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LOAN AGREEMENT
DATED AS OF DECEMBER 30, 1996
AMONG
MAGNA GROUP, INC.
AND
LASALLE NATIONAL BANK
THE LENDERS FROM TIME
TO TIME PARTIES HERETO
AND
LASALLE NATIONAL BANK
AS AGENT
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INDEX
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Page No.
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1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 1
1.1 General Terms. . . . . . . . . . . . . 1
1.2 Accounting Terms . . . . . . . . . . . 11
1.3 Certain Matters of Construction. . . . 12
2. LOANS; FEES; TERMS OF PAYMENT . . . . . . . . . . . . 12
2.1 Revolving Credit Facility . . . . . . 12
2.2 Term Loan. . . . . . . . . . . . . . . 12
2.3 Borrowing Procedures . . . . . . . . . 13
2.4 Payments and Prepayments . . . . . . . 14
2.5 Pro Rata Treatment.. . . . . . . . . . 15
2.6 Non-Receipt of Funds by the Agent. . . 15
2.7 Sharing of Payments, Etc.. . . . . . . 16
2.8 Interest . . . . . . . . . . . . . . . 17
2.9 Fees . . . . . . . . . . . . . . . . . 19
2.10 Agent Monthly Statements . . . . . . . 20
2.11 Payment Dates. . . . . . . . . . . . . 20
2.12 Regulations Affecting Loans. . . . . . 20
2.13 Renewals: Conversion and Continuation
of Revolving Loans . . . . . . . . . . 21
2.14 Indemnity. . . . . . . . . . . . . . . 22
2.15 Change in Legality . . . . . . . . . . 22
2.16 Unavailability of Deposits or
Inability to Ascertain, or Inadequacy
of Libor Rate. . . . . . . . . . . . . 23
2.17 Increased Cost and Reduced Return. . . 24
2.18 Discretion of Lenders as to Manner of
Funding. . . . . . . . . . . . . . . . 25
3. TERM OF THIS AGREEMENT; PREPAYMENTS . . . . . . . . . 25
3.1 Term . . . . . . . . . . . . . . . . . 25
3.2 Prepayment; Termination. . . . . . . . 25
4. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . 25
4.1 Closing; Conditions to Initial Loan and
Closing. . . . . . . . . . . . . . . . 26
4.2 Condition to All Loans . . . . . . . . 27
5. GENERAL CONTINUING WARRANTIES AND REPRESENTATIONS . . 28
5.1 Office . . . . . . . . . . . . . . . . 28
5.2 Existence. . . . . . . . . . . . . . . 29
5.3 Authority. . . . . . . . . . . . . . . 29
5.4 Validity . . . . . . . . . . . . . . . 29
5.5 No Breach . . . . . . . . . . . . . . 29
5.6 Solvency . . . . . . . . . . . . . . . 29
5.7 Compliance With Laws . . . . . . . . . 29
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5.8 Actions or Proceedings . . . . . . . . 30
5.9 Trademarks, Licenses, etc. . . . . . . 30
5.10 Financial Statements . . . . . . . . . 30
5.11 Conduct of Business. . . . . . . . . . 30
5.12 Environmental Laws . . . . . . . . . . 31
5.13 Permits and Licenses . . . . . . . . . 32
5.14 ERISA. . . . . . . . . . . . . . . . . 32
5.15 Other Names. . . . . . . . . . . . . . 32
5.16 Tax Obligations. . . . . . . . . . . . 33
5.17 Employee Controversies . . . . . . . . 33
5.18 Investment Company Act . . . . . . . . 33
5.19 Subsidiaries . . . . . . . . . . . . . 33
5.20 Full Disclosure. . . . . . . . . . . . 33
6. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . 34
6.1 Sale, Transfer or Encumbrance of Assets 34
6.2 Guaranties . . . . . . . . . . . . . . 34
6.3 Change in Business . . . . . . . . . . 34
6.4 Loans and Investments. . . . . . . . . 34
6.5 Affiliate Transactions . . . . . . . . 35
6.6 Consolidations, Mergers. . . . . . . . 35
6.7 Transactions Not in the Ordinary Course;
Liquidations . . . . . . . . . . . . . 35
6.8 Suspension of Business . . . . . . . . 36
6.9 Dividends, Distributions . . . . . . . 36
6.10 Unpermitted Uses of Loans. . . . . . . 36
6.11 ERISA. . . . . . . . . . . . . . . . . 36
7. AFFIRMATIVE COVENANTS - GENERAL. . . . . . . . . 36
7.1 Taxes. . . . . . . . . . . . . . . . . 36
7.2 Insurance. . . . . . . . . . . . . . . 36
7.3 Litigation . . . . . . . . . . . . . . 37
7.4 Books and Records. . . . . . . . . . . 37
7.5 Compliance with Laws . . . . . . . . . 37
7.6 Expense Reimbursements . . . . . . . . 38
7.7 ERISA Reportable Events. . . . . . . . 38
8. AFFIRMATIVE COVENANTS - REPORTING. . . . . . . . 38
8.1 Collateral Activity Report, Covenant
Compliance Certificates. . . . . . . . 38
8.2 Financial and Other Reports . . . . . 39
8.3 Accounting Information . . . . . . . . 41
8.4 Other Information and Changes. . . . . 41
9. COVENANTS - FINANCIAL. . . . . . . . . . . . . . 41
9.1 Non-Performing Assets to Total Equity
Capital. . . . . . . . . . . . . . . . 41
9.2 Capitalization . . . . . . . . . . . . 42
9.3 Capital Guidelines . . . . . . . . . . 42
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9.4 Return on Average Assets . . . . . . . 42
9.5 Funded Debt to Total Equity Capital. . 42
9.6 Total Equity Capital . . . . . . . . . 42
10. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . 42
10.1 Payment. . . . . . . . . . . . . . . 42
10.2 Breach of Covenants. . . . . . . . . 43
10.3 Breach of Representation . . . . . . 43
10.4 Attachment or Levy . . . . . . . . . 43
10.5 Voluntary Insolvency . . . . . . . . 43
10.6 Involuntary Insolvency . . . . . . . 43
10.7 Injunction . . . . . . . . . . . . . 43
10.8 Governmental Lien. . . . . . . . . . 44
10.9 Judgment . . . . . . . . . . . . . . 44
10.10 Other Indebtedness . . . . . . . . . 44
10.11 ERISA Reportable Event . . . . . . . 44
11. RIGHTS AND REMEDIES. . . . . . . . . . . . . . . 44
11.1 Rights and Remedies Generally. . . . . 45
11.2 Rights Cumulative. . . . . . . . . . . 45
12. TAXES AND EXPENSES . . . . . . . . . . . . . . . 45
13. CERTAIN WAIVERS. . . . . . . . . . . . . . . . . 46
13.1 Application of Payments. . . . . . . . 46
13.2 Demand, etc. . . . . . . . . . . . . . 46
14. NOTICES. . . . . . . . . . . . . . . . . . . . . 46
15. AGENT. . . . . . . . . . . . . . . . . . . . . . 47
16. CHOICE OF LAW AND VENUE. . . . . . . . . . . . . 51
17. INDEMNITY. . . . . . . . . . . . . . . . . . . . 52
18. GENERAL PROVISIONS . . . . . . . . . . . . . . . 52
18.1 Acceptance . . . . . . . . . . . . . 52
18.2 Binding Agreement. . . . . . . . . . 52
18.3 Section Headings.. . . . . . . . . . 53
18.4 Construction . . . . . . . . . . . . 53
18.5 Severability . . . . . . . . . . . . 53
18.6 Entire Agreement . . . . . . . . . . 53
18.7 No Fiduciary Relationship or Joint
Venture. . . . . . . . . . . . . . . 53
18.8 Publicity. . . . . . . . . . . . . . 53
18.9 Counterparts . . . . . . . . . . . . 54
18.10 Conflict . . . . . . . . . . . . . . 54
19. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . 54
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LOAN AGREEMENT
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THIS LOAN AGREEMENT, dated as of December 30, 1996, is
entered into among "Agent", "Lenders" and "Borrower"
(hereinafter defined).
R E C I T A L S:
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A. Borrower has requested that Lenders make certain
revolving and term loan financing accommodations available to
Borrower, and Agent and Lenders are willing to make the
accommodations requested by Borrower upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the parties' mutual
agreements contained herein, the parties hereto agree as
follows:
1. DEFINITIONS
1.1 GENERAL TERMS
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As used in this Agreement, the following terms shall have
the following definitions:
"AFFILIATE" shall mean any Person (a) that directly
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or indirectly, through one or more intermediaries, controls or
is controlled by, or is under common control with Borrower,
(b) that directly or beneficially owns or holds five percent
(5%) or more of any class of the interests of Borrower,
(c) five percent (5%) or more of whose voting stock (or in the
case of a Person which is not a corporation, five percent (5%)
or more of the equity interest or economic value of which) is
owned directly or beneficially or held by Borrower, or (d) five
percent (5%) or more of whose voting stock (or in case of a
Person which is not a corporation, five percent (5%) or more of
the equity interest or economic value of which) is owned
directly or beneficially or held by a Person referred to in
(a), (b) or (c) above.
"AGENT" shall mean LaSalle National Bank in its
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separate capacity as agent for Lenders.
"APPLICABLE LENDING OFFICE" shall mean for Agent and
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each Lender and for each loan or extension of credit hereunder,
the lending office of the Agent or Lender designated on the
signature pages hereof or such other office of such Lender as
such Lender may from time to time specify to the Agent and
Borrower in writing as the office by which its Loans are to be
made and maintained.
"AGREEMENT" shall mean this Loan Agreement, any and
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all exhibits or schedules thereto, any and all concurrent or
subsequent riders to this Loan Agreement and any extensions,
supplements, amendments, modifications or restatements to or of
this Loan Agreement and/or to or of any such rider.
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"ANNUALIZED NET INCOME" shall mean for any fiscal
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period, Borrower's actual year-to-date Consolidated Net Income
for such fiscal period divided by the actual number of days in
the year-to-date fiscal period, multiplied by the actual number
of days in Borrower's Fiscal Year during which such fiscal
period falls..
"AUTHORIZED REPRESENTATIVE" shall mean X. Xxxxxx
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Andes, Chairman of the Board and Chief Executive Officer, Xxxxx
X. Xxxxxx, Executive Vice President, Xxxxxx Xxxxxxx, Executive
Vice President and Chief Financial Officer, Xxx Xxxxxxxxx,
Senior Vice President and any other corporate officer
designated in writing to Agent by any of the aforementioned
officers.
"BANK SUBSIDIARY" means any insured depository
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institution (within the meaning of 12 U.S.C. Section 1813(c),
as amended, supplemented or otherwise modified from time to
time, which is controlled (within the meaning of 12 U.S.C.
Section 1841, as amended, supplemented or otherwise modified
from time to time) by the Borrower or any Subsidiary of
Borrower.
"BENEFIT PLAN" shall mean an employee pension benefit
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plan of Borrower or an ERISA Affiliate, as defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA.
"BORROWER" shall mean Magna Group, Inc., a Delaware
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corporation, with its chief executive office and principal
place of business at 0000 X. Xxxxxxxxx Xxxxxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000.
"BORROWER'S BOOKS" shall mean all of Borrower's books
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and records including, but not limited to: minute books;
ledgers; records indicating, summarizing, or evidencing
Borrower's assets, liabilities, and all information relating
thereto; records indicating, summarizing, or evidencing
Borrower's business operations or financial condition; records
indicating, summarizing, or evidencing Borrower's compliance
with or problems or activities concerning Laws; and all
computer programs, disc or tape files, printouts, runs, and
other computer prepared information and the equipment
containing such information and any software necessary to
operate the same.
"BORROWER'S LOAN ACCOUNT" shall mean a loan account
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maintained by Agent on its books in which shall be recorded (i)
all loans and advances made by Lenders to Borrower pursuant to
this Agreement, (ii) all payments made by Borrower on all such
loans and advances, and (iii) all other appropriate debits and
credits as provided in this Agreement, including, without
limitation, all Out-of-Pocket Fees and Costs and interest; all
such entries shall be made by Agent in accordance with Agent's
customary accounting practices as in effect from time to time.
"BUSINESS DAY" shall mean (a) any day other than a
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Saturday, Sunday, or other day on which banks in Illinois are
required to be closed, and (b) relative to the making of
Eurodollar Loans, any day on which dealings in Dollars are
carried on in the interbank eurodollar market which also
satisfies the criteria set forth in (a) above.
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"CAPITAL EXPENDITURES" shall mean, with respect to
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any period, the aggregate of all expenditures (whether paid in
cash or accrued as liabilities and including expenditures for
capitalized lease obligations) by Borrower during such period
that are required by Generally Accepted Accounting Principles
to be included in or reflected by the property, plant, or
equipment or similar fixed asset accounts in the balance sheet
of Borrower.
"CHANGE OF CONTROL" shall mean a change in the direct
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or indirect power to direct or cause the direction of the
management and policies of a Person, whether through the
ownership of voting stock, by transfer of interests in any
partnership or limited liability company, by transfer of
interests in any partnership or limited liability company which
is an owner of voting stock, by contract or otherwise.
"CLOSING" shall have the meaning set forth in
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Section 4.1 hereof.
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"CODE" shall mean the Uniform Commercial Code of the
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State of Illinois as in effect from time to time during the
term hereof and any and all terms used in this Agreement which
are not otherwise defined herein but are defined in the Code
shall be construed and defined in accordance with the meaning
and definition ascribed to such terms under the Code.
"COMMITMENT" shall mean with respect to any Lender
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its Revolving Loan Commitment and Term Loan Commitment.
"COMMITMENTS" shall mean collectively the Revolving
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Loan Commitments and the Term Loan Commitments.
"CONSOLIDATED FINANCIAL STATEMENTS" means the
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Consolidated Financial Statements for Bank Holding Companies
with Total Consolidated Assets of $150,000,000 or More, or With
More Than One Subsidiary Bank - FRY-9C, filed by Borrower with
the Regulatory Agencies, as such report may be amended or
modified from time to time, and any similar report required to
be filed by Borrower with any Regulatory Agency.
"CONSOLIDATED NET INCOME" means, for any period, the
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consolidated net income of Borrower and its Subsidiaries during
such period, determined in a manner consistent with the
Generally Accepted Accounting Principles used in the
preparation of Borrower's quarterly report on Form 10-Q filed
with the Securities and Exchange Commission for Borrower's
fiscal quarter ended September 30, 1996.
"CONTRIBUTING SPONSOR" shall mean any person
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described in Section 4001(a)(13) of ERISA with respect to a
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Benefit Plan.
"CONVERSION DATE" shall have the meaning set forth in
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Section 2.2 hereof.
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"DEFAULT RATE" shall have the meaning set forth in
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Section 2.8(B) hereof.
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"DOLLAR(S)" and the sign "$" shall mean lawful
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currency of the United States of America.
"EFFECTIVE DATE" shall mean the date on which the
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conditions precedent for initial loans under Section 4
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hereof have been satisfied and the initial Revolving Loans have
been made.
"ENVIRONMENTAL LAWS" shall mean any applicable laws,
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statutes, rules, regulations, orders, consent decrees, permits
or licenses of any governmental authority, relating to
prevention, remediation, reduction or control of pollution, or
protection of the environment, natural resources and/or human
health and safety, including, without limitation, such
applicable laws, statutes, rules, regulations, orders, consent
decrees, permits or licenses relating to (a) solid waste and/or
Hazardous Materials treatment, storage, disposal, general and
transactions, (b) air, water, and noise pollution, (c) soil,
ground, water or groundwater contamination, (d) the generation,
handling, storage, transportation or Release into the
environment of Hazardous Materials, and (e) regulation of
underground and above ground storage tanks.
"ERISA" shall mean the Employee Retirement Income
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Security Act of 1974, as amended, and all references to
sections thereof shall include such sections and any
predecessor and successor provisions thereto.
"ERISA AFFILIATE" shall mean each trade or business
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(whether or not incorporated) which, together with Borrower,
would be treated as a single employer under Section 4001(a)(14)
of ERISA or IRC Section 414(b), (c), (m), (n) or (o), as
applicable.
"EURODOLLAR LOAN" shall mean any Loan with respect to
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which the Borrower shall have selected an interest rate based
on the Libor Rate in accordance with the provisions of Section
2.3(a) of this Agreement; provided, however, that there shall
not be in excess of five (5) Eurodollar Loans outstanding at
any one time.
"EVENT OF DEFAULT" shall mean the occurrence of any
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one or more of the events set forth in Section 10 of this
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Agreement.
"EXCESS INTEREST" shall have the meaning set forth in
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Section 2.8(c) hereof.
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"FAIR VALUE" shall mean Borrower's assets and
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liabilities as determined in accordance with Generally Accepted
Accounting Principles, except that assets shall be reflected at
present fair saleable value and liabilities shall reflect a
complete statement of liabilities, fixed or contingent, direct
or indirect, disputed or undisputed, whether or not required to
be reflected on a balance sheet prepared in accordance with
Generally Accepted Accounting Principles.
"FASB" shall mean the Financial Accounting Standards
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Board.
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"FEDERAL FUNDS EFFECTIVE RATE" shall mean for any
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day, a fluctuating rate of interest equal for each day during
such period to (i) the weighted average of the rates on
overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as
published for such day by the Federal Reserve Bank of New York;
or (ii) if such rate is not so published for any day, the
average of the quotations for such day on such transactions
received by Agent from three (3) federal funds brokers of
recognized standing selected by it.
"FISCAL YEAR" shall mean with respect to Borrower,
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the fiscal accounting period of Borrower each year ending on
December 31 of each calendar year.
"FUNDED DEBT" of a Person means all Indebtedness for
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borrowed money of such Person having a maturity (or extendable
to a maturity at the option of such Person) of more than one
year from the date of the creation thereof.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" shall
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mean, with respect to any date of determination, generally
accepted accounting principles as used by the Financial
Accounting Standards Board and/or the American Institute of
Certified Public Accountants consistently applied and
maintained throughout the periods indicated.
"HAZARDOUS MATERIALS" shall mean any flammable or
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explosive materials, petroleum (including crude oil and its
fractions), radioactive materials, hazardous wastes, toxic
substances or related hazardous materials, including without
limitation polychlorinated biphenyls, friable asbestos, and any
substances defined as, or included in the definition of toxic
or hazardous substances, wastes, or materials under any federal
or applicable state or local laws, ordinances, rules or
regulations including Environmental Laws.
"HOMELAND" shall have the meaning set forth in
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Section 9.6 of this Agreement.
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"INDEBTEDNESS" shall mean, with respect to any
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Person, (a) indebtedness for borrowed money or for the deferred
purchase price of property or services in respect of which such
Person is liable, contingently or otherwise, as obligor or
otherwise, including without limitation accounts payable and
accrued indebtedness owed by such Person or any commitment by
which such Person assures a creditor against loss, including
contingent reimbursement obligations with respect to letters of
credit, (b) indebtedness guaranteed in any manner by such
Person, including guarantees in the form of an agreement to
repurchase or reimburse, (c) obligations under leases which
shall have been or should be, in accordance with Generally
Accepted Accounting Principles, recorded as capital leases, in
respect of which obligations such Person is liable,
contingently or otherwise, as obligor, guarantor or otherwise,
or in respect of which obligations such Person assures a
creditor against loss, and (d) any unfunded obligation of such
Person to any Benefit Plan or Multi-employer Plan.
"INDEMNIFIED PERSONS" shall have the meaning set
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forth in Section 17 hereof.
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"INSOLVENCY PROCEEDING" shall mean, with respect to
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any Person, any proceeding commenced by or against such Person,
under any provision of the United States Bankruptcy
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Code, as amended, or under any other bankruptcy, reorganization or
insolvency law, or any assignment for the benefit of creditors,
formal or informal moratorium, compositions or extensions with
some or all creditors of such Person.
"INTEREST PERIOD" shall mean: (i) as to any
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Eurodollar Loan, the period commencing on the date of such
Eurodollar Loan and ending on the numerically corresponding day
(or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the Borrower may elect, and (ii) as to any
Reference Rate Loan, the period commencing on the date of such
Reference Rate Loan and ending on the earlier of (A) the last
Business Day of each calendar month, and (B) the expiration or
earlier termination of this Agreement; provided, however, that
(i) if any Interest Period would end on a day that shall not be
a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, with respect to Eurodollar
Loans only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall
end on the immediately preceding Business Day, (ii) no Interest
Period with respect to any Revolving Loan shall end later than
the Revolving Loan Termination Date, (iii) no Interest Period
with respect to the Term Loan shall end later than the Term
Loan Termination Date, and (iv) interest shall accrue from and
including the first day of an Interest Period to and excluding
the last day of such Interest Period.
"IRC" shall mean the Internal Revenue Code of 1986,
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as amended, and all references to sections thereof shall
include such sections and any predecessor and successor
provisions thereto.
"JUDICIAL OFFICER OR ASSIGNEE" shall mean any
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trustee, receiver, controller, custodian, assignee for the
benefit of creditors or any other Person or entity having
powers or duties like or similar to the powers and duties of a
trustee, receiver, controller, custodian, or assignee for the
benefit of creditors.
"LAWS" means all ordinances, statutes, rules,
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regulations, codes, orders, injunctions, writs or decrees of
any government, whether federal, state, municipal or local, of
any political subdivision or agency thereof, or of any court,
board or similar entity established by any of the foregoing
having jurisdiction over the property, assets, business or
operations of a Person.
"LASALLE" shall mean LaSalle National Bank, a
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national banking association, located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
"LENDER" shall mean the individual reference to
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LaSalle, in its capacity as a Lender hereunder and each of the
lending institutions listed on the signature pages of this
Agreement and their respective successors and assigns.
"LENDERS" shall mean the collective reference to
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LaSalle, in its capacity as Lender, and the other lending
institutions listed on the signature pages of this Agreement
and their successors and assigns.
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"LIBOR RATE" shall mean, with respect to any
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Eurodollar Loan for any Interest Period, the interest rate per
annum equal to the quotient obtained by dividing (x) the rate
of interest determined by Agent to be the average of the rate
per annum at which deposits in U.S. dollars are generally
offered in the London Interbank Bank at 11:00 A.M. London time,
two (2) Business Days before the first day of such Interest
Period, for a period equal to such Interest Period and in the
amount of the applicable Eurodollar Loan, by (y) the difference
between one hundred percent (100%) and any applicable reserve
requirements (rounded upward to the nearest whole multiple of
one hundredth (1/100) of one percent (1%) per annum),
including, without limitation, any statutory maximum
requirement for Lenders to hold reserves for "Eurocurrency
Liabilities" under Regulation D of the Board of Governors of
the Federal Reserve System (or any similar reserves under any
successor regulation or regulations).
"LIEN" shall mean any mortgage, deed of trust,
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pledge, fixed or floating charge, lien, security interest, or
encumbrance or security arrangement of any nature whatsoever,
whether arising by written or oral agreement or by operation of
law, including without limitation any conditional sale or title
retention arrangement and any assignment, deposit arrangement
or lease intended as or having the effect of, security.
"LOAN DOCUMENTS" shall mean all agreements,
----------------
instruments and documents, including without limitation this
Agreement, the Notes, all amendments, supplements, restatements
and renewals thereof, and all other written matter, whether
heretofore, now or hereafter executed by or on behalf of
Borrower, or any other Person in connection with the
Obligations or the transactions contemplated hereby (including
without limitation any guarantor of the Obligations), and
delivered to Agent or Lenders, together with all agreements,
instruments and documents referred to therein or contemplated
thereby whether heretofore, now or hereafter executed by or on
behalf of Borrower or any such other Persons and delivered to
Agent or Lenders, and all amendments, supplements, restatements
and renewals thereof, but not including any proposal letter,
commitment letter or other comparable documents delivered by
Agent prior to the date hereof and not expressly incorporated
herein and made a part hereof.
"LOANS" shall mean individually, the Revolving Loans
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or the Term Loans and, collectively, the Revolving Loans and
Term Loan.
"LOSSES" shall have the meaning set forth in
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Section 17 hereof.
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"MAJORITY LENDERS" shall mean, at any time, while no
----------------
Obligations are outstanding, Lenders having at least 67% of the
aggregate amount of the Commitments and, at any time while
Obligations are outstanding, Lenders holding at least 67% of
the outstanding aggregate principal amount of the Obligations.
"MATERIAL ADVERSE EFFECT" shall mean (i) any
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materially adverse change in the business, operations,
condition (financial or otherwise) or properties of Borrower or
its Subsidiaries, or (ii) any fact or circumstance as to which
singly or in the aggregate, there is a reasonable possibility
of (A) a materially adverse change described in (i) above with
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respect to Borrower or its Subsidiaries or (B) the inability of
Borrower to perform in any material respect its obligations
under this Agreement or the other Loan Documents or the
inability of Agent or Lenders to enforce in any material
respect their rights under this Agreement or the other Loan
Documents.
"MAXIMUM FACILITY" shall mean $100,000,000.
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"MULTIEMPLOYER PLAN" shall mean a plan described in
--------------------
Section 4001(a)(3) of ERISA which covers employees of Borrower
or any ERISA Affiliate.
"NEGOTIABLE COLLATERAL" shall mean a letter of
-----------------------
credit, advice of credit, instrument, money, negotiable
document, warehouse receipt, xxxx of lading, letter of credit,
certificated security, certificate of title, certificate of
deposit, chattel paper, or similar property, and proceeds
thereof.
"NON-PERFORMING ASSETS" means the total of Borrower's
-----------------------
and its Subsidiaries' (i) Non-Performing Loans, (ii) Other Real
Estate Owned, and (ii) without duplication for amounts included
as Other Real Estate Owned, property acquired pursuant to in
substance foreclosures.
"NON PERFORMING LOANS" means the total of
----------------------
Borrower's and it's Subsidiaries' (i) loans which are on a
nonaccrual status, (ii) loans which are past due 90 days or
more and are still accruing interest, and (iii) loans and
leases restructured and in compliance with such modified terms,
in each case determined in a manner consistent with that used
in preparing Borrower's Consolidated Financial Statements.
"NOTES" shall mean the Revolving Loan Notes and Term
-------
Loan Notes.
"OBLIGATIONS" shall mean all loans, advances,
-------------
overdrafts, debts, liabilities (including without limitation
any and all amounts charged to Borrower's account pursuant to
any agreement authorizing Agent to charge Borrower's Loan
Account), obligations, covenants, lease payments, guarantees
and duties owing by Borrower to Agent or Lenders of any kind or
description (whether advanced pursuant to or evidenced by this
Agreement, by the Revolving Loan Notes and Term Loan Notes, by
any other Loan Document or other agreement, instrument or
document or otherwise), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter
arising, and including without limitation any debt, liability
or obligation owing from Borrower to another Person which Agent
or Lenders may have obtained by assignment of which notice is
provided to Borrower (or otherwise as a result of a payment
made by Agent or Lenders on behalf of Borrower as permitted
under this Agreement or any other Loan Documents) and further
including without limitation all interest, all Out-of-Pocket
Fees and Costs which Borrower is required to pay or reimburse
by this Agreement or any other Loan Document, by law or
otherwise.
8
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"OTHER REAL ESTATE OWNED" means Other Real Estate Owned
-------------------------
as defined in 12 C.F.R. Section 7.3025 (1989), as such
regulation may be amended or supplemented from time to time,
determined in a manner consistent with that used in preparing
the Borrower's Consolidated Financial Statements.
"OUT-OF-POCKET FEES AND COSTS" shall have the
------------------------------
meaning set forth in Section 2.9(c) hereof.
--------------
"PBGC" shall mean the Pension Benefit Guaranty
------
Corporation or any successor agency.
"PARTICIPANT" shall mean any Person now or from time
-------------
to time hereafter participating with Lenders in any of the
Loans made or issued by Lenders to Borrower pursuant to this
Agreement.
"PERMITTED LIENS" shall have the meaning set forth in
-----------------
Section 8.1 hereof.
-----------
"PERSON" shall mean any individual, sole
--------
proprietorship, partnership, joint venture, trust,
unincorporated organization, association, corporation,
institution, entity or governmental entity.
"POTENTIAL DEFAULT" shall mean any event which
-------------------
through the passage of time, service of notice or both, would
mature into an Event of Default.
"PROHIBITED TRANSACTION" shall mean any
-----------------------
transaction described in Section 406 of ERISA which is not
exempt by reason of Section 408 of ERISA, and any transaction
described in Section 4975(c) of the IRC which is not exempt by
reason of Sections 4975(c)(2) or (d) of the IRC, and which
could result in any excise tax, fine, penalty or other
liability being imposed on Borrower.
"PRO RATA SHARE" shall mean, with respect to any
--------------
Lender, a fraction (expressed as a percentage), the numerator
of which shall be the aggregate amount of such Lender's
Commitment and the denominator of which shall be the aggregate
Commitments.
"RATE" shall have the meaning set forth in Section
------ -------
2.8(A) hereof.
------
"REFERENCE RATE" shall mean the greater of (i)
----------------
variable per annum rate of interest announced from time to time
by LaSalle at its corporate headquarters in Chicago, Illinois,
as its Prime Rate or equivalent rate, or (ii) the Federal Funds
Effective Rate in effect from time to time, plus one-half of
one percent (.50%) per annum. The "Prime Rate" is one of
LaSalle's index rates and merely serves as a basis under which
effective rates of interest are calculated for loans making
reference thereto and may not be the lowest or best rate at
which LaSalle calculates interest or extends credit.
9
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"REFERENCE RATE LOAN" shall mean any Loan with
---------------------
respect to which Borrower shall have selected an interest rate
based upon the Reference Rate in accordance with the provisions
of Section 2.3(a) of this Agreement.
"REGULATORY AGENCIES" means any national, federal,
---------------------
state, local or other government or political subdivision or
any agency, authority, bureau, central bank, commission,
department or instrumentality thereof, or any court, foreign or
domestic.
"REGULATORY CAPITAL REPORTS" means all reports
----------------------------
required to be filed by the Borrower or any of the Bank
Subsidiaries by the Regulatory Agencies having jurisdiction
over Borrower or any of the Bank Subsidiaries, containing
calculations of capital and capital ratios of Borrower and/or
such Bank Subsidiaries.
"RELEASE" shall mean any actual or threatened past,
---------
present or future releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, seeping, injecting,
escaping, leaching, dumping or disposing, whether intentional
or not.
"REPORTABLE EVENT" shall mean a reportable event
------------------
described in Section 4043 of ERISA or the regulations
thereunder, for which the thirty (30) day notice requirement
has not been waived.
"RETURN ON AVERAGE ASSETS" shall mean Annualized Net
--------------------------
Income divided by Total Consolidated Average Assets.
----------
"REVOLVING LOAN COMMITMENT" shall mean as to each
--------------------------
Lender, the amount set forth opposite its name on the signature
pages hereto under the heading "Revolving Loan Commitment."
"REVOLVING LOAN COMMITMENT PERCENTAGE" shall mean as
-------------------------------------
to any Lender, the percentage set forth opposite its name on
the signature pages hereto under the heading "Revolving Loan
Commitment Percentage".
"REVOLVING LOAN NOTES" shall have the meaning set
----------------------
forth in Section 2.1 hereof.
-----------
"REVOLVING LOAN TERMINATION DATE" shall have the
---------------------------------
meaning set forth in Section 2.1 hereof.
-----------
"REVOLVING LOANS" shall have the meaning set forth in
-----------------
Section 2.1 hereof.
-----------
"SUBSIDIARY" shall mean any corporation of which
------------
more than fifty percent (50%) of the outstanding capital stock
having ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether at
the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time, directly or
indirectly, owned by Borrower or by one or more of its
Subsidiaries. Notwithstanding the foregoing, "Subsidiary" of
the Borrower shall also mean any Bank Subsidiary, or any
partnership, limited liability company
10
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or joint venture of which more than fifty percent (50%) of the
outstanding equity or ownership interests are at the time,
directly or indirectly, owned by Borrower or by one or more of its
Subsidiaries.
"TERM LOANS" shall have the meaning set forth in
------------
Section 2.2 of this Agreement.
-----------
"TERM LOAN COMMITMENT" shall mean as to each Lender,
--------------------
the amount set forth opposite its name on the signature pages
hereto under the heading "Term Loan Commitment".
"TERM LOAN COMMITMENT PERCENTAGE" shall mean, as to
-------------------------------
any Lender, the percentage set forth opposite its name on the
signature pages hereto under the heading "Term Loan Commitment
Percentage".
"TERM LOAN NOTES" shall have the meaning set forth in
-----------------
Section 2.2 of this Agreement.
-----------
"TERM LOAN TERMINATION DATE" shall have the meaning
----------------------------
set forth in Section 2.2 of this Agreement.
-----------
"TOTAL CONSOLIDATED ASSETS" shall mean the Borrower's
---------------------------
total consolidated assets determined in a manner consistent
with Generally Accepted Accounting Principles used in the
preparation of Borrower's quarterly report on Form 10-Q filed
with the Securities and Exchange Commission for Borrower's
fiscal quarter ended September 30, 1996.
"TOTAL CONSOLIDATED AVERAGE ASSETS" shall mean for
-----------------------------------
any fiscal period, Borrower's Total Consolidated Assets for
each day in the year-to-date fiscal period divided by the
actual number of days in the year-to-date fiscal period.
"TOTAL EQUITY CAPITAL" means the Borrower's total
----------------------
equity capital determined in a manner consistent with that used
in preparing Borrower's consolidated financial statements for
its fiscal year ending December 31, 1995.
"UNCURED DEFAULT" shall mean an Event of Default
-----------------
which shall be continuing.
1.2 ACCOUNTING TERMS
----------------
Any accounting terms used in this Agreement which are not
specifically defined herein shall have the meanings customarily
given them in accordance with Generally Accepted Accounting
Principles. In the event that changes in Generally Accepted
Accounting Principles shall be mandated by the Financial
Accounting Standards Board and/or the American Institute of
Certified Public Accountants or any similar accounting body of
comparable standing, or shall be recommended by Borrower's
certified public accountants, to the extent that such changes
would modify such accounting terms or the interpretation or
computation thereof as contemplated by this Agreement at the
time of
11
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execution hereof, then in such event such changes shall be
followed in defining such accounting terms only after the Borrower
and Agent shall have agreed to amend this Agreement to reflect the
original intent of such terms in light of such changes, and such
terms shall continue to be applied and interpreted without such
change until such agreement.
1.3 CERTAIN MATTERS OF CONSTRUCTION.
-------------------------------
The terms "herein" "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and
not to any particular section, paragraph or subdivision. Any
pronoun used shall be deemed to cover all genders. The section
titles, table of contents and list of exhibits appear as a
matter of convenience only and shall not affect the
interpretation of this Agreement. All references to statutes
and related regulations shall include any amendments of same
and any successor statutes and regulations. All references to
any instruments or agreements, including, without limitation,
references to any of the Loan Documents shall include any and
all modifications or amendments thereto and any and all
extensions or renewals thereof. The Recitals to this Agreement
are incorporated into this Agreement in their entirety and
deemed to be a part hereof.
2. LOANS; FEES; TERMS OF PAYMENT
2.1 REVOLVING CREDIT FACILITY
-------------------------
Subject to the terms and provisions of this Agreement
including without limitation, that no Event of Default or
Potential Default has occurred and all other conditions
precedent to lending under Section 5 hereof have been
---------
satisfied, upon the request of Borrower, made at any time and
from time to time prior to December 30, 1999 (the "Revolving
Loan Termination Date"), or such earlier date as Borrower
elects to convert the outstanding principal balance of the
Revolving Loan to Term Loans as provided in Section 2.2
-----------
below, each of the Lenders severally and not jointly agrees to
make loans and advances (hereinafter individually referred to
as a "Revolving Loan" and collectively as "Revolving Loans") to
Borrower from time to time in the amount of each Lender's
Revolving Loan Commitment Percentage of the Revolving Loans
requested by Borrower so long as the aggregate amount of the
Revolving Loans outstanding at any time does not exceed the
Maximum Facility, and in the case of each Lender, up to but
not exceeding each Lender's Revolving Loan Commitment.
The Revolving Loans shall be evidenced by, and repayable
in accordance with, Revolving Loan Notes substantially in the
form of Exhibit 2.1 ("Revolving Loan Notes").
-----------
2.2 TERM LOAN
---------
Subject to the terms and provisions of this Agreement, at
any time prior to the Revolving Loan Termination Date and upon
fulfillment of all the conditions precedent to any Loans under
Section 5 hereof, Borrower may elect by notice in writing to
Agent and Lenders, to convert the outstanding principal balance
of the Revolving Loans to term loans for a term commencing on
the Conversion Date and ending not later than December 30,
12
17
2002, and each of the Lenders, severally and not jointly, agree
to make a term loan to Borrower in the amount of its Term Loan
Commitment Percentage of the outstanding principal balance of
the Revolving Loans, but in no event more than its Term Loan
Commitment (each a "Term Loan" and collectively the "Term
Loans"). The Revolving Loans shall convert into the Term Loans
upon the fifth (5th) Business Day following the date of notice
to convert from Borrower to Agent and Lenders ("Conversion
Date"), which notice shall specify the term elected by
Borrower. The Term Loans shall be evidenced by, and repayable
in accordance with, the Term Loan Notes substantially in the
form of Exhibit 2.2 ("Term Loan Notes") providing for
-----------
repayment of the outstanding principal balance thereof in equal
quarterly installments based upon the term elected by Borrower,
with a final payment of all outstanding principal and interest
on the expiration of the term selected by Borrower ("Term Loan
Termination Date"). Borrower shall execute and deliver a Term
Loan Note to each Lender for its Term Loan, dated as of the
Conversion Date, prior to the Conversion Date.
2.3 BORROWING PROCEDURES.
--------------------
(a) Agent shall have received, on or before 11:00 a.m.
Chicago time, on the day a Loan is to be made, if a
Reference Rate Loan, or three (3) Business Days
prior to the date a Loan is to be made, if a
Eurodollar Loan, (i) an oral request from Borrower
for a Loan in a specific amount (and a request in
writing, which shall be delivered to Agent on the
same Business Day, executed by an Authorized
Representation of Borrower), (ii) designation
whether the Loan is to be a Eurodollar Loan or a
Reference Rate Loan, and if such Loan is to be a
Eurodollar Loan, the Interest Period or Interest
Periods with respect thereto, and (iii) copies of
all other documents which the Borrower is required
to deliver to Agent hereunder. If such request for
a Loan is received by Agent before 11:00 a.m.
Chicago time on the day a Reference Rate Loan is to
be made before 11:00 a.m. Chicago time three (3)
Business Days prior to the date a Eurodollar Loan is
to be made, subject to the other terms and
conditions of this Agreement, Agent will make such
Loan on the applicable day on which such Loan is to
be funded hereunder, subject to any delays beyond
Agent's reasonable control, provided that Agent
shall not be liable for any damages or liabilities
for the failure to so make any Loan on the day
requested unless such failure was due to Agent's
gross negligence or wilful misconduct. If no
election as to the type of Loan is specified in any
such notice by Borrower, then such Loan shall be a
Reference Rate Loan. If no Interest Period is
specified with respect to a Eurodollar Loan in such
notice, then Borrower shall be deemed to have
selected an Interest Period of one month's duration.
Each request for a Reference Rate Loan shall be in a
minimum amount of $100,000. Notwithstanding
anything contained in this Agreement to the
contrary, Borrower may not have more than five (5)
Eurodollar Loans outstanding at any one time, and
each request for a Eurodollar Loan shall be in a
minimum initial increment of $5,000,000.
13
18
(b) Upon receipt by Agent of a notice from Borrower of
a request for a Loan, Agent shall promptly, but not
later than 1:00 p.m. Chicago time on the date of
receipt, notify Lenders of the amount, term and
proportionate share of such Loan to be funded by
each Lender. Two (2) Business Days prior to the
date specified for funding of such Eurodollar Loan
in the notice from Borrower provided under (a)
above, Agent shall notify Lenders and Borrower of
the Libor Rate in effect for such Eurodollar Loan.
Each Lender shall make available its proportionate
share of any Loan, by federal funds wire transfer to
Agent at Agent's Applicable Lending Office, in
immediately available funds, by not later than 2:00
p.m. Chicago time, on the date specified for a Loan
hereunder as provided in (a) above. The amount of
any Loan shall, subject to the terms of this
Agreement, be made available to Borrower by
depositing same, in immediately available funds, in
an account of Borrower, as designated by Borrower,
maintained at Agent's Applicable Lending Office, or
by wiring the same, in immediately available funds,
to any account specified by Borrower in its notice
of borrowing.
(c) The failure of any Lender to make any Loan to be
made by it on any date specified therefor shall not
relieve any other Lender of its obligation to make
its Loan on such date, but neither the Agent nor any
Lender shall be responsible for the failure of any
other Lender to make a Loan.
2.4 PAYMENTS AND PREPAYMENTS.
-------------------------
(a) Borrower shall make each payment in respect of the
principal of and interest on the Revolving Loans,
Term Loans and any other payments due under this
Agreement not later than 12:00 p.m. Chicago time on
the day when due, in Dollars, to the Agent for the
account of each Lender at the Agent's Applicable
Lending office in Chicago, Illinois in immediately
available funds.
(b) After the occurrence of an Event of Default, any
Lender for whose account any such payment is to be
made may (but shall not be obligated to) debit the
amount of any such payment which is not made by such
time to any ordinary deposit account of Borrower
with such Lender and shall give notice thereof to
the Agent and Borrower, provided the failure to give
such notice does not affect the validity of such
debit.
(c) Borrower shall, at the time of making such payment
under this Agreement, the Revolving Credit Notes, or
the Term Loan Notes, specify to the Agent the Loans
or other amounts payable by Borrower hereunder to
which such payment is to be applied; provided that
all such payments shall be applied prorata with
respect to the Loans so specified due to each of the
Lenders (and in the event that it fails to so
specify, or if an Event of Default has occurred and
is an Uncured Default, the Agent shall distribute
14
19
such payment to the Lenders in such manner as Agent
may determine to be appropriate, subject to Section
2.5 hereof).
(d) Each payment received by the Agent under this
Agreement, any Revolving Credit Note, or Term Loan
Note for account of a Lender shall be paid promptly
to such Lender on the same Business Day of receipt
by Agent if received by 12:00 p.m. Chicago time, or
otherwise on the next successive Business Day, at
the Applicable Lending Office for the Revolving Loan
or other obligation in respect of which such payment
is made.
(e) Subject to Section 2.14 of this Agreement and
------------
except as otherwise provided herein, any prepayment
of the Obligations by Borrower shall be without
premium or penalty, other than the imposition of the
Default Rate of interest, where applicable. Except
as otherwise provided herein, any prepayments of the
Term Loans shall be applied pro rata to the
installments due thereunder in the inverse order of
their maturity.
(f) Upon the occurrence of a Change of Control Lenders
Commitments shall terminate and Borrower shall make
a mandatory prepayment of the outstanding balance of
the Obligations within ninety (90) days of the
occurrence of such Change of Control, or such
earlier date as such Obligations may be due or
declared due under any other provision of this
Agreement.
2.5 PRO RATA TREATMENT.
--- -------------------
Except to the extent otherwise provided herein: (i) each
borrowing from the Lenders, and each payment of any fee under
Section 2.12 hereof, shall be made for the account of the
------------
Lenders, according to their respective Pro Rata Shares;
(ii) each payment of principal of the Loans by Borrower shall
be made for the account of the Lenders pro rata in accordance
with the respective unpaid principal amounts of the Loans held
by the Lenders; and (iii) each payment of interest by Borrower
shall be made for account of the Lenders pro rata in accordance
with the amounts of interest due and payable to the respective
Lenders.
2.6 NON-RECEIPT OF FUNDS BY THE AGENT.
---------------------------------
Unless the Agent shall have been notified by a Lender or
Borrower (the "Payor") prior to the date on which the Payor is
scheduled to make payment to the Agent of (in the case of a
Lender) the proceeds of a Loan to be made by it hereunder or
(in the case of Borrower) a payment to the Agent for the
account of one or more of the Lenders hereunder (such payment
being herein called the "Required Payment"), which notice shall
be effective upon receipt, that the Payor does not intend to
make the Required Payment to the Agent, the Agent may assume
that the Required Payment has been made and may, in reliance
upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient(s) on such
date and, if the Payor has not in fact made the Required
Payment to the Agent, the recipient(s) of such Payment shall,
on demand, repay to the
15
20
Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date
such amount was so made available by the Agent until the date the
Agent recovers such amount at a rate per annum equal to the
Default Rate for such period and, if such recipient(s) shall fail
promptly to make such payment, the Agent shall be entitled to
recover such amount, on demand, from the Payor, together with
interest as aforesaid. Notwithstanding the foregoing to the
contrary, the Agent shall not charge the Lenders, and the Lenders
shall not be responsible to pay the Agent, any interest described
in this Section 2.6 to the extent such interest has otherwise
been paid by Borrower to the Agent.
2.7 SHARING OF PAYMENTS, ETC.
-------------------------
(a) Borrower agrees that, in addition to (and
without limitation of) any right of set-off,
bankers' lien or counterclaim a Lender might
otherwise have, each Lender shall be entitled,
at its option, to offset balances held by it
for the account of Borrower at any of its
offices, against any principal of or interest
on any of such Lender's Loans or any other
amount payable to such Lender hereunder, which
is not paid when due subject to any applicable
grace periods (regardless of whether such
balances are then due to Borrower), in which
case it shall promptly notify Borrower and the
Agent thereof, provided that such Lender's
failure shall not affect the validity thereof.
(b) If any Lender (i) shall obtain payment of any
principal of or interest on any Loan made by it to
Borrower under this Agreement through the exercise
of any right of set-off, banker's lien or
counterclaim or similar right or otherwise, whether
or not under Section 2.7(a) above, and, as a
--------------
result of such payment, such Lender shall have
received a greater percentage of the Obligations
with respect to the Loans then due hereunder by
Borrower to such Lender than the percentage of the
Obligations received by the other Lender, or
(ii) such Lender's percentage of the outstanding
Obligations relating to Loans is less than its Pro
Rata Share of such Obligations, it shall promptly
purchase from such other Lenders participations in
(or, if and to the extent specified by such Lender,
direct interests in) the Loans made by such other
Lenders (or in interest due thereon or other
Obligations with respect to the Loans due to such
Lender, as the case may be) in such amounts, and
make such other adjustments from time to time as
shall be equitable, to the end that (x) each Lender
shall have made advances of Obligations relating to
Loans according to its Pro Rata Share of its
Commitment of such Obligations, and (y) all of the
Lenders shall share the benefit of such excess
payment (net of any expense which may be incurred by
such Lender in obtaining or preserving such excess
payment) pro rata in accordance with the unpaid
Obligations with respect to the Loans due to each of
the Lenders. To such end all the Lenders shall make
appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored.
16
21
(c) Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the
Obligations with respect to the Loans due to any
other Lender (or in interest due thereon, as the
case may be) may exercise all rights of set-off,
bankers' lien, counterclaim or similar rights with
respect to such participation as fully as if such
other Lenders were a direct holder of Loans in the
amount of such participation.
(d) Nothing contained herein shall require any Lender
to exercise any such right or shall affect the right
of any Lender to exercise, and retain the benefits
of exercising, any such right with respect to any
other indebtedness or obligation of Borrower. If,
under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in
lieu of a payment or set-off to which this
Section 2.7 applies, such Lender shall, to the
-----------
extent practicable, exercise its rights in respect
of such secured claim in a manner consistent with
the rights of the Lenders entitled under this
Section 2.7 to share in the benefits of any
-----------
recovery on such secured claim.
2.8 INTEREST
--------
(a) RATE. All Obligations owed by the Borrower to
-----
Lenders (except for Eurodollar Loans and those
Obligations evidenced by a note other than Notes, or
covered by any other Section of this Agreement or
other agreement which specifically provides for a
rate of interest different from that provided for
herein) shall bear interest, on the unpaid principal
balance thereof, at a rate per annum (computed on
the basis of the actual number of days elapsed over
a 360 day year) (the "Rate") equal to the Reference
Rate, payable monthly in arrears on the first
Business Day of each calendar month.
Subject to the provisions of Section 2 of this
---------
Agreement, each Eurodollar Loan shall bear interest
on the unpaid principal balance thereof at a rate
per annum (computed on the basis of the actual
number of days elapsed over a 360-day year) equal to
the Libor Rate for the Interest Period in effect for
such Loan, plus .90% Interest on Eurodollar Loans
for 1, 2, 3 or 6-month Interest Periods shall be
payable in arrears on the last day of the applicable
Interest Period. Interest on Eurodollar Loans for a
6-month Interest Period shall be payable in arrears
on the 90th day following funding of such Eurodollar
Loan by Lenders and on the last day of such Interest
Period.
In addition to calculations of the Rate as provided
above, in the event that the Reference Rate
announced is, from time to time hereafter, changed,
adjustment in the Rate shall be made on the
effective date of such change in the Reference Rate.
The Rate, as adjusted, shall apply to all
Obligations (except as provided above with respect
to Eurodollar Loans or where otherwise specifically
provided) owed on the date following the date on
which the adjustment is made and shall continue to
apply to such
17
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Obligations owed during succeeding months until the
Reference Rate is adjusted again. Agent shall use
reasonable efforts to notify Borrower of each change
in the Reference Rate as soon as practicable, but
Borrower's obligation to pay all interest at the Rate
and Default Rate as provided in this Agreement shall
not be affected by, nor shall Agent have any
liability for, any failure to so notify Borrower.
(b) DEFAULT RATE. Notwithstanding the foregoing, the
------------
Obligations shall bear interest, from and after the
occurrence of an Event of Default and for so long as
an Event of Default shall be an Uncured Default and
without constituting a waiver of any such Event of
Default, on the balances owing from time to time, at
a rate per annum equal to Two percentage points
above the Rate (the "Default Rate"), payable on
demand.
(c) MAXIMUM INTEREST. It is the intention of Agent
----------------
and Borrower to comply with the laws of the State of
Illinois, and notwithstanding any provision to the
contrary contained herein or in the other Loan
Documents, Borrower shall not be required to pay,
and Agent shall not be permitted to collect, any
amount in excess of the maximum amount of interest
permitted by applicable law ("Excess Interest"). If
any Excess Interest is provided for or determined to
have been provided for by a court of competent
jurisdiction in this Agreement or in any of the
other Loan Documents, then in such event (i) the
provisions of this Section shall govern and control;
(ii) Borrower shall not be obligated to pay any
Excess Interest; (iii) any Excess Interest that
Agent may have received hereunder shall be, at
Agent's option, (A) applied as a credit against
either the outstanding principal balance of the
Loans or accrued and unpaid interest hereon, (B)
refunded to the payor thereof, or (C) any
combination of the foregoing; (iv) the interest
rate(s) provided for herein shall be automatically
reduced to the maximum rate allowed under applicable
law, and this Agreement and the other Loan Documents
shall be deemed to have been, and shall be, reformed
and modified to reflect such reduction; and (v)
Borrower shall not have any action against Agent for
any damages arising out of the payment or collection
of any Excess Interest. Notwithstanding the
foregoing, if any interest payment or other charge
or fee payable hereunder or under any of the other
Loan Documents exceeds the maximum amount then
permitted by applicable law, then to the extent
permitted by law, Borrower shall be obligated to pay
the maximum amount then permitted by applicable law
and Borrower shall continue to pay the maximum
amount from time to time permitted by applicable law
until all such interest payments and other charges
and fees otherwise due hereunder or under any of the
other Loan Documents (in the absence of such
restraint imposed by applicable law) have been paid
in full.
18
23
(d) CHARGES TO LOAN ACCOUNT. Agent may, upon notice
-----------------------
to Borrower, at its option, charge any interest and
fees payable hereunder or under any of the other
Loan Documents to Borrower's Loan Account, and any
amounts so charged shall thereupon constitute
Obligations hereunder and shall thereafter accrue
interest as provided for in this Agreement.
2.9 FEES
----
In consideration of Lenders' establishing the Maximum
Facility hereunder and making of the Loans hereunder, Borrower
shall pay to Agent for the benefit of Agent or Lenders, as
applicable, the following fees and charges:
(a) FACILITY FEE. A facility fee payable quarterly,
------------
in arrears, on the first day of each calendar
quarter commencing January 1, 1997, equal to .10%
per annum (computed on the basis of a year
consisting of 360 days) of the Maximum Facility.
(b) AGENCY FEE. An agency fee payable to Agent as
----------
set forth in the letter agreement between Borrower
and Agent regarding same.
(c) OUT-OF-POCKET FEES, COSTS AND EXPENSES. All
--------------------------------------
reasonable out-of-pocket fees, costs and expenses
("Out-of-Pocket Fees and Costs"), incurred by Agent
or Lenders in connection with (i) any bank charges
in connection with opening and maintaining and
transferring funds from any depository account and
depositing funds for collection by Agent on account
of the Obligations; (ii) wire transfer fees in
connection with Agent's forwarding to Borrower the
proceeds of Loans hereunder; (iii) photocopying and
other mechanical or electronic reproduction expenses
in connection with Agent's rights of inspection
under this Agreement or any other Loan Document or
in connection with any service utilized by Agent to
perform such functions; (iv) expenses in connection
with the documentation, negotiation and closing of
the Revolving Loans and Term Loans (including any
and all amendments or waivers with respect hereto),
(v) the reasonable fees, costs and expenses for
attorneys and paralegals (A) incurred by Agent in
connection with the documentation, negotiation and
Closing of the Loans described herein up to the
aggregate sum of $5,000, or incurred by Agent or
Lenders in connection with any and all amendments or
waivers with respect thereto entered into at or
after the Closing of the Loans, and the enforcement
of Agent's and Lender's rights hereunder and under
the other Loan Documents, (B) incurred by Agent,
Lenders or any Participants in connection with any
suit by or involving Agent, Lenders or any
Participant in enforcing or defending this Agreement
or any portion hereof, including without limitation,
attorneys' and paralegals' fees and costs incurred
in connection with appellate proceedings in any
appeals court, and (C) incurred by Agent, Lenders or
any Participants obtaining advice and legal services
with respect to drafting, negotiating, amending,
restating,
19
24
restructuring, terminating, enforcing or defending
this Agreement, or any portion hereof or any of the
other Loan Documents, whether or not suit is brought.
All such Out-of-Pocket Fees and Costs shall be part
of the Obligations, payable on demand.
2.10 AGENT MONTHLY STATEMENTS.
-------------------------
Agent shall render monthly statements of the Obligations
owing by Borrower to Lenders, including statements of all
principal, interest, and Out-of-Pocket Fees and Costs owing,
and such statements shall be prima facie evidence to be
----- -----
correct and accurate and constitute an account stated between
Borrower and Lenders unless, within thirty (30) days after
receipt thereof by Borrower, Borrower shall deliver to Agent,
by registered or certified mail, at Agent's place of business
indicated in Section 14 hereof, written objection thereto
----------
specifying the error or errors, if any, contained in any such
statement. Any balance credited to Borrower's account, less
monies remitted, paid or otherwise advanced by Agent to or for
Borrower's account and any amounts that Agent may be obligated
to pay in the future, and less any other sums due to Agent or
Lenders as provided in this Agreement, shall be remitted to
Borrower when all Obligations owed by Borrower to Agent or
Lenders have been paid in full.
2.11 PAYMENT DATES.
--------------
Any payment due under this Agreement on any day other
than a Business Day shall be due on the next succeeding
Business Day, and such payment shall bear interest in
accordance herewith until actually received.
2.12 REGULATIONS AFFECTING LOANS.
----------------------------
If (a) Regulation D or any other regulation of the
Board of Governors of the Federal Reserve System or any other
Federal regulation, or (b) after the date hereof, the adoption
of any applicable law, rule or regulation, or any change,
amendment to, deletion from or revision, modification or other
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 by any court, or compliance by
Agent, Lenders or any Participant with any request or directive
(whether or not having the force of law) of any such authority,
central bank or comparable agency,
(i) shall impose, modify or deem applicable
any reserve (including, without
limitation, any reserve imposed by the
Federal Reserve Board), special deposit,
special assessment or similar requirement
against assets of, deposits with or for
the account of, or credit extended by,
Agent, Lenders or any Participant; or
20
25
(ii) shall impose on Agent, Lenders or any
Participant any other condition affecting
the Loans;
and the result of any of the foregoing is to increase the cost
to Agent, Lenders or any Participant of making or maintaining
the Loans, or to reduce the amount of any sum received or
receivable by Agent, Lenders or any Participant under this
Agreement or under any Note with respect thereto, then on the
earlier of termination of this Agreement or fifteen days after
demand, Borrower shall pay directly to Agent from time to time
such additional amount or amounts as Agent, Lender or
Participant reasonably determines will compensate it for such
increased cost or such reduction.
2.13 RENEWALS: CONVERSION AND CONTINUATION OF REVOLVING LOANS.
---------------------------------------------------------
(a) Upon maturity of any Eurodollar Loan, the Borrower
may renew all or any part of any Eurodollar Loan to
it from Lenders with a Loan of the same or a
different type from Lenders, subject to the
conditions and limitations set forth herein and
elsewhere in this Agreement. Any Eurodollar Loan or
part thereof so renewed shall be deemed to be repaid
in accordance with this Section 2 with the proceeds
of a new borrowing hereunder and the proceeds of the
new Loan, to the extent such proceeds do not exceed
the principal amount of the Eurodollar Loan being
renewed, shall not be paid by Lenders to Borrower.
(b) The Borrower shall have the right at any time, upon
notice to Agent given in the manner and at the times
specified in this Agreement with respect to the
Loans into which conversion or continuation is to be
made, to convert its Eurodollar Loans into Reference
Rate Loans, to convert its Reference Rate Loans into
Eurodollar Loans (specifying the Interest Period to
be applicable thereto), to convert the Interest
Period applicable to any of its Eurodollar Loans to
another permissible Interest Period, and to continue
any of its Eurodollar Loans into a subsequent
Interest Period of any permissible duration, subject
to the terms and conditions of this Agreement, and
to the following:
(i) each conversion shall be effected by Agent by
applying the proceeds of the new Reference Rate
Loan or Eurodollar Loan, as the case may be, to
the Reference Rate Loan or Eurodollar Loan (or
portion thereof) being converted; accrued
interest on a Loan (or portion thereof) being
converted or continued shall be paid by the
Borrower at the time of conversion or
continuation; and
(ii) If any Eurodollar Loan is converted at any time
other than the end of an Interest Period
applicable thereto, the Borrower shall make
such payments associated therewith as are
required pursuant to Section 2.14 at the
------------
time such Eurodollar Loan shall be converted to
a Reference Rate Loan.
21
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The Interest Period applicable to any Eurodollar Loan resulting
from a conversion or continuation shall be specified by the
Borrower in the notice of conversion or continuation delivered
pursuant to this Section 2.13 provided, however, that if no
------------
such Interest Period shall be specified, the Borrower shall be
deemed to have selected an Interest Period of one month's
duration.
2.14 INDEMNITY.
---------
The Borrower shall indemnify Agent and Lenders against
any loss, fee, claim, damage, liability or expense which Agent
or Lenders may sustain or incur as a consequence of (i) any
failure by the Borrower to fulfill on the date of any borrowing
of a Eurodollar Loan hereunder the applicable conditions set
forth in this Agreement, (ii) any failure by the borrower to
borrow hereunder after notice of borrowing pursuant to this
Agreement has been given, (iii) any payment, prepayment or
conversion of a Eurodollar Loan required by any provision of
this Agreement, or otherwise made on a date other than the
last day of the applicable Interest Period, or (iv) the
occurrence of any Event of Default, including, but not limited
to, any loss or reasonable expense sustained or incurred or to
be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or
any part thereof as a Eurodollar Loan. Such loss or reasonable
expense shall include, without limitation, an amount equal to
the excess, if any, as reasonably determined by Agent or a
Lender of its cost of obtaining the funds for the Eurodollar
Loan being paid, prepaid or converted or not borrowed (based on
the Libor Rate applicable thereto) for the period from the date
of such payment, prepayment or conversion or failure to borrow
to the last day of the Interest Period for such Eurodollar Loan
(or, in the case of a failure to borrow, the Interest Period
for such Eurodollar Loan which would have commenced on the date
of such failure to borrow) over the amount of interest (as
reasonably determined by Agent) that could be realized by Agent
and Lenders in re-employing during such period the funds so
paid, prepaid or converted or not borrowed. A certificate of
Agent or a Lender setting forth any amount or amounts which
Agent or a Lender is entitled to receive pursuant to this
Section 2.14 shall be conclusive absent manifest error.
------------
2.15 CHANGE IN LEGALITY.
------------------
(a) Notwithstanding anything to the contrary herein
contained, if any change in any law or regulation or
in the interpretation thereof by any governmental
authority charged with the administration or
interpretation thereof shall make it unlawful for
any Lender or Agent to make or maintain any
Eurodollar Loan or to give effect to its obligations
as contemplated hereby (an "Illegality"), or if
Agent or Lender determine that maintenance of
Eurodollar Loans would cause such Lender to
implement or modify any reserve, special deposit or
assessment or other requirement, or impose any other
condition on Lenders affecting the Loans (each of
the foregoing circumstances called a "Regulatory
Action"), then, by written notice to the Borrower,
Agent shall:
22
27
(i) declare that Eurodollar Loans will not
thereafter be made by the affected Lender
hereunder, whereupon the Borrower shall be
prohibited from requesting Eurodollar
Loans from such Lender hereunder unless
such declaration is subsequently
withdrawn; provided, however, that if
after the date of any such declaration
there shall occur any change in law or
regulation or in the interpretation
thereof by any government authority
charged with the administration or
interpretation thereof that shall
eliminate such Illegality, such Lender
shall as promptly as reasonably
practicable notify the Borrower, Agent and
each of the other Lenders of such
occurrence and withdraw such declaration;
and
(ii) require that all outstanding Eurodollar
Loans made by such Lender be converted to
Reference Rate Loans, in which event (1)
all such Eurodollar Loans shall be
automatically converted to Reference Rate
Loans as of the effective date of such
notice as provided in paragraph (b) below
and, (2) all payments and prepayments of
principal which would otherwise have been
applied to repay the converted Eurodollar
Loans shall instead be applied to repay
the Reference Rate Loans resulting from
the conversion of such Eurodollar Loans.
(b) for purposes of this Section 2.15 a notice to
------------
the Borrower by Agent or a Lender pursuant to
paragraph (a) above shall be effective on the date
of receipt by the Borrower.
2.16 Unavailability of Deposits or Inability to
------------------------------------------
Ascertain, or Inadequacy of Libor Rate.
--------------------------------------
If on or prior to the first day of any Interest Period
for any Borrowing of Eurodollar Loans:
(a) the Agent advises the Borrower that deposits in
United States Dollars (in the applicable amounts)
are not being offered to it in the off-shore U.S.
Dollar interbank market for such Interest Period, or
(b) the Lenders advise the Agent that the Libor Rate
as determined by the Agent will not adequately and
fairly reflect the cost to such Lenders of funding
their Eurodollar Loans for such Interest Period,
then the Agent shall forthwith give notice thereof
to the Borrower and the Lenders, whereupon until the
Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the
obligations of the Lenders to make Eurodollar Loans
shall be suspended without liability to Agent or
Lenders.
23
28
2.17 INCREASED COST AND REDUCED RETURN.
----------------------------------
(a) If on or after the date hereof, the adoption of
any applicable law, rule or regulation, 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 Lender (or its Lending Office)
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 any Lender (or its applicable
Lending Office) to any tax, duty or other
charge with respect to its Eurodollar Loans,
its Notes or its obligation to make Eurodollar
Loans, or shall change the basis of taxation of
payments to any Lender (or its Applicable
Lending Office) of the principal of or interest
on its Eurodollar Loans or any other amounts
due under this Agreement in respect of its
Eurodollar Loans or its obligation to make
Eurodollar Loans (except for changes in the
rate of tax on the overall net income of such
Lender or its Applicable Lending Office imposed
by the jurisdiction in which such lender's
principal executive office or Applicable
Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement
(including, without limitation, any such
requirement imposed by the Board of Governors
of the Federal Reserve System, against assets
of, deposits with or for the account of, or
credit extended by, any Lender (or its
Applicable Lending Office) or shall impose on
any Lender (or its Applicable Lending Office)
or on the interbank market any other condition
affecting its Eurodollar Loans, its Notes or
its obligation to make Eurodollar Loans;
and the result of any of the foregoing is to increase the cost
to such Lender (or its Applicable Lending Office) of making or
maintaining any Eurodollar Loan, or to reduce the amount of any
sum received or receivable by such Lender (or its Applicable
Lending Office) under this Agreement or under its Notes with
respect thereto, by an amount deemed reasonably and in good
faith by such Lender to be material, then, Borrower shall,
within fifteen (15) days after demand by such Lender (with a
copy to the Agent), be obligated to pay such Lender such
additional amount or amounts as will compensate such Lender for
such increased cost or reduction (computed commencing on the
effective date of any event mentioned herein). Each Lender
agrees to use its best efforts to give the Borrower and Agent
notice of the occurrence of any event mentioned herein. In
addition, Lenders may, upon notice to Borrower (with a copy to
Agent), elect to increase the interest rate applicable to all
Eurodollar Loans made subsequent thereto, to compensate Lenders
for such increased cost or reduced yield.
24
29
2.18 DISCRETION OF LENDERS AS TO MANNER OF FUNDING.
----------------------------------------------
Notwithstanding any other provision of this Agreement,
each Lender shall be entitled to fund and maintain its funding
of all or any part of its Loans in any manner it sees fit, it
being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if each
Lender had actually funded and maintained each Eurodollar Loan
through the purchase of deposits in the interbank market having
a maturity corresponding to such Eurodollar Loan's Interest
Period and bearing an interest rate equal to the Libor Rate for
such Interest Period.
3. TERM OF THIS AGREEMENT; PREPAYMENTS
3.1 Term
----
(a) INITIAL TERM AND RENEWAL TERMS. This Agreement
------------------------------
shall have a term commencing on the Effective Date
and expiring on the Revolving Loan Termination Date
with respect to Revolving Loans and the Term Loan
Termination Date with respect to the Term Loans.
(b) AGENT RIGHT TO TERMINATE. Notwithstanding the
-------------------------
foregoing, upon the occurrence of an Event of
Default, Agent may in accordance with Section 11
----------
of this Agreement terminate this Agreement,
except that this Agreement shall terminate
automatically upon an Event of Default under
Section 10.5 or 10.6.
--------------------
(c) EFFECTS OF TERMINATION. On the date of
----------------------
termination or expiration of this Agreement, all
Obligations owed by Borrower shall become
immediately due and payable without notice or demand
and shall be repaid in cash or by a wire transfer of
immediately available funds and Lenders Commitments
shall terminate.
3.2 PREPAYMENT; TERMINATION.
------------------------
Borrower may borrow, repay and reborrow Revolving Loans
subject to the terms of this Agreement. Payments and
prepayments of Term Loans may not be reborrowed. Subject to
the terms of Section 2.14 of this Agreement and this
------------
Section 3.2, Borrower may, at any time, on thirty (30) days
-----------
written notice prior to the end of any month, prepay in full
the Loans and terminate this Agreement by paying to Agent, in
cash or by a wire transfer of immediately available funds, the
Obligations. Borrower may, at any time, on thirty (30) day's
written notice prior to the end of any month, elect to reduce
the Maximum Facility in increments of not less than $1,000,000.
Upon receipt by Agent of such notice, the Maximum Facility
shall be reduced by the requested increment effective the first
day of the month following the expiration of the notice period.
4. CONDITIONS PRECEDENT
25
30
4.1 CLOSING; CONDITIONS TO INITIAL LOAN AND CLOSING.
------------------------------------------------
The initial Revolving Loan and Term Loans hereunder shall
be made upon the Effective Date hereunder at the offices of
Agent's counsel ("Closing"). In addition to those conditions
set forth hereunder in Section 4.2 with respect to all
-----------
Loans hereunder, prior to or contemporaneously with the making
of the initial Revolving Loan hereunder, Agent and Lenders
shall be satisfied that all of the following conditions
precedent shall have been satisfied in a manner satisfactory to
Agent and Lenders.
(a) NO ADVERSE CHANGE.
------------------
There shall have been as determined by Agent and
Lenders in their discretion that (i) no material
adverse change since September 30, 1996 has occurred
in the operations (financial or otherwise) of
Borrower or its Subsidiaries, and (ii) no material
litigation or claims have occurred which would have
a Material Adverse Effect.
(b) REQUIRED DOCUMENTS.
-------------------
Agent shall have received all of the following
documents, each in form and substance satisfactory
to Agent and its counsel, duly executed and dated
the Effective Date (or such other date prior thereto
as shall be satisfactory to Agent):
(i) Agreement. Multiple copies of
---------
this Agreement as requested by Agent.
(ii) Revolving Credit Notes. The
----------------------
Revolving Credit Notes payable to
Lenders.
(iii) Certificate for Certified
-------------------------
Resolutions, Incumbency By-Laws. A
-------------------------------
Secretary's Certificate executed by
the secretary of Borrower with
respect to resolutions of directors
authorizing this Agreement and all
related transactions and incumbency
of the officers of Borrower.
(iv) Legal Opinion. Legal opinion of
--------------
Gallop, Xxxxxxx & Xxxxxx, X.X.,
counsel for Borrower.
(v) Organizational Documents. A copy
------------------------
of the Articles of Incorporation of
Borrower as amended to and including
the Closing date, certified by the
Secretary of State of Delaware, and a
copy of the by-laws of Borrower, as
amended, to and including the Closing
date, certified by the Secretary of
Borrower.
26
31
(vi) Insurance. A certified list of
---------
insurance policies of Borrower;
certificates of property, liability
and other third party insurance of
Borrower, each showing Agent as
certificate holder; certificates of
property and boiler and machinery
insurance, each showing Agent as
certificate holder and a certificate
of business interruption insurance of
Borrower, showing Agent as
certificate holder.
(vii) Good Standing Certificates. Good
--------------------------
standing certificates and
qualifications to do business for
Borrower in the States of Delaware,
Missouri, Illinois and in each other
State in which the failure of
Borrower to be qualified to transact
business would have a Material
Adverse Effect.
(viii) Officer's Certificate. A
---------------------
certificate executed by the chief
executive officer or chief financial
officer of Borrower in its capacity
as a corporate officer, stating that
to the best knowledge of such officer
after diligent inquiry and
investigation (a) no Event of Default
or Potential Default has occurred and
is continuing, (b) no material
adverse change in the condition or
operations, financial or otherwise,
or in the business prospects of the
Borrower's or any Subsidiary's
businesses has occurred since
September 30, 1996, (c) no
litigation, investigation or
proceeding, or injunction, writ or
restraining order of the type
described in Section 5.8 or
-----------
Section 7.3 hereof is pending or
-----------
threatened, and (d) such officer
believes sufficient information has
been provided to Agent to meet or
satisfy each of the conditions
precedent to the consummation of the
Loans contemplated hereby.
(ix) Agent shall have received the agency
fee pursuant to the agreement between
Borrower and Agent.
(x) Other. Such other documents as
-----
Agent or Lenders shall reasonably
request.
(c) OUT-OF-POCKET FEES AND COSTS. Lenders and
----------------------------
Agent shall have received reimbursement for all Out-
of-Pocket Fees and Costs which then have been paid
or accrued by Lenders and Agent.
4.2 Condition to All Loans.
----------------------
Notwithstanding any other provisions contained in this
Agreement, the making of each Loan provided for in this
Agreement shall be conditioned upon the satisfaction of the
matters set forth in this Section 4.2, and each request by
-----------
Borrower for a Revolving Loan or
27
32
Term Loan shall constitute a representation to Agent and Lenders
that each such condition set forth below has been met or
satisfied.
(a) WARRANTIES AND REPRESENTATIONS.
------------------------------
All of the warranties and representations
contained in this Agreement or any other Loan
Document shall be true and correct in all
material respects on and as of the date of such
Loan as if made on such date and each request
for a Loan shall constitute an affirmation by
Borrower that such warranties and
representations are then true and correct in
all material respects.
(b) NO DEFAULT. As determined by Agent in its
-----------
reasonable discretion, no Potential Default
shall have occurred or will result from such
Revolving Loan and no Event of Default shall
have occurred which shall be an Uncured Default
or will result from such Loan.
(c) NO LITIGATION.
--------------
(i) Except as set forth on Schedule 5.8 no
------------
litigation, investigation or proceeding before
any court or other governmental authority shall
be pending or threatened against Borrower or
any Subsidiary or any officer, director, or
employee of Borrower or any Subsidiary which,
in the reasonable opinion of Agent, is likely
to have a Material Adverse Effect; and (ii) no
injunction, writ, restraining order, judgment,
decree, or other order of any nature which
could reasonably have a Material Adverse Effect
shall have been issued or threatened by any
court or other governmental authority.
(d) OTHER REQUIREMENTS AND OTHER DOCUMENTS.
---------------------------------------
Lenders shall have received, in form and
substance reasonably satisfactory to Lenders,
all certificates, orders, authorizations,
consents, affidavits, schedules, instruments
and other documents which are provided for
hereunder, or which Lenders may at any time
reasonably request.
5. GENERAL CONTINUING WARRANTIES AND REPRESENTATIONS.
Borrower warrants and represents that:
5.1 OFFICE.
-------
The chief executive office or principal place of business
of Borrower is at the address indicated in Section 14
----------
hereof and Borrower covenants and agrees that it will not,
during the term of this Agreement, without at least 30 days
prior written notification to Agent, relocate such chief
executive office or principal place of business.
28
33
5.2 EXISTENCE.
----------
Borrower is and shall at all times hereafter be a
corporation duly organized and existing under the laws of the
state of its organization and is qualified and licensed to do
business, and is in good standing, in any state in which it
conducts its business or in which the failure to qualify could
have a Material Adverse Effect which states include, as of the
date hereof and as of the Closing Date, the states listed on
Schedule 5.2 (provided that inclusion on said Schedule 5.2
------------ ------------
does not mean that failure to qualify in such state would
have a Material Adverse Effect).
5.3 AUTHORITY.
----------
Borrower has full corporate power and is duly authorized
to enter into this Agreement and the other Loan Documents.
5.4 VALIDITY.
---------
This Agreement and all of the other Loan Documents are
the legal, valid and binding obligations of Borrower,
enforceable in accordance with their terms, except as limited
by applicable bankruptcy, reorganization, insolvency or similar
laws affecting the enforcement of creditor's rights generally.
5.5 NO BREACH.
----------
The execution by Borrower of this Agreement and the other
Loan Documents shall not constitute a breach of any provision
contained in Borrower's organizational agreements or by-laws,
nor does it constitute an event of default under any material
agreement to which Borrower is now or hereafter becomes a
party, nor does it violate any order, decree or judgment of any
court or governmental commission or agency.
5.6 SOLVENCY.
---------
On the Effective Date both prior to and after the
transactions contemplated in connection with the Closing, and
at all times thereafter, the Fair Value of Borrower's assets is
and shall be greater than its liabilities; Borrower is and
shall be able to pay its debts as they mature and Borrower does
not and will not have an unreasonably small amount of capital.
Borrower has and at all times hereafter will have sufficient
capital to carry on its business and transactions as now
conducted and as planned to be conducted in the future.
5.7 COMPLIANCE WITH LAWS.
---------------------
Borrower and each Subsidiary is in compliance in all
respects with all applicable Laws, including without
limitation, Laws imposed by any Regulatory Agencies or other
governmental authority, including but not limited to the
Securities Act of 1933, the Securities Exchange Act of 1934,
the Fair Labor Standards Act, Environmental Laws, laws relating
to income, unemployment,payroll or social security taxes and
employee benefit
29
34
plans (as defined in Section 3(3) of ERISA) as required by ERISA,
except for those laws, rules and regulations the violation of
which would not have a Material Adverse Effect.
5.8 ACTIONS OR PROCEEDINGS.
----------------------
Except as disclosed on Schedule 5.8, there are no
------------
actions or proceedings pending by or against Borrower or any
Subsidiary before any court, administrative agency or other
governmental entity including, without limitation, any
Regulatory Agency which could have a Material Adverse Effect
and Borrower has no knowledge of any pending, threatened or
imminent litigation, governmental investigations or claims,
complaints, actions or prosecutions involving Borrower or any
Subsidiary, or any breaches by Borrower or any other Person of
any agreement to which Borrower is a party, except for actions,
proceedings, litigation, investigations, claims, complaints,
actions, prosecutions and breaches that would not have a
Material Adverse Effect.
5.9 Trademarks, Licenses, etc.
--------------------------
Borrower and each Subsidiary owns or possesses rights to
use all licenses, patents, patent applications, copyrights,
service marks, trademarks and trade names required to continue
to conduct its business as heretofore or presently conducted.
All such licenses, patents, patent applications, copyright
registrations, service marks, trademarks and trade names are
listed on Schedule 5.9. To the best of Borrower's
------------
knowledge, after diligent inquiry, no such license or trademark
has been declared invalid, been limited by order of any
governmental authority or by agreement, or is the subject of
any infringement, interference or similar proceeding or
challenge, except for those licenses or trademarks which if
challenged, limited or rendered invalid, would not have a
Material Adverse Effect.
5.10 FINANCIAL STATEMENTS.
---------------------
All financial statements relating to Borrower and its
Subsidiaries which have been or may hereafter be delivered by
Borrower to Agent or Lenders fairly present the financial
condition of Borrower and its Subsidiaries and have been
prepared in accordance with Generally Accepted Accounting
Principles, subject to year-end adjustments and the absence of
footnotes with respect to interim financial statements, and
there has been no material adverse change in the financial
condition of Borrower and its Subsidiaries, either individually
or on a consolidated basis, since the submission of such
financial information to Agent.
5.11 CONDUCT OF BUSINESS.
-------------------
Since September 30, 1996, Borrower has not: (i) incurred
any debts, obligations, or liabilities (absolute, accrued, or
contingent and whether due or to become due) except current
liabilities incurred in the ordinary course of business, none
of which (individually or in the aggregate) materially and
adversely affects the business or properties of Borrower;
(ii) paid any obligation or liability other than current
liabilities in the ordinary course of business, or discharged
or satisfied any liens or encumbrances other than those
securing
30
35
current liabilities, in each case in the ordinary course
of business; (iii) except as set forth on Schedule 5.11
-------------
hereto, declared or made any payment to or distribution to
its stockholders as such, or purchased or redeemed any of
its shares of capital stock, or obligated itself to do so;
(iv) mortgaged, pledged, or subjected to any Lien any of its
assets (tangible or intangible); (v) sold, transferred or
leased any of its assets except in the usual and ordinary
course of business; (vi) suffered any physical damage,
destruction or loss (whether or not covered by insurance)
materially and adversely affecting the properties or business
of Borrower; (vii) entered into any transaction other than in
the usual and ordinary course of business and other than as
contemplated hereby; (viii) encountered any labor difficulties
or labor union organizing activities; (ix) except as set forth
on Schedule 5.11 hereto, issued or sold any shares of
-------------
capital stock or other securities or granted any options or
similar rights with respect thereto other than pursuant hereto;
or (x) agreed to do any of the foregoing other than pursuant
hereto. There has been no material adverse change in the
business, financial condition, operations or results of
operations of Borrower since the date of September 30, 1996.
5.12 ENVIRONMENTAL LAWS.
------------------
Except as disclosed on Schedule 5.12, to the best
-------------
of Borrower's knowledge after diligent inquiry: (i)
Borrower and its Subsidiaries and all properties owned or
operated by Borrower and its Subsidiaries comply with all
Environmental Laws, except where such failure to comply would
not have a Material Adverse Effect; (ii) neither Borrower nor
its Subsidiaries are not subject to any actual or threatened
judicial or administrative proceeding, investigation or inquiry
into the possibility of violation of any Environmental Laws;
(iii) neither Borrower nor its Subsidiaries' or their
respective properties are the subject of actual or threatened
governmental authority investigation or inquiry evaluating
whether any remedial action is needed to respond to a Release
of any Hazardous Material or other substance into the
environment, and Borrower does not have knowledge or notice of
the presence on or under any property owned or operated by it
or its Subsidiaries, or of the Release of, any Hazardous
Material in violation of any Environmental Laws; (iv) there is
no claim pending or threatened against Borrower or any of its
Subsidiaries relating to damage, contribution, cost recovery
compensation, loss, or injury resulting from the Release of, or
exposure to, any Hazardous Material, except such claims as
would not have a Material Adverse Effect; and (v) neither
Borrower nor its Subsidiaries has filed, nor was required to
file, any notice under any law, regulation or rule indicating
past or present generation, transportation, treatment, storage
or disposal of a Hazardous Material or reporting a Release of a
Hazardous Material into the environment and has not engaged in
such activity other than in accordance with Environmental Laws
where failure to file such notice or report will not have a
Material Adverse Effect. Neither Borrower nor its Subsidiaries
has any known contingent liability in connection with any
Release of any Hazardous Material into the environment; and
neither Borrower nor its Subsidiaries has received notice, nor
has reason to expect notice, of any potential liability under
any Environmental Law.
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5.13 PERMITS AND LICENSES.
--------------------
To the best of Borrower's knowledge after diligent
inquiry, Borrower and each of its Subsidiaries has been and is
current and in good standing with respect to all governmental
approvals, permits, certificates, licenses, inspections,
consents and franchises (collectively, the "Licenses")
necessary to continue to conduct its business and to own or
lease and operate its properties as heretofore conducted,
owned, leased or operated, including, without limitation, any
and all Licenses related to banking and trust activities
conducted by the Bank Subsidiaries, except where failure to
hold or maintain such Licenses would not have a Material
Adverse Effect.
5.14 ERISA.
------
To the best of Borrower's knowledge after diligent
inquiry: neither Borrower, any ERISA Affiliate of Borrower, nor
any Benefit Plan is in violation in any material respect of any
of the provisions of ERISA or any of the qualification
requirements of Section 401(a) of the IRC; no Prohibited
--------------
Transaction or Reportable Event has occurred with respect to
any Benefit Plan, nor has any Benefit Plan been the subject of
a waiver of the minimum funding standard under Section 412 of
the IRC; nor has any Benefit Plan experienced an accumulated
funding deficiency under Section 412 of the IRC; nor has any
lien been imposed upon the Borrower or any ERISA Affiliate of
Borrower under Section 412(n) of the IRC; nor has any Benefit
Plan been amended in such a way that the security requirements
of Section 401(a)(29) of the IRC apply; no notice of intent to
terminate a Benefit Plan has been distributed to affected
parties or filed with the PBGC under Section 4041 of ERISA, nor
has any Benefit Plan been terminated under Section 4041(e) of
ERISA; the PBGC has not instituted proceedings to terminate, or
appoint a trustee to administer, a Benefit Plan and no event
has occurred or condition exists which might constitute grounds
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan;
neither Borrower nor any ERISA Affiliate of Borrower would be
liable for any amount pursuant to Sections 4062, 4063 or 4064
of ERISA if all Benefit Plans terminated as of the most recent
valuation dates of such Benefit Plans; neither Borrower nor any
ERISA Affiliate of Borrower maintains any employee welfare
benefit plan, as defined in Section 3(1) of ERISA, which
provides any benefits to an employee or the employee's
dependents with respect to claims incurred after the employee
separates from service other than is required by applicable
law; and neither Borrower nor any ERISA Affiliate of Borrower
has incurred or expects to incur any withdrawal liability to
any Multiemployer Plan.
5.15 OTHER NAMES.
------------
During the previous five years, the business conducted by
Borrower and its Subsidiaries has not been conducted under any
corporate, trade or fictitious name other than those names
listed on Schedule 5.15 hereto.
-------------
32
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5.16 TAX OBLIGATIONS.
---------------
Borrower and each of its Subsidiaries has filed complete
and correct federal, state and local tax reports and returns
required to be filed by it, prepared in accordance with any
applicable laws or regulations, and except for extensions duly
obtained, has either duly paid all taxes, duties and charges
owed by it, or made adequate provision for the payment thereof,
unless Borrower is contesting in good faith, by appropriate
proceedings, the validity, amount or imposition of such tax,
duty or charge while maintaining adequate reserves to cover
such tax, duty or charge and where such contest would not have
a Material Adverse Effect. There are no material unresolved
questions or claims concerning any tax liability of Borrower or
any of its Subsidiaries. None of the transactions contemplated
hereby or under any agreements referred to hereunder will
result in any material tax liability for Borrower or any of its
Subsidiaries or result in any other material adverse tax
consequence for Borrower or any of its Subsidiaries.
5.17 EMPLOYEE CONTROVERSIES.
----------------------
There are no strikes, work stoppages or controversies
pending or, to the best of Borrower's knowledge after diligent
inquiry and investigation, threatened, between either Borrower
or any of its Subsidiaries and any of their employees, other
than employee grievances arising in the ordinary course of
business which will not, individually or in the aggregate, have
a Material Adverse Effect.
5.18 INVESTMENT COMPANY ACT.
-----------------------
Borrower is not an "investment company" or a company
"controlled" by an investment company within the meaning of the
Investment Company Act of 1940, as amended.
5.19 SUBSIDIARIES.
------------
Except as listed on Schedule 5.19 hereto, Borrower
-------------
has no Subsidiaries.
5.20 FULL DISCLOSURE.
----------------
This Agreement, the financial statements delivered in
connection herewith, and the representations and warranties of
Borrower herein and in any other document delivered or to be
delivered by or on behalf of Borrower, do not and will not
contain any untrue statement of a material fact or omit a
material fact necessary to make the statements contained
therein or herein, in light of the circumstances under which
they were made, not misleading. There is no material fact
which Borrower has not disclosed to Agent and Lenders in
writing which materially and adversely affects or, so far as
Borrower can foresee, could materially and adversely affect the
assets, business, prospects, profits, or condition (financial
or otherwise) of Borrower, the rights of Agent or the ability
of Borrower to perform this Agreement.
33
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6. NEGATIVE COVENANTS.
Borrower will not nor will it permit any of its
Subsidiaries to, without Agent's and Lender's prior written
consent:
6.1 SALE, TRANSFER OR ENCUMBRANCE OF ASSETS.
----------------------------------------
Sell, lease, pledge, encumber, grant or permit a Lien on
(other than Permitted Liens as defined below in this Section 6.1),
-----------
or otherwise dispose of or transfer, whether by sale or
otherwise, any of their assets, except for (A) sales of loans
and investments in the ordinary course of business, or (B)
sales of items of equipment or real property in the ordinary
course of Borrower's and its Subsidiaries' businesses up to an
aggregate sum of $25,000,000 in sales proceeds in any Fiscal
Year and where no Event of Default which is an Uncured Default
or Potential Default exists or would be created thereby. For
purposes of this Agreement, "Permitted Liens" shall mean any or
all of the following: (i) Liens securing the payment of taxes
or other governmental charges not yet due and payable, (ii)
Liens securing claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like Persons
imposed without action of such parties, provided that the
--------
payment thereof is not yet required, (iii) Liens incurred or
deposits made in the ordinary course of Borrower's or any
Subsidiary's business in connection with worker's compensation,
unemployment insurance, social security and other like laws,
(iv) Liens in connection with capitalized or operating leases
or purchase money security interests for purchase of equipment
up to all aggregate sum not to exceed $25,000,000 for any
lease or purchase and $50,000,000 in the aggregate for all
leases or purchases during any Fiscal Year; (v) Liens listed on
Schedule 6.1, or (vi) repurchase agreements and other
------------
similar transactions entered into by any Bank Subsidiary in the
ordinary course of its banking or trust business.
6.2 GUARANTIES.
-----------
Guarantee or otherwise become in any way liable with
respect to the obligations of any third party except by
endorsement of instruments or items of payments for deposit.
6.3 CHANGE IN BUSINESS.
-------------------
Enter into any business not related to its present
business or make any change in its financial structure or in
any of its business objectives, purposes, or operations which
could have a Material Adverse Effect.
6.4 LOANS AND INVESTMENTS.
----------------------
Make any material advance, loan or investment other than
(i) advances made to employees in the ordinary course of
business for moving, travel and business related expenses so
long as the aggregate amount of such advances do not exceed
$25,000 in the aggregate outstanding at any time; (ii)
investments in short-term direct obligations of the United
States government; (iii) investments in negotiable certificates
of deposit issued by a bank having capital and surplus of not
less than $100,000,000, payable to its order or to
34
39
bearer; (iv) investments in commercial paper rated A-1 or P-1;
(v) existing investments in Subsidiaries and other investments in
existence on the date hereof and described in Schedule 6.5;
------------
(vi) investments of any Bank Subsidiary in the ordinary course of
its banking or trust business consisting of extensions of
credit in the form of loans, acceptances, repurchase
agreements, letters of credit, and similar transactions and
investments of any Bank Subsidiary in the ordinary course of
its banking or trust business in community development
organizations such as housing, small business and similar
programs; (vii) investments of any Bank Subsidiary in the
ordinary course of its banking or trust business in marketable
securities and money-market instruments which it is permitted
to hold and invest in under applicable law and regulation; and
(viii) acquisitions of the assets or stock of any Person where
no Event of Default or Potential Default exists at the time
thereof or would be created thereby; and (ix) securities issued
or guaranteed by any territory of the United States, or by the
District of Columbia, or by any state of the United States, or
by any political subdivision of a state or territory, or by any
public instrumentality of one or more states or territories, or
by any Person controlled or supervised by and acting as an
instrumentality of the government of the United States pursuant
to authority granted by the Congress of the United States.
6.5 AFFILIATE TRANSACTIONS.
-----------------------
Except as provided in Section 6.9 of this
-----------
Agreement, transfer any cash or property to any direct or
indirect owner of or beneficial owner of any interest in
Borrower or enter into any transaction, including without
limitation the purchase, lease, sale or exchange of property or
the rendering of any service to or by any direct or indirect
owner of or beneficial owner of any interest in Borrower or
other Affiliate, except for fair value in the ordinary course
of business pursuant to terms that are no less favorable than
the terms upon which such transactions would have been made had
such transfers or transactions been made at arm's length to or
with a Person that is not an Affiliate and in compliance with
all Laws governing transactions among banks or bank holding
company affiliates imposed by Regulatory Agencies.
6.6 CONSOLIDATIONS, MERGERS.
------------------------
Merge or consolidate with any other Person or dissolve,
enter into any joint venture or become a partner in any
partnership, except (i) that a Subsidiary may merge with the
Borrower or a Subsidiary of Borrower, and (ii) the Borrower may
merge with another person; provided that (a) the Borrower is
the surviving entity, and (b) immediately prior to and after
giving effect to such merger no Potential Default or Event of
Default exists.
6.7 TRANSACTIONS NOT IN THE ORDINARY COURSE; LIQUIDATIONS.
------------------------------------------------------
Enter into any transaction not in the usual course of its
business or adopt or undertake a plan of liquidation or
dissolution.
35
40
6.8 SUSPENSION OF BUSINESS.
-----------------------
Suspend or terminate the transaction of its business.
6.9 DIVIDENDS, DISTRIBUTIONS.
-------------------------
In the case of Borrower only, pay, directly or
indirectly, any cash, stock or other securities or property
dividends or distributions, except for dividends by Borrower to
its shareholders during any Fiscal Year in excess of $1.50 per
share of Borrower's outstanding common stock; provided that
after giving effect to the payment of such dividends, no Event
of Default or Potential Default exists.
6.10 UNPERMITTED USES OF LOANS.
--------------------------
Use any part of the proceeds of the Loans hereunder for
any purpose which constitutes a violation of, or is
inconsistent with, any applicable regulations of the Board of
Governors of the Federal Reserve System, including without
limitation, the purchase or carrying of (or refinancing of
indebtedness originally incurred to purchase or carry) margin
securities.
6.11 ERISA.
------
Adopt or agree to contribute to any tax qualified Plan,
except as previously disclosed to Agent in writing.
7. AFFIRMATIVE COVENANTS - GENERAL.
--------------------------------
So long as any Obligations are outstanding, Borrower
covenants and agrees that:
7.1 TAXES.
------
All assessments and taxes, whether real, personal or
otherwise, due or payable by, or imposed, levied or assessed
against, Borrower, any Subsidiary, or any of their property
have been paid, and shall hereafter be paid in full, before
delinquency, except those assessments and taxes the validity of
which is being contested in good faith by appropriate
proceedings, and as to which Borrower shall have set aside
adequate reserves.
7.2 INSURANCE.
----------
Borrower and each Subsidiary, at its expense, shall keep
and maintain its property insured under "all risk" or
equivalent types of policies against loss or damage by fire,
theft, explosion, sprinklers and all other hazards and risks
ordinarily insured against by other owners who use such
properties in similar business for the full insurable value
thereof as necessary to prevent application of any co-insurance
provisions. Borrower shall also keep and maintain business
interruption insurance and public liability insurance relating
to Borrower's ownership and use of its assets. All such
policies of insurance shall be in such
36
41
form, with such companies, and in such amounts as may be
reasonably satisfactory to Agent. Borrower shall deliver to
Agent certified copies of such policies of insurance and evidence
of the payments of all premiums therefore. Agent, without
waiving or releasing any Obligations or any Event of Default may,
but shall have no obligation to obtain and maintain such policies
of insurance and pay such premiums and take any other action with
respect to such policies which Agent deems advisable. All sums
so disbursed by Agent, as well as reasonable attorneys' fees,
court costs, expenses and other charges relating thereof, shall
constitute Out-of-Pocket Fees and Costs and shall be payable on
demand.
7.3 LITIGATION.
-----------
Borrower shall immediately notify Agent in writing of any
suit in law or equity or administrative proceeding involving
money or property, and seeking damages from Borrower or any
Subsidiary in excess of $25,000,000, or which otherwise may
have a Material Adverse Effect.
7.4 BOOKS AND RECORDS.
------------------
Borrower at all times hereafter shall keep proper books
of record and account in which full and true entries will be
made of all dealings or transactions with respect to or in
relation to the business and affairs of Borrower, and shall
maintain a standard and modern system of accounting, in
accordance with generally accepted accounting practices with
ledger and account cards and/or computer tapes, discs,
printouts, and records which contain information as may from
time to time be reasonably requested by Agent. Borrower shall
notify Agent in writing if Borrower modifies or changes its
method of accounting or enters into, modifies, or terminates
any agreement presently existing, or at any time hereafter
entered into with any third party accounting firm and/or
service bureau for the preparation and/or storage of Borrower's
accounting records; provided, that such accounting firm
--------
and/or service bureau agrees to provide to Agent information
regarding the Borrower's financial condition. Borrower agrees
to permit Agent and any of its employees, officers or agents,
at all times after the occurrence of a Potential Default or
Event of Default, and otherwise upon one (1) Business Day's
prior notice, during Borrower's usual business hours, or the
usual business hours of third Persons having Control thereof,
to have access to and examine all of Borrower's Books relating
to the Collateral, the Obligations, Borrower's financial
condition and the results of Borrower's operations, and, in
connection therewith, permit Agent or any of its agents,
employees or officers to copy and make extracts therefrom.
7.5 COMPLIANCE WITH LAWS.
---------------------
Borrower shall comply in all material respects with all
Federal, State, local and foreign Laws, including, but not
limited to the Securities Act of 1933, the Securities Exchange
Act of 1934, the Fair Labor Standards Act, Environmental Laws,
laws relating to income, unemployment,payroll or social
security taxes and pension funds and retirement benefit
programs as required by ERISA and Laws imposed by any
Regulatory Agency.
37
42
7.6 EXPENSE REIMBURSEMENTS.
-----------------------
Borrower shall promptly upon demand by Agent, reimburse
Agent and Lenders for all sums expended by Agent or Lenders
which constitute Out-of-Pocket Fees and Costs and Borrower
hereby authorizes and approves all advances and payments by
Agent or Lenders for items constituting Out-of-Pocket Fees and
Costs. Agent shall make all good faith reasonable attempts to
notify Borrower of such advances and payments, but the failure
of Agent to so notify Borrower shall impose no obligation or
liability of any kind upon Agent or Lenders. Agent may charge
any or all of such amounts expended to Borrower's Loan Account
and such amounts shall be part of the Obligations subject to
interest at the Default Rate.
7.7 ERISA REPORTABLE EVENTS.
------------------------
Borrower shall furnish to Agent: (a) as soon as
possible, but in no event later than thirty (30) days after any
executive officer of Borrower has knowledge of or has reason to
know that any Reportable Event with respect to any Benefit Plan
has occurred, a statement of the chief financial officer of
Borrower setting forth the details concerning such Reportable
Event and the action which Borrower proposes to take with
respect thereto, together with a copy of the notice of such
Reportable Event given to the PBGC, if a copy of such notice is
available to Borrower; (b) promptly after the filing thereof
with the United States Internal Revenue Service or the PBGC,
copies of each annual report with respect to each Benefit Plan;
(c) promptly after receipt thereof, a copy of any notice of any
potential material liability, adverse determination letter,
ruling or opinion Borrower may receive from the PBGC or the
Internal Revenue Service with respect to any Benefit Plan; (d)
when the same is made available to participants in a Benefit
Plan, all notices of a significant reduction in the rate of
benefit accrual or plan termination to the participants by the
administrator of such Benefit Plan; and (e) promptly after
receipt thereof, any notice from any Multiemployer Plan to
which Borrower or any ERISA Affiliate of Borrower contributes
which quantifies any actual or potential withdrawal liability
which will or may be imposed upon the withdrawal of the
Borrower or any ERISA Affiliate of Borrower from such
Multiemployer Plan.
8. AFFIRMATIVE COVENANTS - REPORTING.
----------------------------------
Borrower shall furnish or cause to be furnished to Agent
and Lenders the following:
8.1 COLLATERAL ACTIVITY REPORT, COVENANT COMPLIANCE
------------------------------------------------
CERTIFICATES.
-------------
As soon as practicable and in any event within thirty
(30) days following the end of each fiscal quarter of each
Fiscal Year, Borrower shall provide Agent with a certificate
reflecting Borrower's compliance with the financial covenants
set forth in Section 9 of this Agreement as of the last day
---------
of the fiscal period. Such certificate shall be in a form and
with such specificity as is satisfactory to Agent and shall
contain such additional information as Agent may reasonably
require concerning financial covenant calculations included,
38
43
described or referred to in such certificate and any other
documents in connection therewith requested by Agent.
8.2 FINANCIAL AND OTHER REPORTS. Borrower shall
----------------------------
further cause to be furnished to Agent and Lenders:
(a) PERIODIC FINANCIAL STATEMENTS.
------------------------------
As soon as practicable and in any event within sixty
(60) days following the end of each of the first
three fiscal quarters of each Fiscal Year commencing
with the quarter ending March 31, 1997, (i)
consolidated and consolidating statements of income
of Borrower and its Subsidiaries for each such
fiscal quarter and for the period from beginning of
the then current Fiscal Year of Borrower to the end
of such fiscal quarter, (ii) consolidated and
consolidating statements of cash flow of Borrower
and its Subsidiaries for the period from the
beginning of the then current Fiscal Year of
Borrower to the end of such fiscal quarter, (iii)
consolidated and consolidating balance sheets of
Borrower and its Subsidiaries as of the end of such
fiscal quarter, and (iv) with respect to such
statements of income, in comparative form, figures
for the corresponding periods in the preceding
fiscal year of Borrower and its Subsidiaries, all in
reasonable detail and certified by the chief
financial officer of Borrower as fairly presenting
the financial condition of Borrower and its
Subsidiaries in accordance with Generally Accepted
Accounting Principles, subject to the absence of
footnotes and to year-end adjustments.
(b) REGULATORY CAPITAL REPORTS. As soon as
---------------------------
practicable and in any event within sixty (60) days
following the end of each fiscal quarter of each
Fiscal Year, commencing with the quarter ending
December 31, 1996, a copy of all Regulatory Capital
Reports filed by Borrower and its Subsidiaries as of
the end of such fiscal quarter.
(c) YEARLY FINANCIAL STATEMENTS. As soon as
---------------------------
practicable and in any event within one hundred
twenty (120) days after the end of each Fiscal Year
of Borrower commencing with the Fiscal Year ending
December 31, 1996, (i) consolidated and
consolidating statements of income of Borrower and
its Subsidiaries for such Year, and consolidated and
consolidating balance sheets of Borrower and its
Subsidiaries as of the end of such Fiscal Year, and
(ii) consolidated and consolidating statements of
cash flow of Borrower and its Subsidiaries for such
Fiscal Year, all setting forth in comparative form,
corresponding figures for the period covered by the
preceding annual audit and as of the end of the
preceding Fiscal Year of Borrower, all in reasonable
detail and in scope in accordance with audits
performed for Borrower in prior years and certified
by independent certified public accountants of
recognized national standing selected by Borrower
and satisfactory to Agent, whose opinion shall be
unqualified and shall be in
39
44
scope in accordance with audits performed for
Borrower in prior years, in form and substance
satisfactory to Agent.
(d) MANAGEMENT LETTERS, TAX DISTRIBUTIONS.
--------------------------------------
As soon as practicable and in any event within ten
(10) days of delivery to Borrower, a copy of any
letter issued by Borrower's independent public
accountants or other management consultants with
respect to Borrower's or any Subsidiary's financial
or accounting systems or controls, including all so-
called "management letters".
(e) REGULATORY AGENCY REPORTS. Promptly upon
-------------------------
their becoming available, one copy of each financial
statement, report, notice or proxy statement sent by
Borrower to its shareholders generally and each
regular or periodic, financial or other report,
registration statement or prospectus filed by
Borrower or any of its Subsidiaries with any
Regulatory Agencies, including without limitation,
the Securities and Exchange Commission and the
Federal Reserve, subject, in each case, to any
statutory and regulatory restrictions on
dissemination of information.
(f) OTHER INFORMATION. With reasonable
-----------------
promptness, such other business or financial data,
reports and projections as Agent may reasonably
request.
All financial statements delivered to Agent or
Lenders pursuant to the requirements of this
subsection (except where otherwise expressly
indicated) shall be prepared in accordance with
Generally Accepted Accounting Principles as provided
in this Agreement. Together with each delivery of
financial statements required by Subsections (A)
---------------
and (B) above, Borrower shall deliver to Agent an
-------
officer's certificate in the form of Exhibit 8.2
-----------
hereto stating that (1) there exists no Event of
Default or Potential Default, or if a Potential
Default or Event of Default exists, specifying the
nature thereof, the period of existence thereof and
what action Borrower proposes to take with respect
thereto, (2) no material adverse change in the
condition, financial or otherwise, business,
property, or results of operations of Borrower has
occurred since the previous certificate was sent to
Agent by Borrower or, if any such change has
occurred, specifying the nature thereof and what
action Borrower has taken or proposes to take with
respect thereto, (3) all insurance premiums then due
have been paid, (4) all taxes then due have been
paid or, for those taxes which have not been paid, a
statement of the taxes not paid and a description of
Borrower's rationale therefor, (5) except as
previously reported to Agent, to the best of
Borrower's knowledge after diligent inquiry, no
litigation, investigation or proceeding, or
injunction, writ or restraining order is pending or
threatened which would have a Material Adverse
Effect, and (6) stating whether or not Borrower is
in compliance with the representations, warranties
and covenants in this Agreement. Together with each
delivery of annual
40
45
financial statements required by Subsection (B)
--------------
above, Borrower shall, if requested by the Agent,
deliver to Agent a certificate of the accountants who
performed the audit in connection with such
statements stating that in making the audit necessary
to the issuance of a report on such financial
statements, they have obtained no knowledge of any
Event of Default, or, if such accountants have
obtained knowledge of an Event of Default, specifying
the nature and period of existence thereof. Agent
shall exercise reasonable efforts to keep such
information, and all information acquired as a result
of any inspection conducted in accordance with this
Agreement, confidential, provided that Agent may
communicate such information (1) to any other Person
in accordance with the customary practices of
commercial lenders relating to routine trade
inquiries, (2) to any regulatory authority, or
pursuant to any other, judgement or decree of any
court, having jurisdiction over Agent, (3) to
Lenders, (4) to any other Person in connection with
the exercise of Agent's rights hereunder, or (5) to
any Participant or prospective Participant.
8.3 ACCOUNTING INFORMATION.
----------------------
Borrower authorizes Agent to discuss the financial
condition of Borrower with Borrower's independent public
accountants and agrees that such discussion or communication
shall be without liability to either Agent or Borrower's
independent public accountants. Prior to the occurrence of an
Event of Default, Agent shall provide Borrower prior notice of
any proposed discussion with Borrower's accountants. Borrower
shall deliver a letter addressed to such accountants
authorizing them to comply with the provisions of this
subsection, and authorizing Agent to rely on financial
statements of Borrower issued by such accountants, which letter
shall be acknowledged and consented to in writing by such
accountants.
8.4 OTHER INFORMATION AND CHANGES.
------------------------------
Borrower shall promptly supply Agent with such other
information concerning its or its Subsidiaries' affairs as
Agent may reasonably request from time to time hereafter, and
shall promptly notify Agent of any material adverse change in
Borrower's or any Subsidiary's financial condition and of any
condition or event which constitutes a breach of or an Event of
Default under this Agreement.
9. COVENANTS - FINANCIAL.
9.1 NON-PERFORMING ASSETS TO TOTAL EQUITY CAPITAL.
---------------------------------------------
Borrower shall not permit the ratio of its consolidated
Nonperforming Assets to its Total Equity Capital to exceed .25
to 1.0 at any time.
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9.2 CAPITALIZATION.
--------------
Borrower shall cause each Bank Subsidiary to be
"adequately capitalized" for purposes of 12 U.S.C. 1831(o) and
any rules and regulations issued thereunder by any Regulatory
Agencies, as amended, supplemented or otherwise modified from
time to time.
9.3 CAPITAL GUIDELINES.
------------------
Borrower shall comply and cause each Bank Subsidiary to
comply with all minimum risk-based capital guidelines and other
capital guidelines imposed by any Regulatory Agencies.
9.4 RETURN ON AVERAGE ASSETS.
------------------------
The Borrower will maintain a Return on Average Assets,
calculated on a quarterly basis for the twelve (12) month
period ending as of the end of each fiscal quarter, of not less
than .50%.
9.5 FUNDED DEBT TO TOTAL EQUITY CAPITAL.
-----------------------------------
Borrower shall not permit the ratio of its Funded Debt to
its Total Equity Capital to exceed .25 to 1.0 at any time.
9.6 TOTAL EQUITY CAPITAL.
--------------------
Borrower shall not permit its Total Equity Capital at any
time to be less than the sum of (i) $400,000,000 at all times
prior to the purchase by Borrower of the capital stock of
Homeland Bankshares Corporation, Waterloo, Iowa ("Homeland"),
and (ii) $500,000,000 at all times from and after the purchase
of the capital stock of Homeland, excluding in either case, the
effects of any adjustment required by FASB 115, but in no event
shall such adjustment exceed $75,000,000.
10. EVENTS OF DEFAULT
--- -----------------
Any one or more of the following shall constitute an
----------------------------------------------------
Event of Default by Borrower under this Agreement:
--------------------------------------------------
10.1 PAYMENT.
---- --------
If Borrower fails to pay when due and payable or when
declared due and payable, all or any portion of the Obligations
owing to Agent or Lenders (whether of principal, interest,
taxes, reimbursement of Out-of-Pocket Fees and Costs, or
otherwise) which is not cured within one (1) Business Day of
notice to Borrower.
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10.2 BREACH OF COVENANTS.
--------------------
If Borrower fails or neglects to perform, keep or observe
any term, provision, condition, covenant, agreement contained
in this Agreement, any other Loan Document, or any other
present or future agreement between Borrower and Agent or
Lenders and/or evidencing and/or securing the Obligations,
except (i) the failure to comply with Sections 7.3 through 7.7
------------ ---
of this Agreement shall not be an Event of Default unless such
failure continues for a period of fifteen (15) days following
notice by Agent to Borrower and (ii) the failure to comply with
Section 8.2 hereof shall not be an Event of Default unless such
-----------
failure remains unremedied for a period of ten (10) Business Days
after such breach.
10.3 BREACH OF REPRESENTATION.
-------------------------
If any representation, warranty, statement, report, or
certificate made or delivered by Borrower, or any of its
officers, partners, employees or agents on behalf of Borrower,
to Agent or Lenders is false or misleading in any material
respect when made or deemed to be made.
10.4 ATTACHMENT OR LEVY.
-------------------
If all or any of Borrower's assets in excess of
$25,000,000 in the aggregate are attached, seized, subjected to
a writ or distress warrant, or are levied upon, or come into
the possession of any Judicial Officer or assignee for the
benefit of creditors unless, with respect to any such assets,
such attachment, seizure, writ, warrant or levy shall be
dismissed, released or stayed within ten (10) days of issuance
thereof.
10.5 VOLUNTARY INSOLVENCY.
---------------------
If an Insolvency Proceeding is commenced by Borrower or
any Subsidiary.
10.6 INVOLUNTARY INSOLVENCY.
-----------------------
If an Insolvency Proceeding is commenced against Borrower
or any Subsidiary, except that if Borrower or its Subsidiary is
contesting such Proceeding in good faith, such Insolvency
Proceeding shall not constitute an Event of Default unless such
Insolvency Proceeding is not dismissed within sixty (60) days
of the commencement of such Insolvency Proceedings.
10.7 INJUNCTION.
-----------
If Borrower or any Subsidiary is enjoined, restrained or
in any way prevented by court order from continuing to conduct
all or any material part of its business affairs.
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10.8 GOVERNMENTAL LIEN.
------------------
If a notice of lien, levy or assessment in excess of
$25,000,000 in the aggregate, is filed of record with respect
to any or all of Borrower's or any Subsidiary's assets by the
United States Government, or any department, agency or
instrumentality thereof, or by any state, county, municipal or
other governmental agency, or if any taxes or debts owing at
any time hereafter to any one or more of such entities in
excess of $25,000,000 in the aggregate, becomes a Lien, whether
xxxxxx or otherwise, upon any or all of Borrower's or any
Subsidiary's assets and the same is not paid on the payment
date thereof.
10.9 JUDGMENT.
---------
If a judgment or other claim in excess of $25,000,000
individually, or $25,000,000 in the aggregate, becomes a Lien
upon any or all of Borrower's or any Subsidiary's assets.
10.10 OTHER INDEBTEDNESS.
-------------------
If there is a default in any agreement with respect to
Indebtedness in excess of $25,000,000, to which Borrower or any
Subsidiary is a party with another Person resulting in a right
by such Person to accelerate the maturity of such Indebtedness
or to exercise any other right or remedy.
10.11 ERISA REPORTABLE EVENT.
-----------------------
If (a) any Reportable Event which Agent determines
constitutes grounds for the termination of any Benefit Plan by
the PBGC or for the appointment by the appropriate United
States District Court of a trustee to administer any such Plan,
shall have occurred and be continuing thirty (30) days after
written notice of such determination shall have been given to
Borrower by Agent, or any such Benefit Plan shall be terminated
within the meaning of Title IV of ERISA, or a trustee shall be
appointed by the appropriate United States District Court to
administer any such Plan, or the PBGC shall institute
proceedings to terminate any Benefit Plan; and (b) in case of
any event described above in this Section 10.11, the
-------------
aggregate amount of Borrower's liability under Sections 4062,
4063 or 4064 of ERISA shall exceed one percent (1%) of
Borrower's Total Equity Capital; or (c) there shall be a
withdrawal from any Multiemployer Plan as a result of which the
aggregate amount of Borrower's liability in relation thereto
shall exceed one percent (1%) of Borrower's Total Equity
Capital.
Notwithstanding anything contained in this Section 10 or
contained in any other provision of this Agreement or the other
Loan Documents to the contrary, in the event of the institution
of Insolvency Proceedings against Borrower, Agent and Lenders
shall not be obligated to make advances to Borrower during the
sixty (60) day grace period under Section 10.6.
-------------
11. RIGHTS AND REMEDIES
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11.1 RIGHTS AND REMEDIES GENERALLY.
------------------------------
Upon the occurrence of an Event of Default by Borrower
under this Agreement and notice thereof by Agent to Borrower,
except as hereinafter provided, Agent may, with the consent of
the Majority Lenders or as otherwise provided under Section
17(c) hereof, and shall at the direction of the Majority
Lenders, do any one or more of the following, all of which are
authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this
Agreement, by Notes, or otherwise, immediately due
and payable; provided, that all Obligations shall be
immediately due and payable without notice or demand
upon an Event of Default under Section 10.5 or 10.6;
--------------------
(b) Cease advancing money or extending credit to or
for the benefit of Borrower under this Agreement, or
any other agreement between Borrower and Agent or
Lenders;
(c) Terminate this Agreement as to any future
liability or obligation of Agent or Lender's but
without affecting Agent or Lender's rights and
without affecting the Obligations owing by Borrower
to Agent or Lenders;
(d) Commerce suit for collection of the Obligations or
pursue any other right or remedy available under the
other Loan Documents, or
(e) Borrower shall pay all Out-of-Pocket Fees and
Costs incurred in connection with Agent's
enforcement and exercise of any of its rights and
remedies as herein provided, whether or not suit is
commenced by Agent.
11.2 RIGHTS CUMULATIVE.
------------------
Agent's rights and remedies under this Agreement and all other
Loan Documents shall be cumulative. Agent shall have all other
rights and remedies not inconsistent herewith as provided by
law, or in equity. No exercise by Agent of one right or remedy
shall be deemed an election, and no waiver by Agent of any
default on Borrower's part shall be deemed a continuing waiver.
No delay by Agent shall constitute a waiver, election or
acquiescence by it.
12. TAXES AND EXPENSES
If Borrower fails to pay promptly when due to any other
Person, monies which Borrower is required to pay by reason of
any provision in this Agreement (including without limitation
for any tax, expense or with respect to any Lien), or to
promptly contest same by proper proceedings diligently pursued,
Agent may, but need not, pay the same and charge Borrower's
account therefor, and Borrower shall promptly reimburse Agent.
All such sums shall become additional Obligations owing to
Agent and Lenders and shall bear interest at the Default Rate
hereunder. Any payments made by Agent shall not constitute: (i)
45
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agreement by Agent to make similar payments in the future,
or (ii) a waiver by Agent of any Event of Default under this
Agreement. Agent need not inquire as to, or contest the
validity of, any such expense, tax or Lien and the receipt of
the usual official notice for the payment thereof shall be
conclusive evidence that the same was validly due and owing,and
the receipt of any other notice with respect to all other such
monies due hereunder shall be prima facia evidence that
----- -----
the same was validly due and owing.
13. CERTAIN WAIVERS
13.1 APPLICATION OF PAYMENTS.
------------------------
Except as expressly provided in this Agreement with
respect to payments and prepayments on the Term Loans, Borrower
waives the right to direct the application of any and all
payments at any time or times hereafter received by Agent on
account of any Obligations owed by Borrower, and Borrower
agrees that Agent shall have the continuing exclusive right to
apply and reapply such payments in any manner as Agent may deem
advisable, notwithstanding any entry by Agent upon its books.
13.2 DEMAND, ETC.
------------
Except as expressly provided in this Agreement, Borrower
waives demand, protest, notice of protest, notice of default or
dishonor, notice of payment and nonpayment, notice of any
default, notice of nonpayment at maturity,notice of intent to
accelerate, and notice of acceleration.
14. NOTICES
Except as otherwise expressly provided herein, any notice
required or desired to be served, given or delivered hereunder
shall be in the form and manner specified below, and shall be
addressed to the party to be notified as follows:
If to Agent at: LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: 312/904-4880
If to Lenders at: the addresses specified below their
signatures to this Agreement
If to Borrower at: Magna Group, Inc.
0000 X. Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Buerges,
Executive Vice President
Facsimile: 314/963-2691
46
51
or to such other address as each party designates to the other
by notice in the manner herein prescribed. Notice shall be
deemed given hereunder if (i) delivered personally or otherwise
actually received, (ii) sent by overnight delivery service,
(iii) mailed by first-class United States mail, postage
prepaid, registered or certified, with return receipt
requested, or (iv) sent via telecopy machine with a duplicate
signed copy sent on the same day as provided in clause (ii)
above. Notice mailed as provided in clause (iii) above
------ -----
shall be effective upon the expiration of three (3) Business
Days after its deposit in the United States mail, and notice
telecopied as provided in clause (iv) above shall be
------ ----
effective upon receipt of such telecopy if the duplicate signed
copy is sent under clause (iii) above. Notice given in
------ -----
any other manner described in this section shall be effective
upon receipt by the addressee thereof; provided, however,
--------
that if any notice is tendered to an addressee and delivery
thereof is refused by such addressee, such notice shall be
effective upon such tender unless expressly set forth in such
notice.
15. AGENT.
-----
(a) APPOINTMENT. Each Lender hereby designates and
-----------
appoints LaSalle as Agent of such Lender under this
Agreement, and each Lender hereby irrevocably authorizes
Agent to take such action on its behalf under the
provisions of this Agreement and to exercise such powers
as are set forth herein, together with such other powers
as are incidental thereto. Agent agrees to act as such
on the express conditions contained in this Section 15.
----------
The provisions of this Section 15 are solely for the
----------
benefit of Agent and Lenders, and Borrower shall not have
the right to rely on or enforce any of the provisions
hereof. In performing its functions and duties under
this Agreement, Agent shall act solely as agent of the
Lenders and does not assume and shall not be deemed to
have assumed any obligation toward or relationship of
agency or trust with or for Borrower.
(b) NATURE OF DUTIES. Agent shall not have any duties or
----------------
responsibilities except those expressly set forth in this
Agreement. The duties of Agent shall be mechanical and
administrative in nature. Agent shall not have by reason
of this Agreement a fiduciary relationship in respect of
any Lender. Nothing in this Agreement, express or
implied, is intended to or shall be construed to impose
upon Agent any obligation in respect of this Agreement
except as expressly set forth herein. Each Lender shall
make its own independent investigation of the financial
condition and affairs of Borrower in connection with the
making and the continuance of the Loans hereunder and
shall make its own appraisal of the creditworthiness of
Borrower, and Agent shall not have any duty or
responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its
possession before the date of this Agreement or at any
time or times thereafter, except for documents delivered
to Agent pursuant to this Agreement by or on behalf of
the Borrower. If Agent seeks the consent or approval of
the Majority Lenders to the taking or refraining from
taking any action hereunder, Agent shall send notice
thereof to each Lender.
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52
Agent shall promptly notify each Lender at any time that
the Majority Lenders have instructed Agent to act or
refrain from acting pursuant hereto.
(c) RIGHTS, EXCULPATION, ETC. Neither Agent, any
-------------------------
Affiliate of Agent, nor any of their respective officers,
directors, employees, agents, attorneys or consultants,
shall be liable to any Lender for any action taken or
omitted by them hereunder, or in connection herewith,
except that Agent shall be obligated for its gross
negligence or willful misconduct in the performance of
its express duties solely as Agent hereunder. Agent
shall not be liable for any apportionment or distribution
of payments made by it in the absence of willful
misconduct or gross negligence in the performance of its
express duties solely as Agent hereunder, and if any such
apportionment or distribution is subsequently determined
to have been made in error the sole recourse of any
Person to whom payment was due, but not made, shall be to
recover from the recipients of such payments any payment
in excess of the amount to which they are determined to
have been entitled. Agent shall not be responsible to
any Lender for any recitals, statements, representations
or warranties herein or for the enforceability,
collectibility, or sufficiency of this Agreement, or any
of the transactions contemplated hereby and thereby, or
for the financial condition of Borrower. Agent shall not
be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions
or conditions of this Agreement or the financial
condition of Borrower, or the existence or possible
existence of any Event of Default or Potential Default.
Agent may at any time request instructions or
indemnification from Lenders with respect to any actions
or approvals which by the terms of this Agreement Agent
is permitted or required to take or grant, and if such
instructions or indemnification are promptly requested,
Agent shall be absolutely entitled to refrain from taking
any action or to withhold any approval and shall not be
under any liability whatsoever to any Person for
refraining from any action or withholding any approval
under this Agreement until it shall have received such
instructions or indemnification (to Agent's reasonable
satisfaction) from the Lenders. Without limiting the
foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or
refraining from acting under this Agreement in accordance
with the instructions of the Majority Lenders.
Notwithstanding anything to the contrary contained
herein, after the occurrence of an Event of Default, in
the event Agent, after reasonable consultation with the
Majority Lenders, fails to receive the consent or
direction of the Majority Lenders, and Agent reasonably
believes there is a possibility of a material impairment
of the prospect of repayment of all or any material
portion of the Obligations, Agent may, at its sole
election, exercise the rights and remedies under
Section 11 of this Agreement whether or not it has
----------
received the consent of the Majority Lenders.
48
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(d) RELIANCE. Agent shall be entitled to rely upon any
--------
written notices, statements, certificates, orders or
other documents or any telephone message believed by it
in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person, and with
respect to all matters pertaining to this Agreement and
its duties hereunder or thereunder, upon advice of legal
counsel (including counsel for Borrower), independent
public accountants and other experts selected by it.
(e) INDEMNIFICATION. To the extent that Agent is not
---------------
reimbursed and indemnified by Borrower, Lenders will
reimburse and indemnify Agent, upon demand, for and
against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or
asserted against it in any way relating to or arising out
of this Agreement or any action taken or omitted by Agent
under this Agreement, in proportion to each Lender's Pro
Rata Share of the Commitments; provided that no Lender
shall be liable for any portion of such liabilities,
obligations losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements
resulting from Agent's gross negligence or willful
misconduct in the performance of its express duties
solely as Agent hereunder. The obligations of Lenders
under this Section 15(e) shall survive the payment in
-------------
full of all Obligations and the termination of this
Agreement.
(f) THE AGENT INDIVIDUALLY. With respect to its Pro Rata
----------------------
Share of the Commitments hereunder and the Revolving
Loans made by it, Agent shall have and may exercise the
same rights and powers hereunder and is subject to the
same obligations and liabilities as and to the extent set
forth herein for any other Lender. The terms "Lender" or
"Lenders" or any similar terms shall include Agent in its
individual capacity as a Lender or one of Lenders.
Except as provided herein, Agent in its individual
capacity may accept deposits from and generally engage in
any kind of banking, trust or other business with
Borrower as if it were not acting as Agent pursuant
hereto.
(g) SUCCESSOR AGENT; RESIGNATION OF AGENT.
-------------------------------------
(1) Agent may resign from the performance of all its
functions and duties hereunder at any time by giving
at least thirty (30) Business Days' prior written
notice to Lenders and Borrower. Such resignation
shall take effect upon the acceptance by a successor
Agent of appointment pursuant to clauses (2) and (3)
below or as otherwise provided below.
(2) Upon any such notice of resignation by Agent, the
Majority Lenders shall appoint a successor Agent who
shall be reasonably satisfactory to Borrower.
(3) If a successor Agent shall not have been so
appointed within said thirty (30) Business Day
period, the resigning Agent, with the consent of
Borrower (which may not be withheld unreasonably),
shall then appoint a successor Agent who shall serve
as Agent until such time, if any, as the
49
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Majority Lenders, with the consent of Borrower,
appoint a successor Agent as provided above.
(4) Upon the appointment of a successor Agent, the term
"Agent" shall, for all purposes of this Agreement,
thereafter mean such successor.
h. RELATIONS AMONG LENDERS.
-----------------------
(1) Except as contemplated under this Agreement, no
Lender shall make any loan, advance or other
financial accommodation to Borrower without the
prior written consent of the Majority Lenders.
(2) Each Lender agrees that with respect to any
obligations of Borrower to such Lender, it will not
take any action, nor institute any actions or
proceedings, against Borrower or any other obligor
hereunder without the prior written consent of the
Majority Lenders; provided that this provision shall
not impair or effect Agent's rights and duties to
take actions as provided hereunder.
(i) MISCELLANEOUS. Each Lender agrees that any action
-------------
taken by Agent or the Majority Lenders in accordance with
the provisions of this Agreement, and the exercise by
Agent or the Lenders of the powers set forth herein or
therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and
binding upon all of the Lenders.
(j) PARTICIPATIONS. Each Lender may sell participations
--------------
to one or more banks or other entities in or to all or a
portion of its rights and obligations under this
Agreement (including, without limitation, all or a
portion of its Commitment and the Loans owing to it):
provided, however, that (i) such Lender's
-------- -------
obligations under this Agreement (including, without
limitation, its Commitment to Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the
performance of such obligations, (iii) Borrower, Agent
and the other Lenders shall continue to deal solely and
directly with such Lender in connection with any and all
payments to be made under this Agreement and (iv) the
holder of any such participation shall not be entitled to
voting rights under this Agreement. No Lender may,
without the consent of all Lenders, make an assignment of
its rights or obligations under this Agreement.
(k) WAIVER AND AMENDMENT.
--------------------
(1) Agent's or Lenders' failure, at any time or times
hereafter, to require strict performance by Borrower
of any provision of this Agreement, the Revolving
Credit Notes or Term Loan Notes shall not waive,
affect or diminish any right of Agent or Lenders
thereafter to demand strict compliance and
performance therewith. Any suspension or waiver by
Agent or Lenders of a Potential Default or Event of
Default by Borrower
50
55
under this Agreement, the Revolving Credit Notes or
Term Loan Notes shall not suspend, waive or affect
any other Potential Default or Event of Default by
Borrower under this Agreement, the Revolving Credit
Notes, or Term Loan Notes whether the same is prior
or subsequent thereto and whether of the same or of a
different kind or character.
(2) No amendment, modification, termination or waiver of
any provision of this Agreement or the Notes
relating to (i) any increase of the Commitments of
any Lender, (ii) any change in the final maturity of
the Loans, (iii) the reduction of interest rates
applicable to the Loans or fees payable under this
Agreement, or (iv) amortization of the Term Loans
shall be effective without the written agreement of
all of the Lenders and Borrower. No amendment,
modification, termination or waiver of any other
provision of this Agreement shall be effective
without the written agreement of the Majority
Lenders and Borrower. Whenever a consent is
required, any of the Lenders shall have the right to
grant or withhold same at their sole discretion.
(3) Notwithstanding the provisions of this Section, no
amendment, modification, termination or waiver of
any provision of this Section 15 or any other
----------
provision referring to Agent's rights hereunder
shall be effective without the written consent of
Agent. Agent may, but shall have no obligation to,
with the concurrence of any Lender, execute
amendments, modifications, waivers or consents on
behalf of such Lender.
16. CHOICE OF LAW AND VENUE
This Agreement shall be deemed to have been made in the
State of Illinois and the validity of this Agreement, its
construction, interpretation and enforcement, and the rights of
parties hereunder and concerning the Collateral, shall be
determined under, governed by and construed in accordance with
the laws of the State of Illinois. The parties agree that all
actions or proceedings arising in connection with this
Agreement shall be tried and litigated only in the state and
federal courts located in the County of Xxxx, State of
Illinois. Borrower waives any right it may have to assert the
doctrine of forum non conveniens or to object to such venue and
hereby consents to any court ordered relief. Borrower consents
that all service of process upon it be made by registered mail
or messenger directed to it at the address set forth in
Section 14 above and that service so made shall be deemed
----------
to be completed upon the earlier of actual receipt or three (3)
Business Days after the same shall have been posted to
Borrower's address by Borrower's agent as set forth below.
Nothing contained in this Section 16 shall affect the right
----------
of Agent or Lenders to serve legal process in any other manner
permitted by law or affect the right of Agent or Lenders to
bring any action or proceeding against Borrower or its property
in the courts of any other jurisdiction.
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17. INDEMNITY
Borrower shall indemnify, hold harmless and defend Agent,
Lenders and their directors, officers, agents, counsel and
employees ("Indemnified Persons") from and against all losses,
claims, damages, costs, expenses and liabilities ("Losses"),
whether such Losses arise or notice thereof is received by
Agent or Lenders during the term of this Agreement or after
termination of this Agreement, incurred by any of them arising
principally out of or relating to this Agreement, the Loans,
the other Loan Documents or any other transaction contemplated
hereby or thereby, other than arising out of any intercreditor
relationship between Agent and Lenders or between Lenders and
any Participant or subordinated debt holder and except for any
such losses caused by the gross negligence or willful
misconduct of such Indemnified Persons, and shall reimburse
Agent or Lenders and each other Indemnified Person for any
expenses including in connection with the investigation of,
preparation for or defense of any actual or threatened claim,
action or proceeding arising therefrom (including any such
costs of responding to discovery requests or subpoenas),
regardless of whether any Indemnified Person is a party
thereto. Each Indemnified Person may select its own counsel
with respect to any Losses, in addition to any Borrower's
counsel, and shall be indemnified therefor hereunder. The
provisions of this Section 17 shall survive the termination
----------
of this Agreement.
18. GENERAL PROVISIONS
18.1 ACCEPTANCE.
-----------
This Agreement shall be binding and deemed effective when
executed by Borrower and accepted and executed by Agent and
Lenders.
18.2 BINDING AGREEMENT.
------------------
This Agreement shall bind and inure to the benefit of the
respective successors and assigns of each of the parties;
provided, however, that Borrower may not assign this
--------
Agreement or any rights hereunder without Agent's prior written
consent and any prohibited assignment shall be absolutely void.
No consent to an assignment by Agent shall release Borrower
from its obligations to Agent or Lenders. Except as otherwise
provided herein, Agent and Lenders may assign this Agreement
and their rights and duties hereunder, and Borrower shall
execute and deliver such documents in connection with such
assignment as they or such assignee may reasonably request.
Except as otherwise provided herein, Lenders reserve the right
to sell, assign, transfer, negotiate or grant participations in
all or any part of, or any interest in their rights and
benefits hereunder; provided, however, no Lender shall assign
all of its interest hereunder to any other Person without the
prior consent of Borrower, which consent will not unreasonably
be withheld, provided further that no Lender shall be
restricted in making partial assignments or granting
participation interests hereunder. Any partial assignment by a
Lender of its interest hereunder shall (i) require prior notice
to Borrower, Agent and the other Lenders, (ii) be a pro rata
assignment of Lender's interest on all of the Loans by Lender
hereunder, and (iii) be in increments of not less than
$5,000,000. In connection therewith, Lenders may disclose all
documents and
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information which Agent or Lenders now or hereafter may have
relating to Borrower or Borrower's business, but shall use all
reasonable efforts to ensure that the recipient of such
information maintains the confidentiality of such information.
18.3 SECTION HEADINGS.
-----------------
Section headings and section numbers have been set forth
herein for convenience only. Unless the contrary is compelled
by the context, everything contained in each paragraph applies
equally to this entire Agreement.
18.4 CONSTRUCTION.
-------------
Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against Agent, Lenders or
Borrower, whether under any rule of construction or otherwise.
On the contrary, this Agreement has been reviewed by all
parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish
the purposes and intentions of the parties hereto.
18.5 SEVERABILITY.
-------------
Each provision of this Agreement shall be severable from
every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.
18.6 ENTIRE AGREEMENT.
-----------------
This Agreement cannot be changed or terminated orally.
All prior agreements, understandings, representations,
warranties, and negotiations, if any, are merged into this
Agreement. This Agreement may be amended only by a written
agreement signed by duly authorized officers of Borrower, Agent
and Lenders.
18.7 NO FIDUCIARY RELATIONSHIP OR JOINT VENTURE.
-------------------------------------------
No provision herein or in any of the other Loan Documents
and no course of dealing between the parties hereto shall be
deemed to create any fiduciary relationship between Lenders and
Borrower or Agent and Borrower nor to create any partnership or
joint venture between Lenders and Borrower or Agent and
Borrower.
18.8 PUBLICITY.
----------
Borrower hereby consents to the issuance or dissemination
by Lenders to the public of information describing the credit
accommodations entered into pursuant to this Agreement (as it
may be amended, modified and supplemented from time to time) to
the extent such information is available to the public pursuant
to any filing made by Borrower with any Regulatory Agency,
including without limitation, the name and address of
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Borrower, a general description of Borrower's business and the
use of Borrower's name and logo in connection therewith.
18.9 COUNTERPARTS.
-------------
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all
of which shall together constitute one and the same instrument.
18.10 CONFLICT.
---------
In the event of a conflict between the terms of this
Agreement and the terms of any Notes or other Loan Documents,
the terms of this Agreement shall be controlling.
19. WAIVER OF JURY TRIAL.
AGENT, BORROWER AND LENDERS ACKNOWLEDGE THAT THE RIGHT TO
A TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THE RIGHT
MAY BE WAIVED. BORROWER AND LENDERS EACH KNOWINGLY,
VOLUNTARILY, IRREVOCABLY AND WITHOUT COERCION, WAIVE ALL RIGHTS
TO TRIAL BY JURY OF ALL DISPUTES BETWEEN THEM. NEITHER
LENDERS, AGENT NOR BORROWER SHALL BE DEEMED TO HAVE GIVEN UP
THIS WAIVER OF JURY TRIAL UNLESS THE PARTY CLAIMING THAT THIS
WAIVER HAS BEEN RELINQUISHED HAS A WRITTEN INSTRUMENT SIGNED BY
THE OTHER PARTY STATING THAT THIS WAIVER HAS BEEN GIVEN UP.
IN WITNESS WHEREOF, Borrower has executed and delivered
this Agreement.
"BORROWER" MAGNA GROUP, INC.
By: /s/ G. Xxxxxx Xxxxx
-------------------------------------
Title: Chairman of Board & CEO
----------------------------------
54
59
ACCEPTED this 30th day of December, 1996, at Agent's
place of business in the City of Chicago, State of Illinois.
Revolving Loan Commitment: LASALLE NATIONAL BANK, a national
$50,000,000 banking association, as Agent and Lender
Revolving Loan Commitment:
Percentage: 100%
Term Loan Commitment: By: /s/ Xxxxxxx X. Xxxxxxxx
$50,000,000 ------------------------------------------
Term Loan Commitment: Title: Vice President
Percentage: 100% ---------------------------------------
Address: 000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax No. (000) 000-0000
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60
EXHIBIT 2.1
-----------
REVOLVING LOAN NOTE
$50,000,000 Chicago, Illinois
December 30, 1996
FOR VALUE RECEIVED, the undersigned MAGNA GROUP, INC.
("Borrower") promises to pay to the order of LASALLE NATIONAL
BANK ("Lender"), at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or such other place as Lender may from time to time
designate in writing, on or before December 30, 1999, the
principal sum of Fifty Million and 00/100 Dollars ($50,000,000)
or, if less, the aggregate unpaid principal amount of all
advances made by Lender as, or relating to, the Revolving Loans
in accordance with the provisions of a Loan Agreement of even
date herewith, among Borrower, Lender and certain other parties,
as amended and supplemented from time to time ("Loan Agreement").
Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Loan Agreement.
Except as hereinafter provided, Borrower's obligations
and liabilities to Lender under this Note ("Borrower's
Liabilities") unpaid from time to time shall bear interest from
the date hereof until paid at the applicable rate provided in
Section 2.8 of the Loan Agreement. Interest shall be computed on
the basis of actual days elapsed over a 360-day year and shall be
payable in arrears, at the times provided in the Loan Agreement.
If any of Borrower's Liabilities are not paid when due
and payable or declared due and payable, interest, in lieu of the
interest hereinabove provided, shall accrue on Borrower's
Liabilities from the due date of the same until paid, at the
"Default Rate" (as defined in the Loan Agreement). Such amounts
shall be part of Borrower's Liabilities immediately due and
payable by Borrower to Lender without notice by Lender to or
demand by Lender of Borrower.
Borrower warrants and represents to Lender that
Borrower shall use the proceeds represented by this Note solely
for proper business purposes, and consistently with all
applicable laws and statutes. Borrower further warrants and
represents to Lender and covenants with Lender that Borrower is
not 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 represented by this Note 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.
This Note is a Revolving Loan Note referred to in the
Loan Agreement to which reference is made for a statement of the
terms and conditions under which
61
prepayments on this Note may and shall be made, for a description
of the circumstances under which this Note may be declared due
and payable.
The occurrence of an Event of Default under the Loan
Agreement, or Borrower's failure to pay any of Borrower's
Liabilities when due and payable or declared due and payable
shall constitute a default by Borrower ("Event of Default") under
this Note.
Upon an Event of Default hereunder, without notice by
Lender to or demand by Lender of Borrower, all of Borrower's
Liabilities shall be due and payable, forthwith. The acceptance
by Lender of any partial payment made hereunder after the time
when any obligation under this Note becomes due and payable will
not establish a custom, or waive any rights of Lender to enforce
prompt payment hereof. Borrower and every endorser hereof waive
presentment, demand and protest and notice of presentment,
protest, default, non-payment, maturity, release, compromise,
settlement, extension or renewal of this Note.
Subject to the provisions of the Loan Agreement, if at
any time or times after the date of this Note, Lender:
(a) employs counsel for advice or other representation (i) to
represent Lender in any litigation, contest, dispute, suit,
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 Lender,
Borrower or any other person) in any way or respect relating to
this Note, or (ii) to enforce any rights of Lender against
Borrower; and/or (b) attempts to or enforces any of Lender's
rights and remedies against Borrower or any other party primarily
or otherwise liable with respect to Borrower's Liabilities, the
reasonable costs and expenses incurred by Lender in any manner or
way with respect to the foregoing shall be part of Borrower's
Liabilities, payable by Borrower to Lender on demand. Without
limiting the generality of the foregoing, such expenses, costs,
charges and fees include reasonable attorneys' fees, costs and
expenses.
If any provision of this Note or the application
thereof to any party or circumstance is held invalid or
unenforceable, the remainder of this Note and the application of
such provision to other parties or circumstances will not be
affected thereby and the provisions of this Note shall be
severable in any such instance.
This Note is submitted by Borrower to Lender at
Lender's principal place of business and shall be deemed to have
been made thereat. This Note 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.
To induce Lender to accept this Note, Borrower,
irrevocably, agrees that, subject to Lender's sole and absolute
election, all actions or proceedings in any way, manner or
respect, arising out of or from or related to this Note, shall be
litigated in courts having situs within the County of Xxxx, State
of Illinois. Borrower hereby consents and submits to the
jurisdiction of any local, state or federal court located
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62
within said county and state. Borrower hereby waives any right
Borrower may have to transfer or change the venue of any
litigation brought against Borrower by Lender in accordance with
this paragraph.
BORROWER AND LENDER EACH WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS NOTE.
IN WITNESS WHEREOF, Borrower has caused this Note to be
duly executed on the 30th day of December, 1996.
MAGNA GROUP, INC.
By:
-----------------------------
Title:
-----------------------------
ATTEST:
By:
-----------------------------
Title:
-----------------------------
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EXHIBIT 2.2
-----------
TERM LOAN NOTE
$--------------- Chicago, Illinois
---------------, 199--
FOR VALUE RECEIVED, the undersigned MAGNA GROUP, INC.
("Borrower") promises to pay to the order of
----------------------------- ("Lender"), at
--------------------------- or such other place as Lender may
from time to time designate in writing, the principal sum of
---------------------------- and 00/100 Dollars
($---------------), in ----- (--) equal consecutive quarterly
installments in the amount of -------------- Dollars
($--------------------) each, commencing on the ----- day of
------ and on the first day of each calendar quarter thereafter,
together with a final payment of the outstanding principal
balance of this Note and all accrued and unpaid interest on the
---- day of ----------------, ----.
Except as hereinafter provided, Borrower's obligations
and liabilities to Lender under this Note ("Borrower's
Liabilities") unpaid from time to time shall bear interest from
the date hereof until paid at the applicable rate provided in
Section 2.8 of the Loan Agreement dated December 30, 1996, among
Borrower, Lender and certain other parties, as amended and
supplemented from time to time "Loan Agreement"). Interest shall
be computed on the basis of actual days elapsed over a 360-day
year and shall be payable in arrears, at the times provided in
the Loan Agreement. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the
Loan Agreement.
If any of Borrower's Liabilities are not paid when due
and payable or declared due and payable, interest, in lieu of the
interest hereinabove provided, shall accrue on Borrower's
Liabilities from the due date of the same until paid, at the
"Default Rate" (as defined in the Loan Agreement). Such amounts
shall be part of Borrower's Liabilities immediately due and
payable by Borrower to Lender without notice by Lender to or
demand by Lender of Borrower.
Borrower warrants and represents to Lender that
Borrower shall use the proceeds represented by this Note solely
for proper business purposes, and consistently with all
applicable laws and statutes. Borrower further warrants and
represents to Lender and covenants with Lender that Borrower is
not 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 represented by this Note 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.
64
This Note is a Term Loan Note referred to in the Loan
Agreement to which reference is made for a statement of the terms
and conditions under which prepayments on this Note may and
shall be made and for a description of the circumstances under
which this Note may be declared due and payable.
The occurrence of an Event of Default under the Loan
Agreement, or Borrower's failure to pay any of Borrower's
Liabilities when due and payable or declared due and payable
shall constitute a default by Borrower ("Event of Default") under
this Note.
Upon an Event of Default hereunder, without notice by
Lender to or demand by Lender of Borrower, all of Borrower's
Liabilities shall be due and payable, forthwith. The acceptance
by Lender of any partial payment made hereunder after the time
when any obligation under this Note becomes due and payable will
not establish a custom, or waive any rights of Lender to enforce
prompt payment hereof. Borrower and every endorser hereof waive
presentment, demand and protest and notice of presentment,
protest, default, non-payment, maturity, release, compromise,
settlement, extension or renewal of this Note.
Subject to the provisions of the Loan Agreement, if at
any time or times after the date of this Note, Lender:
(a) employs counsel for advice or other representation (i) to
represent Lender in any litigation, contest, dispute, suit,
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 Lender,
Borrower or any other person) in any way or respect relating to
this Note, or (ii) to enforce any rights of Lender against
Borrower; and/or (b) attempts to or enforces any of Lender's
rights and remedies against Borrower or any other party primarily
or otherwise liable with respect to Borrower's Liabilities, the
reasonable costs and expenses incurred by Lender in any manner or
way with respect to the foregoing shall be part of Borrower's
Liabilities, payable by Borrower to Lender on demand. Without
limiting the generality of the foregoing, such expenses, costs,
charges and fees include reasonable attorneys' fees, costs and
expenses.
If any provision of this Note or the application
thereof to any party or circumstance is held invalid or
unenforceable, the remainder of this Note and the application of
such provision to other parties or circumstances will not be
affected thereby and the provisions of this Note shall be
severable in any such instance.
This Note is submitted by Borrower to Lender at
Lender's principal place of business and shall be deemed to have
been made thereat. This Note 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.
To induce Lender to accept this Note, Borrower,
irrevocably, agrees that, subject to Lender's sole and absolute
election, all actions or proceedings in any way, manner or
respect, arising out of or from or related to this Note, shall be
litigated in
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65
consents and submits to the jurisdiction of any local, state or
federal court located within said county and state. Borrower
hereby waives any right Borrower may have to transfer or change
the venue of any litigation brought against Borrower by Lender in
accordance with this paragraph.
BORROWER AND LENDER EACH WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS NOTE.
IN WITNESS WHEREOF, Borrower has caused this Note to be
duly executed on the ---- day of ---------, ----.
MAGNA GROUP, INC.
By:
-----------------------------
Title:
-----------------------------
ATTEST:
By:
-----------------------------
Title:
-----------------------------
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