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EXHIBIT 10.16
LOAN AGREEMENT
AGREEMENT dated as of November 21, 1997, between AMSOUTH BANK f/k/a
AMSOUTH BANK OF FLORIDA (the "Lender") and UNITED FINANCIAL HOLDINGS, INC.
f/k/a PINELLAS BANCSHARES CORPORATION (the "Borrower");
IN CONSIDERATION OF THE PREMISES AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS
FOLLOWS:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Advance" shall mean the amount lent by the Lender to the Borrower
hereunder, or where the context so requires, the amount thereof then
outstanding, which is senior to all other indebtedness of Borrower. The term
advance shall include the advance made on June 13, 1994 (the "1994 Advance")
and any future advances granted to Borrower hereunder.
"Agreement" shall mean this Loan Agreement, as the same may from time
to time be amended. Upon satisfaction by Borrower of the conditions precedent
set forth in Section 3 and the making of the 1997 Advance to Borrower by
Lender, this Loan Agreement shall supersede and replace that certain Loan
Agreement dated June 13, 1994 between AmSouth Bank of Florida and Pinellas
Bancshares Corporation.
"Assets" shall have the meaning given to it on the financial
statements of the Bank referred to in Section 4(g).
"Bank" shall mean United Bank and Trust Company f/k/a United Bank of
Pinellas, a Florida banking corporation and its subsidiaries.
"Borrowing Date" shall mean the date as of which the Borrower draws
down the Advance.
"Business Day" shall mean a day other than a Saturday, Sunday or a
legal holiday for commercial banks under the laws of the State of Florida.
"Capital" shall have the meaning given to it on the financial
statements of the Bank referred to in Section 4(g).
"Company" means the Borrower, a bank holding company.
"Deposit" shall have the meaning given to it on the financial
statements of the Bank referred to in Section 4(g).
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"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may from time to time be amended.
"Event of Default" shall mean any of the events specified in Section
7.1.
"Indebtedness" shall mean, as to any Person, all indebtedness or other
obligations of such Person for borrowed money or for the deferred purchase
price of property or services, and all indebtedness or other obligations of
third parties for which such Person is liable or contingently liable, directly
or indirectly, or which is secured by or benefits from a Lien on the assets or
revenues of such Person.
"Lien" shall mean any lien, attachment, set-off, charge, mortgage,
encumbrance or other security interest or segregation of assets or revenues or
other preferential arrangement (whether or not constituting a security interest
and whether or not enforceable at law) with respect to any present or future
assets, revenues or rights to the receipt of income of the Person referred to
in the context in which the term is used, but excluding (i) any purchase money
security interest or mortgage on any real or personal property when the
obligation secured in incurred for the purchase of such property and does not
exceed the lesser of the cost or fair market value thereof at the time of
acquisition, and the security interest applies only to such property; (ii)
mechanics', materialmen's and similar liens which do not in the aggregate
materially interfere with the conduct of such Person's business; (iii) deposits
or pledges to secure any statutory obligations or appeals, or any release of an
attachment, stay of execution, or injunction, or the performance of bids,
tenders, contracts (other than for borrower money) or leases; (iv) liens for
current taxes, assessments and governmental charges which are not delinquent
(and remain payable without penalty) or are being contested in good faith by
appropriate proceedings, adequate reserves having been set aside for the
payment thereof; (v) rights or garnishors under writs of garnishment issued
with respect to deposits with the Bank; (vi) the contingent right of the
holders of Subordinated Debentures to elect two directors of the Company; (vii)
liens, mortgages, encumbrances, charges or other security interests existing on
property prior to the acquisition of such property by such Person; and (viii)
reserves and segregation of assets or stockholders' equity required by banking
laws and regulations.
"Loan(s)" shall have the meaning given to it on the financial
statements of the Bank referred to in Section 4(g).
"Note(s)" shall mean the promissory note(s) described in Section 2.2,
as the same may from time to time be amended, modified, extended or renewed by
Lender.
"UFH Shares" shall mean shares of the issued and outstanding shares of
common stock, one cent ($0.01) par value, of the Company.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
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"Person" shall mean an individual, corporation, partnership, joint
venture, trust, or unincorporated organization, or a government or any agency
or political subdivision thereof or any other entity whatsoever.
"Plan" shall mean any plan deemed in Section 4021(a) of ERISA in
respect of which the Bank or the Company is and "employer" or a "substantial
employer" as said terms are defined in Sections 3(5) and 4001(a) (2) of ERISA,
respectively.
"Prime Rate" shall mean the Prime Rate as determined to be in effect
and announced from time to time by Lender.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA.
"Security Agreement" shall mean the security agreement to be delivered
by the Borrower to the Lender pursuant to Section 3(b), as the same may from
time to time be amended.
"Shares" means the 150,000 shares of common stock, $5.00 par value, of
the Bank, representing 100% of the issued and outstanding common stock of the
Bank owned by the Company.
1.2 Accounting Terms. All accounting terms not specifically defined in
this Agreement shall be construed in accordance with generally accepted
accounting principles in the United States consistent with those applied in the
preparation of the financial statements referred to in Section 4(g), and all
financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles.
SECTION 2. AMOUNT AND TERMS OF ADVANCES
2.1 Amount. Subject to the terms and conditions of this Agreement, the
Lender shall make an Advance to the Borrower on November __, 1997, (herein
called the "Borrowing Date") in the principal amount of $3,000,000.00 (the
"1997 Advance"). The unpaid principal balance of the 1994 Advance shall be
consolidated into the Note upon satisfaction of the conditions precedent set
forth in Section 3 and is, as of this date, $625,199.99.
2.2 Note(s). Both the 1997 Advance and the 1994 Advance shall be
evidenced by a Promissory Note substantially in the form of Exhibit "A."
2.3 Repayment. The Borrower will pay interest, in monthly
installments, beginning December 1, 1997, followed by ninety-five (95)
consecutive principal installments of $31,250.00 each, plus interest, beginning
December 1, 1999, and a final installment equal to all of the principal of and
interest on the Loan then remaining unpaid.
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2.4 Prepayments.
(a) The Borrower may at any time at its option prepay the
Advance without penalty, in whole or in part, provided, however, that partial
prepayments shall be in an aggregate amount of $10,000 or an event multiple
thereof.
(b) All partial prepayments shall be applied to installments
of the Advances in the inverse order of their maturities.
(c) The Borrower may prepay the Advances without penalty, in
a minimum amount of $100,000 and in $50,000 increments above $100,000, at which
time the Lender will, at the request of Borrower and not more often than once
in any calendar year, reduce the monthly scheduled payments, to reflect the
reduced Advance amount, based on an eight (8) year amortization from the
Borrowing Date.
2.5 Interest. Interest shall accrue on the Renewal Note at the
Lender's prime rate per annum. The rate of interest shall change effective upon
the day Lender changes or announces its Prime Rate.
2.6 Default Interest. Following the occurrences of an Event of
Default, Lender may, in its sole discretion, determine that all amounts owing
to Lender shall bear interest at the Lesser of: Eighteen percent (18.0%) per
annum or the maximum interest rate Lender is permitted to charge by law, until
such Event of Default is cured. If Lender obtains a judgment for any amount due
under the Note, interest will accrue on the judgment at the judgment rate of
interest permitted by law.
2.7 Use of the 1997 Advance. Borrower shall apply the loan proceeds
from the 1997 Advance to capitalize Borrower's trust company subsidiary and for
general corporate purposes.
2.8 Payments and Advances. Any payments made by the Borrower hereunder
shall be applied first against costs, expenses and indemnities due to the
Lender hereunder and under the Security Agreement; then against default
interest if any; then against interest due on the Advance; then against
principal of the Advances due; and thereafter in prepayment of the Advances set
forth in Section 2.4(b).
2.9 Loan Account. The Lender shall open and maintain on its books a
loan account in the Borrower's name showing advances, prepayments, and
repayments of the Advances, the computation and payment of interest and other
amounts due and sums paid hereunder and under the Security Agreement. Such loan
account shall be conclusive and binding on the Borrower absent manifest error.
SECTION 3. CONDITIONS PRECEDENT TO THE 1997 ADVANCE
The Lender shall not be required to make the 1997 Advance unless the
following conditions shall have been fulfilled on or prior to the Borrowing
Date to the satisfaction of the Lender and its counsel:
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(a) The Borrower shall deliver to the Lender a duly executed
Note pursuant to Section 2.2, dated the Borrowing Date,
(b) The Borrower shall have delivered to the Lender the duly
executed Security Agreement dated the Borrowing Date pledging the Shares to the
Lender as security for the Notes substantially in the Form attached hereto as
Exhibit "B,"
(c) The Borrower shall have delivered to Lender an opinion of
Borrower's counsel, dated the Borrowing Date, substantially in the form
attached hereto as Exhibit "C,"
(d) The Borrower shall have delivered a duly-executed
certificate to the Lender, dated the Borrowing Date, stating that as of such
date the representations and warranties set forth in this Agreement remain true
and correct as of such date and no Event of Default, or event which with the
giving of notice or the passage of time would constitute an Event of Default,
has occurred or is continuing substantially in the form attached hereto as
Exhibit "D," and
(e) All representations and warranties contained herein shall
be true and correct.
SECTION 4. REPRESENTATIONS AND WARRANTIES AS OF THIS DATE HEREOF
In order to induce the Lender to enter into this Agreement and to make
the 1997 Advance, the Borrower represents and warrants to the Lender that:
(a) The Bank is a federally insured bank duly organized and
chartered, validly existing and in good standing under the laws of the State of
Florida, has the corporate power to own its assets and to transact the business
in which it is engaged, and is duly qualified as a foreign corporation and in
good standing under the laws of each other jurisdiction in which the conduct of
its business or the ownership of its assets requires such qualification. To the
knowledge of the Borrower, the Bank is conducting its operations substantially
in accordance with all applicable laws, regulations, memorandums and agreements
to which Bank is subject. The Bank has no subsidiaries other than those
disclosed.
(b) The Borrower has all necessary right, title and authority
to execute, deliver and perform this Agreement, the Security Agreement and the
Note. No consent of any other Person (including any other current or former
stockholder of the Company or the Bank) and no license, approval or
authorization of, or registration or declaration with, any governmental body,
authority or agency is required in connection with the execution, delivery or
performance of this Agreement by the Borrower, except as previously obtained,
(c) The UFH Shares and the Shares have been duly and validly
authorized and issued and are fully paid and non-assessable,
(d) This Agreement has been duly executed and delivered by
the Borrower and when executed and delivered by the Borrower in accordance with
the terms of this Agreement,
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each of the Note and the Security Agreement will constitute legal, valid and
binding obligations of the Borrower, enforceable against Borrower in accordance
with their respective terms, except that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, or similar laws affecting
creditors' rights,
(e) The execution, delivery and performance by the Borrower
of this Agreement, the Note and the Security Agreement will not violate any
provision of any applicable law or regulation on the part of Borrower, or of
any writ or decree of any court or governmental authority binding upon Borrower
or Bank, or of the Articles of Incorporation or Bylaws of the Borrower or Bank,
or of any material provision of any indenture, contract, agreement or other
undertaking to which the Borrower or Bank is a party or which purports to be
binding upon the Borrower or Bank or any of their respective assets, and will
not result in the creation of imposition of any Lien on any of the assets of
the Borrower or Bank except in favor of Lender. Neither the Borrower nor the
Bank is in default in any material respect in the performance of any agreement
or understanding to which either is a party or which purports to bind any of
its or their respective assets, except as disclosed in the audited financial
statements of the Borrower and the Bank at and for the year ended December 31,
1996,
(f) Except as set forth in Exhibit "E" to this Agreement,
there is no action, suit, investigation or proceeding pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or Bank
or any of their respective assets which, upon its ultimate resolution, could
have a material adverse effect on the financial condition, business or
operations of the Borrower or the Bank exclusive, however, of matters affecting
financial institutes in general,
(g) The financial statements of the Borrower and Bank that
have been delivered by the Borrower to Lender, are complete and correct,
present fairly their financial condition for the periods set forth therein, and
have been prepared in accordance with generally accepted accounting principals
if the United States consistently applied. There are not material contingent
liabilities of the Borrower and Bank as of the date hereof that are not
reflected in said financial statement. There has been no material adverse
change in the financial statements were furnished to Lender. All information
provided by the Borrower to the Lender in connection with this transaction are
true and correct in all material respects, and the Borrower has not omitted any
material fact in order to make such information misleading,
(h) The Borrower and Bank have filed all federal, state and
local tax returns that are required to be filed (except such returns for which
extensions have been secured), and have paid all taxes as shown on said returns
and all assessments received by them to the extent that such taxes and
assessment have become due (except such taxes or assessments as are being
contested in good faith by appropriate proceedings diligently pursued),
(i) The Borrower and Bank have good title to their respective
properties and assets, including the properties and assets reflected in the
financial statements of the Bank, subject to no liens other than those
reflected in said financial statements and except for any covenants,
restrictions, rights, easements and minor irregularities in title which do not
materially
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interfere with the occupation, use and enjoyment by the Borrower or the Bank of
such properties and assets, or materially impair the value thereof,
(j) Based on ERISA and the regulations and published
interpretations thereunder, the Bank is in compliance in all material respects
with all applicable provisions or ERISA at such time as such compliance shall
have been legally required. No Reportable Event has occurred and is continuing
with respect;to any Plan, and the Bank has not incurred any liability to PBGC
under Section 4062 of ERISA,
(k) As of the Borrowing Date, the Borrower is the legal and
equitable owner of the Shares, free and clear of all liens (other than as
created by this Agreement and the Security Agreement), and has all necessary
right and authority to pledge, assign and deliver the Shares in the manner
contemplated herein and in the Security Agreement. The Shares constitute 100%
of the issued and outstanding common stock of the Bank. There are no other
classes of stock of the Bank issued and outstanding,
(l) The Shares are not "margin stock" as such term is defined
in Regulation U of the Board of Governors of the Federal Revenue System,
(m) The Borrower and Bank are in compliance with any and all
memorandums, letters or other documents issued to either Borrower or Bank, or
both by any regulatory body having jurisdiction over Borrower or Bank, or both,
and
(n) No Event of Default has occurred and is continuing.
SECTION 5. OTHER REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and make
the 1997 Advance, the Borrower represents and warrants to the Lender that on
the Borrowing Date:
(a) The Borrower is a bank holding company (as such term is
defined in the Bank Holding Company Act of 1956, as amended) validly existing
and in good standing under the laws of the State of Florida, has the corporate
power to own the Shares, and is duly qualified as a foreign corporation and in
good standing under the laws of each other jurisdiction in which the ownership
of the Shares requires such qualifications.
(b) The Company shall have good title to the Shares, subject
to no Liens other than pursuant to this Agreement and the Security Agreement.
(c) The Borrower shall have no Indebtedness except for the
Subordinated Debentures, Convertible Subordinated Debentures and the Advance,
and other Indebtedness not in excess of $25,000.
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SECTION 6. COVENANTS EFFECTIVE UPON EXECUTION OF THIS AGREEMENT
6.1 The Borrower covenants and agrees that from the date of this
Agreement and so long as any amount shall be owed to the Lender hereunder or
under the Security Agreement, Borrower shall:
(a) Cause the Bank to furnish to the Lender:
(i) as soon as practicable and in any event within
45 days after the close of each of the first three quarters of each of the
Bank's fiscal years, balance sheets (or statements of condition) of the Bank as
of the end of such quarter, and statements of income and stockholders' equity
for such quarter and for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, setting forth in
comparative form in the cases of balance sheets (or statements of condition) of
the Bank as of the end of such quarter and the related statements of income and
stockholders' equity, the corresponding figures for the corresponding periods
of the preceding fiscal year, all in reasonable detail and certified by an
authorized owner of the Bank as having been prepared in accordance with
generally accepted accounting principles in the United States consistent with
those applied in the preparation of the financial statements referred to in
Section 4(g);
(ii) as soon as practicable and in any event within
90 days after the close of each of the Bank's fiscal years, a copy of the
annual audit report of the Bank, prepared by independent certified public
accountants reasonably satisfactory to the Lender, including therein financial
statements consisting of balance sheets (or statements of conditions) of the
Bank as of the end of such fiscal year, and statements of income, changes in
financial position and stockholders' equity of the Bank, for such fiscal year,
all in reasonable detail and certified by an authorized officer of the Bank as
having been prepared in accordance with generally accepted accounting
principles in the United States consistent with those applied in the
preparation of the financial statements referred to in Section 4(g), and a
listing as of the end of such fiscal year of the Bank's contingent liabilities
and guarantees, certified by an authorized officer of the Bank,
(iii) concurrently with the delivery of the
financial statements referred to in clauses (i) and (ii) above, a certificate
by an authorized officer of the Bank setting forth calculations showing
compliance with all financial tests for the Bank contained herein and stating
that to the best of his knowledge (A) the Bank has satisfied and continues to
satisfy each such test except as specifically indicated, and (B) to the best of
his knowledge no Event of Default exists, or if an Event of Default does exist,
specifying such Event of Default and the nature thereof;
(iv) to the full extent permitted by applicable laws
and regulations, promptly after the same are available, copies of all
regulatory or periodic reports that the Bank may file with any governmental
body, authority, or agency, to include but not be limited to Call Reports and
Uniform Bank Performance Reports;
(v) as soon as practicable and in any event within
five Business Days after the existence of an Event of default comes to the
attention of an officer of the Bank, written notice of such occurrence;
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(vi) immediately after the commencement thereof,
notice in writing of all actions or proceedings of the type described in
Section 4(f);
(vii) such other information with respect to the
financial condition and operations of the Borrower or Bank, as the Lender may
from time to time reasonably request.
(b) Furnish to the Lender:
(i) as soon as practicable and in any event within
45 days after the close of each of the first three quarters of each of the
Borrower's fiscal years, balance sheets (or statements of condition) of the
Borrower as of the end of such quarter, and statements of income and
stockholders' equity for such quarter and for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter, setting
forth in comparative form in the cases of balance sheets (or statements of
condition) of the Borrower as of the end of such quarter and the related
statements of income and stockholders' equity, the corresponding figures for
the corresponding periods of the preceding fiscal year, all in reasonable
detail and certified by an authorized officer of the Borrower as having been
prepared in accordance with generally accepted accounting principles in the
United States consistent with those applied in the preparation of the financial
statements referred to in Section 4(g);
(ii) as soon as practicable and in any event within
90 days after the close of each of the Borrower's and Bank's fiscal years, (A)
a copy of the annual, consolidated, audit report of the Borrower and Bank
prepared by independent certified public accountants reasonably satisfactory to
the Lender, including therein financial statements consisting of consolidated
balance sheets (or statements of condition) of the Borrower and Bank as of the
end of such fiscal year, and consolidated statements of income, changes in
financial position and stockholders' equity of the Borrower and Bank for such
fiscal year, (B) consolidating balance sheets (or statements of condition) of
the Borrower and Bank as of the end of such fiscal year and consolidating
statements of income, changes in financial position and stockholder's equity of
the Borrower and Bank for such fiscal year, all in reasonable detail and
certified by an authorized officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles in the United States
consistent with those applied in the preparation of the financial statements
referred to in Section 4(g); and
(iii) as soon as practicable and in any event within
120 days after the close of each of the Borrower's fiscal years, a complete
copy of Borrower's consolidated tax return.
(c) Duly pay and discharge, and cause the Bank to duly pay
and discharge, when due, all taxes, assessments, and governmental charges or
levies imposed upon it or upon its income or profits or upon its properties
unless and to the extent only that the same shall be contested in good faith
and by appropriate proceedings diligently pursued which will not, in Lender's
opinion, have or result in a material adverse effect on Borrower or Bank,
(d) Maintain, and cause the Bank to maintain, with
financially sound and reputable insurance companies or associations, insurance
on its properties in such amounts and
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covering such risks as is usually carried covering similar properties in the
same geographical areas in which such properties are located,
(e) Cause the Bank to perform all obligations to be performed
by it pursuant to the terms of each indenture, agreements, contract or other
instrument by which Borrower or the Bank or their respective properties are
bound, noncompliance with which would have a material adverse effect on its
business, financial condition or properties,
(f) Observe, conform and comply with in all material
respects, and cause the Bank to observe, conform and to comply with in all
material respects, and cause the Bank to observe, conform and to comply with in
all material respects, the requirements of all applicable laws, decisions,
judgments, rules, regulations and orders of any governmental authority, and
with any agreements or understandings with any governmental authority having
jurisdiction over Borrower or the Bank, except such as are being contested in
good faith by appropriate proceedings diligently pursued and which will not, in
Lender's opinion, have or result in a material adverse effect, financial or
otherwise on Borrower or Bank,
(g) Cause the Bank to maintain corporate books and financial
records,
(h) Cause the Bank to permit any attorney, agent, employee,
accountant or officer designated by the Lender, at the expense of the Lender,
to visit and inspect any of the properties of the Borrower and the Bank, to
examine the corporate books and financial records of the Borrower and the Bank
and make copies thereof or extracts therefrom, and to discuss its affairs,
finances and accounts with officers of the Lender, all at such times as the
Lender may reasonably request,
(i) Not incur, and cause Bank not to incur any new
indebtedness, liability or debt in excess of $25,000 per year, except in the
ordinary course of business and except for subordinated debentures and
convertible subordinated debentures
(j) Cause the Bank to comply in all material respects with
ERISA,
(k) Cause the Bank to deliver, as soon as possible, and in
any event within 30 days after the Bank knows or has reason to know that any
Reportable Event involving in excess of o of the assets of any Plan has
occurred with respect to such Plan or that PBGC or the Bank has instituted or
will institute proceedings under Title IV of ERISA to terminate any Plan, to
the Lender a certificate of the chief financial officer of the Bank setting
forth details as to such Reportable Event and the action that the Bank proposes
to take with respect thereto, together with a copy of any notice of such
Reportable Event that may be required to be filed with PBGC, or any notice
delivered by PBGC evidencing its intent to institute such termination
proceedings, or any notice delivered by the Bank to the PBGC, that such Plan is
to be terminated, as the case may be. For all purposes of this paragraph, the
Bank shall be deemed to have all knowledge of all facts attributable to the
administrator of such Plan,
(l) Not permit the issuance of additional shares or any other
classes of stock of the Bank, without prior written consent of Lender,
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(m) Pledge, assign and deliver to the Lender pursuant to the
Security Agreement any additional stock in the Bank which Borrower may acquire,
(n) At all times continue to own 100% of the issued and
outstanding stock of the Bank, free and clear of all Liens except for any Lien
in favor of the Lender,
(o) Cause the Bank not to permit, without the Lender's prior
written consent:
(i) any merger or consolidation of the Bank with
another entity; or
(ii) any transfer, lease, or disposition of, or
creation of any Lien upon, any of the property or assets of the Bank except in
the ordinary course of business,
(p) Cause the Bank not to permit:
(i) any event which would prohibit the Bank from
continuing to conduct its banking business;
(ii) any transaction between the Bank and any of
Borrower's stockholders, or any entity in which any such stockholders own an
equity interest, in which the terms of such transactions would be less
favorable to the Bank than in an arm's length transaction; or
(iii) any liquidation or dissolution of the Bank,
(q) Except as expressly contemplated by this Agreement, not
sell, transfer or otherwise dispose of, or convey any interest in, or permit
any Lien upon, the Shares,
(r) Cause the Bank to at all times maintain at least the
minimum capital required by state and federal regulators to avoid regulatory or
supervisory action,
(s) Deliver to the Lender (i) immediately after the
commencement thereof, notice in writing of all actions or proceedings of the
type described in Section 4(0 or where damages in excess of $100,000 are sought
against either Borrower or the Banks, and (ii) as soon as the existence of any
Event of Default, or event which with the giving of notice or the passage of
time would constitute an Event of Default, comes to Borrower's attention,
written notice thereof.
(t) Maintain an annual debt service coverage ratio at 1.20:1.
This ratio is defined as the sum of net income plus interest expense divided by
the sum of principal payments of debt plus interest expense.
SECTION 7. EVENTS OF DEFAULT
7.1 Events of Default. Each of the following events shall constitute
an event of Default under this Agreement.
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(a) The Borrower shall, for any reason whatsoever, whether
voluntarily or involuntarily, fail to make payment in full of any amount due
under this Agreement, the Note, or the Security Agreement when and as due, and
such default in payment shall continue for a period of 10 days after notice to
the Borrower by the Lender. Acceptance of partial payment by the Lender shall
not constitute a waiver of failure to make payment in full,
(b) Any representation or warranty made by the Borrower in
this Agreement or the Security Agreement shall prove to have been incorrect,
untrue or misleading in any material respect on the date when made or the date
of any certificate confirming such representation or warranty, or any
information, certificate or opinion furnished by or on behalf of the Borrower
or the Bank to the Lender under this Agreement shall prove to have been
incorrect, untrue or misleading in any material respect as of its date,
(c) Other than as specified in Section 7.1(a), the Borrower
shall, for any reason whatsoever, whether voluntarily or involuntarily, fail to
perform or breach any provision of this Agreement, the Note, or the Security
Agreement, and such failure or violation shall not be curable or, if curable,
shall continue uncured for a period exceeding 30 days,
(d) Any governmental approval, authorization, license or
registration now or hereafter required in connection with the performance of
this Agreement, the Security Agreement, or the Note by Borrower shall not be
granted, or if granted, shall be terminated or revoked and not reinstated
within 30 days of such termination or revocation,
(e) The Borrower or Bank shall deny or contest the validity,
enforceability or legality of any material provision of this Agreement, the
Security Agreement, or the Note, or shall deny any responsibility with respect
thereto, or it shall become unlawful for the Borrower to perform its
obligations hereunder or thereunder, or any action by an governmental authority
or enactment, modification or final and binding change in the interpretation of
any applicable laws subsequent to the date hereof shall, in any material
respect, restrict, interfere with or prohibit the full and faithful performance
by the Borrower of its obligations hereunder and the thereunder,
(f) The Borrower or Bank shall fail to pay in full, and when
and as due (including any applicable grace period or period for cure), any
amount owed in respect of any of its other Indebtedness, or there shall occur
any other material event of default under any agreement or instrument relating
to such other Indebtedness the effect of which is to accelerate the maturity
thereof,
(g) With respect to any Plan, the occurrence of a Reportable
Event or any failure to satisfy minimum funding requirements (excluding any
waiver which might be granted by the Internal Revenue Service and any cure
effected within any period of time provided by ERISA),
(h) The determination by any regulatory body having
jurisdiction over Bank of a CAMEL rating other than a 1, 2, 3 or 4 for the
Bank, and
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7.2 Consequences. If an Event of Default shall occur and be continuing
beyond any grace period permitted therefor hereunder, the Lender may by notice
to the Borrower: (i) declare the entire amount of the Advance together with
accrued interest and all other sums payable hereunder and under the Security
Agreement to be immediately due and payable, and/or (ii) terminate its
obligation to advance any sums hereunder. such termination to be effective upon
the giving of such notice.
In the event that the Advance shall become due and payable by
acceleration as provided above, the advance shall, upon the giving of such
notice by the Lender, become immediately due and payable (together with any
accrued interest thereof to the date of such prepayment) without presentment,
demand, protest or notice of any kind other than the notice specifically
required by this Section, all other notice being expressly waived by the
Borrower. If any Event of Default shall occur, it may only be waived by a
notice from the Lender in writing.
SECTION 8. LOAN ADMINISTRATION
8.1 Entire Agreement and Amendment. This Agreement, the Security
Agreement, together with the Note and the certificates, opinions, and other
documents to be executed and delivered in connection herewith, constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersedes any prior expressions of intent or understanding with respect to
this transaction. This Agreement may be amended, but only by an instrument in
writing executed by the party or parties to be bound or burdened thereby.
8.2 Cumulative Rights and Waiver. The failure or delay of tile Lender
to require performance by the Borrower, or to enforce its rights under any
provision of this Agreement, the Security Agreement or the Note, shall not
affect its right to require performance thereof and to enforce its rights with
respect to such provision unless and until such performance has been waived in
writing by the Lender. Any waiver of an Event of Default shall be effective
only in strict accordance with its teens and may be restricted or conditioned
in any way. No waiver of any Event of Default shall constitute a waiver of the
continuance or recurrence of such Event of Default or of any other Event of
Default, except as provided in such waiver. The rights granted to the Lender
hereunder, under the Note, the Security Agreement or under any other document
or instrument delivered hereunder, and any rights available to it at law or in
equity, shall be cumulative and may be exercised in part or in whole from time
to time.
8.3 Assignment. This Agreement shall be binding upon and shall be
enforceable by the Borrower, the Lender and their respective successors and
assigns. The Borrower shall not have the right to assign or transfer its rights
or obligations hereunder without the prior written consent of the Lender.
8.4 Indemnification. The Borrower shall indemnify, save and hold
harmless the Lender from and against any and all losses, claims, damages,
liabilities and costs caused by, resulting from or arising out of any untrue or
incorrect representation or warranty contained herein or in any document,
opinion or certificate delivered to the Lender in connection with this
Agreement.
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8.5 Notices. All notices, requests and demands to or upon any party
hereto shall be deemed to have been given or made (i) upon delivery in person,
(ii) five days after it is mailed, first class, postage prepaid, (iii) upon
receipt, when mailed Certified Return Receipt, postage paid, or (iv) in the
case of telegraphic notice, when delivered to the telegraph company and
transmitted to the intended recipient, addressed to such party as follows or to
such other address as may be hereafter designated in writing by such party to
the other parties hereto:
The Lender: Commercial Banking
AmSouth Bank
X.X. Xxx 0000
Xxxxx, XX 00000
(street address:
000 Xxxxx Xxxxx
Xxxxx, XX 33602)
The Borrower: President
United Financial Holdings
Xxxx Xxxxxx Xxx 00000
Xx. Xxxxxxxxxx, XX 00000
8.6 Payment of Expenses and Taxes. The Borrower agrees to pay upon
demand all costs and expenses of the Lender in connection with the preparation,
execution and delivery of this Agreement, the Security Agreement, and the Note,
including, without limitation, the fees and disbursements for counsel for the
Lender, and to pay all costs and expenses of the Lender in connection with the
enforcement of this Agreement, the Security Agreement, and the Note, including
legal fees and disbursements arising in connection therewith, from and after
the occurrence of an Event of Default. The Borrower also agrees to pay, and to
hold the Lender harmless from any delay in paying, stamp and other taxes, if
any, which may be payable in connection with the execution and delivery of this
Agreement, the Security Agreement, or the Note, or any modification thereof. In
the event that any judicial authority, regulatory authority or Lender
determines that any documentary stamp tax must be paid on or in connection with
the execution and/or delivery of this Agreement, the Security Agreement, the
Note or any other document related to this transaction, Borrower shall
indemnify, save and hold harmless and promptly reimburse Lender upon demand for
such stamps or taxes and all costs and expenses associated therewith,
including, but not limited to, interest, penalties, fines or any other charges
associated with or arising from such tax.
8.7 Representation by the Lender. The Lender represents that it is
acquiring the Note for its own account in the ordinary course of extending
credit as a banking institution and not with a view to the distribution or
resale thereof.
8.8 Survival of Representations and Warranties. All representations
and warranties made in this Agreement and in any certificates or documents
delivered pursuant hereto shall survive the execution and delivery of this
Agreement and the Note, Security Agreement and the making of the Advance.
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8.9 Governing Law; Venue. This Agreement and the Note shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Florida. Any legal action arising out of this Agreement or the
relationship of the parties hereto shall have as its venue Pinellas County,
Florida.
8.10 Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which when taken together shall constitute but one
and the same instrument.
8.11 Severability of Provisions. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
8.12 Lawful Interest. No provision of this Agreement or of the Note
shall be deemed to require the payment, or permit the collection, of the
interest in excess of that permitted by applicable law is collected by the
Lender, such collection shall be deemed inadvertent and the excess interest
promptly refunded.
8.13 Headings. Section headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose. Except as other specified, references in this
Agreement to "Section" or "section" are references to sections of this
Agreement.
ALL PARTIES OF THIS TRANSACTION AGREE THAT EACH PARTY WAIVES TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST
THE OTHER PARTY ARISING OUT OF ANY MATTER CONNECTED WITH THIS LOAN AGREEMENT.
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
Signed sealed and delivered
UNITED FINANCIAL HOLDINGS, INC.
------------------------------- By:
-----------------------------
Xxxx X. Xxxxxx, President
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AMSOUTH BANK
------------------------------- By:
-----------------------------
------------------------------- -----------------------------
Name (Printed or Type)
United Bank and Trust Company hereby acknowledges, accepts and approves this
Agreement on the date first written above.
UNITED BANK AND TRUST COMPANY
By:
-----------------------------
Xxxx X. Xxxxxx, Chairman
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