Exhibit 10.22
$104,000,000
TERM AND REVOLVING CREDIT AGREEMENT
BETWEEN
COMMERCIAL FEDERAL CORPORATION
AND
FIRST NATIONAL BANK OF OMAHA
DECEMBER 30, 2002
TERM AND REVOLVING CREDIT AGREEMENT
This Term and Revolving Credit Agreement (the "Agreement") is made as
of the 30th day of December, 2002, between Commercial Federal Corporation, a
Nebraska corporation and federal savings and loan association holding company
having its principal place of business in Omaha, Nebraska (the "Borrower") and
First National Bank of Omaha, a national banking association having its
principal offices in Omaha, Nebraska, (the "Bank").
The Borrower has requested the Bank make available to it revolving
credit loans and a term loan for the purposes set forth herein.
To induce the Bank to make such loans, the Borrower proposes to enter
into this Agreement pursuant to which the loans will be made available to the
borrower who will derive benefit, directly or indirectly, from the credit so
extended to the Borrower.
Accordingly, the parties hereto agree as follows:
I. DEFINITIONS
1.1 Certain Defined Terms. As used herein, the following terms shall
have the following meanings (and all terms defined in this section 1.1 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vise versa):
Advance: Any advance of credit to the Borrower from the Bank pursuant to
Article III of this Agreement.
Affiliate: As to any Person (as hereinafter defined), any "affiliate" shall
mean, with respect to the Borrower, any Person that directly or
indirectly controls, or is under, control with, or is controlled
by, the Borrower. As used in this definition, "control" including,
with its correlated meetings, "controlled by" and "under common
control" shall mean possession, directly or indirectly, a power to
direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership
interest, by contract or otherwise), provided that, in any event,
any Person that owns directly or indirectly securities having 10%
or more of a voting power for the election of directors or other
governing body of a corporation or 10% or more in the partnership
or other ownership interest of any other Person (other than as a
limited partner of such other Person) will be deemed to control
such corporation or other Person.
Bank: First National Bank of Omaha, a national banking association
having its principal place of business at 1620 Dodge Street, Stop
1196, Xxxxx, Xxxxxxxx 00000, its successors and assigns.
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Borrower: Commercial Federal Corporation, a Nebraska corporation and federal
savings and loan association holding company having its principal
place of business at 00000 Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000, its successors and assigns.
Business Day: Any day, other than a Saturday, Sunday or a legal holiday, on
which commercial banks are not authorized or required to close in
Omaha, Nebraska.
Change of (a) At any time when any of the equity securities of the Borrower
Control: shall be registered under Section 12 of the Securities Exchange
Act of 1934, as amended from time to time (the "Exchange Act"), to
(i) any person, entity or "group" (within the meaning of Section
13(d)(3) of the Exchange Act) (other than any person which is a
management employee, or any such "group" which consists entirely
of management employees, of the Borrower) being or becoming the
beneficial owner, directly or indirectly, of more than 25% or the
voting stock of the Borrower, or (ii) a majority of the members of
the Borrower's board of directors (the "Board") consisting of
persons other than Continuing Directors (as hereinafter defined).
As used herein, the term "Continuing Director" means any member of
the Board on December 30, 2002 and any other member of the Board
who shall be recommended or elected to succeed a Continuing
Director by a majority of the Continuing Directors who are then
members of the Board.
Classified At any particular time, all loans of the Borrower and its
Loans: Subsidiaries (as hereinafter defined) on a consolidated basis
classified as "Loss," "Doubtful", or "Substandard" or in any
equivalent category by any regulators of such Person (as
hereinafter defined), as reported by such Person to any such
regulators, pursuant to any internal review of such Person, or
pursuant to any inspection and review by the Bank.
Closing Date: December 30, 2002.
Commercial Commercial Federal Bank, a federal savings bank, having its
Federal: principal place of business at 00000 Xxxxxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000, its successors and assigns.
Commercial Any time at which Borrower owns less than 100% of the issued
Federal and outstanding voting stock of Commercial Federal. For purposes
Change of of this definition, warrants for voting stock of Commercial
Control: Federal will be deemed to be issued and outstanding voting stock.
Consolidated With respect to the Borrower for any period, the sum (without
Interest duplication) of the following (in each case, eliminating all
Expense: offsetting debits and credits between the Borrower and its
Subsidiaries (as hereinafter defined) and all other items to be
eliminated in the course of preparing consolidated financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP (as
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hereinafter defined)): (i) all interest in respect of Indebtedness
(as hereinafter defined) of the Borrower and its Subsidiaries
(including imputed interest on capital leases) deducted in
determining consolidated net income (or loss) of the Borrower and
its Subsidiaries for such period as determined in accordance with
GAAP (as hereinafter defined), after eliminating all offsetting
debits and credits between the Borrower and its Subsidiaries and
all other items required to be eliminated in the course of
preparation of consolidated financial statements of the Borrower
and its Subsidiaries in accordance with GAAP, plus (ii) all debt
discount and expense amortized or required to be amortized in
determining the consolidated net income (or loss) of the Borrower
and its Subsidiaries in (i) above.
Consolidated Stockholders equity of the Borrower and its Subsidiaries on a
Net Worth: consolidated basis, calculated in accordance with GAAP; plus
losses not to exceed $15 million on securities designated as
available for sale.
Credit Credit documents shall mean, collectively, this agreement, the
Documents: notes, and all other promissory notes, and other instruments,
agreements, and other related documentation executed and
delivered pursuant to or in connection with this Agreement, as
such instruments, agreements, and other documentation may be
amended or otherwise modified from time to time.
Credit Party: Credit Party shall mean the Bank, its Primary Participants, and
any affiliate of the Bank and any successor or assignee thereof.
Default: An Event of Default or an event that with notice or lapse of time
or both would become an Event of Default.
Default Rate: The floating interest rate announced from time to time by the Bank
as its "National Base Rate," plus three and one-half percent
(3.5%). The National Base Rate is set by the Bank, solely in its
discretion, to reflect the rates charged by money center banks as
their reference rates. Rates charged by the Bank may be at, above,
or below the National Base Rate, as determined by the Bank as to
each respective customer.
Earnings For any period, the sum of (i) the consolidated net income (or
Available for loss) of the Borrower for such period as determined in accordance
Fixed with GAAP, after eliminating all offsetting debits and credits
Charges: between the Borrower and its Subsidiaries and all other items
required to be eliminated in the course of preparation of
consolidated financial statements of the Borrower and its
Subsidiaries in accordance with GAAP; (ii) Consolidated Interest
Expense for such period; (iii) the consolidated amortization
expense related to goodwill, deferred charges and other intangible
assets of the Borrower for such period, as determined in
accordance with GAAP; (iv) all taxes, assessments and other
governmental fees, charges, claims and levies incurred by the
Borrower on a
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consolidated basis for such period, including, without limitation,
any such amounts based on revenue, income, gross receipts,
purchases, leases, licenses, sales, use, business, franchises,
shares, operations, business occupation, capital surplus,
earnings, distributions, dividends, properties, assets, wages,
employment or services, and further including, without limitation,
any penalties or interest thereon; plus (v) all operating lease
expenses of the Borrower and its Subsidiaries on a consolidated
basis for such period.
Environmental Environmental Claim shall mean, with respect to any Person, any
Claim: written notice, claim, demand or other written communication
(collectively, a "claim") by any Governmental Authority or other
Person alleging or asserting such Person's liability for costs,
damages to natural resources or other Property, personal injuries,
fines or penalties arising out of, based on or resulting from (i)
the presence or Release of any Hazardous Material at any location,
or (ii) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
Environmental Environmental Laws means any and all Federal, state, local and
Laws: foreign statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of
any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.
ERISA: The Employee Retirement Income Security Act of 1974, as amended
from time to time, and the rules and regulations promulgated
thereunder as from time to time in effect.
Event of Any of the events set forth in Section 9 of this Agreement.
Default:
Existing Existing Credit Agreement shall mean the Credit Agreement dated as
Credit of July 1,1999 among the Borrower and the Bank, as amended and
Agreement: modified by Amendment No. 1 thereto dated as of December 31,
1999, Amendment No. 2 thereto dated as of September 22, 2000,
Amendment No. 3 thereto dated as December 20, 2001, and Amendment
No. 4 January 22, 2002.
Existing All outstanding Indebtedness of the Borrower to the Bank pursuant
Indebtedness: to this Agreement, plus the Indebtedness shown on Exhibit I to
this Agreement.
GAAP: Generally accepted accounting principles as in effect from time to
time in the United States of America.
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Governmental Governmental Approval shall mean any permit, license, variation,
Approval: certification, consent, no-action letter, clearance, exemption or
other approval granted by a Governmental Authority.
Governmental Governmental Authority shall mean any nation or government, any
Authority: central bank of any nation, any state, province, territory or
other political subdivision thereof and any other agency, body,
department, bureau, authority or other entity exercising
executive, legislative, judicial, regulatory, monetary, taxing or
administrative functions of or pertaining to government.
Guarantee: Guarantee shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable
under or with respect to, the Indebtedness, or obligations, net
worth, working capital or earnings of any Person, or a guarantee
of the payment of dividends or other distributions upon the stock
or equity interests of any Person, or an agreement to purchase,
sell or lease (as lessee or lessor) Property, products, materials,
supplies or services primarily for the purpose of enabling a
debtor to make payment of such debtor's obligations or an
agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution
to issue a letter of credit or other similar instrument for the
benefit of another Person, but excluding endorsements for
collection or deposit in the ordinary course of business. The
terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning.
Guaranteed Guaranteed Obligations shall mean, collectively (but without
Obligations: duplication):(a) all obligations in respect of the principal of
and interest on the Loans made by the Bank to, and the Notes held
by each Bank of, the Borrower and (b) all other Obligations from
time to time owing to any Credit Party.
Hazardous Hazardous Material shall mean any hazardous or toxic chemical,
Material: waste, byproduct, pollutant, contaminant, compound, product or
substance, including, without limitation, asbestos, urea
formaldehyde foam insulation , polychlorinated biphenyls and
petroleum, and any other material, exposure to the manufacture,
possession, presence, use, generation, storage, transportation,
treatment, release, disposal, abatement, cleanup, remediation or
handling of which is prohibited, controlled or regulated by any
Environmental Law.
Indebtedness: Indebtedness shall mean, for any Person (without duplication): (a)
obligations created, issued or incurred by such Person for
borrowed money (whether by loan, the issuance and sale of debt
securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or
services, other than trade accounts payable (other than for
borrowed money) arising, and
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accrued expenses incurred, in the ordinary course of business so
long as such trade accounts payable are payable within 180 days of
the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a
Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d)
obligations of such Person in respect of letters of credit,
bankers acceptances, bonds, guaranties, indemnities or similar
instruments issued or accepted by banks or other financial
institutions for account of such Person supporting obligations
that constitute Indebtedness of any Person; (e) Capital Lease
Obligations of such Person; (f) Guarantees by such Person of
Indebtedness of others; (g) all obligations of such Person in
respect of mandatory redemption or mandatory dividend rights on
equity interests but excluding dividends payable solely in
additional equity interests; (h) all obligations of such Person,
contingent or otherwise, for the payment of money under any
noncompete, consulting or similar agreement entered into with the
seller of a Target or any other similar arrangements providing for
the deferred payment of the purchase price for any acquisition
permitted hereby or an acquisition consummated prior to the date
hereof; and (i) all obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination
thereof, which lease is required or is permitted to be classified
and accounted for as an operating lease under U.S. GAAP but which
is intended by the parties thereto for tax, bankruptcy,
regulatory, commercial law, real estate law and all other purposes
as a financing arrangement.
Knowledge: With respect to any Person that is not an individual, actual or
constructive knowledge by such Person's president, chief executive
officer, chief operating officer or chief financial officer of
facts or circumstances giving rise to an Event of Default or
Potential Event of Default.
Lien: With respect to any Person, any mortgage, lien, pledge, charge,
security interest or other encumbrance, or any interest or title
of any vendor, lessor, lender or other secured party to or any
obligation of such Person under any conditional sale or other
title retention agreement or capital lease which would be required
to be capitalized on a balance sheet in accordance with GAAP, upon
or with respect to any property or asset or such Person (including
in the case of stock, stockholder agreements, voting trust
agreements and all similar arrangements), and any agreement to
give any such Lien.
Loan Loss The quarterly report to be provided by Commercial Federal to the
Reserve Bank pursuant to Sections 5.1(c) and 7.5 hereof, substantially in
Adequacy the form of Exhibit II to this Agreement wherein
Report: Commercial Federal provides its internal reserve calculations used
to support reserves recorded under the Borrower's approved
policies.
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Loans: Loan show mean the Term Note and the Revolving Note.
Material: Material in relation to the business, operations, affairs,
financial condition, assets or properties of the Borrower and its
Subsidiaries taken as a whole.
Material A material adverse effect on (a) the business, operations,
Adverse affairs, financial condition, assets or properties of the Borrower
Effect: and its Subsidiaries taken as a whole, or (b) on the ability of
the Borrower to perform its obligations under this Agreement, the
Term Notes or the Revolving Notes (as hereinafter defined), or
(c) on the validity or enforceability of this Agreement, the Term
Notes or the Revolving Notes.
Material With respect to either Xxxxxxx X. Xxxxxxxxxx, Xxxxxx X.
Adverse Xxxxxxxxxx, or Xxxxx X. Xxxxxx, (i)the resignation, retirement, or
Management voluntary or involuntary termination of employment and/or status
Change: of such Person as an officer and director of the Borrower; (ii)
any announcement, notice of intent, resolution or similar advance
notice with respect to the matters referenced in the foregoing
clause; or (iii) the death, disability or legal incompetence of
any such Person.
Non- With respect to the Borrower and its Subsidiaries on a
Performing consolidated basis, the sum of: (i) Non-Performing Loans
Assets: hereinafter defined); (ii) each (as ownership interest of the
Borrower or any of its Subsidiaries in any real property required
to be disclosed as other real estate owned in such Person's
reports to any of its regulators; plus (iii) other assets acquired
through foreclosure or other realization upon collateral or
rearrangement or satisfaction of Indebtedness.
Non- With respect to the Borrower and its Subsidiaries on a
Performing consolidated basis, the sum of: (i) loans which are classified as
Loans: 90 days or more past due but which are still treated as accrual
loans (regardless of whether such classification is internal or
as reported to or directed by such Person's regulators); (ii)
loans classified as non-accrual (regardless of whether such
classification is internal or as reported to or directed by such
Person's regulators); plus (iii) loans for which the obligee has
reduced the agreed interest rate, reduced the principal or
interest obligation, extended the maturity, applied interest
payments to reduce principal, capitalized interest, obtained or
requested additional collateral or otherwise "renegotiated" the
terms of the obligation based upon the actual or asserted
inability of the obligor or obligors of such loans to perform
their obligations pursuant to the agreements with the obligee
prior to such modification or renegotiation.
Note Rate: The floating interest rate announced from time to time by the Bank
as its "National Base Rate" minus one percent (1%). The National
Base Rate is set by the Bank, solely in its discretion, to reflect
generally the rates charged by money center banks as their
reference rates. Rates charged by the Bank may be at, above or
below the National Base Rate, as determined by the Bank as to
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each respective customer.
Permitted: With respect to any Person, any of the following:
Liens
(a) pledges or deposits by the Person under workmen's
compensation law, social security, unemployment insurance
laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the
payment of Indebtedness by the Person), or leases to which
the Person is a party, or deposits of cash or United States
of America Government Bonds to secure surety or appeal bonds
or performance bonds to which the Person is a party or which
are issued for their account or Liens to secure payments of
premiums for insurance purchased in the ordinary course of
business;
(b) Liens imposed by law, such as carriers', warehousemen's,
materialmen's, attorney's, miner's, and mechanics' liens, or
Liens arising out of judgments or awards against the Person
with respect to which the Person at the time shall currently
be prosecuting an appeal or proceedings for review in good
faith and by proper procedure and with respect to which
adequate reserves have been established on the books of the
Person to the extent required by GAAP;
(c) Liens for taxes, assessments or other governmental charges
or levies not yet subject to penalties for nonpayment and
Liens for taxes, assessments or other governmental charges
or levies, the payment of which is being contested in good
faith by appropriate proceedings and with respect to which
adequate reserves have been established to the extent
required by GAAP;
(d) Minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights of way,
highways and railroad crossings, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real
properties or other Liens incidental to the conduct of the
business of the Person or to the ownership of its property
which Liens were not incurred in connection with
Indebtedness of the Person, and which Liens do not
individually or in the aggregate materially detract from the
value of said properties or materially impair the operation
of the business taken as a whole of the Person;
(e) Liens existing on the date hereof and specified on Exhibit
4.10 hereto, and any extension, renewal or replacement of
any such Lien in respect of the same property subject
thereto; provided that the principal amount of Indebtedness
associated with such Liens in no event shall exceed the
principal amount of such Indebtedness on the date hereof (or
if it is
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increased, such increase is permitted under Section 7.3
hereof) and does not materially adversely affect the title
to or does not materially affect the use of the assets
encumbered thereby;
(f) Purchase money Liens arising after the date hereof and
securing payment of the purchase price of fixed assets
purchased or constructed after such date; provided, that at
the time of such filing, Indebtedness secured by the Lien
does not exceed the cost of such property; and the
incurrence of Indebtedness secured by such Lien is not
prohibited by any other covenant or limitation contained in
this Agreement;
(g) Other Liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred
in connection with the borrowing of money or the obtaining
of advances or credit or in contemplation of an acquisition
(except as permitted under subparagraph (f) above), and
which do not in the aggregate: (i) materially adversely
affect the title to, or materially affect the use of, the
assets in the operation of the business of the Person, taken
as a whole, or (ii) materially detract from the value of
such property or assets for the purpose of the business of
the Person, taken as a whole;
(h) Any Lien: (i) existing on any property of any corporation at
the time it becomes a Subsidiary of the Person, or (ii)
existing prior to the time of acquisition upon property
acquired by the Person or any Subsidiary of it through
purchase, merger or consolidation or otherwise, whether or
not the obligation secured thereby is assumed by the Person
or such Subsidiary, provided that (A) any Lien permitted by
this clause (h) shall not encumber any other property
(except the proceeds of such property) of the Person or any
Subsidiary of it, and (B) the obligation secured by the
Liens on the property of the Person permitted by this clause
(h) shall not exceed 100% of the fair market value of such
property;
(i) Any Liens arising in the ordinary course of business of
Commercial Federal's banking business which constitute Liens
securing a loan from a Federal Home Loan Bank, Liens
securing deposits of governmental entities, and Liens in
connection with securities repurchase agreements; and
(j) Other Liens, provided, that the aggregate amount of
Indebtedness secured by such other Liens shall not at any
time exceed an amount equal to five percent (5%) of the sum
of the stockholder's equity of the Person calculated in
accordance with GAAP, plus any non-cash charges occurring
after the date hereof relating to changes in accounting
policies, minus the sum (without duplication) of (i)
intangible assets as set forth in the
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financial statements of the Person, and (ii) Redeemable
Stock.
Person: Any individual, partnership, corporation, trust, unincorporated
organization, limited liability company, or limited liability
partnership.
Plan: Any Plan as defined in Section 3 of ERISA.
Potential Event Any event or condition the occurrence or existence of which
of Default: would, with the lapse of time or the giving of notice, or both,
become an Event of Default.
Primary La Salle National Bank, a national banking association located
Participants: in Chicago, Illinois; U.S. Bank National Association, a
national banking association located in Milwaukee, Wisconsin,
and M & I Xxxxxxxx and Xxxxxx Bank, a national banking
association located in Milwaukee, Wisconsin.
Pro Forma With respect to the Borrower and its Subsidiaries on a
Fixed Charges: consolidated basis for any period, the sum of: (i) Consolidated
Interest Expense for such period, plus (ii) operating lease
expenses of the Borrower and its Subsidiaries on a consolidated
basis for such period; plus (iii) the Term Note principal
payments, but excluding the Term Note principal payment due
December 31, 2007.
Quarterly The report prepared by the Borrower's chief financial officer
Compliance on behalf of the Borrower pursuant to Section 5.1 hereof,
Certificate: substantially in the form of Exhibit 5.1 hereto.
Redeemable Any equity security which, by its terms (or by the terms of any
Stock: security into which it is convertible or for which it is
exchangeable before the Term Note Maturity Date (as hereinafter
defined)), or upon the happening of any event, matures or is
mandatorily redeemable or is redeemable at the option of the
holder thereof, in whole or in part, prior to the Term Note
Maturity Date.
Restricted As to any Person, any dividends (including, without limitation,
Payments: dividends payable in cash and other non-cash distributions and
all accrued cumulative dividends on preferred stock, but
excluding dividends payable solely in stock of the Person and
stock splits of the Person) in respect of the capital stock of
such Person; stock redemptions and repurchases by such Person;
payments with respect to warrants, options, rights or puts of
such Person; other cash distributions in respect of the capital
stock of the Person, excluding dividends, stock redemptions and
repurchases, warrants, options, rights and puts; other cash
distributions in respect of capital stock between the Person
and its Subsidiaries or between Subsidiaries; and any payments
of the subordinated debt shown as "Existing Indebtedness" on
Exhibit I.
Revolving The amount available to be drawn and outstanding under the
Credit Facility Revolving Notes, which shall be $10,000,000.
Amount:
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Amount:
Revolving That certain promissory note from the Borrower to the Bank in
Notes: the principal amount of $10,000,000, dated as of the date
hereof, evidencing the loan contemplated in Section 3.1 of this
Agreement, substantially in the form set forth in Exhibit 3.2
hereto, and any promissory note or notes from the Borrower to
the Bank in replacement, renewal or extension thereof.
Revolving December 29, 2003
Note Maturity
Date:
Secondary Financial institutions as to which the Bank and/or the Primary
Participants: Participants have granted a participation in the Revolving
Notes or the Term Notes.
Subsidiary: Subsidiary shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a
majority of the securities or other ownership interests having
by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other
ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might
have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or
controlled by such Person or one or more Subsidiaries of such
Person or by such Person and one or more Subsidiaries of such
Person.
Supplementary The amount of capital designated as "Supplementary Capital"
Capital: under 12 C.F.R. (S) 567.5(b) and other applicable statutes,
rules and regulations specified by the Office of Thrift
Supervision. Supplementary capital consists of, among other
items, certain approved subordinated debt and a portion of
Commercial Federal's loan loss allowances.
Taxes: Taxes shall mean all present and future stamp, transaction,
registration and other taxes and levies, imposts, deductions,
charges, and withholdings whatsoever, and all interest,
penalties or similar amounts with respect thereto, now or
hereafter imposed, assessed, levied or collected by any
authority of or in any jurisdiction (including, without
limitation, the U.S. or any political subdivision or taxing
authority thereof or therein, or any international or other
association of or with which the U.S. may be a member or
associated) on or in respect of any Credit Document, the
recording, registration, notarization or other formalization of
any thereof, the enforcement thereof or the introduction
thereof in any judicial proceedings, or on or in respect of any
payments of principal, interest, premium, charges, fees or
other amounts made on, under or in respect of any thereof.
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Term Note: That certain promissory note from the Borrower to the Bank in
the principal amount of $94,000,000, dated as of the date
hereof, evidencing the loan contemplated in Section 2.1 of this
Agreement, substantially in the form set forth in Exhibit 2.2
hereto, and any promissory note or notes from the Borrower to
the Bank in replacement, renewal or extension thereof.
Term Note December 31, 2007
Maturity Date:
Tier 1 Capital: The amount of capital designated as "Tier 1 Capital" under
applicable statutes and the rules and regulations promulgated
by the Borrower's principal regulatory authority.
Tier 1 The amount of capital designated as "Tier 1 Leverage Capital"
Leverage under 12 C.F.R. (S) 567.8 and other applicable statutes, rules
Capital: and regulations specified by the Office of Thrift Supervision.
Tier 1 Risk- The amount of capital designated as "Tier 1 Risk-Based Capital"
Based Capital: under 12 C.F.R.ss.567.6 and other applicable statutes, rules
and regulations specified by the Office of Thrift Supervision.
Total Risk- As defined by the Office of Thrift Supervision pursuant to 12
Based Capital: C.F.R.(S) 567.6, the sum of the Tier 1 Risk-Based Capital and
the Supplementary Capital.
Trust Preferred The Trust Preferred Security CUSIP # 00000X000 dated May 14,
Debenture 1997, Xxxxx Fargo Bank, Trustee.
Wholly-Owned Wholly owned subsidiary shall mean, with respect to any Person,
Subsidiary: any corporation, partnership or other entity of which all of
the equity securities or other ownership interests (other than,
in the case of a corporation, directors' qualifying shares)
are directly or indirectly owned or controlled by such Person
or one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such
Person.
1.2 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Bank shall be prepared in U.S. Dollars in accordance with GAAP. All
calculations made for the purposes of determining compliance with this Agreement
shall be made by application GAAP. In the event of a material difference at any
time between GAAP as in effect on the date of this Agreement and GAAP from time
to time in effect, the Borrower shall deliver to the Bank at the same time as
the delivery of any annual or quarterly financial statement under Section 5.1
hereof a description in reasonable detail satisfactory to the Bank of any such
material differences and a
13
reconciliation of the calculations required thereby. In the event any changes in
accounting principles required by GAAP or recommended by the Borrower's
certified public accountants and implemented by the Borrower occur and such
changes result in a change in the method of the calculation, required thereby.
II. TERM CREDIT FACILITY
2.1 Loan. Subject to satisfaction of the conditions precedent specified in
Section 8.1, and in consideration of the Borrower's execution and delivery of
the Term Note (substantially in the form of Exhibit 2.2 hereto) the Bank shall
cancel and return to the Borrower the existing promissory notes dated as of July
1, 1999, from the Borrower to the Bank in the principal amount of
$48,937,500.00, together with accrued and unpaid interest thereon as of December
30, 2002 in the amount of $427,863.28, for a total due of $49,365,363.28;
$10,000,000, with no principal balance outstanding as of the Closing Date
(together with accrued and unpaid interest thereon as of December 30, 2002 in
the amount of $0.00, for a total due of $0.00); and that certain promissory note
dated November 26, 2002 in the principal amount of $15,000,000 with no principal
balance outstanding as of the Closing Date (together with accrued and unpaid
interest thereon in the amount of $0.00, for a total due of $0.00); and shall
cancel and terminate the Term and Revolving Credit Loan Agreement dated as of
July 1, 1999, as amended between the Borrower and the Bank.
2.2 Term Note. Amounts to be drawn under the Term Facility shall be in the
amount of $94,000,000, subject to the terms and conditions specified in this
Agreement. After the payments referenced in Section 2.1 hereof, and the
remaining balance of $44,634,636.72 will be used by the Borrower solely to fund
a call of $45,000,000 on the Trust Preferred Debenture. The Term Note shall bear
interest on the outstanding principal loan amount thereof from and after the
Closing Date to the date of repayment at the Note Rate; provided, however, that
after an Event of Default has occurred, interest shall accrue on the entire
outstanding balance of principal and interest at the Default Rate. The Note Rate
shall fluctuate on a daily basis, and changes in the Note Rate shall be
effective on the day any change is announced by the Bank in its National Base
Rate. Interest shall be calculated on the basis of actual days elapsed and a
year of 360 days.
2.3 Payments. All obligations of the Borrower under the Term Note and this
Agreement shall be payable in immediately available funds in lawful money of the
United States of America at the principal office of the Bank in Omaha, Nebraska,
or at such other address as may be designated in writing by the Bank. Interest
on the unpaid balance of the Term Notes shall be due on the last day of the
months of March, June, September and December beginning March 31, 2003. The
principal amount of the Term Notes shall become due and payable in twenty equal
quarterly installments of $2,350,00000, with the first such installment due on
March 31, 2003, and subsequent installments due on the last day of the months of
June, September, December and March thereafter, with the balance of the
principal amount of the Term Notes due and payable on the Term Note Maturity
Date. The total amount of all unpaid principal and accrued interest hereunder
shall be due and payable no later than December 31, 2007. In the event that a
payment day is not a Business Day, the payment shall be due on the next
succeeding Business Day. Interest shall continue to accrue on the full unpaid
balance hereunder notwithstanding any permitted or unpermitted failure of the
Borrower to make a scheduled
14
payment or the fact that a scheduled payment falls on a day other than a
Business Day. Any payment received after 3 p.m. Omaha time, will be deemed paid
on the following Business Day.
2.4 Prepayment. The Borrower may prepay, in whole or in part, without
penalty, the principal loan amount outstanding under the Term Notes if the
Borrower has given the Bank at least 10 Business Days prior written notice of
its intention to make such prepayment.
2.5 Use of Proceeds. The Borrower shall use the proceeds of the Term Note
solely for the purposes described in Sections 2.1 and 2.2 hereof.
2.6 Application of Payments. After the occurrence of a Potential Event of
Default or an Event of Default, the Bank shall have the right to apply payments
received under this Agreement to principal, interest, fees or any other amounts
outstanding under the Credit Documents in such order as the Bank in its sole
discretion may elect.
2.7 Origination Fee. The Bank's obligation to provide the credit facilities
described in this Agreement is subject to the payment on or before the Closing
Date of an origination fee in the amount of One Hundred Eighty-Eight Thousand
Dollars ($188,000).
III. REVOLVING CREDIT FACILITY
3.1 Loan. Until December 29, 2003, and subject to satisfaction of the
conditions precedent specified in Section 8.1, the Bank agrees to advance funds
for general corporate purposes to the Borrower on a revolving credit basis up to
the aggregate Revolving Credit Facility Amount in effect from time to time;
provided, however, that the aggregate amount of funds available for Advance to
the Borrower hereunder shall not exceed $10,000,000. The Borrower shall not be
entitled to Advances hereunder during the occurrence of an Event of Default or
Potential Event of Default. Such loan will be evidenced by the Revolving Notes
substantially in the form of Exhibit 3.1 hereof. Advances shall be made, on the
terms and conditions of this Agreement, upon the Borrower's request. Advance
requests shall be made by 12 noon Omaha time on the Business Day prior to the
requested date of the Advance. Advance requests shall be made by presentation to
the Bank of a drawing certificate in the form of Exhibit 3.1.
3.2 Revolving Note. The Revolving Note shall bear interest on the
outstanding principal loan amount thereof from and after the Closing Date to the
date of repayment at the Note Rate; provided, however, that after an Event of
Default has occurred, interest shall accrue on the entire outstanding balance of
principal and interest at the Default Rate. The Note Rate shall fluctuate on a
daily basis, and changes in the Note Rate shall be effective on the day that a
change is announced by the Bank in its National Base Rate. Interest shall be
calculated on the basis of actual days elapsed and a year of 360 days.
3.3 Payments. All obligations of the Borrower under the Revolving Notes and
this Agreement shall be payable in immediately available funds in lawful money
of the United States of America at the principal office of the Bank in Omaha,
Nebraska, or at such other address as may be designated in writing by the Bank.
Interest on the unpaid balance of the Revolving Notes shall be due on the last
day of the months of March, June, September and the Revolving Note Maturity
Date,
15
beginning March 31, 2003. The principal amount of the Revolving Note shall
become due and payable on the Revolving Note Maturity Date. The total amount of
all unpaid principal and accrued interest hereunder shall be due and payable no
later than December 29, 2003. In the event that a payment day is not a Business
Day, the payment shall be due on the next succeeding Business Day. Interest
shall continue to accrue on the full unpaid balance hereunder notwithstanding
any permitted or unpermitted failure of the Borrower to make a scheduled payment
or the fact that a scheduled payment falls on a day other than a Business Day.
Any payment received after 3 p.m. Omaha time, will be deemed paid on the
following Business Day.
3.4 Prepayment. The Borrower may prepay, in whole or in part, without
penalty, the principal loan amount outstanding under the Revolving Notes if the
Borrower has given the Bank at least one Business Day prior written notice of
its intention to make such prepayment.
3.5 Use of Proceeds. The Borrower shall use the proceeds of the loan for
general corporate purposes.
3.6 Application of Payments. After the occurrence of a Potential Event of
Default or an Event of Default, the Bank shall have the right to apply payments
received under this Credit Agreement to principal, interest, fees or any other
amounts outstanding under the Credit Documents in such order as the Bank in its
sole discretion may elect.
3.7 Non Use Fee. The Borrower agrees to pay to the Bank a commitment fee on
the average daily unused portion of the Revolving Note from the date of this
Agreement until the Revolving Note Maturity Date at the rate of one eighth (1/8)
of one (1) percent per annum, payable on the last day of the month of March,
June, September and on the Revolving Note Maturity Date, beginning March 31,
2003.
3.8 Renewal. So long as no Event of Default has occurred or is continuing,
the Bank and its Primary Participants will consider for approval, on an annual
basis, renewal of the Revolving Note.
IV. REPRESENTATIONS AND WARRANTIES
Both the Borrower and Commercial Federal represents and warrants to the
Bank that:
4.1 Corporate Existence. Both (a) is a corporation, partnership or other
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization; (b) has the requisite corporate or other
power, and has all material Governmental Approvals necessary to own its assets
and carry on its business as now being or as proposed to be conducted; (c) is
qualified to do business and is in good standing in all jurisdictions in which
the nature of the business conducted by it makes such qualification necessary
and where failure so to qualify could reasonably be expected (either
individually or in the aggregate) to have a Material Adverse Effect; and (d) the
certified copies of the charter and by-laws (or equivalent documents) of the
Borrower and of the all corporate authority for the Borrower (including, without
limitation, board of director resolutions, evidence of the incumbency, including
specimen signatures, of officers and evidence, with respect to the Borrower)
with respect to the execution, delivery and performance of such of the Credit
Documents to which the
16
Borrower is intended to be a party and each other document to be delivered by
such party from time to time in connection herewith and the extensions of credit
hereunder (and each Credit Party may conclusively rely on such certificate until
it receives notice in writing from the Borrower to the contrary) previously
delivered by the Borrower to the Bank in connection with the existing Credit
Agreement remain true and correct with no Material Adverse Changes.
4.2 Financial Condition.
(a) Both have heretofore furnished to the Bank:
(i) As to the Borrower only, an audited balance sheet as at
December 31, 2001 and the related statements of operations, shareholders'
equity and cash flows for the fiscal years ended on said dates, accompanied
by an opinion thereon of independent certified public accountants of
recognized international standing; and
(ii) Unaudited balance sheets as at September 30, 2002 and the
related statements of operations, shareholders' equity and cash flows for
the nine month period ended September 30, 2002, setting forth in each case
in comparative form the corresponding figures for the corresponding periods
in the preceding fiscal year.
(b) All such financial statements fairly present in all material
respects the financial condition of the entities specified above and the results
of their respective operations for the respective fiscal years and the
respective six-month periods ended on the respective dates specified above
(subject, in the case of such unaudited financial statements, to normal year-end
audit adjustments), all in accordance with GAAP.
(c) None of the entities referred to above for which financial
statements have been furnished had on the date(s) of their respective financial
statements any material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for
herein. As of the Closing Date and at the time prior to the delivery of the
first audited financial statements of the Borrower pursuant to Section 4.2(a)
hereof, there has been no material adverse change in the financial condition,
operations, business or prospects of such entities (taken as a whole) from that
set forth in such financial statements.
(d) From and after the date of delivery of the first audited financial
statements of the Borrower pursuant to Section 4.2(a) hereof, since the date of
such financial statements, there has been no material adverse change in the
financial condition, operations, business or prospects of the Borrower from that
set forth herein.
4.3 Litigation. There are no legal or arbitral proceedings, or any
proceedings by or before any Governmental Authority, now pending or (to the
knowledge of the Borrower) threatened against the Borrower or the transactions
contemplated hereby that could reasonably be expected (either individually or in
the aggregate) to have a Material Adverse Effect.
17
4.4 No Breach. None of the execution and delivery of this Agreement, the
consummation of the transactions herein and therein contemplated or compliance
with the terms and provisions hereof and thereof will conflict with or result in
a breach of, or require any consent (except for those which have been obtained)
under, the organizational documents of the Borrower, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
Governmental Authority, or any agreement or instrument to which the Borrower is
a party or by which any of them or any of their Property is bound or to which
any of them is subject, or constitute a default under any such agreement or
instrument, or result in the creation or imposition of any Lien upon any
Property of the Borrower pursuant to the terms of any such agreement or
instrument.
4.5 Action; Enforceability. The Borrower has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
each of the Credit Documents to which it is a party; the execution, deliver and
performance by the Borrower of each of the Credit Documents to which it is a
party have been duly authorized by all necessary corporate action on its part
(including, without limitation, any required shareholder approvals); and this
Agreement has been duly validly executed and delivered by the Borrower and
constitutes, and each of the other Credit Documents to which it is a party when
executed and delivered by the Borrower (in the case of the Notes, for value)
will constitute, its legal, valid and binding obligation, enforceable against
the Borrower in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.6 Governmental Approvals. No authorizations, approvals or consents of
(including any exchange control approval), and no filings or registrations with,
any Governmental Authority or any securities exchange are necessary for the
execution, deliver or performance by the Borrower of any of the Credit Documents
to which it is a party or for the legality, validity or enforceability hereof or
thereof.
4.7 Employee Benefits Plan. Each Employee Benefit Plan is in compliance in
all material respects with, and has been administered in all material respects
in compliance with, applicable law and regulations.
4.8 Taxes. Each have filed all material tax returns that are required to be
filed by them and have paid all taxes shown due pursuant to such returns, except
for any tax the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves in accordance with GAAP are
being maintained. The charges, accruals and reserves on the books of Borrower
and Commercial Federal in respect of taxes and other governmental charges are,
in the opinion of the Borrower, adequate in accordance with GAAP.
4.9 Investment Company Act. Neither is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
18
4.10 Public Utility Holding Company Act. Neither the is a "holding
company", or an "affiliate" of a "holding company" or a "subsidiary company" of
a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
4.11 Environmental Matters. Each has obtained all environmental, health and
safety permits, licenses, consents, approvals and other authorizations required
under all Environmental Laws to carry on its business as now being or as
proposed to be conducted, except to the extent failure to have any such permit,
license, consent, approval or authorization would not (either individually or in
the aggregate) have a Material Adverse Effect. Each of such permits, licenses,
consents, approvals and authorizations is in full force and effect and each of
the Borrower and Commercial Federal is in compliance with the terms and
conditions thereof, and with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any applicable Environmental Law, except to the extent failure to
comply therewith would not (either individually or in the aggregate) have a
Material Adverse Effect.
4.12 True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Borrower to the Bank in connection with the negotiation, preparation or delivery
of the Credit Documents or included herein or therein or delivered pursuant
hereto or thereto, when taken as a whole (together with the Information
Memorandum with respect to the matters contained therein relating to the
Borrower and the transactions contemplated hereby) do not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements herein or therein, in light of the circumstances under which they
were made, not misleading. All written information furnished after the date
hereof by the Borrower to the Bank pursuant to the Credit Documents and the
transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect, or (in the case of projections) based on reasonable
estimates, on the date as of which such information is stated or certified.
There is no fact known to the Borrower that could reasonably be expected to have
a Material Adverse Effect that has not been disclosed herein, in the other
Credit Documents, or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby or thereby.
4.13 Commercial Activity; Absence of Immunity. The Borrower is subject to
civil and commercial law with respect to its obligations under each of the
Credit Documents to which it is a party. The execution, delivery or performance
by the Borrower of each of the Credit Documents to which it is a party
constitute private and commercial acts rather than public or governmental acts.
Neither the Borrower nor any of its respective Properties or revenues, is
entitled to any right of immunity in any jurisdiction from suit, court
jurisdiction, judgment, attachment (whether before or after judgment), set-off
or execution of a judgment or form any other legal process or remedy relating to
the obligations of the Borrower under any of the Credit Documents to which it is
a party.
4.14 Title to Assets. The Borrower has good title to all of its material
properties and assets.
4.15 Compliance with Laws. Without impairing the specificity of Sections
4.07 and 4.11, the Borrower is not in violation of any law, rule, regulation,
order, or decree of any Governmental
19
Authority or arbitrator applicable to it or its properties other than violation
s which (either individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
4.16 Margin Regulations. No part of the proceeds of any advance hereunder
shall be used for any purpose that violates, or which is inconsistent with, the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System of the United States.
4.17 Capital Distributions.
(a) Commercial Federal is authorized to make capital distributions
during a calendar year upon notice to the Office of Thrift Supervision as
permitted in 12 C.F.R. ss.563.140-146.
(b) No approval (excluding the notices contemplated in Section 5.10 of
this Agreement) of the Office of Thrift Supervision, the FDIC, or any other
regulatory authority, state or federal, is required in order for Commercial
Federal to make capital distributions.
4.18 Commercial Federal Stock. The Borrower owns 100% of the issued and
outstanding capital stock of Commercial Federal, and such stock is free of any
Lien. Such stock is not subject to any restrictions on pledge, hypothecation, or
other encumbrance, or any restrictions on sale, assignment or other transfer,
except as disclosed in Exhibit 4.18 hereof.
V. AFFIRMATIVE COVENANTS
The Borrower hereby covenants that:
5.1 Financial Reports.
(a) Within forty-five (45) days after the end of each quarterly fiscal
period, the Borrower, at its sole expense, shall furnish the Bank a copy of
the Borrower's Quarterly Report on Form 10-Q for such quarterly period
prepared in compliance with the requirements therefor and filed with the
Securities and Exchange Commission.
(b) Within ninety (90) days after the close of the Borrower's fiscal
year, the Borrower, at its sole expense, shall furnish the Bank: (i) a copy
of the Borrower's Annual Report on Form 10-K for such fiscal year (together
with the Borrower's annual report to shareholders, if any, prepared
pursuant to Rule 14A-3 under the Securities Exchange Act of 1934, as
amended, prepared in compliance with the requirements therefor and filed
with the Securities and Exchange Commission); and (ii) a certificate from
Deloitte & Touche, or other independent certified public accountants
acceptable to the Bank certifying that in making the requisite audit for
certification of any such financial statements after the date of this
Agreement, the auditors either (1) have obtained no knowledge, and are not
otherwise aware of, any condition or event which constitutes an Event of
Default or which with the passage of time or the giving of notice would
constitute an Event of Default or Potential Event of Default, or (2) have
discovered such condition or event, as specifically set forth in such
certificate, which constitutes an Event of Default or Potential Event of
Default. The auditors shall not be liable to the Bank by reason of the
auditors' failure to obtain knowledge of such event or condition in
20
the ordinary course of their audit unless such failure is the result of
negligence or willful misconduct in the performance of the audit.
(c) Within forty-five (45) days after the end of each quarter, the
Borrower, at its expense, shall furnish the Bank a Quarterly Compliance
Certificate and a Loan Loss Reserve Adequacy Report, substantially in the
form of Exhibit A to the Quarterly Compliance Report, setting forth such
information (including detailed calculations) sufficient to verify the
conclusions of such officer after due inquiry and review, that:
(i) The Borrower, either (y) is in compliance with the
requirements set forth in this Agreement or (z) is NOT in compliance
with the foregoing for reasons specifically set forth therein; and
(ii) The chief financial officer of the Borrower has reviewed or
caused to be reviewed all of the terms of the Credit Documents of the
Borrower and that such review either (1) has NOT disclosed the
existence of any condition or event which constitutes an Event of
Default or a Potential Event of Default under the Credit Documents or
(2) has disclosed the existence of a condition or event which
constitutes an Event of Default or a Potential Event of Default, under
the aforesaid instrument or instruments and the specific condition
or event is specifically set forth.
(d) The Borrower shall provide the Bank with such other financial
reports and statements as the Bank may reasonably request.
5.2 Notice of Default. The Borrower shall give to the Bank prompt written
notification of the existence or occurrence of:
(a) any fact or event which results in an Event of Default or
Potential Event of Default hereunder;
(b) any proceedings instituted by or against the Borrower or Commercial
Federal in any federal, state or local court or before any governmental
body or agency, or before any arbitration board, or any such proceedings
threatened against the Borrower or Commercial Federal by any governmental
agency,
(i) affecting or challenging the validity of the Credit Documents,
or payment of the Term Notes or Revolving Notes; or
(ii) which is likely to have a Material Adverse Effect;
(c) any event of default or any event or condition the occurrence or
existence of which with the lapse of time, the giving of notice, or both,
would become an event of default involving the payment of money under any
agreement or instrument which is Material to the Borrower or Commercial
Federal to which the Borrower or Commercial Federal, as applicable, is a
party or by which it or any of its property may be bound, and which default
or event of default would have a Material Adverse Effect; or
21
(d) the Borrower shall give immediate notice of the
commencement of any proceeding under the Federal Bankruptcy Code by or
against the Borrower or Commercial Federal, or of any regulatory action
against or materially affecting the Borrower or Commercial Federal.
5.3 Compliance with Law and Regulations. The Borrower shall
comply, and shall cause Commercial Federal to comply, in all material respects
with all applicable federal and state laws and regulations.
5.4 Maintenance of Property; Accounting; Corporate Form; Taxes;
Insurance.
(a) The Borrower shall maintain, and shall cause Commercial
Federal to maintain, its property in good condition in all material
respects, ordinary wear and tear excepted, and make all renewals,
replacements, additions, betterments and improvements thereto necessary
for the efficient operation of its business.
(b) The Borrower shall keep, and shall cause Commercial
Federal to keep, true books of record and accounts in which full and
correct entries shall be made of all its business transactions, all in
accordance with generally accepted accounting principles consistently
applied.
(c) The Borrower shall do or cause to be done all things
necessary to preserve and keep in full force and effect, for each of
itself and Commercial Federal, its corporate form of existence as is
necessary for the continuation of its business in substantially the
same form.
(d) The Borrower shall pay, and shall cause Commercial Federal
to pay, all taxes, assessments and governmental charges or levies
imposed upon it or its property; provided, however, that neither the
Borrower nor Commercial Federal shall be required to pay any of the
foregoing taxes which are being diligently contested in good faith by
appropriate legal proceedings and with respect to which adequate
reserves have been established.
(e) The Borrower shall maintain or cause to be maintained
liability insurance and casualty insurance upon tangible assets owned
by it or by Commercial Federal.
5.5 Inspection of Properties and Books. Subject to any necessary
regulatory approvals and privacy laws, the Borrower shall recognize and honor
the right of the Bank, upon request to an officer of the Borrower by the Bank's
head of the Correspondent Banking department, the Corporate Bank President, or
an Executive Vice President of the Bank or higher, to visit and inspect any of
the properties of, to examine the books, accounts, and other records of, and to
take extracts therefrom and to discuss the affairs, finances, loans and accounts
of, and to be advised as to the same by the officers of, the Borrower and
Commercial Federal at all such times, in such detail and through such agents and
representatives as the Bank may reasonably desire.
5.6 Corporate Structure. The Borrower shall give the Bank ninety
(90) days notice prior to changing its corporate structure, if such change would
result in a Material Adverse Effect.
22
5.7 Notice of Change in Ownership or Management. During the term
of this Agreement, the Borrower shall give the Bank notice of the occurrence of
any of the following described events, which notice shall be given as soon as
the Borrower obtains notice or knowledge thereof:
(a) any Change of Control; or
(b) any Material Adverse Management Change or event or
occurrence which is likely to result in a Material Adverse Effect.
5.8 Expenses. The Borrower shall, immediately upon demand by the
Bank, reimburse the Bank for all costs and expenses, including fees and expenses
of counsel to the Bank, incurred by the Bank in connection with the transaction
contemplated by the Operating Documents, including without limitation, the
negotiation, execution, waiver, amendment or enforcement thereof.
5.9 Transactions with Affiliates. All transactions between or
among the Borrower, Commercial Federal, their Subsidiaries or Affiliates, or any
of them (other than transactions between Commercial Federal and its Wholly-Owned
Subsidiaries) shall be in the ordinary course of business, for fair value and on
terms no less favorable than would be obtainable in a comparable arms-length
transaction with a third party.
5.10 Regulatory Notices of Capital Distribution. The Borrower shall
provide to the Bank copies of all notices to the Office of Thrift Supervision
regarding capital distributions.
VI. NEGATIVE COVENANTS
The Borrower hereby covenants that:
6.1 Corporate Structure and Assets. The Borrower shall not merge
or consolidate with any other corporation or entity unless the Borrower shall be
the surviving entity, nor sell any assets except items that are obsolete or no
longer necessary for operation of the business, other than in the ordinary
course of business without the prior written consent of the Bank. The Bank shall
be entitled to receive as a prepayment on the Term Notes or Revolving Notes
proceeds of any sale of assets of the Borrower which are prohibited by the
preceding sentence. Notwithstanding the foregoing prepayment requirements, any
such prohibited sale shall remain a violation of this Agreement.
6.2 Use of Proceeds. No part of the proceeds of any advance
hereunder shall be used for any purpose that violates, or which is inconsistent
with, the provisions of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System of the United States.
6.3 Negative Pledge. The Borrower will not create, incur, assume,
permit or suffer to exist with respect to any of the assets or property of the
Borrower or Commercial Federal or their respective Wholly-Owned Subsidiaries
(including, without limitation, the Borrower's stock in and evidences of debt
from Commercial Federal or other Subsidiaries) or any income, revenue, or
profits therefrom, all whether now owned or possessed or hereafter acquired, any
Lien, assignment, hypothecation, charge, adverse claim or other encumbrance
thereon, excepting only Permitted Liens. Neither the Borrower nor Commercial
Federal nor any of their respective Wholly-Owned Subsidiaries
23
will transfer or convey any of its assets or property (including without
limitation, its stock in Subsidiaries), or any income, revenue, profits
therefrom, all whether now owned or possessed or hereafter acquired, for the
purpose, or with the effect, of subjecting the same to payment of any
Indebtedness or other obligation in priority of payment over its general
creditors. Neither the Borrower nor Commercial Federal nor any of their
respective Wholly-Owned Subsidiaries will suffer to exist any Indebtedness or
obligation (other than Indebtedness or an obligation secured by a Permitted Lien
which does not otherwise create a Default or Event of Default under this
Agreement) which may, by law, if unpaid or in the event of bankruptcy or
insolvency, or otherwise, be given priority in payment over its general
creditors; nor will the Borrower or Commercial Federal or any of their
respective Wholly-Owned Subsidiaries make any agreement or arrangement to
subordinate the payment of the Term Notes or the Revolving Notes to any other
Indebtedness. Without limiting the generality of the foregoing, if the Borrower
or Commercial Federal or any of their respective Wholly-Owned Subsidiaries shall
create, incur, assume, permit or suffer to exist any Lien (other than Permitted
Liens) upon any of its property or assets, the Borrower or Commercial Federal or
their respective Wholly-Owned Subsidiaries, as applicable, shall make or cause
to be made effective provision for the Term Note and the Revolving Note to be
secured equally and ratably with any Indebtedness secured by the Lien, so long
as such other Indebtedness shall be so secured; provided, however, that such
Lien will constitute a breach of this Section 6.3 regardless of the Borrower's
or Commercial Federal's or their respective Wholly-Owned Subsidiaries'
compliance with this last sentence.
6.4 Prepayment of Indebtedness. The Borrower shall not prepay any
of the Existing Indebtedness (other than amounts owed under the Term Notes and
the Revolving Notes) prior to the scheduled debt service shown on Exhibit 6.4
hereof without the written consent of the Bank.
VII. FINANCIAL COVENANTS
7.1 Total Risk-Based Capital. The Borrower shall cause Commercial
Federal to maintain Total Risk-Based Capital in an amount not less than
$800,000,000.00.
7.2 [Reserved].
7.3 Additional Debt. From and after the Closing Date, without the
prior written consent of the Bank, the Borrower will not create, incur, or
suffer to exist any Indebtedness except Indebtedness incurred by the Borrower in
the ordinary course of its business or any additional Indebtedness (including
Indebtedness under capital leases) not in excess of $25,000,000 on a
consolidated basis and which at all times shall be subordinate to the Credit
Documents.
7.4 Financial Ratios. During the term of this Agreement, the
Borrower shall maintain and shall cause Commercial Federal to maintain, as
applicable, financial ratios on a consolidated basis equivalent to or better
than the following:
(a) the ratio of the Borrower's total liabilities, determined
in accordance with GAAP, to Commercial Federal's Total Risk-Based
Capital shall not exceed .30 to 1.0 (30.0%);
24
(b) the Borrower's Earnings Available for Fixed Charges for
the then-current immediately preceding three calendar quarters shall be
no less than two times the Borrower's Pro Forma Fixed Charges for the
then-current and three immediately following calendar quarters;
(c) Commercial Federal's Classified Loans, excluding Other
Real Estate Owned (as required to be disclosed in Commercial Federal's
reports to any of its regulators), shall be less than 2.0% of the total
principal amount of outstanding loans and less than 24.0% of Commercial
Federal's Total Risk-Based Capital;
(d) Commercial Federal's Non-Performing Loans shall be less
than 1.3% of the total principal amount of outstanding loans and less
than 16.0% of Commercial Federal's Total Risk-Based Capital;
(e) Commercial Federal's Non-Performing Assets shall be less
than 22.0% of Commercial Federal's Total Risk-Based Capital; and
(f) On an annual basis as determined in accordance with GAAP
as of December 31st of each year, Commercial Federal's annual return on
assets shall be no less than 0.4% per annum.
7.5 Commercial Federal Reserves. At all times during the term of
this Agreement, the Borrower shall cause Commercial Federal to maintain a
reserve for bad debts equal to at least 65.0% of the total principal amount
outstanding of Commercial Federal's Non-Performing Assets. Additionally, the
Borrower shall cause Commercial Federal to maintain a ratio of actual reserve to
minimum reserve of greater than 100%, as calculated and reported in the Loan
Loss Reserve Adequacy Report, which the Borrower will provide to the Bank on a
quarterly basis.
7.6 Sales of Assets. Except for transactions in the ordinary
course of business including the sale of the OREO properties, and transactions
with the Borrower's Wholly-Owned Subsidiaries, during the term of this Agreement
the Borrower shall not sell, lease, abandon or otherwise dispose of, or permit
the sale, lease, abandonment or other disposition of assets on a consolidated
basis in excess of $10,000,000 each year. Notwithstanding the foregoing, the
Borrower is hereby permitted to sell the following real property in Omaha,
Nebraska, so long as the proceeds of such sales are reinvested by the Borrower
in a new corporate headquarters: (a) the Commercial Federal Building at 000
Xxxxxxx Xxxxxxx; (b) the building at 0000 Xxxxxx Xxxxxx; and (c) the 70-acre
parcel of land bounded by 132nd Streets and 137th Streets on the east and west,
and Dodge Street and Xxxx Street on the south and north. All sales, leases,
abandonment or other disposition of an aggregate annual amount of $10,000,000
must be at fair market value. The Borrower shall not, and shall not permit
Commercial Federal nor any of their Subsidiaries to: (i) sell, assign, pledge or
otherwise dispose of any stock of Commercial Federal; (ii) enter into any other
transaction, the effect of which would be to reduce the Borrower's percentage of
stock in Commercial Federal; or (iii) sell, assign,
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pledge or otherwise dispose of any stock of any other Subsidiary in excess of
$10,000,000 in the aggregate after the date hereof.
7.7 Investments in Affiliates and Subsidiaries. The Borrower shall not
make any loans or other extensions of credit to, or capital contributions or
other investments in, its Affiliates and Subsidiaries, in an aggregate amount
per year in excess of $25,000,000; provided, however, that this limitation shall
not apply to any such transactions with the Borrower's Wholly-Owned
Subsidiaries.
7.8 Capital. The Borrower shall cause Commercial Federal to maintain a
level of capital that exceeds by .25% (.0025) the percent which qualifies it as
"well-capitalized" under then-current the rules and regulations specified by the
Office of Thrift Supervision, including without limitation 12 C.F.R. ss.
565.4(b)(1) and any regulations promulgated in connection with, or substitution
or replacement thereof. Based on current regulatory requirements, the Borrower
shall cause Commercial Federal to maintain financial ratios equivalent to or
better than the following:
(a) Tier 1 Leverage Capital shall be not less than 5.25%;
(b) Tier 1 Risk-Based Capital shall be not less than 6.25%;
and
(c) Total Risk-Based Capital shall be not less than 10.25%.
VIII. CONDITIONS PRECEDENT
8.1 Initial Extension of Credit. The obligation of the Bank to make its
initial Loan hereunder is subject to the conditions precedent that: (i) such
Loan shall be made on or prior to December 31, 2002; and (ii) the Bank shall
have received the following documents, each of which shall be satisfactory to
the Bank in form and substance:
(a) Officer's Certificate. A certificate of a Responsible
Officer of the Borrower, dated the Closing Date, to the effect set
forth in the first sentence of 8.2 hereof.
(b) Solvency Certificate. A solvency certificate from a
Responsible Officer of the Borrower as required by, and in form and
substance reasonably satisfactory to, the Bank.
(c) Repayment of Existing Indebtedness. Evidence that the
principal of and interest on, and all other amounts owing in respect
of, the Indebtedness (including, without limitation, any contingent or
other amounts payable in respect of letters of credit) outstanding in
connection with the Existing Credit Agreement shall have been (or shall
be simultaneously) paid in full, that any commitments to extend credit
under the agreements or instruments relating to such Indebtedness shall
have been cancelled or terminated.
26
(d) Opinions of Counsel to the Borrower. Opinion, dated the
Closing date, of counsel to the Borrower in form and substance
satisfactory to the Bank and covering such matters with respect to the
Credit Documents being executed and delivered by the Borrower.
(e) Payment of Fees and Other Amounts. Evidence of payment of
all fees payable to the Bank as of the Closing Date as heretofore
agreed.
(f) Other Documents. Such other documents as any the Bank or
counsel to the Bank may reasonably request.
(g) Agency. Payment by the Borrower to the Bank of an agency
fee of fifty thousand dollars ($50,000.00).
8.2 Initial and Subsequent Extensions of Credit. The obligation of
the Bank to make any Loan to the Borrower is subject to the further conditions
precedent that, both immediately prior to the making of such Loan, and also
after giving effect thereto and to the intended use thereof:
(a) No Default shall have occurred and be continuing;
(b) The representations and warranties made by the Borrower in
Section 8 hereof shall be true and complete on and as of the date of
the making of such Loan, or other extension of credit wit h the same
force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of
the specific date, as of such specific date);
(c) No material adverse change shall have occurred and be
continuing with respect to the condition (financial or otherwise),
business, operations, assets, liabilities or prospects of the Borrower.
(d) No order, judgment or decree of any court, arbitrator or
Governmental Authority that does, or seeks to, enjoin or restrain the
Bank from making any Loan or shall be pending or threatened.
IX. EVENTS OF DEFAULT
9.1 Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
(a) The Borrower shall default in the payment when due
(whether at stated maturity or upon mandatory or optional prepayment)
of any principal of any Loan. The Borrower shall default in the payment
when due of any interest on any Loan, any fee or any other amount
payable by it hereunder or under any other Credit Document; or
(b) The Borrower shall default in the payment when due of any
principal of or interest on any of its other Indebtedness; or any event
specified in any note, agreement, indenture or other document
evidencing or relating to any such Indebtedness shall occur if the
27
effect of such event is to cause, or (with the giving of any notice or
the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Indebtedness to become due, or to be prepaid in
full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity; or
(c) Any representation, warranty or certification made or
deemed made herein or in any other Credit Document (or in any
modification or supplement hereto or thereto) by the Borrower or any
certificate furnished to the Bank pursuant to the provisions hereof or
thereof, shall prove to have been false or misleading as of the time
made or furnished in any material respect; or
(d) The Borrower shall default in the performance of any of
its obligations under any of Sections 5.2, 5.6, 7.1, 7.3, 7.4, 7.5, and
7.8 hereof. The Borrower shall default in the performance of any of its
obligation in any Credit Document (other than those listed in clause
(a) of this Section 9 or the first sentence of this clause (d)) and
such default (in each se set forth in this sentence) shall continue
unremedied for a period of 30 or more days after notice thereof to the
Borrower by the Bank; or
(e) The Borrower shall admit in writing its inability to, or
be generally unable to, pay its debts as such debts become due; or
(f) The Borrower shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, an interim
receiver, an administrator, a custodian, trustee, examiner, provisional
liquidator, liquidator or similar officer of itself or of all or a
substantial party of its Property, (ii) make a general assignment for
the benefit of its creditors, (iii) commence a voluntary case under any
applicable Bankruptcy Law, (iv) file a petition (or proposal or notice
of intention to file a proposal or motion for a stay) seeking to take
advantage of any other law relating to bankruptcy, insolvency,
reorganization, suspension of payments, liquidation, dissolution,
arrangement or winding-up, or composition or readjustment of debts, (v)
fail to controvert in a timely and appropriate manner, or acquiesce in
writing to, any petition filed against it in an involuntary case under
any applicable Bankruptcy Law or (vi) take any corporate action
(including, without limitation, any resolution) for the purpose of
effecting any of the foregoing; or
(g) A proceeding or case shall be commenced against the
Borrower without the application or consent of the Borrower, as the
case may be, in any court of competent jurisdiction, seeking (i) its
reorganization, liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
receiver, an interim receiver, a custodian, trustee, examiner,
provisional liquidator, liquidator or the like of the Borrower of all
or any substantial part of its Property, or (iii) similar relief in
respect of the Borrower under any Bankruptcy Law, and such proceeding
or case shall continue undismissed or not rejected, or an order,
judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect, for a period of 90 or more
days; or an order for relief against the Borrower shall be entered in
an involuntary case under any applicable Bankruptcy Law; or
28
(h) A final judgment or judgments for the payment of money of
One Million Dollars ($1,000,000) or more in the aggregate (exclusive of
judgment amounts fully covered by insurance where the insurer has
admitted liability in respect of such judgment) shall be rendered by
one or more courts, administrative tribunals or other bodies having
jurisdiction against the Borrower and the same shall be outstanding at
the same time and shall not be discharged (or provision shall not be
made or such discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and the
Borrower shall not, within said period of 30 days, or such longer
period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) Any Governmental Approval or other license, consent,
authorization, registration or approval at any time necessary to enable
the Borrower to comply with any of its obligations under this Agreement
or any other Credit Document shall be revoked, withdrawn or withheld or
shall be modified or amended in a manner which could reasonably be
expected, in the sole determination of the Bank to have a Material
Adverse Effect on such event or condition shall continue unremedied for
a period of 30 or more days after notice thereof to the Borrower by the
Bank, or any other event or circumstance shall occur which could
reasonably be expected, in the sole determination of the Bank, to have
a Material Adverse Effect; or
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause 9.01 of this Section 9, the Bank may, by notice to the Borrower,
terminate the Revolving Commitment and/or declare the principal amount then
outstanding of, and the accrued interest on, the Revolving Loan and the Term
Loan, and all other amounts payable to the Borrower hereunder and under the
other Credit Documents to be forthwith due and payable, whereupon such amounts
shall be immediately due and payable without presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by the
Borrower; and (2) in the case of the occurrence of an Event of Default referred
to in clause 9.01 of this Section 9, the Revolving Commitment and the Term Loan
shall automatically be terminated and the principal amount then outstanding of
and the accrued interest on, the Revolving Credit Loan and the Term Loan and all
other amounts payable by the Borrower hereunder and under the other Credit
Documents shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Borrower.
X. YIELD PROTECTION, ETC.
10.1 Capital Adequacy. If, after the date hereof, the adoption or
implementation of any applicable law, rule, or regulation regarding capital
adequacy (including, without limitation, any law, rule, or regulation
implementing the Basle Accord), or any change therein, or any change in the
interpretation or administration thereof by any central bank or other
governmental authority charged with the interpretation or administration
thereof, or compliance by the Bank (or its parent) or any Primary Participant
with any guideline, request, or directive regarding capital adequacy (whether or
not having the force of law) of any such central bank or other governmental
authority (including, without limitation, any guideline or other requirement
implementing the Basle Accord), has or would have the effect of reducing the
rate of return on such Person's capital as a consequence of its
29
obligations hereunder or the transactions contemplated hereby to a level below
that which such Person could have achieved but for such adoption,
implementation, change, or compliance (taking into consideration such Person's
policies with respect to capital adequacy) by an amount deemed by such Person to
be material, then such Person shall provide to the Borrower notice of such
matter, and from time to time thereafter within ten (10) Business Days after
demand by such Person, the Borrower shall pay to such Person such additional
amount or amounts as will compensate such Person for such reduction which is
incurred by such Person after the date of such Person's notice to the Borrower
under this Section 10.1. Notwithstanding the preceding sentence, upon Borrower's
receipt of such notice from such Person, Borrower may provide to such Person its
notice of prepayment in accordance with Sections 2.4 and 3.4 hereof. A
certificate of the Person claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive, provided that the determination thereof is made on a reasonable
basis. In determining such amount or amounts, such Person may use any reasonable
averaging and attribution methods.
10.2 General Indemnity. The Borrower shall indemnify the Bank, the
Primary Participants and the respective directors, officers, employees and
agents from and against any and all losses, claims, liabilities, damages,
attorneys' fees and disbursements, and other costs and expenses which the
indemnified party may at any time sustain or incur in connection with the
Borrower's use of loan proceeds; provided that the indemnified party shall not
have any right to be indemnified for its own gross negligence or willful
misconduct. All indemnities and all provisions relative to reimbursement to the
Bank and the Primary Participants of amounts sufficient to compensate any such
Person for the changes in capital adequacy requirements, including, but not
limited to, Section 10.1 hereof, shall survive the termination of this Agreement
and the payment of the Term Notes and the Revolving Notes.
XI. MISCELLANEOUS
11.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and may not be effectively amended, changed, modified or altered, except in
writing executed by all parties. Notwithstanding the foregoing, it is understood
that in the event the terms of the Term Notes or the Revolving Notes conflict
with the terms of this Agreement, the provisions of the Term Notes or Revolving
Notes, as applicable, shall prevail.
11.2 Governing Law. The Credit Documents shall be governed by and
construed pursuant to the laws of the State of Nebraska.
11.3 Notices. Until changed by written notice form one party hereto
to the other, all communications under the Credit Documents shall be in writing
and shall be telecopied, hand delivered or mailed by registered to the parties
as follows:
30
If to the Borrower:
COMMERCIAL FEDERAL CORPORATION
00000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx, Executive Vice
President and CFO
If to the Bank:
FIRST NATIONAL BANK OF OMAHA
1620 Dodge Street, Stop 1196
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Second Vice President
11.4 Headings. The captions and headings herein are for convenience
only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Agreement.
11.5 Counterparts. This Agreement may be executed in several
counterparts and such counterparts together shall constitute one and the same
instrument.
11.6 Survival; Successors and Assigns. The covenants, agreements,
representations and warranties made herein, and in the certificates delivered
pursuant hereto, shall survive the execution and delivery to the Bank of this
Agreement and shall continue in full force and effect so long as the Term Notes,
the Revolving Notes or any obligation to the Bank under any of the Credit
Documents is outstanding and unpaid. Whenever in this Agreements any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party, and all covenants, promises and agreements
by or on behalf of the Borrower which are contained in this Agreement shall bind
the successors and assigns of the Borrower and shall inure to the benefit of,
the successors and assigns of, or Person participating with, the Bank.
11.7 Severability. If any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
11.8 Assignment. The Borrower may not assign its rights or
obligations hereunder and any assignment in contravention of the terms hereof
shall be void.
11.9 Amendments. Any amendment, modification or supplement to this
Agreement must be in writing and must be signed by the parties hereto.
11.10 Participations. The Borrower hereby acknowledges that the Bank
is assigning to the Primary Participants a participation in the Term Credit
Facility and the Term Notes. The Bank and each Primary Participant may, at their
sole election, participate their respective interests in the Revolving Notes and
the Term Notes to Secondary Participant provided, however, that the rights of
31
any Secondary Participant shall be enforceable solely by the Bank or Primary
Participant from whom its participation interest was granted.
11.11 Waiver of Jury Trial. THE PARTIES TO THIS AGREEMENT HEREBY WAIVE
ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY DISPUTE OR CAUSE OF ACTION
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this Loan
Agreement to be executed by their duly authorized corporate officers as of the
day and year first above written.
COMMERCIAL FEDERAL CORPORATION
By /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Executive Vice President
and Chief Financial Officer
FIRST NATIONAL BANK OF OMAHA
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Title: Second Vice President
NOTICE: A credit Agreement must be in writing to be enforceable under Nebraska
law. To protect you and us from any misunderstanding or disappointments, any
contract, promise, undertaking, or offer to forebear repayment of money or to
make any other financial accommodation in connection with this loan of money or
grant or extension of credit, or any amendment of, cancellation of, waiver of,
or substitution for any or all of the terms or provisions of any instrument or
document executed in connection with this loan of money or grant or extension of
credit, must be in writing to be effective.
INITIALED:
/s/ DSF
--------
Borrower
32
TERM CREDIT BUSINESS PROMISSORY NOTE
$94,000,000 Date: December 30, 2002
For Value Received, the undersigned promises to pay on or before
December 31, 2007, to the order of First National Bank of Omaha, at its
headquarters office located at 0000 Xxxxx Xxxxxx, Xxxxx, XX 00000 (the "Bank"),
or at such other place as the holder hereof may from time to time designate, the
principal sum of Ninety-Four Million Dollars ($94,000,000). The principal sum
shall become due and payable in twenty equal quarterly installments of
$2,350,000 with the first such installment due on March 31, 2003 and subsequent
installments due on the last day of the month of June, September, December and
March thereafter, with the balance of the principal amount of the term note due
and payable on the maturity date. TERMS NOT DEFINED HEREIN SHALL HAVE THE
MEANINGS SET FORTH IN THAT CERTAIN TERM AND REVOLVING CREDIT AGREEMENT DATED AS
OF DECEMBER 30, 2002 AMONG THE UNDERSIGNED AND THE BANK (the "Credit
Agreement"). Amounts available to be drawn under this Term Credit Business
Promissory Note shall be determined in accordance with the terms of the credit
agreement.
The unpaid balance of this Note at any time shall be the total amount
advanced, plus interest accrued thereon and costs, expenses, and fees chargeable
hereunder, less the amount of payments made hereon by or for the undersigned,
which balance may be indorsed hereon from time to time by the holder hereof.
Interest shall be charged on the unpaid principal balance of this Note
to the date of maturity on a daily basis for the actual number of days any
portion of the principal is outstanding, computed on the basis of a 360-day
year, at the floating rate announced from time to time by the Bank as its
"National Base Rate" minus one percent (1%) (the "Note Rate"). The National Bar
Rate is set by the Bank, solely in its discretion, to reflect generally the
rates charged by money center banks as their reference rates. Rates charged by
the Bank may be at above or below the National Base Rate, as determined by the
Bank as to each respective customer. Each change in the National Base Rate (or
any component thereof) shall become effective, without notice to the undersigned
(which notice is hereby expressly waived by the undersigned), on the effective
date of each such change. Should Bank, during the term of this Note, abolish or
abandon the practice of establishing a National Base Rate, then the National
Base Rate used during the remaining term of this Note shall be that interest
rate then the effect at Bank, which, from time to time, in the reasonable
judgment of Bank, most effectively approximates the original definition of the
"National Base Rate." The undersigned acknowledges that Bank may, from time to
time, extend credit to other persons at rates of interest varying from, and
having no relationship to, the National Base Rate. A certificate signed by an
officer of Bank shall be conclusive evidence of the National Base Rate at any
given time.
Interest shall be computed on the basis of a 360--day year and shall be
payable on the due date of this Note quarterly commencing with the 31/st/ day of
March, 2003, until all principal and interest hereunder have been fully paid.
The undersigned acknowledges that the undersigned has agreed to the
rate of interest represented by (1) the Note Rate; (2) any compensating balance
requirement of Bank; and (3) any additional charges, costs, and fees arising out
of or related to the transaction of which this Note is a part, to the extent
deemed to be interest under applicable law.
Upon default, all obligations under this Note (including principal,
interest, costs, and fees) shall bear interest, until paid in full at the Note
Rate plus a per annum rate equal to three and one half percent (3.5%).
Each and every payment due under this Note shall be made in lawful
money of the United States and in immediately available funds, and when made
shall be first applied to accrued costs, expenses, and fees, if any, then to
interest due, and then to the reduction of the principal amount of this Note.
No provision of this Note or any other aspect of the transaction of
which this Note is a part is intended to or shall require or permit the holder,
directly or indirectly, to take, receive, contract for, or reserve, in money,
goods, or things in action, or in any other way, any interest (including amounts
deemed by law to be interest, such amounts to then be deemed to be an addition
to the rate of interest agreed upon) in excess of the maximum rate of interest
permitted by applicable law in the state of Nebraska as of the date hereof. If
any such excess shall nevertheless be provided for, or be adjudicated by a court
of competent jurisdiction to be provided for, the undersigned shall not be
obligated to pay such excess but, if paid, then such excess shall be applied
against the unpaid principal balance of this Note or, to the extent that the
principal balance has been paid in full by reason of such application or
otherwise, such excess shall be remitted to the undersigned.
The undersigned hereby agrees (1) to any and all extensions (including
extensions beyond the original term hereof) and renewals hereof, from time to
time, without notice, and that no such extension or renewal shall constitute or
be deemed a release of any obligation of the undersigned to the holder hereof;
(2) that any written modification, extension, or renewal hereof executed by the
undersigned shall constitute a representation and warranty of the undersigned
that the unpaid balance of principal, interest, and other sums owing hereunder
at the time of such modification, renewal, or extension are owed without
adjustment for any offset, counterclaim, or other defense of any kind by the
undersigned against Bank; (3) that the acceptance by the holder hereof of any
performance that does not comply strictly with the terms hereof shall be deemed
to be neither a waiver or bar of any right of said holder, nor a release of any
obligation of the undersigned to the holder hereof; (4) to offsets of any sums
or property owed to the undersigned by the holder hereof at any time; (5) that
the undersigned is and shall remain subject to the in personam, in rem, and
subject matter jurisdiction of the courts of Nebraska (including the Federal
District Court for the district of Nebraska for all purposes pertaining to this
instrument and all documents and instruments executed in connection herewith,
securing the same, or in any way pertaining hereto; (6) that no surety or
guarantor hereof shall be required to be joined in any action brought to enforce
this Note, and that the undersigned waives the right to require the joinder of
the undersigned in any action to enforce the liability of a surety or guarantor
hereof; (7) that this Note shall be governed by the laws of the state of
Nebraska applicable to the holder hereof upon demand any and all costs,
expenses, and fees (including reasonable attorney fees)
incurred in enforcing or attempting to recover payment of the amounts due under
this Note, including negotiating, documenting, and otherwise pursuing or
consummating modifications, extensions, compositions, renewals, or other similar
transactions pertaining to this Note, irrespective of the existence of an event
of default, and including costs, expenses, and fees incurred before, after, or
irrespective of whether suit is commenced, and in the event suit is brought to
enforce payment hereof, such costs, expenses, and fees and all other issues in
such suit shall be determined by a court sitting without a jury.
The undersigned authorizes Bank to furnish any information in its
possession, however acquired, concerning the undersigned (or any affiliate) to
any person or entity, for the purpose that Bank, in good faith and in its sole
discretion, believes to be proper, including without limitation, the disclosure
of information to an actual or prospective lender to the undersigned, any actual
or prospective participant in a loan between the undersigned and Bank, any
prospective purchaser of securities issued or to be issued by Bank, and, to the
extent permitted by law, any governmental body or regulatory agency, or in
connection with the actual or prospective transfer of all or a portion of this
Note to another financial institution.
The undersigned represents and warrants that the indebtedness
represented by this Note is for commercial purposes only.
COMMERCIAL FEDERAL CORPORATION
By:____________________________
Its:___________________________
REVOLVING CREDIT PROMISSORY NOTE
$10,000,000 Date: December 30, 2002
For Value Received, the undersigned promises to pay on or before
December 29, 2003, to the order of First National Bank of Omaha, at its
headquarters office located in 0000 Xxxxx Xxxxxx, Xxxxx, XX 00000 ("Bank"), or
at such other place as the holder hereof may from time to time designate, the
unpaid amount of all sums that have been advanced to or for the benefit of the
undersigned in accordance with the terms hereof and that certain Term and
Revolving Credit Agreement ("Credit Agreement") between the undersigned and
Bank, dated as of December 30, 2002. Advances evidenced by this Note shall be
made in accordance with the Credit Agreement. No request for an advance will be
honored if a default hereunder shall exceed the sum of Ten Million Dollars
($10,000,000). Advances pursuant to the Credit Agreement shall be made on a
revolving basis and subject to the provisions thereof, the undersigned may
borrow, prepay, and reborrow under the Credit Agreement from time to time, and
at any time prior to the due date of this Note. TERMS NOT DEFINED HEREIN SHALL
HAVE THE MEANINGS SET FORTH IN THAT CERTAIN TERM AND REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 30, 2002.
The unpaid balance of this Note at any time shall be the total amount
advanced, plus interest accrued thereon and costs, expenses, and fees chargeable
hereunder, less the amount of payments made hereon by or for the undersigned,
which balance may be indorsed hereon from time to time by the holder hereof.
Interest shall be charged on the unpaid principal balance of this Note
to the date of maturity on a daily basis for the actual number of days any
portion of the principal is outstanding, computed on the basis of a 360-day
year, at the floating rate announced from time to time by the Bank as its
"National Base Rate" minus one percent (1%) (the "Note Rate"). The National Bar
Rate is set by the Bank, solely in its discretion, to reflect generally the
rates charged by money center banks as their reference rates. Rates charged by
the Bank may be at above or below the National Base Rate, as determined by the
Bank as to each respective customer. Each change in the National Base Rate (or
any component thereof) shall become effective, without notice to the undersigned
(which notice is hereby expressly waived by the undersigned), on the effective
date of each such change. Should Bank, during the term of this Note, abolish or
abandon the practice of establishing a National Base Rate, then the National
Base Rate used during the remaining term of this Note shall be that interest
rate then the effect at Bank, which, from time to time, in the reasonable
judgment of Bank, most effectively approximates the original definition of the
"National Base Rate." The undersigned acknowledges that Bank may, from time to
time, extend credit to other persons at rates of interest varying from, and
having no relationship to, the National Base Rate. A certificate signed by an
officer of Bank shall be conclusive evidence of the National Base Rate at any
given time.
Interest shall be computed on the basis of a 360--day year and shall be
payable on the due date of this Note quarterly commencing with the 31/st/ day of
March, 2003, until all principal and interest hereunder have been fully paid.
The undersigned acknowledges that the undersigned has agreed to the
rate of interest represented by (1) the Note Rate; (2) any compensating balance
requirement of Bank; and (3) any additional charges, costs, and fees arising out
of or related to the transaction of which this Note is a part, to the extent
deemed to be interest under applicable law.
Upon default, all obligations under this Note (including principal,
interest, costs, and fees) shall bear interest, until paid in full at the Note
Rate plus a per annum rate equal to three and one half percent (3.5%).
Each and every payment due under this Note shall be made in lawful
money of the United States and in immediately available funds, and when made
shall be first applied to accrued costs, expenses, and fees, if any, then to
interest due, and then to the reduction of the principal amount of this Note.
No provision of this Note or any other aspect of the transaction of
which this Note is a part is intended to or shall require or permit the holder,
directly or indirectly, to take, receive, contract for, or reserve, in money,
goods, or things in action, or in any other way, any interest (including amounts
deemed by law to be interest, such amounts to then be deemed to be an addition
to the rate of interest agreed upon) in excess of the maximum rate of interest
permitted by applicable law in the state of Nebraska as of the date hereof. If
any such excess shall nevertheless be provided for, or be adjudicated by a court
of competent jurisdiction to be provided for, the undersigned shall not be
obligated to pay such excess but, if paid, then such excess shall be applied
against the unpaid principal balance of this Note or, to the extent that the
principal balance has been paid in full by reason of such application or
otherwise, such excess shall be remitted to the undersigned.
The undersigned hereby agrees (1) to any and all extensions (including
extensions beyond the original term hereof) and renewals hereof, from time to
time, without notice, and that no such extension or renewal shall constitute or
be deemed a release of any obligation of the undersigned to the holder hereof;
(2) that any written modification, extension, or renewal hereof executed by the
undersigned shall constitute a representation and warranty of the undersigned
that the unpaid balance of principal, interest, and other sums owing hereunder
at the time of such modification, renewal, or extension are owed without
adjustment for any offset, counterclaim, or other defense of any kind by the
undersigned against Bank; (3) that the acceptance by the holder hereof of any
performance that does not comply strictly with the terms hereof shall be deemed
to be neither a waiver or bar of any right of said holder, nor a release of any
obligation of the undersigned to the holder hereof; (4) to offsets of any sums
or property owed to the undersigned by the holder hereof at any time; (5) that
the undersigned is and shall remain subject to the in personam, in rem, and
subject matter jurisdiction of the courts of Nebraska (including the Federal
District Court for the district of Nebraska for all purposes pertaining to this
instrument and all documents and instruments executed in connection herewith,
securing the same, or in any way pertaining hereto; (6) that no surety or
guarantor hereof shall be required to be joined in any action brought to enforce
this Note, and that the undersigned waives the right to require the joinder of
the undersigned in any action to enforce the liability of a surety or guarantor
hereof; (7) that this Note shall be governed by the laws of the state of
Nebraska applicable to the holder
hereof upon demand any and all costs, expenses, and fees (including reasonable
attorney fees) incurred in enforcing or attempting to recover payment of the
amounts due under this Note, including negotiating, documenting, and otherwise
pursuing or consummating modifications, extensions, compositions, renewals, or
other similar transactions pertaining to this Note, irrespective of the
existence of an event of default, and including costs, expenses, and fees
incurred before, after, or irrespective of whether suit is commenced, and in the
event suit is brought to enforce payment hereof, such costs, expenses, and fees
and all other issues in such suit shall be determined by a court sitting without
a jury.
The undersigned authorizes Bank to furnish any information in its
possession, however acquired, concerning the undersigned (or any affiliate) to
any person or entity, for the purpose that Bank, in good faith and in its sole
discretion, believes to be proper, including without limitation, the disclosure
of information to an actual or prospective lender to the undersigned, any actual
or prospective participant in a loan between the undersigned and Bank, any
prospective purchaser of securities issued or to be issued by Bank, and, to the
extent permitted by law, any governmental body or regulatory agency, or in
connection with the actual or prospective transfer of all or a portion of this
Note to another financial institution.
The undersigned represents and warrants that the indebtedness
represented by this Note is for commercial purposes only.
COMMERCIAL FEDERAL CORPORATION
By:___________________________
Its:__________________________
