CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of the 14th day of July, 1997, and
is by and among COMMUNITY FIRST BANKSHARES, INC., a Delaware corporation with
offices located in Fargo, North Dakota (the "Borrower"), XXXXXX TRUST AND
SAVINGS BANK ("Xxxxxx"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("B of A"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
("Norwest"; Xxxxxx, B of A and Norwest each referred to herein as a "Bank"
and collectively as "Banks"), and Norwest as agent for the Banks (in such
capacity, the "Agent").
RECITALS:
WHEREAS, the Borrower has requested the Banks (i) to establish a
revolving line of credit for the benefit of the Borrower in the amount of
$25,000,000.00, and (ii) to make a non-revolving term loan to the Borrower in
the amount of $30,000,000.00;
WHEREAS, the Banks are willing to grant said requests, subject to the
provisions of this Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein, the parties agree as follows:
SECTION 1 DEFINITIONS
In addition to those terms defined in the above Recitals, as used
herein:
1.1 "Advance" shall mean an advance of funds under the Credit.
1.2 "Agreement" shall mean this Credit Agreement and all amendments and
supplements hereto which may from time to time become effective hereafter.
1.3 "Bank Group" shall mean the Borrower and the Subsidiary Banks.
1.4 "Base Rate" shall mean the "base" or "prime" rate of interest
established by Norwest as in effect and announced from time to time.
1.5 "Base Rate Borrowing" shall mean those Advances, and those portions
of the Term Loan, bearing interest at all times at a variable rate determined
by reference to the Base Rate.
1.6 "Borrowed Money" shall mean funds obtained by incurring contractual
indebtedness, but shall not include money borrowed from any Bank.
1.7 "Business Day" shall mean (i) for all purposes other than those
described in the following clause (ii), any day on which the Agent is open
for transacting substantially all of its commercial business, and (ii) with
respect to all notices and determinations in connection with, and payments of
principal of and interest on, Eurodollar Borrowings, any Business Day
described in preceding clause (i) on which trading by and between banks in
United States Dollar deposits in the London Interbank Eurodollar market is
transacted.
1.8 "Closing Date" shall mean the date on which this Agreement is fully
executed and delivered to the Agent.
1.9 "Core Capital" shall mean the sum of the consolidated total equity
of the Bank Group plus capital and trust preferred securities.
1.10 "Credit" shall mean a revolving line of credit established by the
Banks for the benefit of the Borrower in the aggregate amount of
$25,000,000.00.
1.11 "Credit Expiration Date" shall mean July 13, 1998.
1.12 "Credit Percentages" shall mean, relative to any Bank, the
percentages identified as such set forth opposite the signature block for
such Bank on the last page of this Agreement.
1.13 "Current Notes" shall mean the promissory notes of the Borrower
substantially in the form of attached Exhibits X-0, X-0 xxx X-0, evidencing
Advances under the Credit.
1.14 "Eurodollar Borrowing" shall mean those Advances, and those
portions of the Term Loan, bearing interest at all times during the relevant
Interest Period, at a fixed rate determined by reference to the Eurodollar
Rate.
1.15 "Eurodollar Rate" shall mean, with respect to any Interest Period
for any Eurodollar Borrowing, the rate per annum (rounded up to the nearest
one-sixteenth of one percent) equal to the offered quotation to the Agent
in the London Interbank Eurodollar market for United States Dollar deposits
for delivery on the first day of such Interest Period, for the number of days
in such Interest Period, and in an amount comparable to the principal amount
of the related Eurodollar Borrowing to be outstanding during such Interest
Period, determined as of approximately 12:00 Noon, Minneapolis time, two
Business Days before the beginning of such Interest Period.
1.16 "Events of Default" shall mean any and all events of default
described in Section 8 hereof.
1.17 "Existing Xxxxxx Note" shall mean that certain Promissory Note
dated May 11, 1995 made by the Borrower in the face amount of $10,000,000.00
payable to Xxxxxx.
1.18 "Existing Norwest Term Note" shall mean that certain Promissory
Note dated January 2, 1997 made by the Borrower in the face amount of
$23,000,000.00 payable to Norwest.
1.19 "Federal Funds Borrowing" shall mean those Advances, and those
portions of the Term Loan, bearing interest at all times at a variable rate
determined by reference to the Federal Funds Rate.
1.20 "Federal Funds Rate" shall mean the overnight market rate quoted to
the Agent at approximately 12:00 Noon, Minneapolis time, each Business Day by
dealers in the Federal
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Funds market for the offering of dollars to the Agent for deposit, as such
rate may increase or decrease from time to time.
1.21 "GAAP" shall mean Generally Accepted Accounting Principles applied
on a basis consistent with those reflected in the financial statements
referred to in Section 5.8 hereof.
1.22 "Interest Payment Date" shall mean (i) as to any Eurodollar
Borrowing in respect of which an Interest Period of one, two or three months
has been selected, the last day of such Interest Period, and (ii) as to any
Eurodollar Borrowing in respect of which an Interest Period of six months has
been selected, the last day of the first three month period falling within
such Interest Period and the last day of such Interest Period.
1.23 "Interest Period" means, with respect to any Eurodollar Borrowing,
(a) initially, the period commencing on, as the case may be, the date on
which such Eurodollar Borrowing is made or the date on which such Eurodollar
Borrowing results from the conversion of a Base Rate Borrowing or a Federal
Funds Borrowing, and ending one, two, three or six months thereafter, as
selected in a notice of borrowing, continuance or conversion as provided in
Sections 2.1, 2.3, 2.4 or 3.3 hereof, and (b) thereafter, each period
commencing on the last day of the immediately preceding Interest Period and
ending one, two, three or six months thereafter, as selected by irrevocable
notice to the Agent (which notice must be received by the Agent before 12:00
Noon, Minneapolis time, three Business Days before the last day of the then
current Interest Period with respect to such Eurodollar Borrowing); provided
however, that (i) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day, (ii) the
Borrower may not select an Interest Period that would otherwise extend beyond
the Credit Expiration Date (with respect to the Credit), or the Term Loan
Maturity Date (with respect to the Term Loan), (iii) if no notice is given
with respect to selection on an Interest Period as provided above, the
affected Eurodollar Borrowing shall be converted to a Base Rate Borrowing on
the last day of the Interest Period then in effect, and (iv) any Interest
Period that begins on the last Business Day of a calendar month (or on a date
for which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day of a
calendar month.
1.24 "Key Bank/Wyoming" shall mean Key Bank National Association
(Wyoming).
1.25 "Majority Banks" shall mean any group of Banks which, in the
aggregate, has commitments of 66.67% or more of the aggregate amount of the
Credit and the Term Loan.
1.26 "Old Xxxxxx Loan Agreement" shall mean that certain letter loan
agreement dated May 11, 1995 (as amended) made between the Borrower and
Xxxxxx.
1.27 "Old Norwest Loan Agreement" shall mean that certain letter loan
agreement dated May 11, 1995 (as amended) made between the Borrower and
Norwest.
1.28 "Permitted Liens" shall mean (i) liens in favor of Norwest as agent
for the Banks on a pro rata basis, (ii) liens existing as of the Closing Date
and disclosed to the Banks in writing, (iii) liens for taxes not delinquent
or which the Borrower is contesting in good faith in a manner
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that prevents enforcement of the matters being contested and for which
adequate reserves have been provided, and (iv) purchase money liens securing
indebtedness otherwise permitted under this Agreement, but only extending to
the goods so acquired.
1.29 "Reserve Adjusted Eurodollar Rate" shall mean, for any Interest Period,
a rate per annum (rounded upward, if necessary, to the next higher 1/16 of
1%) equal to the rate obtained by dividing (i) the Eurodollar Rate for such
Interest Period by (ii) a percentage equal to 1 minus the Reserve Requirement
in effect from time to time during such Interest Period.
1.30 "Reserve Requirement" shall mean, relative to the Interest Period
applicable to any Eurodollar Borrowing, a percentage (expressed as a decimal)
equal to the aggregate maximum reserve requirement (including all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements
during such Interest Period) on the first day of such Interest Period, as
specified under F.R.S. Board Regulation D or any other F.R.S. Board
regulation then in effect which prescribes reserve requirements applicable
to non-personal time deposits (as currently defined in such Regulation D),
applicable to the class of banks of which the Banks are members, on deposits
of the type used as a reference in determining the Reserve Adjusted
Eurodollar Rate and having a maturity approximately equal to such Interest
Period.
1.31 "Subsidiary Banks" shall mean each bank (including without limitation,
Key Bank/Wyoming) for which 51% or more of its voting stock is controlled
directly, or indirectly via a subsidiary, by the Borrower.
1.32 "Tangible Equity Capital" shall mean the sum of perpetual preferred
stock, common stock, surplus and undivided profits, capital reserves, and net
unrealized holding gains (and losses) on "available-for-sale" securities, as
disclosed in the Subsidiary Banks' Call Reports.
1.33 "Term Loan" shall mean a non-revolving term loan made by the Banks to
the Borrower in an aggregate amount not exceeding $30,000,000.00.
1.34 "Term Loan Maturity Date" shall mean July 31, 2005.
1.35 "Term Loan Percentages" shall mean, relative to any Bank, the
percentages identified as such set forth opposite the signature block for
such Bank on the last page of this Agreement.
1.36 "Term Note" shall mean a promissory note of the Borrower substantially
in the form of attached Exhibit B, evidencing the Term Loan.
1.37 "Tier I Core Capital" shall mean the core capital elements set forth by
the Federal Reserve Board in 12 CFR Parts 208 and 225.
1.38 "Tier 2 Supplementary Capital" shall mean the allowance for loan and
lease losses, as disclosed in the Subsidiary Banks' Call Reports.
1.39 "Total Liabilities" shall mean the aggregate amount of the Borrower's
total liabilities, less capital and trust preferred securities to the extent
included as total liabilities.
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1.40 "Tranche A" shall have the meaning ascribed to it in Section 3.3 hereof.
1.41 "Tranche B" shall have the meaning ascribed to it in Section 3.3 hereof.
SECTION 2 THE CREDIT
2.1 Subject to the other provisions of this Agreement, each Bank shall make
Advances to the Borrower under the Credit from time to time from the
effective date hereof until the Credit Expiration Date in aggregate principal
amounts not exceeding such Bank's Credit Percentage of TWENTY-FIVE MILLION
AND NO/100 DOLLARS ($25,000,000.00), at any one time outstanding. Each
Advance will be requested to the Agent in writing by an authorized officer of
the Borrower. The proceeds of the initial Advance shall be used for the
exclusive purpose of paying off all indebtedness evidenced by the Existing
Xxxxxx Note. Each request (other than the request for the initial Advance)
shall be accompanied by a Notice of Borrowing, substantially in the form of
attached Exhibit C, stating (among other things) that the proceeds of the
requested Advance will be used only to pay commercial paper notes at
maturity. Each Advance shall be made on a Business Day, and shall be
comprised of either a Base Rate Borrowing, a Federal Funds Borrowing, or
(provided there exists no Event of Default) a Eurodollar Borrowing, as
requested by the Borrower. Any Advance for which the Borrower fails to
specify at the time of the related request either a Base Rate Borrowing, a
Federal Funds Borrowing or a Eurodollar Borrowing shall be a Base Rate
Borrowing. Requests for Advances must be received by the Agent no later than
12:00 Noon, Minneapolis time, on the day of an Advance comprised of a Base
Rate Borrowing or a Federal Funds Borrowing, and no later than 12:00 Noon,
Minneapolis time, on the third Business Day immediately preceding an Advance
comprised of a Eurodollar Borrowing. The person making the request may ask
the Agent to quote an indication of the Eurodollar Rate which would be
applicable to the Advance for an Interest Period specified by such person. If
the person does not immediately accept the quoted Eurodollar Rate, the
related Advance shall be a Base Rate Borrowing. If the quoted Eurodollar Rate
is immediately accepted, the requested Advance shall be a Eurodollar
Borrowing; provided, however, that each Advance comprised of a Eurodollar
Borrowing shall be in the amount of $5,000,000.00, or a greater amount in
increments of $1,000,000.00. Each request for an advance shall be deemed a
representation and warranty by the Borrower that the representations and
warranties set forth in Section 5 hereof are true as of the date of such
request. Each Advance will be evidenced by a notation on each Bank's records,
which shall be conclusive evidence of such Advance, and by the related
Current Note. Within the limits of the Credit and subject to the terms and
conditions hereof, the Borrower may borrow, prepay pursuant to Section 2.11
hereof and reborrow pursuant to this Section 2.1.
2.2 The Agent shall notify each Bank of each request for an Advance by
telephone or fax no later than 1:00 p.m., Minneapolis time on the day on which
the Agent received the request. Subject to the notice requirements of Section
2.1 hereof and to the further provisions of this Section 2.2, the Agent will
make the Advance to the Borrower no later than 4:30 p.m., Minneapolis time on
the Business Day requested by the Borrower. On or before 3:30 p.m.,
Minneapolis time, on such Business Day, each Bank shall deposit with the
Agent same-day funds in an amount equal to such Bank's Percentage of the
related Advance. Such deposit will be made to an account which the Agent
shall specify from time to time by notice to the Banks. To the extent funds
are received from the Banks in accordance with this Section 2.2, the Agent
shall
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make such funds available to the Borrower by wire transfer to the account(s)
the Borrower shall have designated to the Agent at or before the time of the
related request.
2.3 Eurodollar Borrowings may be continued as such upon the expiration of
an Interest Period with respect thereto by compliance with the notice
provisions set forth in Sections 1.23 and 2.1 hereof; provided, however, that
Eurodollar Borrowings may not be continued as such when any Event of Default
exists, but (subject to the Bank's rights under Section 8 hereof) shall be
automatically converted to Base Rate Borrowings on the last day of the
existing Interest Period. If the Borrower shall fail to notify the Bank of
its desire to continue a Eurodollar Borrowing as described in the first
sentence of this Section 2.3, such borrowing shall be automatically converted
to a Base Rate Borrowing on the last day of the existing Interest Period.
2.4 For so long as there exists no Event of Default, and subject to the
dollar restrictions specified in the eighth sentence of Section 2.1 hereof,
the Borrower may elect to convert any Base Rate Borrowing or Federal Funds
Borrowing to a Eurodollar Borrowing by compliance with the notice provisions
set forth in Sections 1.23 and 2.1 hereof. The Borrower may elect to convert
any Eurodollar Borrowing to a Base Rate Borrowing or Federal Funds Borrowing
on the last day of the related Interest Period by compliance with the notice
provisions set forth in Sections 1.23 and 2.1 hereof.
2.5 Subject to the provisions of Section 2.7 hereof, interest on that
portion of the outstanding principal of the Current Note comprised of Base
Rate Borrowings shall be calculated at an annual rate equal to the Base Rate
in effect from time to time, and shall change as and when the Base Rate
changes. Subject to the provisions of Section 2.7 hereof, interest on that
portion of the outstanding principal of the Current Note comprised of Federal
Funds Borrowings shall be calculated at annual rate equal to one and
three-quarters percent (1.75%) in excess of the Federal Funds Rate in effect
from time to time, and shall change as and when the Federal Funds Rate
changes. Interest shall be calculated on the basis of the actual number of
days elapsed in a year of 365 days.
2.6 Subject to the provisions of Section 2.7 hereof, interest on the unpaid
principal of Eurodollar Borrowings shall be calculated for each Interest
Period at a fixed annual rate equal to the sum of the Reserve Adjusted
Eurodollar Rate determined for such Interest Period plus one and
three-quarters percent (1.75%). Interest shall be calculated on the basis of
the actual number of days elapsed in a year of 360 days.
2.7 Notwithstanding the provisions of Sections 2.5 and 2.6 hereof, for so
long as there exists any Event of Default, interest on the Current Notes
shall accrue at an annual rate of two percent (2.0%) in excess of the rate
which would otherwise apply to the Current Notes.
2.8 Interest on the unpaid principal of Base Rate Borrowings and Federal
Funds Borrowings shall be payable monthly, commencing July 31, 1997, and
continuing on the last day of each succeeding month, and on the Credit
Expiration Date.
2.9 Interest on the unpaid principal of each Eurodollar Borrowing shall be
payable in arrears on the related Interest Payment Date.
2.10 The principal of the Current Notes shall be repayable on the Credit
Expiration Date.
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2.11 The Borrower may at any time prepay Base Rate Borrowings and Federal
Funds Borrowings in whole or from time to time in part without premium or
penalty. The Borrower may prepay any Eurodollar Borrowing only in its
entirety and only on the last day of the relevant Interest Period.
2.12 If the Agent or any Bank determines (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the Interbank Eurodollar market, adequate and reasonable means do
not exist for asserting the Eurodollar Rate for any Interest Period with
respect to (i) a proposed Eurodollar Borrowing or (ii) the continuation of
Eurodollar Borrowings beyond the expiration of the then-current Interest
Period with respect thereto, the Agent shall forthwith give immediate notice
of such determination to the Borrower at least one Business Day before, as
the case may be, the requested borrowing date for such Eurodollar Borrowings
or the last day of such Interest Period. If such notice is given, (i) any
requested Eurodollar Borrowing shall be made as Base Rate Borrowing, and (ii)
any outstanding Eurodollar Borrowings shall be converted, on the last day of
the then-current Interest Period with respect thereto, to Base Rate
Borrowings. Until such notice has been withdrawn by the Agent, no further
Eurodollar Borrowings shall be made, nor shall the Borrower have the right to
convert Base Rate Borrowings or Federal Funds Borrowings into Eurodollar
Borrowings.
2.13 Notwithstanding any other provision hereof, if any law, regulation,
treaty or directive or any change therein or in the interpretation or
application thereof by any governmental authority, agency or instrumentality
or any court makes it unlawful for any Bank to make or maintain Eurodollar
Borrowings as contemplated by this Agreement, such Bank and the Agent shall
give notice (by telephone confirmed in writing) thereof to the Borrower, and
(i) such Bank's commitment to make Eurodollar Borrowings shall forthwith be
canceled, (ii) each then-outstanding Eurodollar Borrowing (if any) shall
automatically be converted to a Base Rate Borrowing on the last day of the
then-current Interest Period for such Eurodollar Borrowing or within such
earlier period as required by law, and (iii) such Bank shall thereafter make
any requested Eurodollar Borrowing available as a Base Rate Borrowing. The
Borrower hereby agrees promptly to pay such Bank, upon demand, any additional
amount necessary to compensate such Bank for any costs incurred by such Bank
in making any conversion of Eurodollar Borrowings in accordance with this
Section 2.13, including (but not limited to) any interest or fees payable by
such Bank to lenders of funds obtained by it in order to make or maintain
such Eurodollar Borrowings (the Bank's notice of such costs, as certified to
the Borrower, to be conclusive absent manifest error).
2.14 The Borrower shall pay the Agent, quarterly in advance on behalf of the
Banks, a facility fee of one-quarter of one percent (0.25%) of the amount of
the Credit, based on actual number of days elapsed in a year of 365 days.
SECTION 3 THE TERM LOAN
3.1 Subject to the other provisions of this Agreement, the Banks, through
the Agent, shall make the Term Loan to the Borrower in an aggregate amount
not exceeding $30,000,000.00, which shall be available in a single draw on or
before August 15, 1997. The Borrower hereby acknowledges that, if said single
draw is in an amount less than $30,000,000.00, the Banks have no commitment
to fund at a later date the unfunded portion of
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the Term Loan. The amount of the Term Loan shall not exceed the sum of (i)
all outstanding indebtedness evidenced by the Existing Norwest Term Note
(which shall be paid off with a portion of the proceeds of the Term Loan),
plus (ii) the Borrower's purchase price for the acquisition of 100% of the
capital stock in Key Bank/Wyoming. The Term Loan shall be non-revolving, and
evidenced by the Term Note. The Borrower shall give the Agent not less then
two days prior written notice of the day on which the Borrower desires the
funding of the Term Loan.
3.2 The Agent shall promptly notify each Bank of the Borrower's request for
the funding of the Term Loan, and the amount of the Term Loan. Subject to the
further provisions of this Section 3.2, the Agent will fund the Term Loan no
later than 4:30 p.m., Minneapolis time, on the Business Day requested by the
Borrower. On or before 3:30 p.m., Minneapolis time, on such Business Day,
each Bank shall deposit with the Agent same-day funds constituting such
Bank's Term Loan Percentage of the Term Loan. Such deposit will be made to an
account which the Agent shall specify by notice to the Banks. To the extent
funds are received from the Banks in accordance with this Section 3.2, the
Agent shall make such funds available to the Borrower by wire transfer to the
account(s) the Borrower shall have designated to the Agent at or before the
time of the related request.
3.3 The Term Loan shall be comprised of Tranche A, in the amount of
$6,000,000.00, and Tranche B, in the amount of $24,000,000.00. The Term Loan
shall be comprised of Base Rate Borrowings, Federal Funds Borrowings, and/or
Eurodollar Borrowings; provided, however, that Eurodollar Borrowings shall be
in the amount of $5,000,000.00, or a greater amount in increments of
$1,000,000.00; provided, further, that no Eurodollar borrowing may be in an
amount, or for an Interest Period, which would cause the Borrower to make a
prepayment of such Eurodollar Borrowing prior to the last day of such
Interest Period in order to comply with the principal repayment schedule set
forth in Section 3.7 hereof. Subject to the provisions of Section 3.4 hereof,
interest on that portion of the unpaid principal of the Term Note comprised
of a Base Rate Borrowing shall be calculated at an annual rate equal to the
Base Rate in effect from time to time, and shall change as and when the Base
Rate changes; interest on that portion of the unpaid principal of the Term
Note comprised of a Federal Funds Borrowing shall be calculated at an annual
rate equal to two percent (2.0%) in excess of the Federal Funds Rate in
effect from time to time, and shall change as and when the Federal Funds Rate
changes; and, interest on that portion of the unpaid principal of the Term
Note comprised of a Eurodollar Borrowing shall be calculated for each
Interest Period at a fixed annual rate equal to the sum of the Reserve
Adjusted Eurodollar Rate determined for such Interest Period plus two percent
(2.0%). Reference is hereby made to Sections 1.23, 2.1, 2.3 and 2.4 for
statements of the terms relating to notice requirements for the creation,
continuance or conversion of Base Rate Borrowings, Federal Funds Borrowings
and Eurodollar Borrowings. Interest on the Term Note shall be calculated on
basis of the actual number of days elapsed in a year of 360 days.
3.4 Notwithstanding the provisions of Section 3.3 hereof, for so long as
there exists any Events of Default, interest on the Term Note shall accrue at
an annual rate of two percent (2.0%) in excess of the rate which would
otherwise apply to the Term Note.
3.5 Interest on the unpaid principal of Base Rate Borrowings and Federal
Funds Borrowings shall be payable quarterly, commencing September 30,
1997, and continuing on the last day succeeding calendar quarter, and on the
Term Loan Maturity Date.
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3.6 Interest on the unpaid principal of each Eurodollar shall be payable in
arrears on the related Interest Payment Date.
3.7 The principal of the Term Note shall be repayable as follows:
A. The principal of Tranche A shall be repayable as follows:
Six (6) semi-annual installments, each in the amount of
$1,000,000.00, commencing January 31, 1998 and
continuing on the 31st day of each consecutive July and
January thereafter through and including July 31, 2000,
at which time all then-remaining outstanding principal of
Tranche A shall be due and payable.
B. The principal of Tranche B shall be repayable as follows:
Six (6) semi-annual installments, each in the amount of
$875,000.00, commencing January 31, 1998 and continuing
on the 31st day of each consecutive July and January
thereafter through and including July 31, 2000; plus,
nine (9) semi-annual installments each in the amount of
$1,875,000.00, commencing January 31, 2005; plus, one
(2) final installment in an amount equal to all
then-remaining unpaid principal of Tranche B shall be due
and payable on the Term Loan Maturity Date.
3.8 The Borrower may at any time prepay Base Rate Borrowings and Federal
Funds Borrowings in whole or from time to time in part without premium or
penalty. Reference is hereby made to Section 2.11 for statements of the terms
pursuant to which Eurodollar Borrowings may be prepaid. Prepayments shall be
applied to scheduled installments in chronological order of their maturities.
SECTION 4 CONDITIONS PRECEDENT
4.1 The Borrower shall deliver the following to the Agent, in form and
content acceptable to the Agent, on or before the Closing Date:
A. A copy, certified as of the most recent date practicable by the
Secretary of State of Delaware, of the Borrower's Certificate of
Incorporation and all amendments thereto, together with a certificate
(as of the Closing Date) of an officer of the Borrower to the effect
that such Certificate of Incorporation has not been amended since the
date of certification by the Secretary of State;
B. A certified (as of the Closing Date) copy of the Borrower's
By-laws;
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C. A Certificate, as of the most recent date practicable, of
the Secretaries of State of Delaware and North Dakota as to the
good standing of the Borrower;
D. A certified (as of the Closing Date) copy of resolutions
of the Borrower's board of directors authorizing the execution,
delivery and performance of this Agreement, the Current Notes, the
Term Note, and each other document to be delivered pursuant hereto;
E. A certificate (as of the Closing Date) of an officer of
the Borrower as to the incumbency and signatures of the officers
of the Borrower signing this Agreement, the Current Notes, the
Term Note, and each other document to be delivered pursuant hereto;
F. The Current Notes, duly executed by the Borrower;
G. The Term Note, duly executed by the Borrower;
H. A Certificate, duly executed by an officer of Xxxxxx,
indicating the aggregate amount of principal indebtedness of the
Existing Xxxxxx Note, and accrued but unpaid interest thereon,
which will be paid in full with the proceeds of the initial
Advance under the Credit; and,
I. A Certificate, duly executed by an officer of Norwest,
indicating the aggregate amount of principal indebtedness of the
Existing Norwest Term Note, and accrued but unpaid interest
thereon, which will be paid in full with a portion of the proceeds
of the Term Loan;
J. All instruments and documents comprising subordinated debt
issued by the Borrower and remaining unpaid as of the Closing
Date; and,
K. Photocopies, certified as true and complete by the
corporate secretary of the Borrower, of the definitive purchase
agreement (and all other documentation and approvals to be
executed or issued pursuant to the terms of such definitive
agreement) relating to Borrower's acquisition of 100% of the
outstanding shares of capital stock in Key Bank/Wyoming.
4.2 The Banks shall not be obligated to fund any requested Advance, or
to fund the Term Loan, unless:
A. The representations and warranties contained in Section 5
hereof are true and accurate on and as of such date; and,
B. No Event of Default, and no event which might become an
Event of Default after the lapse of time or the giving of notice
and the lapse of time, has occurred and is continuing or will
exist upon the date of such funding.
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SECTION 5 REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement, the Borrower
represents and warrants to the Banks as follows:
5.1 The Borrower is a corporation, duly organized, existing and in good
standing under the laws of the State of Delaware.
5.2 The Borrower is authorized to transact business in the states of
Delaware and North Dakota and in any other state where Borrower has been
advised by its legal counsel to register as a foreign corporation.
5.3 Each Subsidiary Bank is authorized to transact business in the
respective state where its banking office is located.
5.4 The execution, delivery and performance of this Agreement, the Current
Notes, and the Term Note by the Borrower are within its corporate powers,
have been duly authorized, and are not in contravention of law, or the terms
of the Borrower's Certificate of Incorporation or By-laws, or of any
undertaking to which the Borrower is a party or by which it is bound.
5.5 The property of the Borrower is not subject to any lien except liens
disclosed in writing to the Banks prior to the Closing Date.
5.6 No litigation or governmental proceeding is pending or, to the knowledge
of the officers of the Borrower, threatened against the Borrower which could
have a material adverse effect on the financial condition or business of the
Borrower.
5.7 All authorizations of governmental agencies, bodies or authorities which
are necessary to permit the transactions contemplated by this letter agreement
have been obtained and are in full force and effect, and no further approval,
consent, order or authorization of or designation, registration, declaration
or filing with any governmental authority is required in connection with
consummation of the transactions contemplated by this letter agreement.
5.8 As of the date of this Agreement, there exists no event of default
under the Old Xxxxxx Loan Agreement or the Old Norwest Loan Agreement, nor
does there exist any event which, with the giving of notice or the passage of
time (or both), could become such an event of default.
5.9 All financial statements delivered to the Banks by or on behalf of
Borrower, including any schedules and notes pertaining thereto, have been
prepared in accordance with GAAP consistently applied, and fully and fairly
present the financial condition of the Borrower at the dates thereof and the
results of operations for the periods covered thereby, and there have been no
material adverse changes in the consolidated financial condition or business
of the Borrower from March 31, 1997 to the date hereof.
5.10 The Borrower's use of the proceeds of the Advances and the Term Loan
will not result in a violation of Regulation U issued by the Board of
Governors of the Federal Reserve System.
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SECTION 6 AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, for so long as the Credit
remains in existence or any indebtedness remains outstanding under the
Current Notes or the Term Note, unless the Majority Banks (via the Agent)
shall otherwise consent in writing, it will:
6.1 Pay when due (and cause each other member of the Bank Group to pay when
due) all taxes assessed against it or its respective property, except to the
extent and for so long as contested in good faith in a manner that prevents
enforcement of the matters being contested for which adequate reserves have
been provided.
6.2 Maintain (and cause each other member of the Bank Group to maintain) its
respective corporate existence and comply in all material respects with all
laws and regulations applicable thereto.
6.3 Furnish directly to the Banks:
A. As soon as available, and in any event within 90 days after the
end of each fiscal year of the Borrower, the annual financial statements
of the Borrower, with the unqualified opinion of certified public
accountants acceptable to the Agent, all such statements to be prepared
on a basis consistent with the accounting practices reflected in any
previously submitted financial statement. All such financial statements
shall be prepared on a consolidated and consolidating basis for the
Borrower and each other member of the Bank Group.
B. As soon as available, and in any event within 90 days after the
end of each fiscal year of the Borrower, the Annual Report of Domestic
Bank Holding Companies (FR Y-6) required by the Federal Reserve Bank.
C. As soon as available, and in any event within 60 days after the
end of each fiscal quarter of the Borrower, the complete Consolidated
Report for Multi-Bank Holding Companies (FR Y-9C) required to be filed
by the Borrower with the Federal Reserve Bank in the Federal Reserve
District where the Borrower is located.
D. As soon as available, and in any event within 60 days after the
end of each fiscal quarter of the Borrower, the complete Parent Company
Only Financial Statement for Multi-Bank Holding Companies (FR Y-9LP)
required by the Federal Reserve Bank.
E. As soon as available, and in any event within 45 days after the
end of each quarter of each fiscal year of the Borrower, a Borrower's
Compliance Certificate (attached hereto as Exhibit D) of the Secretary
or Treasurer of the Borrower (i) certifying that to the best of his
knowledge, no Event of Default or event which with the giving of notice
or lapse of time, or both, would constitute an Event of Default has
occurred and is continuing or, if an Event of Default or such event has
occurred and is continuing, a statement as to the nature thereof and the
action which is proposed to be taken with respect thereto, and (ii) with
computations
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demonstrating compliance with the covenants contained in Sections
7.1 through 7.6 hereof.
F. As soon as available, and in any event within 45 days
after the end of each fiscal quarter of each Subsidiary Bank, the
complete Consolidated Report of Condition and Report of Income
(FFIEC 034)(the "Call Reports") prepared by the Subsidiary Banks at
the end of such fiscal quarter in compliance with the requirements
of any federal or state regulatory agency which has authority to
examine such Subsidiary Banks, all prepared in accordance with the
requirements imposed by the applicable regulatory authorities and
applied on a basis consistent with the accounting practices
reflected in any previous call reports and similar statements.
G. Within 45 days after the end of each fiscal quarter of the
Subsidiary Banks, a summary for the Bank Group as a whole, of the
Watch List or Problem Loan Reports internally generated by the
Borrower.
H. Immediately after obtaining knowledge thereof, notice in
writing of any litigation wherein any person asserts any claim
against any member of the Bank Group in excess of $500,000.00, and
notice in writing of any proceedings before any governmental or
regulatory agency involving any member of the Bank Group which, if
decided adversely for any member of the Bank Group, would have a
material adverse affect upon the business or operations of any
member of the Bank Group (including without limitation, the
issuance or proposed issuance of any Memorandum of Understanding,
Cease and Desist Order, or other regulatory action, agreement or
understanding with respect to any member of the Bank Group by any
federal or state regulatory agency having jurisdiction or control
over any member of the Bank Group).
I. Prompt notice in writing of any negotiations to sell more
than 5% of the capital stock or assets of any member of the Bank
Group, together with copies of any buy/sell agreement.
J. A copy of the Annual Board of Directors Examination Report
published by any member of the Bank Group, if so requested by the
Agent or the Banks.
K. As soon as available, but without duplication of any other
requirements set forth in this Section 6.3, such other information
respecting the financial condition and results of operation of any
member of the Bank Group (i) as required by law to be furnished to
any regulatory authority having jurisdiction over any member of the
Bank Group (including without limitation 10Q and 10K reports), and
(ii) as the Agent or any Bank may from time to time reasonably
request; provided, however, that the provisions of this Section
6.3(K) shall not apply to any information or reports which are
prohibited from disclosure pursuant to applicable law or
regulation.
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L. Prompt notice in writing of any changes of the Borrower's
executive management personnel.
M. Promptly upon knowledge thereof, notice to the Agent in
writing of the occurrence of any event which has or might, after
the lapse of time or the giving of notice and the lapse of time,
become an Event of Default.
6.4 Maintain (and cause each other member of the Bank Group to maintain)
its equipment, real estate and other properties in good condition and repair
(normal wear and tear excepted), and pay and discharge or cause to be paid
and discharged when due, the cost of repairs to or maintenance of the same,
and will pay or cause to be paid all rental or mortgage payments due on such
real estate.
6.5 Cause its properties (and the properties of each other member of the
Bank Group) of an insurable nature to be adequately insured by reputable and
solvent insurance companies against loss or damages customarily insured
against by persons operating similar properties, and similarly situated, and
carry such other insurance (including blanket bond coverage, errors and
omissions coverage, and business interruption insurance) as usually carried
by persons engaged in the same or similar businesses and similarly situated.
6.6 Keep true, complete and accurate books, records and accounts in
accordance with GAAP.
6.7 Cause each Subsidiary Bank to be and remain categorized as "well
capitalized," as defined by the regulatory agencies having jurisdiction over
the Subsidiary Banks.
SECTION 7 NEGATIVE COVENANTS
Without the written consent of the Majority Banks (via the Agent),
for so long as the Credit remains in existence or any indebtedness remains
outstanding under the Current Notes or the Term Note, the Borrower will not:
7.1 Permit the consolidated Tier 1 Core Capital of the Bank Group to be
less than the greater of (i) 5.25% of the difference of consolidated total
assets minus consolidated intangible assets and all goodwill, or (ii) the
minimum required by any regulatory agency having jurisdiction over the Bank
Group so that they are considered by such agency to be well capitalized.
7.2 Permit the consolidated Tier 1 Core Capital of the Bank Group less
consolidated intangible assets and all goodwill to be less than the greater
of (i) $200,000,000.00, or (ii) the minimum amount required by any regulatory
agency having jurisdiction over the Bank Group so that they are considered by
such agency to be well capitalized.
7.3 Permit the consolidated amount of the Bank Group's non-performing
assets to be greater than the sum of 15% of the Bank Group's consolidated
Tier 1 Core Capital plus the Bank Group's consolidated Tier 2 Supplementary
Capital at any time.
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7.4 Permit the Bank Group's consolidated net income as a percentage of
its consolidated total assets to be less than 1.0% as of the end of each
fiscal quarter, based upon a moving four-quarter average, including the
current fiscal quarter reported plus the three immediately preceding fiscal
quarters.
7.5 Permit the difference between the consolidated book value of the
Subsidiary Banks' securities portfolio, minus the consolidated market value
of those securities classified in the "held-to-maturity" category, when
expressed as an unrealized securities loss, to be more than 15% of the
Subsidiary Banks' consolidated Tangible Equity Capital as of the end of any
fiscal quarter.
7.6 Permit its ratio of Total Liabilities to Core Capital to be greater
than 40% as of the end of any fiscal quarter.
7.7 Grant or suffer a lien upon any of its personal property assets
(including without limitation stock in any Subsidiary Bank), other than
Permitted Liens.
7.8 Enter into any transaction of merger or consolidation, or transfer,
sell, assign, lease or otherwise dispose of (other than in the ordinary
course of business) all or a substantial part of its properties or assets, or
any of its notes or accounts receivable, or any stock or any assets or
properties necessary or desirable for the proper conduct of its business, or
change the nature of its business, or wind up, liquidate or dissolve, or
agree to do any of the foregoing.
7.9 Purchase any stock or other securities of, or make any loans or
advances of credit to, or make any investments or acquire any controlling
interest whatsoever in, any other corporation, bank or non-bank institution
other than the Subsidiary Banks existing as such as of the Closing Date,
except in the ordinary course of business where such purchase, loan, advance,
investment or acquisition is specifically authorized by any federal or state
regulatory agency having jurisdiction or control over the Borrower or the
Subsidiary Banks, provided that the Agent and the Banks will not unreasonably
withhold consent so long as the proforma effect of such action does not
create a violation of this Agreement.
7.10 Repurchase or retire any stock of the Subsidiary Banks, or pay a
dividend with respect to any class of its stock, if the proforma effect of
such repurchase, retirement or dividend payment would be a violation of this
Agreement.
7.11 Issue any debt or equity instruments of any type or class other than
common stock and debt expressly subordinated (on written terms acceptable to
the Banks) to indebtedness owned to the Banks.
7.12 Make any modification to any instrument creating or evidencing
subordinated debt, or make any prepayment of subordinated debt.
7.13 Assume, guarantee, endorse or otherwise become directly or indirectly
liable in connection with the obligations of any person or entity, except for
the endorsement of negotiable instruments in the ordinary course of business,
guaranties of lease obligations of the Borrower's subsidiaries in the
ordinary course of business, and existing guaranties in favor of Community
First Service Corporation, Community First Properties, Inc.,
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Community Insurance, Inc., or any other subsidiary of which the Borrower
owns, directly or indirectly, at least 80% of the common stock.
7.14 Incur any indebtedness other than (i) subordinated indebtedness
referred to in Section 7.11 hereof, (ii) unsecured indebtedness owed to
Norwest as of the Closing Date, and (iii) other indebtedness acceptable to
the Majority Banks.
SECTION 8 EVENTS OF DEFAULT
8.1 Upon the occurrence of any of the following Events of Default
A. Default in any payment of interest or of principal on any
Current Note or the Term Note or the when due, and continuance
thereof for 10 calendar days;
B. The failure of the Borrower to pay any fee when due in
accordance with the provisions of this Agreement, and continuance of
such failure for 10 calendar days;
C. Default in the observance or performance of any one or
more of the covenants set forth in Section 6.7 or in Section 7 hereof;
D. Default in the observance or performance of any other
agreement of the Borrower set forth herein (i.e., other than those
addressed in Sections 8.1(A), 8.1(B) or 8.1(C) hereof), and
continuance thereof for 30 calendar days;
E. Default in any payment of interest or of principal on any
other promissory note (i.e., other than the Current Notes and the
Term Note) made by the Borrower and held by any of the Banks, and
continuance thereof for 10 calendar days;
F. Default by the Borrower in the payment of any other
indebtedness for Borrowed Money in an amount exceeding $500,000.00 or
in the observance or performance of any term, covenant or agreement
of the Borrower in any agreement relating to any such indebtedness of
the Borrower, the effect of which default is to permit the holder of
such indebtedness to declare the same due prior to the date fixed for
its payment under the terms thereof;
G. Any judgment or judgments, writ or writs, or warrant or
warrants of attachment, or any similar process or processes, the
aggregate amount of which (after reduction by the amount covered by
insurance) exceeds $500,000.00, shall be entered or filed against the
Borrower or any Subsidiary Bank or against any of its property and
which remains unvacated, unbonded, unstayed or unsatisfied for a
period of 30 calendar days;
H. Any representation or warranty made by the Borrower
herein, or in any statement or certificate furnished by the Borrower
hereunder, is untrue in any material respect; or,
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I. The issuance or proposed issuance, against any member of
the Bank Group, of any cease and desist order, memorandum of
understanding or capital maintenance agreement by any federal or
state regulatory agency having jurisdiction or control over such
member; provided, however, that this Section 8.1(I) shall not apply
to supervisory actions outstanding against any institution as of
the date of acquisition of such institution by the Borrower;
then, or at any time thereafter, unless such Event of Default is remedied, the
Majority Banks (via the Agent) may, by notice in writing to the Borrower,
terminate the Credit and declare the Current Notes and the Term Note to be
due and payable, or any or all of the foregoing, whereupon the Credit shall
terminate forthwith and the Current Notes and the Term Note shall immediately
become due and payable, or any or all of the foregoing, as the case may be.
8.2 Upon the occurrence of any of the following Events of Default:
Any member of the Bank Group becomes insolvent or bankrupt, or
makes an appointment for the benefit of creditors or consents to
the appointment of a custodian, trustee or receiver for itself or
for the greater part of its properties; or a custodian, trustee or
receiver is appointed for any member of the Bank Group or for the
greater part of its properties without its consent, and is not
discharged within 60 calendar days; or bankruptcy, reorganization
or liquidation proceedings are instituted by or against any member
of the Bank Group and, if instituted against it, are consented to
by it or remain undismissed for 60 calendar days;
then the Credit shall automatically terminate and the Current Notes and the
Term Note shall automatically become immediately due and payable, without
notice or demand.
8.3 In additional to its other obligations as set forth in this
Agreement, if the indebtedness evidenced by the Current Notes or the Term
Note is accelerated pursuant to Sections 8.1 or 8.2 hereof, the Borrower
shall immediately pay the Banks a premium in respect of Eurodollar Borrowings
outstanding as of such date. The premium on each such Eurodollar Borrowing
shall be calculated as follows:
The amount of interest that would have accrued on the Eurodollar
Borrowing (from the date of acceleration to the last day of the
relevant Interest Period) computed at an annual rate equal to (i)
the rate then in effect with respect to the Eurodollar Borrowing,
MINUS (ii) the yield (including both interest and discount) on a
hypothetical United States Treasury Security that could be
purchased on the date of acceleration and maturing on (or about)
the last day of the relevant Interest Period, PROVIDED that no
premium shall be payable (and no credit or rebate shall be given) if
the yield described in clause (ii) above exceeds the rate described
in clause (i).
SECTION 9 THE AGENT
9.1 Each Bank hereby appoints Norwest as its Agent under and for the
purpose of this Agreement, the Current Notes, the Term Note, and each other
related document. Each Bank authorizes the Agent to act on behalf of such
Bank under this Agreement, the Current Notes, the
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Term Note, and each other related document and, in the absence of other
written instructions from the Majority Banks received from time to time by
the Agent (with respect to which the Agent agrees that it will comply, except
as otherwise provided in this Section 9 or as otherwise advised by counsel
that such compliance would be unlawful), to exercise such powers hereunder
and thereunder as are specially delegated to or required of the Agent by the
terms hereof and thereof, together with such powers as may be reasonably
incidental thereto. Notwithstanding any other provision in this Agreement,
the Agent shall not, without the prior written consent of EACH Bank, (i)
increase the amount of the Credit, the Credit Percentages, the amount of the
Term Loan, or the Term Loan Percentages, (ii) modify any interest rate or fee
applicable to the Current Notes or the Term Note, (iii) modify the Credit
Expiration Date, the Term Loan Maturity Date, the last day of any Interest
Period, or the date on which any payment in respect of the Current Notes or
the Term Note is due, (iv) forgive all or any portion of any payment of
principal or interest due under the Current Notes or the Term Note, or (v)
modify any provision of this sentence. All other provisions set forth in this
Agreement, other than those specified in the immediately preceding sentence,
may be modified only with the approval of the Majority Banks. The Agent is
hereby expressly authorized by the Banks without hereby limiting any implied
authority, (i) to receive on behalf of the Banks all payments of principal of
the interest on the Advances and the Term Loan, and all other amounts due to
the Banks hereunder, and promptly to distribute to each Bank its proper share
of each payment so received, and (ii) to give notice on behalf of each of the
Banks to the Borrower of any Event of Default specified in this Agreement of
which the Agent has actual knowledge acquired in connection with its agency
hereunder. Each Bank hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Agent, in its capacity as Agent, PRO RATA
according to such Bank's Credit Percentage and Term Loan Percentage, from and
against any and all liabilities, obligations, losses, damages, claims, costs
or expenses of any kind or nature whatsoever which may at any time be imposed
on, incurred by, or asserted against, the Agent in any way relating to or
arising out of this Agreement, the Current Notes, the Term Note, and any
other related document, including reasonable attorney's fees, and as to which
the Agent is not reimbursed by the Borrower; provided, however, that no Bank
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined
by a court of competent jurisdiction in a final proceeding to have resulted
solely from the Agent's gross negligence or willful misconduct. The Agent
shall not be required to take any action hereunder, under the Current Notes,
the Term Note, or under any other related document, or to prosecute or defend
any suit in respect of this Agreement, the Current Notes, the Term Note, or
any other related document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Agent shall be or become, in
the Agent's determination, inadequate, the Agent may call for additional
indemnification from the Banks and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
9.2 Unless the Agent shall have been notified by telephone, confirmed
in writing, by any Bank by 3:00 p.m., Minneapolis time, on the day of the
making of any Advance (or the funding of the Term Loan) that such Bank will
not make available the amount which would constitute its Credit Percentage of
such Advance (or its Term Loan Percentage of the Term Loan) on the date
specified therefor, the Agent may assume that such Bank has made such amount
available to the Agent and, in reliance upon such assumption, make available
to the Borrower a corresponding amount. If and to the extent that such Bank
shall not have made such amount available to the Agent, such Bank and
Borrower severally agree to repay the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date the Agent made
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such amount available to the Borrower to the date such amount is repaid to
the Agent, at the interest rate applicable at the time of such Advance.
9.3 Neither the Agent nor any of its directors, officers, employees or
agents shall be liable to any Bank for any action taken or omitted to be
taken by the Agent under this Agreement or any other related document, or in
connection herewith or therewith, except for its own willful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution
of this Agreement or any other related document, nor for the creation,
perfection or priority of any liens purported to be created by any related
documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting
the performance by the Borrower of its obligations hereunder or under any
other related document. Any such inquiry which may be made by the Agent shall
not obligate it to make any further inquiry or to take any action. The Agent
shall be entitled to rely upon advice of counsel concerning legal matters and
upon any notice, consent, certificate, statement or writing which the Agent
believes to be genuine and to have been presented by a proper person.
9.4 The Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrower and all Banks. If the Agent at any time shall resign,
the Majority Banks may appoint another Bank as a successor Agent which shall
thereupon become the Agent hereunder. If no successor Agent shall have been
so appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Agents' giving notice of resignation, then
the retiring Agent may, on behalf of the Banks, appoint a successor Agent,
which shall be one of the Banks or a commercial banking institution organized
under the laws of the United States (or any state thereof) or a U.S. branch
or agency of a commercial banking institution, and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment
as agent hereunder by a successor Agent, such successor Agent shall be
entitled to receive from any retiring Agent such documents of transfer and
assignment as such successor Agent may reasonably request, and shall
thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligation under this Agreement. After any retiring
Agent's resignation hereunder as the Agent, the provisions of this Section 9
shall continue to inure to its benefit as to any actions taken or omitted to
be taken by it while it was the Agent under this Agreement.
9.5 Norwest shall have the same rights and powers with respect to (i) loans
made by it or any of its affiliates, and (ii) promissory notes held by it or
any of its affiliates as any other Bank and may prosecute the same as if it
were not the Agent. Norwest and its affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Borrower or
any affiliate of the Borrower as if Norwest were not the Agent hereunder.
9.6 Each Bank acknowledges that it has, independently of the Agent and each
other Bank, and based on such Bank's review of the financial information of
the Borrower, this Agreement, the other related documents (the terms and
provisions of which being satisfactory to such Bank) and such other
documents, information and investigations as such Bank has deemed
appropriate, made its own credit decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently of the Agent and each
other Bank, and based on such other documents, information and investigations
as it shall deem appropriate at any time,
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continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under this
Agreement or any other related document.
9.7 Except as permitted under the terms and conditions of this Section 9.7
or, with respect to participations, under Section 9.8 hereof, no Bank may
sell, assign or transfer its rights or obligations under this Agreement or
its interest in any Current Note or the Term Note. Any Bank, at any time upon
at least five (5) Business Days' prior written notice to the Agent and the
Borrower, may assign such Bank's Current Note or its interest in the Term
Note, or a portion thereof (so long as any such portion is not less than
$2,500,000.00 and is in equal percentages of such assigning Bank's interest
in the Credit and the Term Loan), to a domestic bank (an "Applicant") on any
date (the "Adjustment Date") selected by such Bank, but only so long as the
Borrowers and the Agent shall have provided their prior written approval of
such proposed Applicant, which prior written approval will not be
unreasonably withheld. Notwithstanding the foregoing, (i) assignments may be
made by a Bank to another Bank already a party to this Agreement in an amount
not less than $1,000,000.00, and (ii) no such consent of the Borrower shall
be required to sale of an interest to an affiliate of a Bank or, in any
event, if an Event of Default shall exist. Upon receipt of such approval and
to confirm the status of each additional Bank as a party to this Agreement
and to evidence the assignment in accordance herewith:
A. The Agent, the Borrower, the assigning Bank and such Applicant
shall, on or before the Adjustment Date, execute and deliver to the
Agent an Assignment Certificate in substantially the form of Exhibit E
(an "Assignment Certificate");
B. The affected Borrower will execute and deliver to the Agent, for
delivery by the Agent in accordance with the terms of the Assignment
Certificate, (i) a new Current Note payable to the order of the
Applicant in an amount corresponding to the applicable commitment
acquired by such Applicant, (ii) an amendment to the Term Note to
reflect the assignment of the interest in the Term Loan, and (iii) a new
Current Note payable to the order of the assigning Bank in an amount
corresponding to the retained Credit Percentage. Such new notes shall be
in an aggregate principal amount equal to the aggregate principal
amount of the notes to be replaced by such new notes, shall be dated the
effective date of such assignment and shall otherwise be in the form of
the notes to be replaced thereby. Such new notes shall be issued in
substitution for, but not in satisfaction or payment of, the notes being
replaced thereby and such new notes shall be treated as notes for
purposes of this Agreement; and,
C. The assigning Bank shall pay to the applicable Agent an
administrative fee of $2,500.00.
Upon the execution and delivery of such Assignment Certificate and such new
Current Notes and amendment to the Term Note, and effective as of the
effective date thereof, (i) this Agreement shall be deemed to be amended to
the extent, and only to the extent, necessary to reflect the addition of such
additional Bank and the resulting adjustment of the Credit Percentages and
Term Loan Percentages arising therefrom, (ii) the assigning Bank shall be
relieved of all obligations hereunder to the extent of the reduction of the
assigning Bank's Credit Percentages and Term Loan Percentage, and (iii) the
Applicant shall become a party hereto and shall be entitled to all rights,
benefits and privileges accorded to a Bank herein and in each other document
or instrument executed pursuant hereto and subject to all obligations of a
Bank
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hereunder, including, without limitation, the right to approve or disapprove
actions which, in accordance with the terms hereof, require the approval of
the Majority Banks or all Banks. Promptly after the execution of any
Assignment Certificate, a copy thereof shall be delivered by the Agent to
each Bank and to the Borrowers. In order to facilitate the addition of
additional Banks hereto, the Borrower and the Banks shall cooperate fully
with the Agent in connection therewith and shall provide all reasonable
assistance requested by the Agent relating thereto, including, without
limitation, the furnishing of such written materials and financial
information regarding the Borrower as the Agent may reasonably request, the
execution of such documents as the Agent may reasonably request with respect
thereto, and the participation by officers of the Borrower, and the Banks in
a meeting or teleconference call with any Applicant upon the request of the
Agent.
9.8 In addition to the rights granted in Section 9.7 hereof, each Bank
may grant participations in all or a portion of its Current Note or its
interest in the Term Note to any domestic or foreign commercial bank (having
a branch office in the United States), insurance company, financial
institution or an affiliate of such Bank. No holder of any such
participation, however, shall be entitled to require any Bank to take or omit
to take any action hereunder except those actions described in Section 9.1
hereof requiring consent of all Banks. The Banks shall not, as among the
Borrowers, the Agent and the Banks, be relived of any of their respective
obligations hereunder as a result of any such grant of a participation. The
Borrowers hereby acknowledge and agree that any participation described in
this Section 9.8 may rely upon, and possess all rights under, any opinions,
certificates, or other instruments or documents delivered under or in
connection with any Loan Document. Except as set forth in this Section 9.8,
no Bank may grant any participation in the Credit or the Term Loan.
9.9 Each Bank hereby agrees with each other Bank that if such Bank
shall receive and retain any payment, whether by set-off or application of
deposit balances or otherwise ("Set-off"), in respect of any Advance or the
Term Loan, in excess of its ratable-share of payments based on its Credit
Percentage and its Term Loan Percentage, then such Bank shall purchase for
cash at face value, but without recourse, ratably from each of the other
Banks such amount of the Advances or Term Loan, or participations therein,
held by each such other Banks (or interest therein) as shall be necessary to
cause such Bank to share such excess payment ratably with all the other
Banks; provided, however, that if any such purchase is made by any Bank, and
if such excess payment or part thereof is thereafter recovered from such
purchasing Bank, the related purchases from the other Banks shall be
rescinded ratably and the purchase price restored as to the portion of such
excess payment so recovered, but without interest.
SECTION 10 MISCELLANEOUS
10.1 The provisions of this Agreement shall be in addition to those of
any guaranty, pledge or security agreement, note or other evidence of
liability held by the Banks, all of which shall be construed as complementary
to each other. Nothing herein contained shall prevent the Banks from
enforcing any or all of the rights and remedies available to them at law, in
equity or by agreement.
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10.2 From time to time, the Borrower will execute and deliver (or cause
to be executed and delivered) to the Agent such additional documents and will
provide such additional information as the Banks may reasonably require to
carry out the terms of this Agreement and be informed of the status and
affairs of the Borrower and the other members of the Bank Group.
10.3 The Borrower will pay all expenses, including the reasonable fees
and expenses of legal counsel for each of the Banks, including without
limitation the allocated costs of in-house counsel, incurred in connection
with the administration, amendment, modification or enforcement of this
Agreement, the Current Notes, the Term Note, and the other documents
described herein.
10.4 Any notices or consents required or permitted by this Agreement
shall be in writing and shall be deemed delivered if delivered in person or
if sent by United States mail, postage prepaid, or telegraph or telex, as
follows, unless such address is changed by written notice hereunder:
A. If to the Borrower:
Community First Bankshares, Inc.
X.X. Xxx 0000
Xxxxx, Xxxxx Xxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Executive Vice President
B. If to the Agent:
Norwest Bank Minnesota, National Association
Xxxxxxx Xxxxxx
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Vice President
C. If to the Banks:
The address set forth below the signature line for
each Bank.
10.5 The Banks shall have the right at all times to enforce the
provisions of this Agreement, the Current Notes, the Term Note, and the other
documents described herein in strict accordance with the terms hereof and
thereof, notwithstanding any conduct or custom on the part of the Banks in
refraining from so doing at any time or times. The failure of the Banks at
any time or times to enforce its rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a custom
in any way or manner contrary to specific provisions of this Agreement or as
having in any way or manner modified or waived the same. All rights and
remedies of the Bank are cumulative and concurrent and the exercise of one
right or remedy shall not be deemed a waiver or release of any other right or
remedy.
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10.6 The Borrower hereby acknowledges and agrees that, upon the full
payment of the Existing Xxxxxx Note, as contemplated by Section 2.1 hereof,
and upon the full payment of the Existing Norwest Term Note, as contemplated
by Section 3.1 hereof, the Old Xxxxxx Loan Agreement and the Old Norwest Loan
Agreement, and the respective credit facilities described therein, shall be
deemed terminated.
10.7 This Agreement shall inure to the benefit of, and shall be binding
upon, the respective successors and permitted assigns of the parties hereto.
The Borrower has no right to assign any of its rights or obligations
hereunder without the prior written consent of each of the Banks. This
Agreement, and the documents executed and delivered pursuant hereto,
constitute the entire agreement between the parties, and may be amended only
by a writing signed on behalf of each party. This Agreement supersedes and
replaces the Old Xxxxxx Loan Agreement and the Old Northwest Loan Agreement.
10.8 If any provision of this Agreement shall be held invalid under any
applicable laws, such invalidity shall not affect any other provision of
this Agreement that can be given effect without the invalid provision, and,
to this end, the provisions hereof are severable.
10.9 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but which taken together shall
constitute one and the same instrument.
10.10 The substantive laws of the State of Minnesota shall govern the
construction of this Agreement and the rights and remedies of the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
NORWEST BANK MINNESOTA, COMMUNITY FIRST
NATIONAL ASSOCIATION, Agent BANKSHARES, INC.
By: By: /s/ Xxxx Xxxxxxxx
------------------------------- --------------------------------
Xxxxxx X. Xxxxx, Vice President Xxxx X. Xxxxxxxx,
Executive Vice President, Chief
Financial Officer, and Secretary
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive
Officer
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XXXXXX TRUST AND SAVINGS BANK Credit Percentage 33.33%
Term Loan Percentage - Tranche A 0%
By: Term Loan Percentage - Tranche B 50%
-------------------------------
Xxxxx X. Xxxxxx,
Vice President
Financial Institutions
000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx,
Vice President
Telephone: (000) 000-0000
Fax: (000) 000-0000
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION Credit Percentage 33.33%
Term Loan Percentage - Tranche A 0%
By: Term Loan Percentage - Tranche B 50%
-------------------------------
Xxxxxx X. Xxxxx, Vice President
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx,
Vice President
Telephone: (000) 000-0000
Fax: (000) 000-0000
-00-
XXXX XX XXXXXXX NATIONAL TRUST Credit Percentage 33.33%
AND SAVINGS ASSOCIATION Term Loan Percentage - Tranche A 100%
Term Loan Percentage - Tranche B 0%
By:
-------------------------------
Xxxxxx X. Xxxxxx,
Vice President
000 Xxxxx Xxxxxx Xxxxxx
9th Floor, Mail Code 38900
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx,
Vice President
Telephone: (000) 000-0000
Fax: (000) 000-0000
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