designated by the Bank to the Borrower in
writing.
This Note is the Revolving Note referred to in, evidences indebtedness
incurred under, and is subject to the terms and provisions of, the Loan
Agreement. The Loan Agreement, to which reference is hereby made, sets forth
said terms and provisions, including those under which this Note may or must be
paid prior to its due date or may have its due date accelerated. Terms used
but not otherwise defined herein are used herein as defined in the Loan
Agreement.
In addition to, and not in limitation of, the foregoing and the
provisions of the Loan Agreement hereinabove referred to, the Borrower further
agrees, subject only to any limitation imposed by applicable law, to pay all
expenses, including attorneys' fees
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and expenses, incurred by the holder of this Note in seeking to collect any
amounts payable hereunder which are not paid when due, whether by acceleration
or otherwise.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is binding upon the undersigned and its successors and
assigns, and shall inure to the benefit of the Bank and its successors and
assigns. This Note is made under and governed by the laws of the State of
Illinois without regard to conflict of laws principles.
XXXXXX CAPITAL GROUP, INC., a
Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
Borrower's Address:
000 Xxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
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EXHIBIT 3.2
to
Loan Agreement
TERM NOTE
$25,000,000 Chicago, Illinois
December __, 1996
FOR VALUE RECEIVED, the undersigned, XXXXXX CAPITAL GROUP, INC., a
Delaware corporation (herein, together with its successors and assigns, called
the "Borrower"), promises to pay to the order of LASALLE NATIONAL BANK, a
national banking association (herein, together with its successors and assigns,
called the "Bank"), the principal sum of TWENTY-FIVE MILLION DOLLARS
($25,000,000), plus interest as described below, with annual principal
installments of One Million Dollars ($1,000,000) due on the last Business Day
of each calendar year commencing December 31, 1998, and with a final payment of
the entire principal balance outstanding hereunder due on December 31, 2001,
pursuant to that certain Loan Agreement of even date herewith between the
Borrower and the Bank (herein, as the same may be amended, modified or
supplemented from time to time, called the "Loan Agreement").
The Borrower further promises to pay to the order of the Bank interest
on the aggregate unpaid principal amount hereof from time to time outstanding
from the date hereof until paid in full at such rates and at such times as
shall be determined in accordance with the provisions of the Loan Agreement.
Accrued interest shall be payable on the dates specified in the Loan Agreement.
Payments of both principal and interest are to be made in the lawful
money of the United States of America in immediately available funds at the
Bank's principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
or at such other place as may be designated by the Bank to the Borrower in
writing.
This Note is the Term Note referred to in, evidences indebtedness
incurred under, and is subject to the terms and provisions of, the Loan
Agreement. The Loan Agreement, to which reference is hereby made, sets forth
said terms and provisions, including those under which this Note may or must be
paid prior to its due date or may have its due date accelerated. Terms used
but not otherwise defined herein are used herein as defined in the Loan
Agreement.
In addition to, and not in limitation of, the foregoing and the
provisions of the Loan Agreement hereinabove referred to, the Borrower further
agrees, subject only to
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any limitation imposed by applicable law, to pay all expenses, including
attorneys' fees and expenses, incurred by the holder of this Note in seeking
to collect any amounts payable hereunder which are not paid when due, whether
by acceleration or otherwise.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is binding upon the undersigned and its successors and
assigns, and shall inure to the benefit of the Bank and its successors and
assigns. This Note is made under and governed by the laws of the State of
Illinois without regard to conflict of laws principles.
XXXXXX CAPITAL GROUP, INC., a
Delaware corporation
By:
-------------------------------------
Title:
----------------------------------
Borrower's Address:
000 Xxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
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EXHIBIT 7.1(u)
to
Loan Agreement
AFFILIATES AND SUBSIDIARIES
Affiliates: Xxxx Xxxxxx Bank
CT Mortgage Company
Subsidiaries: Xxxx Xxxxxx Bank
