41
Exhibit K
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COMMON STOCK PURCHASE AGREEMENT
THIS COMMON STOCK PURCHASE AGREEMENT ("Agreement") is made as
of February 13, 2001 by and among (i) FIRST SOUTHERN BANCORP, INC., a Kentucky
corporation (the "PURCHASER"), and (ii) each of the individuals and entities
identified on SCHEDULE I attached hereto (each a "SELLER" and collectively, the
"SELLERS").
RECITALS
Each Seller desires to sell, and the Purchaser desires to purchase, the
number of shares of common stock of United Trust Group, Inc., an Illinois
corporation ("UTG"), and/or First Commonwealth Corporation, a Virginia
corporation ("FCC"), (the "SHARES") owned by such Seller as set forth on
SCHEDULE I attached hereto, for the consideration and on the terms set forth in
this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. SALE AND TRANSFER OF SHARES; CLOSING
(a) SHARES. Subject to the terms and conditions of this Agreement, at
the Closing, each Seller will sell and transfer the number of Shares set forth
opposite such Seller's name on SCHEDULE I attached hereto, and the Purchaser
will purchase such Shares from such Seller.
(b) PURCHASE PRICE. The purchase price per Share will be $8.00 per
Share of UTG and $200.00 per Share of FCC ("PURCHASE PRICE") (in the aggregate
amounts as set forth on SCHEDULE I attached hereto) and will be payable in the
form of a Note, substantially in the form attached hereto as EXHIBIT A (each a
"NOTE" and collectively, the "NOTES"), payable in the face principal amount set
forth opposite such Seller's name under the heading Principal Amount of Note on
SCHEDULE I attached hereto.
(c) CLOSING; CLOSING CONDITIONS. The closing of the purchase and sale
(the "CLOSING") provided for in this Agreement will take place at a time and
place agreed upon by the parties which time shall be as soon as practicable
after the satisfaction of the conditions to the Closing set forth in this
Section 1(c) but not later than ten (10) days from the date of such satisfaction
(the "CLOSING DATE"). The Closing shall not occur unless (i) the Purchaser
receives all approvals or clearances from any applicable governmental body that
the Purchaser deems necessary or appropriate in connection with the transactions
contemplated by this Agreement and (ii) the closing of the transactions
contemplated by that certain Common Stock Purchase Agreement dated as of
February 13, 2001 among the Purchaser, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and certain others named
therein, will occur simultaneously with the Closing contemplated under this
Agreement. The
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Purchaser will use its best efforts to obtain any government approvals or
clearances it deems necessary or appropriate in connection with the transactions
contemplated by this Agreement.
(d) CLOSING OBLIGATIONS. At the Closing, each Seller will deliver to
the Purchaser certificate(s) representing the number of Shares set forth
opposite such Seller's name on SCHEDULE I attached hereto, duly endorsed (or
accompanied by duly executed stock power(s)) for transfer to the Purchaser.
At the Closing, the Purchaser will deliver to each Seller a Note
duly executed on behalf of the Purchaser as set forth in Section 1(b) of this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SELLER. Each Seller represents and
warrants to the Purchaser as follows:
(a) BINDING OBLIGATION; INVESTMENT INTENT. This Agreement constitutes
the legal, valid and binding obligation of such Seller, enforceable against such
Seller in accordance with its terms. The Note being acquired pursuant hereto by
such Seller is being acquired by such Seller with investment intent and not with
a view towards resale or distribution.
(b) GOOD TITLE, NO ENCUMBRANCES. Such Seller is and will be on the
Closing Date the record and beneficial owner and holder of the Shares set forth
opposite such Seller's name on SCHEDULE I attached hereto (except as otherwise
indicated on such SCHEDULE I, e.g., if the Shares are held in the street name of
the nominee of the record and beneficial owner or if the record and beneficial
owner differ, such items shall also be designated on SCHEDULE I attached
hereto), free and clear of any and all Encumbrances. Such Seller has and will
have on the Closing Date full authority and power to transfer such Shares to the
Purchaser in accordance with the terms and conditions of this Agreement.
"Encumbrances" shall mean any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal, proxy or restriction of any kind, including any restriction on
use, voting, transfer, receipt of income or exercise of any other attribute of
ownership.
(c) BROKERS OR FINDERS. Each Seller and his, her or its agents and
representatives have incurred no obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement and the transactions
contemplated hereby and will indemnify and hold the Purchaser harmless from any
such payment alleged to be due by or through such Seller as a result of the
actions of such Seller or his, her or its agents and representatives.
(d) MELVILLE WARRANTY. In addition to any other representations and
warranties made by each Seller pursuant hereto, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ also
individually represents and warrants that, with respect to each Seller pursuant
hereto for which he is executing this Agreement as the trustee of such Seller,
as such trustee he has full power and authority as of the date hereof and will
have full power and authority on the Closing Date to enter into this Agreement
on behalf of such Seller and to perform its obligations hereunder, including the
transfer of the Shares held by such Seller to the Purchaser at the Closing in
accordance with the terms and conditions of this Agreement.
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3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to each Seller as follows:
(a) ORGANIZATION AND GOOD STANDING. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Kentucky.
(b) BINDING OBLIGATION. This Agreement and the Notes constitutes the
legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with their respective terms.
(c) BROKERS OR FINDERS. The Purchaser has incurred no obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement and the
transactions contemplated hereby and will indemnify and hold each Seller
harmless from any such payment alleged to be due by or through the Purchaser as
a result of the actions of the Purchaser.
4. GENERAL PROVISIONS.
(a) PARTIES IN INTEREST; ASSIGNMENT. Except as otherwise provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any party to this Agreement shall bind and inure to the benefit of their
respective heirs, executors, successors and assigns, whether so expressed or
not. Except as expressly provided otherwise herein, nothing in this Agreement is
intended to confer upon any party other than the parties hereto and their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement. This Agreement is not
assignable and any purported assignment shall be null and void; PROVIDED,
HOWEVER, that, prior to the Closing, this Agreement, including the Purchaser's
rights and obligations hereunder as well as under any Notes (or any replacements
thereof), may be assigned by the Purchaser to (i) UTG or First Southern Funding,
LLC without the consent of any of the Sellers or (ii) any other affiliate of the
Purchaser with the consent of all of the Sellers which consent shall not be
unreasonably withheld.
(b) CONSTRUCTION; GOVERNING LAW. The section headings contained in this
Agreement are inserted as a matter of convenience and shall not affect in any
way the construction of the terms of this Agreement. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of
Illinois, without regard to the principles of conflicts of laws thereof.
(c) ENTIRE AGREEMENT; AMENDMENT AND WAIVER; SUBSTITUITION OF NOTE. This
Agreement and the Schedule and Exhibit hereto, constitutes and contains the
entire agreement among the parties hereto with respect to the transactions
contemplated hereby and supersedes any prior writing by the parties.
(d) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
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(e) EXPENSES. Every party hereto shall pay his, her or its respective
legal and out-of-pocket expenses incurred in connection with this Agreement and
the transactions contemplated hereby.
(f) TIME OF ESSENCE. Time is of the essence to the performance of the
obligations set forth in this Agreement.
(g) MELVILLE INDEMNITY. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will indemnify and hold
harmless the Purchaser and its stockholders, directors, officers, controlling
persons and affiliates (except any of the Sellers) (collectively, the
"INDEMNIFIED PERSONS") for, and will pay to the Indemnified Persons the amount
of, any loss, liability, claim, damage, expense (including costs of
investigation and defense and reasonable attorneys' fees) or diminution of
value, whether or not involving a third-party claim, arising directly or
indirectly from or in connection with ▇▇. ▇▇▇▇▇▇▇▇'▇ breach of the
representations and warranties contained in Section 2(d) of this Agreement. This
right of indemnification is in addition to, and is not in lieu of, any other
right or remedy which the Purchaser might have under this Agreement or
otherwise, in law or in equity, against any of the Sellers (including ▇▇.
▇▇▇▇▇▇▇▇) arising from this Agreement, the Notes or the transactions
contemplated hereby or thereby.
(h) SELLERS' RELEASE. Each Seller, on behalf of him, her or itself and
each of his, her or its affiliates, effective at the Closing Date, hereby
releases and forever discharges the Purchaser, and its respective individual,
joint or mutual, past, present and future representatives, affiliates,
stockholders, controlling persons, subsidiaries, successors and assigns
(individually, a "RELEASEE" and collectively, "RELEASEES") from any and all
claims, demands, proceedings, causes of action, orders, obligations, contracts,
agreements, debts and liabilities whatsoever, whether known or unknown,
suspected or unsuspected, both at law and in equity, which such Seller or any of
his, her or its respective affiliates now has, have ever had or may hereafter
have as a shareholder of UTG and/or FCC or of any of their respective
subsidiaries or affiliates, against the respective Releasees, (x) arising
contemporaneously with or prior to the Closing Date or (y) on account of or
arising out of any matter, cause or event occurring contemporaneously with or
prior to the Closing Date. This release shall not apply with respect to (i) any
claims arising under this Agreement or the Notes (or any replacements thereof),
and (ii) with respect solely to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, any of the claims or other
items excluded from the general release given by ▇▇. ▇▇▇▇▇▇▇▇ in Section 3.A of
that certain Agreement and Release, dated as of February 13, 2001, among FCC,
UTG, the Purchaser and ▇▇. ▇▇▇▇▇▇▇▇ (the "Agreement and Release").
(i) PURCHASER'S RELEASE. The Purchaser, on behalf of itself and each of
its subsidiaries and affiliates, effective at the Closing Date, hereby releases
and forever discharges each Seller, and his, her or its respective individual,
joint or mutual, past, present and future representatives, affiliates,
beneficiaries, controlling persons, successors and assigns (individually, a
"SELLER RELEASEE" and collectively, "SELLER RELEASEES") from any and all claims,
demands, proceedings, causes of action, orders, obligations, contracts,
agreements, debts and liabilities whatsoever, whether known or unknown,
suspected or unsuspected, both in law and in equity, which the Purchaser or any
of its respective affiliates and subsidiaries now has, have ever had or may
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hereafter have against the respective Seller Releasees arising contemporaneously
with or prior to the Closing Date or on account of or arising out of any matter,
cause or event occurring contemporaneously with or prior to the Closing Date.
This release shall not apply with respect to (i) any claims arising under this
Agreement or the Notes (or any replacements thereof), and (ii) with respect
solely to ▇▇. ▇▇▇▇▇▇▇▇, any of the claims or other items excluded from the
general release given by the Purchaser, FCC, UTG and their respective
subsidiaries and affiliates in Section 3.B of the Agreement and Release.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"PURCHASER"
FIRST SOUTHERN BANCORP, INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: PRESIDENT
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
48
IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"SELLER"
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
49
IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"SELLER"
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
50
IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"SELLER"
BJM TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
51
IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"SELLER"
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
52
IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"SELLER"
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
53
IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"SELLER"
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
54
IN WITNESS WHEREOF, the undersigned party has executed this counterpart
signature page to this Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others effective as of the date
first written on page 1 hereof.
"SELLER"
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
[Signature Page to Common Stock Purchase Agreement among First Southern
Bancorp, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and certain others]
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SCHEDULE I
Name and Address Name of Name of Certificate Number of Principal Amt.
OF SELLER (RECORD OWNER) BENEFICIAL OWNER NOMINEE NUMBER UTG SHARES OF NOTE
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ____SAME_____ ____NA____ 42571 14,000 $112,000
JTWROS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ____SAME_____ ____NA____ 44758 2,500 $20,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BJM Trust, ____SAME_____ ____NA____ 42752 3,000 $24,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust, ____SAME_____ ____NA____ 41569 750 $6,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust, ____SAME_____ ____NA____ 41570 750 $6,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust, ____SAME______ ___NA_____ 41566 750 $6,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Trust, ____SAME_____ ____NA____ 41568 750 $6,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Total UTG Shares 22,500 $180,000
[FN]
Insert the name(s) of the beneficial owner(s) if it differs from the
name of the record owner; if not, insert same.
Insert the name of the nominee of the record and beneficial owner(s) if
the Shares are held in street name; if the Shares are not held in street name,
insert none.
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Name and Address Name of Name of Certificate Number of Principal Amt.
OF SELLER (RECORD OWNER) BENEFICIAL OWNER NOMINEE NUMBER FCC SHARES OF NOTE
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ____SAME_____ ____NA____ 30941 15 $ 3,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ____SAME_____ ____NA____ 34188 134 $26,800
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ____SAME_____ ____NA____ 34194 19 $ 3,800
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Jt. Ten. ____SAME_____ ____NA____ 33854 376 $75,200
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Total FCC Shares 544 $108,800
[FN]
Insert the name(s) of the beneficial owner(s) if it differs from the
name of the record owner; if not, insert same.
Insert the name of the nominee of the record and beneficial owner(s) if
the Shares are held in street name; if the Shares are not held in street name,
insert none.
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EXHIBIT A
Form of Note
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NON-NEGOTIABLE PROMISSORY NOTE
$------------- ----------,------------
____________ ___, 2001
FOR VALUE RECEIVED, the undersigned, FIRST SOUTHERN BANCORP, INC., a
Kentucky corporation ("MAKER"), having an address of
______________________________ hereby promises and agrees to pay to
___________________, ("PAYEE"), having an address of
_______________________________, the aggregate principal sum of
_________________ DOLLARS ($___________), together with interest thereon as
hereinafter provided, in lawful money of the United States of America, in the
manner set forth herein, on or before the date _____________, 2006 (the
"MATURITY DATE"). This Note is being issued pursuant to that certain Common
Stock Purchase Agreement, dated as of _____________, 2001, among the Maker,
Payee and certain others named therein and shall be governed by the terms
thereof (the "PURCHASE AGREEMENT"). This Note is one of several notes issued
pursuant to the Purchase Agreement.
The principal of this Note prior to any default hereunder shall accrue
interest on the unpaid principal balance hereof at the rate of 7% per annum. All
interest on this Note shall be computed daily on the basis of the actual number
of days elapsed over a year assumed to consist of three hundred sixty-five (365)
days. All accrued and unpaid interest on this Note shall be paid quarterly on
the last day of each March, June, September and December of each year and on the
Maturity Date and any other date on which the unpaid principal balance of this
Note is paid in full until the principal balance of this Note is paid. Such
payment of interest shall commence on the first day referenced in the foregoing
sentence to occur after the date of this Note.
Principal of this Note shall be paid as follows: 20% of the face
principal amount of this Note shall be paid on the date that is one (1) year
from the date of this Note; 20% of the face principal amount of this Note shall
be paid on the date that is two (2) years from the date of this Note; 20% of the
face principal amount of this Note shall be paid on the date that is three (3)
years from the date of this Note; 20% of the face principal amount of this Note
shall be paid on the date that is four (4) years from the date of this Note; and
the remaining 20% of the face principal amount of this Note shall be paid on the
Maturity Date.
Notwithstanding the foregoing, principal of this Note may be prepaid in
whole or in part without penalty or premium at any time prior to maturity;
provided, however, that Maker shall not be entitled to reborrow any amounts so
prepaid. All prepayments shall be applied to the indebtedness owing hereunder in
such order and manner as Payee may from time to time determine in its sole
discretion.
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All payments of principal and interest and any other sums due under
this Note shall be made by check or money order to Payee at the address first
set forth above for the Payee in this Note or at such other address as may be
designated in writing by the Payee; PROVIDED, HOWEVER, that if all the Payees on
this Note and the other Notes issued pursuant to the Purchase Agreement give
Maker joint written instructions at least ten (10) days prior to the date when
any payment is due under this Note and such other Notes that all such payments
under this Note and such other Notes be made in one lump sum payment by wire
transfer to one account and such instructions contain appropriate account
information, Maker shall make such payment to such account in immediately
available funds on the date such payment is due as well as all subsequent
payments under this Note and such other Notes when and as due until notified
otherwise in writing by all such Payees. Unless otherwise agreed to, in writing,
or otherwise required by applicable law, payments will be applied among
principal, interest, late charges, collection costs and other charges at Payee's
discretion.
The occurrence of any one or more of the following shall constitute a
default under this Note: [i] if principal or interest under this Note is not
paid as and when due; [ii] a proceeding being filed or commenced against Maker
for dissolution or liquidation that is not dismissed within thirty (30) days
after filing, or Maker voluntarily or involuntarily terminating or dissolving or
being terminated or dissolved; or [iii] insolvency of, business failure of, the
appointment of a custodian, trustee, liquidator or receiver for or for any of
the property of, or an assignment for the benefit of creditors by or the filing
of a petition under bankruptcy, insolvency or debtor's relief law, or for any
readjustment of indebtedness, composition or extension by, Maker, or against (if
not dismissed within thirty (30) days) Maker. Maker shall notify the Payee in
writing of the occurrence of any of the foregoing items [ii] or [iii].
Whenever there is a default under this Note (other than a default due
to the failure to pay the principal or interest under this Note when and as due)
the entire principal balance of and all accrued interest on this Note shall, at
the option of Payee, become forthwith due and payable upon demand by Payee if
within ten (10) days after written notice of such default from Payee is received
by Maker, Maker fails to cure such default within such ten-day period. Whenever
there is a default under this Note due to the failure of Maker to pay the
principal or interest under this Note when and as due, the entire principal
balance of and all accrued interest on this Note shall, at the option of the
Payee, become forthwith due and payable upon demand by Payee if within three (3)
days after written notice of such default from Payee is received by Maker, Maker
fails to cure such default within such three-day period; PROVIDED, HOWEVER, that
if the default is with respect to any payment to be made by wire transfer in
accordance herewith, the entire principal balance of and all accrued interest on
this Note shall, at the option of the Payee, become forthwith due and payable
upon demand by Payee if within two (2) days after written or oral notice of such
default from the Payee is received by Maker, Maker fails to cure such default
within such two-day period. If the date of any payment of interest or principal
under this Note or the last day of any grace period provided under this Note
shall fall on a date which is a Saturday, a Sunday, or a holiday on which
national or state banks located in Kentucky are generally not open for business,
then such payment shall be deemed due on, and the last day of such grace period
shall be deemed to be, the next day (other than a Saturday or Sunday) on which
national or state banks located in Kentucky are generally open for business.
Upon any uncured default, including failure to pay upon final maturity, Payee,
at its option, may also, if permitted under
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applicable law, do one or both of the following: (a) increase the applicable
interest rate on this Note by three (3) percentage points, and (b) add, on the
date of such increase, any unpaid accrued interest to principal and such sum
will bear interest therefrom until paid at the rate provided in this Note
(including any increased rate). Notwithstanding anything herein to the contrary,
the interest rate on this Note will not exceed the maximum rate permitted by
applicable law.
Failure of the holder of this Note to exercise any of its rights and
remedies shall not constitute a waiver of the right to exercise the same at that
or any other time. All rights and remedies of the holder for default under this
Note shall be cumulative to the greatest extent permitted by law. Time shall be
of the essence in the payment of all interest and principal on this Note and the
performance of Maker's other obligations under this Note.
If there is any default under this Note, and this Note is placed in the
hands of an attorney for collection or is collected through any court, including
any bankruptcy court, Maker promises to pay to the holder hereof its reasonable
attorneys' fees and court costs incurred in collecting or attempting to collect
or securing or attempting to secure this Note, provided the same is legally
allowed by the laws of the State of Illinois.
If any provision, or portion thereof, of this Note, or the application
thereof to any persons or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Note, or the application of such provision,
or portion thereof, to any other person or circumstances shall not be affected
thereby, and each provision of this Note shall be valid and enforceable to the
fullest extent permitted by law.
Maker and any other party who may become primarily or secondarily
liable for any of the obligations of Maker hereunder hereby, except where
otherwise provided herein, jointly and severally waive presentment, demand,
notice of dishonor, protest, notice of protest, and diligence in collection, and
further waive all exemptions to which they may now or hereafter be entitled
under the laws of this or any other state or of the United States, and further
agree that the holder of this Note shall have the right without notice, to deal
in any way, at any time, with Maker, or any guarantor of this Note or with any
other party who may become primarily or secondarily liable for, or pledge any
collateral as security for, any of the obligations of Maker under this Note and
to grant any extension of time for payment of this Note or any other indulgence
or forbearance whatsoever, and may release any security for the payment of this
Note and/or modify the terms of any document securing or pertaining to this
Note, without in any way affecting the liability of Maker, or such other party
who may pledge any collateral as security for, or become primarily or
secondarily liable for, the obligations of Maker hereunder and without waiving
any rights the holder may have hereunder or by virtue of the laws of the State
of Illinois or any other state of the Unites States.
{END OF TEXT}
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"Maker"
FIRST SOUTHERN BANCORP, INC.
By:________________________________
(signature)
Name:______________________________
(type or print)
Title:_____________________________
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