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EXHIBIT 10.25
Compass Bank
P.O. Box 10566
Birmingham, Alabama 35296
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into and effective as of August
28,
2003, by and among UNITED COMMUNITY BANKS,
INC., a Georgia corporation and a
bank holding company (the "Company"),
M&I MARSHALL & ILSLEY BANK, a Wisconsin
banking corporation ("M&I"), COMPASS
BANK, an Alabama banking corporation
("Compass") (M&I and Compass, each a
"Lender" and collectively the "Lenders"),
and M&I, in its capacity as agent for
and on behalf of the Lenders (the
"Agent").
RECITALS
The Company has requested that the Lenders extend to it a credit in
the
aggregate not to exceed $45,000,000 in the
form of Revolving Loans and Term
Loans. The Lenders and the Agent have
agreed to extend credit to the Company
upon all of the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the
mutual agreements contained herein, the
receipt and sufficiency of all such
consideration being hereby acknowledged,
the parties agree as follows:
AGREEMENT
SECTION 1 DEFINITIONS AND TERMS
1.1
Definitions. As used in this Agreement, the following terms
have the following meanings:
"Affiliate" shall mean any (a) director, officer or employee
of the Person, or (b) Person directly or
indirectly controlling or controlled
by, or under direct or indirect common
control with, another Person. A Person
shall be deemed to control another Person
if the controlling Person directly or
indirectly, either individually or together
with (in the case of an individual)
his spouse, lineal descendants and
ascendants and brothers or sisters by blood
or adoption or spouses of such descendants,
ascendants, brothers and sisters,
owns five percent or more of any class of
voting securities of the controlled
Person or possesses, directly or
indirectly, the power to direct, or cause the
direction of, the management or policies of
the controlled Person, whether
through the ownership of voting securities,
through common directors, trustees
or officers, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as amended,
supplemented, modified or extended from
time to time.
"Average Assets" shall mean, as determined on a consolidated
basis for the Company and all Bank
Subsidiaries, the average daily Total Assets
for the most recently ended Fiscal
Year.
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"Bank Subsidiary" shall mean United Community Bank, a Georgia
banking corporation ("UCB Georgia"), United
Community Bank, a North Carolina
banking corporation, United Community Bank
Tennessee, a Tennessee bank, and any
Person which is now or hereafter an
"insured depository institution" within the
meaning of 12 U.S.C. Section 1831(c), as
amended, and which is now or hereafter
"controlled" by the Company within the
meaning of 12 U.S.C. Section 1841(a), as
amended.
"Banker's Bank" shall mean Banker's Bank of Georgia.
"Banker's Bank Loan" shall mean a loan in an aggregate
principal amount not to exceed
$40,000,000.00 pursuant to the terms of that
certain Loan Agreement dated as of June,
2003.
"Borrowing Date" shall mean a date on which Company has
requested the funding of Loans under this
Agreement, which date must be a
Business Day and may not be later than one
Business Day prior to the Termination
Date.
"Business Day" shall
mean a day other than a Saturday or
Sunday on which banks are open for business
in Milwaukee, Wisconsin; provided,
however, that for purposes of LIBOR Rate
Loans, the term "Business Day" shall
mean only those days on which dealings in
U.S. dollar deposits are carried out
by U.S. financial institutions in the
London Interbank Eurodollar Market.
"Capital" shall mean Tier 1 Capital plus the aggregate
allowances for loan losses maintained by
the Company and its Subsidiaries.
"Change in Control" shall mean (a) the acquisition by any
Person, or two or more Persons acting in
concert, of the beneficial ownership
(within the meaning of Rule 13d-3 of the
Securities and Exchange Commission
under the Securities Exchange Act of 1934)
of 20% or more of the outstanding
shares of voting ownership interests of the
Company; provided, however, that the
acquisition by any Person, or two or more
persons, of the beneficial ownership
of 20% or more of the outstanding shares of
the Company in connection with the
acquisition by the Company of any company
in which such Person or Persons are
shareholders shall not be a "Change in
Control", or (b) the lease, sale or
transfer or other disposition of all or
substantially all of the assets of the
Company or any Subsidiary in one or a
series of transactions to any Person, or
two or more Persons acting in concert.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor statute,
together with the regulations and published
interpretations thereunder, in each case as
in effect from time to time.
"Collateral" shall mean all of the Company's and each
Subsidiary's Property granted to the Agent
as collateral under the Related
Documents.
"Default" shall mean an Event of Default or an event which
with the giving of notice or the passage of
time or both would constitute an
Event of Default.
"Delinquent Lender" shall mean any Lender that fails to make
available to the Agent its Pro Rata share
of any Loans as, when and to the full
extent required by the
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provisions of this Agreement, and such
Lender shall be deemed a Delinquent
Lender until such time as such delinquency
is satisfied.
"EDGAR" shall mean the Electronic Data Gathering, Analysis and
Retrieval system of the United States
Securities and Exchange Commissions.
"Employee Plan" shall mean any savings, profit sharing, or
retirement plan or any deferred
compensation contract or other plan maintained
for employees of the Company or its
Subsidiaries and covered by Title IV of
ERISA, including, without limitation, any
"multiemployer plan" as defined in
ERISA.
"Environmental Law" shall mean any local, state or federal law
or other statute, law, ordinance, rule,
code, regulation, decree or order,
presently in effect or hereafter enacted,
promulgated or implemented governing,
regulating or imposing liability or
standards of conduct concerning the use,
treatment, generation, storage, disposal,
discharge or other handling or release
of any Hazardous Substance.
"Environmental Liability" shall mean all liability arising
under, resulting from or imposed by any
Environmental Law and all liability
imposed under common law with respect to
the use, treatment, generation,
storage, disposal, discharge or other
handling or release of any Hazardous
Substance.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor
statute, together with the regulations
and published interpretations thereunder,
in each case as in effect from time to
time.
"Event of Default" shall have the meaning assigned in Section
7.1.
"FDIC" shall mean the Federal Deposit Insurance Corporation
and any successor thereof.
"Fiscal Quarter" shall mean any of the quarterly accounting
periods of the Company, ending on the last
day of March, June, September and
December of each calendar year.
"Fiscal Year" shall mean any of the annual accounting periods
of the Company ending on December 31 of
each calendar year.
"Foreign Lender" shall mean a financial institution which is
organized under the laws of any
jurisdiction other than the United States or any
state thereof.
"GAAP" shall mean those generally accepted accounting
principles and practices which are
recognized as such by the American Institute
of Certified Public Accountants acting
through appropriate boards or committees
thereof and which are consistently applied
for all periods so as to properly
reflect the financial condition, results of
operations and cash flows of the
Company and its Subsidiaries.
"Government Authority" shall mean any nation or government,
any state or other political subdivision
thereof, and any entity exercising
executive, legislative, judicial,
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regulatory or administrative functions of
or pertaining to government, and any
corporation or other entity owned or
controlled through stock or capital
ownership or otherwise, by any of the
foregoing.
"Hazardous Substance" shall mean any pollutant, contaminant,
waste, or toxic or hazardous chemicals,
wastes or substances, including, without
limitation, asbestos, urea formaldehyde
insulation, petroleum, PCB's, air
pollutants, water pollutants, and other
substances defined as hazardous or toxic
in, or subject to regulation under, the
Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9061 et
seq., Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq.,
the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq., the
Toxic Substance Control Act of 1976, as
amended, 15 U.S.C. Section 2601 et seq.,
the Solid Waste Disposal Act, 42 U.S.C.
Section 3251 et seq., the Clean Air Act,
42 U.S.C. Section 1857 et seq., the Clean
Water Act, 33 U.S.C. Section 1251 et
seq., Emergency Planning and Community
Right to Know Act, 42 U.S.C. Section
11001, et seq., or any other statute, rule,
regulation or order of any
Government Authority having jurisdiction
over the control of such wastes or
substances, including without limitation
the United States Environmental
Protection Agency, the United States
Nuclear Regulatory Agency, and any
applicable state department or county
department of health or similar entity.
"Indebtedness" shall mean all (a) indebtedness for borrowed
money; (b) indebtedness for the deferred
purchase price of property or services
for which the Company or a Subsidiary is
liable, contingently or otherwise, as
obligor, guarantor or otherwise; (c)
commitments by which the Company or a
Subsidiary assures a creditor against loss,
including, without limitation,
contingent reimbursement obligations with
respect to letters of credit; (d)
obligations which are evidenced by notes,
acceptances or other instruments; (e)
indebtedness guaranteed in any manner by
the Company or a Subsidiary, including,
without limitation, guaranties in the form
of an agreement to repurchase or
reimburse; (f) obligations under leases
which are or should be, in accordance
with GAAP, recorded as capital leases for
which obligations the Company or a
Subsidiary is liable, contingently or
otherwise, as obligor, guarantor or
otherwise, or in respect of which
obligations the Company assures a creditor
against loss; (g) unfunded obligations of
the Company or a Subsidiary to any
Employee Plan; (h) liabilities secured by
any Lien on any Property owned by the
Company or any Subsidiary even though it
has not assumed or otherwise become
liable for the payment thereof; and (i)
other liabilities or obligations of the
Company and its Subsidiaries which would,
in accordance with GAAP, be included
on the liability portion of a balance
sheet.
"Intercreditor Agreement" shall mean the Intercreditor
Agreement between the Agent and Banker's
Bank.
"Internally Classified Loans" shall mean any loan classified
by any Bank Subsidiary as level 8, 9 or 10
pursuant to the current
classification standard for loans
established by the Company and applicable to
each Bank Subsidiary.
"Lender's Interest" shall have the meaning set forth in
Section 8.9 hereof.
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"LIBOR Index Rate" shall mean with respect to a LIBOR Loan,
the interest rate per annum (stated as a
decimal) equal to the rate (rounded
upwards, if necessary, to the nearest 1/16
of 1%) quoted as the rate at which
dollar deposits in immediately available
funds are offered on the first day of
each calendar month in the interbank
Eurodollar market on or about 9:00 A.M.,
Milwaukee time, for a period of one (1)
calendar month. If the first day of any
calendar month is not a regular Business
Day, the LIBOR Rate shall be
established on the preceding Business Day.
The Agent currently uses Reuters to
provide information with respect to the
London Interbank Eurodollar market, but
the Agent may change the service providing
such information at any time. Each
such determination shall be conclusive and
binding upon the parties in the
absence of demonstrable error or bad
faith.
"LIBOR Loans" shall mean Revolving Loans or Term Loans to the
extent LIBOR Rate is the base rate of
interest for such Loans under this
Agreement.
"LIBOR Margin" shall mean, with respect to any Revolving Loan,
two percent (2.00%) per annum, and with
respect to the Term Loans, two and
fifteen-hundredths percent (2.15%) per
annum.
"LIBOR Rate" shall mean, for any LIBOR Loan, the quotient of
the LIBOR Index Rate divided by the
difference (expressed as a decimal) computed
by subtracting the LIBOR Reserve
Requirement from one.
"LIBOR Reserve Requirement" shall mean a percentage (expressed
as a decimal) equal to the aggregate
reserve requirements in effect on the first
day of each calendar month (including all
basic, supplemental, marginal and
other reserves and taking into account any
transitional adjustments or other
scheduled changes in reserve requirements
during each calendar month) specified
for "Eurocurrency Liabilities" under
Regulation D of the Board of Governors of
the Federal Reserve System, or any other
regulation of the Board of Governors
which prescribes reserve requirements
applicable to "Eurocurrency Liabilities"
as presently defined in Regulation D, as
then in effect, as applicable to the
class or classes of banks of which the Bank
is a member.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, collateral deposit arrangement,
encumbrance, lien (statutory or
other), deed of trust, charge, preference,
priority, security interest or other
security agreement or preferential
arrangement of any kind or nature whatsoever
including, without limitation, any
conditional sale or other title retention
agreement, any financing lease having
substantially the same economic effect as
any of the foregoing, and the filing of any
financing statement under the UCC or
comparable law of any jurisdiction.
"Loan Account" shall mean an account on the books of the Agent
in which the Agent will record, pursuant to
Section 2.4, Obligations of the
Company to the Lenders, payments made upon
such Obligations, and other advances,
debits and credits pertaining to the
Obligations or the Collateral.
"Loan Commitment(s)" shall mean the aggregate principal amount
of Loans to be made available hereunder by
each Lender in amounts not in excess
of the Revolving Loan Commitments
applicable to each Lender.
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"Loan Loss Reserves" shall mean, with respect to the Company
and each Bank Subsidiary, the loan loss
reserve as determined with respect to
each Bank Subsidiary and prepared in
accordance with GAAP.
"Material Adverse Effect" shall mean (a) a Default, (b) a
material adverse change in the business,
Property, operations, prospects or
condition (financial or otherwise) of the
Company and its Subsidiaries, (c) the
termination of any material agreement to
which the Company or any Subsidiary is
a party which would have a material affect
on the Company and its Subsidiaries,
taken as a whole, (d) any material
impairment of the right to carry on the
business as now or proposed to be conducted
by the Company or any Subsidiary,
which would have a material affect on the
Company and its Subsidiaries, taken as
a whole, or (e) any material impairment of
the ability of the Company and its
Subsidiaries, taken as a whole, to perform
the obligations under this Agreement
or the Related Documents. A Material
Adverse Effect shall be deemed to have
occurred if the cumulative effect of an
individual event and all other then
existing events would result in a Material
Adverse Effect.
"Maximum Available Commitment" shall mean an amount equal to
the excess (if any) of the Revolving Loan
Commitments minus (a) the outstanding
principal amount of all Revolving Loans
made by the Lenders and minus (b) the
outstanding principal balance of any Term
Loans.
"Memorandum of Understanding" shall mean any memorandum of
understanding between the Company or any
Bank Subsidiary and a Governmental
Authority that either (a) the Company
discloses to either the Securities and
Exchange Commission or to such bank's
liability bond issuer, or (b) the Agent
reasonably deems to be material.
"Net Chargeoffs" shall mean for any given time period, the
consolidated Total Gross Loan chargeoffs
for such time period, net of recoveries
made during such time period.
"Net Income" or "Net Loss" shall mean, for any period, the net
after-tax income (or net loss) of a Person
on a consolidated basis determined in
accordance with GAAP, excluding the
after-tax effect of the sum of (a) interest
in any net earnings of Persons in which a
Person has an ownership interest,
other than Subsidiaries, not actually
received, (b) gains arising from a
write-up of assets, (c) gains arising from
the acquisition of any securities of
the Person or any Subsidiary, (d) gains
resulting from the sale of any
investments or capital assets (other than
securities transactions of any Bank
Subsidiary in the ordinary course of
business, (e) amortization of any deferred
credit arising from the acquisition of any
Person or in the property or assets
of any Person, (f) earnings of any
Subsidiary prior to the date it became a
Subsidiary, and (g) earnings acquired by
the Person or any Subsidiary through
purchase, merger or consolidation or
otherwise for any period prior to the date
of acquisition, each as further determined
in accordance with GAAP.
"Nonperforming Loans" shall mean, at any time, the aggregate
principal amount (including any capitalized
interest) of (a) all nonaccruing
loans of any Bank Subsidiary and (b) all
loans of any Bank Subsidiary that are
90 days or more past due, and
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(c) all loans of any Bank Subsidiary that
are Restructured Loans, all
determined, with respect to each Bank
Subsidiary, in accordance with GAAP.
"Notes" shall mean the Revolving Credit Notes, the Term Notes,
and any note(s) or obligation(s) issued in
substitution, replacement or renewal
thereof.
"Obligations" shall mean the Revolving Loans, the Term Loans,
all mandatory prepayments, all costs and
expenses payable to the Lenders and the
Agent hereunder or under the Related
Documents, all liabilities of the Company
to the Lenders and the Agent, and their
respective Affiliates under this
Agreement and the Related Documents, and
all other Indebtedness of the Company
to the Lenders and their respective
Affiliates, whether or not evidenced by this
Agreement or the Related Documents,
including, without limitation, all
liabilities under Rate Management
Transactions related to the Revolving Loans or
Term Loans.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title
IV of ERISA.
"Permitted Liens" shall mean: (a) Liens for taxes,
assessments, or governmental charges,
carriers', warehousemen's, repairmen's,
mechanics', materialmen's and other like
Liens, which are either not delinquent
or are being contested in good faith by
appropriate proceedings which will
prevent foreclosure of such Liens, and
against which adequate cash reserves have
been provided; (b) easements, restrictions,
minor title irregularities and
similar matters which have no material
adverse effect upon the ownership and use
of the affected Property; (c) Liens or
deposits in connection with worker's
compensation, unemployment insurance,
social security or other insurance or to
secure customs duties, public or statutory
obligations in lieu of surety, stay
or appeal bonds, or to secure performance
of contracts or bids, other than
contracts for the payment of money
borrowed, or deposits required by law as a
condition to the transaction of business or
other Liens or deposits of a like
nature made in the ordinary course of
business; (d) Liens in favor of the Agent
pursuant to the Related Documents; (e)
Liens evidenced by conditional sales,
purchase money mortgages or other title
retention agreements on machinery and
equipment (acquired in the ordinary course
of business and otherwise permitted
to be acquired hereunder) which are created
at the time of the acquisition of
such property solely for the purposes of
securing the Indebtedness incurred to
finance the cost of such property, provided
no such Lien shall extend to any
property other than the property so
acquired and identifiable proceeds; (f)
Liens granted to the Federal Home Bank; (g)
Liens granted to Banker's Bank to
secure the Banker's Bank Loan in accordance
with the Intercreditor Agreement;
(h) government deposit security pledges;
and (i) liens and pledges made in
connection with repurchase agreements
entered into by any Bank Subsidiary.
"Person" shall mean an individual, partnership, corporation,
limited liability company or partnership,
firm, enterprise, business trust,
joint stock company, trust, unincorporated
association, joint venture,
Government Authority or other entity of
whatever nature.
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"Pledge Agreement" shall mean the Collateral Pledge Agreement
by and between the Company and the Agent,
as amended, supplemented, modified or
extended, from time to time, pledging at
least 51% of the stock of UCB Georgia.
"Prime Rate" shall mean the interest rate publicly announced
by the Agent from time to time in
Milwaukee, Wisconsin as its prime rate for
interest rate determinations, which is
solely a reference rate and may be at,
above or below the rate or rates at which
the Agent lends to other Persons. Any
change in the Prime Rate shall become
effective as of the opening of business on
the day on which such change is publicly
announced by the Agent.
"Pro Rata" shall mean ratably among the Lenders in proportion
to the ratio that their respective
Revolving Loan Commitments bear to the
aggregate Revolving Loan Commitments.
"Property" shall mean any interest of the Company and its
Subsidiaries of any kind in property or
assets, whether real, personal, mixed,
tangible or intangible, wherever located,
and whether now owned or subsequently
acquired or arising and in the products,
proceeds, additions and accessions
thereof or thereto.
"Rate Management Transaction" means any transaction (including
an agreement with respect thereto) now
existing or hereafter entered into
between the Company and any Lender or
Affiliate thereof which is a rate swap,
basis swap, forward rate transaction,
commodity swap, commodity option, equity
or equity index swap, equity or equity
index option, bond option, interest rate
option, foreign exchange transaction, cap
transaction, floor transaction, collar
transaction, forward transaction, currency
swap transaction, cross-currency rate
swap transaction, currency option or any
other similar transaction (including
any option with respect to any of these
transactions) or any combination
thereof, whether linked to one or more
interest rates, foreign currencies,
commodity prices, equity prices or other
financial measures.
"Regulatory Change" shall mean the adoption or amendment,
after the date of this Agreement, of any
national, federal or state law,
regulation, interpretation, direction,
policy, guideline or court decision
applicable to any Lender or the London
Interbank Eurodollar Market which makes
it unlawful for any Lender to make,
maintain or fund the Obligations based on
the LIBOR Rate, increases the cost to any
Lender of making or maintaining the
Obligations or reduces the rate of return
to such Lender (by reduction of
principal, interest or otherwise) on the
Obligations by subjecting such Lender
to any tax, duty or other imposition or
charge with respect to the Obligations,
imposing any reserve requirement (except
any reserve requirement reflected in
the LIBOR Rate), affecting the treatment of
any Obligation for purposes of
calculating the appropriate amount of
capital to be maintained by such Lender or
any Person controlling such Lender, or
otherwise imposing on such Lender any
other condition affecting the
Obligations.
"Related Documents" shall mean the Revolving Credit Notes, the
Term Notes, the Pledge Agreement, the
Intercreditor Agreement, and all other
instruments, agreements, certificates, and
other documents executed by or on
behalf of the Company, any Subsidiary or
any guarantor in connection with any of
the Obligations or the transactions
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contemplated under this Agreement, all as
amended, supplemented, modified or
extended from time to time.
"Required Lenders" shall mean Lenders whose aggregate Loan
Commitments outstanding total more than 66
2/3% of the aggregate then existing
Loan Commitments; provided, however, that
if there are two or fewer Lenders, the
term "Required Lenders" shall mean all the
Lenders.
"Requirements of Law" shall mean as to any matter or Person,
the Certificate or Articles of
Incorporation and Bylaws or other organizational
or governing documents of such Person, and
any law (including, without
limitation, any Environmental Law),
ordinance, treaty, rule, regulation, order,
decree, determination or other requirement
having the force of law relating to
such matter or Person and, where
applicable, any interpretation thereof by any
Government Authority.
"Restricted Payments" shall mean (a) dividends or other
distributions by the Company or any
Subsidiary based upon the stock of the
Company or any Subsidiary (except dividends
payable to the Company or any
Subsidiary by any Subsidiary and dividends
payable solely in stock of the
Company), (b) any other distribution by the
Company in respect of stock of the
Company, whether now or hereafter
outstanding, either directly or indirectly,
whether in cash or property or otherwise,
and (c) payment of management fees by
the Company or any Subsidiary to any
Affiliate, either directly or indirectly,
whether in cash or property or otherwise
(but excluding management fees paid by
the Company's Subsidiaries to the Company
in the ordinary course of business).
"Restructured Loans" shall mean, at any time, all loans
(exclusive of loans included in clause (a)
and (b) of the definition of
Nonperforming Loans) the terms of which
have been amended or modified and that
were formerly (a) nonaccruing or (b) 90
days or more past due, all determined,
with respect to each Bank Subsidiary,
prepared in accordance with GAAP.
"Return on Average Assets" shall mean the ratio of Net Income
to Average Assets, as determined on a
consolidated basis for the Company and the
Bank Subsidiaries and prepared in
accordance with GAAP, expressed as a
percentage.
"Revolving Credit Notes" shall mean the Revolving Credit Notes
dated of even date herewith issued by the
Company to the Lenders evidencing the
Revolving Loans, as amended, supplemented,
modified or extended from time to
time.
"Revolving Loan Commitments" shall mean the separate and
independent obligation of each Lender to
make loans to the Company in accordance
with the terms and conditions of this
Agreement in not more than the aggregate
principal amount of:
$35,000,000.00 as to M&I
$10,000,000.00 as to Compass.
"Revolving Loans" shall mean the loans to the Company pursuant
to Section 2.1 of this Agreement and
evidenced by the Revolving Credit Notes.
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"Subsidiary" shall mean as to any Person, a Bank Subsidiary, a
corporation, limited liability company,
partnership, association, joint venture
or other entity of which shares of stock,
membership interests or other voting
interests having voting power (other than
stock having such power only by reason
of the happening of a contingency that has
not occurred) sufficient to elect a
majority of the board of directors or other
managers of such entity are at the
time owned, or the management of which is
otherwise controlled, directly, or
indirectly through one or more
intermediaries, or both, by such Person.
"Term Loans" shall mean the loans to the Company pursuant to
Section 2.2 evidenced by the Term
Notes.
"Term Notes" shall mean the promissory notes of the Company to
the Lenders evidencing the Term Loans, each
as amended, supplemented, modified
or extended from time to time.
"Termination Date" shall mean, (a) as to the Revolving Loans,
August 27, 2004 and (b) as to the Term
Loans, five years from the date such Term
Loan is made by the Lenders, or, in each
case, such earlier date on which the
Obligations shall terminate as provided in
this Agreement.
"Tier 1 Capital" shall mean the Tier 1 capital determined in
accordance with Appendix A to Regulation Y
of the Board of Governors of the
Federal Reserve System as from time to time
in effect, and any successor or
other regulation or official interpretation
of said Board of Governors relating
thereto.
"Tier 2 Capital" shall mean the Tier 2 capital determined in
accordance with Appendix A to Regulation Y
of the Board of Governors of the
Federal Reserve System as from time to time
in effect, and any successor or
other regulation or official interpretation
of said Board of Governors relating
thereto.
"Total Assets" shall mean, with respect to any Person, the
total assets of such Person, as set forth
or reflected, or as should be set
forth or reflected, on the most recent
balance sheet of such Person, prepared in
accordance with GAAP.
"Total Gross Loans" shall mean, at any time, the aggregate
outstanding principal amount of all of the
loans of all Bank Subsidiaries, as
reported by the Company in accordance with
GAAP.
"Trust Preferred Indebtedness" shall mean any Indebtedness
issued by the Company or any Subsidiary
that qualifies as Tier 1 Capital or Tier
2 Capital.
"UCC" shall mean the Uniform Commercial Code as the same may,
from time to time, be in effect and
codified in the State of Wisconsin;
provided, however, in the event that, by
reason of mandatory provisions of law,
any or all of the attachment, perfection or
priority of Lender's security
interest in any Collateral is governed by
the Uniform Commercial Code as in
effect in a jurisdiction other than the
State of Wisconsin, the term "UCC" shall
mean the Uniform Commercial Code as in
effect in such other jurisdiction solely
for purposes of the provisions hereof
relating to such attachment, perfection or
priority and for purposes of definitions
related to such provisions.
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1.2 Accounting
and Financial Determinations.
(a) Where the
character or amount of any asset or
liability or item of income or expense is
required to be determined, or any
accounting computation is required to be
made, for the purpose of this
Agreement, such determination or
calculation shall be made on a consolidated
basis so as to include Company and each
Subsidiary in each such calculation and,
to the extent applicable and except as
otherwise specified in this Agreement,
shall be made in accordance with GAAP;
provided, however, that if any change in
GAAP from those applied in the preparation
of the financial statements referred
to in Section 5.3 is occasioned by the
promulgation of rules, regulations,
pronouncements and opinions by or required
by the American Institute of
Certified Public Accountants (or its boards
or committees or successors thereto
or agencies with similar functions), the
initial announcement of which change is
made after the date hereof, results in a
change in the method of calculation of
financial covenants, standards or terms
found in Section 6, the parties hereto
agree to enter into good faith negotiations
in order to amend such provisions so
as to reflect such changes with the desired
result that the criteria for
evaluating the Company's financial
condition shall be the same after such
changes as if such changes had not been
made; and provided, further, that until
such time as the parties hereto agree upon
such amendments, such financial
covenants, standards and terms shall be
construed and calculated as though no
change had taken place.
(b) All
regulatory determinations and calculations made
in connection with the determination of the
status of the Company and any Bank
Subsidiary as well capitalized under
Section 5.11 hereof, shall be made in
accordance with the laws, rules,
regulations and interpretations thereof by the
Government Authority charged with
interpretations thereof, as in effect on the
date of such determination or calculation,
as the case may be.
(c) When used
herein, the term "financial statement"
shall include balance sheets, statements of
earnings, statements of
stockholders' equity, statements of cash
flows and the notes and schedules
thereto, and each reference herein to a
balance sheet or other financial
statement of the Company shall be to a
statement prepared on a consolidated
basis, unless otherwise specified.
1.3
Interpretation. The words "hereof," "herein" and "hereunder"
and words of a similar import when used in
this Agreement shall refer to this
Agreement as a whole and not to any
particular provision of this Agreement.
Section, Schedule and Exhibit references
contained in this Agreement are
references to sections, schedules and
exhibits in or to this Agreement unless
otherwise specified. Any reference in any
Section or definition to any clause
is, unless otherwise specified, to such
clause of such Section or definition.
1.4 Other
Terms. Except as otherwise specifically provided, each
accounting term used herein shall have the
meaning given to it under GAAP, and
all other terms contained in this Agreement
(and which are not otherwise
specifically defined herein) shall have the
meanings provided in the UCC to the
extent the same are used or defined therein
unless the context otherwise
requires. Terms defined in other Sections
of this Agreement shall have the
meanings set forth therein.
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1.5
Incorporation of Recitals. The Recitals to this Agreement are
true, correct and incorporated herein by
reference.
SECTION 2 AMOUNTS AND
TERMS OF OBLIGATIONS
2.1 Revolving
Loans.
(a)
Prior to the
Termination Date, and so long as no
Default has occurred and is continuing, the
Lenders agree, individually and
severally, on the terms and conditions set
forth in this Agreement to each
extend to the Company its Pro Rata Share of
the Revolving Loans from time to
time, in amounts not to exceed in the
aggregate at any one time outstanding its
individual Revolving Loan Commitment.
Subject to the terms of this Agreement,
the Company may borrow, repay (in whole or
in part) and reborrow the Revolving
Loans prior to the Termination Date for
Revolving Loans. The Revolving Loans
made by the Lenders shall be evidenced by
the Revolving Credit Notes.
(b) Prior to
an Event of Default, and except as otherwise
provided herein, each Revolving Loan shall
bear interest on the unpaid principal
balance before maturity (whether upon
demand, acceleration, default or
otherwise) at the rate per annum equal to
the greater of (i) the LIBOR Rate plus
the LIBOR Margin for Revolving Loans, or
(ii) three and thirty-five hundredths
percent (3.35%.) The LIBOR Rate shall be
determined by the Agent as of the
initial funding of each Revolving Loan, and
shall be adjusted by the Agent as of
the first day of each calendar month
thereafter to be equal to the LIBOR Rate on
that Business Day. Interest shall be
computed and adjusted daily based on the
actual number of days elapsed and a year of
360 days.
(c) From the
date of the first Revolving Loan and until
all Revolving Loans are paid in full, the
Company shall pay to the Agent for the
Pro Rata benefit of the Lenders, in
arrears, accrued and unpaid interest on the
principal balance of the Revolving Loans on
the first Business Day of each
January, April, July and October, and in
all cases, a final payment of accrued
interest on the Termination Date for the
Revolving Loans.
(d)
Notwithstanding anything to the contrary herein, all
outstanding unpaid principal and accrued
interest on the Revolving Loans shall
be due and payable to the Agent for the Pro
Rata benefit of the Lenders on the
Termination Date for the Revolving
Loans.
(e) The
Company may obtain Revolving Loans by making a
request therefor to Agent in writing in the
form attached hereto as EXHIBIT A
("Loan Request"). Such request shall
specify the Borrowing Date on which such
Revolving Loans are to be made, shall be
received by the Agent by 11:00 a.m.
(Central Standard time) two Business Days
before the Borrowing Date, and shall
specify the amount of the Revolving Loans
requested. Agent shall notify the
Lenders of such request promptly after
receipt thereof. The Company shall be
obligated to repay all Revolving Loans
notwithstanding the fact that the person
requesting the Revolving Loan was not in
fact authorized to do so. Each
Revolving Loan request made by the Company
shall be irrevocable. Each Revolving
Loan shall be in the principal amount of
the lesser of (i) $250,000 or a
multiple thereof or (ii) the then
Maximum
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Available Commitment. Upon fulfillment of
the conditions specified in Section 4
of this Agreement, the Agent shall promptly
deposit the amount of such Revolving
Loan(s) in the Company's deposit account
number _________ maintained with
Compass.
2.2 Term
Loans. If no Default or Event of Default exists, the
Company may convert all or a portion of the
Revolving Loans to Term Loans. The
Term Loans shall bear interest at a per
annum rate equal to at the greater of
(i) the LIBOR Rate plus the LIBOR Margin
for Term Loans or (ii) three and
one-half percent (3.50%), and shall have a
maturity of not more than five years
(with principal payments thereon based on a
seven year amortization schedule).
The obligation of the Lenders to permit the
conversion of Revolving Loans to
Term Loans is subject to the prior approval
of the Required Lenders and the
execution and delivery by the Company of
such agreements, notes and security
agreements as may be reasonably
satisfactory to the Agent and the Lenders in
their sole discretion.
2.3 Interest
After Default. After an Event of Default, each of the
Obligations shall bear interest at the rate
of 3% per annum in excess of the
applicable rates set forth in this
Agreement. In no event shall the interest
rate under the Notes exceed the highest
rate permitted by law.
2.4 Loan
Account. The Agent will enter as a debit to the Loan
Account the aggregate principal amount of
each Loan as disbursed or issued from
time to time. The Agent shall also record
in the Loan Account, in accordance
with the Agent's customary accounting
practices, all accrued interest and all
other charges, expenses and other items
properly chargeable to the Company
hereunder or under the Related Documents,
all payments made by the Company with
respect to the Obligations, and all other
debits and credits. Not more
frequently than once each month, the Agent
shall render a statement of account
of the Loan Account (including a statement
of the outstanding principal balance
of the Loans, accrued interest on the
Loans, accrued fees and expenses and the
applicable interest rate for each Loan)
which statement shall be considered
correct and accepted by the Company and
conclusively binding upon the Company
absent manifest error, unless the Company
notifies the Agent to the contrary
within 30 days the Company's receipt of
such statement; provided, however, that
the Agent is entitled to adjust the
Company's Loan Account for any errors.
2.5 Payments.
Whenever any payment to be made hereunder shall be
stated to be due on a day which is not a
Business Day, such payment may be made
on the next succeeding Business Day in good
funds, and such extension of time
shall in such case be included in the
computation of payment of interest on the
Notes. The Agent may invoice the Company
for any regularly scheduled payments or
fees due hereunder (but shall not be
obligated to provide any invoice as a
condition to the Company's payment of such
amounts) and the Agent shall notify
or otherwise provide the Company with an
invoice for any unscheduled payments or
payments which require calculation by the
Agent (including fees and expenses
payable to the Agent or the Lenders
hereunder or in the Related Documents).
Notwithstanding anything to the contrary
herein, the Agent may debit to the
depository accounts maintained by the
Company with the Agent all payments on the
Obligations when due provided that the
Agent has complied with any notice
requirement herein.
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2.6
Prepayments and Indemnifications.
(a) Optional
Prepayments/Term Loans. The Company may, at
its option and at any time, prepay the
Loans in whole or in part. Any prepayment
on the Term Loans shall permanently reduce
the amount of the applicable Term
Loans. In the case of prepayment of less
than all of the outstanding principal
amount of any Term Loans, all prepayments
shall be applied Pro Rata to the
principal installments in the reverse order
of their maturities, unless
otherwise agreed in writing by Agent.
(b) Mandatory
Prepayment/Revolving Loans. At any time
that (A) the aggregate principal amount of
Revolving Loans plus the aggregate
outstanding principal amount of any Term
Loans outstanding hereunder exceeds (B)
the sum of the Revolving Loan Commitment,
the Company shall immediately pay the
amount of such excess in immediately
available funds, together with interest
accrued on the amount of the payment. Such
payment shall be applied Pro Rata
first to any charges and expenses, second
to the interest accrued on the amount
of such payment, and last to principal
installments on the Term Loans in the
reverse order of their maturities, unless
otherwise agreed in writing by the
Agent.
2.7 Effect of
Regulatory Change. In the event of a Regulatory
Change, (a) Agent shall promptly notify the
Company; (b) the obligation of the
Lenders to make or continue the Term Loans
or Revolving Loans based on the LIBOR
Rate shall be suspended for the duration of
such Regulatory Change; and (c)
Loans shall bear interest at a rate
mutually agreed upon by the Required Lenders
and the Company; provided, however, that if
the parties cannot agree on such a
rate within ten Business Days of the
effective date of such Regulatory Change,
the interest rate shall equal the Prime
Rate.
2.8 Interbank
Rate Unascertainable; Unlawful.
(a) If (1) the
Agent is advised that deposits in dollars
(in the applicable amount) are not being
offered to banks in the relevant market
for a period of one (1) calendar month, or
the Agent otherwise determines (which
determination if in good faith shall be
binding and conclusive on all parties)
that by reason of circumstances affecting
the interbank Eurodollar market
adequate and reasonable means do not exist
for ascertaining the applicable LIBOR
Rate; or (2) if the making or funding of
such LIBOR Rate loans has become
impracticable as a result of an event
occurring after the date of this Agreement
and the Notes which in the opinion of the
Agent materially affects such LIBOR
Rate loans, then so long as such
circumstances shall continue, no Lender shall
not be under any obligation to make or
continue this Agreement and the Notes
based on the LIBOR Rate, and on the first
Business Day of the next calendar
month, this Agreement and the Notes shall
bear interest at the greater of (1)
3.35% and (2) a rate mutually agreed upon
by the Required Lenders and the
Company; provided, however, that if the
parties cannot agree on such rate within
ten Business Days of the effective date of
such event, the interest rate shall
equal the Prime Rate.
(b) If any
change in (including the adoption of any new)
applicable laws or regulations, or any
change in the interpretation of
applicable laws or regulations by any
governmental or other regulatory body
charged with the administration thereof,
should make it unlawful for any Lender
to make, maintain or fund this Agreement
and the Notes based on the Interbank
Rate, then: (1) the Agent shall promptly
notify the Company; (2) the
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<PAGE>
obligation of the Lenders to make or
continue this Agreement and the Notes based
on the Interbank Rate shall be suspended
for the duration of such unlawfulness;
and (3) on the first Business Day of the
following calendar month, this
Agreement and the Notes shall bear interest
at the greater of (1) 3.35% and (2)
a rate mutually agreed upon by the Required
Lenders and the Company; provided,
however, that if the parties cannot agree
on such rate within ten Business Days
of the effective date of such event, the
interest rate shall equal the Prime
Rate.
2.9 Funding
Procedures. Unless a Lender notifies the Agent at
least one Business Day in writing prior to
the date on which it is scheduled to
make any advance on a Loan that it does not
intend to make such advance on a
Loan, the Agent may assume that such
advance will be received by Agent when due
in good funds. The Agent may, but shall not
be obligated to, make the amount of
any such requested Loan available to the
Company on behalf of any Lender in
reliance upon such assumption, without
qualification or any other knowledge of
Agent. If the Agent makes such advance on
behalf of a Lender, and such Lender
does not in fact make such advance to the
Agent, the Company shall, on demand by
the Agent, repay to the Agent the amount so
made available, together with
interest thereon from the date of payment
until the date the Agent receives such
amount, in good funds at a rate per annum
equal to (i) in the case of payment by
a Delinquent Lender, the federal funds rate
(as determined by the Agent) or such
other rate of interest as may be provided
for herein, or (ii) in the case of
payment by the Company, the interest rate
applicable to the relevant Obligation.
A statement of the Agent submitted to the
Company or any Lender with respect to
any amounts owing under this Section 2.9
shall be conclusive, in the absence of
manifest error. Notwithstanding the
compensation set forth above, if the
proceeds of any Revolving Loan are not in
fact made available to the Agent by
any Lender within one Business Day after
the date of the scheduled Borrowing
Date, the Agent shall be entitled to
recover the amount of such proceeds from
the Company, with interest thereon at the
rate per annum then applicable to the
Revolving Loan not funded by such
Delinquent Lender, until such amount is
recovered, upon demand, from such
Delinquent Lender. Nothing in this Section 2.9
shall be deemed to relieve any Lender from
its obligation to fulfill its Loan
Commitments hereunder, or to prejudice any
rights which the Agent or the Company
may have against any Lender as a result of
any default by that Lender hereunder.
The failure of any one of the Lenders to
fulfill its Loan Commitments shall not
relieve any other Lender of its obligation
to lend hereunder, and shall not
obligate the Agent or other Lenders to take
any action on behalf of the Company
against such Delinquent Lender. The Company
acknowledges that neither the Agent
nor the other Lenders shall be liable to
the Company in any way whatsoever for
any failure of any other Lender to meet its
obligations hereunder.
2.10
Application of Payments.
(a) All
payments hereunder and under the Notes made by
the Company shall be made to the Agent in
immediately available funds for the
Pro Rata account of the Lenders. Except as
otherwise provided herein, the Agent
shall promptly distribute to the Lenders
the amount of any such payments, and
all proceeds upon realization from
Collateral for the Obligations or any
insurance proceeds respecting the
Collateral, in the following order of
priority: (i) each Lender's Pro Rata share
of the fees
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<PAGE>
and expenses described in Section 5.8
hereof then due, plus all fees and
expenses of Agent payable to Agent herein
for services in its capacity as Agent;
(ii) each Lender's Pro Rata share of
principal and interest received by the
Agent on the Revolving Loans and Term Loans
(which shall be applied first to
accrued but unpaid interest on the Loans,
then to the principal amount
outstanding on the Revolving Loans, then to
scheduled installments of principal
on the Term Loans which are due and
payable, and then to the remaining principal
outstanding on the Term Loans as provided
for herein, and provided further that
any optional or mandatory prepayment shall
be applied to the Loans as provided
for in Section 2.6); and (iii) each
Lender's Pro Rata share of all other
Obligations collected by Agent which are
owed to such Lender (including any
amounts owed by the Company to such Lender
under any Rate Management
Transactions Related to the Revolving Loans
or Term Loans). Any payment in good
funds to the Agent for the account of a
Lender hereunder shall constitute a
payment by the Company to such Lender of
the amounts so paid to the Agent, and
any Notes or portions thereof so paid shall
not be considered outstanding for
any purpose after the date of such payment
in good funds to the Agent. Except as
otherwise provided herein, all payments or
prepayments of principal and interest
shall be deemed to have been made Pro Rata
in accordance with the amounts of the
Notes then outstanding. In the event any
Lender shall receive from the Company,
any guarantor or any other source (other
than the sale of or a participation to
another commercial lender of any Lender's
Interest in the Loans to the extent
permitted by this Agreement) any payment
of, on account of, or for an Obligation
of the Company hereunder or under the
Related Documents (whether pursuant to the
exercise of any right of setoff, banker's
lien, realization upon any Collateral
or security held for or appropriated to
such obligation, counterclaim or
otherwise), then such Lender shall
immediately deliver such amounts in good
funds to Agent for distribution and
allocation according to this Agreement
(without interest). The Company
specifically acknowledges and consents to the
preceding sentence, and agrees that its
Obligations hereunder includes
reimbursement of the Agent and each Lender
for any amounts paid to Agent and any
Lender hereunder which is subsequently
recovered from the Agent or such Lender
for any reason, except the willful
misconduct of such Agent or Lender. All
payments required hereunder and under the
Related Documents shall be made free
of any claim, defense, counterclaim,
recoupment or setoff of any kind held by
the Company against the Agent or any
Lender.
(b) A
Delinquent Lender shall be deemed to have assigned
to Agent any and all payments due to it
from the Company to the Lenders who are
not then a Delinquent Lender for
application to, and reduction of, their
respective Pro Rata shares of all
outstanding Revolving Loans or Term Loans as
the case may be. The Delinquent Lender
hereby authorizes the Agent to distribute
such payments to the Lenders which are not
a Delinquent Lender in proportion to
their respective Pro Rata shares of all
outstanding Revolving Loans or Term
Loans as the case may be, excluding for
this purpose only Loans which were made
by the Delinquent Lender until the earlier
of the time when such Lender is no
longer a Delinquent Lender or the
Obligations owed to the non-Delinquent
Lender(s) are paid in full. A Delinquent
Lender shall be deemed to have
satisfied in full a delinquency when and
if, as a result of application of the
assigned payment to the nondelinquent
Lenders, the Lenders' respective Pro Rata
shares of all outstanding Revolving Loans
shall return to the Pro Rata shares in
effect immediately prior to such
delinquency. While any Lender is a Delinquent
Lender, the Agent may replace such
Delinquent Lender by refinancing all of the
Obligations of the Company to
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such Delinquent Lender with another
financial institution having a combined
capital and surplus in excess of
$1,000,000,000, but only if (a) such financial
institution shall become a party to this
Agreement in accordance with the terms
of Section 8.9 hereof, (b) such financial
institution shall, immediately after
refinancing such Obligations, cure the
delinquency of the Delinquent Lender, and
(c) such financial institution is not a
Foreign Lender; provided however that
any such sale and/or cure shall not release
or impair any rights and remedies of
the Company or the other Lenders against
the Delinquent Lender.
2.11
Effect of Regulatory Change. In the event of a Regulatory
Change deemed by any Lender in good faith
to be material, the Company shall pay
to such Lender (within ten days after
notice by the Lender to the Company of
such Regulatory Change) such amounts as are
reasonably necessary to compensate
the Lender for the increase in the cost of
making or obtaining the Obligations
or the reduction in the rate of return to
the Lender on the Obligations
resulting from the Regulatory Change.
2.12
Security. Payment of all Obligations shall be secured by a
first priority security interest or lien on
all of the Collateral described in
the Related Documents, and in accordance
with this Agreement and the Related
Documents.
2.13
No Obligation to Extend or Forbear. The Company acknowledges
and agrees that each of the Lenders: (a)
upon execution hereof, has no duty or
obligation of any kind to, and has made no
representations of any kind or nature
that such Lender will, extend credit or any
other kind of financial
accommodations to the Company after the
Termination Date, or forbear at any time
from the exercise of any of its rights or
remedies under this Agreement, the
Related Documents and applicable law; and
(b) may at any time, in its sole and
absolute discretion, exercise whatever
rights and remedies such Lender may have
under this Agreement, the Related Documents
and applicable law. All Obligations
shall be due in full on the Termination
Date without further notice or demand.
SECTION 3
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into
this Agreement and make and incur the
Obligations as herein provided, the
Company hereby represents and warrants to
the Agent and the Lenders as follows:
3.1
Organization, Qualification and Subsidiaries. The Company is
lawfully existing and in good standing as a
Georgia corporation and as a bank
holding company. The Company and each
Subsidiary are lawfully existing and in
good standing under the laws of their
respective jurisdiction of incorporation
or organization, 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 consolidated assets,
condition or prospects of such
Subsidiary or the Company. The Company has
the corporate power and authority and
all necessary licenses, permits and
franchises to borrow hereunder, and to grant
the liens and security interests provided
for in the Related Document
