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EXHIBIT 10(B)(2)
AMENDED AND RESTATED LOAN AGREEMENT
By and Between
THE COLONIAL BANCGROUP, INC.,
a Delaware corporation
(the "Borrower")
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION
F/K/A SUN BANK, NATIONAL ASSOCIATION,
a national banking association
(the "Bank")
December , 1996
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TABLE OF CONTENTS
(The Table of Contents for this Amended and Restated Loan Agreement is for
convenience of reference only and is not intended to define, limit or describe
the scope or intent of any provisions of this Amended and Restated Loan
Agreement.)
Page
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ARTICLE ONE DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01 Definitions 1
"Advance" 1
"Agreement" 2
"Average Total Assets" 2
"Banking Day" 2
"Borrower's Loan Certificate" 2
"Collateral" 2
"Day" 2
"Default" 2
"Default Rate" 2
"Dollars" 2
"Due Date" 2
"Events of Default" 2
"GAAP" 2
"IRS Code" 2
"Initial Advance" 2
"Initial Advance Date" 2
"Interest Period" 2
"Interest Rate" or "Interest Rates" 3
"Interest Rate Determination Date" 3
"Liabilities" 3
"LIBOR" 3
"LIBOR Loan" 3
"Loan" or "Loans" 3
"Loan Documents" 3
"Margin Securities" 3
"Maturity Date" 3
"Net Income" 3
"Net Loans" 3
"Non-Accrual Loans" 3
"Non-Performing Assets" 3
"Non-Performing Assets to Net Loans Ratio" 4
"Note" or "Notes" 4
"Obligations" 4
"Officer's Certificate" 4
"Opinion" 4
"Other Real Estate" 4
"Person" 4
"Places of Business" 4
"Pledge Agreement" 4
"Primary Capital" 4
"Primary Capital to Total Assets Ratio" 4
"Prime Loan" 5
"Prime Rate" 5
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"Principal Place of Business" 5
"Restructured Loans" 5
"Return on Assets Ratio" 5
"Revolving Loan" 5
"Revolving Period" 5
"Subsequent Advances" 5
"Subsidiary" or "Subsidiaries" 5
"Term Loan" 5
"Term Note" 6
"Treasury Loan" 6
"Treasury Rate" 6
"UCC" 6
SECTION 1.02 Accounting Terms; Testing of Financial Ratios. 6
SECTION 1.03 Subsidiary Compliance. 6
ARTICLE TWO AMOUNTS AND TERMS OF THE LOANS 6
SECTION 2.01 (a) Revolving Loan 6
(b) Term Loan 7
SECTION 2.02 Advances; Interest Rate Selection 7
SECTION 2.03 Interest on The Notes 8
SECTION 2.04 Restriction on Prepayment 8
SECTION 2.05 Calculation of Interest. 9
SECTION 2.06 Place of Payment. 9
SECTION 2.07 Set-off. 9
SECTION 2.08 Payment of Notes. 9
SECTION 2.09 Application of Payments. 10
ARTICLE THREE REPRESENTATIONS AND WARRANTIES 10
SECTION 3.01 Organization; Corporate Powers; Etc. 10
SECTION 3.02 Authorization of Loans; Etc. 10
SECTION 3.03 Conflicting Agreements and Other Matters. 11
SECTION 3.04 Financial Statements. 11
SECTION 3.05 Changes in Financial Conditions; Adverse Developments. 11
SECTION 3.06 Tax Returns and Payments. 11
SECTION 3.07 Agreements. 12
SECTION 3.08 Title to Properties and Assets; Liens; Etc. 12
SECTION 3.09 Securities Acts. 12
SECTION 3.10 Regulation G; Etc. 12
SECTION 3.11 Litigation; Etc. 13
SECTION 3.12 Regulation U 13
SECTION 3.13 Patents; Trademarks; Franchises; Etc. 13
SECTION 3.14 Governmental Consent. 13
SECTION 3.15 Holding Company Status. 13
SECTION 3.16 Investment Company Status. 13
SECTION 3.17 Outstanding Debt. 14
SECTION 3.18 Consents and Approvals. 14
SECTION 3.19 Places of Business. 14
SECTION 3.20 Priority of Security Interest. 14
ARTICLE FOUR COVENANTS OF THE BORROWER 14
SECTION 4.01 Affirmative Covenants. 14
(a) Accounting: Financial Statements; Etc. 14
(b) Inspection. 15
(c) Maintenance of Corporate Existence; Compliance with Laws. 15
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(d) Notice of Default 15
(e) Maintenance of Properties 15
(f) Notice of Suit; Proceedings; Adverse Change. 16
(g) Insurance 16
(h) Debts and Taxes and Liabilities 16
(i) Notification of Change of Name or Business Location. 16
(j) Further Assurances; Additional Collateral Documents. 16
(k) Financial Covenants 17
(l) Use of Proceeds 17
SECTION 4.02 Negative Covenants 17
(a) Sale of Assets 17
(b) Acquisition or Mergers 17
(c) Fiscal Year 17
(d) Changes in Business 17
(e) Other Agreements 18
(f) Additional Indebtedness 18
ARTICLE FIVE CONDITIONS OF LENDING 18
SECTION 5.01 Representations and Warranties 18
SECTION 5.02 No Default 18
SECTION 5.03 Loan Documents 18
SECTION 5.04 Supporting Documents 18
SECTION 5.05 Loans Permitted by Applicable Laws 19
SECTION 5.06 Proceedings 19
ARTICLE SIX EVENTS OF DEFAULT 19
SECTION 6.01 Events of Default 19
(a) Monetary Default 19
(b) Non-Monetary Default 19
(c) Third Party Default 20
(d) False Representation 20
(e) Bankruptcy or Insolvency 20
(f) Dissolution 20
(g) Fraudulent Conveyance 20
(h) Pledge Agreement 20
(i) Affiliate or Subsidiary Default 20
ARTICLE SEVEN RIGHTS UPON DEFAULT 21
SECTION 7.01 Acceleration 21
SECTION 7.02 Right of Setoff 21
SECTION 7.03 Other Rights 21
SECTION 7.04 Uniform Commercial Code 21
ARTICLE EIGHT MISCELLANEOUS 21
SECTION 8.01 No Waiver; Cumulative Remedies 21
SECTION 8.02 Amendments; Etc 21
SECTION 8.03 Addresses for Notices; Etc 21
SECTION 8.04 Applicable Law 22
SECTION 8.05 Survival of Representations and Warranties. 22
SECTION 8.06 Time of the Essence 22
SECTION 8.07 Headings 22
SECTION 8.08 Severability 22
SECTION 8.09 Counterparts 23
SECTION 8.10 Conflict 23
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SECTION 8.11 Term. 23
SECTION 8.12 Expenses. 23
SECTION 8.13 Successors and Assigns. 23
SECTION 8.14 No Third Party Beneficiaries. 23
SECTION 8.15 Venue 23
SECTION 8.16 WAIVER OF JURY TRIAL 24
SECTION 8.17 Entire Agreement. 24
SIGNATURES AND SEALS
EXHIBIT "A" - List of Places of Business
EXHIBIT "B" - List of Representatives of Borrower
EXHIBIT "C" - List of Subsidiaries
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT made and entered into this
____ day of December, 1996 by and between:
THE COLONIAL BANCGROUP, INC., a Delaware corporation, with its
corporate offices located at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, (hereinafter referred to as the
"Borrower");
and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION F/K/A SUN
BANK, NATIONAL ASSOCIATION, a national banking association,
000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank previously extended to the Borrower (i) a revolving
line of credit loan up to the maximum principal amount of $15,000,000.00
pursuant to the terms of that certain Loan Agreement dated as of August 29, 1995
and (ii) a term loan up to the maximum principal amount of $15,000,000.00
pursuant to the terms of that certain Loan Agreement dated as of August 6, 1993;
and
WHEREAS, the Borrower has requested the Bank to renew and increase said
revolving line of credit loan up to the maximum principal amount of
$35,000,000.00 and to renew and increase said term loan up to the maximum
principal amount of $15,500,000.00; and
WHEREAS, the Bank is willing to extend and increase such loans upon the
terms and conditions set forth in this Agreement and the Bank and the Borrower
have agreed to amend and restate each of the Loan Agreements noted above.
NOW, THEREFORE, for and in consideration of the above premises and the
mutual covenants and agreements contained herein, the Borrower and the Bank
agree as follows:
ARTICLE ONE
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 DEFINITIONS. For the purposes of this Agreement, the
following terms shall have the respective meanings specified in this Section
1.01 (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"ADVANCE" shall mean individually and collectively the proceeds of the
Revolving Loan delivered to the Borrower by the Bank pursuant to Section 2.02
hereof.
"AGREEMENT" shall mean this Amended and Restated Loan Agreement as
originally executed by the parties hereto and all permitted supplements,
amendments, modifications and restatements hereof.
"AVERAGE TOTAL ASSETS" shall mean twenty-five percent (25.0%) of the
aggregate sum of the Borrower's consolidated total assets as indicated on the
Borrower's four (4) most recent quarterly financial statements submitted
pursuant to Section 4.01 (a) (i) hereof.
"BANKING DAY" shall mean that part of any day for dealings by and
between banks, excluding Saturday,
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Sunday or a day in which commercial banks are authorized to close under the laws
of the State of Florida.
"BORROWER'S LOAN CERTIFICATE" shall mean the Certificate of the
Secretary or Assistant Secretary of the Borrower referred to in and required by
Section 5.04(a) of this Agreement.
"COLLATERAL" shall mean one hundred percent (100%) of the issued and
outstanding shares of common stock of all present and future Subsidiaries of the
Borrower.
"DAY" shall mean a calendar day, unless the context indicates
otherwise.
"DEFAULT" shall mean any event or condition which with the passage of
time or giving of notice, or both, would constitute an Event of Default.
"DEFAULT RATE" shall mean (i) twenty five percent (25%) per annum or
(ii) the highest rate of interest permitted from time to time by applicable law,
whichever is less.
"DOLLARS" shall mean lawful money of the United States of America.
"DUE DATE" shall mean the date any payment of principal or interest is
due and payable on the Loans or the Notes.
"EVENTS OF DEFAULT" shall mean the events of default specified in
Article Six of this Agreement and each of the Events of Default shall be an
"Event of Default".
"GAAP" shall mean generally accepted accounting principles consistently
applied to the particular item.
"IRS CODE" shall mean the Internal Revenue Code of 1986, as amended.
"INITIAL ADVANCE" shall mean the initial delivery of a portion of the
proceeds of the Revolving Loan pursuant to the terms hereof.
"INITIAL ADVANCE DATE" shall mean the date of this Agreement.
"INTEREST PERIOD" shall mean any interest period applicable to a
particular Advance on a Loan which, in the case of a Prime Loan, shall be thirty
(30) days, and, in the case of either a LIBOR Loan or Fixed Rate Loan, shall be
determined in accordance with Section 2.02 hereof.
"INTEREST RATE" OR "INTEREST RATES" shall mean the fluctuating interest
rate(s) applicable to the Loans, which shall equal either (i) LIBOR plus one
hundred fifty (150) basis points or (ii) Prime Rate or (iii) the Treasury Rate
plus one hundred fifty (150) basis points; provided, however, the Interest Rate
shall never exceed the maximum rate allowable by law.
"INTEREST RATE DETERMINATION DATE" shall mean each date for calculating
LIBOR, the Prime Rate or the Treasury Rate, as the case may be, for the purpose
of determining the Interest Rate with respect to a particular Interest Period
which date shall be the fifth (5th) Banking Day prior to the first day of the
related Interest Period in the case of a borrowing which is a Prime Loan, LIBOR
Loan or Treasury Rate Loan.
"LIABILITIES" shall mean all of the liabilities and obligations of the
Borrower all determined in accordance with GAAP.
"LIBOR" shall mean, with respect to any Interest Period, the interest
rate in effect on the
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applicable Interest Rate Determination Date for the applicable Interest Period
as published from time to time in Telerate or such other publication as may be
designated by the Bank from time to time.
"LIBOR LOAN" shall mean that portion of a Loan bearing interest based
upon LIBOR.
"LOAN" OR "LOANS" shall mean the Revolving Loan and the Term Loan.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Pledge
Agreement, and all of the other documents, agreements, certificates, schedules,
notes, statements, financing statements and opinions, however described,
referenced herein or executed or delivered pursuant hereto or in connection with
or arising with the Loans or the transactions contemplated by this Agreement.
"MARGIN SECURITIES" shall mean any "margin securities" within the
meaning of Regulation G of the Board of Governors of the Federal Reserve System
(12 CFR Part 207).
"MATURITY DATE" shall mean the earlier of an Event of Default or
October 30, 2001.
"NET INCOME" shall mean, for any period, the aggregate of the net
income of the Borrower, determined in accordance with GAAP.
"NET LOANS" shall mean the sum of the Borrower's (i) total loans less
unearned income (ii) Other Real Estate plus (iii) repossessions less (iv)
mortgages held for sale in the ordinary course of business.
"NON-ACCRUAL LOANS" shall mean loans extended by the Borrower or its
Subsidiaries in which the accrual of interest has been discontinued due to a
deterioration in the financial condition of any borrower.
"NON-PERFORMING ASSETS" shall mean the sum of the Borrower's and its
Subsidiaries' (i) Non-Accrual Loans (ii) Other Real Estate (iii) Restructured
Loans and (iv) repossessions.
"NON-PERFORMING ASSETS TO NET LOANS RATIO" shall mean the ratio of the
Borrower's and its Subsidiaries' Non-Performing Assets to its Net Loans
determined quarterly at the end of each fiscal quarter of the Borrower on a
rolling four quarters basis by averaging each such ratio for the most recently
ended fiscal quarter and the three fiscal quarters immediately preceding the
most recently ended fiscal quarter.
"NOTE" OR "NOTES" shall mean the Revolving Note and/or the Term Note,
as the context may require.
"OBLIGATIONS", with respect to the Borrower, shall mean, individually
and collectively, the payment and performance duties, obligations and
liabilities of the Borrower to the Bank, evidenced by the Notes, together with
all accrued but unpaid interest thereon, and all other payment and performance
duties, obligations and liabilities of the Borrower to the Bank, however and
whenever incurred, acquired or evidenced, whether primary or secondary, direct
or indirect, absolute or contingent, sole or joint and several, or due or to
become due, including, without limitation, all such duties, obligations and
liabilities of the Borrower to the Bank, under and pursuant to this Agreement,
the Notes and the Pledge Agreement and all renewals, modifications or extensions
of any thereof.
"OFFICER'S CERTIFICATE" shall mean a certificate signed in the name of
Borrower, by its President, one of its Vice Presidents, or its Treasurer.
"OPINION" shall mean the legal opinion of counsel to the Borrower, in
form and substance acceptable to the Bank.
"OTHER REAL ESTATE" shall mean the real estate acquired by the Borrower
or any of the Subsidiaries
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as a result of the deterioration of the financial condition of any borrower.
"PERSON" shall mean any individual, joint venturer, partnership, firm,
corporation, trust, unincorporated organization or other organization or entity,
or a governmental body or any department or agency thereof, and shall include
both the singular and the plural.
"PLACES OF BUSINESS" shall mean any location in which the Borrower
undertakes its business, all as set forth in Exhibit "A" attached hereto.
"PLEDGE AGREEMENT" shall mean the amended and restated pledge agreement
of the Borrower pledging and granting a security interest to the Bank in the
Collateral, in form and substance acceptable to the Bank, and all supplements
and amendments thereto and modifications and restatements thereof.
"PRIMARY CAPITAL" shall mean the sum of the Borrower's and its
Subsidiaries' (i) total equity capital (ii) allowance for loan and lease losses
and (iii) minority interest in consolidated Subsidiaries.
"PRIMARY CAPITAL TO TOTAL ASSETS RATIO" shall mean the ratio of the
Borrower's Primary Capital to its total assets determined quarterly at the end
of each fiscal quarter of the Borrower on a rolling four quarters basis by
averaging each such ratio for the most recently ended fiscal quarter and the
three fiscal quarters immediately preceding the most recently ended fiscal
quarter.
"PRIME LOAN" shall mean that portion of a Loan bearing interest based
upon the Prime Rate.
"PRIME RATE" shall mean the floating interest rate announced by
SunTrust Banks, Inc., from time to time, as the prime rate (which interest rate
is only a bench xxxx, is purely discretionary and is not necessarily the best or
lowest interest rate charged borrowing customers of any subsidiary bank of
SunTrust Banks, Inc.), with any change in the Prime Rate to be effective at
12:01 A.M. on the day any such change in the Prime Rate is announced by SunTrust
Banks, Inc.
"PRINCIPAL PLACE OF BUSINESS" shall mean the principal place of
business and the headquarters of the Borrower at which all of its records are
kept, currently at the address set forth in the preamble to this Agreement.
"RESTRUCTURED LOANS" shall mean loans extended by the Borrower or its
Subsidiaries that have been restructured to provide a reduction or deferral of
interest or principal because of a deterioration in the financial condition of
any borrower.
"RETURN ON ASSETS RATIO" shall mean the ratio of the Borrower's net
income for the current quarter and preceding three quarters to its average total
assets determined quarterly at the end of each fiscal quarter of the Borrower on
a rolling four quarters basis by averaging each such ratio for the most recently
ended fiscal quarter and the three fiscal quarters immediately preceding the
most recently ended fiscal quarter.
"REVOLVING LOAN" shall mean the loan or loans up to but not exceeding
the principal amount of $35,000,000.00 made to the Borrower by the Bank pursuant
to and in accordance with the terms of this Agreement.
"REVOLVING NOTE" shall mean the Borrower's promissory note or notes
evidencing the Revolving Loan, in form acceptable to the Bank, and any and all
allonges thereto, and any and all extensions, renewals or modifications thereof.
"REVOLVING PERIOD" shall mean the period during the term of the
Revolving Loan, commencing on the date hereof and ending on the occurrence of
(i) an Event of Default or (ii) October 30, 1998 or (iii) such later date as the
Bank may in its absolute discretion agree to in writing, whichever first occurs.
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"SUBSEQUENT ADVANCES" with respect to the Borrower, shall mean
individually and collectively all Advances hereunder after the Initial Advance.
"SUBSIDIARY" OR "SUBSIDIARIES" shall mean, individually or
collectively, as the context may require, any national or state banking
association, corporation or other entity whose assets and income are at any time
includible in the financial statements of the Borrower in accordance with GAAP,
and shall include subsidiaries of a Subsidiary.
"TERM LOAN" shall mean the term loan extended by the Bank to the
Borrower in the original principal amount of $15,500,000.00.
"TERM NOTE" shall mean the note or notes evidencing the Term Loan
together with any and all amendments, modifications, supplements or renewals
thereto or thereof.
"TREASURY LOAN" shall mean that portion of a Loan bearing interest
based upon the Treasury Rate.
"TREASURY RATE" shall mean the annual yield on the highest yielding
United States Treasury issue maturing in the calendar month closest to the
Maturity Date of the applicable Note, as published in the Wall Street Journal on
the Interest Rate Determination Date.
"UCC" shall mean the Florida Uniform Commercial Code, as amended.
SECTION 1.02 ACCOUNTING TERMS; TESTING OF FINANCIAL RATIOS. All
accounting terms used herein shall be construed in accordance with GAAP and all
financial data submitted pursuant to this Agreement shall be prepared in
accordance with GAAP. In the event of ambiguities in GAAP, the more conservative
principle or interpretation shall be used. All financial ratios and covenants
contained herein shall be tested quarterly, as at the end of each fiscal quarter
of the Company, commencing with the fiscal quarter ending as at December 31,
1996. Compliance with such ratios and covenants shall be tested on a "rolling
four (4) quarters" basis by calculating the average of each such ratio for the
most recently ended fiscal quarter and the three (3) fiscal quarters immediately
preceding the most recently ended fiscal quarter determined on an "as reported"
basis.
SECTION 1.03 SUBSIDIARY COMPLIANCE. Whenever the term Borrower is used
throughout this Agreement, it shall also mean to include, if applicable in the
context as so used, Subsidiaries such that the Borrower and each of the
Subsidiaries shall perform, be in compliance with or otherwise discharge the
applicable term or condition of this Agreement.
ARTICLE TWO
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01 (A) REVOLVING LOAN. The Bank agrees from time to time
during the Revolving Period to lend to the Borrower on the terms and conditions
set forth herein, upon the Borrower's request, up to the aggregate principal
amount of $35,000,000.00. During the Revolving Period, the Borrower shall be
entitled to receive the entire proceeds of the Revolving Loan in one or more
Advances pursuant to Section 2.02 hereof, except as otherwise specifically set
forth in this Agreement. Advances under the Revolving Loan shall be evidenced by
the Revolving Note in the principal amount of $35,000,000.00, payable as
provided in Section 2.08 hereof. After the expiration of the Revolving Period,
the Borrower shall not be entitled to receive any Subsequent Advance. The
Revolving Loan may revolve during the Revolving Period; accordingly, during the
Revolving Period, the Borrower may borrow up to the maximum principal amount
available under said Revolving Loan, repay all or any portion of such principal
amount of said Revolving Loan, and reborrow up to such maximum principal amount,
subject to the terms and
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conditions set forth herein.
(B) TERM LOAN. The Bank agrees to extend to the Borrower the proceeds
of the Term Loan upon the term and conditions set forth herein.
SECTION 2.02 ADVANCES; INTEREST RATE SELECTION. (a) On the Initial
Advance Date and upon satisfaction of the conditions precedent set forth in
Article Five hereof, the Initial Advance with respect to the Revolving Loan and
the proceeds of the Term Loan shall be disbursed by the Bank to or on behalf of
the Borrower. If the Borrower shall fail to satisfy the conditions precedent set
forth in Article Five hereof on the Initial Advance Date, the Bank's commitment
to lend funds to or on behalf of the Borrower shall terminate. After the Initial
Advance and upon continued satisfaction of the conditions precedent set forth in
Article Five hereof, the Borrower shall be entitled to receive Subsequent
Advances under the Revolving Loan.
(b) When requested by the Borrower, the Bank shall, as soon as
practical, provide Borrower with its determination of the then available
Interest Rates offered by the Bank on the Loans for the requested Interest
Periods (which determination shall, absent manifest error, be final, conclusive
and binding upon all parties) and the Borrower shall give the Bank five (5) Days
prior notice (in writing or by telephone confirmed immediately thereafter in
writing), or such other time as may be acceptable to the Bank (an "Interest Rate
Selection Notice") which shall specify (i) the amount(s) of the Advance(s) on
the Loan(s), and (ii) the Borrower's designation of the selected Interest
Rate(s)/Interest Period(s) applicable to the Loans (which may be up to ten (10)
separate Interest Rate(s)/Interest Period(s) with respect to either the
Revolving Loan or the Term Loan). The Bank shall have no duty or obligation to
verify or confirm the authority of the representative of the Borrower requesting
any such Subsequent Advance as long as said person identifies himself as one of
the persons noted on EXHIBIT "B" attached hereto.
(c) By giving notice as set forth hereinabove, the Borrower shall have
the option, subject to the other provisions of this Section 2.02, to specify
whether the Interest Period applicable to a LIBOR Loan commencing on any such
date shall be a period of 30, 60, 90 or 180 Days or such other period as may be
agreed upon between the Borrower and the Bank; provided, that:
(i) in the case of immediately successive Interest Periods,
each successive Interest Period shall commence on the Day on which the
immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a Day
which is not a Banking Day, that Interest Period shall be extended to expire on
the next succeeding Banking Day; provided, that if any such Interest Period
would otherwise expire on a Day which is not a Banking Day but is a Day of the
month after which no further Banking Day occurs in that month, that Interest
Period shall expire on the next preceding Banking Day;
(iii) any Interest Period which begins on the last Banking Day
of a calendar month (or on a Day for which there is no numerically corresponding
Day in the calendar month at the end of such Interest Period) shall end on the
last Banking Day of a calendar month;
(iv) (A) no Interest Period applicable to the Revolving Loan
shall extend beyond, the last day of the Revolving Period, as it may exist from
time to time and (B) no Interest Period applicable to the Term Loan shall extend
beyond the Maturity Date as it may exist from time to time.
(v) if the Borrower fails to timely provide the Bank with an
Interest Rate Selection Notice, the Borrower shall be deemed to have selected
the same Interest Period as was previously in effect for such Advance.
(d) Any Advance for which the Treasury Rate has been selected shall
have an Interest Period that expires on the then scheduled maturity of such
Loan.
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(e) Requests by the Borrower for any Subsequent Advance under the
Revolving Loan on any date shall be in the minimum principal amount of
$10,000.00 or such lesser amount as may be acceptable to the Bank. The Bank
shall make each Subsequent Advance hereunder on the date proposed by the
Borrower therefor (which may be the same Banking Day if such request is made by
the Borrower and is received by the Bank prior to 1:00 p.m. Orlando time),
otherwise no earlier than the following Banking Day) by crediting the amount of
each Subsequent Advance requested by the Borrower to the general deposit account
of the Borrower maintained with the Bank or any other subsidiary bank of
SunTrust Banks, Inc.
SECTION 2.03 INTEREST ON THE NOTES. The Loans shall be evidenced by the
Notes and shall be due and payable in accordance with and as required by Section
2.08. The Borrower shall not be liable under the Notes except with respect to
funds actually advanced to the Borrower by the Bank pursuant to the terms
hereof. The Notes shall bear interest from the date thereof on the unpaid
principal balance thereof from time to time outstanding at the Interest Rate(s)
applicable to any Loan. From and after the Due Date, interest shall accrue on
the unpaid principal balance of the Loans and on all accrued but unpaid interest
thereon, or on any defaulted payment, from the Due Date at the Default Rate.
Such interest shall continue to accrue until the date of payment in full of all
principal and accrued but unpaid interest of such defaulted payment, if
applicable.
SECTION 2.04 RESTRICTION ON PREPAYMENT. (a) Treasury Loans. The
Borrower may not prepay all or any part of the principal amount of a Treasury
Loan outstanding except on the last Banking Day of the Interest Period
applicable to a particular Advance. In the event that a Treasury Loan is prepaid
other than in accordance with the terms hereof, the Borrower agrees to pay upon
demand such amounts as the Bank determines in its good faith judgment to be
required to compensate it for any loss (including the loss of anticipated
profits) direct or indirect costs incurred by reason of the liquidation of
deposits or investments or the redeployment of deposits, investments or funds
acquired by the Bank to fund any such Treasury Loan being prepaid. A certificate
of the Bank claiming compensation under this section delivered to the Borrower
and setting forth the amount to be paid to it and its calculations in support
hereof in reasonable detail shall be, in the absence of manifest error, final,
conclusive and binding.
(b) Prime Loans and LIBOR Loans. The Borrower may prepay all
or any portion of the outstanding principal balance of a Prime Loan or LIBOR
Loan without penalty as provided in this Section 2.04.
Each prepayment other than full payment shall be made prior to 2:00 P.M.
(Orlando time) on the date of the prepayment, and shall be made on a Banking Day
in immediately available funds. All prepayments of a Loan shall be applied as
follows: (i) first to any outstanding costs or fees of the Bank and relating to
its administration of the Loans or exercising its rights hereunder, (ii) next to
the payment of accrued but unpaid interest, and (iii) finally to the principal
then due on the Loans.
SECTION 2.05 CALCULATION OF INTEREST. Any interest due on the Loans or
any other Obligations shall be calculated on the basis of a year containing 365
days. The interest due on any date for payment of interest hereunder shall be
that interest to the extent accrued as of midnight on the last Day immediately
prior to that interest payment date. Notwithstanding anything herein or in any
Loan Document to the contrary, the sum of all interest and all other amounts
deemed interest under Florida or other applicable law which may collected by the
Bank hereunder shall not exceed the maximum lawful interest rate permitted by
such law from time to time. The Bank and the Borrower intend and agree that
under no circumstance shall the Borrower be required to pay interest on the
Loans or on any other Obligations at a rate in excess of the maximum interest
rate permitted by applicable law from time to time, and in the event any such
interest is received or charged by the Bank in excess of that rate, the Borrower
shall be entitled to an immediate refund of any such excess interest by a credit
to and payment toward the unpaid balance of the Loans (such credit to be
considered to have been made at the time of the payment of the excess interest)
with any excess interest not so credited to be immediately paid to the Borrower
by the Bank.
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SECTION 2.06 PLACE OF PAYMENT. All payments by the Borrower under the
Loan Documents shall be made to the Bank at its office located at 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, in lawful money of the United States of America
and in immediately available funds.
SECTION 2.07 SET-OFF. The Borrower hereby grants to the Bank a lien on,
and a security interest in, the deposit balances, accounts, items, certificates
of deposit and monies of the Borrower in the possession of or on deposit with
the Bank or any of its affiliates to secure, and as collateral for, the payment
and performance of the Obligations. Upon Default, the Bank may at any time and
from time to time, without demand or notice, appropriate and set-off against and
apply the same to the Obligations when and as due and payable.
SECTION 2.08 PAYMENT OF NOTES. (a) Revolving Note. The Borrower shall
pay the Revolving Note together with interest at the applicable Interest Rate as
follows:
(i) Interest shall be payable on the last day of each
and every quarter during the Revolving Period commencing on the last day of the
first quarter following the date of the Initial Advance.
(ii) The entire unpaid principal balance together
with accrued interest shall be due and payable in full on the last day of the
Revolving Period.
(b) Term Note. The Borrower shall pay the Term Note together
with interest at the applicable Interest Rate as follows:
(i) Interest shall be payable monthly on the last Day
of each calendar month, until the Maturity Date.
(ii) The outstanding principal balance of the Term
Loan shall be payable in equal quarterly installments of $258,333.34, commencing
March 31, 1997 and continuing on the same Day of each and every succeeding
quarter until the Maturity Date, whereupon the entire remaining outstanding
principal balance, together with all accrued but unpaid interest, shall be due
and payable in full.
SECTION 2.09 APPLICATION OF PAYMENTS. All payments (other than
prepayments as set forth in Section 2.04) made on the Notes shall be applied
first to interest accrued to the date of payment and next to the unpaid
principal balance; provided, however, in the event an Event of Default occurs,
payments shall be applied first to any costs or expenses, including attorneys
fees, that the Bank may incur in exercising its rights under the Loan Documents,
as the Bank may determine.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank that:
SECTION 3.01 ORGANIZATION; CORPORATE POWERS; ETC. (a) The Borrower (i)
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, (ii) has all requisite power and authority,
corporate and otherwise, to own its respective properties and assets and to
carry on its respective businesses as now conducted and proposed to be
conducted, (iii) is duly qualified to do business and are in good standing in
every jurisdiction in which the character of its properties or assets owned or
the nature of its activities conducted makes such qualification necessary
including the State of Florida, and (iv) has the corporate power and authority
to execute and deliver, and to perform its respective obligations under this
Agreement, the Notes, the Pledge Agreement and the other Loan Documents.
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(b) Each Subsidiary of the Borrower (i) is a corporation duly
organized, validly existing and in good standing under the laws of the United
States of America or the jurisdiction in which formed, (ii) has all requisite
power and authority, corporate and otherwise, to own its respective properties
and assets and to carry on its respective businesses as now conducted and
proposed to be conducted, (iii) is duly qualified to do business and are in good
standing in every jurisdiction in which the character of its properties or
assets owned or the nature of its activities conducted makes such qualification
necessary including the State of Florida, and (iv) has the corporate power and
authority to execute and deliver, and to perform its respective obligations
under the Loan Documents to which it is a party.
SECTION 3.02 AUTHORIZATION OF LOANS; ETC. The execution, delivery and
performance of the Loan Documents by the Borrower (a) have been duly authorized
by all requisite action, corporate or otherwise, (no shareholder action being
required pursuant to applicable law) and (b) will not (i) violate (A) any
provision of law, any governmental rule or regulation, any order of any court or
other agency of government or the Articles of Incorporation or by-laws of the
Borrower or (B) any provision of any indenture, agreement or other instrument to
which the Borrower is a party or by which the Borrower or any of its properties
or assets are bound, (ii) be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or (iii) result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Borrower other than as permitted by the terms
hereof.
SECTION 3.03 CONFLICTING AGREEMENTS AND OTHER MATTERS. The Borrower is
not a party to any contract or agreement or subject to any charter, corporate,
or other restriction which materially and adversely affects its business,
property or assets, or financial condition. Neither the execution nor delivery
of this Agreement, the Notes, the Pledge Agreement or the other Loan Documents,
nor fulfillment of nor compliance with the terms and provisions hereof or the
other Loan Documents will conflict with, or result in a breach of the terms,
conditions or provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any lien upon any of the properties
or assets of the Borrower pursuant to, the charter or by-laws of the Borrower,
any award of any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which the Borrower is subject. The Borrower is not a party to, or
otherwise subject to any provision contained in, any instrument evidencing
indebtedness of the Borrower, any agreement relating thereto or any other
contract or agreement (including in the case of a non-natural person, its
charter) which restricts or otherwise limits the incurring of the debt to be
evidenced by the Notes.
SECTION 3.04 FINANCIAL STATEMENTS. The Borrower has furnished the Bank
with the following financial statements, certified to be correct by a principal
financial officer of the Borrower: (i) audited balance sheets of the Borrower as
at December 31, 1994 and 1995, and (ii) audited profit and loss and surplus
statement of the Borrower for the fiscal years ended on such dates, all prepared
by Coopers & Xxxxxxx and (iii) the call reports of each Subsidiary bank (signed
and certified to the Bank by an authorized officer of each Subsidiary and (iv)
the 10-Q reports and 10-K reports of the Borrower and any related reports on
Form 8-K for a period from December 31, 1992 through the date hereof. Such
financial statements (including any related schedules and/or notes) are true and
correct in all material respects (subject, as to interim statements, to changes
resulting from audits and year-end adjustments) and have been prepared in
accordance with GAAP and show all liabilities, direct and contingent, required
to be shown in accordance with such principles of the various entities and
individuals to which they relate. The balance sheets fairly present the
financial condition of the various entities and individuals to which they relate
as at the dates thereof, and the profit and loss and surplus statements fairly
present the results of the operations of the various entities and individuals to
which they relate for the periods indicated. There has been no material adverse
change in the business, condition or operations (financial or otherwise) of the
Borrower taken as a whole since the date of the latest financial statement
referred to above.
SECTION 3.05 CHANGES IN FINANCIAL CONDITIONS; ADVERSE DEVELOPMENTS.
From the date of the latest annual financial statements referenced in Section
3.04 hereof, to the date of this Agreement, there
15
has been, and to the date of the Initial Advance and each Subsequent Advance
there will be, no change in the properties, assets, liabilities, financial
condition, business, operations, affairs or prospects of the Borrower from that
set forth or reflected in the latest fiscal year-end balance sheets referred to
in Section 3.04, other than changes in the ordinary course of business,
including acquisitions, none of which have been, either in any case or in the
aggregate, materially adverse.
SECTION 3.06 TAX RETURNS AND PAYMENTS. All federal, state and local tax
returns and reports of the Borrower required to be filed have been filed, and
all taxes, assessments, fees and other governmental charges upon the Borrower,
or upon any of their respective properties, assets, incomes or franchises, which
are due and payable in accordance with such returns and reports, have been paid,
other than those presently (a) payable without penalty or interest, or (b)
contested in good faith and by appropriate and lawful proceedings prosecuted
diligently. The aggregate amount of the taxes, assessments, charges and levies
so contested is not material to the condition (financial or otherwise) and
operations of the Borrower, as applicable. The charges, accruals, and reserves
on the books of the Borrower in respect of federal, state and local taxes for
all fiscal periods to date are adequate and the Borrower knows of any other
unpaid assessment for additional federal, state or local taxes for any such
fiscal period or of any basis therefor. The Borrower has and will establish all
necessary reserves and make all payments required of them to be set aside or
made in regard to all F.I.C.A., withholding, sales or excise, and all other
similar federal, state and local taxes.
SECTION 3.07 AGREEMENTS.
(a) The Borrower is not a party to any agreement, indenture, lease or
instrument or subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree, rule or regulation materially and
adversely affecting its respective business, properties, assets, operations or
condition (financial or otherwise). There are no material unrealized losses with
respect to any such agreement, indenture, lease or instrument.
(b) The Borrower is not in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
material agreement or instrument to which it is a party.
(c) The Borrower enjoys peaceful and undisturbed possession in all
material respects under all leases as to which they are a lessee and all such
leases are valid and subsisting and in full force and effect.
SECTION 3.08 TITLE TO PROPERTIES AND ASSETS; LIENS; ETC. The Borrower
has good and marketable title to its respective real properties other than
properties which it leases and good title to all of its other properties and
assets, including the properties and assets reflected in the latest balance
sheet described in Section 3.04 hereinabove (other than properties and assets
disposed of in the ordinary course of business); provided, however, the Borrower
hereby advises and the Bank hereby acknowledges that, the Federal Home Loan Bank
has been granted a security interest in certain residential real estate loans of
the Borrower as collateral for borrowings made by the Borrower from the Federal
Home Loan Bank. Borrower enjoys peaceful and undisturbed possession of all
leases necessary in any material respect for the operation of its respective
properties and assets, none of which contains any unusual or burdensome
provisions which might materially affect or impair the operation of such
properties and assets.
SECTION 3.09 SECURITIES ACTS. Neither the Borrower nor any agent acting
on its behalf has, directly or indirectly, taken or will take any action which
would subject the issuance of the Notes to the provisions of Section 5 of the
Securities Act of 1933, as amended, or to the provisions of any securities or
Blue Sky law of any applicable jurisdiction.
SECTION 3.10 REGULATION G; ETC. Neither the Borrower nor any agent
acting on the behalf of any of them has taken or will take any action which
might cause this Agreement or the Notes to violate
16
Regulation G, T or X or any other regulation of the Board of Governors of the
Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as in effect now or as the same may hereafter be in effect.
SECTION 3.11 LITIGATION; ETC. There are no actions, proceedings or
investigations, however described or denominated, pending or, to the knowledge
of the Borrower, threatened, against the Borrower, or affecting the Borrower (or
any basis therefor known to the Borrower) which, either in any case or in the
aggregate, might result in any material adverse change in the financial
condition, business, prospects, affairs or operations of the Borrower in any of
its properties or assets, or in any material impairment of the right or ability
of the Borrower to carry on its respective operations as now conducted or
proposed to be conducted, or in any material liability on the part of the
Borrower, or which questions the validity of this Agreement, the Notes, the
Pledge Agreement or any of the other Loan Documents or of any action taken or to
be taken in connection with the transactions contemplated hereby or thereby.
SECTION 3.12 REGULATION U. The Borrower is not engaged principally in,
nor has it as one of its important activities, the business of extending credit
for the purpose of purchasing or carrying any Margin Securities. No part of the
proceeds of the Loans hereunder will be used to carry on any margin security
transactions within the meaning of said Regulation.
SECTION 3.13 PATENTS; TRADEMARKS; FRANCHISES; ETC. The Borrower owns or
has the right to use all of the patents, trademarks, service marks, trade names,
copyrights, franchises and licenses, and all rights with respect thereto,
necessary for the conduct of its business as now conducted or proposed to be
conducted without any known conflict with the rights of others, and, in each
case, subject to no mortgage, pledge, lien, lease, encumbrance, charge, security
interest, title retention agreement or option. Each such asset or agreement is
in full force and effect, and the holder thereof has fulfilled and performed all
of its obligations with respect thereto. No event has occurred or exists which
permits, or after notice or lapse of time or both would permit, revocation or
termination, or which materially adversely affects or in the future may (so far
as the Borrower now foresees) materially adversely affect, the rights of such
holder thereof with respect thereto. No other license or franchise is known by
the Borrower to be necessary to the operations of the business of the Borrower
as now conducted or proposed to be conducted.
SECTION 3.14 GOVERNMENTAL CONSENT. Neither the nature of the Borrower
nor any relationship between any other Person, nor any circumstance in
connection with the Loans or the issuance and delivery of the Notes is such as
to require any consent, approval or other action by or any notice to or filing
with any court or administrative or governmental body (other than routine
filings after the date of any closing with the Securities and Exchange
Commission and/or State Blue Sky authorities) in connection with the execution
and delivery of this Agreement, the Loans or the issuance and delivery of the
Notes or fulfillment of or compliance with the terms and provisions hereof or of
the Notes.
SECTION 3.15 HOLDING COMPANY STATUS. The Borrower is not a holding
company, or a subsidiary or affiliate of a holding company, or a public utility,
within the meaning of the Public Utility Holding Company Act of 1935, as
amended, or a public utility within the meaning of the Federal Power Act, as
amended.
SECTION 3.16 INVESTMENT COMPANY STATUS. The Borrower is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as amended.
SECTION 3.17 OUTSTANDING DEBT. On the date of the Initial Advance, the
Borrower does not have any outstanding funded Liabilities or current
Liabilities, except as reflected in the latest year end financial statements of
the Borrower referred to in Section 3.04 hereof and changes thereto resulting
from the ordinary course of business. There exists no default and, after giving
effect to the transactions contemplated in this Agreement, there will exist no
default under the provisions of any instrument evidencing such Liabilities or of
any agreement relating thereto.
17
SECTION 3.18 CONSENTS AND APPROVALS. No authorization, license,
consent, approval, or undertaking is required under any applicable law in
connection with the execution, delivery and performance by the Borrower of this
Agreement, the Notes, the Pledge Agreement or any of the other Loan Documents.
SECTION 3.19 PLACES OF BUSINESS. The Places of Business set forth in
EXHIBIT "A" attached hereto are true and correct and set forth, whenever
applicable, whether said Place of Business is owned or leased by the Borrower
and, if leased, the name and address of the lessor.
SECTION 3.20 PRIORITY OF SECURITY INTEREST. The pledge of and security
interest in the Collateral is a first priority security interest and there will
be no other security interests or other encumbrances upon the Collateral during
the term of the Loans.
SECTION 3.21 SUBSIDIARIES. As of the date of this Agreement, the
Borrower's Subsidiaries are identified on the attached EXHIBIT "C".
ARTICLE FOUR
COVENANTS OF THE BORROWER
SECTION 4.01 AFFIRMATIVE COVENANTS. The Borrower covenants, for so long
as any of the principal amount of or interest on the Notes is outstanding and
unpaid or any duty or obligation of the Borrower or the Bank hereunder or under
any of the other Obligations remains unpaid or unperformed, as follows:
ACCOUNTING: FINANCIAL STATEMENTS; ETC. The Borrower will
deliver or cause to be delivered to the Bank copies of each of the following:
(i) as soon as practicable and in any event within forty-five
(45) days after the end of each quarterly period during the term of this
Agreement, internally generated financial statements of the Borrower for the
period from the beginning of the current fiscal year to the end of such quarter,
in reasonable detail and certified by the Chief Financial Officer of the
Borrower;
(ii) as soon as practicable and in any event within ninety
(90) days after the end of each fiscal year, audited profit and loss statement,
reconciliation of surplus statement, and source and application of funds
statement of the Borrower for such year, and an audited balance sheet of the
Borrower as at the end of such year, setting forth in each case in comparative
form corresponding figures from the preceding annual audit, all in form and
scope acceptable to the Bank, reviewed by a certified public accountant
acceptable to the Bank, all in reasonable detail and certified to the Bank by
the Chief Financial Officer of the Borrower;
(iii) promptly upon the preparation thereof, copies of all
quarterly call reports submitted by the Subsidiaries to all appropriate federal
and/or state regulatory agencies;
(iv) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices, and reports as the Borrower
shall send to all stockholders and of all registration statements (with
exhibits) and all reports which the Borrower is or may be required to file with
the Securities and Exchange Commission or any governmental body or agency
succeeding to the functions of such Commission;
(v) promptly upon receipt thereof, a copy of each other report
submitted to the Borrower by independent accountants in connection with any
annual, interim or special audit made by them of the books of the Borrower or
any Subsidiary; and
18
(vi) such other information as from time to time may be
reasonably required from time to time by the Bank.
INSPECTION. The Borrower and the Subsidiaries will permit the
Bank to visit and inspect any of their properties and places of business,
including their books and records (and to make extracts therefrom to the extent
reasonably related to credit-worthiness), and to discuss their affairs, finances
and accounts with their officers and employees as the case may be, all at such
reasonable times and as often as may reasonably be requested.
MAINTENANCE OF CORPORATE EXISTENCE; COMPLIANCE WITH LAWS. The
Borrower shall at all times preserve and maintain in full force and effect its
respective existence, powers, rights, licenses, permits and franchises in the
jurisdiction of its incorporation; continue to conduct and operate its
businesses substantially as conducted and operated during the present and
preceding fiscal year; operate in substantial compliance with all applicable
laws, statutes, regulations, certificates of authority and orders in respect of
the conduct of its business; and qualify and remain qualified as a foreign
entity in each jurisdiction in which such qualification is necessary or
appropriate in view of their business and operations.
NOTICE OF DEFAULT. The Borrower shall immediately notify the
Bank in writing upon the happening, occurrence or existence of any Event of
Default or Default and shall provide the Bank with such written notice, a
detailed statement by a responsible officer of the Borrower of all relevant
facts and the action being taken or proposed to be taken by the Borrower with
respect thereto.
MAINTENANCE OF PROPERTIES. The Borrower shall maintain or
cause to be maintained in good repair, working order and condition all
properties used in its business including, but not limited to, any real property
and all improvements located thereon, and from time to time will make or cause
to be made all appropriate repairs, renewals, improvements and replacements
thereof so that the businesses carried on in connection therewith may be
properly conducted at all times. The Borrower will not do or permit any act or
thing which might materially impair the value or commit or permit any material
waste of its properties or any part thereof, or permit any unlawful occupation,
business or trade to be conducted on or from any of its properties. To the
extent the Borrower leases any of Places of Business, it shall maintain and keep
current at all times all leases for said Places of Business.
NOTICE OF SUIT; PROCEEDINGS; ADVERSE CHANGE. The Borrower
shall promptly give the Bank notice in writing (a) of all threatened or actual
actions or suits (at law or in equity) and of all threatened or actual
investigations or proceedings by or before any court, arbitrator or any
governmental department, commission, board, bureau, agency or other
instrumentality, state, federal or foreign, affecting the Borrower or its rights
or properties, (i) which involves potential liability in an amount in excess of
$2,500,000.00 or (ii) which the Borrower believes in good faith is likely to
materially and adversely affect the financial condition of the Borrower or to
impair the right or ability of the Borrower to carry on its businesses as now
conducted or to pay the Obligations or perform the duties under the Loan
Documents; (b) of any material adverse change in the condition (financial or
otherwise) of the Borrower or any of the Subsidiaries; (c) of any seizure or
levy upon any material part of their properties under any process or by a
receiver and (d) of any memorandum or understanding, cease and desist order or
similar action taken by any state or federal regulatory body against the
Borrower of any or its Subsidiaries.
INSURANCE. The Borrower shall timely procure and maintain and
comply with such insurance and policies of insurance (including without
limitation public liability, property damage and casualty business interruption)
as may be required by law and such other insurance, to such extent and against
such hazards and liabilities, as is customarily maintained by parties similarly
situated, and to furnish to the Bank upon its request evidence of said insurance
and further providing for 30 Days notice to the Bank prior to any material
amendment, expiration or cancellation thereof.
DEBTS AND TAXES AND LIABILITIES. The Borrower shall pay and
discharge (i) all of its respective indebtedness and obligations in accordance
with their terms and before they shall become in
19
default, (ii) all taxes, assessments and governmental charges or levies imposed
upon any of them or upon their income and profits or against its properties,
prior to the date on which penalties attach thereto, and (iii) all lawful claims
which, if unpaid, might become a lien or charge upon any of its properties;
provided, however, that the Borrower shall not be required to pay any such
indebtedness, obligation, tax, assessment, charge, levy or claim which is being
contested in good faith by appropriate and lawful proceedings diligently
prosecuted and for which adequate reserves (with respect to any material claims)
have been set aside on its books. The Borrower shall also set aside and/or pay
as and when due all monies required to be set aside and/or paid by any federal,
state or local statute or agency in regard to F.I.C.A., withholding, sales or
excise or other similar taxes.
NOTIFICATION OF CHANGE OF NAME OR BUSINESS LOCATION. The
Borrower shall notify the Bank of each change in the name of the Borrower and of
each change of the location of any place of business and the office where the
records of the Borrower are kept, and, in such case, shall execute such
documents as the Bank may reasonably request to reflect said change of name or
change of location, as the case may be; provided, however, the Principal Place
of Business of the Borrower and the office where the records of the Borrower are
kept may not be kept out of or removed from Xxxxxxxxxx County, Alabama without
the prior written consent of the Bank.
FURTHER ASSURANCES; ADDITIONAL COLLATERAL DOCUMENTS. The
Borrower will, at its expense, take all such other action as the Bank may from
time to time reasonably request for the purpose of further assuring to the Bank
the security for the Obligations provided for, or intended to be provided for,
in this Agreement and the other Loan Documents and to confirm the Obligations.
FINANCIAL COVENANTS. As at the end of each of the Borrower's
fiscal quarters, commencing with the fiscal quarter ending December 31, 1996,
the Borrower shall comply with the following financial covenants:
(i) The Borrower shall maintain a Primary Capital to Total
Assets Ratio of at least 6.50%, or shall maintain total risk-based capital of at
least 10.0%; and
(ii) The Borrower shall maintain a Return on Assets Ratio of
at least 0.95%; and
(iii) The Borrower shall maintain a Nonperforming Assets to
Net Loans Ratio of less than 1.50%.
Compliance with each of the financial covenants contained in this
Section 4.1(n) shall be calculated in the manner set forth in Section 1.02 of
this Agreement.
USE OF PROCEEDS. The proceeds of the Revolving Loan shall be
used for the repurchase of the Borrower's outstanding equity stock, future asset
acquisitions, or for any other lawful business purpose.
SECTION 4.02 NEGATIVE COVENANTS. The Borrower covenants, for so long as
any of the principal amount of or interest on the Notes is outstanding and
unpaid or any duty or obligation of the Borrower or the Bank hereunder or under
any of the other Obligations remains unpaid or unperformed, as follows:
SALE OF ASSETS. The Borrower will not sell, lease, assign,
transfer, convey or otherwise dispose of its assets or properties, tangible or
intangible, without prior written notice to the Bank other than the sale of
mortgages in the usual course of business or for the sale of investments
classified as available for sale or trading, or permit any of its Subsidiaries
to do the same; provided, however, in the event the Borrower or any of its
Subsidiaries propose to sell certain real estate equities which it or they now
or at any time during the term hereof own or acquire in connection with
conducting its or their respective business operations, the Bank shall not
unreasonably withhold approval with respect to the sale of any such real estate
equities, such prior notice shall not be required for assets having a book value
of less than $5,000,000 per transaction.
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ACQUISITION OR MERGERS. During the term of this Agreement, the
Borrower shall notify the Bank in writing of any Borrower acquisition, merger or
consolidation with any other Person, provided however, the Borrower shall not,
without the Bank's prior written consent, which consent shall not be
unreasonably withheld, become a party to a merger or consolidation with any
other Person in which the Borrower is not the surviving entity.
FISCAL YEAR. The Borrower will not change its fiscal year
ending December 31 without reasonable notice to the Bank.
CHANGES IN BUSINESS. The primary business of the Borrower will
not change from that conducted by it on the date of this Agreement without the
consent of the Bank.
OTHER AGREEMENTS. Borrower will not enter into any
arrangements, contractual or otherwise, which would materially and adversely
affect its duties or the rights of the Bank under the Loan Documents, or which
is inconsistent with or limits or abrogates the Loan Documents.
ADDITIONAL INDEBTEDNESS. The Borrower shall not create or
assume any liability for money borrowed or the equivalent in excess of the
aggregate amount of $20,000,000.00 during the term of this Agreement, except for
real estate assets pledged to the Federal Home Loan Bank Board of Atlanta in the
usual course of business, the indebtedness permitted by this Agreement,
indebtedness that is subordinated to the Obligations, indebtedness that results
from the sale of commercial paper or similar short term borrowings that arise in
the normal and ordinary course of business or indebtedness relating to any bank
note or deposit note program of any bank Subsidiary.
ARTICLE FIVE
CONDITIONS OF LENDING
The obligation of the Bank to lend hereunder and advance any monies
under the Notes and to make any Advance under Section 2.02 of this Agreement
from time to time are subject to the following conditions precedent:
SECTION 5.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in the Loan Documents are true and correct on and as of the
date hereof, and on the date of each Advance hereunder.
SECTION 5.02 NO DEFAULT. On the date hereof and on the date of each
Advance, the Borrower and each Subsidiary shall be in compliance with all the
terms and provisions set forth in the Loan Documents on its part to be observed
or performed, and no Event of Default or Default, shall have occurred and be
continuing at such time.
SECTION 5.03 LOAN DOCUMENTS. The Borrower shall have delivered or
caused to be delivered to the Bank all the Loan Documents, in form and substance
satisfactory to the Bank, as the Bank may request and all of the Loan Documents
are in full force and effect.
SECTION 5.04 SUPPORTING DOCUMENTS. On or prior to the date hereof, the
Bank shall have received the following supporting documents, all of which shall
be satisfactory in form and substance to the Bank:
(a) a certificate or certificates, dated as of the date hereof, of (i)
the Secretary or any Assistant Secretary of the Borrower certifying (A) that
attached thereto is a true and correct copy of certain resolutions adopted by
its Board of Directors authorizing the execution, delivery and performance of
the Loan Documents and the performance of the obligations of the Borrower and
the borrowings
21
thereunder, which resolutions have not been altered or amended in any respect,
and remain in full force and effect at all times since their adoption; (B) that
attached thereto is a true and correct copy of the Certificate of Incorporation
of the Borrower, and that such Certificate of Incorporation has not been altered
or amended, and no other charter documents have been filed, since the date of
the filing of the last amendment thereto or other charter document as indicated
on the certificate of the Secretary of State of the State of Delaware or other
appropriate public official in any other state of incorporation attached
thereto; (C) that attached thereto is a true and correct copy of the Bylaws of
the Borrower and that such Bylaws are in full force and effect and no amendment
thereto is pending which would in any way affect the ability of the Borrower to
enter into and perform the Obligations contemplated hereby; and (D) the
incumbency and signatures of the officers of the Borrower signing the Loan
Documents and any report, certificate, letter or other instrument or document
furnished by the Borrower in connection therewith, and (ii) another authorized
officer of the Borrower certifying the incumbency and signature of the Secretary
or Assistant Secretary of the Borrower; and
(b) a certificate or certificates of Delaware Secretary of State or
other appropriate public official in any other state of incorporation, dated as
of a recent date, as to the good standing of the Borrower.
SECTION 5.05 LOANS PERMITTED BY APPLICABLE LAWS. The Loans from the
Bank to the Borrower on the terms and conditions herein provided (including the
use of the proceeds of the Loans by the Borrower) shall not violate any
applicable law or governmental regulation (including, without limitation,
Regulations G, T and X of the Board of Governors of the Federal Reserve System)
and shall not subject the Bank to any tax, penalty, liability or other onerous
condition under or pursuant to any applicable law or governmental regulation,
and the Bank shall have received such certificates or other evidence as it may
request to establish compliance with this condition.
SECTION 5.06 PROCEEDINGS. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incident thereto shall be satisfactory in substance and form to the
Bank, and the Bank shall have received all such counterpart originals or
certified or other copies of such documents as the Bank may reasonably request.
ARTICLE SIX
EVENTS OF DEFAULT
SECTION 6.01 EVENTS OF DEFAULT. The following each and all are Events
of Default hereunder:
MONETARY DEFAULT. If the Borrower shall default in any payment
of the principal of or interest on the Loans when and as the same shall become
due and payable, whether on demand, at maturity, by acceleration or otherwise
and such default shall not be cured within fifteen (15) Days following written
notice thereof from the Bank to the Borrower; or
NON-MONETARY DEFAULT. If the Borrower or any Subsidiary shall
default in the performance of or compliance with any term or covenant contained
in one or more of the Loan Documents other than a term or covenant a default in
the performance of which or noncompliance with which is elsewhere specifically
dealt with under this Article Six and such default shall not be cured within
thirty (30) Days following written notice thereof from the Bank to the Borrower;
or
THIRD PARTY DEFAULT. If the Borrower shall default in the
performance of any material agreement with any Person other than the Bank and
such default shall not be cured within thirty (30) Days following written notice
thereof from the Bank to the Borrower; or
FALSE REPRESENTATION. If any representation or warranty made
in writing by or on behalf of
22
the Borrower or any Subsidiary or in any other Loan Document shall prove to have
been false or incorrect in any material respect on the date as of which made or
reaffirmed; or
BANKRUPTCY OR INSOLVENCY. If the Borrower or any Subsidiary
shall admit in writing its inability, or be generally unable, to pay its debts
as they become due or shall make an assignment for the benefit of creditors,
file a petition in bankruptcy, petition or apply to any tribunal for the
appointment of a custodian, receiver or trustee for the Borrower or any
Subsidiary or a substantial part of its assets, or shall commence any proceeding
under any bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or if there shall have been filed any such petition or
application, or any such proceeding shall have been commenced against the
Borrower or any Subsidiary, in which an order for relief is entered or which
remains undismissed for a period of thirty (30) days or more, or the Borrower or
any Subsidiary by any act or omission shall indicate its consent to, approval of
or acquiescence in any such petition, application, or proceeding or order for
relief or the appointment of a custodian, receiver or any trustee for the
Borrower or any Subsidiary or any substantial part of any of its properties, or
shall suffer any such custodianship, receivership or trusteeship to continue
undischarged for a period of thirty (30) Days or more; or
DISSOLUTION. If any order, judgment, or decree is entered in
any proceedings against the Borrower or any Subsidiary decreeing the dissolution
of the Borrower or any Subsidiary and such order, judgment, or decree remains
unstayed and in effect for more than thirty (30) Days; or
FRAUDULENT CONVEYANCE. If the Borrower or any Subsidiary shall
have concealed, removed, or permitted to be concealed or removed, any part of
its properties, with intent to hinder, delay or defraud its creditors or any of
them, or made or suffered a transfer of any of its properties which may be
fraudulent under any bankruptcy, fraudulent conveyance or similar law, or shall
have made any transfer of its properties to or for the benefit of a creditor at
a time when other creditors similarly situated have not been paid, or shall have
suffered or permitted, while insolvent, any creditor to obtain a lien upon any
of its properties through legal proceedings or distraint which is not vacated
within thirty (30) days from the date thereof; or
PLEDGE AGREEMENT. If the Borrower shall (i) fail to fulfill or
comply in any material respect with the Pledge Agreement or (ii) default under
the Pledge Agreement and such default shall not be cured within thirty (30) Days
following written notice thereof from the Bank to the Borrower; or
AFFILIATE OR SUBSIDIARY DEFAULT. If the Borrower, any
Affiliate or any Subsidiary shall default under any other material agreement or
obligation between the Borrower, any Affiliate or any Subsidiary and the Bank
and such default shall not be cured within thirty (30) Days following written
notice thereof from the Bank to the Borrower.
23
ARTICLE SEVEN
RIGHTS UPON DEFAULT
Upon the occurrence and its continuing of any Event of Default, the
Bank shall have and may exercise any or all of the rights set forth herein;
provided, however, the Bank shall be under no duty or obligation to do so:
SECTION 7.01 ACCELERATION. To declare the indebtedness evidenced by the
Notes and all other Obligations to be forthwith due and payable, whereupon the
Notes and all other Obligations shall become forthwith due and payable, both as
to principal and interest, without presentment, demand, protest or any other
notice or grace period of any kind, all of which are hereby expressly waived,
anything contained herein or in the Notes or in such other Obligations to the
contrary notwithstanding and, upon such acceleration, the unpaid principal
balance and accrued interest upon the Notes shall from and after such date of
acceleration bear interest at the Default Rate.
SECTION 7.02 RIGHT OF SETOFF. To exercise its right of setoff as
permitted under Section 2.07.
SECTION 7.03 OTHER RIGHTS. To exercise such other rights as may be
permitted under any of the Loan Documents or applicable law.
SECTION 7.04 UNIFORM COMMERCIAL CODE. To exercise from time to time any
and all rights and remedies of a secured creditor under the UCC as in effect
from time to time in the State of Florida and any and all rights and remedies
available to it under any other applicable law.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01 NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the
part of the Bank in exercising any right, power or remedy hereunder, or under
the Notes or the other Loan Documents shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any other right, power
or remedy hereunder or thereunder. The remedies herein and therein provided are
cumulative and not exclusive of any remedies provided by law or in equity.
SECTION 8.02 AMENDMENTS; ETC. No amendment, modification, termination
or waiver of any provision of this Agreement, the Notes or the other Loan
Documents, nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 8.03 ADDRESSES FOR NOTICES; ETC. All notices, requests, demands
and other communications provided for hereunder shall be in writing (including
telecopy, telex or telegraphic communications) and shall be sufficient if
mailed, telecopied, telexed or telegraphed or delivered to the applicable party
at the address indicated below:
If to the Borrower: The Colonial BancGroup, Inc.
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. X. Xxxxx Oakley,
Chief Financial Officer,
Secretary and Treasurer
24
(000) 000-0000 telephone
(000) 000-0000 telecopy
If to the Bank: SunTrust Bank, Central Florida, National Association
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx, Vice President
Mail Code 0-2068
(000) 000-0000 telephone
(000) 000-0000 telecopy
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to the delivery with the
terms of this Section. Except as otherwise expressly provided in this Agreement,
all such notices, requests, demands and other communications shall, when mailed,
telecopied, telexed or telegraphed, be effective when deposited in the mails
(postage paid), telecopied with an affirmative confirmation of transmission,
sent over a telex owned or operated by a party hereto with an answerback
response set forth on the sender's copy of the document or delivered to the
Borrower addressed as aforesaid or delivered to the other party and at the
address set forth above.
SECTION 8.04 APPLICABLE LAW. This Agreement, and each of the Loan
Documents and transactions contemplated herein (unless specifically stipulated
to the contrary in such document) shall be governed by and interpreted in
accordance with the laws of the State of Florida.
SECTION 8.05 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations, warranties, covenants and agreements contained herein or made
in writing by the Borrower in connection herewith shall survive the execution
and delivery of this Agreement, the Notes and the other Loan Documents and be
true and correct during the term of the Loans.
SECTION 8.06 TIME OF THE ESSENCE. Time is of the essence of this
Agreement, the Notes and the other Loan Documents.
SECTION 8.07 HEADINGS. The headings in this Agreement are intended to
be for convenience of reference only, and shall not define or limit the scope,
extent or intent or otherwise affect the meaning of any portion hereof.
SECTION 8.08 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement, the Notes or the other Loan Documents shall for any
reason be held to be invalid, illegal or unenforceable in any respect, the same
shall not affect any other provision of this Agreement, the Notes or the other
Loan Documents, but this Agreement, the Notes and the other Loan Documents shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained therein. Provided, however, in the event said matter would
adversely affect the rights of the Bank under any or all of the Loan Documents,
the same shall be an Event of Default.
SECTION 8.09 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
SECTION 8.10 CONFLICT. In the event any conflict arises between the
terms of this Agreement and the terms of any other Loan Document, the Bank shall
have the option of selecting which conditions shall govern the loan relationship
evidenced by this Agreement and, if the Bank does not so indicate, the terms of
this Agreement shall govern in all instances of such conflict.
SECTION 8.11 TERM. The term of this Agreement shall be for such period
of time until the Loans and the Notes have been repaid in full, and all of the
other Obligations have been paid to the Bank
25
in full.
SECTION 8.12 EXPENSES. The Borrower agrees to save the Bank harmless
against liability for the payment of, all out-of-pocket expenses arising in
connection with this transaction, all taxes, together in each case with interest
and penalties, if any, which may be payable in respect of the execution,
delivery and performance of this Agreement or the execution, delivery, and
performance of the Notes issued under or pursuant to this Agreement (excepting
only any tax on or measured by net income of the Bank determined substantially
in the same manner, other than the rate of tax, as net income is presently
determined under the IRS Code), the reasonable legal fees and expenses (whether
incurred at trial, in any bankruptcy or appellate proceeding or otherwise) of
counsel to the Bank in connection with enforcement of this Agreement following
an Event of Default, the Notes, the Security Agreement or any of the other Loan
Documents. The obligations of the Borrower hereunder shall survive the payment
of the Notes.
SECTION 8.13 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Agreement contained by or on behalf of either of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not; provided, however, this clause shall
not by itself authorize any delegation of duties by the Borrower or any other
assignment which may be prohibited by the terms and conditions of this
Agreement.
SECTION 8.14 NO THIRD PARTY BENEFICIARIES. The parties intend that this
Agreement is solely for their benefit and no person not a party hereto shall
have any rights or privileges under this Agreement whatsoever either as the
third party beneficiary or otherwise.
SECTION 8.15 VENUE. Venue for any proceeding hereunder shall be when
the Borrower irrevocably and unconditionally (a) agrees that any suit, action,
or other legal proceeding arising out of or relating to this Agreement may be
brought, at the option of the Bank, in a court of record, of competent
jurisdiction in the State of Florida in Orange County; (b) consents to the
jurisdiction of each such court in any such suit, action, or proceeding; (c)
waives any objection which it may have to the laying of venue of any suit,
action or proceeding in any of such courts; and (d) agrees that service of any
court paper may be effected on Borrower by mail, addressed and mailed as
provided herein or in such other manner as may be provided under applicable laws
or court rules in said State.
SECTION 8.16 WAIVER OF JURY TRIAL. THE BANK AND THE BORROWER HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE THE RIGHT EITHER OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION, WHETHER IN
CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED HEREON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING INTO
THIS AGREEMENT. FURTHER, THE BANK HEREBY CERTIFIES THAT NO REPRESENTATIVE OR
AGENT OF THE BANK, NOR THE BANK'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT
OF THE BANK, NOR THE BANK'S COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR
MODIFY THIS PROVISION.
SECTION 8.17 ENTIRE AGREEMENT. Except as otherwise expressly provided,
this Agreement and the other Loan Documents embody the entire agreement and
understanding between the parties hereto and supersede all prior agreements and
understandings relating to the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed, sealed and delivered, as applicable, by their duly
authorized officers on the day and year first above written.
26
BORROWER:
THE COLONIAL BANCGROUP, INC.,
a Delaware corporation
By:
------------------------------------------
Xxxxxx X. Xxxxxx, President
(CORPORATE SEAL)
BANK:
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION F/K/A SUN BANK, NATIONAL
ASSOCIATION, a national banking association
By:
------------------------------------------
Xxxxxxx X. Xxxxxxxx, Vice President
STATE OF ALABAMA
COUNTY OF MONTGOMERY
I HEREBY CERTIFY THAT on this ____ day of December, 1996, before me, an
officer authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, personally appeared Xxxxxx X. Xxxxxx, as President of THE
COLONIAL BANCGROUP, INC., a Delaware corporation, to me known to be the person
who executed the attached Loan Agreement, dated December ____, 1996, on behalf
of THE COLONIAL BANCGROUP, INC., a Delaware corporation, and acknowledged before
me that he executed the same.
---------------------------------------------
Print Name:
----------------------------------
Notary Public
Serial Number
(NOTARIAL SEAL) My Commission Expires:
STATE OF ALABAMA
COUNTY OF MONTGOMERY
I HEREBY CERTIFY THAT on this ____ day of December, 1996, before me, an
officer authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, personally appeared Xxxxxxx X. Xxxxxxxx, as Vice President of
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, to me known to be the
person who executed the attached Loan Agreement, dated December ____, 1996, on
behalf of SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, and acknowledged
before me that he executed the same.
27
---------------------------------------------
Print Name:
----------------------------------
Notary Public
Serial Number
(NOTARIAL SEAL) My Commission Expires:
28
EXHIBIT "A"
List of Places of Business
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
29
EXHIBIT "B"
List of Representatives of Borrower
1. X. Xxxxx Oakley
2. Young X. Xxxxxx, III
3. Xxxxxx Xxxxx
4. Xxxxx Xxxxxxx
5. Xxxxxx Xxxxxxxx
or such other representatives as may be designated in writing by any of
the above.
30
EXHIBIT "C"
List of Subsidiaries
COLONIAL BANK
COLONIAL BANCGROUP BUILDING CORPORATION
COLONIAL BANK, AN ALABAMA BANKING ASSOCIATION
COLONIAL BANK, A FLORIDA BANKING ASSOCIATION
COLONIAL BANK, A GEORGIA BANKING ASSOCIATION
COLONIAL BANK, A TENNESSEE BANKING ASSOCIATION
