any part of
the indebtedness evidenced hereby, if any) are expressly limited so that in no
event whatsoever shall the amount paid or agreed to be paid to Lender exceed the
highest lawful rate of interest permissible under applicable law.
If, from any
circumstances whatsoever, fulfillment of any provision hereof, the Loan
Agreement or any other documents securing all or any part of the indebtedness
evidenced hereby at the time performance of such provisions shall be due, shall
involve exceeding the limit of validity prescribed by law which a court of
competent jurisdiction may deem applicable hereto, then, ipso facto, the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under such applicable laws, and if, for any reason
whatsoever, Lender shall
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ever receive as interest an amount which would be deemed unlawful under such
applicable law, such interest shall be automatically applied to the payment of
the principal of this Note (whether or not then due and payable) and not to the
payment of interest, or refunded to Borrower if such principal has been paid in
full.
Any notice which either party hereto may be required or may desire to give
hereunder shall be governed by the notice provisions of the Loan Agreement.
[Remainder of Page Intentionally Left Blank]
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EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT THAT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS NOTE
OR ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF
BORROWER OR LENDER.
BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER
WITH SUCH LEGAL COUNSEL.
BORROWER FURTHER ACKNOWLEDGES THAT (a) IT HAS READ AND
UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (b) THIS WAIVER HAS
BEEN REVIEWED BY BORROWER AND BORROWER'S COUNSEL AND IS A MATERIAL INDUCEMENT
FOR LENDER TO ENTER INTO THE TRANSACTION DOCUMENTS, (c) THIS WAIVER SHALL BE
EFFECTIVE AS TO EACH OF THE TRANSACTION DOCUMENTS AS IF FULLY INCORPORATED
THEREIN AND (d) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
IN WITNESS WHEREOF, the undersigned has executed this Note or caused this Note
to be executed by its duly authorized representative as of the date first above
written.
FIRST MIDWEST BANCORP, INC.
By:
Name:
Title:
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EXHIBIT C
FORM OF OPINION OF BORROWER'S COUNSEL
[AS DELIVERED BY BORROWER'S COUNSEL]
C-1
EXHIBIT D
FORM OF QUARTERLY COMPLIANCE CERTIFICATE
for the Quarter Ended
The undersigned, the
of First Midwest Bancorp, Inc.
("Borrower"), hereby delivers this certificate pursuant to Section 6.3 of that
certain Loan Agreement dated as of September