Exhibit 10 | |
LOAN AGREEMENT | |
BY AND BETWEEN | |
M&I MARSHALL & ILSLEY BANK | |
AND | |
FIRST MIDWEST BANCORP, INC. | |
DATED AS OF OCTOBER 16, 1998 |
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LOAN AGREEMENT | ||||||||||||
THIS LOAN AGREEMENT is made as of October 16, 1998 by and between | ||||||||||||
FIRST MIDWEST BANCORP, INC. andM&I MARSHALL & ILSLEY BANK. | ||||||||||||
IN CONSIDERATIONof the mutual covenants, conditions and | ||||||||||||
agreements set forth herein, it is hereby agreed that: | ||||||||||||
ARTICLE I | ||||||||||||
DEFINITIONS | ||||||||||||
1.1Definitions. When used in this Loan Agreement, the | ||||||||||||
following terms shall have the meanings specified: | ||||||||||||
"Affiliate" shall mean any Person: | (a) that directly or | |||||||||||
indirectly controls, or is controlled by, or is under common control | ||||||||||||
"Automatic Event of Default" shall mean any one or more of | ||||||||||||
the following: | ||||||||||||
(a) the Company or any Subsidiary shall become insolvent | ||||||||||||
or generally not pay, or be unable to pay, or admit in writing its | ||||||||||||
(b) the Company or any Subsidiary shall make a general | ||||||||||||
assignment for the benefit of creditors or to an agent authorized to | ||||||||||||
(c) the Company or any Subsidiary shall become the subject | ||||||||||||
of an "order for relief" within the meaning of the United States | ||||||||||||
(d) the Company or any Subsidiary shall have a petition or | ||||||||||||
application filed against it in bankruptcy or any similar proceeding, | ||||||||||||
(e) the Company or any Subsidiary shall apply to a court | ||||||||||||
for the appointment of a receiver or custodian for any of its assets |
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receiver shall not be discharged within sixty (60) days after his | |
(f) the Company or any Subsidiary shall adopt a plan of | |
complete liquidation of its assets. | |
"Business Day" shall mean any day other than a Saturday, | |
Sunday, public holiday or other day when commercial banks in Wisconsin | |
"Closing Date" shall mean the date of the consummation of | |
the transactions evidenced by this Loan Agreement. | |
"Company" shall mean First Midwest Bancorp, Inc., a Delaware | |
corporation. | |
"Default" shall mean any event which would constitute an | |
Event of Default but for the requirement that notice be given or time | |
"Environmental Laws" means all Laws, judgments, decrees, | |
permits, licenses, agreements and other governmental restrictions, now | |
"ERISA" shall mean the Employee Retirement Income Security | |
Act of 1974, as amended and as in effect from time to time. | |
"Event of Default" shall mean any Automatic Event of Default | |
or any Notice Event of Default. | |
"FRB" shall mean the Board of Governors of the Federal | |
Reserve System. | |
"GAAP" shall mean generally accepted accounting principles | |
as in effect from time to time in the United States of America, | |
"Indebtedness" shall mean all liabilities or obligations of | |
the relevant Person, whether primary or secondary or absolute or |
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"Law" shall mean any federal, state, local or other law, | ||||||
rule, regulation or governmental requirement of any kind, and the | ||||||
"LIBOR" shall mean an annual rate of interest equal to the | ||||||
Adjusted Interbank Rate (as defined immediately below), which rate | ||||||
"Adjusted Interbank Rate" means an annual rate for any calendar | ||||||
Adjusted Interbank Rate = | Interbank Rate | |||||
1 - Interbank Reserve | ||||||
Requirement | ||||||
"Interbank Rate" means with respect to any Loan, the rate per | ||||||
"Interbank reserve Requirement" means a percentage (expressed as | ||||||
"Lien" shall mean, with respect to any asset: (a) any | ||||||
mortgage, pledge, lien, charge, security interest or encumbrance of | ||||||
"Line of Credit Commitment" shall mean the commitment of M&I | ||||||
to make Line of Credit Loans to the Company up to a maximum aggregate |
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"Line of Credit Loans" shall mean the loans made from time | |
to time to the Company by M&I pursuant to section 2.1 of this Loan | |
"Line of Credit Note" shall mean a promissory note issued by | |
the Company and payable to the order of M&I evidencing the Line of | |
"Line of Credit Termination Date" shall mean the earlier of: | |
(a) October 15, 1999; or (b) the date that the Line of Credit | |
"Loan" or "Loans" shall mean the Line of Credit Loans. | |
"Loan Agreement" shall mean this Loan Agreement, together | |
with the Exhibits and any Schedules attached hereto, as the same shall be amended from time to time in accordance with the terms hereof. | |
"M&I" shall mean M&I Marshall & Ilsley Bank, a Wisconsin | |
banking corporation. | |
"Note" shall mean the Line of Credit Note. | |
"Notice Event of Default" shall mean any one or more of the | |
following: | |
(a) the Company shall fail to pay any installment of the | |
principal of or interest upon the Note within fifteen (15) days of the | |
(b) there shall be a default in the performance or | |
observance of any of the covenants and agreements contained in Section | |
(c) there shall be a default in the performance or | |
observance of any of the other covenants, agreements or conditions | |
(d) any representation or warranty made by the Company in | |
this Loan Agreement or in any document or financial statement | |
(e) final judgments shall be entered against the Company | |
or any Subsidiary which, when added to other final judgments against |
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(f) (i) any Reportable Event (as defined in ERISA) shall | |
have occurred which constitutes grounds for the termination of any terminate any Plan or to appoint a trustee to administer any Plan, or | |
(g) the Company or any subsidiary shall: (i) fail to pay | |
any amount of principal or interest when due (whether by scheduled | |
(h) the Company shall own less than 100% of any class of | |
common stock of either First Midwest Bank or First Midwest | |
(i) the occurrence of any default or event of default | |
under any other loan agreement, credit agreement, letter of credit | |
"PBGC" shall mean the PBGC or any entity succeeding to any | |
or all of its functions under ERISA. | |
"Permitted Indebtedness" shall mean: (a) Indebtedness to | |
M&I; (b) Indebtedness of any Subsidiary which is a bank incurred in |
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acts solely in a fiduciary or agency capacity; (c) Indebtedness of any | ||||||
"Person" shall mean and include an individual, partnership, | ||||||
limited liability entity, corporation, trust, incorporated | ||||||
"Plan" shall mean each pension, profit sharing, stock bonus, | ||||||
thrift, savings and employee stock ownership plan established or | ||||||
"Prime Rate" shall mean the prime rate of interest adopted | ||||||
by M&I from time to time as the base rate for interest rate | ||||||
"Subsidiary" shall mean any Person at least fifty percent | ||||||
(50%) of the outstanding ownership interest of which (of any class or | ||||||
1.2Interpretation. The foregoing definitions are equally | ||||||
applicable to both the singular and plural forms of the terms defined. | ||||||
ARTICLE II | ||||||
THE LOAN | ||||||
2.1Line of Credit Loans. From time to time prior to the Line | ||||||
of Credit Termination Date, M&I agrees to make Line of Credit Loans to |
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this Loan Agreement. The Line of Credit Note shall mature on the Line | ||
2.2Interest. (a) The unpaid principal of all Line of Credit | ||
Loans shall bear interest at either: (i) LIBOR quoted for each | ||
(b) In the event that any amount of the principal of, or | ||
interest on, the Note is not paid on the date when due(whether at | ||
(c) All interest and other amounts due under this Loan | ||
Agreement and the Note shall be computed for the actual number of days | ||
2.3Payments. (a) The outstanding unpaid principal balance of | ||
the Line of Credit Loans shall be paid in full on the Line of Credit | ||
(b) Interest accrued on the Line of Credit Loan through | ||
the last day of each calendar quarter (including in the case of the | ||
(c) All payments of principal and interest on account of | ||
the Note and all other payments made pursuant to this Loan Agreement |
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due and owing on the Loan and for all other payments due and owing | ||
(d) All payments owed by the Company to M&I under this | ||
Loan Agreement and the Note shall be made without any counterclaim and | ||
2.4Prepayments. The company may, from time to time and without | ||
premium or penalty, prepay the Line of Credit loans in whole or in | ||
2.5Recordkeeping. M&I shall record in its records the date and | ||
amount of the Loan and each repayment of the Loan. The aggregate | ||
2.6Increased Costs. If Regulation D of the FRB, or the | ||
adoption of any applicable law, rule or regulation of general | ||
(a) shall subject M&I to any tax, duty or other charge | ||
with respect to the Loan or the Note, or shall change the basis of | ||
(b) shall impose, modify or deem applicable any reserve | ||
(including, without limitation, any reserve imposed by the FRB, but | ||
(c) shall affect the amount of capital required or | ||
expected to be maintained by M&I or any corporation controlling M&I; | ||
(d) shall impose on M&I any other condition affecting the | ||
Loan or the Note; |
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and the result of any of the foregoing is to increase the cost to (or | |
2.7Warranty. Each notice of borrowing or conversion shall | |
automatically constitute a warranty by the Company to M&I that, on the | |
2.8Deposits Unavailable or Interest Rate Unascertainable. | |
(a) If M&I is advised that deposits in dollars (in the | |
applicable amount) are not being offered to banks in the relevant | |
(b) If lenders similar to M&I have determined that the Interbank | |
Rate will not adequately and fairly reflect the cost to such lenders | |
then so long as such circumstances shall continue, M&I shall not be | |
2.9Change in Law Rendering Interbank Rate Loans Unlawful. In | |
the event that any change in (including the adoption of any new) |
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2.10Change of Control. In the event following a Change of | ||||||
Control (as defined below) M&I determines that such Change of Control | ||||||
"Change of Control" shall mean an event or series of events by | ||||||
which any "person" or "group" (as such terms are used in Section 13(d) | ||||||
ARTICLE III | ||||||
CONDITIONS | ||||||
3.1General Conditions. The obligation of M&I to make any Loan | ||||||
is subject to the satisfaction on the date hereof and on the date of | ||||||
(a) the representations and warranties of the Company | ||||||
contained in this Loan Agreement shall be true and accurate on and as | ||||||
(b) there shall not exist on such date any Default or | ||||||
Event of Default; | ||||||
(c) the making of the Loan shall not be prohibited by any | ||||||
applicable Law and shall not subject M&I to any penalty under or | ||||||
(d) the Company shall have received all regulatory | ||||||
approvals, all in form and substance satisfactory to M&I, which may be | ||||||
(e) M&I shall have received all documents required by this | ||||||
Loan Agreement to be delivered to M&I. | ||||||
3.2Deliveries at Closing. The obligations of M&I to make any | ||||||
Loan is further subject to the condition precedent that M&I shall have | ||||||
(a) this Loan Agreement; | ||||||
(b) the Line of Credit Note; |
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(c) an Officer's Certificate, in the form ofExhibit A | ||||||
attached to this Loan Agreement, containing information as of the | ||||||
(d) a certificate of the Secretary of State of Delaware | ||||||
and the Secretary of State of Illinois as to the good standing of the | ||||||
(e) such additional supporting documents and materials as | ||||||
M&I or its counsel may reasonably request. | ||||||
3.3Post-Closing Deliveries. The Company shall deliver to M&I | ||||||
no later than November 19, 1998 a certificate of the Secretary or an | ||||||
ARTICLE IV | ||||||
REPRESENTATIONS AND WARRANTIES | ||||||
The Company hereby represents and warrants to M&I as | ||||||
follows: | ||||||
4.1Organization and Qualification. The Company is a | ||||||
corporation duly and validly organized and existing and in good | ||||||
4.2Subsidiaries. Each of the Subsidiaries is a corporation | ||||||
duly and validly organized and existing and in good standing under the | ||||||
4.3Financial Statements. All of the financial statements of | ||||||
the Company and its Subsidiaries heretofore furnished to M&I are |
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condition, financial or otherwise, of the Company and its Subsidiaries | ||
4.4Authorization; Enforceability. The making, execution, | ||
delivery and performance of this Loan Agreement and the Note by the | ||
4.5Absence of Conflicting Obligations. The making, execution, | ||
delivery and performance of this Loan Agreement and the Note and | ||
4.6Taxes. The Company and each Subsidiary have filed all | ||
federal, state, foreign and local tax returns which were required to | ||
4.7Absence of Litigation. Neither the Company nor any | ||
Subsidiary is a party to, nor so far as is known to the Company is | ||
4.8Guarantees; Undisclosed Liabilities. Except pursuant to the | ||
deposit and collection of checks in the ordinary course of business, | ||
4.9Accuracy of Information. All information, certificates or | ||
statements by the Company or any Subsidiary given in, or pursuant to, | ||
4.10Title to Property. The Company and each Subsidiary have | ||
good and marketable title to their respective assets and properties | ||
4.11Federal Reserve Regulations. The Company will not, directly | ||
or indirectly, use the proceeds of the Loan for the purpose of |
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4.12Offering of Note. Neither the Company nor any agent acting | |||||
for it has offered the Note or any similar obligation of the Company | |||||
4.13Banker's Blanket Bond. Each Subsidiary that is a bank has a | |||||
current and valid banker's blanket bond covering it and its | |||||
4.14ERISA. The Company has no knowledge that any Plan is in | |||||
noncompliance in any material respect with the applicable provisions | |||||
4.15Compliance With Laws. Each of the Company and each | |||||
Subsidiary: (a) is in material compliance with all applicable | |||||
4.16Investment Company Act. Neither the Company nor any | |||||
Subsidiary is an "investment company" or a company "controlled" by an | |||||
4.17Public Utility Holding Company Act. Neither the Company nor | |||||
any Subsidiary is a "holding company" or a "subsidiary company" of a | |||||
ARTICLE V | |||||
NEGATIVE COVENANTS | |||||
From and after the date of this Loan Agreement and until the | |||||
entire amount of principal of and interest due on the Loan, and all | |||||
5.1Liens. The Company shall not incur, create, assume or | |||||
permit to be created or allow to exist any Lien upon, in or on any of | |||||
5.2Indebtedness. The Company shall not, and shall cause each of | |||||
its Subsidiaries to not, incur, create, assume or otherwise become |
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permit to exist, any Indebtedness, except for Permitted Indebtedness, | ||||||
5.4Pension Plans. The Company shall not, and shall cause each | ||||||
of its Subsidiaries to not, take, permit or omit any action with | ||||||
5.5Transactions with Affiliates. The Company shall not engage | ||||||
in any transaction with an Affiliate on terms materially less | ||||||
ARTICLE VI | ||||||
AFFIRMATIVE COVENANTS | ||||||
From and after the date of this Loan Agreement and until the | ||||||
entire amount of principal of and interest due on the Loan, and all | ||||||
6.1Corporate Existence, Properties. The Company shall, and | ||||||
shall cause each Subsidiary to: (a) maintain its corporate existence; | ||||||
6.2Reporting Requirements. The Company shall, and shall cause | ||||||
each Subsidiary to, furnish to M&I such information respecting the | ||||||
(a) as soon as available, and in any event within 45 days | ||||||
after the end of each fiscal quarter in each fiscal year (except the | ||||||
(b) as soon as available, and in any event within 90 days | ||||||
after the close of each fiscal year, a copy of the Annual Report on | ||||||
(c) together with each delivery required by subsections | ||||||
(a) and (b) of this Section, an executed Officer's Certificate, in the | ||||||
(d) simultaneously with each filing, copies of the | ||||||
periodic reports filed by the Company with the FRB; and | ||||||
(e) promptly after the same are delivered or available to | ||||||
the Company or any subsidiary, copies of all reports submitted to the |
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in connection with any annual or special audit made of the books and | |||
6.3Taxes. The Company shall, and shall cause each Subsidiary | |||
to, pay all taxes and assessments prior to the date on which penalties | |||
6.4Inspection of Properties and Records. The Company shall, | |||
and shall cause each Subsidiary to, permit representatives of M&I to | |||
6.5Insurance. The Company shall, and shall cause each | |||
Subsidiary to, maintain insurance coverage (including public | |||
6.6Compliance with Laws. (a) The Company shall, and shall | |||
cause each Subsidiary to, comply with the requirements of all | |||
(b) The Company shall, and shall cause each Subsidiary to, | |||
comply in all material respects with all other applicable Laws. | |||
6.7Compliance with Agreements. The Company shall, and shall | |||
cause each Subsidiary to, perform and comply in all respects with the | |||
6.8Notices. The Company shall: | |||
(a) as soon as possible and in any event within fifteen | |||
(15) days after the occurrence of any Default or Event of Default, | |||
(b) promptly notify M&I of the commencement of any | |||
litigation or administrative proceeding that would cause the |
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representation and warranty of the Company contained in Section 4.7 of | ||
(c) promptly notify M&I (i) of the occurrence of any | ||
Reportable Event or Prohibited Transaction (as such terms are defined | ||
(d) promptly notify M&I of the commencement of any | ||
investigation, litigation, or administrative or regulatory proceeding | ||
6.9Use of Proceeds. The Company shall use the proceeds of the | ||
Loans to provide interim funding of mortgage loans made by First | ||
6.10Risk-Based Capital/Risk-Weighted Assets. The Company and | ||
its Subsidiaries shall maintain as of the last day of each fiscal | ||
6.11Tier 1 Capital/Risk-Weighted Assets. The Company and its | ||
Subsidiaries shall maintain as of the last day of each fiscal quarter | ||
6.12Tier 1 Capital/ Average Total Assets. The Company and its | ||
Subsidiaries shall maintain as of the last day of each fiscal quarter | ||
6.13Non-Performing Loans/Total Loans. The Company and its | ||
Subsidiaries shall maintain as of the last day of each fiscal quarter |
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event greater than 3.0%. For purposes of calculating the forgoing | ||||||
6.14Loan Loss Reserve/Total Loans. The Company and its | ||||||
Subsidiaries shall maintain as of the last day of each fiscal quarter | ||||||
6.15Return on Average Assets. The Company and its Subsidiaries | ||||||
shall maintain as of the last day of each fiscal quarter a greater than may be required from time to time by the FRB or other | ||||||
ARTICLE VII | ||||||
REMEDIES | ||||||
7.1Acceleration. (a) Upon the occurrence of an Automatic Event | ||||||
of Default, then, without notice, demand or action of any kind by M&I: | ||||||
(b) Upon the occurrence of a Notice Event of Default, M&I | ||||||
may, upon written notice and demand to the Company: (i) terminate its | ||||||
7.2Remedies Not Exclusive. No remedy herein conferred upon M&I | ||||||
is intended to be exclusive of any other remedy and each and every | ||||||
7.3Setoff. The Company agrees that M&I shall have all rights | ||||||
of set-off and bankers' Lien provided by applicable Law, and in |
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payment or other amount any and all balances, credits, deposits, | |||||
ARTICLE VIII | |||||
MISCELLANEOUS | |||||
8.1Expenses and Attorneys' Fees. The Company shall pay all | |||||
reasonable fees and expenses incurred by M&I, including the reasonable | |||||
8.2Assignability; Successors. The Company's right and | |||||
liabilities under this Loan Agreement are not assignable or delegable, | |||||
8.3Survival. All agreements, representations and warranties | |||||
made in this Loan Agreement or in any document delivered pursuant to | |||||
8.4Governing Law. This Loan Agreement, the Note and the other | |||||
instruments, agreements and documents issued pursuant to this Loan | |||||
8.5Counterparts; Headings. This Loan Agreement may be executed | |||||
in several counterparts, each of which shall be deemed an original, | |||||
8.6Entire Agreement. This Loan Agreement and the Note and the | |||||
other documents referred to herein and therein contain the entire | |||||
8.7Notices. All communications or notices required or | |||||
permitted by this Loan Agreement shall be in writing and shall be |
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nationally recognized overnight commercial carrier, air bill prepaid, | ||||
If to the Company: | First Midwest Bancorp, Inc. | |||
300 Park Blvd., Suite 405 | ||||
Itasca, Illinois 60143-0459 | ||||
Attention: Mr. Donald J. Swistowicz | ||||
If to M&I: | M&I Marshall & Ilsley Bank | |||
770 North Water Street | ||||
Milwaukee, Wisconsin 53202 | ||||
Attention: Mr. John J. Kadlac | ||||
8.8Amendment. No amendment of this Loan Agreement shall be | ||||
effective unless in writing and signed by the Company and M&I. | ||||
8.9Taxes. If any transfer or documentary taxes, assessments or | ||||
charges levied by any governmental authority shall be payable by | ||||
8.10Accounting Terms. All accounting terms used in this Loan | ||||
Agreement shall be construed in accordance with GAAP consistent with | ||||
8.11Severability. Any provision of this Loan Agreement which is | ||||
prohibited or unenforceable in any jurisdiction shall, as to such | ||||
8.12Indemnification. The Company hereby indemnifies, agrees to | ||||
defend and holds M&I harmless from and against all loss, liability, | ||||
8.13WAIVER OF RIGHT TO JURY TRIAL. M&I AND THE COMPANY | ||||
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LOAN AGREEMENT OR THE NOTE OR WITH RESPECT TO THE TRANSACTION |
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CONTEMPLATED HEREBY AND THEREBY WOULD BE BASED UPON DIFFICULT AND | |||||||||
8.14SUBMISSION TO JURISDICTION; SERVICE OF PROCESS. AS A | |||||||||
MATERIAL INDUCEMENT TO M&I TO ENTER INTO THIS LOAN AGREEMENT: | |||||||||
(a) THE COMPANY AGREES THAT ALL ACTIONS OR PROCEEDINGS IN | |||||||||
ANY MANNER RELATING TO OR ARISING OUT OF THIS LOAN AGREEMENT OR THE | |||||||||
(b) The Company consents to the service of process in any | |||||||||
such action or proceeding by certified mail sent to the address | |||||||||
(c) Nothing contained herein shall affect the right of M&I | |||||||||
to serve process in any other manner permitted by law or to commence | |||||||||
8.15Participation. M&I may, at any time and from time to time, | |||||||||
grant to any bank or banks a participation in any part of the Loans; | |||||||||
IN WITNESS WHEREOF, the parties hereto have executed this Loan | |||||||||
Agreement as of the day and year first above written. | |||||||||
FIRST MIDWEST BANCORP, INC. | |||||||||
By: | /s/ DONALD J. SWISTOWICZ | ||||||||
Donald J. Swistowicz | |||||||||
Executive Vice President | |||||||||
Attest: | /s/ JAMES M. ROOLF | ||||||||
Name: | James M. Roolf | ||||||||
Title: | Senior Vice President & Corp. Secretary | ||||||||
M&I MARSHALL & ILSLEY BANK | |||||||||
By: | /s/ JOHN J. KADLAC | ||||||||
John J. Kadlac, Vice President | |||||||||
Attest: | /s/ DALE R. MAYER | ||||||||
Name: | Dale R. Mayer | ||||||||
Title: | Vice President |
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Exhibit A | |||||||||||
OFFICER'S CERTIFICATE | |||||||||||
M&I Marshall & Ilsley Bank | |||||||||||
Re: First Midwest Bancorp, Inc. | |||||||||||
Ladies and Gentlemen: | |||||||||||
This Officer's Certificate is delivered to you pursuant to the | |||||||||||
terms of the Loan Agreement dated as of October 16, 1998, as amended | |||||||||||
The undersigned hereby represents and warrants to M&I that: | |||||||||||
1. The undersigned is an officer of the Company and is duly | |||||||||||
authorized to execute and deliver this Officer's Certificate. | |||||||||||
2. The representations and warranties of the Company contained | |||||||||||
in the Loan Agreement are true and accurate on and as of the date of | |||||||||||
3. No default or Event of Default under the Loan Agreement has | |||||||||||
occurred and is continuing.1 | |||||||||||
4. Enclosed with this certificate is the Quarterly Report on | |||||||||||
Form 10-Q [or:the Annual Report on Form 10-K] described in Section | |||||||||||
6. As of the end of the quarter preceding the date hereof: | |||||||||||
A. the ratio of risk-based capital to | |||||||||||
risk-weighted assets of the Company | |||||||||||
1If a Default or an Event of Default exists, specify (a) the facts and | |||||||||||
circumstances of such Default or Event of Default, and (b) the actions that | |||||||||||
2For the certificate delivered with the annual financial statements, | |||||||||||
delete the phrase "subject to audit and normal year-end adjustments." |
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B. the ratio of tier 1 capital to | ||||||||
risk-weighted assets of the Company | ||||||||
C. the ratio of tier 1 capital to | ||||||||
average total assets of the Company | ||||||||
D. the ratio of non-performing loans to | ||||||||
total loans of the Company and its | ||||||||
E. the ratio of loan loss reserve to | ||||||||
total loans of the Company | ||||||||
F. the return on average assets of the | ||||||||
Company and its Subsidiaries for the | ||||||||
Dated: | , | . |
FIRST MIDWEST BANCORP, INC. | ||||
By: | ||||
Title: |
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Exhibit B | |||||||||||||||||||||||
CERTIFICATE OF SECRETARY | |||||||||||||||||||||||
The undersigned does hereby certify that: | |||||||||||||||||||||||
1. I am the duly elected, qualified and acting Secretary of | |||||||||||||||||||||||
First Midwest Bancorp, Inc., a Delaware corporation (the "Company"). | |||||||||||||||||||||||
2. Attached hereto is a true and correct copy of | |||||||||||||||||||||||
resolutions duly adopted by the Board of Directors of the Company on | |||||||||||||||||||||||
3. Attached hereto are true and correct copies of the | |||||||||||||||||||||||
certificate of incorporation and bylaws of the Company, as in effect | |||||||||||||||||||||||
4. The following are duly elected, qualified and acting | |||||||||||||||||||||||
officers of the Company, holding the respective offices set forth | |||||||||||||||||||||||
NAME | OFFICE | SIGNATURE | |||||||||||||||||||||
Donald J. Swistowicz | Executive Vice | ||||||||||||||||||||||
5. This certificate is delivered to M&I Marshall & Ilsely | |||||||||||||||||||||||
Bank ("M&I") pursuant to that certain Loan Agreement dated as of | |||||||||||||||||||||||
IN WITNESS WHEREOF, I have executed this certificate in my | |||||||||||||||||||||||
official capacity this | day of November, 1998. | ||||||||||||||||||||||
Secretary | |||||||||||||||||||||||
The undersigned, in the capacity as indicated below, does hereby | |||||||||||||||||||||||
certify that | has been duly elected or appointed to, | ||||||||||||||||||||||
and now holds, the office of Secretary of the Company, and that the | |||||||||||||||||||||||
IN WITNESS WHEREOF, I have hereunto signed my name as of the | |||||||||||||||||||||||
effective date indicated above. | |||||||||||||||||||||||
By: | |||||||||||||||||||||||
Name: | |||||||||||||||||||||||
Title: |
24
Exhibit C | ||||||||
LINE OF CREDIT NOTE | ||||||||
$30,000,000 | Milwaukee, Wisconsin | |||||||
October 16, 1998 | ||||||||
FOR VALUE RECEIVED, FIRST MIDWEST BANCORP, INC., a Delaware | ||||||||
corporation (the "Company") hereby promises to pay to the order ofM&I | ||||||||
The unpaid principal shall bear interest from the date hereof | ||||||||
until paid at an annual rate, computed on the basis of a 360-day year, | ||||||||
In the event that any amount of the principal of, or interest on, | ||||||||
this Note is not paid when due (whether at stated maturity, by | ||||||||
Payments of principal, interest and other amounts due hereunder | ||||||||
are to be made in lawful money of the United States of America to M&I | ||||||||
The maker and all endorsers hereby severally waive presentment | ||||||||
for payment, protest and demand, notice of protest, demand and of | ||||||||
This Note constitutes the Line of Credit Note issued pursuant to | ||||||||
a Loan Agreement (the "Loan Agreement") dated as of October 16, 1998, | ||||||||
25
This Note shall be governed by, and construed and interpreted in | ||||||||
accordance with, the laws of the State of Wisconsin applicable to | ||||||||
FIRST MIDWEST BANCORP, INC. | ||||||||
By: | ||||||||
Donald J. Swistowicz | ||||||||
Executive Vice President | ||||||||
Attest: | ||||||||
Name: | ||||||||
Title: | ||||||||
26
FIRST AMENDMENT TO LOAN AGREEMENT | |||||||||||
THIS FIRST AMENDMENT TO LOAN AGREEMENTis made as of May 1, 1999 by | |||||||||||
and betweenFIRST MIDWEST BANCORP, INC.andM&I MARSHALL & ILSLEY BANK. | |||||||||||
NOW, THEREFORE, IN CONSIDERATIONof mutual covenants, conditions | |||||||||||
and agreements set forth herein and for other good and valuable | |||||||||||
ARTICLE I - DEFINITIONS | |||||||||||
1.1Amendment. "Amendment" shall mean this First Amendment to | |||||||||||
Loan Agreement. | |||||||||||
1.2Loan Agreement. "Loan Agreement" shall mean the Loan | |||||||||||
Agreement between M&I and the Company, dated as of October 16, 1998, | |||||||||||
1.3Other Terms. Unless otherwise defined herein, the other | |||||||||||
capitalized terms used in this Amendment shall have the definitions in | |||||||||||
ARTICLE II - AMENDMENTS | |||||||||||
The Loan Agreement is deemed amended as of the date hereof as | |||||||||||
follows: | |||||||||||
2.1Article I Definitions. (a) The definition of "Line of | |||||||||||
Credit Commitment" contained in Article I of the Loan Agreement is hereby | |||||||||||
(b) The definition of "Line of Credit Termination Date" contained | |||||||||||
in Article I of the Loan Agreement is hereby amended by deleting "October | |||||||||||
(c) The definition of "Permitted Indebtedness" contained in | |||||||||||
Article I of the Loan Agreement is hereby amended by deleting | |||||||||||
2.2Line of Credit Note. The Company shall execute and deliver to | |||||||||||
M&I a substitute Line of Credit Note in the original principal amount of | |||||||||||
2.3Miscellaneous Amendments. The Loan Agreement and all other | |||||||||||
documents, instruments and materials executed and delivered heretofore |
27
ARTICLE III - REPRESENTATIONS AND WARRANTIES | |||||||
The Company hereby represents and warrants to M&I that: | |||||||
3.1Loan Agreement. All of the representations and warranties | |||||||
made by the Company in the Loan Agreement are true and correct on the | |||||||
3.2Authorization; Enforceability. The making, execution, | |||||||
delivery and performance of this Amendment and the Line of Credit Note | |||||||
3.3Absence of Conflicting Obligations. The making, execution, | |||||||
and delivery of this Amendment and the Line of Credit Note, and | |||||||
ARTICLE IV - MISCELLANEOUS | |||||||
4.1Continuance of Loan Agreement. Except as specifically amended | |||||||
by this Amendment, the Loan Agreement and all other documents, | |||||||
4.2References. Whenever the Loan Agreement is referred to in the | |||||||
Loan Agreement, the Line of Credit Note or any of the other documents, | |||||||
4.3Expenses and Attorney's Fees. The Company shall pay all fees | |||||||
and expenses incurred by M&I, including the reasonable fees of counsel, | |||||||
4.4Survival. All agreements, representations and warranties made | |||||||
in this Amendment or in any documents delivered pursuant to this | |||||||
4.5Governing Law. This Amendment and the other documents issued | |||||||
pursuant to this Amendment shall be governed by, and construed and | |||||||
4.6Counterparts. This Amendment may be executed in several | |||||||
counterparts, each of which shall be deemed an original, but such |
28
4.7Severability. Any provision of this Amendment which is | |||||||
prohibited or unenforceable in any jurisdiction shall, as to such | |||||||
4.8Effectiveness. This Amendment shall be effective as of the | |||||||
date first written above upon receipt by M&I of the following: | |||||||
(a) this Amendment executed by the Company and M&I; | |||||||
(b) the substitute Line of credit Note referenced above | |||||||
executed by the Company; | |||||||
(c) a certificate of the secretary of the Company dated the | |||||||
date hereof as to: (i) the incumbency and signature of the officers | |||||||
(d) such additional supporting documents and materials as M&I | |||||||
may reasonably request. | |||||||
IN WITNESS WHEREOF, the parties hereto have executed this First | |||||||
Amendment to Loan Agreement as of the date first written above. | |||||||
FIRST MIDWEST BANCORP, INC. | |||||||
By: | /s/ DONALD SWISTOWICZ | ||||||
Name: | Donald Swistowicz | ||||||
Title: | Exec VP & CFO | ||||||
M&I MARSHALL & ILSLEY BANK | |||||||
By: | /s/ JOHN KADLAC | ||||||
Title: | Vice President | ||||||
Attest: | |||||||
/s/ | |||||||
Title:: | Vice President | ||||||
29
SECOND AMENDMENT TO LOAN AGREEMENT | |||||||||
THIS SECOND AMENDMENT TO LOAN AGREEMENTis made as of April 30, 2000 | |||||||||
by and betweenFIRST MIDWEST BANCORP, INC.andM&I MARSHALL & ILSLEY | |||||||||
BANK. | |||||||||
NOW, THEREFORE, IN CONSIDERATIONof mutual covenants, conditions | |||||||||
and agreements set forth herein and for other good and valuable | |||||||||
ARTICLE I - DEFINITIONS | |||||||||
1.1Amendment. "Amendment" shall mean this Second Amendment to | |||||||||
Loan Agreement. | |||||||||
1.2Loan Agreement. "Loan Agreement" shall mean the Loan | |||||||||
Agreement between M&I and the Company, dated as of October 16, 1998, as | |||||||||
1.3Other Terms. Unless otherwise defined herein, the other | |||||||||
capitalized terms used in this Amendment shall have the definitions in | |||||||||
ARTICLE II - AMENDMENTS | |||||||||
The Loan Agreement is deemed amended as of the date hereof as | |||||||||
follows: | |||||||||
2.1Article I Definitions. The definition of "Line of Credit | |||||||||
Termination Date" contained in Article I of the Loan Agreement is hereby | |||||||||
2.2Line of Credit Note. The Company shall execute and deliver to | |||||||||
M&I a substitute Line of Credit Note in the original principal amount of | |||||||||
2.3Miscellaneous Amendments. The Loan Agreement and all other | |||||||||
documents, instruments and material executed and delivered heretofore | |||||||||
ARTICLE III - REPRESENTATIONS AND WARRANTIES | |||||||||
The Company hereby represents and warrants to M&I that: | |||||||||
3.1Loan Agreement. All of the representations and warranties | |||||||||
made by the Company in the Loan Agreement are true and correct on the |
30
3.2Authorization; Enforceability. The making, execution, | |||||
delivery and performance of this Amendment and the Line of Credit Note | |||||
3.3Absence of Conflicting Obligations. The making, execution, | |||||
and delivery of this Amendment and the Line of Credit Note, and | |||||
ARTICLE IV - MISCELLANEOUS | |||||
4.1Continuance of Loan Agreement. Except as specifically amended | |||||
by this Amendment, the Loan Agreement and all other documents, | |||||
4.2References. Whenever the Loan Agreement is referred to in the | |||||
Loan Agreement, the Line of Credit Note or any of the other documents, | |||||
4.3Expenses and Attorney's Fees. The Company shall pay all fees | |||||
and expenses incurred by M&I, including the reasonable fees of counsel, | |||||
4.4Survival. All agreements, representations and warranties made | |||||
in this Amendment or in any documents delivered pursuant to this | |||||
4.5Governing Law. This Amendment and the other documents issued | |||||
pursuant to this Amendment shall be governed by, and construed and | |||||
4.6Counterparts. This Amendment may be executed in several | |||||
counterparts, each of which shall be deemed an original, but such | |||||
4.7Severability. Any provision of this Amendment which is | |||||
prohibited or unenforceable in any jurisdiction shall, as to such | |||||
4.8Effectiveness. This amendment shall be effective as of the | |||||
date first written above upon receipt by M&I of the following: |
31
(a) this Amendment executed by the Company and M&I; | ||||||
(b) the substitute Line of credit Note referenced above | ||||||
executed by the Company; and | ||||||
(c) such additional supporting documents and materials as M&I | ||||||
may reasonably request. | ||||||
IN WITNESS WHEREOF, the parties hereto have executed this Second | ||||||
Amendment to Loan Agreement as of the date first written above. | ||||||
FIRST MIDWEST BANCORP, INC. | ||||||
By: | /s/ DONALD J. SWISTOWICZ | |||||
Name: | Donald J. Swistowicz | |||||
Title: | Exec VP/CFO | |||||
M&I MARSHALL & ILSLEY BANK | ||||||
By: | /s/ JOHN J. KADLAC | |||||
Title: | Vice President | |||||
Attest: | ||||||
/s/ DALE R. MAYER | ||||||
Title: | Vice President | |||||
32
| THIRD AMENDMENT TO LOAN AGREEMENT | ||||||
THIS THIRD AMENDMENT TO LOAN AGREEMENTis made as of April 29, 2001 | |||||||
by and betweenFIRST MIDWEST BANCORP, INC.(the "Company") andM&I | |||||||
MARSHALL & ILSLEY BANK ("M&I"). | |||||||
NOW, THEREFORE, IN CONSIDERATIONof mutual covenants, conditions | |||||||
and agreements set forth herein and for other good and valuable | |||||||
ARTICLE I - DEFINITIONS | |||||||
1.1Amendment. "Amendment" shall mean this Third Amendment to | |||||||
Loan Agreement. | |||||||
1.2Loan Agreement. "Loan Agreement" shall mean the Loan | |||||||
Agreement between M&I and the Company, dated as of October 16, 1998, as | |||||||
1.3Other Terms. Unless otherwise defined herein, the other | |||||||
capitalized terms used in this Amendment shall have the definitions in | |||||||
ARTICLE II - AMENDMENTS | |||||||
The Loan Agreement is deemed amended as of the date hereof as | |||||||
follows: | |||||||
2.1Section 1.1 - Definitions. The definition of "Line of Credit | |||||||
Termination Date" contained in Section 1.1 of the Loan Agreement is | |||||||
2.2Section 6.13 - Non-Performing Loans/Total Loans. Section 6.13 | |||||||
of the Loan Agreement is hereby amended by deleting "3.0%" contained in | |||||||
2.3Section 6.15 - Return on Average Assets. Section 6.15 of the | |||||||
Loan Agreement is hereby amended by deleting "0.75%" from such Section | |||||||
2.4Line of Credit Note. The Company shall execute and deliver to | |||||||
M&I a substitute Line of Credit Note in the original principal amount of | |||||||
2.5Miscellaneous Amendments. The Loan Agreement and all other | |||||||
documents, instruments and material executed and delivered heretofore |
33
ARTICLE III - REPRESENTATIONS AND WARRANTIES | |||||
The Company hereby represents and warrants to M&I that: | |||||
3.1Loan Agreement. All of the representations and warranties | |||||
made by the Company in the Loan Agreement are true and correct on the | |||||
3.2Authorization; Enforceability. The making, execution, | |||||
delivery and performance of this Amendment and the Line of Credit Note | |||||
3.3Absence of Conflicting Obligations. The making, execution, | |||||
and delivery of this Amendment and the Line of Credit Note, and | |||||
ARTICLE IV - MISCELLANEOUS | |||||
4.1Continuance of Loan Agreement. Except as specifically amended | |||||
by this Amendment, the Loan Agreement and all other documents, | |||||
4.2References. Whenever the Loan Agreement is referred to in the | |||||
Loan Agreement, the Line of Credit Note or any of the other documents, | |||||
4.3Expenses and Attorney's Fees. The Company shall pay all fees | |||||
and expenses incurred by M&I, including the reasonable fees of counsel, | |||||
4.4Survival. All agreements, representations and warranties made | |||||
in this Amendment or in any documents delivered pursuant to this | |||||
4.5Governing Law. This Amendment and the other documents issued | |||||
pursuant to this Amendment shall be governed by, and construed and | |||||
4.6Counterparts. This Amendment may be executed in several | |||||
counterparts, each of which shall be deemed an original, but such |
34
4.7Severability. Any provision of this Amendment which is | ||
prohibited or unenforceable in any jurisdiction shall, as to such | ||
4.8Effectiveness. This amendment shall be effective as of the | ||
date first written above upon receipt by M&I of the following: | ||
(a) this Amendment executed by the Company and M&I; | ||
(b) the substitute Line of credit Note referenced above | ||
executed by the Company; and | ||
(d) such additional supporting documents and materials as M&I | ||
may reasonably request. | ||
35
IN WITNESS WHEREOF, the parties hereto have executed this Third | |||||||
Amendment to Loan Agreement as of the date first written above. | |||||||
FIRST MIDWEST BANCORP, INC. | |||||||
By: | /s/ DONALD J. SWISTOWICZ | ||||||
Name: | Donald J. Swistowicz | ||||||
Title: | Exec. V.P. | ||||||
M&I MARSHALL & ILSLEY BANK | |||||||
By: | /s/ JOHN J. KADLAC | ||||||
Name | John J. Kadlac | ||||||
Title: | Vice President | ||||||
Attest: | /s/ BRENDAN MORAN | ||||||
Name: | Brendan Moran | ||||||
Title: | Correspondent Officer | ||||||
36
FOURTH AMENDMENT TO LOAN AGREEMENT | ||||||||
THIS FOURTH AMENDMENT TO LOAN AGREEMENTis made as of April 28, 2002 by | ||||||||
and betweenFIRST MIDWEST BANCORP, INC.(the "Company") andM&I MARSHALL & | ||||||||
ILSLEY BANK ("M&I"). | ||||||||
NOW, THEREFORE, IN CONSIDERATIONof mutual covenants, conditions and | ||||||||
agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of | ||||||||
ARTICLE I - DEFINITIONS | ||||||||
1.1Amendment. "Amendment" shall mean this Fourth Amendment to Loan Agreement. | ||||||||
1.2Loan Agreement. "Loan Agreement" shall mean the Loan Agreement between M&I and | ||||||||
the Company, dated as of October 16, 1998, as amended by a First Amendment to Loan Agreement dated | ||||||||
1.3Other Terms. Unless otherwise defined herein, the other capitalized terms used in this | ||||||||
Amendment shall have the definitions in the Loan Agreement. | ||||||||
ARTICLE II - AMENDMENTS | ||||||||
The Loan Agreement is deemed amended as of the date hereof as follows: | ||||||||
2.1Section 1.1 - Definitions. The definition of "Line of Credit Termination Date" | ||||||||
contained in Section 1.1 of the Loan Agreement is hereby amended by deleting "April 28,2002" from clause | ||||||||
2.2Section 2.11 - Fees. | ||||||||
Customer agrees to pay the following nonrefundable fees as a condition of access to credit under this | ||||||||
2.3Line of Credit Note. The Company shall execute and deliver to M&I a substitute Line of | ||||||||
Credit Note in the original principal amount of $50,000,000 dated as of the date hereof, maturing on April | ||||||||
2.4Miscellaneous Amendments. The Loan Agreement and all other documents, instruments | ||||||||
and material executed and delivered heretofore or hereafter pursuant to the Loan Agreement are deemed |
37
ARTICLE III - REPRESENTATIONS AND WARRANTIES | ||||||
The Company hereby represents and warrants to M&I that: | ||||||
3.1Loan Agreement. All of the representations and warranties made by the company in the | ||||||
Loan Agreement are true and correct on the date of this Amendment. No Default or Event of Default under | ||||||
3.2Authorization; Enforceability. The making, execution, delivery and performance of this | ||||||
Amendment and the Line of Credit Note and compliance with the terms of the Loan Agreement as amended | ||||||
3.3Absence of Conflicting Obligations. The making, execution, and delivery of this | ||||||
Amendment and the Line of Credit Note, and compliance with the terms of the Loan Agreement as | ||||||
ARTICLE IV - MISCELLANEOUS | ||||||
4.1Continuance of Loan Agreement. Except as specifically amended by this Amendment, | ||||||
the Loan Agreement and all other documents, instruments and materials executed and delivered pursuant | ||||||
4.2References. Whenever the Loan Agreement is referred to in the Loan Agreement, the | ||||||
Line of Credit Note or any of the other documents, instruments or materials executed and delivered | ||||||
4.3Expenses and Attorney's Fees. The Company shall pay all fees and expenses incurred | ||||||
by M&I, including the reasonable fees of counsel, in connection with the preparation of this Amendment | ||||||
4.4Survival. All agreements, representations and warranties made in this Amendment or in | ||||||
any documents delivered pursuant to this Amendment shall survive the execution of this Amendment and | ||||||
4.5Governing Law. This Amendment and the other documents issued pursuant to this | ||||||
Amendment shall be governed by, and construed and interpreted in accordance with, the laws of the State | ||||||
4.6Counterparts. This Amendment may be executed in several counterparts, each of which | ||||||
shall be deemed an original, but such counterparts shall together constitute but one and the same | ||||||
4.7Severability. Any provision of this Amendment which is prohibited or | ||||||
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such |
38
prohibition or unenforceability without invalidating the remaining provisions of this Amendment | |||||||||
4.8Effectiveness. This amendment shall be effective as of the date first written above upon | |||||||||
receipt by M&I of the following: | |||||||||
(a) this Amendment executed by the Company and M&I; | |||||||||
(b) the substitute Line of Credit Note referenced above executed by the Company; | |||||||||
and | |||||||||
(c) such additional supporting documents and materials as M&I may reasonably | |||||||||
request. | |||||||||
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment to Loan | |||||||||
Agreement as of the date first written above. | |||||||||
FIRST MIDWEST BANCORP, INC. | |||||||||
By: | /s/ DONALD J. SWISTOWICZ | ||||||||
Name: | Donald J. Swistowicz | ||||||||
Title: | Exec VP - CFO | ||||||||
M&I MARSHALL & ILSLEY BANK | |||||||||
By: | /s/ JOHN J. KADLAC | ||||||||
Name: | John J. Kadlac | ||||||||
Title: | Vice President | ||||||||
39
FIFTH AMENDMENT TO LOAN AGREEMENT | |||||||||
THIS FIFTH AMENDMENT TO LOAN AGREEMENTis made as of April 28, 2003 by and | |||||||||
betweenFIRST MIDWEST BANCORP, INC.("the Company") andM&I MARSHALL & ILSLEY | |||||||||
BANK ("M&I"). | |||||||||
NOW, THEREFORE, IN CONSIDERATION of mutual covenants, conditions and | |||||||||
agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of | |||||||||
ARTICLE I - DEFINITIONS | |||||||||
1.1 | Amendment. "Amendment" shall mean this Fifth Amendment to Loan Agreement. | ||||||||
1.2 | Loan Agreement. "Loan Agreement" shall mean the Loan Agreement between M&I | ||||||||
1.3 | Notice Event of Default."Notice Event of Default" shall have the meaning assigned to | ||||||||
1.4 | Other Terms.Unless otherwise defined herein, the other capitalized terms used in this | ||||||||
Amendment shall have the definitions in the Loan Agreement. | |||||||||
ARTICLE II - AMENDMENTS | |||||||||
The Loan Agreement is deemed amended as of the date hereof as follows: | |||||||||
2.1 | Section 1.1 - Definitions. The definition of "Line of Credit Termination Date" | ||||||||
2.2 | Line of Credit Note. The Company shall execute and deliver to M&I a substitute Line of | ||||||||
2.3 | Miscellaneous Amendments.The Loan Agreement and all other documents, instruments | ||||||||
Amendment. | |||||||||
40
ARTICLE III - REPRESENTATIONS AND WARRANTIES | |||||||
The Company hereby represents and warrants to M&I that: | |||||||
3.1 | Loan Agreement.All of the representations and warranties made by the company | ||||||
3.2 | Authorization; Enforceability. The making, execution and delivery of this | ||||||
3.3 | Absence of Conflicting Obligations. The making, execution, and delivery of this | ||||||
ARTICLE IV - MISCELLANEOUS | |||||||
4.1 | Continuance of Loan Agreement. Except as specifically amended by this Amendment, | ||||||
4.2 | References. Whenever the Loan Agreement is referred to in the Loan Agreement, the | ||||||
4.3 | Expenses and Attorney's Fees. The Company shall pay all fees and expenses incurred | ||||||
4.4 | Survival. All agreements, representations and warranties made in this Amendment or in | ||||||
4.5 | Governing Law. This Amendment and the other documents issued pursuant to this |
41
4.6 | Counterparts. This Amendment may be executed in several counterparts, each of which | |||||||||||||
4.7 | Severability. Any provision of this Amendment which is prohibited or unenforceable | |||||||||||||
4.8 | Effectiveness. This Amendment shall be effective as of the date first written above upon | |||||||||||||
(a) | this Amendment executed by the Company and M&I; | |||||||||||||
(b) | the substitute Line of Credit Note referenced above executed by the Company; | |||||||||||||
(c) | such additional supporting documents and materials as M&I may reasonably | |||||||||||||
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment to Loan | ||||||||||||||
Agreement as of the date first written above. | ||||||||||||||
FIRST MIDWEST BANCORP, INC. | ||||||||||||||
By: | /s/ MICHAEL L. SCUDDER | |||||||||||||
Name: | Michael L. Scudder | |||||||||||||
Title: | EVP & CFO | |||||||||||||
M&I MARSHALL & ILSLEY BANK | ||||||||||||||
By: | /s/ JOHN J. KADLAC | By: | ||||||||||||
Name: | John J. Kadlac | Name: | ||||||||||||
Title: | Vice President | Title: | ||||||||||||
42