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EXHIBIT 10.15 LOAN AGREEMENT BETWEEN TEAM FINANCIAL, INC. AND MERCANTILE BANK
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into this
3rd day of December, 1999, by and between Team Financial, Inc., a Kansas
corporation ("Borrower"), and Mercantile Bank, a Kansas state bank ("Lender").
W I T N E S S E T H:
WHEREAS, Borrower has applied for a term loan from Lender in the
original principal amount of Five Million and No/100 Dollars ($5,000,000.00);
and
WHEREAS, Borrower has applied for a revolving loan from Lender in the
maximum principal amount of Fifteen Million and No/100 Dollars ($15,000,000.00);
and
WHEREAS, Lender is willing to make said loans to Borrower upon, and
subject to, the terms, provisions and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby mutually agree and promise as follows:
SECTION 1. TERM.
The "Term" of this Agreement shall commence on the date hereof and
shall end on December 31, 2002, or when Borrower's Obligations shall be paid in
full, unless earlier terminated upon the occurrence of an Event of Default under
this Agreement. All representations and warranties made herein shall survive
termination and termination shall not affect a party's rights with respect to
any prior breach of any term, agreement, covenant, representation or warranty
contained herein.
SECTION 2. DEFINITIONS.
In addition to the terms defined elsewhere in this Agreement or in any
Exhibit or Schedule hereto, when used in this Agreement, the following terms
shall have the following meanings (such meanings shall be equally applicable to
the singular and plural forms of the terms used, as the context requires):
ATTORNEYS' FEES shall mean the reasonable value of the services (and
costs, charges and expenses related thereto) of the attorneys employed by Lender
(including, without limitation, attorneys who are employees of Lender) from time
to time, if in Default, (i) in connection with the negotiation, preparation,
execution, delivery and administration of this Agreement and/or any of the other
Transaction Documents, (ii) to represent Lender in any litigation, contest or
proceeding or to take any other action in or with respect to any litigation,
contest or proceeding (whether instituted by Lender, Borrower or any other
Person and whether in bankruptcy or otherwise) in any way or respect relating to
the Collateral, any Third Party Collateral, this Agreement or any of the other
Transaction Documents, Borrower, and Subsidiary Bank or any other Obligor, (iii)
to protect, collect, lease, sell, take possession of or liquidate any of the
Collateral or any Third Party Collateral and (iv) to enforce any of Lender's
rights to collect any of Borrower's Obligations.
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BUSINESS DAY shall mean any day except a Saturday, Sunday or legal
holiday observed by Lender.
CAPITALIZED LEASE shall mean any lease which, in accordance with
generally accepted accounting principles consistently applied, is required to be
capitalized on the balance sheet of the lessee.
CODE shall mean the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, together with the regulations thereunder,
in each case as in effect from time to time. References to sections of the Code
shall be construed to also refer to any successor sections.
COLLATERAL shall have the meaning ascribed to such term in the Pledge
Agreement.
CONSOLIDATED SUBSIDIARY shall mean with respect to any Person at any
date, any Subsidiary or other entity the assets and liabilities of which are or
should be consolidated with those of such Person in its consolidated financial
statements as of such date in accordance with generally accepted accounting
principles consistently applied.
CONTROLLED BANK shall mean any state or federally chartered bank and/or
any bank holding company which Borrower or any Obligor controls. For purposes of
this definition, "control" shall have the meaning ascribed thereto in Section
225.2(e) of Regulation Y of The Board of Governors of The Federal Reserve
System, as from time to time amended.
DEBT SERVICE COVERAGE RATIO shall mean net income plus interest expense
plus goodwill amortization divided by interest expense plus term principal
payments (term principal payments shall include payments on the revolving loan
based on a ten year amortization).
DEFAULT shall mean an event or condition the occurrence of which would,
with the lapse of time, the giving of notice, or both, become or constitute an
Event of Default as defined in section 8 hereof.
DISTRIBUTION in respect of any corporation shall mean:
(a) dividends or other distributions on capital stock of the
corporation; and
(b) the redemption, repurchase or other acquisition of such stock or of
warrants, rights or other options to purchase such stock (except when solely in
exchange for such stock).
EQUITY CAPITAL shall mean, with respect to any Person, the sum of the
common stock, perpetual preferred stock (meaning preferred stock with no
maturity date and which may not be redeemed at the option of the holder),
paid-in surplus and retained earnings of such Person, all determined in
accordance with generally accepted accounting principles consistently applied,
less the sum of the total of goodwill and other intangible assets of such
Person, if any.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA shall be construed to also refer to any successor sections.
ERISA AFFILIATE shall mean any corporation, trade or business that is,
along with Borrower, a member of a controlled group of corporations or a
controlled group of trades or businesses, as described in Sections 414(b) and
414(c), respectively, of the Code or Section 4001 of ERISA.
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EVENT OF DEFAULT shall have the meaning ascribed thereto in Section 8.
GUARANTEE by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing any Indebtedness of any other Person or
in any manner providing for the payment of any Indebtedness of any other Person
or otherwise protecting the holder of such Indebtedness against loss (whether by
agreement to keep-well, to purchase assets, goods, securities or services, or to
take-or-pay or otherwise); provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb shall have a correlative meaning.
INDEBTEDNESS of any Person shall mean and include all obligations of
such Person which in accordance with generally accepted accounting principles
consistently applied are or should be classified upon a balance sheet of such
Person as liabilities of such Person, any and all contingent obligations,
indebtedness and/or liabilities of such Person, whether or not reflected on the
balance sheet of such Person and any and all obligations of such Person under
any Capitalized Lease.
INSIDER shall mean any Person to whom, with respect to Borrower, an
Obligor and/or any of the Subsidiary Banks, the provisions of Regulation O of
The Board of Governors of the Federal Reserve System, as from time to time
amended, apply.
LIBOR RATE shall mean the one month London InterBank Offered Rate as
published in The Wall Street Journal (Midwest Edition).
LIEN shall mean any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether such
interest is based on common law, statute or contract, including, without
limitation, any security interest, mortgage, deed of trust, pledge, lien or
other encumbrance of any kind or nature whatsoever, any conditional sale or
trust receipt and any lease, consignment or bailment for security purposes.
LOAN shall have the meaning ascribed thereto in Section 3.01.
MULTIEMPLOYER PLAN shall mean a "multiemployer plan" as defined in
Section 4001(a) (3) of ERISA which is maintained for employees of Borrower, any
other Obligor, any ERISA Affiliate or any of the Subsidiary Banks.
NET INCOME shall mean, with respect to any Person for any period, the
aggregate net income (or net loss) of such Person for such period equal to net
revenues and other proper income less the aggregate amount of any and all items
which are treated as expenses under generally accepted accounting principles
consistently applied, and less Federal, state and local income taxes, but
excluding from the definition of Net Income any extraordinary gains or losses or
any gains or losses from the sale or disposition of assets other than in the
ordinary course of business, all determined in accordance with generally
accepted accounting principles consistently applied.
NON-PERFORMING ASSETS shall mean, with respect to any of the Subsidiary
Banks, assets which: (a) constitute or are classified as other real estate owned
(as such term is defined in the guidelines, rules and regulations of The Board
of Governors of the Federal Reserve Board pertaining to capital adequacy in
effect from time to time) or (b) in the case of a particular asset, is (at the
time of such calculation) classified as a loan or other extension of credit (1)
which has been placed on nonaccrual status or has been required to be so placed
by any Regulatory Agency, (2) which has been classified as renegotiated pursuant
to guidelines now or hereafter established by the Federal Financial Institutions
Examination Council or (3) with respect to which any payment of any principal or
interest is past due for a period of ninety (90) days or more.
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NOTES shall mean the notes to be executed and delivered by Borrower to
Lender pursuant to Section 3.01 in the form attached hereto as EXHIBITS A AND B,
as the same may from time to time be amended, modified, extended or renewed.
OBLIGATIONS shall mean any and all indebtedness, liabilities and
obligations of Borrower, and any Obligor to Lender under the Notes, this
Agreement, the Pledge Agreement, any of the other Transaction Documents or any
other agreement, instrument or document heretofore, now or hereafter executed
and delivered by Borrower to Lender, in each case whether now existing or
hereafter arising, absolute or contingent, joint and/or several, secured or
unsecured, direct or indirect, expressed or implied in law, contractual or
tortious, liquidated or unliquidated, at law or in equity, or otherwise, and
whether created directly or acquired by Lender by assignment or otherwise, and
any and all costs of collection and/or Attorneys' Fees incurred or to be
incurred in connection therewith.
OBLIGOR shall mean Borrower, Team Acquisition and each other Person who
is or shall become primarily or secondarily liable on any of Borrower's
Obligations or who grants Lender a Lien upon any Property or assets of such
Person as collateral for any of Borrower's Obligations.
PBGC shall mean the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA
PENSION PLAN shall mean any "pension plan" as such term is defined in
Section 3(2) of ERISA which is subject to the provisions of Title IV of ERISA
and which is established or maintained by Borrower, any other Obligor, any ERISA
Affiliate or any of the Subsidiary Banks, other than a Multiemployer Plan.
PERSON shall mean an individual, partnership, corporation, trust,
unincorporated organization or association, and a government or agency or
political subdivision thereof.
PLEDGE AGREEMENT shall mean the General Pledge and Security Agreement
to be executed by Team Acquisition and delivered to Lender pursuant to Section 4
hereof, substantially in the form of that attached hereto as EXHIBIT C, as the
same may from time to time be amended.
PRIMARY CAPITAL shall mean, with respect to any Person, the Equity
Capital of such Person plus the total allowance for possible loan and lease
losses of such Person, all as determined in accordance with generally accepted
accounting principles consistently applied.
PROPERTY shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible. PROPERTIES shall
mean the plural of Property. For purposes of this Agreement, Borrower, any
Obligor and each of the Subsidiary Banks, as the case may be, shall be deemed to
be the owner of any Property which it has acquired or holds subject to a
conditional sale agreement, financing lease or other arrangement pursuant to
which title to the Property has been retained by or vested in some other Person
for security purposes.
REGULATORY AGENCY shall mean any Federal, state or local governmental
or regulatory agency, authority, entity or official having jurisdiction over the
banking or other related activities of Borrower, any Obligor and/or any of the
Subsidiary Banks, including, without limitation (to the extent applicable), The
Board of Governors of the Federal Reserve System, the Office of the Comptroller
of the Currency, the Federal Deposit Insurance Corporation, the Missouri
Director of Finance and the Kansas Division of Finance.
RELATED PARTY shall mean any Person which directly or indirectly
through one or more intermediaries controls, or is controlled by or is under
common control with, Borrower, any Obligor or any of the Subsidiary Banks. The
term "control" shall mean the possession, directly or indirectly, of the power
to vote ten percent (10%)
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or more of the capital stock of any Person or the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
REPORTABLE EVENT shall have the meaning given to such term in ERISA.
SUBSIDIARY shall mean, with respect to any Person, any corporation of
which ten percent (10%) or more of the issued and outstanding capital stock
entitled to vote for the election of directors (other than by reason of default
in the payment of dividends) is at the time owned directly or indirectly by such
Person.
SUBSIDIARY BANK(S) shall mean TeamBank, N.A., Freeman, Missouri, Iola
Bank and Trust Company, Iola, Kansas., First National Bank & Trust Company,
Parsons, Kansas and any other state or federally chartered bank and/or bank
holding company hereafter acquired by Borrower or any Obligor.
TEAM ACQUISITION shall mean Team Financial Acquisition Subsidiary,
Inc., a Kansas corporation.
TERM shall have the meaning ascribed thereto in Section 1.
THIRD PARTY COLLATERAL shall mean any Property or assets of any Obligor
other than Borrower which secure the payment or performance of any of Borrower's
Obligations, including, without limitation, the Property identified in the
Pledge Agreement.
TRANSACTION DOCUMENTS shall mean this Agreement, the Notes, the Pledge
Agreement and all other agreements, documents, instruments and certificates
connected with or otherwise relating to this Agreement or the Loan made
hereunder, all as the same may from time to time be amended, modified, extended
or renewed.
SECTION 3. THE LOANS
3.01 COMMITMENT OF LENDER. Lender hereby agrees to make available to
Borrower (a) a term loan in the original principal amount of Five Million and
No/100 Dollars ($5,000,000.00), which loan is being funded on the date hereof,
and which shall be evidenced by a Term Promissory Note of Borrower dated the
date hereof and payable to the order of Lender in the original principal amount
of Five Million and No/100 Dollars ($5,000,000.00); and (b) a revolving
promissory loan in the maximum amount of $15,000,000.00 evidenced by a Revolving
Promissory Note dated the date hereof which amount may be borrowed, paid,
reborrowed and repaid in whole or in part. The loans referenced in a and b above
may be collectively referred to herein as the "Loans". The notes referenced in a
and b above, as the same may be modified, amended, extended or renewed, may be
collectively referred to herein as the "Notes". Principal on the Notes shall be
payable as set forth in the Notes.
3.02 INTEREST RATES. The Notes shall bear interest prior to maturity at
a rate per annum equal to One and Seventy five hundredths percent (1.75%) over
and above the LIBOR Rate in effect from time to time during the period when the
Notes are outstanding, with changes in the interest rate taking effect on the
first (1st) day of each month commencing January 1, 2000. From and after the
maturity of the Notes, whether by reason of acceleration or otherwise, the
entire unpaid principal balance of the Notes shall bear interest until paid at a
rate per annum equal to four percent (4%) over and above the LIBOR Rate,
fluctuating as aforesaid. Interest shall be computed with respect to the Note on
an actual day, 360-day year basis.
3.03 PREPAYMENT. Borrower shall be privileged to prepay all at any time
or any portion from time to time of the unpaid principal of the Notes prior to
maturity, without penalty or premium, provided that: (i) partial prepayments
shall be applied to the installments of principal of the Note prepaid in the
inverse order of their stated maturities; (ii) on each prepayment date, Borrower
shall pay to Lender all accrued interest on the principal portion
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of the Note being prepaid to and including the date of such prepayment; (iii) no
Default or Event of Default under this Agreement shall have occurred and be
continuing; and (iv) partial prepayments shall be in an integral multiple of One
Thousand and 00/100 Dollars ($1,000.00).
3.04 PAYMENTS NOT ON A BUSINESS DAY. In case any installment of
principal or interest under the Note shall become due on a day which is not a
Business Day, such principal and interest shall be payable on the next
succeeding Business Day.
3.05 PLACE OF PAYMENT. Both principal and interest under the Notes are
payable to Lender in lawful currency of the United States of America or other
immediately available funds at Lender's banking office at 4700 W. 50th Place,
Roeland Park, Kansas 66205 or at such other location as Lender may from time to
time designate in writing to Borrower.
3.06 ADVANCES UNDER REVOLVING LOAN. Lender's obligation to make
advances under the Revolving Promissory Note for future acquisitions of state or
federally chartered banks and/or bank holding companies shall be subject to (a)
Lender's approval of the entity to be acquired if the acquisition price is in
excess of $6,000,000.00; (b) the acquired entity's compliance with all
requirements applicable to the Subsidiary Banks contained in this Agreement, and
(c) delivery of all documents and items required by Lender, including, without
limitation, a modification to the Pledge Agreement and all shares of the capital
stock of the acquired entity. Upon completion of any such acquisition, the
acquired entity shall be considered a Subsidiary Bank under this Agreement.
SECTION 4. PRECONDITIONS TO LOANS
Notwithstanding any provision contained herein to the contrary, Lender
shall have no obligation to make the Loans hereunder unless the following
conditions shall have first been met:
1. Lender shall have received this Agreement and the Notes, each
executed by a duly authorized officer of Borrower;
2. Lender shall have received the duly executed Pledge Agreement,
collateral schedules, stock powers and such other documents as Lender may
require in connection with the Pledge Agreement;
3. Lender shall have received from Team Acquisition 100,000 shares of
TeamBank, N.A., 70,000 shares of Iola Bank and Trust Company, and 18,000 shares
of The First National Bank of Parsons, the common stock of existing Subsidiary
Banks representing at least 100% of the issued and outstanding common stock of
such Subsidiary Banks (as verified by the Secretary of Subsidiary Banks), said
shares to be issued in Team Acquisition's name and accompanied by stock powers
duly executed in blank by an authorized officer of Team Acquisition;
4. Lender shall have received a Federal Reserve Form U-1, executed by a
duly authorized officer of Borrower;
5. Lender shall have received a copy of resolutions of the Board of
Directors of Borrower and Team Acquisition, duly adopted, which authorize the
execution, delivery and performance of this Agreement, the Notes, the Pledge
Agreement and the other Transaction Documents to be delivered by Borrower and
Team Acquisition, certified by the Secretary of Borrower or Team Acquisition, as
applicable;
6. Lender shall have received copies of the Certificates or Articles of
Incorporation of Borrower and Team Acquisition, including any amendments
thereto, certified in each case by the Secretary of State of the State of
Kansas.
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7. Lender shall have received copies of the By-Laws of Borrower and
Team Acquisition, including any amendments thereto, certified by the Secretary
of Borrower and Team Acquisition, as applicable;
8. Lender shall have received incumbency certificates, executed by the
Secretary of Borrower and the Secretary of Team Acquisition, which shall
identify by name and title and bear the signatures of all of the officers of
Borrower and Team Acquisition, as applicable, executing any of the Transaction
Documents;
9. Lender shall have received certificates of corporate good standing
for Borrower and Team Acquisition issued in each case by the Secretary of State
of the State of Kansas;
10. Lender shall have received the opinion of Hartley, Nicholson &
Hartley, P.A. counsel for Borrower and Team Acquisition, attached hereto and
made a part hereof as EXHIBIT D;
11. No material adverse change in the financial condition of Borrower,
or any Obligor or any of the Subsidiary Banks shall have occurred since
September 30, 1999;
12. No pending or threatened litigation or other proceeding or
investigation shall exist which might materially and adversely affect the
prospects, operation or condition (financial or otherwise) of Borrower, any
Obligor or any of the Subsidiary Banks;
13. Neither Borrower, any Obligor nor any of the Subsidiary Banks shall
have defaulted, or shall have taken or failed to take any action which, unless
corrected, would give rise to a default, on any of their Indebtedness, and
14. Lender shall have first received such other agreements, documents,
instruments, certificates and assurances as Lender may reasonably request.
SECTION 5. AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that, so long as any of its Obligations
are outstanding, it will:
5.01 INSURANCE. Keep adequately insured, and cause any Obligor and each
of the Subsidiary Banks to keep adequately insured, by financially sound and
reputable insurers acceptable to Lender and in amounts reasonably acceptable to
Lender, all Property of Borrower, any Obligor and the Subsidiary Banks of the
character usually insured by corporations engaged in the same or similar
businesses similarly situated, against loss or damage of the kind customarily
insured against by such corporations and acceptable to Lender, and (b) cause
each of the Subsidiary Banks to maintain coverage under a banker's blanket bond
in an amount equal to the greater of the amount of coverage currently maintained
by such Subsidiary Bank or the minimum coverage recommended by the American
Banker's Association, plus such excess fidelity coverage as Lender may
reasonably request from time to time.
Promptly after Lender's request there for, Borrower shall provide
Lender with evidence that Borrower maintains, and that each of the Subsidiary
Banks maintain, the insurance required under this section 5.01, and evidence of
the payment of all premiums therefor.
5.02 PAYMENT OF TAXES. Duly file, and cause any Obligor and each of the
Subsidiary Banks to duly file, all Federal, state and local income tax returns
and all other tax returns and reports of Borrower, such Obligor or such
Subsidiary Bank, as the case may be, which are required to be filed; and pay,
and cause any Obligor and each of the
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Subsidiary Banks to pay, when due, all taxes and governmental charges assessed
against or upon them, as the case may be, or upon their respective Properties,
assets, income or franchises.
5.03 FINANCIAL DATA. Deliver to Lender:
(a) As soon as practicable and in any event within thirty (45) days
after the end of each fiscal quarter of Borrower (other than the last fiscal
quarter of each fiscal year of Borrower) an unaudited consolidated statement of
earnings and retained earnings of Borrower and its Consolidated Subsidiaries for
the period from the beginning of the current fiscal year to the end of such
fiscal quarter (10Q), and an unaudited consolidated balance sheet of Borrower
and its Consolidated Subsidiaries as at the end of such fiscal quarter, setting
forth in each case in comparative form figures for the corresponding period in
the preceding fiscal year, all in reasonable detail and certified to Lender by
the principal financial officer of Borrower, subject to changes resulting from
normal year-end adjustments; all such statements to be prepared in accordance
with generally accepted accounting principles consistently applied;
(b) As soon as practicable and in any event within ninety (90) days
after the end of each fiscal year of Borrower, consolidated and consolidating
statements of earnings and retained earnings of Borrower and its Consolidated
Subsidiaries for such year, consolidated and consolidating statements of cash
flow of Borrower and its Consolidated Subsidiaries for such year, and
consolidated and consolidating balance sheets of Borrower and its Consolidated
Subsidiaries as at the end of such year, setting forth in each case in
comparative form corresponding figures from the preceding fiscal year, all such
statements to be prepared in accordance with generally accepted accounting
principles consistently applied and reported on and accompanied by the
unqualified opinion of independent certified public accountants selected by
Borrower and acceptable to Lender together with (i) a certificate from such
accountants to the effect that, in making the examination necessary for the
signing of such annual audit report, such accountants have not become aware of
any Default or Event of Default that has occurred and is continuing, or, if such
accountants have become aware of any such event, describing it and the steps, if
any, being taken to cure it and (ii) the computations of such accountants
evidencing Borrower's compliance with the financial covenants contained in this
Agreement;
(c) Contemporaneously with the delivery of the financial statements
pursuant to Sections 5.03(a) and (b) hereof, a certificate in substantially the
form of that attached hereto and made a part hereof as EXHIBIT E (with
appropriate insertions), executed by the principal financial officer of
Borrower;
(d) Promptly after filing with any Regulatory Agency, and in any event
within ten (10) days after the filing thereof, copies of all financial
statements, reports, filings and other documents which Borrower, any Obligor or
any of the Subsidiary Banks shall file with any Regulatory Agency; and
(e) With reasonable promptness, such other financial information and
data as Lender may from time to time reasonably request.
Lender is hereby authorized to deliver a copy of any financial
statement or other information made available by Borrower, any Obligor or any of
the Subsidiary Banks to any regulatory authority having jurisdiction over
Lender, pursuant to any request there for with proper notification to Borrower.
5.04 MAINTENANCE OF PROPERTY. Maintain, and cause each of the
Subsidiary Banks to maintain, all Property, plants and equipment (except
obsolete equipment) of Borrower and the Subsidiary Banks in good operating
order, and from time to time make, and cause each of the Subsidiary Banks to
make, all needful and proper repairs, renewals, replacements, additions,
betterments and improvements thereto so that at all times the efficiency thereof
shall be fully preserved and maintained.
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5.05 INSPECTION. Permit, and cause any Obligor and each of the
Subsidiary Banks to permit, any person designated by Lender to visit, inspect
and audit any of the Properties, corporate books, loan documentation, loan
portfolios, loan files and financial records of Borrower, each Obligor and each
of the Subsidiary Banks and to discuss the affairs, finances and accounts of
Borrower, each Obligor and each of the Subsidiary Banks with the principal
officers of Borrower, each Obligor and each of the Subsidiary Banks, all at such
reasonable times and as often as Lender may reasonably request.
5.06 CORPORATE EXISTENCE. Do or cause to be done all things necessary
to (a) preserve and keep in full force and effect the corporate existence,
rights and franchises of itself, each Obligor and each of the Subsidiary Banks,
(b) duly qualify itself, each Obligor and each of the Subsidiary Banks to do
business in all jurisdictions where the nature of Property owned or leased by
them or the nature of the business of them requires such qualification, (c)
maintain its status as a "bank holding company" under and within the meaning of
12 U.S.C. Section 1841 ET seq., (d) cause each of the Subsidiary Banks to
preserve and keep in full force and effect its existence, franchise and right to
do business as a state bank or national bank, as the case may be, under the laws
of the jurisdiction of its incorporation, and (e) maintain each of the
Subsidiary Banks' status as an "insured bank" as defined in, or within the
meaning of, 12 U.S.C. Section 1813, and to otherwise maintain each of the
Subsidiary Banks' eligibility for federal deposit insurance.
5.07 COMPLIANCE WITH LAW. Comply with, and cause, any Obligor and each
of the Subsidiary Banks to comply with, any and all laws, ordinances and
governmental and regulatory rules and regulations to which it or they are
subject; and obtain, and cause, any Obligor and each of the Subsidiary Banks to
obtain, any and all licenses, permits, franchises and other governmental and
regulatory authorizations necessary to the ownership of the Properties of itself
or such Obligor or Subsidiary Bank, or to the conduct of the business of itself
or such Subsidiary Bank, which violation or failure to obtain might materially
adversely affect the business, prospects, profits, Properties or condition
(financial or otherwise) of Borrower or such Obligor or Subsidiary Bank.
5.08 ERISA COMPLIANCE. If Borrower or any of the Subsidiary Banks shall
have, or in the future create, any Pension Plan, Borrower shall comply with, and
shall cause such Subsidiary Banks to comply with, all requirements of ERISA
relating to such plan. Without limiting the generality of the foregoing,
Borrower will not: (a) permit, or cause or allow any of the Subsidiary Banks to
permit, any Pension Plan maintained by it or such Subsidiary Bank, as the case
may be, to engage in any nonexempt "prohibited transaction", as such term is
defined in section 4975 of the Internal Revenue Code of 1986, as amended; (b)
permit, or cause or allow any of the Subsidiary Banks to permit, any Pension
Plan maintained by it or such Subsidiary Bank, as the case may be, to incur any
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA, 29 U.S.C. Section 1082, whether or not waived; (c) terminate, or cause or
allow any of the Subsidiary Banks to terminate, any such Pension Plan in a
manner which could result in the imposition of a Lien on the Property of
Borrower or such Subsidiary Bank, as the case may be, pursuant to section 4068
of ERISA, 29 U.S.C. Section 1368; or (d) take, or cause or allow any of the
Subsidiary Banks to take, any action which would constitute or give rise to a
complete or partial withdrawal from a multi-employer plan within the meaning of
Sections 4203 and 4205 of Title IV of ERISA.
Notwithstanding any provision contained in this Section 5.08 to the
contrary, an act by the Borrower or any of the Subsidiary Banks shall not be
deemed to constitute a violation of subparagraphs (a)through (d) hereof unless
Lender determines in good faith that said action, individually or cumulatively
with other acts of the Borrower and the Subsidiary Banks, does have or is likely
to cause a significant adverse financial effect upon Borrower or any of the
Subsidiary Banks.
Borrower shall have the affirmative obligation hereunder to report to
Lender any of those acts identified in subparagraphs (a) through (d) hereof,
regardless of whether said act does or is likely to cause a significant adverse
<PAGE>
financial effect upon the Borrower or any of the Subsidiary Banks, and failure
by Borrower to report such act promptly upon Borrower's becoming aware of the
existence thereof shall constitute an Event of Default hereunder.
5.09 EQUITY CAPITAL FLOOR. Cause each of the Subsidiary Banks to
maintain at all times during the Term of this Agreement Equity Capital in an
amount which equals or exceeds the amount of Equity Capital required, directly
or indirectly, of such Subsidiary Bank by or by reason of any law, regulation,
rule or order of any Regulatory Agency having jurisdiction over Borrower, Team
Acquisition or such Subsidiary Bank (whether such law, regulation, rule or order
deals with Equity Capital as herein defined or with some other capital
definition), all as determined in accordance with generally accepted accounting
principles consistently applied.
5.10 RATIO OF TANGIBLE EQUITY CAPITAL TO AVERAGE QUARTERLY ASSETS.
Cause each of the Subsidiary Banks to maintain at all times during the Term of
this Agreement a ratio of total Equity Capital divided by average quarterly
assets, determined in accordance with generally accepted accounting principles
consistently applied, which equals or exceeds the greater of (a) Six and One
Half Percent (6.5%) or (b) the percentage required to be maintained by such
Subsidiary Bank by or by reason of any law, regulation, rule or order of any
Regulatory Agency having jurisdiction over Borrower or such Subsidiary Bank. If
any Regulatory Agency having jurisdiction over Borrower or any of the Subsidiary
Banks hereafter employ at any time or from time to time measurements of capital
other than Equity Capital as a percentage of total tangible assets, then
Borrower will, and will cause each of the Subsidiary Banks to, comply with such
capital guidelines or requirements then in effect in addition to, and not in
lieu of, the Equity Capital to average quarterly assets ratio described above
and the other covenants in this Agreement.
5.11 RISK-BASED CAPITAL ADEQUACY GUIDELINES. Comply with, and cause
each of the Subsidiary Banks to comply with, the risk-based capital adequacy
guidelines set forth in Appendix A to Regulation Y of The Board of Governors of
the Federal Reserve System, as from time to time amended, or in any successor
law, rule or regulation of similar import.
5.12 TOTAL LOAN AND LEASE LOSS RESERVE. On a consolidated basis, cause
the Subsidiary Banks to maintain at all times during the Term of this Agreement
an allowance for possible loan and lease losses in an amount which equals or
exceeds the greater of: (a) One Percent (1.0%) of the average quarterly total
loans of such Subsidiary Bank, (b) the amount determined under generally
accepted accounting principles consistently applied or (c) the amount required
by or by reason of any law, regulation, rule or order of any Regulatory Agency
having jurisdiction over Borrower or such Subsidiary Bank
5.13 RATIO OF NET INCOME TO TOTAL ASSETS. On a consolidated basis,
cause the Subsidiary Banks to maintain for each calendar year ending during the
Term of this Agreement a ratio of Net Income for such calendar year to average
total assets during such calendar year of at least 80/100 Percent (.80%).
5.14 STOCKHOLDER'S EQUITY. Maintain at all times during the Term of
this Agreement Equity Capital of at least $30,000,000.00.
5.15 DEBT SERVICE COVERAGE RATIO. Maintain at all times during the term
of this Agreement a Debt Service Coverage Ratio not less than 1.50.
5.16 CAMEL RATING. Cause each of the Subsidiary Banks to maintain at
all times during the term of this Agreement a CAMEL rating of 1 or 2.
<PAGE>
5.17 NOTICES. Notify Lender in writing of any of the following
immediately upon learning of the occurrence thereof, describing the same and, if
applicable, the steps being taken by the Person(s) affected with respect
thereto:
(a) DEFAULT. The occurrence of any Default or Event of Default under
this Agreement or any default or event of default by Borrower, any other Obligor
or any of the Subsidiary Banks under any note, indenture, loan agreement,
mortgage, deed of trust, security agreement, lease or other similar agreement,
document or instrument to which Borrower, any other Obligor or any of the
Subsidiary Banks, as the case may be, is a party or by which it is bound or to
which it is subject;
(b) LITIGATION. The institution of any material litigation, arbitration
proceeding or governmental or regulatory proceeding affecting Borrower, any
other Obligor, any of the Subsidiary Banks, any Collateral or any Third Party
Collateral, whether or not considered to be covered by insurance;
(c) JUDGMENT. The entry of any judgment or decree against Borrower, any
other Obligor or any of the Subsidiary Banks;
(d) CHANGE OF NAME. Any change in the name of Borrower or any Obligor;
(e) CHANGE IN PLACE(S) OF BUSINESS. Any proposed opening, closing or
other change of any place of business of Borrower or any of the Subsidiary
Banks;
(f) ENVIRONMENTAL MATTERS. Receipt of any notice that the operations of
Borrower, any other Obligor or any of the Subsidiary Banks are not in full
compliance with any of the requirements of any applicable Federal, state or
local environmental, health or safety law, rule or regulation; receipt of notice
that Borrower, any other Obligor or any of the Subsidiary Banks is subject to
any federal, state or local investigation evaluating whether any remedial action
is needed to respond to the release of any hazardous or toxic waste, substance
or constituent or other substance into the environment; or receipt of notice
that any of the Properties or assets of Borrower, any other Obligor or any of
the Subsidiary Banks are subject to an "Environmental Lien". For purposes of
this Section 5.17(f), "Environmental Lien" shall mean a Lien in favor of any
governmental or regulatory agency, entity, authority or official for (1) any
liability under Federal, state or local environmental laws, rules or regulations
or (2) damages arising from or costs incurred by any such governmental or
regulatory agency, entity, authority or official in response to a release of a
hazardous or toxic waste, substance or constituent or other substance into the
environment;
(g) MATERIAL ADVERSE CHANGE. The occurrence of any material adverse
change in the business, operations or condition, financial or otherwise, of
Borrower, any other Obligor or any of the Subsidiary Banks; and
(h) REGULATORY MATTERS. The issuance of any Cease and Desist Order
against Borrower, any Obligor or any of the Subsidiary Banks by any Regulatory
Agency and/or the entry of any Memorandum of Understanding or other agreement
between Borrower, any Obligor or any of the Subsidiary Banks and any Regulatory
Agency, regardless of whether the same is voluntary or involuntary.
5.18 UTILIZATION OF LOAN PROCEEDS. Utilize the proceeds of the Loan
immediately upon advancement thereof solely to refinance existing debt, make
future bank acquisitions, contribute capital to Subsidiary Banks and for general
corporate purposes.
<PAGE>
SECTION 6. NEGATIVE COVENANTS.
Borrower covenants and agrees that, as long as any of its Obligations
are outstanding, it will not, and it will not cause or permit any Obligor or any
of the Subsidiary Banks to, without the prior written consent of Lender which
consent will not be unreasonably withheld:
6.01 INDEBTEDNESS. Create or incur any Indebtedness except (a) to
Lender and (b) Indebtedness of the Subsidiary Banks to creditors in the ordinary
course of its banking business.
6.02 MERGER OR CONSOLIDATION, ETC. Merge into or consolidate with any
other entity, or cause or permit any material change in the ownership of
Borrower or any Obligor or the identity of the Borrower's executive officers
(Robert Weatherbie and Michael Gibson)(except for changes necessitated by death,
incapacity, natural retirement or similar causes).
6.03 SALE OF PROPERTY. Sell, lease, transfer or otherwise dispose of
any Property or assets of Borrower, Team Acquisition or any of the Subsidiary
Banks, as the case may be, except in the ordinary course of business; provided,
however, that the foregoing shall not preclude Borrower, Team Acquisition or any
of the Subsidiary Banks from selling, leasing, transferring or otherwise
disposing of less than substantially all of its assets so long as the purchase
price for said assets shall be equal to or greater than the depreciated book
value of said assets.
6.04 DISTRIBUTIONS. Declare or incur any liability to make any
Distribution in respect of the capital stock of Borrower or the capital stock of
any of the Subsidiary Banks, except that (a) the Subsidiary Banks shall be
permitted to pay cash dividends to Borrower to the extent necessary to pay
Borrower's Obligations then due and payable to Lender and which are actually
applied toward payment of the Borrower's Obligations and (b) so long as no
Default or Event of Default under this Agreement has occurred and is continuing
or is created thereby, (i) Borrower shall be permitted to declare and pay cash
dividends on its capital stock in an aggregate amount of up to fifty percent
(50%) of Net Income during each calendar year ending during the Term of this
Agreement and (ii) the Subsidiary Banks shall be permitted to declare and pay
cash dividends on their respective capital stock in an aggregate amount of up to
One Hundred Percent (100%) of Net Income for all of the Subsidiary Banks on a
combined basis during each calendar year ending during the Term of this
Agreement.
6.05 ISSUANCE OF STOCK, ETC. Authorize or issue any new types,
varieties or classes of capital stock of any of the Subsidiary Banks, either
preferred or common, voting or nonvoting, or any bonds or debentures,
subordinated or otherwise, or any stock warrants or options, or authorize or
issue any additional shares of stock of any existing lass of stock of any of the
Subsidiary Banks, or grant any person other than Lender any proxy for existing
shares, or cause or allow or declare any stock splits or take any other action
which could, directly or indirectly, decrease Borrower's ownership interest in
any of the Subsidiary Banks.
6.06 CAPITAL EXPENDITURES. Make any capital expenditures or enter into
any Capitalized Leases, except that Borrower and the Subsidiary Banks may make
capital expenditures and enter into Capitalized Leases, which capital
expenditures and Capitalized Leases do not exceed Three Million and 00/100
Dollars ($3,000,000.00) in the aggregate for Borrower and all of the Subsidiary
Banks on a combined basis during any consecutive twelve (12) month period during
the Term of this Agreement.
6.07 DEFAULT. Allow to occur, or to continue unremedied, any act, event
or condition which constitutes an event of default, or which, with the passage
of time or giving of notice, or both, would constitute an event of default
under, any agreement, document or instrument to which Borrower or any of the
Subsidiary Banks is a party or by which Borrower or any of the Subsidiary Banks
may be bound.
6.08 INVESTMENTS. Make any advances or loans or extensions of credit
to, purchase any stock, bonds, notes, debentures or other securities of, make
any expenditures on behalf of or in any manner assume liability (direct,
<PAGE>
contingent or otherwise) for the Indebtedness of, any Person, except (a) such
Guarantees, loans, advances and/or investments made by the Subsidiary Banks in
the ordinary course of their banking business, (b) loans or advances from
Borrower to any of the Subsidiary Banks, (c) investments in certificates of
deposit, repurchase agreements or other short-term direct obligations of any
commercial bank located in the United States of America having capital resources
in excess of $10,000,000.00 (provided, however, that such certificates of
deposit, repurchase agreements and/or other short-term direct obligations shall
mature not more than one (1) year from the date of acquisition thereof), (d)
investments in obligations of the United States government or any agency thereof
which are backed by the full faith and credit of the United States (provided,
however, that such obligations shall mature not more than one (1) year from the
date of acquisition thereof) and (e) shares of stock, obligations and/or other
securities received in settlement of claims arising in the ordinary course of
business.
6.09 LIENS. Create, incur, assume, permit the imposition of or allow
the continuance of any Lien on any of the Property of Borrower or any of the
Subsidiary Banks, except for (i) Liens securing government deposits at the
Subsidiary Banks, (ii) Liens on Property or assets which secure loans or other
extensions of credit made by the Subsidiary Banks, (iii) Liens on Property or
assets acquired by any of the Subsidiary Banks by foreclosure or by deed in lieu
of foreclosure and (iv) the Liens listed on schedule 7.11 attached hereto.
6.10 SUBSIDIARIES AND RELATED COMPANIES. (i) Transfer any Property to
any Related Party, (ii) purchase or sign any agreement to purchase any
securities of any Related Party (whether debt, equity or otherwise), underwrite
or Guarantee the same, or otherwise become obligated with respect thereto, or
(iii) take any other action or permit any action to be taken with respect to any
Related Party which would jeopardize either Borrower's ability to repay the
Loan, or any portion thereof, as the same becomes due and payable, or the
security given to Lender with respect to the Loan.
6.11 USE OF PROCEEDS. Use or permit any proceeds of the Loan to be used
either directly or indirectly for the purpose (whether immediate, incidental or
ultimate) of "purchasing or carrying any margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, as from
time to time amended.
6.12 INSIDER LOANS. Allow, cause or permit, at any time, the total
amount of Indebtedness of Insiders to any of the Subsidiary Banks then
outstanding plus the then outstanding total amount of participations of
Controlled Banks in Indebtedness of which such Subsidiary Bank is a party,
participant or agent, to equal or exceed any maximum amount then established by
any Regulatory Agency having jurisdiction over Borrower or such Subsidiary Bank,
or by applicable law, regulation, rule or order.
6.13 NON-PERFORMING ASSETS. Permit the aggregate amount of
Non-Performing Assets of any of the Subsidiary Banks to equal or exceed Twenty
Percent (20%) of the then Primary Capital of such Subsidiary Bank at any time
during the Term of this Agreement.
6.14 NATURE OF BUSINESS. Conduct or engage in any business if, as a
result thereof, the general nature of the business which would thereafter be
engaged in by Borrower or any of the Subsidiary Banks, as the case may be, would
be substantially changed from the general nature of the business engaged in as
allowed by law.
6.15 OTHER AGREEMENTS. Enter into any agreement containing any
provision which would be violated or breached by the performance of its
obligations hereunder or under any instrument or document delivered or to be
delivered by it hereunder or in connection herewith.
6.16 SALE AND LEASEBACK. Enter into or allow any of the Subsidiary
Banks to enter into any sale and leaseback of any Property.
<PAGE>
6.17 MANAGEMENT AND EMPLOYMENT CONTRACTS. Allow any of the Subsidiary
Banks to enter into any management agreement or employment contract or any other
similar contract or agreement providing for total compensation in excess of
Three Hundred Thousand and 00/100 Dollars ($300,000.00) during any consecutive
twelve (12) month period during the Term of this Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
To induce Lender to make the Loan, Borrower hereby represents and
warrants to Lender that:
7.01 CORPORATE EXISTENCE AND POWER. Borrower, Team Acquisition and each
of the Subsidiary Banks: (a) is duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation; (b) has all
requisite corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted; and
(c) is duly qualified to do business in all jurisdictions in which the nature of
the business conducted by it makes such qualification necessary and where
failure to so qualify would have a material adverse effect on its business,
financial condition or operations. Borrower is a "bank holding company" as
defined in and within the meaning of 12 U.S.C. Section 1841 ET SEQ., and as such
Borrower has filed all necessary reports with and received all necessary
approvals from The Board of Governors of the Federal Reserve System. Each of the
Subsidiary Banks is an "insured bank" as defined in and within the meaning of 12
U.S.C. Section 1813.
7.02 CORPORATE AUTHORIZATION. The execution, delivery and performance
by Borrower and Team Acquisition of this Agreement, the Notes, the Pledge
Agreement and the other Transaction Documents are within the corporate powers of
Borrower and Team Acquisition and have been duly authorized by all necessary
corporate action.
7.03 BINDING EFFECT. This Agreement, the Notes, the Pledge Agreement
and the other Transaction Documents have been duly authorized, executed and
delivered and constitute the legal, valid and binding obligations of Borrower
and Team Acquisition enforceable in accordance with their respective terms,
except as such enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights in general.
7.04 FINANCIAL STATEMENTS. Borrower has furnished Lender with the
following financial statements, identified by the principal financial officer of
Borrower: (1) consolidated and consolidating balance sheets and profit and loss
statements of Borrower and its Consolidated Subsidiaries as of December 31,
1998, all certified by Borrower's independent certified public accountants,
which financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied; and (2) an unaudited
consolidated balance sheet and profit and loss statement of Borrower and its
Consolidated Subsidiaries as of September 30,1999, certified by the principal
financial officer of Borrower as being true and correct to the best of his
knowledge and as being prepared in accordance with Borrower's normal accounting
procedures. Borrower further represents that: (1) said balance sheets and their
accompanying notes fairly present the condition of Borrower and its Consolidated
Subsidiaries as of the dates thereof, (2) there has been no material adverse
change in the condition or operation, financial or otherwise, of Borrower or any
of its Consolidated Subsidiaries since September 30, 1999, and (3) neither
Borrower nor any of its Consolidated subsidiaries has any direct or contingent
liabilities which are not disclosed on said financial statements.
7.05 LITIGATION. Except as disclosed in Schedule 7.05, there is no
action or proceeding pending or, to the knowledge of Borrower, threatened
against or affecting Borrower, any Obligor or any of the Subsidiary Banks before
any court, arbitrator or governmental, regulatory or administrative body, agency
or official which could result in any material adverse change in the condition
or operation, financial or otherwise, of Borrower, any Obligor or any of the
Subsidiary Banks, and neither Borrower nor any Obligor or any of the Subsidiary
Banks is in default
<PAGE>
with respect to any order, writ, injunction, decision or decree of any court,
arbitrator or governmental, regulatory or administrative body, agency or
official which could have a material adverse effect on Borrower, any Obligor or
any of the Subsidiary Banks.
7.06 PENSION AND WELFARE PLANS. Each Pension Plan complies with all
applicable statutes and governmental rules and regulations; no Reportable Event
has occurred and is continuing with respect to any Pension Plan; neither the
Borrower nor any ERISA Affiliate nor any of the Subsidiary Banks has withdrawn
from any Multiemployer Plan in a "complete withdrawal" or a "partial withdrawal"
as defined in sections 4203 or 4205 of ERISA, respectively; no steps have been
instituted by Borrower, any ERISA Affiliate or any of the Subsidiary Banks to
terminate any Pension Plan; no condition exists or event or transaction has
occurred in connection with any pension plan or multiemployer Plan which could
result in the incurrence by Borrower, any ERISA Affiliate or any of the
Subsidiary Banks of any material liability, fine or penalty; and neither the
Borrower nor any ERISA Affiliate nor any of the Subsidiary Banks is a
"contributing sponsor" as defined in Section 4001(a) (13) of ERISA of a
"single-employer plan" as defined in Section 4001(a) (15) of ERISA which has two
or more contributing sponsors at least two of whom are not under common control.
Neither the Borrower nor any of the Subsidiary Banks has any contingent
liability with respect to any "employee welfare benefit plans", as such term is
defined in Section 3(a) of ERISA, which covers retired employees and their
beneficiaries.
7.07 TAX RETURNS AND PARENT. Borrower and each of the Subsidiary Banks
has filed all Federal, state and local income tax returns and all other tax
returns which are required to be filed and has paid all taxes due pursuant to
such returns or pursuant to any assessment received by Borrower or such
Subsidiary Bank, except for the filing of such returns, if any, in respect of
which an extension of time for filing is in effect.
7.08 SUBSIDIARIES. Borrower has the following Subsidiaries: Team
Financial Acquisition Subsidiary, Inc., a Kansas corporation.
7.09 COMPLIANCE WITH OTHER INSTRUMENTS; NONE BURDENSOME. None of the
execution and delivery by Borrower of the Transaction Documents, the
consummation of the transactions therein contemplated or the compliance with the
provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on Borrower or any of the
Subsidiary Banks, or any of the provisions of Borrower's Articles or Certificate
of Incorporation or By-Laws or any of the provisions of any indenture,
agreement, document, instrument or undertaking to which Borrower or any of the
Subsidiary Banks is a party or subject, or by which it or its Property is bound.
No order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, the exemption by, any governmental, regulatory,
administrative or public body or authority, or any subdivision thereof, is
required to authorize, or is otherwise required in connection with, the
execution, delivery or performance of, or the legality, validity, binding effect
or enforceability of, any of the Transaction Documents.
7.10 OTHER LOANS AND GUARANTEES. Except as disclosed on Schedule 7.10
attached hereto, neither Borrower nor any of the Subsidiary Banks is borrower,
guarantor or obligor with respect to any loan transaction, Guarantee or other
indebtedness for borrowed money (excluding equipment leases).
7.11 TITLE TO PROPERTY. Borrower and each of the Subsidiary Banks is
the sole and absolute owner of, or has the legal right to use and occupy, all
Property it claims to own or which is necessary for Borrower or such Subsidiary
Bank to conduct its business. Neither Borrower nor any Obligor or the Subsidiary
Banks has signed any financing statements, security agreements or chattel
mortgages with respect to any of its Property, has granted or permitted any
Liens with respect to any of its Property or has any knowledge of any Liens with
respect to any of its Property, except as disclosed on Schedule 7.11 attached
hereto.
<PAGE>
7.12 REGULATION U. No part of the proceeds of the Loan will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately (i) to purchase or carry margin stock or to extend credit to others
for the purpose of purchasing or carrying margin stock, or to refund or repay
indebtedness originally incurred for such purpose or (ii) for any purpose which
entails a violation of, or which is inconsistent with, the provisions of the
Regulations of The Board of Governors of the Federal Reserve System, including,
without limitation, Regulations G, U, T or X thereof, as amended. If requested
by Lender, Borrower shall furnish to Lender a statement in conformity with the
requirements of Federal Reserve Form U1 referred to in Regulation U.
7.13 ENVIRONMENTAL MATTERS. There are no disputes pending (nor, to the
knowledge of Borrower, are there any disputes threatened nor, to the knowledge
of Borrower, is there any basis therefor) affecting Borrower or any of the
Subsidiary Banks, whether or not in or before any court or arbitrator of any
kind or involving any governmental or regulatory body, which, if adversely
determined could, singly or in the aggregate, have a material adverse effect on
the business, Properties, assets, liabilities, financial condition, results of
operations or business prospects of Borrower or any of the Subsidiary Banks or
on the ability of Borrower to perform its obligations hereunder or under the
Note or any of the other Transaction Documents, relating to environmental
matters, including, without limitation, any notice from any agency, state or
Federal, that Borrower or any of the Subsidiary Banks is a potentially
responsible party for the cleanup of any environmental waste site, that Borrower
or any of the Subsidiary Banks is in violation of any environmental permit or
regulation, that Borrower or any of the Subsidiary Banks has been placed on any
registry of solid or hazardous waste disposal sites, or of the expiration,
revocation or denial of any environmental permit or other loss of interim status
or other current authorization to operate any unit or portion of the facilities
of Borrower or any of the Subsidiary Banks.
SECTION 8. EVENTS OF DEFAULT.
If any of the following ("Events of Default") shall occur and be
continuing:
8.01 Borrower shall fail to pay any of Borrower's Obligations as and
when the same shall become due and payable, whether by reason of demand,
acceleration or otherwise;
8.02 Any representation or warranty of Borrower made in this Agreement
or in any of the other Transaction Documents or in any certificate, agreement,
instrument or statement furnished or made or delivered pursuant hereto or
thereto or in connection herewith or therewith, shall prove to have been untrue
or incorrect in any material respect when made or effected;
8.03 Borrower shall fail to perform or observe any term, covenant or
provision contained in Sections 5 or Section 6 hereof;
8.04 Borrower shall fail to perform or observe any other term, covenant
or provision contained in this Agreement and any such failure remains unremedied
for thirty (30) days after written notice thereof shall have been given to
Borrower by Lender;
8.05 This Agreement or any of the other Transaction Documents shall at
any time for any reason cease to be in full force and effect or shall be
declared to be null and void by a court of competent jurisdiction, or if the
validity or enforceability hereof or thereof shall be contested or denied by
Borrower, or any Obligor, or if Borrower, or any Obligor shall deny that it has
any further liability or obligation hereunder or thereunder or if Borrower, or
any Obligor shall fail to comply with or observe any of the terms, provisions or
conditions contained in any of the Transaction Documents (other than this
Agreement);
<PAGE>
8.06 An "Event of Default" (as defined therein) shall occur under or
within the meaning of the Pledge Agreement;
8.07 Borrower, any of the Subsidiary Banks or any other Obligor shall
(i) voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code or any other Federal, state or foreign
bankruptcy, insolvency, receivership, liquidation or similar law, (ii) consent
to the institution of, or fail to contravene in a timely and appropriate manner,
any such proceeding or the filing of any such petition, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator or
similar official of itself, himself or herself or of a substantial part of its,
his or her Property or assets, (iv) file an answer admitting the material
allegations of a petition filed against itself, himself or herself in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its, his or her inability or fail generally to
pay its, his or her debts as they become due, (vii) become insolvent in either
the equity or bankruptcy sense of the term or (viii) take any corporate or other
action for the purpose of effecting any of the foregoing;
8.08 An involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Borrower, any of the Subsidiary Banks or any other Obligor, or of
a substantial part of the property or assets of Borrower, any of the Subsidiary
Banks or any other Obligor, under Title 11 of the United States Code or any
other Federal, state or foreign bankruptcy, insolvency, receivership,
liquidation or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator or similar official of Borrower, any of the Subsidiary
Banks or any other Obligor or of a substantial part of the Property or assets of
Borrower, any of the Subsidiary Banks or any other Obligor or (iii) the
winding-up or liquidation of Borrower, any of the Subsidiary Banks or any other
Obligor; and any such proceeding or petition shall continue undismissed for
sixty (60) consecutive days or an order or decree approving or ordering any of
the foregoing shall continue unstayed and in effect for sixty (60) consecutive
days;
8.09 Any of the Subsidiary Banks shall be placed in receivership by any
Regulatory Agency;
8.10 Any Regulatory Agency shall notify any of the Subsidiary Banks
that its capital has been impaired;
8.11 Any of the Subsidiary Banks shall cease to be an "insured bank"
under or within the meaning of the Federal Deposit Insurance Act of 1959, as
amended, or a Cease and Desist Order, Memorandum of Understanding or other
agreement shall be issued by any Regulatory Authority against or affecting
Borrower or any of the Subsidiary Banks which (in Lender's opinion) has or could
have a material adverse affect on the business, operation or condition,
financial or otherwise, of Borrower or any of the Subsidiary Banks;
8.12 Any litigation or governmental or regulatory proceeding is
instituted against Borrower, any of the Subsidiary Banks or any other obligor
which, in Lender's opinion, will have a material adverse effect on the financial
condition of Borrower, any of the Subsidiary Banks or any other Obligor or on
the continued operation of Borrower, any of the Subsidiary Banks or any other
Obligor, after taking into account insurance coverage and reserves therefor (if
any);
8.13 Any property of Borrower, any of the Subsidiary Banks or any other
Obligor shall be seized, attached or levied upon;
8.14 Borrower, any of the Subsidiary Banks or any other Obligor shall
have a judgment in excess of Two Hundred Fifty Thousand and 00/100 Dollars
($250,000.00) entered against it by a court having jurisdiction in the premises,
and such judgment shall not be appealed in good faith or satisfied by Borrower,
such Subsidiary Bank or such Obligor, as the case may be, within thirty (30)
days after the entry of such judgment;
<PAGE>
8.15 Borrower, any of the Subsidiary Banks or any other obligor shall
fail (and such failure shall not have been cured or waived) to perform or
observe any term, provision or condition of, or any other default or event of
default shall occur under, any agreement, document or instrument evidencing or
securing any outstanding indebtedness of Borrower, such Subsidiary Bank or such
obligor, as the case may be, for borrowed money (other that borrower's
Obligations), if the effect of such failure or default is to cause or permit
such indebtedness to be declared to be due and payable or otherwise accelerated,
or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof;
8.16 The institution by Borrower, any ERISA Affiliate or any of the
Subsidiary Banks of steps to terminate any Pension Plan if, in order to
effectuate such termination, Borrower, any ERISA Affiliate or any of the
Subsidiary Banks would be required to make a contribution to such Pension Plan
or would incur a liability or obligation to such Pension Plan in excess of Two
Hundred Fifty Thousand and 00/100 Dollars ($250,000.00); or the institution by
the PBGC of steps to terminate any Pension Plan;
8.17 Borrower, any of the Subsidiary Banks or any other obligor shall
be declared by Lender to be in default on, or pursuant to the terms of, (1) any
other present or future obligation to Lender, including, without limitation, any
other loan, line of credit, revolving credit, guaranty or letter of credit
reimbursement obligation, or (2) any other present or future agreement
purporting to convey to Lender a Lien upon any of the Property or assets of
Borrower, such Subsidiary Bank or such Obligor; or
THEN, and in each such event (other than an event described in Sections
8.07, 8.08 or 8.9), Lender may declare the entire outstanding principal balance
of and all accrued and unpaid interest on the Note issued under this Agreement
and all other amounts payable by Borrower hereunder to be immediately due and
payable, whereupon all of such outstanding principal balance and accrued and
unpaid interest and all such other amounts shall become and be immediately due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by Borrower, and Lender may exercise
any and all other rights and remedies which it may have under any of the other
Transaction Documents or under applicable law; provided, however, that upon the
occurrence of any event described in Sections 8.07, 8.08 or 8.09, the entire
outstanding principal balance of and all accrued and unpaid interest on the Note
issued under this Agreement and all other amounts payable by Borrower hereunder
shall automatically become immediately due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by Borrower, and Lender may exercise any and all other rights and
remedies which it may have under any of the other Transaction Documents or under
applicable law.
SECTION 9. GENERAL.
9.01 NO WAIVER. No failure or delay by Lender or the holder of the Note
in exercising any right, remedy, power or privilege hereunder or under any other
Transaction Document shall operate as a waiver thereof; nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The remedies provided
herein and in the other Transaction Documents are cumulative and not exclusive
of any remedies provided by law. Nothing herein contained shall in any way
affect the right of Lender to exercise any statutory or common law right of
banker's lien or set-off.
9.02 RIGHT OF SET-OFF. Upon the occurrence and during the continuance
of any Event of Default under this Agreement, Lender is hereby authorized at any
time and from time to time to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and any and all
other indebtedness at any time owing by Lender to or for the credit or the
account of Borrower against any and all of Borrower's obligations irrespective
of whether or not Lender shall have made any demand hereunder or thereunder.
Lender agrees
<PAGE>
promptly to notify Borrower after any such set-off and application made by
Lender, provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of Lender under this
Section 9.02 are in addition to any other rights and remedies (including,
without limitation, other rights of set-off) which Lender may have. Nothing
contained in this Agreement or any other Transaction Document shall impair the
right of Lender to exercise any right of set-off or counterclaim it may have
against Borrower and to apply the amount subject to such exercise to the payment
of indebtedness of Borrower unrelated to this Agreement or the other Transaction
Documents.
9.03 COST AND EXPENSES. Borrower agrees to pay (a) all out-of-pocket
costs and expenses of Lender in connection with the preparation, negotiation and
execution of this Agreement, the Note and the other Transaction Documents,
including, without limitation, reasonable Attorneys' Fees, (b) all recording and
filing fees incurred in connection with this Agreement and the other Transaction
Documents, (c) all out-of-pocket expenses of Lender in connection with the
preparation of any waiver or consent hereunder or any amendment hereof or any
Event of Default or alleged Event of Default hereunder, including, without
limitation, reasonable Attorneys' Fees, (d) if an Event of Default occurs, all
out-of-pocket costs and expenses incurred by Lender, including, without
limitation, reasonable Attorneys' Fees, in connection with such Event of Default
and collection and other enforcement proceedings resulting there from and (e)
all other Attorneys' Fee incurred by Lender relating to or arising out of or in
connection with this Agreement or any of the other Transaction Documents.
9.04 ENVIRONMENTAL INDEMNITY. Borrower hereby agrees to indemnify
Lender and hold Lender harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses and claims of any and every kind
whatsoever (including, without limitation, court costs and Attorneys' Fees)
which at any time or from time to time may be paid, incurred or suffered by, or
asserted against, Lender for, with respect to or as a direct or indirect result
of the violation by Borrower or any of the Subsidiary Banks of any laws or
regulations relating to solid waste and/or hazardous waste treatment, storage,
disposal, generation and transportation, air, water and/or noise pollution, soil
or ground or water contamination, the handling, storage or release into the
environment of hazardous materials or hazardous substances, and the
transportation of hazardous materials ("Environmental Laws"); or with respect
to, or as a direct or indirect result of the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission or release from,
properties utilized by Borrower and/or any of the Subsidiary Banks in the
conduct of their respective businesses into or upon any land, the atmosphere or
any watercourse, body of water or wetland, of any hazardous material or
substances (including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under the Environmental
Laws); and the provisions of and undertakings and indemnification set out in
this Section 9.04 shall survive the satisfaction and payment of Borrower's
Obligations and termination of this Agreement.
9.05 GENERAL INDEMNITY. In addition to the payment of expenses pursuant
to Section 9.03, whether or not the transactions contemplated hereby shall be
consummated, Borrower hereby agrees to indemnify, pay and hold Lender and any
holder of any Note, and the officers, directors, employees, agents and
affiliates of Lender and such holder(s) (collectively called the "indemnities")
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such indemnities in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such indemnities shall be designated a
party thereto), that may be imposed on, incurred by or asserted against the
Indemnities, in any manner relating to or arising out of this Agreement or other
agreements executed and delivered by Borrower or any other obligor in connection
herewith, the statements contained in any commitment letters delivered by
Lender, Lender's agreement to make the Loan hereunder or the use or intended use
of the proceeds of the Loan hereunder (the "indemnified liabilities"); that
Borrower shall have no obligation to an Indemnitee hereunder with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of that Indemnitee as determined by a court of competent jurisdiction. To the
extent that the undertaking to
<PAGE>
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, Borrower
shall contribute the maximum portion that it is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by the Indemnities or any of them. The provisions of the
undertakings and indemnification set out in this Section 9.05 shall survive
satisfaction and payment of Borrower's obligations and termination of this
Agreement. Notwithstanding the foregoing, Borrower's liability for the
indemnified liabilities referenced in this provision shall not exceed
$25,000.00.
9.06 [Intentionally Omitted]
9.07 NOTICES. Any notice, request, demand, consent, confirmation or
other communication hereunder shall be in writing and delivered in person or
sent by telegram, telex or registered or certified mail, return receipt
requested and postage prepaid, if to Borrower at 8 West Peoria, Suite 200, P. O.
Box 402, Paola, Ks. 66071 Attention: Robert Weatherbie, Chairman, or if to
Lender at 1101 Walnut, P.O. Box 419147, Kansas City, Mo. 64141, Attention: Don
Thompson, Vice President, or at such other address as either party may designate
as its address for communications hereunder by notice so given. Such notices
shall be deemed effective on the day on which delivered or sent if delivered or
sent in person or sent by telegram or telex, or on the third (3rd) Business Day
after the day on which mailed, if sent by registered or certified mail.
9.08 CONSENT TO JURISDICTION. BORROWER IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY KANSAS STATE COURT OR ANY UNITED STATES OF
AMERICA COURT SITTING IN THE DISTRICT OF KANSAS, AS LENDER MAY EFFECT, IN ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER TRANSACTION DOCUMENT. BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT TO SUCH SUIT, ACTION OR PROCEEDING MAY BE HELD AND DETERMINED IN ANY
OF SUCH COURTS. BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND
BORROWER FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
BORROWER HEREBY EXPRESSLY WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION WHICH
BORROWER MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT
DOMICILES. BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER BY
REGISTERED MAIL SENT TO BORROWER AT ITS ADDRESS SET FORTH IN SECTION 9.07.
BORROWER(S) AND BANK IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT
TO ANY ACTION IN WHICH BORROWER(S) AND LENDER ARE PARTIES.
9.09 LENDER'S BOOKS AND RECORDS. Lender's books and records showing the
account between Borrower and Lender shall be admissible in evidence in any
action or proceeding.
9.10 GOVERNING LAW; AMENDMENTS. This Agreement, the Notes, the Pledge
Agreement and all of the other Transaction Documents shall be governed by and
construed in accordance with the internal laws of the State of Kansas, and this
Agreement and the other Transaction Documents may not be changed, nor may any
term, condition or Event of Default be waived, modified or discharged orally but
only by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
9.11 REFERENCES; HEADINGS FOR CONVENIENCE. Unless otherwise specified
herein, all references herein to Section numbers refer to section numbers of
this Agreement, and all references herein to EXHIBITS "A", "B", "C" and "D"
refer to annexed EXHIBITS "A", "B", "C", and "D" which are hereby incorporated
herein by reference. The
<PAGE>
section headings are furnished for the convenience of the parties and are not to
be considered in the construction or interpretation of this Agreement.
9.12 BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of Borrower and its successors and Lender and its successors and
assigns. Borrower may not assign or delegate any of its rights or obligations
under this Agreement.
9.13 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto and supersedes all prior agreements and
understandings (oral or written) relating to the subject matter hereof.
9.14 SEVERABILITY. In the event any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
9.15 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.16 RESURRECTION OF BORROWER'S OBLIGATIONS. To the extent that Lender
receives any payment on account of any of Borrower's Obligations, and any such
payment(s) or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, subordinated and/or required to be repaid
to a trustee, receiver or any other Person under any bankruptcy act, state or
Federal law, common law or equitable cause, then, to the extent of such payment
(s) received, Borrower's Obligations or part thereof intended to be satisfied
and any and all liens, security interests, mortgages, deeds of trust and/or
other encumbrances upon or pertaining to any assets of Borrower and theretofore
created and/or existing in favor of Lender as security for the payment of such
Borrower's Obligations shall be revived and continue in full force and effect,
as if such payment(s) had not been received by Lender and applied on account of
Borrower's Obligations.
NOTICE: THIS SECTION IS MADE PART OF THIS AGREEMENT IN
COMPLIANCE WITH KANSAS STATUTES ANNOTATED 16-118. THIS CREDIT AGREEMENT
IS A FINAL EXPRESSION OF THE CREDIT AGREEMENT BETWEEN THE BORROWER AND THE
LENDER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL CREDIT
AGREEMENT OR OF A CONTEMPORANEOUS ORAL CREDIT AGREEMENT BETWEEN THE
BORROWER AND THE LENDER. IF THERE ARE ANY ADDITIONAL TERMS, THEY ARE
REDUCED TO WRITING AS FOLLOWS:
----------
--------------------------------------------------------------
I/WE AFFIRM THAT NO UNWRITTEN ORAL AGREEMENT EXISTS BETWEEN BORROWER
AND LENDER.
BORROWER: LENDER: (please initial)
-------------- ---------------
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Loan Agreement
this 3rdt day of December, 1999.
TEAM FINANCIAL, INC.,
a Kansas corporation
By:
----------------------------------
Print Name:
--------------------------
Title:
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MERCANTILE BANK,
a Kansas State Bank
By:
----------------------------------
Print Name:
--------------------------
Title:
-------------------------------
