EXHIBIT(b)(1)
CREDIT AGREEMENT
▇▇▇▇▇▇ Trust and Savings Bank
Chicago, Illinois
Ladies and Gentlemen:
The undersigned, BancFirst Corporation, an Oklahoma corporation (the
"Borrower"), applies to you (the "Bank") for your commitment, subject to the
terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, to extend credit to the Borrower, all as more
fully set forth below.
SECTION 1. THE CREDIT.
Section 1.1. Revolving Credit. Subject to the terms and conditions
hereof, the Bank agrees to extend a revolving credit (the "Revolving Credit") to
the Borrower which may be availed of by the Borrower from time to time during
the period from and including the date hereof to but not including the
Termination Date, at which time the commitment of the Bank to extend credit
under the Revolving Credit shall expire. The Revolving Credit may be utilized by
the Borrower in the form of loans (individually a "Loan" and collectively the
"Loans"), provided that the aggregate principal amount of Loans outstanding at
any one time shall not exceed $12,000,000 (the "Commitment", as such amount may
be reduced pursuant to Section 3.3 hereof). The Loans shall be made against and
evidenced by a single promissory note of the Borrower in the form (with
appropriate insertions) attached hereto as Exhibit A (the "Note"). Without
regard to the principal amount of the Note stated on its face, the actual
principal amount at any time outstanding and owing by the Borrower on account of
the Note shall be the sum of all Loans made hereunder less all payments of
principal actually received by the Bank. During the period from and including
the date hereof to but not including the Termination Date, the Borrower may use
the Commitment by borrowing, repaying and reborrowing Loans in whole or in part,
all in accordance with the terms and conditions of this Agreement.
Section 1.2. Manner and Disbursement of Loans. The Borrower shall give
written or telephonic notice to the Bank (which notice shall be irrevocable once
given) by no later than 11:00 a.m. (Chicago time) on the date the Borrower
requests the Bank to make a Loan hereunder. Each such notice shall specify the
date of the Loan requested (which must be a Business Day) and the amount of such
Loan; provided, however, that Loans which bear interest with reference to
Adjusted LIBOR or an Offered Rate shall be in such amount as is required by
Section 2 hereof. Each Loan shall initially constitute part of the Domestic Rate
Portion except to the extent the Borrower has otherwise timely elected that such
Loan, or any part thereof, constitute part of a Fixed Rate Portion as provided
in Section 2 hereof. The Borrower agrees that the Bank may rely upon any written
or telephonic notice given by any person the Bank in good faith believes is an
Authorized Representative without the necessity of independent investigation.
Subject to the provisions of Section 6 hereof, the proceeds of each Loan shall
be made available
to the Borrower at the principal office of the Bank in Chicago, Illinois, in
immediately available funds.
SECTION 2. INTEREST AND CHANGE IN CIRCUMSTANCES.
Section 2.1. Interest Rate Options.
(a) Subject to all of the terms and conditions of this Section 2, portions
of the principal indebtedness evidenced by the Note (all of the indebtedness
evidenced by the Note bearing interest at the same rate for the same period of
time being hereinafter referred to as a "Portion") may, at the option of the
Borrower, bear interest with reference to the Domestic Rate (the "Domestic Rate
Portion") or with reference to an Adjusted LIBOR ("LIBOR Portions") or with
reference to an Offered Rate ("Offered Rate Portions"), and Portions may be
converted from time to time from one basis to another. All of the indebtedness
evidenced by the Note which is not part of a Fixed Rate Portion shall constitute
a single Domestic Rate Portion. All of the indebtedness evidenced by the Note
which bears interest with reference to a particular Adjusted LIBOR for a
particular Interest Period shall constitute a single LIBOR Portion, and all of
the indebtedness evidenced by the Note which bears interest with reference to a
particular Offered Rate for a particular Interest Period shall constitute a
single Offered Rate Portion. There shall not be more than four (4) Fixed Rate
Portions applicable to the Note outstanding at any one time. Anything contained
herein to the contrary notwithstanding, the obligation of the Bank to create,
continue or effect by conversion any Fixed Rate Portion shall be conditioned
upon the fact that at the time no Default or Event of Default shall have
occurred and be continuing. The Borrower hereby promises to pay interest on each
Portion at the rates and times specified in this Section 2.
(b) Domestic Rate Portion. The Domestic Rate Portion shall bear interest
at the rate per annum equal to the Domestic Rate as in effect from time to time,
provided that if the Domestic Rate Portion or any part thereof is not paid when
due (whether by lapse of time, acceleration or otherwise) such Portion shall
bear interest, whether before or after judgment, until payment in full thereof
at the rate per annum determined by adding 2% to the interest rate which would
otherwise be applicable thereto from time to time. Interest on the Domestic Rate
Portion shall be payable quarterly in arrears on the last day of each March,
June, September, and December in each year and at maturity of the Note and
interest after maturity (whether by lapse of time, acceleration or otherwise)
shall be due and payable upon demand. Any change in the interest rate on the
Domestic Rate Portion resulting from a change in the Domestic Rate shall be
effective on the date of the relevant change in the Domestic Rate.
(c) LIBOR Portions. Each LIBOR Portion shall bear interest for each
Interest Period selected therefor at a rate per annum determined by adding 1.35%
to the Adjusted LIBOR for such Interest Period, provided that if any LIBOR
Portion is not paid when due (whether by lapse of time, acceleration or
otherwise) such Portion shall bear interest, whether before or after judgment,
until payment in full thereof through the end of the Interest Period then
applicable thereto at the rate per annum determined by adding 2% to the interest
rate which would otherwise be applicable thereto, and effective at the end of
such Interest Period such LIBOR Portion shall automatically be converted into
and added to the Domestic Rate Portion and shall thereafter bear interest at the
interest rate applicable to the Domestic Rate Portion after default.
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Interest on each LIBOR Portion shall be due and payable on the last day of each
Interest Period applicable thereto and, with respect to any Interest Period in
excess of three months, on the date occurring every three months after the date
such Interest Period began and at the end of such Interest Period, and interest
after maturity (whether by lapse of time, acceleration or otherwise) shall be
due and payable upon demand. The Borrower shall notify the Bank on or before
11:00 a.m. (Chicago time) on the third Business Day preceding the end of an
Interest Period applicable to a LIBOR Portion whether such LIBOR Portion is to
continue as a LIBOR Portion, in which event the Borrower shall notify the Bank
of the new Interest Period selected therefor, and in the event the Borrower
shall fail to so notify the Bank, such LIBOR Portion shall automatically be
converted into and added to the Domestic Rate Portion as of and on the last day
of such Interest Period.
(d) Offered Rate Portions. Each Offered Rate Portion shall bear interest
for each Interest Period selected therefor at the Offered Rate for such Interest
Period, provided that if any Offered Rate Portion is not paid when due (whether
by lapse of time, acceleration or otherwise) such Portion shall bear interest,
whether before or after judgment, until payment in full thereof through the end
of the Interest Period then applicable thereto at the rate per annum determined
by adding 2% to the interest rate which would otherwise be applicable thereto,
and effective at the end of such Interest Period such Offered Rate Portion shall
automatically be converted into and added to the Domestic Rate Portion and shall
thereafter bear interest at the interest rate applicable to the Domestic Rate
Portion after default. Interest on each Offered Rate Portion shall be due and
payable on the last day of each Interest Period applicable thereto, and interest
after maturity (whether by lapse of time, acceleration or otherwise) shall be
due and payable upon demand. The Borrower shall notify the Bank on or before
11:00 a.m. (Chicago time) on the Business Day preceding the end of an Interest
Period applicable to an Offered Rate Portion whether such Offered Rate Portion
is to continue as an Offered Rate Portion, in which event the Borrower shall
notify the Bank of the new Interest Period selected therefor, and in the event
the Borrower shall fail to so notify the Bank, such Offered Rate Portion shall
automatically be converted into and added to the Domestic Rate Portion as of and
on the last day of such Interest Period. The Borrower understands and agrees
that the Bank has no obligation to quote Offered Rates or to make any Offered
Rate Portion available to the Borrower, that the Bank may refuse to make any
such Offered Rate Portion after receiving a request therefor from the Borrower,
and that any such Offered Rate Portion made available to the Borrower shall be
subject to such other terms and conditions as are mutually agreed upon by the
Borrower and the Bank.
Section 2.2. Minimum Amounts. Each Fixed Rate Portion shall be in an
amount equal to $250,000 or such greater amount which is an integral multiple of
$50,000.
Section 2.3. Computation of Interest. All interest on the Note shall be
computed on the basis of a year of 360 days for the actual number of days
elapsed.
Section 2.4. Manner of Rate Selection. The Borrower shall notify the Bank
by (i) 11:00 a.m. (Chicago time) at least 3 Business Days prior to the date upon
which the Borrower requests that any LIBOR Portion be created or that any part
of the Domestic Rate Portion or any part of an Offered Rate Portion be converted
into a LIBOR Portion and (ii) 11:00 a.m. (Chicago time) at least 1 Business Day
prior to the date upon which the Borrower requests that any Offered Rate
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Portion be created or that any part of the Domestic Rate Portion or any part of
a LIBOR Portion be converted into an Offered Rate Portion (each such notice to
specify in each instance the amount thereof and the Interest Period selected
therefor). If any request is made to convert a Fixed Rate Portion into another
type of Portion available hereunder, such conversion shall only be made so as to
become effective as of the last day of the Interest Period applicable thereto.
All requests for the creation, continuance and conversion of Portions under this
Agreement shall be irrevocable. Such requests may be written or oral and the
Bank is hereby authorized to honor telephonic requests for creations,
continuances and conversions received by it from any person the Bank in good
faith believes to be an Authorized Representative without the need of
independent investigation, the Borrower hereby indemnifying the Bank from any
liability or loss ensuing from so acting.
Section 2.5. Change of Law. Notwithstanding any other provisions of this
Agreement or the Note, if at any time the Bank shall determine that any change
in applicable laws, treaties or regulations or in the interpretation thereof
makes it unlawful for the Bank to create or continue to maintain any Fixed Rate
Portion, it shall promptly so notify the Borrower and the obligation of the Bank
to create, continue or maintain any such Fixed Rate Portion under this Agreement
shall be suspended until it is no longer unlawful for the Bank to create,
continue or maintain such Fixed Rate Portion. The Borrower, on demand, shall, if
the continued maintenance of any such Fixed Rate Portion is unlawful, thereupon
prepay the outstanding principal amount of the affected Fixed Rate Portion,
together with all interest accrued thereon and all other amounts payable to the
Bank with respect thereto under this Agreement; provided, however, that the
Borrower may elect to convert the principal amount of the affected Portion into
another type of Portion available hereunder, subject to the terms and conditions
of this Agreement.
Section 2.6. Unavailability of Deposits or Inability to Ascertain Adjusted
LIBOR. Notwithstanding any other provision of this Agreement or the Note, if
the Bank shall determine prior to the commencement of any Interest Period that
deposits in the amount of any LIBOR Portion scheduled to be outstanding during
such Interest Period are not readily available to the Bank in the relevant
market or, by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining Adjusted LIBOR, then the Bank
shall promptly give notice thereof to the Borrower and the obligations of the
Bank to create, continue or effect by conversion any such LIBOR Portion in such
amount and for such Interest Period shall be suspended until deposits in such
amount and for the Interest Period selected by the Borrower shall again be
readily available in the relevant market and adequate and reasonable means exist
for ascertaining Adjusted LIBOR.
Section 2.7. Taxes and Increased Costs. With respect to any Fixed Rate
Portion, if the Bank shall determine that any change in any applicable law,
treaty, regulation or guideline (including, without limitation, Regulation D of
the Board of Governors of the Federal Reserve System) or any new law, treaty,
regulation or guideline, or any interpretation of any of the foregoing by any
governmental authority charged with the administration thereof or any central
bank or other fiscal, monetary or other authority having jurisdiction over the
Bank or its lending branch or the Fixed Rate Portions contemplated by this
Agreement (whether or not having the force of law), shall:
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(i) impose, increase, or deem applicable any reserve, special
deposit or similar requirement against assets held by, or deposits in or
for the account of, or loans by, or any other acquisition of funds or
disbursements by, the Bank which is not in any instance already accounted
for in computing the interest rate applicable to such Fixed Rate Portion;
(ii) subject the Bank, any Fixed Rate Portion or the Note to the
extent it evidences such a Portion to any tax (including, without
limitation, any United States interest equalization tax or similar tax
however named applicable to the acquisition or holding of debt obligations
and any interest or penalties with respect thereto), duty, charge, stamp
tax, fee, deduction or withholding in respect of this Agreement, any Fixed
Rate Portion or the Note to the extent it evidences such a Portion, except
such taxes as may be measured by the overall net income or gross receipts
of the Bank or its lending branches and imposed by the jurisdiction, or any
political subdivision or taxing authority thereof, in which the Bank's
principal executive office or its lending branch is located;
(iii) change the basis of taxation of payments of principal and
interest due from the Borrower to the Bank hereunder or under the Note to
the extent it evidences any Fixed Rate Portion (other than by a change in
taxation of the overall net income or gross receipts of the Bank); or
(iv) impose on the Bank any penalty with respect to the foregoing or
any other condition regarding this Agreement, any Fixed Rate Portion, or
its disbursement, or the Note to the extent it evidences any Fixed Rate
Portion;
and the Bank shall determine that the result of any of the foregoing is to
increase the cost (whether by incurring a cost or adding to a cost) to the Bank
of creating or maintaining any Fixed Rate Portion hereunder or to reduce the
amount of principal or interest received or receivable by the Bank (without
benefit of, or credit for, any prorations, exemption, credits or other offsets
available under any such laws, treaties, regulations, guidelines or
interpretations thereof), then the Borrower shall pay on demand to the Bank from
time to time as specified by the Bank such additional amounts as the Bank shall
reasonably determine are sufficient to compensate and indemnify it for such
increased cost or reduced amount. If the Bank makes such a claim for
compensation, it shall provide to the Borrower a certificate setting forth the
computation of the increased cost or reduced amount as a result of any event
mentioned herein in reasonable detail and such certificate shall be conclusive
if reasonably determined.
Section 2.8. Funding Indemnity. In the event the Bank shall incur any
loss, cost or expense (including, without limitation, any loss (including loss
of profit), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired or contracted to be acquired by
the Bank to fund or maintain any Fixed Rate Portion or the relending or
reinvesting of such deposits or other funds or amounts paid or prepaid to the
Bank) as a result of:
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(i) any payment of a Fixed Rate Portion on a date other than the last
day of the then applicable Interest Period for any reason, whether before or
after default, and whether or not such payment is required by any provisions of
this Agreement; or
(ii) any failure by the Borrower to create, borrow, continue or effect
by conversion a Fixed Rate Portion on the date specified in a notice given
pursuant to this Agreement;
then upon the demand of the Bank, the Borrower shall pay to the Bank such amount
as will reimburse the Bank for such loss, cost or expense. If the Bank requests
such a reimbursement, it shall provide to the Borrower a certificate setting
forth the computation of the loss, cost or expense giving rise to the request
for reimbursement in reasonable detail and such certificate shall be conclusive
if reasonably determined.
Section 2.9. Lending Branch. The Bank may, at its option, elect to make,
fund or maintain Portions of the Loans hereunder at such of its branches or
offices as the Bank may from time to time elect.
Section 2.10. Discretion of Bank as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, the Bank shall be entitled to
fund and maintain its funding of all or any part of the Note in any manner it
sees fit, it being understood, however, that for the purposes of this Agreement
all determinations hereunder (including, without limitation, determinations
under Sections 2.6, 2.7 and 2.8 hereof) shall be made as if the Bank had
actually funded and maintained each Fixed Rate Portion during each Interest
Period applicable thereto through the purchase of deposits in the relevant
market in the amount of such Fixed Rate Portion, having a maturity corresponding
to such Interest Period, and, in the case of any LIBOR Portion, bearing an
interest rate equal to the LIBOR for such Interest Period.
SECTION 3. FEES, PREPAYMENTS, TERMINATIONS AND APPLICATIONS.
Section 3.1. Closing Fee. The Borrower shall pay to the Bank on the date
hereof a non-refundable closing fee in the amount of $20,000.
Section 3.2. Voluntary Prepayments. The Borrower shall have the privilege
of prepaying the Note in whole or in part (but, if in part, then (i) if such
Loan constitutes part of a Fixed Rate Portion, in an amount not less than
$100,000 and (ii) in an amount such that the minimum amount required for a Loan
pursuant to Section 2.2 hereof remain outstanding) at any time upon 3 Business
Days prior notice to the Bank (such notice if received subsequent to 11:00 a.m.
(Chicago time) on a given day to be treated as though received at the opening of
business on the next Business Day), by paying to the Bank the principal amount
to be prepaid and (i) if such a prepayment prepays the Note in full and is
accompanied by the termination in whole of the Commitment, accrued interest
thereon to the date of prepayment and (ii) any amounts due the Bank under
Section 2.8 hereof.
Section 3.3. Terminations. The Borrower shall have the right at any time
and from time to time, upon one (1) Business Day prior notice to the Bank, to
terminate without premium or
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penalty and in whole or in part (but if in part, then in an amount not less than
$500,000) the Commitment, provided that the Commitment may not be so reduced to
an amount less than the aggregate principal amount of the Loans then
outstanding. Any termination of the Commitment pursuant to this Section may not
be reinstated.
Section 3.4. Place and Application of Payments. All payments of
principal, interest, and all other Obligations payable under the Loan Documents
shall be made to the Bank at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ (or at such other place as the Bank may specify) no later than 12:00
noon (Chicago time) on the date any such payment is due and payable. Payments
received by the Bank after 12:00 noon (Chicago time) shall be deemed received as
of the opening of business on the next Business Day. All such payments shall be
made in lawful money of the United States of America, in immediately available
funds at the place of payment, without set-off or counterclaim. Unless the
Borrower otherwise directs, principal payments shall be first applied to the
Domestic Rate Portion until payment in full thereof, with any balance applied to
the Fixed Rate Portions in the order in which their Interest Periods expire.
Section 3.5. Notations. All Loans made against the Note, the status of
all amounts evidenced by the Note as constituting part of the Domestic Rate
Portion or a LIBOR Portion or Offered Rate Portion, and, in the case of any
Fixed Rate Portion, the rates of interest and Interest Periods applicable to
such Portions shall be recorded by the Bank on its books and records or, at its
option in any instance, endorsed on a schedule to the Note and the unpaid
principal balance and status, rates and Interest Periods so recorded or endorsed
by the Bank shall be prima facie evidence in any court or other proceeding
brought to enforce the Note of the principal amount remaining unpaid thereon,
the status of the Loans evidenced thereby and the interest rates and Interest
Periods applicable thereto; provided that the failure of the Bank to record any
of the foregoing shall not limit or otherwise affect the obligation of the
Borrower to repay the principal amount of the Note together with accrued
interest thereon. Prior to any negotiation of the Note, the Bank shall record on
a schedule thereto the status of all amounts evidenced thereby as constituting
part of the Domestic Rate Portion or a LIBOR Portion or Offered Rate Portion
and, in the case of any Fixed Rate Portion, the rates of interest and the
Interest Periods applicable thereto.
SECTION 4. DEFINITIONS.
The following terms when used herein shall have the following meanings
(capitalized terms defined elsewhere in this Agreement shall, unless otherwise
specified, have the meanings so ascribed to them in all other provisions of this
Agreement):
"Adjusted LIBOR" means a rate per annum determined by the Bank in
accordance with the following formula:
LIBOR
Adjusted LIBOR = -----------------------
100%-Reserve Percentage
"Reserve Percentage" means, for the purpose of computing Adjusted LIBOR, the
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency,
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supplemental or other special reserves) imposed by the Board of Governors of the
Federal Reserve System (or any successor) under Regulation D on Eurocurrency
liabilities (as such term is defined in Regulation D) for the applicable
Interest Period as of the first day of such Interest Period, but subject to any
amendments to such reserve requirement by such Board or its successor, and
taking into account any transitional adjustments thereto becoming effective
during such Interest Period. For purposes of this definition, LIBOR Portions
shall be deemed to be Eurocurrency liabilities as defined in Regulation D
without benefit of or credit for prorations, exemptions or offsets under
Regulation D. "LIBOR" means, for each Interest Period, (a) the LIBOR Index Rate
for such Interest Period, if such rate is available, and (b) if the LIBOR Index
Rate cannot be determined, the arithmetic average of the rates of interest per
annum (rounded upward, if necessary, to the nearest 1/100th of 1%) at which
deposits in U.S. Dollars in immediately available funds are offered to the Bank
at 11:00 a.m. (London, England time) two (2) Business Days before the beginning
of such Interest Period by three (3) or more major banks in the interbank
eurodollar market selected by the Bank for a period equal to such Interest
Period and in an amount equal or comparable to the applicable LIBOR Portion
scheduled to be outstanding from the Bank during such Interest Period. "LIBOR
Index Rate" means, for any Interest Period, the rate per annum (rounded upwards,
if necessary, to the next higher one hundred-thousandth of a percentage point)
for deposits in U.S. Dollars for a period equal to such Interest Period, which
appears on the Telerate Page 3750 as of 11:00 a.m. (London, England time) on the
day two (2) Business Days before the commencement of such Interest Period.
"Telerate Page 3750" means the display designated as "Page 3750" on the Dow
▇▇▇▇▇ Telerate Service (or such other page as may replace Page 3750 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar deposits). Each
determination of LIBOR made by the Bank shall be conclusive and binding absent
manifest error.
"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1 hereof or on any
update of any such list provided by the Borrower to the Bank, or any further or
different officer of the Borrower so named by any Authorized Representative of
such Borrower in a written notice to the Bank.
"Banking Subsidiary" means any Subsidiary of the Borrower which is a bank
or thrift organized under the laws of the United States of America or any state
thereof.
"Business Day" means any day other than a Saturday or Sunday on which the
Bank is not authorized or required to close in Chicago, Illinois and, when used
with respect to LIBOR Portions, a day on which the Bank is also dealing in
United States Dollar deposits in London, England and Nassau, Bahamas.
"Default" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
"Domestic Rate" means, for any day, the greater of (i) the rate of interest
announced by the Bank from time to time as its prime commercial rate, as in
effect on such day (it being understood and agreed that such rate may not be the
Bank's best or lowest rate); and (ii) the sum
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of (x) the rate determined by the Bank to be the average (rounded upwards, if
necessary, to the next higher 1/100 of 1%) of the rates per annum quoted to the
Bank at approximately 10:00 a.m. (Chicago time) (or as soon thereafter as is
practicable) on such day (or, if such day is not a Business Day, on the
immediately preceding Business Day) by two or more Federal funds brokers
selected by the Bank for the sale to the Bank at face value of Federal funds in
an amount equal or comparable to the principal amount owed to the Bank for which
such rate is being determined, plus (y) 3/8 of 1%.
"Domestic Rate Portion" is defined in Section 2.1(a) hereof.
"Event of Default" means any event or condition identified as such in
Section 8.1 hereof.
"Fixed Rate Portions" means and includes LIBOR Portions and Offered Rate
Portions, unless the context in which such term is used shall otherwise require.
"Interest Period" means, with respect to (a) any LIBOR Portion, the period
commencing on, as the case may be, the creation, continuation or conversion date
with respect to such LIBOR Portion and ending 1, 2, 3 or 6 months thereafter as
selected by the Borrower in its notice as provided herein and (b) any Offered
Rate Portion, the period commencing on, as the case may be, the creation,
continuation or conversion date with respect to such Offered Rate Portion and
ending 5 to 180 days thereafter as selected by the Borrower in its notice as
provided herein; provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day which is not
a Business Day, that Interest Period shall be extended to the next succeeding
Business Day, unless in the case of an Interest Period for a LIBOR Portion 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) no Interest Period may extend beyond the final maturity date of
the Note; and
(iii) the interest rate to be applicable to each Portion for each
Interest Period shall apply from and including the first day of such Interest
Period to but excluding the last day thereof.
For purposes of determining an Interest Period, a month means a period starting
on one day in a calendar month and ending on a numerically corresponding day in
the next calendar month, provided, however, if an Interest Period begins on the
last day of a month or if there is no numerically corresponding day in the month
in which an Interest Period is to end, then such Interest Period shall end on
the last Business Day of such month.
"LIBOR Portions" is defined in Section 2.1(a) hereof.
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"Lien" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of a
vendor or lessor under any conditional sale, capital lease or other title
retention arrangement.
"Loan Documents" means this Agreement and the Note.
"Non-Performing Assets" means with reference to any Person, as of any time
the same is to be determined, the sum of all non-performing assets of such
Person as determined in accordance with regulatory accounting principles
applicable to such Person, but in any event including, without limitation, (i)
loans or other extensions of credit on which any payment (whether principal or
interest or otherwise) is not made within 90 days of its original due date, (ii)
loans which have been placed on a non-accrual basis, (iii) loans structured so
as to not bear interest at a then market rate or so that other terms thereof
have been compromised, and (iv) property acquired by repossession or foreclosure
and, without duplication, property acquired pursuant to in-substance
foreclosure.
"Obligations" means all obligations of the Borrower to pay principal and
interest on the Loans, all fees and charges payable hereunder, and all other
payment obligations of the Borrower arising under or in relation to any Loan
Document, in each case whether now existing or hereafter arising, due or to
become due, direct or indirect, absolute or contingent, and howsoever evidenced,
held or acquired.
"Offered Rate" means the rate per annum quoted to the Borrower by the Bank
for the applicable Interest Period, such Offered Rate being subject at all times
to the provisions of Section 2.1(d) hereof.
"Offered Rate Portions" is defined in Section 2.1(a) hereof.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization or any other entity or
organization, including a government or agency or political subdivision thereof.
"Portion" is defined in Section 2.1(a) hereof.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Subsidiary" means any corporation or other Person more than 50% of the
outstanding ordinary voting shares or other equity interests of which is at the
time directly or indirectly owned by the Borrower, by one or more subsidiaries
of the Borrower, or by the Borrower and one or more of its subsidiaries.
"Termination Date" means April 27, 2000, or such earlier date on which the
Commitment is terminated in whole pursuant to Section 3.3, 8.2, or 8.3 hereof.
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"Tier I Leverage Ratio" of any Person means, at any time, the ratio of
regulatory "core" capital (Tier I) to total assets, all as defined and
determined from time to time by applicable bank or thrift regulatory
authorities.
"Tier I Risk Based Capital Ratio" means the ratio of regulatory "core"
capital (Tier I) to weighted-risk assets and off-balance sheet items, all as
defined and determined from time to time by applicable bank or thrift regulatory
authorities.
"Total Risk Based Capital Ratio" of any Person means, at any time, the
ratio of regulatory "core" capital (Tier I) and supplementary capital elements
(Tier II) to weighted-risk assets and off-balance sheet items, all as defined
and determined from time to time by applicable bank or thrift regulatory
authorities.
"Year 2000 Problem" means any significant risk that computer hardware,
software, or equipment containing embedded microchips essential to the business
or operations of the Borrower or any of its Subsidiaries will not, in the case
of dates or time periods occurring after December 31, 1999, function at least as
efficiently and reliably as in the case of times or time periods occurring
before January 1, 2000, including the making of accurate leap year calculations.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Bank as follows:
Section 5.1. Organization and Qualification. The Borrower is duly
organized, validly existing, and in good standing as a corporation under the
laws of the state of its incorporation. The Borrower has full and adequate
corporate power to own its Property and conduct its business as now conducted,
and is duly licensed or qualified and in good standing in each jurisdiction in
which the nature of the business conducted by it or the nature of the Property
owned or leased by it requires such licensing or qualifying. Without limiting
the generality of the foregoing, the Borrower is a bank holding company and, as
such, the Borrower has received all necessary approvals from, and has filed all
necessary reports with, all applicable federal and state regulatory authorities.
Section 5.2. Subsidiaries. Each Subsidiary is duly organized, validly
existing, and in good standing under the laws of the jurisdiction in which it is
incorporated or organized, as the case may be, has full and adequate power to
own its Property and conduct its business as now conducted, and is duly licensed
or qualified and in good standing in each jurisdiction in which the nature of
the business conducted by it or the nature of the Property owned or leased by it
requires such licensing or qualifying. Schedule 5.2 hereto identifies each
Subsidiary, the jurisdiction of its incorporation or organization, as the case
may be, the percentage of issued and outstanding shares of each class of its
capital stock or other equity interests owned by the Borrower and the
Subsidiaries and, if such percentage is not 100% (excluding directors'
qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of
each class issued and outstanding. All of the outstanding shares of capital
stock and other equity interests of each Subsidiary are validly
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issued and outstanding and fully paid and nonassessable, and all such shares and
other equity interests indicated on Schedule 5.2 as owned by the Borrower or a
Subsidiary are owned, beneficially and of record, by the Borrower or such
Subsidiary free and clear of all Liens. There are no outstanding commitments or
other obligations of any Subsidiary to issue, and no options, warrants, or other
rights of any Person to acquire, any shares of any class of capital stock or
other equity interests of any Subsidiary.
Section 5.3. Authority and Validity of Obligations. The Borrower has full
right and authority to enter into the Loan Documents and to perform all of its
obligations thereunder; and the Loan Documents do not, nor does the performance
or observance by the Borrower of any of the matters and things therein provided
for, contravene or constitute a default under any provision of law or any
judgment, injunction, order or decree binding upon the Borrower or any provision
of its articles of incorporation or by-laws or any covenant, indenture or
agreement of or affecting the Borrower or any of its Properties, or result in
the creation or imposition of any Lien on any Property of the Borrower.
Section 5.4. Purpose; Margin Stock. The Borrower shall use the proceeds
of the Loans for its general working capital purposes and such other legal and
proper purposes as are consistent with all applicable laws. The Borrower is not
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System); and no part of the proceeds of any
Loan made hereunder will be used to purchase or carry any margin stock, or to
extend credit to others for the purpose of purchasing or carrying any such
margin stock, except to the extent done so in compliance with said Regulation U.
Margin stock (as defined above) constitutes less than 25% of those assets of the
Borrower which are subject to any limitation on sale, pledge, or other
restriction hereunder.
Section 5.5. Financial Reports. All financial statements of the Borrower
and its Subsidiaries heretofore submitted to the Bank are true and correct in
all material respects, have been prepared in accordance with generally accepted
accounting principles or regulatory accounting principles, as the case may be,
consistently applied, and fairly present the financial condition of the Borrower
and its Subsidiaries and the results of operations and cash flows of the
Borrower and its Subsidiaries as of the dates thereof and for the periods
covered thereby. Neither the Borrower nor any Subsidiary has contingent
liabilities which are material to it other than as indicated on such financial
statements or, with respect to future periods, on the financial statements
furnished pursuant to Section 7.5 hereof. Since December 31, 1998, there has
been no change in the condition (financial or otherwise) or business prospects
of the Borrower or any Subsidiary except those occurring in the ordinary course
of business, none of which individually or in the aggregate have been materially
adverse.
Section 5.6. Litigation and Taxes. There is no litigation or governmental
proceeding or labor controversy pending, nor to the knowledge of the Borrower
threatened, against the Borrower or any Subsidiary which if adversely determined
would (a) impair the validity or enforceability of, or impair the ability of the
Borrower to perform its obligations under, any Loan Document or (b) result in
any material adverse change in the financial condition, Properties, business or
operations of the Borrower or any Subsidiary. All tax returns required to be
filed by
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the Borrower or any Subsidiary in any jurisdiction have, in fact, been filed,
and all taxes, assessments, fees and other governmental charges upon the
Borrower or any Subsidiary or upon any of their respective Properties, income or
franchises, which are shown to be due and payable in such returns, have been
paid. The Borrower has no knowledge of any proposed additional tax assessment
against it or any Subsidiary for which adequate provisions in accordance with
generally accepted accounting principles have not been made on its accounts.
Section 5.7. Approvals. No authorization, consent, license, or exemption
from, or filing or registration with, any court or governmental department,
agency or instrumentality, nor any approval or consent of the stockholders of
the Borrower or any other Person, is or will be necessary to the valid
execution, delivery or performance by the Borrower of the Loan Documents.
Section 5.8. Compliance with Laws. The Borrower and each Subsidiary are
in compliance with the requirements of all federal, state and local laws, rules,
and regulations applicable to or pertaining to their Properties or business
operations, non-compliance with which could have a material adverse effect on
the financial condition, Properties, business or operations of the Borrower or
any Subsidiary. Neither the Borrower (or any of its directors or officers) nor
any Banking Subsidiary (or any of its directors or officers) is a party to, or
subject to, any agreement with, or directive or order issued by, any federal or
state bank or thrift regulatory authority which imposes restrictions or
requirements on it which are not generally applicable to banks or thrifts, or
their holding companies; and no action or administrative proceeding is pending
or, to the Borrower's knowledge, threatened against the Borrower or any Banking
Subsidiary or any of their directors or officers which seeks to impose any such
restriction or requirement.
Section 5.9. Year 2000 Compliance. The Borrower has conducted a
comprehensive review and assessment of the computer applications of the Borrower
and its Subsidiaries and has made inquiry of their material suppliers, service
vendors (including data processors) and customers, with respect to any defect in
computer software, data bases, hardware, controls and peripherals related to the
occurrence of the year 2000 or the use at any time of any date which is before,
on and after December 31, 1999, in connection therewith. Based on the foregoing
review, assessment and inquiry, the Borrower believes that no such defect could
reasonably be expected to have a material adverse effect on the business or
financial affairs of the Borrower (or of the Borrower and its Subsidiaries taken
on a consolidated basis).
SECTION 6. CONDITIONS PRECEDENT.
The obligation of the Bank to make any Loan under this Agreement is subject
to the following conditions precedent:
Section 6.1. Initial Loan. At or prior to the making of the initial Loan
hereunder, the following conditions precedent shall also have been satisfied:
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(a) the Bank shall have received the following (each to be properly
executed and completed) and the same shall have been approved as to form
and substance by the Bank:
(i) the Note;
(ii) copies of resolutions of the Borrower's Board of Directors
(or similar governing body, including any executive committee of such
board) authorizing the execution, delivery, and performance of the
Loan Documents by the Borrower and the consummation of the
transactions contemplated hereby, together with specimen signatures of
the persons authorized to execute such documents on the Borrower's
behalf, all certified to by the Borrower's Secretary or Assistant
Secretary; and
(iii) an incumbency certificate containing the name, title, and
genuine signatures of each of the Borrower's Authorized
Representatives;
(b) the Bank shall have received the closing fee called for hereby;
(c) legal matters incident to the execution and delivery of the Loan
Documents and to the transactions contemplated thereby shall be
satisfactory to the Bank and its counsel, and the Bank shall have received
the favorable written opinion of counsel for the Borrower in form and
substance satisfactory to the Bank and its counsel;
(d) the Bank shall have received a good standing certificate for the
Borrower (dated as of the date no earlier than 30 days prior to the date
hereof, or otherwise acceptable to the Bank) from the office of the
secretary of state of the state of its incorporation and each state in
which it is qualified to do business as a foreign corporation, together
with a certificate from the Federal Reserve Bank of Kansas City as to the
registration of the Borrower as a bank holding company; and
(e) the Bank shall have received such other agreements, instruments,
documents, certificates, and opinions as the Bank may reasonably request.
Section 6.2. All Loans. As of the time of the making of each Loan
hereunder: (a) each of the representations and warranties set forth in Section 5
hereof and in the other Loan Documents shall be true and correct as of such
time, except to the extent the same expressly relate to an earlier date; (b) the
Borrower shall be in full compliance with all of the terms and conditions of the
Loan Documents, and no Default or Event of Default shall have occurred and be
continuing or would occur as a result of making such extension of credit; and
(c) such extension of credit shall not violate any order, judgment or decree of
any court or other authority or any provision of law or regulation applicable to
the Bank (including, without limitation, Regulation U of the Board of Governors
of the Federal Reserve System) as then in effect. The Borrower's request for any
Loan shall constitute its warranty as to the facts specified in subsections (a)
and (b) above.
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SECTION 7. COVENANTS.
The Borrower agrees that, so long as any credit is available to or in use
by the Borrower hereunder, except to the extent compliance in any case or cases
is waived in writing by the Bank:
Section 7.1. Maintenance of Business. The Borrower shall, and shall cause
each Subsidiary to, preserve and keep in full force and effect its existence,
rights (charter or statutory), franchises, and licenses necessary for the proper
conduct of its business.
Section 7.2. Maintenance of Properties. The Borrower shall, and shall
cause each Subsidiary to, maintain, preserve and keep its property, plant and
equipment in good repair, working order, and condition (ordinary wear and tear
excepted), and shall from time to time make all needful and proper repairs,
renewals, replacements, additions, and betterments thereto so that at all times
the efficiency thereof shall be fully preserved and maintained it.
Section 7.3. Taxes and Assessments. The Borrower shall duly pay and
discharge, and shall cause each Subsidiary to duly pay and discharge, all taxes,
rates, assessments, fees, and governmental charges upon or against it or its
Properties, in each case before the same become delinquent and before penalties
accrue thereon, unless and to the extent that the same are being contested in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves are provided therefor.
Section 7.4. Insurance. The Borrower shall insure and keep insured, and
shall cause each Subsidiary to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower shall insure, and shall cause each Subsidiary to
insure, against such other hazards and risks with good and responsible insurance
companies as and to the extent usually insured by Persons similarly situated and
conducting similar businesses.
Section 7.5. Financial Reports. The Borrower shall, and shall cause each
Subsidiary to, maintain a system of accounting in accordance with generally
accepted accounting principles and, where applicable, regulatory accounting
principles, and shall furnish to the Bank and its duly authorized
representatives such information respecting the business and financial condition
of the Borrower and the Subsidiaries (including non-financial information and
examination reports and supervisory letters to the extent permitted by
applicable regulatory authorities) as the Bank may reasonably request; and
without any request, the Borrower shall furnish to the Bank:
(a) within 30 days after the close of each fiscal quarter, all call
reports and other financial statements required to be delivered by the
Borrower and by each Banking Subsidiary to any governmental authority or
authorities having jurisdiction over the Borrower or such Banking
Subsidiary and all schedules thereto;
(b) within 120 days after the close of each fiscal year, a copy of
the consolidated and consolidating balance sheet of the Borrower and the
Subsidiaries as of
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the close of such period and the consolidated and consolidating statements
of income, retained earnings and cash flows of the Borrower and the
Subsidiaries for such period, and accompanying notes thereto, each in
reasonable detail showing in comparative form the figures for the previous
fiscal year, accompanied by an unqualified opinion thereon of a firm of
independent public accountants of recognized standing, selected by the
Borrower and satisfactory to the Bank, to the effect that the consolidated
financial statements have been prepared in accordance with generally
accepted accounting principles and present fairly the consolidated
financial condition of the Borrower and the Subsidiaries as of the close of
such fiscal year and the results of their operations and cash flows for the
fiscal year then ended and that an examination of such accounts in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards and, accordingly,
such examination included such tests of the accounting records and such
other auditing procedures as were considered necessary in the
circumstances;
(c) promptly upon the filing thereof (if any), copies of all
registration statements, Form 10-K, Form 10-Q, and Form 8-K reports and
proxy statements which the Borrower or any Subsidiary files with the
Securities and Exchange Commission;
(d) promptly upon the receipt or execution thereof, (i) notice by the
Borrower or any Banking Subsidiary that (1) it has received a request or
directive from any federal or state regulatory agency which requires it to
submit a capital maintenance or restoration plan or restricts the payment
of dividends by any Banking Subsidiary to the Borrower or (2) it has
submitted a capital maintenance or restoration plan to any federal or state
regulatory agency or has entered into a memorandum or agreement with any
such agency, including, without limitation, any agreement which restricts
the payment of dividends by any Banking Subsidiary to the Borrower or
otherwise imposes restrictions or requirements on it which are not
generally applicable to banks or thrifts or their holding companies, and
(ii) copies of any such plan, memorandum, or agreement, unless disclosure
is prohibited by the terms thereof and, after the Borrower or such Banking
Subsidiary has in good faith attempted to obtain the consent of such
regulatory agency, such agency will not consent to the disclosure of such
plan, memorandum, or agreement to the Bank; and
(e) promptly after knowledge thereof shall have come to the attention
of any responsible officer of the Borrower, written notice of any
threatened or pending litigation or governmental proceeding or labor
controversy against the Borrower or any Subsidiary which, if adversely
determined, would materially and adversely effect the financial condition,
Properties, business or operations of the Borrower or any Subsidiary or of
the occurrence of any Default or Event of Default hereunder.
Each of the financial statements furnished to the Bank pursuant to subsections
(a) and (b) of this Section 8.5 shall be accompanied by a written certificate in
the form attached hereto as Exhibit B signed by the President or chief financial
officer of the Borrower to the effect that to the best of such officer's
knowledge and belief no Default or Event of Default has occurred during the
period covered by such statements or, if any such Default or Event of Default
has occurred
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during such period, setting forth a description of such Default or Event of
Default and specifying the action, if any, taken by the Borrower to remedy the
same. Such certificate shall also set forth the calculations supporting such
statements in respect of Section 7.6 of this Agreement.
Section 7.6. Non-Performing Assets. The Borrower shall, as of the last
day of each fiscal quarter, maintain on a consolidated basis with its Banking
Subsidiaries, and shall cause each Banking Subsidiary to maintain as of such day
on an individual basis, a ratio of (a) Non-Performing Assets of the Borrower on
such consolidated basis or such Banking Subsidiary, as the case may be, to (b)
the sum of (i) stockholders' equity for the Borrower or core capital for such
Banking Subsidiary, as the case may be, plus loan loss reserves established by
the Borrower on such consolidated basis or such Banking Subsidiary, as the case
may be, in accordance with regulatory accounting principles applicable to the
Borrower or such Banking Subsidiary, of not more than .25 to 1.0.
Section 7.7. Regulatory Capital Requirements.
(a) The Borrower shall maintain on a consolidated basis with its Banking
Subsidiaries, and shall cause each Banking Subsidiary to maintain on an
individual basis:
(i) a Tier I Leverage Ratio of greater than 5% or, in the case of
any Banking Subsidiary, such greater amount as may be required to be
considered "well capitalized" by applicable regulatory authorities from
time to time;
(ii) a Total Risk Based Capital Ratio of greater than 10% or, in the
case of any Banking Subsidiary, such greater amount as may be required to
be considered "well capitalized" by applicable regulatory authorities from
time to time; and
(iii) a Tier I Risk Based Capital Ratio of greater than 6% or, in the
case of any Banking Subsidiary, such greater amount as may be required to
be considered "well capitalized" by applicable regulatory authorities from
time to time.
(b) Each Banking Subsidiary shall at all times be at least "well
capitalized" as defined in the Federal Deposit Insurance Corporation Improvement
Act of 1991 and any regulations to be issued thereunder, as such statute or
regulations may each be amended or supplemented from time to time.
(c) Each requirement described in subsections (a) and (b) above shall be
computed and determined in accordance with the rules and regulations as in
effect from time to time established by the appropriate governmental authority
having jurisdiction over the Borrower or such Banking Subsidiary. In addition to
the provisions set forth above, the Borrower shall, and shall cause each Banking
Subsidiary to, comply with any and all capital guidelines and requirements as in
effect from time to time established by the relevant governmental authority or
authorities having jurisdiction over the Borrower or any Banking Subsidiary.
Section 7.8. Indebtedness. The Borrower shall not issue, incur, assume,
create, or have outstanding any indebtedness for borrowed money (including as
such for all purposes of this
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Agreement any indebtedness representing the deferred purchase price of property,
any liability in respect of banker's acceptances or letters of credit, any
indebtedness, whether or not assumed, secured by liens on property acquired by
the Borrower existing at the time of the acquisition thereof, and any liability
under any lease which should be capitalized under generally accepted accounting
principles); provided, however, that the foregoing shall not restrict nor
operate to prevent:
(a) indebtedness of the Borrower on the Note and any other
indebtedness of the Borrower from time to time owing to the Bank;
(b) trade accounts payable for property or services acquired by the
Borrower in the ordinary course of business and payable in accordance with
ordinary trade terms;
(c) indebtedness existing on the date hereof and described on
Schedule 7.8 attached hereto and made a part hereof, as reduced by
repayments of principal thereon; and
(d) indebtedness not otherwise covered hereby in an aggregate
principal amount not exceeding $500,000 at any one time outstanding.
Section 7.9. Liens. The Borrower shall not create, incur or permit to
exist any Lien of any kind on any Property owned by the Borrower; provided,
however, that the foregoing shall not apply to nor operate to prevent:
(a) Liens arising by statute in connection with worker's
compensation, unemployment insurance, old age benefits, social security
obligations, taxes, assessments, statutory obligations or other similar
charges (exclusive of Liens arising under the Employee Retirement Income
Security Act of 1974, as amended), good faith cash deposits in connection
with tenders, contracts or leases to which the Borrower is a party or other
cash deposits required to be made in the ordinary course of business,
provided in each case that the obligation is not for borrowed money and
that the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest and adequate reserves have been
established therefor;
(b) mechanics', workmen's, materialmen's, landlords', carriers', or
other similar Liens arising in the ordinary course of business with respect
to obligations which are not due or which are being contested in good faith
by appropriate proceedings which prevent enforcement of the matter under
contest;
(c) the pledge of assets for the purpose of securing an appeal, stay
or discharge in the course of any legal proceeding, provided that the
aggregate amount of liabilities of the Borrower secured by a pledge of
assets permitted under this subsection, including interest and penalties
thereon, if any, shall not be in excess of $1,000,000 at any one time
outstanding; and
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(d) such other Liens consented to in writing by the Bank.
Section 7.10. Dividends and Certain Other Restricted Payments. The
Borrower shall not declare or pay any dividends on or make any other
distributions in respect of any class or series of its capital stock or directly
or indirectly purchase, redeem or otherwise acquire or retire any of its capital
stock (collectively; "Restricted Payments"), if at the time of, or after giving
effect to, any such Restricted Payment any Default or Event of Default exists.
Section 7.11. Compliance with Laws. The Borrower shall, and shall cause
each Subsidiary to, comply in all respects with the requirements of all federal,
state and local laws, rules, regulations, ordinances and orders applicable to or
pertaining to their Properties or business operations, non-compliance with which
could have a material adverse effect on the financial condition, Properties,
business or operations of such Borrower or any Subsidiary or could result in a
Lien upon any of their Property.
Section 7.12. Maintenance of Subsidiaries. The Borrower shall not assign,
sell, or transfer, or permit any Subsidiary to issue, assign, sell, or transfer,
any shares of capital stock or other equity interest of a Subsidiary; provided
that the foregoing shall not prevent the issuance, sale, or transfer to any
person of any shares of capital stock or other equity interests of a Subsidiary
solely for the purpose of qualifying, and only to the extent legally necessary
to qualify, such person as a director of such Subsidiary.
Section 7.13. Year 2000 Assessment. The Borrower shall take all actions
necessary and commit adequate resources to assure that its computer-based and
other systems (and those of all Subsidiaries) are able to effectively process
dates, including dates before, on and after January 1, 2000, without
experiencing any Year 2000 Problem that could cause a material adverse effect on
the business or financial affairs of the Borrower (or of the Borrower and its
Subsidiaries taken on a consolidated basis). At the request of the Bank, the
Borrower will provide the Bank with written assurances and substantiations
(including, but not limited to, the results of internal or external audit
reports prepared in the ordinary course of business) reasonably acceptable to
the Bank as to the capability of the Borrower and its Subsidiaries to conduct
its and their businesses and operations before, on and after January 1, 2000,
without experiencing a Year 2000 Problem causing a material adverse effect on
the business or financial affairs of the Borrower (or of the Borrower and its
Subsidiaries taken on a consolidated basis).
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
Section 8.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" hereunder:
(a) default in the payment when due of all or any part of the
Obligations payable by the Borrower under any Loan Document, or default in
the payment when due of any other indebtedness or liability of the Borrower
or any of its Subsidiaries owing to the Bank; or
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(b) default in the observance or performance of any provision of any
Loan Document which is not remedied within ten (10) days after written
notice thereof is given to the Borrower by the Bank; or
(c) any representation or warranty made by the Borrower in any Loan
Document, or in any statement or certificate furnished by it pursuant
thereto, or in connection with any Loan made hereunder, proves untrue in
any material respect as of the date of the issuance or making thereof; or
(d) any event occurs or condition exists (other than those described
in subsections (a) through (c) above) which is specified as an event of
default in any other Loan Document, or any of the Loan Documents shall for
any reason not be or shall cease to be in full force and effect, or any of
the Loan Documents is declared to be null and void; or
(e) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to,
or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part of
its Property, (v) institute any proceeding seeking to have entered against
it an order for relief under the United States Bankruptcy Code, as amended,
to adjudicate it insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action in furtherance of any matter
described in parts (i) through (v) above, or (vii) fail to contest in good
faith any appointment or proceeding described in Section 8.1(f) hereof; or
(f) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Subsidiary or any
substantial part of its Property, or a proceeding described in Section
8.1(e)(v) shall be instituted against the Borrower or any Subsidiary, and
such appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 30 days; or
(g) dissolution or termination of the existence of the Borrower or
any Banking Subsidiary; or
(h) Borrower or any Subsidiary shall fail to pay any of its
indebtedness to any other entity or shall default in the performance or
observance of the terms of any instrument pursuant to which such
indebtedness was created or securing such indebtedness, beyond any period
of grace applicable thereto, if the effect of such default is to
accelerate, or to give to the holder thereof the right to accelerate, the
maturity of any such indebtedness; or
-20-
(i) 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, shall be entered or filed against the Borrower or any Subsidiary
or against any of their Property and which remains unvacated, unbonded,
unstayed or unsatisfied for a period of 30 days; or
(j) any conservator or receiver shall be appointed for the Borrower
or any Banking Subsidiary under applicable federal or state law applicable
to banks, thrifts, or their holding companies, or any Banking Subsidiary
shall suspend payment of its obligations, or any Banking Subsidiary shall
cease to be a federally insured depositary institution, or a cease and
desist order shall be issued against the Borrower or any Subsidiary
pursuant to applicable federal or state law applicable to banks, thrifts,
or their holding companies, or the Borrower or any Subsidiary shall enter
into any commitment to maintain the capital of an insured depository
institution in a required amount with any federal or state regulator or any
such regulator shall require the Borrower or any Subsidiary to submit a
capital maintenance or restoration plan; or
(k) any change occurs in the condition (financial or otherwise) or
business prospects of the Borrower or any Subsidiary which the Bank regards
as materially adverse.
Section 8.2. Non-Bankruptcy Defaults. When any Event of Default described
in Section 8.1 has occurred and is continuing (other than an Event of Default
described in subsection (e) or (f) of Section 8.1), the Bank may, by notice to
the Borrower, take one or more of the following actions: (a) terminate the
obligation of the Bank to extend any further credit hereunder on the date (which
may be the date thereof) stated in such notice; (b) declare the principal of and
the accrued interest on the Note to be forthwith due and payable and thereupon
the Note, including both principal and interest and all other Obligations
payable under the Loan Documents, shall be and become immediately due and
payable without further demand, presentment, protest or notice of any kind; and
(c) enforce any and all rights and remedies available to the Bank under the Loan
Documents or applicable law.
Section 8.3. Bankruptcy Defaults. When any Event of Default described in
subsection (e) or (f) of Section 8.1 has occurred and is continuing, then the
Note, including both principal and interest, and all other Obligations payable
under the Loan Documents, shall immediately become due and payable without
presentment, demand, protest or notice of any kind, and the obligation of the
Bank to extend further credit pursuant to any of the terms hereof shall
immediately terminate. In addition, the Bank may exercise any and all remedies
available to it under the Loan Documents or applicable law.
SECTION 9. MISCELLANEOUS.
Section 9.1. Non-Business Day. If any payment hereunder becomes due and
payable on a day which is not a Business Day, the due date of such payment shall
be extended to the next succeeding Business Day on which date such payment shall
be due and payable. In the case of any payment of principal falling due on a day
which is not a Business Day, interest on such
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principal amount shall continue to accrue during such extension at the rate per
annum then in effect, which accrued amount shall be due and payable on the next
scheduled date for the payment of interest.
Section 9.2. Amendments, Etc. No delay or failure on the part of the Bank
in the exercise of any power or right shall operate as a waiver thereof or as an
acquiescence in any default, nor shall any single or partial exercise of any
power or right preclude any other or further exercise thereof or the exercise of
any other power or right. The rights and remedies hereunder of the Bank are
cumulative to, and not exclusive of, any rights or remedies which it would
otherwise have. No amendment, modification, termination or waiver of any
provision of any Loan Document, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Bank. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
Section 9.3. Costs and Expenses. The Borrower agrees to pay on demand the
costs and expenses of the Bank in connection with the negotiation, preparation,
execution and delivery of the Loan Documents and the other instruments and
documents to be delivered thereunder, and in connection with the transactions
contemplated thereby, and in connection with any consents or waivers or
amendments thereto, including the fees and expenses of counsel for the Bank with
respect to all of the foregoing (whether or not the transactions contemplated
thereby are consummated). The Borrower further agrees to pay to the Bank all
costs and expenses (including court costs and attorneys' fees), if any, incurred
or paid by the Bank in connection with any Default or Event of Default or in
connection with the enforcement of any Loan Document or any other instrument or
document delivered thereunder. The obligations of the Borrower under this
Section shall survive the termination of this Agreement.
Section 9.4. Survival of Representations. All representations and
warranties made in the Loan Documents or in certificates given pursuant thereto
shall survive the execution and delivery of the Loan Documents, and shall
continue in full force and effect with respect to the date as of which they were
made as long as any credit is in use or available hereunder.
Section 9.5 Survival of Indemnities. All indemnities and other provisions
relative to reimbursement to the Bank of amounts sufficient to protect the yield
of the Bank with respect to the Loans, including, but not limited to, Sections
2.7 and 2.8 hereof, shall survive the termination of this Agreement and the
payment of the Note.
Section 9.6. Notices. Except as otherwise specified herein, all notices
hereunder shall be in writing (including notice by telecopy) and shall be given
to the relevant party at its address or telecopier number set forth below, or
such other address or telecopier number as such party may hereafter specify by
notice to the other given by United States certified or registered mail, by
telecopy or by other telecommunication device capable of creating a written
record of such notice and its receipt. Notices hereunder shall be addressed:
-22-
to the Borrower at: to the Bank at:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (ii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the addresses specified in this Section; provided that any notice given pursuant
to Section 1 or Section 2 hereof shall be effective only upon receipt.
Section 9.7. Construction, Etc. Nothing contained herein shall be deemed
or construed to permit any act or omission which is prohibited by the terms of
any of the other Loan Documents, the covenants and agreements contained herein
being in addition to and not in substitution for the covenants and agreements
contained in the other Loan Documents. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. Section headings
used in this Agreement are for convenience of reference only and are not a part
of this Agreement for any other purpose.
Section 9.8. Binding Nature, Governing Law, Etc. This Agreement may be
executed in any number of counterparts, and by different parties hereto on
separate counterpart signature pages, and all such counterparts taken together
shall be deemed to constitute on and the same instrument. This Agreement shall
be binding upon the Borrower and its successors and assigns, and shall inure to
the benefit of the Bank and the benefit of its successors and assigns, including
any subsequent holder of the Obligations. The Borrower may not assign its rights
hereunder without the written consent of the Bank. This Agreement constitutes
the entire understanding of the parties with respect to the subject matter
hereof and any prior agreements, whether written or oral, with respect thereto
are superseded hereby. This Agreement and the rights and duties of the parties
hereto shall be governed by, and construed in accordance with, the internal laws
of the State of Illinois without regard to principles of conflicts of laws.
Section 9.9. Submission to Jurisdiction; Waiver of Jury Trial. The
Borrower hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Northern District of Illinois and of any Illinois State
court sitting in the City of Chicago for purposes of all legal proceedings
arising out of or relating to the Loan Documents or the transactions
contemplated thereby. The Borrower irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a
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court has been brought in an inconvenient forum. THE BORROWER AND THE BANK EACH
HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
[SIGNATURE PAGE TO FOLLOW]
-24-
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this 29th day of April, 1999.
BANCFIRST CORPORATION
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Executive Vice
President and
Chief Financial
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Officer
---------------------- ---------------
(Type or Print Name) (Title)
Accepted and agreed to at Chicago, Illinois as of the day and year last
above written.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
-25-
EXHIBIT A
REVOLVING CREDIT NOTE
Chicago, Illinois
$12,000,000 April 29, 1999
On the Termination Date, for value received, the undersigned, BANCFIRST
CORPORATION, an Oklahoma corporation (the "Borrower"), hereby promises to pay to
the order of ▇▇▇▇▇▇ TRUST AND SAVINGS BANK (the "Bank") at its office at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the principal sum of (i) Twelve Million
Dollars ($12,000,000), or (ii) such lesser amount as may at the time of the
maturity hereof, whether by acceleration or otherwise, be the aggregate unpaid
principal amount of all Loans owing from the Borrower to the Bank under the
Revolving Credit provided for in the Credit Agreement hereinafter mentioned.
This Note evidences Loans made or to be made to the Borrower by the Bank
under the Revolving Credit provided for under that certain Credit Agreement
dated as of April 29, 1999, between the Borrower and the Bank (said Credit
Agreement, as the same may be amended, modified or restated from time to time,
being referred to herein as the "Credit Agreement"), and the Borrower hereby
promises to pay interest at the office described above on such Loans evidenced
hereby at the rates and at the times and in the manner specified therefor in the
Credit Agreement.
This Note is issued by the Borrower under the terms and provisions of the
Credit Agreement, and this Note and the holder hereof are entitled to all of the
benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity and voluntary
prepayments may be made hereon, all in the events, on the terms and with the
effects provided in the Credit Agreement. All capitalized terms used herein
without definition shall have the same meanings herein as such terms are defined
in the Credit Agreement.
The Borrower hereby promises to pay all costs and expenses (including
attorneys' fees) suffered or incurred by the holder hereof in collecting this
Note or enforcing any rights in any collateral therefor. The Borrower hereby
waives presentment for payment and demand. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF ILLINOIS
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
BANCFIRST CORPORATION
By
-------------------------------------
,
------------------------ -----------
(Type or Print Name) (Title)
EXHIBIT B
COMPLIANCE CERTIFICATE
To: ▇▇▇▇▇▇ Trust and Savings Bank
Chicago, Illinois
This Compliance Certificate is furnished to ▇▇▇▇▇▇ Trust and Savings Bank
pursuant to that certain Credit Agreement dated as of April 29, 1999, between
BancFirst Corporation and you (the "Credit Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________________________ of the Borrower;
2. In my corporate capacity, I have reviewed the terms of the Credit
Agreement and I have made, or have caused to be made under my supervision, a
detailed review of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or the occurrence of any event
which constitutes a Default or Event of Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below;
4. The financial statements required by Section 7.5 of the Credit
Agreement and being furnished to you concurrently with this Certificate are
true, correct and complete as of the date and for the periods covered thereby;
and
5. The Attachment hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Credit
Agreement, all of which data and computations are, to the best of my knowledge,
true, complete and correct and have been made in accordance with the relevant
Sections of the Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The foregoing certifications, together with the computations set forth in
the Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _________ day of
__________________.
BANCFIRST CORPORATION
By
------------------------------------
,
------------------------ ----------
(Type or Print Name) (Title)
-2-
ATTACHMENT TO COMPLIANCE CERTIFICATE
BANCFIRST CORPORATION
Compliance Calculations for Credit Agreement
Dated as of April 29, 1999
Calculations as of _____________
--------------------------------------------------------------------------------
A. Ratio of Non-Performing Assets to Stockholders' equity/Core capital and
Loan loss reserves (Section 7.6)
1. Non-Performing Assets for Company
a. Loans more than 90 days past due $ __________
b. Loans placed on non-accrual basis $ __________
c. Loans restructured $ __________
d. Assets acquired by repossession or
foreclosure $ __________
Sum of Lines 1a - 1d $
========
2. Stockholders' equity and loan loss reserves
(a) Stockholders' equity of Company $ __________
(b) Loan loss reserves of Company $ __________
Sum of Lines 2a - 2b $
========
3. Ratio of Line 1 to Line 2 ____:___
4. Non-Performing Assets for Banking Subsidiary
a. Loans more than 90 days past due $ __________
b. Loans placed on non-accrual basis $ __________
c. Loans restructured $ __________
d. Assets acquired by repossession or
foreclosure $ __________
Sum of Lines 4a - 4d $
========
5. Core capital and loan less reserves
(a) Core capital of Banking Subsidiary $ __________
(b) Loan loss reserves of Banking
Subsidiary $ __________
Sum of Lines 5a - 5b $
========
6. Ratio of Line 4 to Line 5 ____:1.0
7. Line 4 and Line 6 ratios each must be not more than .25:1.0
8. Company is in compliance?
(Circle Yes or No) Yes/No
SCHEDULE 5.2
SUBSIDIARIES
JURISDICTION OF PERCENTAGE
NAME INCORPORATION OWNERSHIP
SCHEDULE 7.8
EXISTING INDEBTEDNESS
DESCRIPTION AMOUNT