THIRD MODIFICATION OF CREDIT AGREEMENT
THIS MODIFICATION is made as of this 5th day of December, 1995, by and
between BANK SOUTH ("Bank"), a Georgia banking corporation which is the
successor by merger to Bank South, N.A., a national banking association, and
FIRST UNITED BANCORPORATION, a South Carolina corporation ("Borrower").
Statement of Facts
Borrower and Bank have previously entered into that certain Credit
Agreement, dated as of May 16, 1995, as amended by the First Modification of
Credit Agreement dated as of August 3, 1995, and as further amended by the
Second Modification of Credit Agreement dated September 25, 1995 (the "Credit
Agreement"). Borrower and Bank now desire to modify the Credit Agreement in
certain respects in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower and Bank do
hereby agree that all capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement as amended herein and do hereby further
agree as follows:
Statement of Terms
1. Amendments of Credit Agreement.
Subject to the fulfillment of the conditions precedent to the
effectiveness of this Modification which are set forth below, the Credit
Agreement is hereby modified and amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby modified and amended
by (i) deleting the definition of the term "Final Maturity Date" and (ii)
simultaneously substituting in lieu thereof the following new definition of such
term:
"Final Maturity Date" shall mean the earlier of (i) May 1, 2006, and
(ii) the date on which all amounts outstanding under this Agreement and
any Note then outstanding have been declared due and payable pursuant
to the provisions of Article IX hereof.
(b) Section 1.01 of the Credit Agreement is hereby further modified and
amended by (i) deleting the definition of the term "Revolving Credit Expiration
Date" and (ii) simultaneously substituting in lieu thereof the following new
definition of such term:
"Revolving Credit Expiration Date" shall mean May 1, 1999, as such date
may be extended, accelerated or amended from time to time pursuant to
Section 4.01 or 9.02 hereof.
(c) Section 1.01 of the Credit Agreement is hereby further modified and
amended by (i) deleting the definition of the term "Revolving Loan Commitment"
and (ii) simultaneously substituting in lieu thereof the following new
definition of such term:
"Revolving Loan Commitment" shall mean $6,000,000, as such amount may
be reduced from time to time pursuant to Section 4.01 or 9.02 hereof.
(d) Section 1.01 is hereby further modified and amended by (i) deleting
the definition of the term "Term Loan Commitment" and (ii) simultaneously
substituting in lieu thereof the following new definition of such term:
"Term Loan Commitment" shall mean the lesser of (i) $6,000,000 and (ii)
the aggregate amount of Revolving Loans outstanding on the Revolving
Credit Expiration Date, as such amount may be reduced from time to time
pursuant to Section 9.02 hereof.
2. No Other Amendments.
Except for the amendments expressly set forth and referred to above,
the Credit Agreement is and shall remain unchanged and in full force and effect.
Nothing in this Modification is intended, or shall be construed, to constitute a
novation or an accord and satisfaction of the Credit Agreement or of any of the
Obligations or to modify, affect or impair the perfection or continuity of
Bank's security interest in the Collateral.
3. Representations and Warranties.
To induce Bank to enter into this Modification, Borrower does hereby
warrant, represent and covenant to Bank that:
(a) Each representation and warranty set forth in the Credit Agreement
is hereby restated and reaffirmed as true and correct on and as of the date
hereof as if such representation and warranty were made on and as of the date
hereof (except to the extent that such representation and warranty expressly
relates to a specific date), and no Default or Event of Default has occurred and
is continuing as of this date under the Credit Agreement as amended by this
Modification; and
(b) Borrower has the power and is duly authorized to enter into,
deliver and perform this Modification and this Modification is the legal, valid
and binding obligation of Borrower enforceable against it in accordance with its
terms except as such enforceability may be limited by general principles of
equity or by any bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights in general.
4. Conditions Precedent to Effectiveness of this Modification.
The effectiveness of this Modification and the amendments provided
above are subject to the truth and accuracy in all material respects of the
representations and warranties contained in Section 3 above and to the prior
fulfillment of the following additional conditions precedent:
(a) Bank shall have received one or more counterparts of this
Modification duly executed and delivered by Borrower;
(b) Bank also shall have received a duly completed and executed closing
certificate from the Borrower in form and substance satisfactory to Bank;
(c) Bank also shall have received a replacement Revolving Loan Note
duly executed and delivered by Borrower in favor of Bank to evidence the
Revolving Loans, in the stated principal amount of SIX MILLION AND NO/100
DOLLARS ($6,000,000.00), which shall be in the form of Exhibit A attached
hereto; and
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(d) Bank also shall have received in consideration of Bank increasing
the Revolving Loan Commitment made available to the Borrower under the Credit
Agreement, in immediately available funds, a commitment fee in the amount of
$2,000.00, which fee shall be fully earned when received by Bank and shall be
non-refundable.
5. Bank Expenses.
Borrower shall reimburse Bank on demand for all costs and expenses
(including attorneys' fees) incurred by Bank in negotiating, documenting and
consummating the transactions contemplated by this Modification.
6. Counterparts.
This Modification may be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which when taken together
shall constitute one and the same instrument.
7. Effective Date.
This Modification shall become effective on the first business day on
which all of the conditions precedent set forth above have been met.
8. Governing Law.
This Modification shall be governed by, and construed in accordance
with, the internal laws of the State of Georgia (without giving effect to its
conflicts of law rules).
IN WITNESS WHEREOF, Borrower has executed this Modification under seal,
and Bank has executed this Modification, as of the day and year specified at the
beginning hereof.
BORROWER:
FIRST UNITED BANCORPORATION
(CORPORATE SEAL)
/s/Xxxxx X. Xxxxxxx
Attest: By: Xxxxx X. Xxxxxxx
President
/s/Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
LENDER:
BANK SOUTH
/s/Xxxx X. Xxxxx
By: Xxxx X. Xxxxx
Division Manager
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EXHIBIT A
REVOLVING LOAN NOTE
$6,000,000 December 5, 1995
FOR VALUE RECEIVED, the undersigned FIRST UNITED BANCORPORATION, a
South Carolina corporation ("Borrower"), hereby promises to pay to the order of
BANK SOUTH, a Georgia banking corporation which is the successor by merger to
Bank South, N.A., a national banking association (herein, together with any
subsequent holder hereof, called "Bank"), at Bank's main office located at 00
Xxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000 or at such other place as the
holder hereof may designate, the lesser of (i) SIX MILLION AND NO/100 DOLLARS
($6,000,000.00) or (ii) the aggregate outstanding principal amount of the
Revolving Loans made to Borrower by Bank pursuant to the terms of the Credit
Agreement referred to below, on the earlier of (x) the Revolving Credit
Expiration Date determined pursuant to the Credit Agreement or (y) the date on
which all amounts outstanding under this Revolving Loan Note have become due and
payable pursuant to the provisions of Article IX of the Credit Agreement.
Borrower likewise promises to pay interest on the outstanding principal amount
of each Revolving Loan made by Bank to Borrower, at such interest rates, payable
at such times, and computed in such manner, as are specified in the Credit
Agreement in strict accordance with the terms thereof.
Bank shall record all Revolving Loans made by it pursuant to the Credit
Agreement and all payments of principal of such Revolving Loans and, prior to
any transfer hereof, shall endorse such Revolving Loans and payments on the
schedule annexed hereto and made a part hereof, or on any continuation thereof
which shall be attached hereto and made a part hereof, which endorsement shall
constitute prima facie evidence, in the absence of manifest error, of the
accuracy of the information so endorsed; provided, however, that delay or
failure of Bank to make any such endorsement or recordation shall not affect the
obligations of Borrower hereunder or under the Credit Agreement with respect to
the Revolving Loans evidenced hereby.
This Revolving Loan Note is issued pursuant to, and is the Revolving
Loan Note referred to in, the Credit Agreement dated as of May 16, 1995, between
Borrower and Bank (as the same may be amended from time to time, the "Credit
Agreement"), and Bank is and shall be entitled to all benefits thereof and of
all the Credit Documents executed and delivered to Bank in connection therewith.
Terms defined in the Credit Agreement are used herein with the same meaning. The
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the happening of certain Events of Default, provisions
relating to prepayments on account of principal hereof prior to the maturity
hereof, and provisions for increased interest rates on overdue payments.
Borrower agrees to make payments of principal and interest hereon on
the dates and in the amounts specified in the Credit Agreement in strict
accordance with the terms thereof.
In case an Event of Default shall occur and be continuing, the
principal and all accrued interest of this Revolving Loan Note may automatically
become, or may be declared, due and payable in the manner and with the effect
provided in the Credit Agreement. Borrower agrees to pay, and save Bank harmless
against any liability for the payment of, all reasonable costs and expenses,
including reasonable attorneys' fees, arising in connection with the enforcement
by Bank of any of its rights under this Revolving Loan Note or the Credit
Agreement.
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This Revolving Loan Note has been delivered in Atlanta, Georgia, and
the rights and obligations of the Bank and the Borrower hereunder shall be
construed in accordance with and governed by the laws of the State of Georgia.
This Note supersedes and replaces that certain Revolving Loan Note,
dated May 16, 1995, executed by Borrower in favor of Bank in the original
principal amount of Five Million and No/100 Dollars ($5,000,000.00) (the "Prior
Note"). This Note is not intended nor shall it be construed to be a novation or
an accord and satisfaction of the Prior Note or of the indebtedness evidenced
thereby.
Borrower expressly waives any presentment, demand, protest or notice in
connection with this Revolving Loan Note, now or hereafter required by
applicable law.
IN WITNESS WHEREOF, Borrower has caused this Revolving Loan Note to be
executed and delivered by its duly authorized officers as of the date first
above written.
[SIGNATURES OMITTED]
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