EXHIBIT 99.B2
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") dated as of August 24, 2000
between BANKATLANTIC BANCORP, INC., a Florida corporation, whose principal place
of business is 1750 East Sunrise Boulevard, Ft. Lauderdale, Florida 33304 (the
"Borrower") and COLUMBUS BANK AND TRUST COMPANY, a Georgia banking corporation
whose principal place of business is at 1148 Broadway, Columbus, Georgia 31901
(the "Bank"). The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement, the following
terms have the following meanings (terms defined in the singular to have same
meaning when used in the plural and vice versa):
"Affiliate" means any Person (1) which directly or indirectly controls,
or is controlled by, or is under common control with the Borrower or a
Subsidiary; (2) which directly or indirectly beneficially owns or holds five
percent (5.0%) or more of any class of voting stock of the Borrower or any
Subsidiary; or (3) which directly or indirectly beneficially owns or holds five
percent (5.0%) or more of the voting stock of which is directly or indirectly
beneficially owned or held by the Borrower or a Subsidiary. The term "control"
means the possession, directly or indirectly, of 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.
"Agreement" means this Loan Agreement, as amended, supplemented, or
modified from time to time.
"Business Day" means any day other than a Saturday, Sunday, or other
than any day on which commercial banks in Georgia are authorized or required to
close under the laws of the State of Georgia.
"Capital Lease" means all leases which have been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations and published interpretations thereof.
"Collateral" means the property identified and described on Exhibit A
attached hereto and incorporated herein.
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"Commitment" means the Bank's obligation to make a Loan to the Borrower
pursuant to Section 2.01 in the amount referred to therein.
"Commonly Controlled Entity" means an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 414(b) or 414(c) of the Code.
"Debt" means (1) indebtedness or liability of a Person, to include, but
not limited to, Borrower for borrowed money; (2) obligations of a Person, to
include, but not limited to, Borrower evidenced by bonds, debentures, notes, or
other similar instruments; (3) obligations of Borrower or any Subsidiaries for
the deferred purchase price of property or services (including trade
obligations); (4) obligations of a Person, to include, but not limited to
Borrower as lessee under Capital Leases; (5) liabilities of a Person, to
include, but not limited to, Borrower in respect of unfunded vested benefits
under Plans covered by ERISA; (6) all guarantees, endorsements (other than for
collection or deposit in the ordinary course of banking business), interest rate
swaps, and other contingent obligations of a Person, to include, but not limited
to, Borrower to purchase, to provide funds for payment, to supply funds to
invest in any other Person or entity, or otherwise to assure a creditor against
loss (except loans or letters of credit made or issued in the ordinary course of
business); and (7) obligations of a Person, to include, but not limited to,
Borrower, other than obligations as a lender, secured by any liens, whether or
not the obligations have been assumed. The term "Debt" does not include any
deposit liabilities of any bank subsidiary or obligations incurred in the
ordinary course of banking business, including, but not limited to, obligations
to the Federal Reserve Bank or Federal Home Loan Bank or in respect of
obligations for federal funds purchased or securities sold under agreements to
repurchase.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published interpretations
thereof.
"Event of Default" means any of the events specified in Section 8.01,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"GAAP" means generally accepted accounting principles in the United
States.
"Lien" means any charge, encumbrance, security interest, mortgage, deed
of trust, pledge, security interest, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority, or
other security agreement or preferential arrangement, charge, or encumbrance of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction to evidence any of the foregoing).
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"Loan" shall have the meaning assigned to such term in Section 2.01.
"Loan Document" means this Agreement, the Note, the Security Agreement,
or other agreement evidencing or securing the Loan (two or more of the foregoing
being also referred to collectively herein as the "Loan Documents").
"Multiemployer Plan" means a Plan described in Section 4001(a)(3) of
ERISA.
"Note" shall have the meaning assigned to such term in Section 2.03.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority, or other entity of whatever
nature.
"Plan" means any pension plan which is covered by Title IV of ERISA and
in respect of which the Borrower or a Commonly Controlled Entity is an
"employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest announced by the Bank from time
to time as its prime commercial lending rate, which rate is not necessarily the
lowest rate of interest charged by the Bank to its borrowers.
"Principal Office" means the Bank's office at 1148 Broadway, Columbus,
Georgia 31901.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"Real Estate Owned" has the meaning assigned to such term in Section
4.15.
"Reportable Event" means any of the events set forth in Section 4043 of
ERISA.
"Security Agreement" means the Stock Pledge and Security Agreement in
substantially the form of Exhibit B, to be delivered by the Borrower under the
terms of this Agreement.
"Subsidiary" means, as to the Borrower, a corporation of which shares
of stock having ordinary voting power (other than stock having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are, at the time, owned, or the
management of which corporation is otherwise
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controlled, directly or indirectly, through one or more intermediaries, or both,
by the Borrower, including, without limitation, the following corporation:
BankAtlantic, F.S.B., a federal savings bank.
"Tier I Capital" means those components of the equity capital of the
Borrower or of any bank Subsidiary which, in the aggregate, constitute the core
or primary capital of the Borrower or bank Subsidiary, as those components are
determined and defined from time to time by the federal banking regulator having
primary jurisdiction over the Borrower or any bank Subsidiary.
"Tier II Capital" means those components of the equity capital of the
Borrower or of any bank Subsidiary which, in the aggregate, constitute the
supplementary capital of the Borrower or bank Subsidiary, as those components
are determined and defined from time to time by the federal banking regulator
having primary jurisdiction over the Borrower or any bank Subsidiary.
"Total Capital" means the total of the amounts of Tier I Capital and
Tier II Capital that qualify, under the applicable regulations of the federal
banking regulator having primary jurisdiction over the Borrower or any bank
Subsidiary, for inclusion in the computation of leverage capital requirements
and risk-weighted capital requirements.
Section 1.02. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with those
applied in the preparation of the financial statements referred to in Section
4.04, and all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
ARTICLE II
AMOUNT AND TERMS OF THE LOAN
Section 2.01. Loan. The Bank agrees on the terms and conditions
hereinafter set forth to extend a line of credit on a revolving basis (the
"Loan") to the Borrower on the date of this Agreement in the maximum principal
amount of Twenty Million and No/100ths ($20,000,000.00) Dollars. Subject to the
provisions of this Agreement, Borrower shall be entitled to borrow, repay and
re-borrow funds in accordance with the terms hereof so long as the total
principal amount owed Bank under the Note never exceeds $20,000,000.00.
Section 2.02. Interest. The Borrower shall pay interest to the Bank on
the outstanding and unpaid principal amount of the Loan made under this
Agreement at a rate per annum equal to the Prime Rate minus 50 basis points. Any
change in the interest rate resulting from a change in the Prime Rate shall
become effective as of the opening of business on the day on which such change
in the Prime Rate shall become effective. Interest shall be calculated on the
basis of a year of three hundred sixty (360) days for the actual number of days
elapsed.
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Interest shall be paid in immediately available funds on the first day of each
month commencing October 1, 2000 and continuing on the first day of each month
thereafter until September 1, 2003 at which time all outstanding principal and
accrued but unpaid interest shall be due, at the Principal Office. Any principal
amount not paid when due (at maturity, by acceleration, or otherwise) shall bear
interest thereafter until paid in full, payable on demand, at a rate which shall
be four percent (4.0%) above the rate which would otherwise be applicable.
Section 2.03. Note. The Borrower's obligation to repay the Loan shall
be evidenced by its promissory note (the "Note") in substantially the form of
Exhibit C attached hereto and payable to the order of the Bank.
Section 2.04. Prepayments. The Borrower may without penalty prepay the
Note in whole or in part, with accrued interest to the date of such prepayment
on the amount prepaid and Borrower may without penalty upon payment in full of
all outstanding principal, accrued but unpaid interest and other sums due
hereunder or under the Note retire the Loan upon written notification to Bank.
Section 2.05. Method of Payment. The Borrower shall make each payment
under this Agreement and under the Note on the date when due in lawful money of
the United States to the Bank at its Principal Office in immediately available
funds. The Borrower hereby authorizes the Bank, if and to the extent payment is
not made when due under this Agreement and under the Note, to charge from time
to time against any account of the Borrower (but not the account of a
Subsidiary) with the Bank any amount so due. Whenever any payment to be made
under this Agreement or under the Note shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest.
Section 2.06. Use of Proceeds. The proceeds of the Loan hereunder shall
be used by the Borrower to repurchase all outstanding shares of Borrower's
publicly traded Class B stock and to support capital needs of Borrower and its
subsidiary, BankAtlantic, F.S.B., a federal savings bank. The Borrower will not,
directly or indirectly, use any part of such proceeds for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System or to extend credit to any
Person for the purpose of purchasing or carrying any such margin stock, or for
any purpose which violates, or is inconsistent with, Regulation X of such Board
of Governors.
ARTICLE III
ADVANCES
Section 3.01. Advances. The Borrower shall give the Bank at least one
(1) Business Day's telephone notice of a requested disbursement under this
Agreement, specifying the date the disbursement is requested and the amount
thereof. The Bank may rely upon such telephone request for disbursements
received from individuals identifying themselves as and
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purporting to be one of the following: President, Executive Vice President or
Chief Financial Officer of Borrower.
The telephone request for disbursement should be promptly confirmed in writing
by Borrower by mailing or transmitting by facsimile transmission a confirmation
to the Bank at the address designated hereinafter, as may be amended. Upon
fulfillment of the applicable conditions set forth below, and provided that the
request for disbursement does not cause the Borrower to exceed the maximum
principal amount of the Loan, the Bank will make such disbursements available to
the Borrower in immediately available funds by crediting the amount thereof to
the Borrower's account, or other designated account, with the Bank.
Section 3.02. Conditions Precedent to Initial Advance. The obligation
of the Bank to make the initial advance under the Loan to Borrower is subject to
the conditions precedent that the Bank shall have received on or before the day
of such advance each of the following, in form and substance satisfactory to the
Bank and its counsel:
(1) Note. The Note duly executed by the Borrower;
(2) Security Agreement. The Security Agreement executed and
delivered by Borrower to Bank in form and substance satisfactory to Bank in
which Borrower shall agree to pledge and assign to Bank and to grant to Bank a
first-priority security interest in, all right, title, and interest of the
Borrower in and to all common stock of BankAtlantic, F.S.B., a federal savings
bank registered in the name of BankAtlantic Bancorp, Inc. (street name or
otherwise) or owned by Borrower and all proceeds of such shares, together with
such stock certificates, stock powers, and financing statements as Bank deems
necessary to perfect the security interest of Bank in the Collateral;
(3) Evidence of All Corporate Action by the Borrower.
Certified (as of the date of this Agreement) copies of all corporate action
taken by the Borrower, including resolutions of its Board of Directors,
authorizing the execution, delivery, and performance of the Loan Documents to
which it is a party and each other document to be delivered pursuant to this
Agreement;
(4) Incumbency and Signature Certificate of the Borrower. A
certificate (dated as of the date of this Agreement) of the Secretary of
Borrower certifying the names and true signatures of officers of the Borrower
authorized to sign the Loan Documents to which it is a party and each other
documents to be delivered by the Borrower under this Agreement;
(5) Opinion of Counsel for the Borrower. A favorable opinion
of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., counsel for the
Borrower, in substantially the form of Exhibit D, and as to such other matters
as the Bank may reasonably request;
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(6) Officer's Certificate. A certificate signed by a duly
authorized officer of Borrower dated the date of this Agreement, in
substantially the form of Exhibit E;
(7) Additional Documentation. Such other approvals, opinions,
or documents as the Bank may reasonably request;
(8) Request for Advance. A request for advance pursuant to
Section 3.01 hereof;
(9) Regulatory Approval. Copies of any and all necessary
governmental regulatory approvals of the Loan contemplated hereby, to the extent
such approval shall be required, and of the purchase by Borrower of all
outstanding shares of Borrower's publicly-traded Class B Stock with the proceeds
of the Loan;
(10) No Material Adverse Change. A certificate signed by a
duly authorized officer of the Borrower stating that there has been no material
adverse change in the condition (financial or otherwise), business, or
operations of the Borrower or any Subsidiary; and
(11) Financial Reports. Current audited financial statement of
Borrower and its bank subsidiaries together with copies of BankAtlantic's
asset/liability plan and loan policy guidelines, together with an opportunity
for Bank to review BankAtlantic's latest regulatory examination, unless such
shall be prohibited by the applicable regulatory body or authority.
Section 3.03. Conditions Precedent to Subsequent Advances. The
obligation of the Bank to make subsequent advances is subject to the conditions
precedent that the Bank shall have received, in form and substance satisfactory
to it, each of the following documents, and that each of the conditions
described below is fulfilled to the satisfaction of the Bank: (i) a request for
advance pursuant to Section 3.01 hereof; and (ii) the representations and
warranties contained in Article IV hereof and each of the other Loan Documents
shall be correct in all material respects on and as of the date of the request
for the advance and the date of the advance, with the same effect as though made
on and as of those dates, except to the extent that such representations and
warranties relate solely to an earlier date, and on each of such dates, no
event, act, or condition shall have occurred or be continuing, or would result
from the advance requested, which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be given or
time elapse, or both. The submission by the Borrower of an oral or written
request for advance shall constitute a representation and warranty as to the
correctness of the above facts, and if requested by the Bank with respect to the
advance requested, the Borrower shall furnish to the Bank a written certificate
of an officer of the Borrower, satisfactory in form and substance to the Bank,
as to the correctness of the above facts as a condition precedent to such
advance and confirming that the approvals required in paragraph (9) above remain
in effect at the time of each disbursement from the Loan.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Bank to enter into the Agreement and to disburse
the proceeds of the Loan, the Borrower represents and warrants to the Bank that:
Section 4.01. Incorporation, Good Standing, and Due Qualification. The
Borrower and each of its non-bank Subsidiaries is a corporation duly
incorporated, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation. BankAtlantic, F.S.B. is a federal savings
bank duly organized, validly existing, and in good standing under the laws of
the United States. The Borrower and each of its Subsidiaries has the corporate
power and authority to own its assets and to transact the business in which it
is now engaged or proposed to be engaged; and is duly qualified as a foreign
corporation and in good standing under the laws of each other jurisdiction in
which such qualification is required.
Section 4.02. Corporate Power and Authority. The execution, delivery,
and performance by the Borrower of the Loan Documents and the creation of the
security interest provided for under the Security Agreement are within the
Borrower's corporate powers and have been duly authorized by all necessary
corporate action and do not and will not (1) require any consent or approval of
the stockholders of the Borrower; (2) contravene the Borrower's charter or
bylaws; (3) violate any provision of any law, rule, regulation (including,
without limitation, Regulations U and X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree, determination, or
award presently in effect having applicability to the Borrower; (4) result in a
breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which Borrower is a
party or by which it or its properties may be bound or affected; or (5) result
in, or require, the creation or imposition of any Lien, except as contemplated
by the Security Agreement, upon or with respect to any of the properties now
owned or hereafter acquired by the Borrower.
Section 4.03. Legally Enforceable Agreement. This Agreement is, and
each of the other Loan Documents are legal, valid, and binding obligations of
the Borrower, and enforceable against the Borrower in accordance with their
respective terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, and other similar laws affecting creditors'
rights generally.
Section 4.04. Financial Statements. The consolidated balance sheet of
the Borrower and the Subsidiaries as of December 31, 1999, and the related
consolidated statements of income, shareholder's equity, and cash flows of the
Borrower and the Subsidiaries for the fiscal year then ended, and the
accompanying footnotes, together with the opinion thereon, dated December 31,
1999 of KPMG, LLP, independent certified public accountants, copies of which
have been furnished to the Bank, are complete and correct in all material
respects and fairly present the financial condition of the Borrower and the
Subsidiaries at such dates and the results of the operations of the Borrower and
the Subsidiaries for the periods covered by such
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statements, all in accordance with GAAP; and since December 31, 1999, there has
been no material adverse change in the condition (financial or otherwise),
business, or operations of the Borrower or any Subsidiary. There are no
liabilities of the Borrower or any Subsidiary, fixed or contingent, which are
material but are not reflected in the financial statements or in the notes
thereto, other than liabilities arising in the ordinary course of business since
December 31, 1999. No information, exhibit, or report furnished by the Borrower
to the Bank in connection with the approval of the Loan or negotiation of this
Agreement contains any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statement contained therein not
materially misleading.
Section 4.05. Labor Disputes and Acts of God. Neither the business nor
the properties of the Borrower or any Subsidiary are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy, or other casualty
(whether or not covered by insurance) materially and adversely affecting such
business or properties or the operation of the Borrower or such Subsidiary.
Section 4.06. Other Agreements. Neither the Borrower nor any Subsidiary
is a party to any indenture, loan, credit agreement, regulatory agreement or
imposition, or to any lease or other agreement or instrument, or subject to any
charter or corporate restriction which could have a material adverse effect on
the business, properties, assets, operations, or conditions, financial or
otherwise, of the Borrower or any Subsidiary or the ability of the Borrower to
carry out its obligations under the Loan Documents to which it is a party.
Neither the Borrower nor any Subsidiary is in material default in any respect in
the performance, observance, or fulfillment of any of the obligations,
covenants, or conditions contained in any agreement or instrument to which it is
a party.
Section 4.07. Litigation. Except as is set forth expressly on Exhibit F
attached hereto, no action or proceeding is pending or, threatened against, or
affecting, the Borrower or any of its Subsidiaries before any court, board,
commission, governmental agency, or arbitrator, which would reasonably be
expected to, in any one case or in the aggregate, materially adversely affect
the Collateral or the financial condition, operations, properties, or business
of the Borrower and the Subsidiaries taken as a whole or the ability of the
Borrower to perform its obligation under the Loan Documents to which it is a
party.
Section 4.08. No Defaults or Outstanding Judgments or Orders. The
Borrower and its Subsidiaries have satisfied all judgments, and neither the
Borrower nor any Subsidiary is in default with respect to any judgment, writ,
injunction, decree, rule, or regulation of any court, arbitrator, federal,
state, municipal, or other governmental authority, commission, board, bureau,
agency, or instrumentality, domestic or foreign (other than in either case
involving judgments for immaterial amounts or for which adequate reserves have
been established in accordance with GAAP).
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Section 4.09. Ownership and Liens. The Borrower and each Subsidiary
have title to, or valid leasehold interests in, all of their properties and
assets, real and personal, including the properties and assets and leasehold
interest reflected in the financial statements referred to in Section 4.04
(other than any properties or assets disposed of in the ordinary course of
business), and none of the properties and assets owned by the Borrower or any
Subsidiary and none of their leasehold interests is subject to any Lien, except
such as may be permitted pursuant to Section 6.01 of this Agreement.
Section 4.10. Subsidiaries and Ownership of Stock. The Borrower's
audited and consolidated financial statements, as provided to Bank, represent in
all material respects a complete and accurate list of the Subsidiaries of the
Borrower. All of the outstanding capital stock of each Subsidiary has been
validly issued, is fully paid and nonassessable, and is owned by the Borrower
free and clear of all Liens.
Section 4.11. ERISA. With respect to each Plan maintained by Borrower
and each Subsidiary, the Borrower and each Subsidiary are in compliance in all
material respects with all applicable provisions of ERISA. Neither a Reportable
Event nor a Prohibited Transaction has occurred and is continuing with respect
to any Plan that may reasonably be expected to subject Borrower or any Commonly
Controlled Entity to any material liability; no notice of intent to terminate a
Plan has been filed, nor has any Plan been terminated; no circumstances exist
which constitute grounds entitling the PBGC to institute proceedings to
terminate, or appoint a trustee to administer, a Plan, nor has the PBGC
instituted any such proceedings; neither the Borrower nor any Commonly
Controlled Entity has completely or partially withdrawn from a Multiemployer
Plan; the Borrower and each Commonly Controlled Entity have met their minimum
funding requirements under ERISA with respect to all of their Plans, and the
present fair market value of all Plan assets allocable to such benefits exceeds
the value of all vested benefits under each Plan, as determined on the most
recently completed actual valuation report for the Plan and in accordance with
the provisions of ERISA; and neither the Borrower nor any Commonly Controlled
Entity has incurred any liability to the PBGC under ERISA other than for premium
payments in the normal course of Plan administration.
Section 4.12. Operation of Business. The Borrower and the Subsidiaries
possess all licenses, permits, franchises, patents, copyrights, trademarks, and
trade names, or rights thereto, necessary to conduct their respective businesses
substantially as now conducted and as presently proposed to be conducted, and
the Borrower and the Subsidiaries are not to Borrower's knowledge, in violation
of any valid rights of others with respect to any of the foregoing.
Section 4.13. Taxes. The Borrower and each of the Subsidiaries have, in
all material respects, filed all tax returns (federal, state, and local)
required to be filed and have paid all taxes, assessments, and governmental
charges and levies shown thereon to be due, including
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interest and penalties. The federal income tax liabilities of the Borrower and
the Subsidiaries have been audited by the Internal Revenue Service and have been
finally determined and satisfied for all taxable years up to and including the
taxable year ended December 31, 1988.
Section 4.14. Absence of Undisclosed Liabilities. Except as reflected
in the audited consolidated balance sheet of Borrower at December 31, 1999
(including the notes thereto), as of December 31, 1999, neither Borrower nor any
Subsidiary had any material liability or obligation whatsoever, whether accrued,
absolute, contingent, or otherwise that should, in accordance with GAAP, have
been disclosed in such financial statements and notes thereto. Since December
31, 1999, neither Borrower nor any Subsidiary has incurred any material
liability or obligation, except for liabilities and obligations incurred in the
ordinary course of business or that will not have a material adverse effect on
the Collateral, Borrower and the Subsidiaries taken as a whole.
Section 4.15. Environmental. The Borrower and each Subsidiary have duly
complied with, and their businesses, operations, assets, equipment, property,
leaseholds, other real estate owned, or other facilities are in compliance in
all material respects with, the provisions of all federal and state,
environmental, health, and safety laws, codes, and ordinances, and all rules and
regulations promulgated thereunder. Neither the Borrower nor any Subsidiary has
received notice of, nor knows of or suspects, facts which might constitute any
violations of any federal or state environmental, health, or safety laws, codes,
or ordinances, and any rules or regulations promulgated thereunder with respect
to its businesses, operations, assets (including but not limited to real
property loan collateral), equipment, property, leaseholds, or other facilities.
[Set forth in Exhibit G is a list of all real property owned (other than real
property acquired pursuant to foreclosure of a lien in favor of Borrower or any
Subsidiary (or by deed in lieu thereof and real estate owned by Levitt Corp. and
its subsidiaries)) ("Real Estate Owned")] or leased by the Borrower and its
Subsidiaries, wherever located, and a brief description of the business
conducted at such location.
Section 4.16. Governmental Approval. All permits, consents,
authorizations, approvals, declarations, notifications, filings or registrations
with any governmental or regulatory authority or any third party which are
necessary in connection with the consummation of this transaction have been
obtained on or before the date hereof.
Section 4.17. Regulatory Compliance. The Borrower and each Subsidiary
are in compliance in all material respects with all laws, statutes, ordinances,
and governmental rules, regulations, or requirements relating to or affecting
their business or operations.
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ARTICLE V
AFFIRMATIVE COVENANTS
So long as the Note shall remain unpaid, the Borrower will:
Section 5.01. Use of Proceeds. Use the proceeds of the Loan only for
the purpose set forth herein, and will furnish the Bank such evidence as it may
reasonably require with respect to such use.
Section 5.02. Maintenance of Existence. Preserve and maintain, and
cause each Subsidiary to preserve and maintain, its corporate existence and good
standing in the jurisdiction of its incorporation, and qualify and remain
qualified, and cause each Subsidiary to qualify and remain qualified, as a
foreign corporation in each jurisdiction in which such qualification is
required.
Section 5.03. Maintenance of Records. Keep, and cause each Subsidiary
to keep, adequate records and books of account, in which complete entries will
be made in accordance with GAAP consistently applied, reflecting all financial
transactions of the Borrower and its Subsidiaries.
Section 5.04. Maintenance of Properties. Maintain, keep, and preserve,
and cause each Subsidiary to maintain, keep, and preserve, all of its properties
(tangible and intangible) necessary or useful in the proper conduct of its
business in satisfactory working order and condition, ordinary wear and tear
excepted.
Section 5.05. Conduct of Business. Continue, and cause each Subsidiary
to continue, to engage in a business of the same general type as now conducted
by it on the date of this Agreement.
Section 5.06. Maintenance of Insurance. Maintain and cause each
Subsidiary to maintain insurance coverages including, but not limited to,
bankers' blanket bonds, public liability insurance, and fire and extended
coverage insurance on all assets owned by them, all in such form and amounts,
and with such insurers, as are reasonably satisfactory to the Bank.
Section 5.07. Compliance with Laws. Comply, and cause each Subsidiary
to comply, in all material respects with all applicable laws, rules,
regulations, orders, and material agreements to which they are subject, such
compliance to include, without limitation, maintaining adequate cash reserves
for the payment of, and paying before the same become delinquent, all taxes,
assessments, and governmental charges imposed upon it or upon its property
except as contested in good faith.
Section 5.08. Right of Inspection. From time to time upon reasonable
advance
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notice from Bank (provided advance notice shall not be required if an Event of
Default has occured), permit the Bank or any agent or representatives thereof to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Borrower and any Subsidiary, and to discuss
the affairs, finances, and accounts of the Borrower and any Subsidiary with any
of their respective officers and directors and the Borrower's independent
accountants.
Section 5.09. Reporting Requirements. Furnish to the Bank:
(1) Quarterly Financial Statements. As soon as available
Borrower shall furnish to Bank each Quarterly Thrift Financial Report regarding
BankAtlantic produced for the Office of Thrift Supervision;
(2) Annual Financial Statements. As soon as available and in
any event within one hundred twenty (120) days after the end of each fiscal year
of the Borrower, audited consolidated balance sheets of the Borrower and audited
unconsolidated balance sheets of BankAtlantic, F.S.B., Ryan Beck & Co. and any
Subsidiaries acquired or otherwise created, the equity of which exceeds 5% of
consolidated equity as of the end of such fiscal year and audited consolidated
and audited unconsolidated statements of income, shareholder equity, and cash
flows of the Borrower and the Subsidiaries for such fiscal year, all in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior fiscal year and all prepared in
accordance with GAAP and accompanied by an opinion thereon acceptable to the
Bank by KPMG, LLP or other accountants selected by the Borrower and reasonably
acceptable to the Bank;
(3) Management Letters. Promptly upon receipt thereof, copies
of any reports submitted to the Borrower or any Subsidiary by independent
certified public accountants in connection with examination of the financial
statements of the Borrower or any Subsidiary made by such accountants;
(4) Certificate of No Default. Within forty-five (45) days
after the end of each of the quarters of each fiscal year of the Borrower, a
certificate of the chief financial officer of the Borrower, substantially in the
form of Exhibit H attached hereto and made a part hereof (a) certifying, inter
alia, that (i) the representations and warranties contained in Article IV hereof
and in each of the Loan Documents remain true and correct in all material
respects (except to the extent that such representations and warranties relate
solely to an earlier date), (ii) the Borrower and Subsidiaries are in compliance
with the covenants set forth herein, and (iii) that no Event of Default has
occurred and is continuing or, if an Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action which is
proposed to be taken with respect thereto; and (b) with computations
demonstrating compliance with the covenants contained in Article VII;
(5) Accountant's Report. Simultaneously with the delivery of
the annual
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financial statements referred to in Section 5.09(2), such statements to the
effect that, in making the examination necessary for the audit of such
statements, the accountants conducting such examination have obtained no
knowledge of any condition or event which constitutes an Event of Default, or if
such accountants shall have obtained knowledge of any such condition or event,
specifying in such certificate each such condition or event, of which they have
knowledge and the nature and status thereof;
(6) Notice of Litigation. Promptly after the commencement
thereof, notice of all actions, suits, and proceedings before any court or
governmental department, commission, board, bureau, agency, or instrumentality,
domestic or foreign, affecting the Borrower or any Subsidiary which, if
determined adversely to the Borrower or such Subsidiary, could have a material
adverse effect on the financial condition, properties, or operations of the
Borrower or such Subsidiary;
(7) Notice of Events of Default. The Borrower will notify the
Bank immediately if it becomes aware of the occurrence of any Event of Default
or of any fact, condition, or event that only with the giving of notice or
passage of time, or both, could become an Event of Default, or of the failure of
the Borrower to observe any of its undertakings hereunder;
(8) ERISA Reports. As soon as possible, and in any event
within thirty (30) days after the Borrower knows or has reason to know that any
circumstances exist that constitute grounds entitling the PBGC to institute
proceedings to terminate a Plan with respect to the Borrower or any Commonly
Controlled Entity, and promptly, but in any event within two (2) Business Days
of receipt by the Borrower or any Commonly Controlled Entity of notice that the
PBGC intends to terminate a Plan or appoint a trustee to administer the same,
and promptly, but in any event within five (5) Business Days of the receipt of
notice concerning the imposition of withdrawal liability in excess of ONE
HUNDRED THOUSAND AND NO/100 DOLLARS with respect to the Borrower or any Commonly
Controlled Entity, the Borrower will deliver to the Bank a certificate of the
chief financial officer of the Borrower setting forth all relevant details and
the action which the Borrower proposes to take with respect thereto;
(9) Reports to Other Creditors. Promptly after the furnishing
thereof, copies of any statement or report furnished by Borrower or any
Subsidiary (except such statements or reports furnished by Borrower or any
Subsidiary in the ordinary course of their respective business as lenders) to
any other party pursuant to the terms of any indenture, loan, credit, or similar
agreement and not otherwise required to be furnished to the Bank pursuant to any
other clause of this Section 5.09;
(10) Proxy Statements, Etc. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements, and
reports which the Borrower or any Subsidiary sends to its stockholders, and
copies of all regular, periodic, and special reports, and all registration
statements which the Borrower or any Subsidiary files with the Securities and
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Exchange Commission or any governmental authority which may be substituted
therefor, or with any national securities exchange;
(11) Reports to Regulatory Agencies. Promptly after the
sending or filing of the same, copies of all call reports and other reports,
including without limitation responses to administrative enforcement actions,
and modifications or amendments thereto, that the Borrower or its Subsidiaries
sends or files with any regulatory agency;
(12) Intentionally Omitted;
(13) Adverse Changes. Promptly after the occurrence thereof
and in no event later than ten (10) days thereafter, full disclosures of any
material adverse changes in the Collateral or the finances or business of
Borrower and the Subsidiaries taken as a whole;
(14) OTS Annual H-(b)(11) Report. Promptly after the sending
or filing the OTS Annual H-b(11) Report to the Federal Reserve and the FSCIC;
and
(15) Promptly notify Bank in writing of any memorandum of
understanding entered into by Borrower or BankAtlantic, F.S.B. and any
regulatory authority and provide Bank of copy of such memorandum.
(16) General Information. Such other information respecting
the condition or operations, financial or otherwise, of the Borrower or any
Subsidiary as the Bank may from time to time reasonably request.
Section 5.10. Environmental. Be and remain, and cause each Subsidiary
to be and remain, in all material respects, in compliance with the provisions of
all federal and state environmental, health, and safety laws, codes and
ordinances, and all rules and regulations issued thereunder; and notify the Bank
immediately of any notice of an environmental complaint received from any
governmental agency or any other party.
Section 5.11. Composite Rating. Make reasonable efforts to maintain and
cause each bank Subsidiary to maintain, the applicable composite rating (i.e.,
CAMEL, BOPEC, MACRO, or such other applicable composite rating) of safety and
soundness of any banking regulator charged with examining the Borrower or any
bank Subsidiary, which is not less than the composite rating which exists at the
date of this Agreement.
Section 5.12. Capital Adequacy. Maintain, and cause each bank
Subsidiary to maintain, at all times, the minimum levels of regulatory capital
necessary to maintain the regulatory capital classification of "Adequately
Capitalized," as such term is defined by the applicable primary banking
regulator.
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ARTICLE VI
NEGATIVE COVENANTS
So long as the Note shall remain unpaid, the Borrower will not:
Section 6.01. Liens. Create, incur and assume, or suffer to exist, or
permit any Subsidiary to create, incur, assume, or suffer to exist, any lien
upon or with respect to any of its properties, now owned or hereafter acquired,
except:
(1) Liens in favor of the Bank;
(2) Liens for taxes or assessments or other governmental
charges or levies if not yet due and payable or not yet delinquent or, if due
and payable, if they are being contested in good faith by appropriate
proceedings and for which appropriate reserves are maintained;
(3) Liens imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' Liens, securing obligations incurred
in the ordinary course of business which are not yet due and payable or not yet
delinquent or which are being contested in good faith by appropriate proceedings
and for which appropriate reserves have been established;
(4) Liens under workers' compensation, unemployment insurance,
Social Security, or similar legislation;
(5) Liens, deposits, or pledges to secure the performance of
bids, tenders, contracts (other than contracts for the payment of money), leases
(permitted under the terms of this Agreement), public or statutory obligations,
surety, stay, appeal, indemnity, performance, or other similar bonds, or other
similar obligations arising in the ordinary course of business;
(6) Judgment and other similar Liens arising in connection
with court proceedings, provided the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings;
(7) Easements, rights-of-way, restrictions, and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use, and enjoyment by the Borrower or any Subsidiary of the property
or assets encumbered thereby in the normal course of its business or materially
impair the value of the property subject thereto;
(8) Liens incidental to the conduct of banking business, not
incurred in connection with the borrowing of money, arising out of transactions
in federal funds, repurchaser agreements, interbank credit facilities, bank
deposits, or other obligations to
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customers or depositors of the Borrower's Subsidiaries, as such, arising under
the leases of real and personal property, or arising out of transactions by the
Borrower or any of its Subsidiaries as trustee.
(9) Liens in the ordinary course of business consistent with
past practices.
(10) Those liens specified in Exhibit I attached hereto and
made a part hereof.
Section 6.02. Debt. Create, incur, assume, or suffer to exist, or
permit any Subsidiary to create, incur, assume, or suffer to exist, any Debt,
except:
(1) Debt of the Borrower under this Agreement or the Note;
(2) Debt described in Exhibit J, but no voluntary prepayments,
renewals, extensions, or refinances thereof, unless consented to by Bank, which
consent may be withheld in Bank's reasonable discretion;
(3) Debt which is subordinate to the Debt of Borrower under
this Agreement or the Note which is expressly consented to by Bank in writing
which consent may be withheld in Bank's reasonable discretion.
(4) Debt of any Subsidiary for which Borrower has no liability
of any nature and which is expressly consented to by Bank in writing, which
consent may be withheld in Bank's resonable discretion.
(5) Accounts payable to trade creditors for goods or services
which are not aged more than sixty (60) days from the billing date and current
operating liabilities (other than for non-material amounts incurred in the
ordinary course of banking business) which are not more than sixty (60) days
past due, in each case incurred in the ordinary course of business, as presently
conducted, and paid within the specified time, unless contested in good faith
and by appropriate proceedings.
(6) Existing Debt of and Debt hereafter created or assumed by
Levitt Corporation or Ryan Beck & Co., Inc. or their respective subsidiaries for
which Borrower and BankAtlantic, F.S.B. are not or will not be responsible.
Section 6.03. Mergers, Acquisitions, Etc. Wind up, liquidate, or
dissolve itself, reorganize, merge, or consolidate with or into, or convey,
sell, assign, transfer, lease, or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person, acquire all or
substantially all of the assets or the business of any Person, or commence or
acquire any new business not conducted by it on the date of this Agreement, or
permit any Subsidiary to do so, except for acquisitions or activities in the
ordinary course of business that receive written regulatory approval and the
capital of Borrower or BankAtlantic, FSB, as the case may be, is
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deemed "well capitalized" under regulatory guidelines after giving effect to the
acquisition or activities and except for other acquisitions or activities that
the Bank, in its sole discretion, may consent in writing.
Section 6.04. Leases. Create, incur, assume, or suffer to exist, or
permit any Subsidiary to create, incur, assume, or suffer to exist, any
obligation as lessee for the rental or hire of any real or personal property,
except: (1) leases existing on the date of this Agreement and any extensions or
renewals thereof; (2) leases (other than Capital Leases) which do not in the
aggregate require the Borrower and its Subsidiaries on a consolidated basis to
make payments (including taxes, insurance, maintenance, and similar expense
which the Borrower or any Subsidiary is required to pay under the terms of any
lease) in any fiscal year of the Borrower in excess of ONE MILLION AND NO/100
DOLLARS ($1,000,000.00); (3) leases between the Borrower and any Subsidiary or
between any Subsidiaries. The Bank, in its sole discretion, may consent in
writing to additional exceptions.
Section 6.05. Sale and Leaseback. Sell, transfer, or otherwise dispose
of, or permit any Subsidiary to sell, transfer, or otherwise dispose of, any
real or personal property to any Person and thereafter directly or indirectly
lease back the same or similar property.
Section 6.06. Dividends. After the date hereof, make any distribution
in respect of its capital stock or purchase, or redeem or otherwise acquire any
shares of its outstanding capital stock unless such action has been reported to
any and all necessary regulatory authorities and Bank and such regulatory
authorities have not objected to such action, within the applicable period for
objection.
Section 6.07. Sale of Assets. Sell, lease, assign, transfer, or
otherwise dispose of, or permit any Subsidiary to sell, lease, assign, transfer,
or otherwise dispose of, any of its now owned or hereafter acquired assets
(including, without limitation, shares of stock and indebtedness of
Subsidiaries, receivables, and leasehold interest), except: (1) sales of real
property, including sales of significant size, in the ordinary course of
business for Levitt Corporation and its subsidiaries, sale of assets (including
securities) by Borrower, BankAtlantic, F.S.B. and Ryan Beck & Co., Inc. in the
ordinary course of their business; (2) the sale or other disposition of assets
no longer used or useful in the conduct of its business; (3) that any Subsidiary
may sell, lease, assign, or otherwise transfer its assets to the Borrower; and
(4) sales of loans in the ordinary course of business and sales of Real Estate
Owned. The Bank, in its sole discretion, may consent in writing to additional
exceptions.
Section 6.08. Guaranties, Etc. Assume, guarantee, endorse, or otherwise
be or become directly or contingently responsible or liable, or permit any
Subsidiary to assume, guarantee, endorse, or otherwise be or become directly or
contingently responsible or liable (including, but not limited to, an agreement
to purchase any obligation, stock, assets, goods, or services, or to supply or
advance any funds, assets, goods, or services, or an agreement to maintain or
cause such Person to maintain a minimum working capital or net worth, or
otherwise
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to assure the creditors of any person against loss) for obligations of any
Person, except guaranties by endorsement of negotiable instruments for deposits
or collection or similar transactions in the ordinary course of business, except
pursuant to letters of credit issued by bank Subsidiaries in the ordinary course
of business, except currently existing guaranties set forth on Exhibit K hereto
and except future guaranties of a similar nature to those set forth in Exhibit K
hereto consistent with past practices, it being agreed and acknowledged that
Levitt Corporation and Ryan Beck & Co., Inc. shall be permitted to guarantee the
debt of their respective subsidiaries, so long as Borrower or BankAtlantic,
F.S.B. shall not be liable for said indebtedness.
Section 6.09. Transactions with Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any services, with any Affiliate, or permit any Subsidiary to
enter into any transaction, including, without limitation, the purchase, sale,
or exchange of property or the rendering of any service, with any Affiliate,
except in the ordinary course of and pursuant to the reasonable requirements of
the Borrower's or such Subsidiary's business, upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate, and in
compliance with all applicable regulatory and statutory requirements.
Section 6.10. Notwithstanding anything herein to the contrary, neither
Borrower, Borrower's parent, nor any subsidiary of Borrower may create, incur or
assume any additional debt to Levitt Corp., previously known as BankAtlantic
Development Corporation except in accordance with exposure policy described on
Exhibit "L" attached hereto and incorporated herein by reference and current
documentation practices without the prior written consent of Bank, which consent
may be withheld in Bank's sole and absolute discretion.
ARTICLE VII
FINANCIAL COVENANTS
So long as the Note shall remain unpaid:
Section 701. Borrower's bank Subsidiaries shall maintain, at all times,
a total Risked Based Capital ratio of 11% or greater.
Section 7.02. Borrower's bank Subsidiaries shall at all times maintain
a Loan Loss Reserve to Total Loans ratio equal to or greater than 125%.
Section 7.03. Borrower's bank Subsidiaries shall at all times maintain
a Loan Loss Reserve to Non-Performing Loans ratio equal or greater than 100%.
For purposes of this Section 7.03, Non-Performing Loans shall exclude the first
$10,000,000 of purchased non- performing 1-4 family residential real estate
mortgages.
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ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default. An Event of Default shall be deemed to
exist if any of the following events shall occur and is not cured within
applicable cure periods, if any:
(1) The Borrower shall fail to pay the principal of, or
interest on, the Note, or any fee, when due;
(2) Any representation, warranty or certification made or
deemed made by the Borrower in this Agreement, the Security Agreement, or any of
the other Loan Documents, or which is contained in any certificate, document,
opinion, or financial or other statement furnished at any time under or in
connection with any Loan Document, shall prove to have been incorrect,
incomplete, or misleading in any material respect on or as of the date made or
deemed made;
(3) The Borrower shall fail to perform or observe any term,
covenant, condition or agreement contained herein or in any other of the Loan
Documents in any material respect;
(4) Any Event of Default hereunder or in any other of the Loan
Documents shall occur;
(5) The Borrower or any of its Subsidiaries shall (a) fail to
pay any indebtedness for borrowed money (other than the Note) of the Borrower or
such Subsidiary, as the case may be, or any interest or premium thereon, when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise); or (b) in any material respects, fail to perform or observe any
term, covenant, or condition on its part to be performed or observed under any
agreement or instrument relating to any such indebtedness, when required to be
performed or observed, if the effect of such failure to perform or observe is to
accelerate, or to permit the acceleration of, after the giving of notice or
passage of time, or both, the maturity of such indebtedness, and such failure
has not been waived by the holder of such indebtedness or any such indebtedness
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), prior to the stated maturity
thereof and Borrower or its Subsidiaries fails to pay such indebtedness in full;
(6) The Borrower or any of its Subsidiaries (a) shall
generally not pay, or shall be unable to pay, or shall admit in writing its
inability to pay its debts as such debts become due; or (b) shall make an
assignment for the benefit of creditors, or petition or apply to any tribunal
for the appointment of a custodian, receiver, or trustee for it or a substantial
part of its assets; or (c) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (d)
shall have had any such petition or application filed or any such
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proceeding commenced against it in which an order for relief is entered or an
adjudication or appointment is made, and which remains undismissed for a period
of sixty (60) days or more; or (e) shall take any corporate action indicating
its consent to, approval of, or acquiescence in any such petition, application,
proceeding, or order for relief or the appointment of a custodian, receiver, or
trustee for all or any substantial part of its properties; or (f) shall suffer
any such custodianship, receivership, or trusteeship to continue undischarged
for a period of sixty (60) days or more;
(7) One or more judgments, decrees, or orders for the payment
of money in excess of 1% of consolidated shareholders equity of Borrower in the
aggregate shall be rendered against the Borrower or any of its Subsidiaries and
the amount of said judgment(s) not covered by Borrower's or Subsidiaries'
insurance is in excess of Five Hundred Thousand and No/100ths ($500,000.00)
Dollars and such judgments, decrees, or orders shall continue unsatisfied and in
effect for a period of thirty (30) consecutive days without being vacated,
discharged, satisfied, or stayed or bonded pending appeal;
(8) The Security Agreement shall at any time after its
execution and delivery and for any reason cease (a) to create a valid and
perfected first priority security interest in and to the property purported to
be subject to such Security Agreement; or (b) to be in full force and effect or
shall be declared null and void, or the validity or enforceability thereof shall
be contested by the Borrower, or the Borrower shall deny it has any further
liability or obligation under the Security Agreement;
(9) Any of the following events shall occur or exist with
respect to the Borrower and any Commonly Controlled Entity under ERISA; any
Reportable Event shall occur with respect to which the PBGC's notice requirement
is not waived; complete or partial withdrawal from any Multiemployer Plan shall
take place; any Prohibited Transaction shall occur; a notice of intent to
terminate a Plan shall be filed, or a Plan shall be terminated in either case,
other than a standard termination described in Section 4041 of ERISA; or
circumstances shall exist which constitute grounds entitling the PBGC to
institute proceedings to terminate a Plan, or the PBGC shall institute such
proceedings; and in each case above, such event or condition, together with all
other events or conditions, if any, could subject the Borrower to any tax,
penalty, or other liability which in the aggregate may exceed Five Hundred
Thousand and No/100ths ($500,000.00) Dollars; or
(10) The Borrower or any of its Subsidiaries shall (i) be the
subject of any proceeding or investigation pertaining to the release by the
Borrower, any of its Subsidiaries or any other Person of any toxic or hazardous
waste or substance into the environment, or (ii) violate any environmental law,
which in the case of an event described in clause (i) or clause (ii), could
reasonably be expected to have a material adverse effect on (i) the business,
property, condition (financial or otherwise), results of operations, or
prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the
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rights or remedies of the Lender thereunder;
(11) If the Borrower or any of its bank Subsidiaries, or the
directors or executive officers, thereof, becomes subject to any regulatory
enforcement action, which includes without limitation a written agreement,
supervisory directive, capital directive, removal action, or cease and desist
order, which regulatory enforcement action limits or restricts the ability of
Borrower or such Subsidiary to engage in its normal business; or
(12) If the composition of the Board of Directors of Borrower
as presently constituted shall change such that more than forty (40%) percent of
current Board of Directors shall be replaced or removed except for changes
approved by Bank in writing; or
(13) Any bank Subsidiary shall be unable or shall be deemed to
be unable to declare and distribute dividends as a result of restrictions
imposed by applicable regulation or by any banking regulator having jurisdiction
over the bank Subsidiary.
Borrower shall have thirty (30) days following the occurrence
of any non- monetary Event of Default hereunder which is subject to cure and for
which no specific cure period is provided herein in which to cure such
non-monetary event of default.
Section 8.02. Remedies upon Event of Default.
Upon the occurrence of an Event of Default, after the expiration of any
applicable cure period, the Bank may:
(1) By notice to the Borrower, declare the Note, all interest
thereon, and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Note, all such interest, and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest,
or further notice of any kind, all of which are hereby expressly waived by the
Borrower;
(2) At any time and from time to time, without notice to the
Borrower (any such notice being expressly waived by the Borrower), set off and
apply (i) any and all deposits (general or special, time or demand, provisional
or final) of Borrower at any time held by the Bank, and (ii) other indebtedness
at any time owing by the Bank to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower, now or
hereafter existing under this Agreement or the Note or any other Loan Document,
irrespective of whether or not the Bank shall have made any demand under this
Agreement or the Note or under any other of the Loan Documents and although such
obligations may be unmatured;
(3) Exercise from time to time any and all rights and remedies
available to a secured party when a debtor is in default under a security
agreement as provided in the applicable Uniform Commercial Code, or available to
Bank under any other applicable law or in equity,
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including without limitation the right to any deficiency remaining after
disposition of the Collateral;
(4) At its option, and without notice or demand of any kind,
exercise from time to time any and all other rights and remedies available to it
under this Agreement or any of the other Loan Documents;
(5) Borrower shall pay all of the reasonable costs and
expenses incurred by Bank in enforcing its rights under this Agreement and the
other Loan Documents. In the event any claim under this Agreement or under any
of the other Loan Documents is referred to an attorney for collection, or
collected by or through an attorney at law, Borrower will be liable to Bank for
all expenses incurred by it in seeking to enforce its rights hereunder, under
any other of the Loan Documents or in the Collateral, including without
limitation reasonable attorneys' fees; and
(6) Any proceeds from disposition of any of the Collateral may
be applied by Bank first to the payment of all expenses and costs incurred by
Bank in enforcing the rights of Bank under each of the Loan Documents and in
collecting, retaking, holding, preparing the Collateral for and advertising the
sale or other disposition of and realizing upon the Collateral, including
without limitation reasonable attorneys' fees actually incurred, as well as all
other legal expenses and court costs. Any balance of such proceeds may be
applied by Bank toward the payment of the Loan and in such order of application
as the Bank may from time to time elect. Bank shall pay the surplus, if any, to
Borrower. Borrower shall pay the deficiency, if any, to Bank.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment, modification, termination,
or waiver of any provision of any Loan Document to which the Borrower is a
party, nor consent to any departure by the Borrower from any Loan Document to
which it is a party, shall in any event be effective unless the same shall be in
writing and signed by the Bank, and then such
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waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
Section 9.02. Notices, Etc. All notices and other communications
provided for under this Agreement and under the other Loan Documents shall be in
writing (including telegraphic, telex, and facsimile transmissions) and mailed
or transmitted or delivered as follows:
If to the Borrower: BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Ft. Lauderdale, Florida 33304
Attention: Alan B. Levan, CEO
BankAtlantic Bancorp, Inc.
1750 East Sunrise Boulevard
Ft. Lauderdale, Florida 33304
Attention: James White, CFO
With a courtesy
copy to: Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Attention: Alison W. Miller, Esq.
If to the Bank: Columbus Bank and Trust Company
1148 Broadway
P. O. Box 120
Columbus, Georgia 31901
Attention: John Evans
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section 9.02. Except as otherwise provided in this Agreement, all such
notices and communications shall be effective when personally delivered or five
days after deposited in the United States Mail postage prepaid marked certified,
return receipt requested, addressed as aforesaid, except that notices to the
Bank pursuant to the provisions of Section 3.02 shall not be effective until
received by the Bank.
Section 9.03. No Waiver. No failure or delay on the part of the Bank in
exercising any right, power, or remedy granted hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power, or remedy preclude any other or further exercise thereof or the exercise
of any other right, power, or remedy hereunder.
Section 9.04. Successors and Assigns. This Agreement shall be binding
upon and inure
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to the benefit of the Borrower and the Bank and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its rights
under any Loan Document to which the Borrower is a party without the prior
written consent of the Bank.
Section 9.05. Costs, Expenses, and Taxes. The Borrower agrees to pay on
demand all reasonable costs and expenses incurred by the Bank in connection with
the preparation, execution, delivery, filing, and administration of the Loan
Documents, and of any amendment, modification, or supplement to the Loan
Documents, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Bank incurred in connection with advising the Bank
as to its rights and responsibilities hereunder. The Borrower also agrees to pay
all such costs and expenses, including court costs, incurred in connection with
enforcement of the Loan Documents, or any amendments, modification, or
supplement thereto, whether by negotiation, legal proceedings, or otherwise. In
addition, the Borrower shall pay any and all stamp and other taxes and fees
payable or determined to be payable in connection with the execution, delivery,
filing, and recording of any of the Loan Documents and the other documents to be
delivered under any such Loan Documents, and agrees to hold the Bank harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees. This provision shall
survive termination of this Agreement.
Section 9.06. Integration. This Agreement and the Loan Documents
contain the entire agreement between the parties relating to the subject matter
hereof and supersede all oral statements and prior writing with respect thereto
including the loan commitment.
Section 9.07. Indemnity. The Borrower hereby agrees to defend,
indemnify, and hold the Bank harmless from and against any and all claims,
damages, judgments, penalties, costs, and expenses (including attorney's fees
and court costs now or hereafter arising from the aforesaid enforcement of this
clause) arising directly or indirectly from the activities of the Borrower and
its Subsidiaries, and its predecessors in interest, or arising directly or
indirectly from the Borrower's or any Subsidiaries', or any predecessors in
interests, violation of any environmental protection, health, or safety law,
whether such claims are asserted by any governmental agency or any other person.
This indemnity shall survive termination of this Agreement.
Section 9.08. Governing Law. This Agreement and the Note shall be
governed by, and construed in accordance with, the laws of the State of Georgia.
Section 9.09. Severability of Provisions. Any provision of any Loan
Document 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 of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
Section 9.10. Headings. Article and Section headings in the Loan
Documents are included in such Loan Documents for the convenience of reference
only and shall not constitute a
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part of the applicable Loan Documents for any other purpose.
Section 9.11. JURY TRIAL WAIVER. THE BANK AND THE BORROWER HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN
CONTRACT OR TORT, AT LAW OF IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT OR THE LOAN DOCUMENTS. NO OFFICER OF THE BANK HAS AUTHORITY TO
WAIVE, CONDITION OR MODIFY THIS PROVISION.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
BANKATLANTIC BANCORP, INC., a
Florida corporation
By:
---------------------------------------
Its:
-----------------------------------
BANK
COLUMBUS BANK AND TRUST
COMPANY, a Georgia banking corporation
By:
---------------------------------------
Its:
-----------------------------------
(CORPORATE SEAL)
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