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Exhibit 10.1
REVOLVING CREDIT AGREEMENT
(Bank Holding Company)
Dated as of June 26, 1998
This Agreement is between FIRST WESTERN BANCORP, INC., a
corporation formed under the laws of the State of Pennsylvania
("Borrower"), and THE NORTHERN TRUST COMPANY, an Illinois banking
corporation ("Lender"), with a banking office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 1 LOANS
SECTION 1.1 LOANS. Subject to the terms and conditions of this
Agreement, Lender agrees to make loans to Borrower, from time to time
from the date of this Agreement through the Termination Date, at such
times and in such amounts, not to exceed the Commitment (as defined
below) at any one time outstanding, as Borrower may request (the
"Loan(s)"). During such period Borrower may borrow, repay and reborrow
hereunder. Each borrowing shall be in the amount of at least $100,000
or the remaining unused amount of the Commitment.
SECTION 1.2 NOTE. The Loans shall be evidenced by a promissory
note (the "Note"), substantially in the form of Exhibit A, with
appropriate insertions, dated the date hereof, payable to the order of
Lender and in the principal amount of the Commitment. Lender may at any
time and from time to time at Lender's sole option attach a schedule
(grid) to the Note and endorse thereon notations with respect to each
Loan specifying the date and principal amount thereof, the Interest
Period (as defined below)(if applicable), the applicable interest rate
and rate option, and the date and amount of each payment of principal
and interest made by Borrower with respect to each such Loan. Lender's
endorsements as well as its records relating to Loans shall be
rebuttably presumptive evidence of the outstanding principal and
interest on the Loans, and, in the event of inconsistency, shall prevail
over any records of Borrower and any written confirmations of the Loans
given by Borrower. The principal of the Note shall be payable on or
before the Termination Date.
SECTION 2 INTEREST AND FEES
SECTION 2.l INTEREST RATE. Borrower agrees to pay interest on
the unpaid principal amount from time to time outstanding hereunder at
the following rate per year:
(a) before maturity of any Loan, whether by acceleration or
otherwise, at the option of Borrower, subject to the terms hereof at a
rate equal to:
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(i) The "Prime-Based Rate", which shall mean the Prime Rate
(as hereinafter defined) minus the Prime Rate Margin (as
defined below);
(ii) The "Bank Offered Rate", which shall be equal to that
rate of interest offered by Lender and accepted by Borrower
and fixed for periods of up to one year; or
(iii) "Federal Funds Rate", which shall mean the weighted
average of the rates on overnight Federal funds transactions,
with members of the Federal Reserve System only, arranged by
Federal funds brokers, plus the Federal Funds Margin (as
defined below). The Federal Funds Rate shall be determined
by the Lender on the basis of reports by Federal funds
brokers to, and published daily by, the Federal Reserve Bank
of New York in the Composite Closing Quotations for U.S.
Government Securities. If such publication is unavailable or
the Federal Funds Rate is not set forth therein, the Federal
Funds Rate shall be determined on the basis of any other
source reasonably selected by the Lender. The Federal Funds
Rate applicable each day shall be the Federal Funds Rate
reported as applicable to Federal funds transactions on that
date. In the case of Saturday, Sunday or legal holiday, the
Federal Funds Rate shall be the rate applicable to Federal
funds transactions on the immediately preceding day for which
the Federal Funds Rate is reported.
(b) After the maturity of any Loan, whether by acceleration
or otherwise, such Loan shall bear interest until paid at a rate
equal to two percent (2%) in addition to the rate in effect
immediately prior to maturity (but in any event not less than the
Prime Rate in effect at maturity).
SECTION 2.2 RATE SELECTION. Borrower shall select and change
its selection of the interest rate as among the Bank Offered Rate,
the Federal Funds Rate and the Prime-Based Rate, as applicable, to
apply to at least $100,000 and in integral multiples of $100,000
thereafter of any Loan or portion thereof, subject to the
requirements herein stated:
(a) At the time any Loan is made;
(b) At the expiration of a particular Bank Offered Rate
selected for the outstanding principal balance of any
Loan or portion of any Loan currently bearing interest
at the Bank Offered Rate; and
(c) At any time for the outstanding principal balance
of any Loan or portion thereof currently bearing
interest at the Prime-Based Rate or the Federal Funds
Rate.
SECTION 2.3 RATE CHANGES AND NOTIFICATIONS.
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(a) Bank Offered Rate. If the Borrower wishes to borrow funds at
the Bank Offered Rate or to change the rate of interest on any Loan
or portion thereof to the Bank Offered Rate, it shall, at or before
l0:00 A.M., Chicago time on the date such borrowing or change is to
take effect, which shall be a Banking Day (as hereinafter defined)
of the Lender, give written or telephonic notice thereof, which
shall be irrevocable. Such notice shall specify the Loan or
portion thereof to which the Bank Offered Rate is to apply and the
desired Interest Period (but not to exceed the Termination Date).
The Lender shall then in its sole discretion offer or decline to
offer a Bank Offered Rate (and if it offers a Bank Offered Rate,
the rate of such Bank Offered Rate shall be in the Lender's sole
discretion), and the Borrower shall irrevocably accept or decline
such particular Bank Offered Rate and the related Loan or portion
thereof and confirm such acceptance in writing by letter or other
written communication dated and sent the date of such borrowing or
change. Without limiting the Borrower's obligations under any
other document or instrument, the Lender may in offering such Bank
Offered Rate and the related Loan or portion thereof rely without
inquiry upon any person whom it reasonably believes to be a party
authorized to accept or decline such Bank Offered Rate and the
related Loan or portion thereof.
(b) Federal Funds Rate and Prime-Based Rate. If the
Borrower wishes to borrow funds at the Federal Funds
Rate or the Prime-Based Rate or to change the rate of
interest on any Loan to either the Federal Funds Rate or
the Prime-Based Rate, it shall, at or before l0:00 A.M.,
Chicago time on the date such borrowing or change is to
take effect, which shall be a banking day of the Lender,
give written or telephonic notice thereof, which shall
be irrevocable. Such notice shall specify the advance
and the desired interest rate option.
(c) Failure to Notify. If Borrower does not notify
Lender at the expiration of a selected Interest Period
with respect to any principal outstanding at the Bank
Offered Rate, then in the absence of such notice
Borrower shall be deemed to have elected to have such
principal accrue interest after the respective Bank
Offered Rate Interest Period at the Federal Funds Rate.
If Borrower does not notify Lender as to its selection
of the interest rate option with respect to any new
Loan, then in the absence of such notice Borrower shall
be deemed to have elected to have such initial advance
accrue interest at the Federal Funds Rate.
SECTION 2.4 INTEREST PAYMENT DATES. Accrued interest shall
be paid in respect of each portion of principal to which the Prime-
Based Rate or the Federal Funds Rate applies on the last day of
each month of each year, beginning with the first of such dates to
occur after the date of the first Loan or portion thereof, at
maturity, and upon payment in full, and to each portion of
principal to which any other interest rate option applies, the end
of each respective Interim Maturity Date, every three months, at
maturity, and upon payment in full, whichever is earlier or more
frequent. After maturity of any installment, interest shall be
payable upon demand.
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SECTION 2.5 ADDITIONAL PROVISIONS WITH RESPECT TO BANK
OFFERED RATE AND FEDERAL FUNDS RATE LOANS.
The selection by Borrower of the Bank Offered Rate or the
Federal Funds Rate and the maintenance of Loans or portions thereof
at such rate shall be subject to the following additional terms and
conditions:
(a) Availability of Deposits at a Determinable Rate.
If, after Borrower has elected to borrow or maintain any
Loan or portion thereof at the Federal Funds Rate,
Lender notifies Borrower that reasonable means do not
exist for Lender to determine the Federal Funds Rate for
the amount and maturity requested, as determined by the
Lender in its sole discretion, then the principal
subject to the Federal Funds Rate shall accrue or shall
continue to accrue interest at the Prime-Based Rate.
(b) Prohibition of Making, Maintaining, or Repayment of
Principal at the Federal Funds Rate. If any treaty,
statute, regulation, interpretation thereof, or any
directive, guideline, or otherwise by a central bank or
fiscal authority (whether or not having the force of
law) shall either prohibit or extend the time at which
any principal subject to the Federal Funds Rate may be
purchased, maintained, or repaid, then on and as of the
date the prohibition becomes effective, the principal
subject to that prohibition shall continue at the Prime-
Based Rate.
(c) Payments of Principal and Interest to be Inclusive
of Any Taxes or Costs. All payments of principal and
interest shall include any taxes and costs incurred by
Lender resulting from having principal outstanding
hereunder at the Bank Offered Rate or the Federal Funds
Rate. Without limiting the generality of the preceding
obligation, illustrations of such taxes and costs are:
(i) Taxes (or the withholding of amounts for
taxes) of any nature whatsoever including income,
excise, and interest equalization taxes (other than
income taxes imposed by the United States or any
state thereof on the income of Lender), as well as
all levies, imposts, duties, or fees whether now in
existence or resulting from a change in, or
promulgation of, any treaty, statute, regulation,
interpretation thereof, or any directive,
guideline, or otherwise, by a central bank or
fiscal authority (whether or not having the force
of law) or a change in the basis of, or time of
payment of, such taxes and other amounts resulting
therefrom;
(ii) Any other costs resulting from compliance
with treaties, statutes, regulations,
interpretations, or any directives or guidelines,
or otherwise
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by a central bank or fiscal authority
(whether or not having the force of law);
(iii) Any loss (including loss of anticipated
profits) or expense incurred by reason of the
liquidation or re-employment of deposits acquired
by Lender;
(A) To make a Loan or portion thereof or
maintain principal outstanding at the Federal
Funds Rate or the Bank Offered Rate; or
(B) As the result of a voluntary prepayment
at a date other than the Interim Maturity Date
selected for principal outstanding at the Bank
Offered Rate; or
(C) As the result of a mandatory repayment
at a date other than that Interim Maturity
Date selected for principal outstanding at the
Bank Offered Rate as a result of the
occurrence of an Event of Default and the
acceleration of any portion of the
indebtedness hereunder; or
(D) As the result of a prohibition on
making, maintaining, or repaying principal
outstanding at the Bank Offered Rate or the
Federal Funds Rate.
If Lender incurs any such taxes or costs, Borrower, upon
demand in writing specifying such taxes and costs, shall
promptly pay them; save for manifest error Lender's
specification shall be presumptively deemed correct.
SECTION 2.6 BASIS OF COMPUTATION. Interest shall be computed
for the actual number of days elapsed on the basis of a year
consisting of 360 days, including the date a Loan is made and
excluding the date a Loan or any portion thereof is paid or
prepaid.
SECTION 2.7 COMMITMENT FEE, REDUCTION OF COMMITMENT.
Borrower agrees to pay Lender a commitment fee (the "Commitment
Fee") of 0.15% per year on the average daily unused amount of the
Commitment. The Commitment Fee shall commence to accrue on the
date of this Agreement and shall be paid on the last day of each
March, June, September and December in each year, beginning with
the first of such dates to occur after the date of this Agreement,
at maturity and upon payment in full. At any time or from time to
time, upon at least ten days prior written notice, which shall be
irrevocable, Borrower may reduce the Commitment in the amount of at
least $1,000,000 or in full. Upon any such reduction of any part
of the unused Commitment,
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the Commitment Fee on the part reduced shall be paid in full as of
the date of such reduction.
SECTION 3 PAYMENTS AND PREPAYMENTS
SECTION 3.1 PREPAYMENTS. Borrower may prepay without penalty
or premium any principal bearing interest at the Prime-Based Rate
or the Federal Funds Rate. If Borrower prepays any principal
bearing interest at the Bank Offered Rate in whole or in part, or
if the maturity of any such Bank Offered Rate principal is
accelerated, then, to the fullest extent permitted by law Borrower
shall also pay Lender for all losses (including but not limited to
interest rate margin and any other losses of anticipated profits)
and expenses incurred by reason of the liquidation or re-employment
of deposits acquired by Lender to make the Loan or maintain
principal outstanding at the Bank Offered Rate. The losses shall
be determined based on a present value of the positive difference
(if any) between the Bank Offered Rate applicable to the Loan or
portion of the Loan prepayed and the Lender's reinvestment rate.
Upon Lender's demand in writing specifying such losses and
expenses, Borrower shall promptly pay them; Lender's specification
shall be deemed correct in the absence of obvious error. All Loans
or portions thereof made at the Bank Offered Rate shall be
conclusively deemed to have been funded by or on behalf of Lender
by the purchase of deposits corresponding in amount and maturity to
the amount and interest periods selected (or deemed to have been
selected) by Borrower under this Agreement. Any partial repayment
or prepayment shall be in an amount of at least $100,000.
SECTION 3.2 MANDATORY PREPAYMENTS. The Borrower shall
immediately repay the Loans at any time or from time to time when
the aggregate amount of Loans outstanding hereunder exceeds the
Commitment on such day so that, after giving effect to such
repayment, the aggregate amount of Loans outstanding hereunder is
at all times equal to or less than the Commitment on such date.
SECTION 3.3 FUNDS. All payments of principal, interest and
Commitment Fee shall be made in immediately available funds to
Lender at its banking office indicated above or as otherwise
directed by Lender.
SECTION 4 REPRESENTATIONS AND WARRANTIES
To induce Lender to make each of the Loans, Borrower
represents and warrants to Lender that:
SECTION 4.l ORGANIZATION. Borrower is existing and in good
standing as a duly qualified and organized bank holding company.
Borrower and any Subsidiary (as defined below) are existing and in
good standing under the laws of their respective jurisdiction, and
are duly qualified, in good standing and authorized to do business
in each jurisdiction where failure to do so might have a material
adverse impact on the
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consolidated assets, condition or prospects of Borrower. Borrower
and any Subsidiary have the power and authority to own their
properties and to carry on their businesses as now being conducted.
SECTION 4.2 AUTHORIZATION; NO CONFLICT. The execution,
delivery and performance of this Agreement and all related
documents and instruments: (a) are within Borrower's powers; (b)
have been authorized by all necessary corporate action; (c) have
received any and all necessary governmental approval; and (d) do
not and will not contravene or conflict with any provision of law
or charter or by-laws of Borrower or any agreement affecting
Borrower or its property.
SECTION 4.3 FINANCIAL STATEMENTS. Borrower has supplied
copies of the following financial or other statements to Lender:
(a) The Borrower's unaudited consolidated financial
statements as at March 31, 1998; and
(b) The Borrower's audited consolidated and
consolidating financial statements as at December 31,
1997.
Such statements have been furnished to Lender, have been prepared
in conformity with generally accepted accounting principles applied
on a basis consistent with that of the preceding fiscal year, and
fairly present the financial condition of Borrower and any
Subsidiary as at such dates and the results of their operations for
the respective periods then ended. Since the date of those
financial statements, no material adverse change in the business,
condition, properties, assets, operations, or prospects of Borrower
or any Subsidiary has occurred of which Lender has not been advised
in writing before this Agreement was signed. There is no known
contingent liability of Borrower or any Subsidiary which is known
to be in an amount in excess of $1,000,000 (excluding loan
commitments, letters of credit, and other contingent liabilities
incurred in the ordinary course of the banking business) in excess
of insurance for which the insurer has confirmed coverage in
writing which is not reflected in such financial statements or of
which Lender has not been advised in writing before this Agreement
was signed.
SECTION 4.4 TAXES. Borrower and any Subsidiary have filed
or caused to be filed all federal, state and local tax returns
which, to the knowledge of Borrower or any Subsidiary, are required
to be filed, and have paid or have caused to be paid all taxes as
shown on such returns or on any assessment received by them, to the
extent that such taxes have become due (except for current taxes
not delinquent and taxes being contested in good faith and by
appropriate proceedings for which adequate reserves have been
provided on the books of Borrower or the appropriate Subsidiary,
and as to which no foreclosure, sale or similar proceedings have
been commenced). Borrower and any Subsidiary have set up reserves
which are adequate for the payment of additional taxes for years
which have not been audited by the respective tax authorities.
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SECTION 4.5 LIENS. None of the assets of Borrower or any
Subsidiary are subject to any mortgage, pledge, title retention
lien, or other lien, encumbrance or security interest: except: (a)
for current taxes not delinquent or taxes being contested in good
faith and by appropriate proceedings; (b) for liens arising in the
ordinary course of business for sums not due or sums being
contested in good faith and by appropriate proceedings, but not
involving any deposits or Loan or portion thereof or borrowed money
or the deferred purchase price of property or services; (c) to the
extent specifically shown in the financial statements referred to
above; (d) for liens in favor of Lender; and (e) liens and security
interests securing deposits of public funds, repurchase agreements,
Federal funds purchased, trust assets, and other similar liens
granted in the ordinary course of the banking business.
SECTION 4.6 ADVERSE CONTRACTS. Neither Borrower nor any
Subsidiary is a party to any agreement or instrument or subject to
any charter or other corporate restriction, nor is it subject to
any judgment, decree or order of any court or governmental body,
which may have a material and adverse effect on the business,
assets, liabilities, financial condition, operations or business
prospects of Borrower and its Subsidiaries taken as a whole or on
the ability of Borrower to perform its obligations under this
Agreement or the Note. Neither Borrower nor any Subsidiary has,
nor with reasonable diligence should have had, knowledge of or
notice that it is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any such agreement, instrument, restriction, judgment,
decree or order.
SECTION 4.7 REGULATION U. Borrower is not engaged
principally in, nor is one of Borrower's important activities, the
business of extending credit for the purpose of purchasing or
carrying "margin stock" within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System as now and from
time to time hereinafter in effect.
SECTION 4.8 LITIGATION AND CONTINGENT LIABILITIES. No
litigation (including derivative actions), arbitration proceedings
or governmental proceedings are pending or threatened against
Borrower which would (singly or in the aggregate), if adversely
determined, have a material and adverse effect on the financial
condition, continued operations or prospects of Borrower or any
Subsidiary, except as and if set forth (including estimates of the
dollar amounts involved) in a schedule furnished by Borrower to
Lender before this Agreement was signed.
SECTION 4.9 FDIC INSURANCE. The deposits of each Subsidiary
Bank of the Borrower are insured by the FDIC and no act has
occurred which would adversely affect the status of such Subsidiary
Bank as an FDIC insured bank.
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SECTION 4.10 INVESTIGATIONS. Neither the Borrower nor any
Subsidiary Bank is under investigation by, or is operating under
the restrictions imposed by or agreed to in connection with, any
regulatory authority.
SECTION 4.11 SUBSIDIARIES. Attached hereto as Exhibit B is
a correct and complete list of all Subsidiaries of Borrower.
SECTION 4.12 YEAR 2000.
(a) Borrower has:
(i) conducted an analysis of all of its products,
services, businesses and operations, including
without limitation surveys of Borrower's Systems
(as defined below) and surveys of and discussions
with customers, suppliers and vendors, to determine
the extent to which Borrower or its Subsidiaries
may be adversely affected by the Borrower's or its
Subsidiaries' failure to be Year 2000 Compliant (as
defined below);
(ii) developed a plan (the "Year 2000 Plan") to
become Year 2000 Compliant and remedy any material
loss it may suffer if it fails to be Year 2000
Compliant on a timely basis; and
(iii) implemented and continues to proceed with the
Year 2000 Plan materially in accordance with its
terms and timetables.
(b) Borrower reasonably believes that the Year 2000
Plan, if implemented in accordance with its terms,
will result in the Borrower being Year 2000
Compliant on a timely basis.
(c) Borrower reasonably believes that each of its
customers, suppliers and vendors whose failure to
be Year 2000 Compliant would have a material and
adverse effect on the Borrower, is Year 2000
Compliant or has developed a plan to become Year
2000 Compliant and remedy any material loss such
person may suffer if it fails to be Year 2000
Compliant on a timely basis with respect to all of
its own computer systems and applications.
Borrower acknowledges and agrees that this Agreement and any other
representation, warranty, schedule, certificate, statement, report,
notice or other writing now or hereafter furnished by or on behalf
of Borrower to the Lender in connection with being Year 2000
Compliant or its Year 2000 Plan is material to the Lender and that
the Lender has relied and will continue to rely thereon. The
Borrower agrees to provide such information, financial, technical
or otherwise, concerning Borrower's Year 2000 Plan as Lender may
reasonably request from time to time.
SECTION 5 COVENANTS
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Until all obligations of Borrower hereunder and under the Note are
paid and fulfilled in full, Borrower agrees that it shall, and shall
cause any Subsidiary to, comply with the following covenants, unless
Lender consents otherwise in writing:
SECTION 5.1 REPORTS, CERTIFICATES AND OTHER INFORMATION. Borrower
shall furnish (or cause to be furnished) to Lender:
(a) Interim Reports. Within forty-five (45) days after the end
of each quarter of each fiscal year of Borrower, a copy of an
unaudited financial statement of Borrower and any Subsidiary
prepared on a consolidated basis consistent with the
consolidated financial statements of Borrower and any
Subsidiary referred to above, signed by an authorized officer
of Borrower and consisting of at least: (i) a balance sheet
as at the close of such quarter; and (ii) a statement of
earnings and source and application of funds for such quarter
and for the period from the beginning of such fiscal year to
the close of such quarter.
(b) Audit Report. Within 90 days after the end of each fiscal
year of Borrower, a copy of an annual report of Borrower and
any Subsidiary prepared on a consolidating and consolidated
basis and in conformity with generally accepted accounting
principles applied on a basis consistent with the
consolidating and consolidated financial statements of
Borrower and any Subsidiary referred to above, duly audited
by independent certified public accountants of recognized
standing satisfactory to Lender, accompanied by an opinion
without significant qualification.
(c) Certificates. Contemporaneously with the furnishing of a
copy of each annual report and of each quarterly statement
provided for in this Section, a certificate dated the date of
such annual report or such quarterly statement and signed by
either the President, the Chief Financial Officer or the
Treasurer of Borrower, to the effect that no Event of Default
or Unmatured Event of Default has occurred and is continuing,
or, if there is any such event, describing it and the steps,
if any, being taken to cure it, and containing (except in the
case of the certificate dated the date of the annual report)
a computation of, and showing compliance with, any financial
ratio or restriction contained in this Agreement.
(d) Reports to SEC and to Shareholders. Copies of each filing
and report made by Borrower or any Subsidiary with or to any
securities exchange or the Securities and Exchange
Commission, except in respect of any single shareholder, and
of each communication from Borrower or any Subsidiary to
shareholders generally, promptly upon the filing or making
thereof.
(e) Notice of Default, Litigation and ERISA Matters. Immediately
upon learning of the occurrence of any of the following,
written notice describing the same and
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the steps being taken by Borrower or any Subsidiary affected in respect
thereof: (i) the occurrence of an Event of Default or an Unmatured Event
of Default; (ii) the institution of, or any adverse determination in,
any litigation, arbitration or governmental proceeding which is material
to Borrower or any Subsidiary on a consolidated basis; (iii) the
occurrence of a reportable event under, or the institution of steps by
Borrower or any Subsidiary to withdraw from, or the institution of any
steps to terminate, any employee benefit plans as to which Borrower or
any of its Subsidiaries may have any liability and which may have a
material adverse impact on the ability of Borrower to repay the Loans in
full on a timely basis; or (iv) the issuance of any cease and desist
order, memorandum of understanding, cancellation of insurance, or
proposed disciplinary action from the FDIC or other regulatory entity.
(f) Acquisition Documents. Within ten (10) days after
the date hereof, evidence of consummation of the
Borrower's acquisition of 16 branches from PNC Bank, N.A.
in form and substance satisfactory to Lender and its
counsel.
(g) Notice of Change of Ownership. Within ten (10) days
thereafter, written notice of any liquidation,
dissolution, or merger, or consolidation by the Borrower
or any Subsidiary with or into any other entity, or sale,
lease, transfer or other disposition of all or a
substantial part of their assets other than in the
ordinary course of business as now conducted.
(h) Other Information. From time to time such other
information, financial or otherwise, concerning Borrower
or any Subsidiary as Lender may reasonably request.
SECTION 5.2 INSPECTION. At Borrower's expense if an Event of
Default or Unmatured Event of Default has occurred or is continuing,
Borrower and any Subsidiary shall permit Lender and its agents at any
time during normal business hours to inspect their properties and to
inspect and make copies of their books and records.
SECTION 5.3 FINANCIAL REQUIREMENTS.
(a) Net Worth. The Borrower shall maintain at all times
a minimum consolidated Tangible Net Worth (as defined
below) equal to at least the Tangible Net Worth Amount
(as defined below). The parties hereto agree that the
Tangible Net Worth Amount as at June 30, 1998 shall be
deemed to be $100,000,000.
(b) Total Debt to Net Worth. The Borrower's total
indebtedness for borrowed money (specifically excluding
the Capital Securities Indebtedness and the indebtedness
for borrowed money of the Borrower's Subsidiaries) shall
not at any time exceed thirty percent (30%) of its
Tangible Net Worth (provided that nothing
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in this paragraph shall permit the Borrower to borrow except as
specifically permitted elsewhere in this Agreement).
(c) Leverage Ratio. The Borrower shall maintain at all
times a Leverage Ratio of at least four and three-fourths
of one percent (4.75%), calculated on a consolidated
basis. Each Subsidiary Bank shall maintain at all times
a Leverage Ratio at least five percent (5%).
(d) Total Capital Ratio. The Borrower shall maintain at
all times a Total Capital Ratio of not less than nine
percent (9%), calculated on a consolidated basis. Each
Subsidiary Bank shall maintain at all times a Total
Capital Ratio of not less than ten percent (10%).
(e) Tier 1 Capital Ratio. The Borrower shall maintain at
all times a Tier 1 Capital Ratio of not less than six
percent (6%), calculated on a consolidated basis. Each
Subsidiary Bank shall maintain at all times a Tier 1
Capital Ratio of not less than six percent (6%).
(f) Nonperforming Assets. All assets of all Subsidiary
Banks and other Subsidiaries classified as "non-
performing" (which shall include all loans in non-accrual
status, more than ninety (90) days past due in principal
or interest, restructured or renegotiated, or listed as
"other restructured" or "other real estate owned") on the
FDIC or other regulatory agency call report shall not
exceed at any time three percent (3%) of the loans of the
Borrower and its Subsidiaries on a consolidated basis.
(h) Net Chargeoffs to Loans. The Subsidiary Banks on a
consolidated basis shall not incur Net Chargeoffs in an
amount greater than eighty-five one-hundredths of one
percent (0.85%) of its average loans, calculated on a
rolling four quarters basis as at the last day of each
calendar quarter.
(i) Loan Loss Reserves Ratio. Each Subsidiary Bank
shall maintain at all times on a consolidated basis a
ratio of loan loss reserves to non-performing loans of
not less than one hundred percent (100%).
SECTION 5.4 INDEBTEDNESS, LIENS AND TAXES. Borrower and any
Subsidiary shall:
(a) Indebtedness. Not incur, permit to remain
outstanding, assume or in any way become committed for
indebtedness in respect of borrowed money (specifically
including but not limited to indebtedness in respect of
money borrowed from financial institutions but excluding
deposits), except: (i) indebtedness incurred hereunder or
to Lender; (ii) indebtedness existing on the date of this
Agreement shown on the financial statements furnished to
Lender before this Agreement was
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signed; and (iii) indebtedness of the Subsidiary Banks arising
in the ordinary course of the banking business of the
Subsidiary Banks.
(b) Liens. Not create, suffer or permit to exist any
lien or encumbrance of any kind or nature upon any of
their assets now or hereafter owned or acquired
(specifically including but not limited to the capital
stock of any of the Subsidiary Banks), or acquire or
agree to acquire any property or assets of any character
under any conditional sale agreement or other title
retention agreement, but this Section shall not be deemed
to apply to: (i) liens existing on the date of this
Agreement of which Lender has been advised in writing
before this Agreement was signed; (ii) liens of
landlords, contractors, laborers or supplymen, tax liens,
or liens securing performance or appeal bonds, or other
similar liens or charges arising out of Borrower's
business, provided that tax liens are removed before
related taxes become delinquent and other liens are
promptly removed, in either case unless contested in good
faith and by appropriate proceedings, and as to which
adequate reserves shall have been established and no
foreclosure, sale or similar proceedings have commenced;
(iii) liens in favor of Lender; (iv) liens in an
aggregate amount at any time or from time to time not to
exceed $2,500,000 and (v) liens on the assets of any
Subsidiary Bank arising in the ordinary course of the
banking business of such Subsidiary Bank.
(c) Taxes. Pay and discharge all taxes, assessments and
governmental charges or levies imposed upon them, upon
their income or profits or upon any properties belonging
to them, prior to the date on which penalties attach
thereto, and all lawful claims for labor, materials and
supplies when due, except that no such tax, assessment,
charge, levy or claim need be paid which is being
contested in good faith by appropriate proceedings as to
which adequate reserves shall have been established, and
no foreclosure, sale or similar proceedings have
commenced.
(d) Guaranties. Not assume, guarantee, endorse or
otherwise become or be responsible in any manner (whether
by agreement to purchase any obligations, stock, assets,
goods or services, or to supply or loan or any portion
thereof any funds, assets, goods or services, or
otherwise) with respect to the obligation of any other
person or entity, except: (i) by the endorsement of
negotiable instruments for deposit or collection in the
ordinary course of business, issuance of letters of
credit or similar instruments or documents in the
ordinary course of business; (ii) the Capital Securities
Guarantee; and (iii) except as permitted by this
Agreement.
SECTION 5.5 INVESTMENTS AND LOANS. Neither Borrower nor any
Subsidiary shall make any loan, advance, extension of credit or capital
contribution to, or purchase or otherwise acquire for a consideration,
evidences of indebtedness, capital stock or other securities of any
legal entity, except that Borrower and any Subsidiary may:
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(a) purchase or otherwise acquire and own short-term
money market items (specifically including but not
limited to preferred stock mutual funds);
(b) invest, by way of purchase of securities or capital
contributions, in the Subsidiary Banks or any other bank
or banks, and upon Borrower's purchase or other
acquisition of twenty-five percent (25%) or more of the
stock of any bank, such bank shall thereupon become a
"Subsidiary Bank" for all purposes under this Agreement;
(c) invest, by way of loan, advance, extension of credit
(whether in the form of lease, conditional sales
agreement, or otherwise), purchase of securities, capital
contributions, or otherwise, in Subsidiaries other than
banks or Subsidiary Banks; and
(d) make any investment permitted by applicable
governmental laws and regulations.
Nothing in this Section 5.5 shall prohibit the Borrower or any
Subsidiary Bank from making loans, advances, or other extensions of
credit in the ordinary course of banking upon substantially the same
terms as heretofore extended by them in such business or upon such terms
as may at the time be customary in the banking business.
SECTION 5.6 CAPITAL STRUCTURE. Borrower shall continue to own,
directly or indirectly, the same (or greater) percentage of the stock
and partnership, joint venture, or other equity interest in each
Subsidiary that it held on the date of this Agreement, and no Subsidiary
shall issue any additional stock or partnership, joint venture or other
equity interests, options or warrants in respect thereof, or securities
convertible into such securities or interests, other than to Borrower.
SECTION 5.7 MAINTENANCE OF PROPERTIES. Borrower and any
Subsidiary shall maintain, or cause to be maintained, in good repair,
working order and condition, all their properties (whether owned or held
under lease), and from time to time make or cause to be made all needed
and appropriate repairs, renewals, replacements, additions, and
improvements thereto, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
SECTION 5.8 INSURANCE. Borrower and any Subsidiary shall maintain
insurance in responsible companies in such amounts and against such
risks as is required by law and such other insurance, in such amount and
against such hazards and liabilities, as is customarily maintained by
bank holding companies and banks similarly situated. Each Subsidiary
Bank shall have deposits insured by the FDIC.
SECTION 5.9 USE OF PROCEEDS.
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(a) General. Borrower and any Subsidiary shall not use
or permit any proceeds of the Loans to be used, either
directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of "purchasing or
carrying any margin stock" within the meaning of
Regulations U or X of the Board of Governors of the
Federal Reserve System, as amended from time to time. If
requested by Lender, Borrower and any Subsidiary will
furnish to Lender a statement in conformity with the
requirements of Federal Reserve Form U-1. No part of the
proceeds of the Loans will be used for any purpose which
violates or is inconsistent with the provisions of
Regulation U or X of the Board of Governors.
(b) Tender Offers and Going Private. Neither Borrower
nor any Subsidiary shall use (or permit to be used) any
proceeds of the Loans to acquire any security in any
transaction which is subject to Section 13 or 14 of the
Securities Exchange Act of 1934, as amended, or any
regulations or rulings thereunder.
SECTION 5.10 COMPLIANCE WITH LAW. The Borrower and each
Subsidiary shall be in material compliance with all laws and regulations
(whether federal, state or local and whether statutory, administrative,
judicial or otherwise) and with every lawful governmental order or
similar actions (whether administrative or judicial), specifically
including but not limited to all requirements of the Bank Holding
Company Act of 1956, as amended, and with the existing regulations of
the Board of Governors of the Federal Reserve System relating to bank
holding companies.
SECTION 5.11 CAPITAL SECURITIES OBLIGATIONS. The Borrower shall
not, and shall not permit any Subsidiary to, (a) purchase, accelerate
the maturity date of, prepay or defease any of the Capital Securities
Indebtedness or the Capital Securities or (b) supplement, modify or
amend any term or provision of the Capital Securities Issuer's
Certificate of Trust, the Indenture, the Capital Securities Guarantee,
or any other agreement, document or instrument creating or evidencing
the Capital Securities Indebtedness, the Capital Securities Guarantee or
the Capital Securities. The Borrower shall continue to own all of the
Common Securities of the Capital Securities Issuer while the Capital
Securities, the Capital Securities Guarantee or the Capital Securities
Indebtedness are outstanding. The Borrower shall provide prompt notice
to the Lender of (a) any change in the Trustee under the Indenture and
(b) any change in the address for notice to such Trustee thereunder.
SECTION 6 CONDITIONS OF LENDING
SECTION 6.l DOCUMENTATION; NO DEFAULT. The obligation of Lender
to make any Loan is subject to the following conditions precedent:
(a) Initial Documentation. Lender shall have received
all of the following promptly upon the execution and
delivery hereof, each duly executed and dated the date
hereof, in form and substance satisfactory to Lender and
its counsel, at
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the expense of Borrower, and in such number of signed
counterparts as Lender may request (except for the Note, of
which only the original shall be signed):
(i) Note. The Note in the form of Exhibit A, with
appropriate insertions;
(ii) Resolution; Certificate of Incumbency. A copy
of a resolution of the Board of Directors of
Borrower authorizing or ratifying the execution,
delivery and performance, respectively, of this
Agreement, the Note and the other documents provided
for in this Agreement, certified by an appropriate
officer of Borrower, together with a certificate of
an appropriate officer of Borrower, certifying the
names of the officer(s) of Borrower authorized to
sign this Agreement, the Note and the other
documents provided for in this Agreement, together
with a sample of the true signature of each such
person (Lender may conclusively rely on such
certificate until formally advised by a like
certificate of any changes therein);
(iii) Governing Documents. A copy of the articles
of incorporation and by-laws of Borrower, certified
by an appropriate officer of Borrower;
(iv) Certificate of No Default. A certificate
signed by an appropriate officer of Borrower to the
effect that: (A) no Event of Default or Unmatured
Event of Default has occurred and is continuing or
will result from the making of the first Loan; and
(B) the representations and warranties of Borrower
contained herein are true and correct as at the date
of the first Loan as though made on that date;
(v) Opinion of Counsel to Borrower. An opinion of
counsel to Borrower to such effect as Lender may
require; and
(vi) Miscellaneous. Such other documents and
certificates as Lender may reasonably request.
(b) Representations and Warranties True. At the date of
each Loan, Borrower's representations and warranties set
forth herein shall be true and correct as of such date as
though made on such date.
(c) No Default. At the time of each Loan, and
immediately after giving effect to such Loan, no Event of
Default or Unmatured Event of Default shall have occurred
and be continuing at the time of such Loan, or would
result from the making of such Loan.
SECTION 6.2 AUTOMATIC UPDATE OF REPRESENTATIONS AND WARRANTIES AND
NO-DEFAULT CERTIFICATE; CERTIFICATE AT LENDER'S OPTION. The request by
Borrower for any Loan shall be deemed a
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representation and warranty by Borrower that the statements in
subsections (b) and (c) of Section 6.l are true and correct on and as at
the date of each succeeding Loan, as the case may be. Upon receipt of
each Loan request Lender in its sole discretion shall have the right to
request that Borrower provide to Lender, prior to Lender's funding of
the Loan, a certificate executed by Borrower's President, Treasurer, or
Chief Financial Officer to such effect.
SECTION 7 DEFAULT
SECTION 7.1 EVENTS OF DEFAULT. The occurrence of any of the
following shall constitute an "Event of Default":
(a) failure to pay, when and as due, any principal,
interest or other amounts payable hereunder; or
(b) any default, event of default, or similar event shall
occur or continue under any other instrument, document,
note, agreement, or guaranty delivered to Lender in
connection with this Agreement, or any such instrument,
document, note, agreement, or guaranty shall not be, or
shall cease to be, enforceable in accordance with its
terms; or
(c) there shall occur any default or event of default, or
any event or condition that might become such with notice
or the passage of time or both, or any similar event, or
any event that requires the prepayment of borrowed money
or the acceleration of the maturity thereof, under the
terms of any evidence of indebtedness or other agreement
issued or assumed or entered into by Borrower, any
Subsidiary or any Guarantor, or under the terms of any
indenture, agreement, or instrument under which any such
evidence of indebtedness or other agreement is issued,
assumed, secured, or guaranteed, and such event shall
continue beyond any applicable period of grace; or
(d) any representation, warranty, schedule, certificate,
financial statement, report, notice, or other writing
furnished by or on behalf of Borrower, any Subsidiary or
any Guarantor to Lender is false or misleading in any
material respect on the date as of which the facts
therein set forth are stated or certified; or
(e) Borrower or any Subsidiary shall fail to comply with
Section 5.2(f) hereof; or failure to comply with or
perform any agreement or covenant of Borrower contained
herein, which failure does not otherwise constitute an
Event of Default, and such failure shall continue
unremedied for thirty (30) days after notice thereof to
Borrower by Lender; or
(f) Any Guarantor shall dissolve, liquidate, merge,
consolidate, or cease to be in existence for any reason;
or
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(g) any proceeding (judicial or administrative) shall be
commenced against Borrower, any Subsidiary or any
Guarantor, or with respect to any assets of Borrower, any
Subsidiary or any Guarantor which shall reasonably
threaten to have a material and adverse effect on the
assets, condition or prospects of Borrower, any
Subsidiary or any Guarantor; or final judgment(s) and/or
settlement(s) in an aggregate amount in excess of
$1,000,000 in excess of insurance for which the insurer
has confirmed coverage in writing, a copy of which
writing has been furnished to Lender, shall be entered or
agreed to in any suit or action commenced against
Borrower, any Subsidiary or any Guarantor; or
(h) the FDIC or other regulatory entity shall issue or
agree to enter into a letter agreement, memorandum of
understanding, or a cease and desist order with or
against the Borrower or any Subsidiary; or the FDIC or
other regulatory entity shall issue or enter into an
agreement, order, or take any similar action with or
against the Borrower or any Subsidiary materially adverse
to the business or operation of the Borrower or any
Subsidiary; or
(i) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, liquidation, dissolution, or
similar proceeding, domestic or foreign, is instituted
by or against Borrower, any Subsidiary or any Guarantor;
or Borrower, any Subsidiary or any Guarantor shall take
any steps toward, or to authorize, such a proceeding; or
(j) Borrower, any Subsidiary or any Guarantor shall
become insolvent, generally shall fail or be unable to
pay its debts as they mature, shall admit in writing its
inability to pay its debts as they mature, shall make a
general assignment for the benefit of its creditors,
shall enter into any composition or similar agreement, or
shall suspend the transaction of all or a substantial
portion of its usual business.
SECTION 7.2 DEFAULT REMEDIES.
(a) Upon the occurrence and during the continuance of any
Event of Default specified in Section 7.l (a)-(h), Lender
at its option may declare the Note (principal, interest
and other amounts) and any other amounts owed to the
Lender, including without limitation any accrued but
unpaid Commitment Fee, immediately due and payable
without prior notice or demand of any kind. Upon the
occurrence of any Event of Default specified in Section
7.l (i)-(j), the Note (principal, interest and other
amounts) and any other amounts owed to the Lender,
including without limitation any accrued but unpaid
Commitment Fee, shall be immediately and automatically
due and payable without action of any kind on the part of
Lender. Upon the occurrence and during the continuance
of any Event of Default, any obligation of Lender to make
any Loan shall immediately and
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automatically terminate without action of any kind on the part
of Lender, and Lender may exercise any rights and remedies
under this Agreement, the Note, any related document or
instrument (including without limitation any pertaining to
collateral), and at law or in equity.
(b) Lender may, by written notice to Borrower, at any
time and from time to time, waive any Event of Default or
Unmatured Event of Default, which shall be for such
period and subject to such conditions as shall be
specified in any such notice. In the case of any such
waiver, Lender and Borrower shall be restored to their
former position and rights hereunder, and any Event of
Default or Unmatured Event of Default so waived shall be
deemed to be cured and not continuing; but no such waiver
shall extend to or impair any subsequent or other Event
of Default or Unmatured Event of Default. No failure to
exercise, and no delay in exercising, on the part of
Lender of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The
rights and remedies of Lender herein provided are
cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8 DEFINITIONS
SECTION 8.1 GENERAL. As used herein:
(a) The term "Banking Day" means a day on which Lender
is open at its main office for the purpose of conducting
a commercial banking business and is not authorized to
close.
(b) The term "Capital Securities" shall mean capital
securities issued by the Capital Securities Issuer (i)
which do not exceed $25,000,000 in aggregate principal
amount, (ii) which are subject to mandatory redemption
not earlier than the date 30 years after issuance, and
(iii) which may not be optionally redeemed earlier than
10 years after issuance (except upon the occurrence of
specific conditions provided for in connection therewith.
(c) The term "Capital Securities Guarantee" shall mean,
collectively, the Series A Capital Securities Guarantee
Agreement dated February 11, 1997 relating to the Series
A Capital Securities between the Borrower and The Chase
Manhattan Bank, as Guarantee Trustee and the Common
Securities Guarantee Agreement dated February 11, 1997
relating to the Common Securities.
(d) The term "Capital Securities Indebtedness" shall
mean Series A Junior Subordinated Debentures and the
Series B Junior Subordinated Debentures issued as a
separate series under the Indenture, payable to the
Capital Securities Issuer.
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(e) The term "Capital Securities Issuer" shall mean
First Western Capital Trust I, a trust formed under the
laws of the State of Delaware.
(f) The term "Commitment" means: (i) $25,000,000.00 from
the date hereof through but not after June 30, 2000; (ii)
$21,666,666.00 from July 1, 2000 through but not after
June 30, 2001; (iii) $18,333,333.00 from July 1, 2001
through but not after June 30, 2002; and (iv)
$15,000,000.00 from July 1, 2002 and thereafter.
(g) The term "Common Securities" shall mean the common
securities of the Capital Securities Issuer referred to
in the Indenture.
(h) The term "FDIC" means the Federal Deposit Insurance
Corporation and any successor thereof.
(i) The term "Federal Funds Margin" means for any day a
rate equal to: (i) 1% for those days when the Borrower
has a Level I Status (as defined below); (ii) 1.125% for
those days when the Borrower has a Level II Status (as
defined below); or (iii) 1.25% for those days when the
Borrower has a Level III Status (as defined below).
(j) The term "Guarantor" means any person or entity, or
any persons or entities severally, now or hereafter
guarantying payment or collection of all or any part of
the Loans or any other liabilities owed by Borrower to
Lender.
(k) The term "Indenture" means the Indenture dated as of
February 11, 1997, as amended and supplemented from time
to time, between the Borrower and The Chase Manhattan
Bank, as trustee.
(l) The term "Interest Period" means, with regard to
Bank Offered Rate Loans, the amount of days from the date
an interest rate is to be in effect to the date such
interest period matures according to its terms.
(m) The term "Interim Maturity Date" means the last day
of any Interest Period.
(n) The term "Level I Status" exists at any date if, at
such date: (i) the Borrower's Leverage Ratio is greater
than 7%; (ii) the Borrower's Tier 1 Capital Ratio is
greater than 8%; and (iii) the Borrower's Total Capital
Ratio is greater than 12%.
(o) The term "Level II Status" exists at any date if, at
such date a Level I Status does not exist and: (i) the
Borrower's Leverage Ratio is greater than 5%; (ii) the
Borrower's Tier 1 Capital Ratio is greater than 6%; and
(iii) the Borrower's Total Capital Ratio is greater than
10%.
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(p) The term "Level III Status" exists at any date if,
at such date a Level I Status and Level II Status does
not exist.
(q) The term "Leverage Ratio" means a ratio of Tier 1
Capital to average quarterly assets less all non-
qualified intangible assets of such entity.
(r) The term "Net Chargeoffs" shall mean for any given
fiscal year the consolidated total of gross loan
chargeoffs for such fiscal year net of recoveries made
during such fiscal year.
(s) The term "Prime Rate" means that rate of interest
announced from time to time by Lender called its prime
rate, which rate may not at any time be the lowest rate
charged by Lender. Changes in the rate of interest on
the Loans resulting from a change in the Prime Rate shall
take effect on the date set forth in each announcement of
a change in the Prime Rate.
(t) The term "Prime Rate Margin" means for any day a
rate equal to: (i) 1% for those days when the Borrower
has a Level I Status (as defined below); (ii) 0.75% for
those days when the Borrower has a Level II Status (as
defined below); or (iii) 0.5% for those days when the
Borrower has a Level III Status (as defined below).
(u) The term "Risk-Weighted Assets" means the same as
that determined under the capital formula currently used
by the Federal Reserve Board.
(v) The term "Subsidiary" means any corporation,
partnership, joint venture, trust, or other legal entity
of which Borrower owns directly or indirectly twenty-five
percent (25%) or more of the outstanding voting stock or
interest, or of which Borrower has effective control, by
contract or otherwise (including, without limitation, the
Capital Securities Issuer). The term Subsidiary includes
each Subsidiary Bank unless stated otherwise explicitly.
(w) The term "Subsidiary Bank" means each Subsidiary
which is a bank.
(x) The term "Tangible Net Worth" means at any date the
total shareholders' equity (including all classes of
capital stock, capital surplus, additional paid-in
capital, retained earnings, contingencies, and capital
reserves plus the amount of the Capital Securities to the
extent treated as Tier 1 Capital of the Borrower), minus
the cost of common stock reacquired by the Borrower and
other capital accounts of the Borrower at such date,
minus goodwill, patents, trademarks, service marks, trade
names, copyrights, and all intangible assets (including
without limitation "core-deposit intangibles" and
unidentifiable intangibles resulting from acquisitions)
and all items that are treated as intangible assets
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under generally accepted accounting principles or that
otherwise fit within the definition of "intangible assets" in
the instructions for the call report of the FDIC.
(y) The term "Tangible Net Worth Amount" means (a) the
Tangible Net Worth Amount calculated and applied for
purposes of Section 5.3(a) of this Agreement to the
Borrower's four fiscal quarters ending on the last day of
each June, September, December and March immediately
preceding each Tangible Net Worth Calculation Date plus
(b) 50% of the amount (if positive) of the after tax net
earnings of the Borrower for the Borrower's four fiscal
quarters ending on the last day of each June, September,
December and March immediately preceding each Tangible
Net Worth Calculation Date.
(z) The term "Tangible Net Worth Calculation Date" means
the last day of each June of each year.
(aa) The term "Termination Date" means June 30, 2003, or
such earlier date on which the Commitment is terminated
pursuant to Section 7.2 hereinabove.
(bb) The term "Tier 1 Capital" means the same as that
determined under the capital formula currently used by
the Federal Reserve Board.
(cc) The term "Tier 1 Capital Ratio" means a ratio of
Tier 1 Capital to Risk-Weighted Assets of such entity.
(dd) The term "Total Capital" means the same as that
determined under the capital formula currently used by
the Federal Reserve Board.
(ee) The term "Total Capital Ratio" means a ratio of
Total Capital to Risk-Weighted Assets of such entity.
(ff) The term "Trust Agreement" means the Declaration of
Trust dated February 4, 1997, as amended by the Amended
and Restated Declaration of Trust dated February 11, 1997
relating to the Trust among the Borrower, as Sponsor, The
Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, and the
Administrative Trustees named therein.
(gg) The term "Unmatured Event of Default" means an
event or condition which would become an Event of Default
with notice or the passage of time or both.
(hh) The term "Year 2000 Compliant" means that all of such
person(s) computer systems and applications, including without
limitation software and hardware ("Systems"), will function
prior to, during, and after the calendar year 2000, and that
no change in or to such calendar year will have a material
effect on the performance of the Systems or on the functioning
of such person's business.
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(ii) Except as and unless otherwise specifically
provided herein, all accounting terms shall have the
meanings given to them by generally accepted accounting
principles and shall be applied and all reports required
by this Agreement shall be prepared, in a manner
consistent with the financial statements referred to
above.
SECTION 8.2 APPLICABILITY OF SUBSIDIARY REFERENCES. Terms hereof
pertaining to any Subsidiary shall apply only during such times as
Borrower has any Subsidiary.
SECTION 9 NO INTEREST OVER LEGAL RATE.
Borrower does not intend or expect to pay, nor does Lender intend
or expect to charge, accept or collect any interest which, when added to
any fee or other charge upon the principal which may legally be treated
as interest, shall be in excess of the highest lawful rate. If
acceleration, prepayment or any other charges upon the principal or any
portion thereof, or any other circumstance, result in the computation or
earning of interest in excess of the highest lawful rate, then any and
all such excess is hereby waived and shall be applied against the
remaining principal balance. Without limiting the generality of the
foregoing, and notwithstanding anything to the contrary contained herein
or otherwise, no deposit of funds shall be required in connection
herewith which will, when deducted from the principal amount outstanding
hereunder, cause the rate of interest hereunder to exceed the highest
lawful rate.
SECTION l0 PAYMENTS, ETC.
All payments hereunder shall be made in immediately available
funds, and shall be applied first to accrued interest and then to
principal; however, if an Event of Default occurs, Lender may, in its
sole discretion, and in such order as it may choose, apply any payment
to interest, principal and/or lawful charges and expenses then accrued.
Borrower shall receive immediate credit on payments received during
Lender's normal banking hours if made in cash, immediately available
funds, or by debit to available balances in an account at Lender;
otherwise payments shall be credited after clearance through normal
banking channels. Borrower authorizes Lender to charge any account of
Borrower maintained with Lender for any amounts of principal, interest,
taxes, duties, or other charges or amounts due or payable hereunder,
with the amount of such payment subject to availability of collected
balances in Lender's discretion; unless Borrower instructs otherwise,
all Loans shall be credited to an account(s) of Borrower with Lender.
LENDER AT ITS OPTION MAY MAKE LOANS HEREUNDER UPON TELEPHONIC
INSTRUCTIONS AND IN SO DOING SHALL BE FULLY ENTITLED TO RELY SOLELY UPON
INSTRUCTIONS, INCLUDING INSTRUCTIONS TO MAKE TRANSFERS TO THIRD PARTIES,
REASONABLY BELIEVED BY LENDER TO HAVE BEEN GIVEN BY AN AUTHORIZED
PERSON, WITHOUT INDEPENDENT INQUIRY OF ANY TYPE. All payments shall be
made without
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deduction for or on account of any present or future taxes, duties or
other charges levied or imposed on this Agreement, the Note, the Loans
or the proceeds, Lender or Borrower by any government or political
subdivision thereof. Borrower shall upon request of Lender pay all such
taxes, duties or other charges in addition to principal and interest,
including without limitation all documentary stamp and intangible taxes,
but excluding income taxes based solely on Lender's income.
SECTION ll SETOFF.
At any time and without notice of any kind, any account, deposit or
other indebtedness owing by Lender to Borrower, and any securities or
other property of Borrower delivered to or left in the possession of
Lender or its nominee or bailee, may be set off against and applied in
payment of any obligation hereunder, whether due or not.
SECTION 12 NOTICES
All notices, requests and demands to or upon the respective parties
hereto shall be deemed to have been given or made when deposited in the
mail, postage prepaid, addressed if to Lender to its office indicated
above (Attention: Division Head, Correspondent Services Division), and
if to Borrower to its address set forth below, or to such other address
as may be hereafter designated in writing by the respective parties
hereto or, as to Borrower, may appear in Lender's records.
SECTION l3 MISCELLANEOUS.
This Agreement and any document or instrument executed in
connection herewith shall be governed by and construed in accordance
with the internal law of the State of Illinois, and shall be deemed to
have been executed in the State of Illinois. Unless the context
requires otherwise, wherever used herein the singular shall include the
plural and vice versa, and the use of one gender shall also denote the
other. Captions herein are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof; references
herein to Sections or provisions without reference to the document in
which they are contained are references to this Agreement. This
Agreement shall bind Borrower successors and assigns, and shall inure to
the benefit of Lender, its successors and assigns, except that Borrower
may not transfer or assign any of its rights or interest hereunder
without the prior written consent of Lender. Borrower agrees to pay
upon demand all reasonable expenses (including without limitation
attorneys' fees, legal costs and expenses, and time charges of attorneys
who may be employees of Lender, in each case whether in or out of court,
in original or appellate proceedings or in bankruptcy) incurred or paid
by Lender or any holder hereof in connection with the enforcement or
preservation of its rights hereunder or under any document or instrument
executed in connection herewith. Except as otherwise specifically
provided herein, Borrower expressly and irrevocably waives presentment,
protest, demand and notice of any kind in connection herewith. Lender
may, by written notice to Borrower, at any time
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and from time to time, waive any Event of Default or Unmatured Event of
Default, which shall be for such period and subject to such conditions
as shall be specified in any such notice. In the case of any such
waiver, Lender and Borrower shall be restored to their former position
and rights hereunder and under the Note, respectively, and any Event of
Default or Unmatured Event of Default so waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to or impair
any subsequent or other Event of Default or Unmatured Event of Default.
No failure to exercise, and no delay in exercising, on the part of
Lender of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right,
power or privilege. The rights and remedies of Lender herein provided
are cumulative and not exclusive of any rights or remedies provided by
law.
SECTION 14 WAIVER OF JURY TRIAL, ETC.
BORROWER HEREBY IRREVOCABLY AGREES THAT, SUBJECT TO LENDER'S SOLE
AND ABSOLUTE ELECTION, ALL SUITS, ACTIONS OR OTHER PROCEEDINGS WITH
RESPECT TO, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
DOCUMENT OR INSTRUMENT EXECUTED IN CONNECTION HEREWITH SHALL BE SUBJECT
TO LITIGATION IN COURTS HAVING SITUS WITHIN OR JURISDICTION OVER ▇▇▇▇
COUNTY, ILLINOIS. BORROWER HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED IN OR HAVING
JURISDICTION OVER SUCH COUNTY, AND HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE TO REQUEST OR DEMAND TRIAL BY JURY, TO TRANSFER OR CHANGE
THE VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY LENDER IN
ACCORDANCE WITH THIS PARAGRAPH, OR TO CLAIM THAT ANY SUCH PROCEEDING HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be duly executed and delivered by their
respective duly authorized officer as of the day and year
first above written.
FIRST WESTERN BANCORP, INC.
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: Executive Vice President,
Chief Financial Officer,
Secretary and Treasurer
Address for notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
THE NORTHERN TRUST COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
------------------
Title: Vice President
27
REVOLVING CREDIT NOTE
(Bank Holding Company)
Chicago, Illinois
June 26, 1998
FOR VALUE RECEIVED, on or before the Termination Date (as
defined in the Agreement), FIRST WESTERN BANCORP, INC., a
corporation formed under the laws of the State of Pennsylvania
("Borrower"), promises to pay to the order of THE NORTHERN
TRUST COMPANY, an Illinois banking corporation (hereafter,
together with any subsequent holder hereof, called "Lender"),
at its main banking office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as Lender may
direct, the aggregate unpaid principal balance of each advance
(a "Loan" and collectively the "Loans") made by Lender to
Borrower hereunder. The total principal amount of Loans
outstanding at any one time hereunder shall not exceed the
Commitment (as defined in the Agreement).
Lender is hereby authorized by Borrower at any time and
from time to time at Lender's sole option to attach a schedule
(grid) to this Note and to endorse thereon notations with
respect to each Loan specifying the date and principal amount
thereof, and the date and amount of each payment of principal
and interest made by Borrower with respect to each such Loan.
Lender's endorsements as well as its records relating to Loans
shall be rebuttably presumptive evidence of the outstanding
principal and interest on the Loans, and, in the event of
inconsistency, shall prevail over any records of Borrower and
any written confirmations of Loans given by Borrower.
Borrower agrees to pay interest on the unpaid principal
amount from time to time outstanding hereunder at on the dates
and at the rate or rates as set forth in the Agreement (as
hereinafter defined).
Payments of both principal and interest are to be made in
immediately available funds in lawful money of the United
States of America.
This Note evidences indebtedness incurred under a
Revolving Credit Agreement dated as of the date hereof
executed by and between the Borrower and Lender (and, if
amended, restated or replaced, all amendments, restatements
and replacements thereto or therefor, if any)(the
"Agreement"), to which Agreement reference is hereby made for
a statement of its terms and provisions, including without
limitation those under which this Note may be paid prior to
its due date, be subject to a mandatory prepayment or have its
due date accelerated.
This Note and any document or instrument executed in
connection herewith shall be governed by and construed in
accordance with the internal law of the State of Illinois, and
shall be deemed to have been executed in the State of
Illinois. Unless the
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context requires otherwise, wherever used herein the singular
shall include the plural and vice versa, and the use of one
gender shall also denote the other. Captions herein are for
convenience of reference only and shall not define or limit
any of the terms or provisions hereof; references herein to
Sections or provisions without reference to the document in
which they are contained are references to this Note. This
Note shall bind Borrower successors and assigns, and shall
inure to the benefit of Lender, its successors and assigns,
except that Borrower may not transfer or assign any of its
rights or interest hereunder without the prior written consent
of Lender. Borrower agrees to pay upon demand all reasonable
expenses (including without limitation attorneys' fees, legal
costs and expenses, and time charges of attorneys who may be
employees of Lender, in each case whether in or out of court,
in original or appellate proceedings or in bankruptcy)
incurred or paid by Lender or any holder hereof in connection
with the enforcement or preservation of its rights hereunder
or under any document or instrument executed in connection
herewith. Borrower expressly and irrevocably waives
presentment, protest, demand and notice of any kind in
connection herewith.
FIRST WESTERN BANCORP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------
Title: Executive Vice President