EXHIBIT 10.5
AMENDED AND RESTATED
LOAN AND STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED LOAN AND STOCK PLEDGE AGREEMENT (the
"Agreement"), entered into as of June 27, 2003, as amended and restated as of
October 30, 2003, between UNITED COMMUNITY BANKS, INC., a Georgia corporation
(the "Borrower"), and THE BANKERS BANK, a Georgia Banking corporation (the
"Lender").
On June 27, 2003, Borrower and Lender entered into a Loan and Stock
Pledge Agreement (the "Original Loan Agreement") pursuant to which the Borrower
borrowed the principal amount of up to FORTY MILLION AND NO/100 ($40,000,000.00)
DOLLARS from the Lender (the "Loan"), which Loan is evidenced by the Promissory
Note dated June 27, 2003, and amended this date (as amended, the "Note"). The
Lender is willing to continue to make the Loan to the Borrower on the terms and
conditions described below. The Borrower and Lender agree that the payment and
performance of all obligations relating to the Loan will be secured through the
pledge to the Lender of all the issued and outstanding shares of capital stock
owned or hereafter acquired by the Borrower (collectively the "Stock") in United
Community Bank, Murphy, North Carolina, and United Community Bank, Lenoir City,
Tennessee, (each a "Bank" and all collectively the "Bank"). Certain capitalized
terms used in this Agreement are defined in Section 22 of this Agreement. From
and after the date hereof, all references to the "Agreement" or the "Loan
Agreement" contained in any of the Financing Documents shall be deemed to be a
reference to this Agreement. This Agreement is not intended as a novation of the
Loan.
Borrower and Lender desire to amend the Original Loan Agreement in
certain respects and to amend and restate the Original Loan Agreement in its
entirety. In consideration of the premises and the mutual agreements and
representations in this Agreement, the Lender and the Borrower hereby amend and
restate the Original Loan Agreement in its entirety and agree as follows:
1. SECURITY INTEREST.
(a) The Borrower hereby unconditionally grants and assigns to the
Lender and its successors and assigns a continuing security interest in and
security title to the Stock. The Borrower hereby delivers to the Lender all of
its right, title and interest in and to the Stock, together with certificates
representing the Stock and stock powers endorsed in blank, as security for (i)
all obligations of the Borrower to the Lender hereunder, and (ii) payment and
performance of all obligations of the Borrower to the Lender under the Note,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due. If the Borrower receives, for any reason whatsoever,
any additional shares of the capital stock of the Bank, such shares shall
thereupon constitute Stock to be held by the Lender under the terms of this
Agreement and the Borrower shall immediately deliver such shares to the Lender,
together with stock powers endorsed in blank by the Borrower. Beneficial
ownership of the Stock, including all voting, consentual and dividend rights,
shall remain in the Borrower until the occurrence of a Default.
(b) If, prior to repayment in full of the Loan, the aggregate book
value of the Stock becomes $80,000,000.00 or less, the Borrower shall promptly
deliver to the Lender on demand additional collateral of a type and value
acceptable to the Lender (and the Lender's judgment in valuing same shall be
conclusive) so that the sum of the value of such additional collateral plus the
aggregate book value of the Stock is at all times equal to or in excess of
$80,000,000.00. The Borrower shall also execute any security documents the
Lender may request to evidence and perfect the Lender's rights in such
additional collateral. If at any time such additional collateral is no longer
required pursuant to this Section 1(b), the Lender shall release its security
interest in such additional collateral upon the request of the Borrower, subject
to the Lender's right to subsequently demand additional collateral, including,
without limitation, additional collateral previously released.
2. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lender as follows:
(a) The Borrower is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Georgia and is
qualified to do business in all jurisdictions where such qualification is
necessary. The Borrower is registered as a Bank holding company with the Board
of Governors of the Federal Reserve System and the Georgia Department of Banking
and Finance. The chief executive office of the Borrower and the principal place
of business of the Borrower where the records of the Borrower are kept are
located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and the Borrower's
U.S. employer identification number is ▇▇-▇▇▇▇▇▇▇. The Bank has all requisite
corporate power and authority and possesses all licenses, permits and
authorizations necessary for it to own its properties and conduct its business
as presently conducted.
(b) Each Bank is a Banking corporation duly organized,
validly existing, and in good standing under the laws of the State in which it
is located. The Borrower owns all the Stock (consisting of 100% of all stock
issued by United Community Bank, Murphy, North Carolina; United Community Bank,
Lenoir City, Tennessee) and there are no other outstanding shares of capital
stock and no outstanding options, warrants or other rights which can be
converted into shares of capital stock of the Bank. Each Bank has all requisite
corporate power and authority and possesses all licenses, permits and
authorizations necessary for it to own its properties and conduct its business
as presently conducted.
(c) Each financial statement of the Borrower or any
Subsidiary which has been delivered to the Lender presents fairly the financial
condition of the Borrower or such Subsidiary as of the date indicated therein
and the results of its operations for the periods shown therein. There has been
no material adverse change, either existing or threatened, in the financial
condition or operations of the Borrower or any Subsidiary since the date of the
most recent such financial statement.
(d) The Borrower has full power and authority to execute
and perform the Financing Documents. The execution, delivery, and performance by
the Borrower of the Financing Documents (i) have been duly authorized by all
requisite action by the Borrower, (ii) do not violate any provision of law, and
(iii) do not result in a breach of or constitute a default under any agreement
or other instrument to which the Borrower or any Subsidiary is a party or which
the Borrower or any Subsidiary is bound. Each of the Financing Documents
constitutes the legal, valid, and binding obligation of the Borrower enforceable
in accordance with its terms.
(e) Except for the security interest created by this
Agreement, the Borrower owns the Stock free and clear of all liens, charges, and
encumbrances. The Stock is duly issued, fully paid and non-assessable, and the
Borrower has the unencumbered right to pledge the Stock.
(f) There is no action, arbitration, or other proceeding
at law or in equity, or by or before any court, agency, or arbitrator, nor is
there any judgment, order, or other decree pending, anticipated, or threatened
against the Borrower or any Subsidiary or against any of their properties or
assets which might have a material adverse effect on the Borrower, any
Subsidiary, or their respective properties or assets, or which might call into
question the validity or enforceability of the Financing Documents, or which
might involve the alleged violation by the Borrower or any Subsidiary of any
law, rule or regulation or judgment order or decree binding on Borrowers or any
subsidiary on their respective property or assets.
(g) No consent or notice to or other authorization or
filing with or of any governmental authority or other public body on the part of
the Borrower or any Subsidiary is required in connection with the Borrower's
execution, delivery, or performance of the Financing Documents; or if required,
all such prerequisites have been fully satisfied.
(h) None of the transactions contemplated in this
Agreement (including, without limitation, the use of the proceeds of the Loan)
will violate or result in a violation of Section 7 of the Securities Exchange
Act of 1934, or any regulations issued pursuant thereto.
(i) The following are attached as exhibits hereto: true,
correct and complete copies of (i) the Borrower's and each Bank's articles of
incorporation as in effect as of the date here (as certified
-2-
by the Georgia Secretary of State or other State of corporate domicile on June
25, 2002; (ii) certificates of existence for the Borrower and each Bank issued
by the Georgia Secretary of State or other State of corporate domicile on June
25, 2002; (iii) the bylaws of the Borrower in effect immediately prior to the
adoption of the resolutions referred to below (and such bylaws have not been
further altered or amended and have been in full force and effect at all times
since the adoption of such resolutions through the date hereof); (iv) the bylaws
of each Bank as of the date hereof; and (v) resolutions (the "Resolutions") of
the Board of Directors of the Borrower duly adopted at a meeting duly called and
held on October 23, 2003. A quorum for the transaction of business was present
and acting throughout the meeting at which the Resolutions were adopted, and the
Resolutions have been since adoption and are now in full force and effect and
have not been modified or rescinded in any respect. There have been no further
amendments or other documents affecting or altering the Borrower's or each
Bank's articles of incorporation since the date of the certifications referred
to above through the date hereof, and the Borrower and each Bank have remained
in valid existence under the laws of the State of Georgia since such dates.
3. AFFIRMATIVE COVENANTS. The Borrower agrees that so long as the
Note is outstanding or this Agreement is in effect, or any portion of the loan
remains unpaid:
(a) The Borrower shall promptly furnish to the Lender:
(i) not later than 120 days after the end of each fiscal year, audited
consolidated financial statements of the Borrower prepared in accordance with
generally accepted accounting principles ("GAAP") and certified by an
independent accounting firm acceptable to the Lender; (ii) not later than 45
days after each of the first three quarters of each fiscal year, unaudited
consolidated financial statements of the Borrower, prepared in accordance with
GAAP (subject to changes resulting from normal year-end adjustments) and
certified by the chief financial officer of the Borrower; (iii) not later than
30 days after the end of each of the first three quarters of each year, copies
of the Report of Condition and the Report of Income and Dividends of each of the
Bank Subsidiaries; (iv) immediately after the occurrence of a material adverse
change in the business, properties, condition, management, or prospects
(financial or otherwise) of the Borrower, including, without limitation,
imposition of any memorandum of understanding, cease and desist order, or other
similar regulatory action involving the Borrower or any Bank Subsidiary, a
statement of the Borrower's chief executive officer or chief financial officer
setting forth in reasonable detail such change and the action which the Borrower
or any Bank Subsidiary proposes to take with respect thereto; and (v) from time
to time upon request of the Lender, such other information relating to the
operations, business, condition, management, properties, or prospects of the
Borrower or any Bank Subsidiary as the Lender may request (including meetings
with the Borrower's or Bank Subsidiary's officers and employees).
(b) The Borrower and each Subsidiary shall punctually pay
and discharge all taxes, assessments and other governmental charges or levies
imposed upon it or upon its income or upon any of its property, unless the
Borrower is contesting such a charge or levy and has made adequate reserves
therefor.
(c) The Borrower and each Subsidiary shall comply in all
material respects with all requirements of constitutions, statutes, rules,
regulations, and orders and all orders and decrees of courts and arbitrators
applicable to it or its properties.
(d) The Borrower shall immediately notify the Lender of
any change in the Chief Executive Officer or any Executive Vice President of the
Borrower.
4. NEGATIVE COVENANTS. The Borrower agrees that so long as the
Note is outstanding or this Agreement is in effect:
(a) The Borrower shall not permit its Capital at any time
during the term of this Agreement to be less than $80,000,000.00.
(b) The Borrower shall not permit the ratio of Tier 1
Capital to average total assets (the Tier 1 Leverage Ratio) of the Borrower or
any of the Bank Subsidiaries as of the end of any fiscal year to be less than
6.00%.
-3-
(c) The Borrower shall not permit the Total Risk Based
Ratio of the Borrower or any of the Bank Subsidiaries as of the end of any
fiscal year to be less than 9.00%.
(d) The Borrower shall not, and shall not permit any of
the Bank Subsidiaries to, fail to comply with any minimum capital requirement
imposed by any of their federal or state regulators.
(e) The Borrower shall not permit the Allowance for Loan
and Lease Losses to fall below 200.0% of Non-Performing Loans for the Borrower
and each Bank Subsidiary. Loan Review Reports will be required should the
Borrower become noncompliant.
(f) The Borrower shall not permit the allowance for loan
and lease losses of any of the Bank Subsidiaries to be less than 1.00% of its
gross loans for each year-end.
(g) The Borrower shall not (i) enter into a Change of
Control transaction; (ii) purchase or otherwise acquire all or substantially all
of the assets or stock of another Person (which Person would, upon the
consummation of such transaction, become a Bank Subsidiary), if, as a result of
the transaction, the total assets of the Borrower and all of its Subsidiaries
increase by more than 33%; or (iii) purchase or otherwise acquire all or
substantially all of the assets or stock of any Person (which Person would not,
upon the consummation of such transaction, become a Bank Subsidiary) if the
total revenue of such Person, as determined in accordance with GAAP, is more
than 20% of the Borrower's total revenue in the immediately preceding fiscal
year, which, solely for purposes of this Section 4(g), total revenue shall equal
the net interest income of the Borrower plus the non interest income of the
Borrower, each for the immediately preceding fiscal year and each determined in
accordance with GAAP.
(h) The Borrower shall not without written notification
to Lender given within 30 days of the date of any signed agreement, and in all
events at least 60 days prior to the closing of any such transaction, issue,
create, incur, assume or otherwise become liable with respect to (or agree to
issue, create, incur, assume or otherwise become liable with respect to), or
permit to remain outstanding, any indebtedness, except: (i) indebtedness
disclosed on the Borrower's most recent financial statements, provided that such
indebtedness shall not be renewed, extended or increased; (ii) indebtedness to
M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank or Compass Bank under the Credit Agreement in an
amount not to exceed $45,000,000; (iii) indebtedness for commercial paper of the
Borrower in an amount not to exceed $40,000,000; (iv) Federal Home Loan bank
indebtedness or federal funds indebtedness incurred in the ordinary course of
business by any Bank Subsidiary; and (v) indebtedness with respect to deposit
accounts or similar accounts, including repurchase agreements.
(i) The Borrower shall not, directly or indirectly,
become a guarantor of any obligation of, or an endorser of, or otherwise assume
or become liable upon any notes, obligations, or other indebtedness of any other
Person (other than a Subsidiary) except in connection with the depositing of
checks in the normal and ordinary course of business.
(j) The Borrower shall not permit any Subsidiary to
issue, sell or otherwise dispose of or part with control of any shares of any
class of its stock (other than directors' qualifying shares) except to the
Borrower or a wholly-owned Subsidiary of the Borrower.
(k) The Borrower shall not sell or otherwise dispose of
or part with control of any of the Stock or any other securities or indebtedness
of any Subsidiary.
(l) Without the prior written consent of the Lender, to
be given or withheld in Lender's sole discretion, the Borrower shall not, and
shall not permit any of the Bank Subsidiaries to grant a security interest in or
pledge any assets to any other Person or to transfer or dispose of any material
portion of or interest in the assets of each Bank to any other Person, except
for (x) pledges of assets of each Bank as security for indebtedness owed to the
Lender or indebtedness permitted by Section 4(h)(i), (iii), (iv) and (v); (y)
pledges of assets of Bank Subsidiaries other than a Bank as security for
indebtedness permitted by Section 4(h); and (z) pledges of assets of Bank
Subsidiaries as security for
-4-
government deposits, repurchase agreements and other transactions in the
ordinary course of business, consistent with historical practices of the
Borrower and the Bank Subsidiaries.
(m) The Borrower shall not pay any cash dividends if the
Loan is in Default or if the payment of such dividend would create a Default, or
during any notice or cure period.
(n) The Borrower shall not permit its Return on Average
Assets at the end of any fiscal year to be less than .60%. This Return will be
calculated by dividing the Net Income of the Borrower for the previous year,
excluding the effect of interest on this loan, by the Consolidated Average
Assets of the Borrower for the previous year.
(o) Maximum Loan to Value shall not exceed 50% at all
times.
(p) The Borrower shall maintain the separate existence of
each Bank and only acquire any new Bank Subsidiary as a separate Bank Subsidiary
or by a merger or consolidation into any Bank Subsidiary.
5. ADVANCES UNDER THE LOAN. The Lender shall not be obligated to
make any advance of the Loan to the Borrower, unless in each instance, at the
time of each advance:
(a) All representations and warranties of the Borrower
contained in this Agreement or the Note shall be true in all respects.
(b) The Borrower and each Subsidiary shall have performed
in all material respects all their agreements and obligations required by the
Financing Documents.
(c) No material adverse change shall have occurred in the
Borrower's or any Subsidiary's condition (financial or otherwise), or in the
business, properties, assets, liabilities, prospects, or management of the
Borrower or any Subsidiary since the date of this Agreement.
(d) No Default or event which, with the giving of notice
or passage of time (or both), would constitute a Default under the terms of this
Agreement shall have occurred.
(e) All other matters incidental to the Loan shall be
satisfactory to the Lender.
(f) All fundings over Lender's legal lending limit at the
time of any advance, $17,000,001 at the date hereof, shall be subject to the
express condition provided that Lender has been able to obtain participation
commitments from respondent banks in amounts sufficient to assure compliance
with regulatory requirements. The amount subject to sale may be adjusted from
time to time based upon the Lender's legal lending limit.
6. DEFAULT. A "Default" shall exist if any of the following
occurs:
(a) Failure of the Borrower punctually to make any
payment of any amount payable, whether principal or interest or other amount, on
any of the Liabilities, whether at maturity, or at a date fixed for any
prepayment or partial prepayment, or by acceleration, or otherwise.
(b) Any statement, representation, or warranty of the
Borrower made in any of the Financing Documents or at any time furnished by or
on behalf of the Borrower to the Lender shall be false or misleading in any
material respect as of the date made.
(c) Failure of the Borrower punctually and fully to
comply with any of the covenants in Section 4, with exception to covenants (a),
(b), and (c), of this Agreement or any of the other covenants set forth in this
Agreement if such failure under this clause is not remedied within 15 days, this
being the cure period, after notice from the Lender to the Borrower. Failure of
the Borrower punctually and fully to comply with covenants (a), (b), and (c) of
Section 4 of this Agreement if such failure under this clause is
-5-
not remedied by the end of the subsequent quarter, this being the cure period,
after notice from the Lender to the Borrower.
(d) The occurrence of a default under any other agreement
to which the Borrower and the Lender are parties or under any other instrument
executed by the Borrower in favor of the Lender.
(e) If the Borrower or any Subsidiary becomes insolvent
as defined in the Georgia Uniform Commercial Code or makes an assignment for the
benefit of creditors; or if any action is brought by the Borrower or any
Subsidiary seeking dissolution of the Borrower or such Subsidiary or liquidation
of its assets or seeking the appointment of a trustee, interim trustee,
receiver, or other custodian for any of its property; or if the Borrower or any
Subsidiary commences a voluntary case under the Federal Bankruptcy Code; or if
any reorganization or arrangement proceeding is instituted by the Borrower or
any Subsidiary for the settlement, readjustment, composition or extension of any
of its debts upon any terms; or if any action or petition is otherwise brought
by the Borrower or any Subsidiary seeking similar relief or alleging that it is
insolvent or unable to pay its debts as they mature.
(f) Any action is brought against the Borrower or any
Subsidiary seeking dissolution of the Borrower or such Subsidiary or liquidation
of any of its assets or seeking the appointment of a trustee, interim trustee,
receiver, or other custodian for any of its property, and such action is
consented to or acquiesced in by the Borrower or such Subsidiary or is not
dismissed within 30 days of the date upon which it was instituted; or any
proceeding under the Federal Bankruptcy Code is instituted against the Borrower
or any Subsidiary and (i) an order for relief is entered in such proceeding or
(ii) such proceeding is consented to or acquiesced in by the Borrower or such
Subsidiary or is not dismissed within 30 days of the date upon which it was
instituted; or any reorganization or arrangement proceeding is instituted
against the Borrower or any Subsidiary for the settlement, readjustment,
composition, or extension of any of its debts upon any terms, and such
proceeding is consented to or acquiesced in by the Borrower or such Subsidiary
or is not dismissed within 30 days of the date upon which it was instituted; or
any action or petition is otherwise brought against the Borrower or any
Subsidiary seeking similar relief or alleging that it is insolvent, unable to
pay its debts as they mature, or generally not paying its debts as they become
due, and such action or petition is consented to or acquiesced in by the
Borrower or such Subsidiary or is not dismissed within 30 days of the date upon
which it was brought.
(g) The Borrower or any Subsidiary is in default (or an
event has occurred which, with the giving of notice or passage of time, or both,
will cause the Borrower or any Subsidiary to be in default) on indebtedness to
another Person, and the amount of such indebtedness exceeds $25,000 or the
acceleration of the maturity of such indebtedness would have a material adverse
effect upon the Borrower or such Subsidiary, unless the Borrower or any
Subsidiary is contesting such default in good faith.
(h) Any other material adverse change occurs in the
Borrower's financial condition or means or ability to pay the Liabilities.
(i) Any cease and desist or other order has been
threatened, noticed, or entered against the Borrower or any Subsidiary by any
Bank or Bank holding company regulatory agency or body, or the Borrower or any
Subsidiary enters into any form of memorandum of understanding, plan of
corrective action, or letter agreement with any such regulatory agency or body,
or any other regulatory enforcement action is taken against the Borrower or any
Subsidiary relating to the capitalization, management, or operation of the
Borrower or any Subsidiary.
(j) The Borrower or any Subsidiary is indicted or
convicted or pleads guilty or nolo contendere to any charge that the Borrower or
such Subsidiary has violated any drug, controlled substances, money laundering,
currency reporting, racketeering, or racketeering-influenced-and-corrupt-
organization statute or regulations other forfeiture statute.
(k) The Borrower ceases to own 100% of the issued and
outstanding capital stock of each Bank or ceases to control any of the other
Bank Subsidiaries.
-6-
7. REMEDIES UPON DEFAULT. Upon the occurrence of a Default, the
Lender shall be entitled, without limitation, to exercise the following rights
at any time and from time to time, which the Borrower hereby agrees to be
commercially reasonable:
(a) declare any of the Liabilities due and payable,
whereupon they immediately will become due and payable (notwithstanding any
provisions to the contrary, and without presentment, demand, notice or protest
of any kind (all of which are expressly waived by the Borrower));
(b) (i) receive all amounts payable in respect of the
Collateral otherwise payable to the Borrower; (ii) settle all accounts, claims,
and controversies relating to the Collateral; (iii) transfer all or any part of
the Collateral into the Lender's or any nominee's name; and (iv) execute all
agreements and other instruments; bring, defend and abandon all actions and
other proceedings; and take all actions in relation to the Collateral as the
Lender in its sole discretion may determine;
(c) enforce the payment of the Stock and exercise all of
the rights, powers and remedies of the Borrower thereunder, including the
exercise of all voting rights and other ownership or consentual rights of the
Stock (but the Lender is not hereby obligated to exercise such rights), and in
connection therewith the Borrower hereby appoints the Lender to be the
Borrower's true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote the
Stock in any manner the Lender deems advisable for or against all matters
submitted to a vote of shareholders, and such power-of-attorney is coupled with
an interest and irrevocable;
(d) sell, assign and deliver, or grant options to
purchase, all or any part of or interest in the Collateral in one or more
parcels, at any public or private sale at any exchange, any of the Lender's
offices, or elsewhere, without demand of performance, advertisement, or notice
of intention to sell or of the time or place of sale or adjournment thereof or
to redeem or otherwise (all of which are hereby expressly and irrevocably waived
by the Borrower), for cash, on credit, or for other property, for immediate or
future delivery without any assumption of credit risk, and for such price and on
such terms as the Lender in its sole discretion may determine; the Borrower
agrees that to the extent that notice of sale shall be required by law that at
least five business days' notice to the Borrower of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification; the Lender shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given; the
Lender may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and any such sale may, without further
notice, be made at the time and place to which it was so adjourned; the Borrower
hereby waives and releases to the fullest extent permitted by law any right or
equity of redemption with respect to the Collateral, whether before or after
sale hereunder, and all rights, if any, of marshalling the Collateral and any
other security for the Loan or otherwise; at any such sale, unless prohibited by
applicable law, the Lender may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption; and the
Lender shall not be liable for failure to collect or realize upon any or all of
the Collateral or for any delay in so doing nor shall any of them be under any
obligation to take any action whatsoever with regard thereto;
(e) appoint and dismiss managers or other agents for any
of the purposes mentioned in the foregoing provisions of this Section 7, all as
the Lender in its sole discretion may determine but Lender shall have no
obligation to do so; and
(f) generally, take all such other action as the Lender
in its sole discretion may determine as incidental or conducive to any of the
matters or powers mentioned in this Section 7 and which the Lender may or can do
lawfully and use the name of the Borrower for such purposes and in any
proceedings arising therefrom.
8. APPLICATION OF PROCEEDS. The proceeds of the public or private
sale or other disposition of any Collateral hereunder shall be applied to (i)
the costs incurred in connection with the sale, expressly including, without
limitation, any costs under Section 11(a) hereof; (ii) any unpaid interest which
may have accrued on any obligations secured hereby; (iii) any unpaid principal
on any obligations secured hereby; and (iv) damages incurred by the Lender by
reason of any breach secured against hereby, in such
-7-
order as the Lender may determine, and any remaining proceeds shall be paid over
to the Borrower or others as by law provided. If the proceeds of the sale or
other disposition of the Collateral are insufficient to pay all such amounts,
the Borrower shall remain liable to the Lender for the deficiency.
9. ADDITIONAL RIGHTS OF SECURED PARTIES. In addition to its other
rights and privileges under this Agreement, the Lender may exercise from time to
time any and all other rights and remedies available to a secured party when a
debtor is in default under a security agreement as provided in the Uniform
Commercial Code of Georgia, or available to the Lender under any other
applicable law or in equity, including without limitation the right to any
deficiency remaining after disposition of the Collateral. The Borrower shall pay
all of the reasonable costs and expenses (including reasonable attorneys' fees)
incurred by the Lender in enforcing its rights under this Agreement.
10. RETURN OF STOCK TO BORROWER. Upon payment in full of all
principal and interest on the Note and full performance by the Borrower of all
covenants and other obligations under this Agreement, and other Financing
Documents, the Lender shall return to the Borrower (i) all of the then remaining
Stock and (ii) all rights received by the Lender as agent for the Borrower as a
result of its possessory interest in the Stock.
11. DISPOSITION OF STOCK BY AGENT. The Stock is not registered
under the various federal or state securities laws and disposition thereof after
default may be subject to prior regulatory approval and may be restricted to one
or more private (instead of public) sales in view of the lack of such
registration. The Borrower acknowledges that upon such disposition, the Lender
may approach only a restricted number of potential purchasers and that a sale
under such circumstances may yield a lower price for the Stock than if the Stock
were registered pursuant to federal and state securities laws and sold on the
open market. The Borrower, therefore, agrees that:
(a) if the Lender shall, pursuant to the terms of this
Agreement, sell or cause any of the Stock to be sold at a private sale, the
Lender shall have the right to rely upon the advice and opinion of any national
brokerage or investment firm having recognized expertise and experience in
connection with shares of companies in the Banking industry (but shall not be
obligated to seek such advice and the failure to do so shall not be considered
in determining the commercial reasonableness of the Lender's action) as to the
best manner in which to expose the Stock for sale and as to the best price
reasonably obtainable at the private sale thereof; and
(b) such reliance shall be conclusive evidence that the
Lender has handled such disposition in a commercially reasonable manner.
12. BORROWER'S OBLIGATIONS ABSOLUTE. The obligations of the
Borrower under this Agreement shall be direct and immediate and not conditional
or contingent upon the pursuit of any other remedies against the Borrower or any
other Person, nor against other security or liens available to the Lender or its
successors, assigns or agents. The Borrower hereby waives any right to require
that an action be brought against any other Person or require that resort be had
to any security or to any balance of any deposit account or credit on the books
of the Lender in favor of any other Person prior to any exercise of rights or
remedies hereunder, or to require resort to rights or remedies of the Lender in
connection with the Loan.
13. NOTICES. Except as provided otherwise in this Agreement, all
notices and other communications under this Agreement are to be in writing and
are to be deemed to have been duly given and to be effective upon delivery to
the party to whom they are directed. If sent by U.S. mail, first class,
certified, return receipt requested, postage prepaid, and addressed to the
Lender or to the Borrower at their respective addressees set forth below, such
communications are deemed to have been delivered on the second business day
after being so posted.
-8-
If to the Lender: The Bankers Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Credit Administration
If to the Borrower: United Community Banks, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Either the Lender or the Borrower may, by written notice to the other,
designate a different address for receiving notices under this Agreement;
provided, however, that no such change of address will be effective until
written notice thereof is actually received by the party to whom such change of
address is sent.
14. BINDING AGREEMENT. The provisions of this Agreement shall be
construed and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the laws of the State of Georgia without regard
to conflicts of law principles. This Agreement, together with all documents
referred to herein, constitutes the entire Agreement between the Borrower and
the Lender with respect to the matters addressed herein and may not be modified
except by a writing executed by the Lender and delivered by the Lender to the
Borrower. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original but all of which, taken together, shall constitute
one and the same instrument.
15. PARTICIPATIONS. The Lender may at any time grant
participations in or sell, assign, transfer or otherwise dispose of all or any
portion of the indebtedness of the Borrower outstanding pursuant to the
Financing Documents. The Borrower hereby agrees that any holder of a
participation in, and any assignee or transferee of, all or any portion of any
amount owed by the Borrower under the Financing Documents (i) shall be entitled
to the benefits of the provisions of this Agreement as the Lender hereunder and
(ii) may exercise any and all rights of the Banker's lien, set-off or
counterclaim with respect to any and all amounts owed by the Borrower to such
assignee, transferee or holder as fully as if such assignee, transferee or
holder had made the Loan in the amount of the obligation in which it holds a
participation or which is assigned or transferred to it.
16. EXPENSES. All reports and other documents or information
furnished to the Lender under this Agreement shall be supplied by the Borrower
without cost to the Lender. Further, the Borrower shall reimburse the Lender on
demand for all out-of-pocket costs and expenses (including reasonable legal
fees) incurred by the Lender in connection with the preparation, interpretation,
operation, and enforcement of the Financing Documents or the protection or
preservation of any right or claim of the Lender with respect to such
agreements. The Borrower will pay all taxes (if any) in connection with the
Financing Documents. The obligations of the Borrower under this section shall
survive the payment of the Liabilities and the termination of this Agreement.
17. INDEMNIFICATION. In addition to any other amounts payable by
the Borrower under this Agreement, the Borrower shall pay and indemnify the
Lender from and against all claims, liabilities, losses, costs, and expenses
(including, without limitation, reasonable attorneys' fees and expenses) which
the Lender may (other than as a result of the gross negligence or willful
misconduct of the Lender) incur or be subject to as a consequence, directly or
indirectly, of (i) any breach by the Borrower of any warranty, term or condition
in, or the occurrence of any default under, any of the Financing Documents,
including all fees or expenses resulting from the settlement or defense of any
claims or liabilities arising as a result of any such breach or default, (ii)
the Lender's making, holding, or administering the Loan or the Collateral, (iii)
allegations of participation or interference by the Lender in the management,
contractual relations or other affairs of the Borrower or any Subsidiary, (iv)
allegations that the Lender
-9-
has joint liability with the Borrower or any Subsidiary for any reason, and (v)
any suit, investigation, or proceeding as to which the Lender or such
participant is involved as a consequence, directly or indirectly, of its
execution of any of the Financing Documents, or any other event or transaction
contemplated by any of the foregoing. The obligations of Borrower under this
Section 17 shall survive the termination of this Agreement.
18. RIGHT TO SET-OFF. Upon the occurrence of a Default hereunder,
the Lender, without notice or demand of any kind, may hold and set off against
such of the Liabilities (whether matured or unmatured) as the Lender may elect
any balance or amount to the credit of the Borrower in any deposit, agency,
reserve, holdback or other account of any nature whatsoever maintained by or on
behalf of the Borrower with the Lender at any of its offices, regardless of
whether such accounts are general or special and regardless of whether such
accounts are individual or joint. Any Person purchasing an interest in debt
obligations under this Agreement held by the Lender may exercise all rights of
offset with respect to such interest as fully as if such Person were a holder of
debt obligations hereunder in the amount of such interest.
19. FURTHER ASSURANCES. If at any time the Lender upon advice of
its counsel shall determine that any further document shall be required to
effect this Agreement and the transactions and other agreements contemplated
thereby, the Borrower shall, and shall cause its Subsidiaries to, execute and
deliver such document and otherwise carry out the purposes of this Agreement.
20. SEVERABILITY. If any paragraph or part thereof shall for any
reason be held or adjudged to be invalid, illegal, or unenforceable by any court
of competent jurisdiction, such paragraph or part thereof shall be deemed
separate, distinct, and independent, and the remainder of this Agreement shall
remain in full force and effect and shall not be affected by such holding or
adjudication.
21. BINDING EFFECT. All rights of the Lender under the Financing
Documents shall inure to the benefit of its transferees, successors and assigns.
All obligations of the Borrower under the Financing Documents shall bind its
heirs, legal representatives, successors, and assigns.
22. DEFINITIONS.
(a) "Bank Subsidiaries" means each Banking Subsidiary of
Borrower, now or hereafter in existence, including but not limited to each Bank.
(b) "Capital" means all capital or all components of
capital, other than any allowance for loan and lease losses and net of any
intangible assets, as defined from time to time by the primary federal regulator
of the Borrower, each Bank, or each of the other Bank Subsidiaries (as the case
may be).
(c) "Change of Control" shall mean (a) the acquisition by
any Person, or two or more Persons acting in concert, of the beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20% or more of the
outstanding shares of voting ownership interests of the Borrower; provided,
however, that the acquisition by any Person, or two or more Persons, of the
beneficial ownership of 20% or more of the outstanding shares of the Borrower in
connection with the acquisition by the Borrower of any company in which such
Person or Persons are shareholders shall not be a "Change in Control" provided
that such Person or Persons do not in the aggregate acquire more than 45% of
such outstanding shares, or (b) the lease, sale or transfer or other disposition
of all or substantially all of the assets of the Borrower or any Subsidiary in
one or a series of transactions to any Person, or two or more Persons acting in
concert.
(d) "Collateral" means and includes all property assigned
or pledged to the Lender or in which the Lender has been granted security
interest or to which the Lender has been granted security title, whether under
any of the Financing Documents or any other agreement, instrument, or document,
and the proceeds thereof.
-10-
(e) "Financing Documents" means and includes this
Agreement, the Note, and all other associated loan and collateral documents
including, without limitation, all guaranties, suretyship agreements, stock
powers, security agreements, security deeds, subordination agreements, exhibits,
schedules, attachments, financing statements, notices, consents, waivers,
opinions, letters, reports, records, assignments, documents, instruments,
information and other writings related thereto, or furnished by the Borrower to
the Lender in connection therewith or in connection with any of the Collateral,
and any amendments, extensions, renewals, modifications or substitutions thereof
or therefor.
(f) "Liabilities" means all indebtedness, liabilities,
and obligations of the Borrower of any nature whatsoever which the Lender may
now or hereafter have, own or hold, and which are now or hereafter owing to the
Lender regardless of however and whenever created, arising or evidenced, whether
now, heretofore or hereafter incurred, whether now, heretofore or hereafter due
and payable, whether alone or together with another or others, whether direct or
indirect, primary or secondary, absolute or contingent, or joint or several, and
whether as principal, maker, endorser, guarantor, surety or otherwise, and also
regardless of whether such Liabilities are from time to time reduced and
thereafter increased or entirely extinguished and thereafter reincurred,
including without limitation the Note and any amendments, extensions, renewals,
modifications or substitutions thereof or therefor.
(g) "Note" shall mean the promissory note dated June 27,
2003 and amended the date hereof in the principal amount of up to $40,000,000.00
and any amendments, extensions, renewals, modifications, or substitutions
thereof or therefor in effect at any particular time.
(h) "Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
(i) "Subsidiary" means each of the Bank Subsidiaries and
each other corporation for which the Borrower has the power, directly or
indirectly, to direct its management or policies or to vote 25% or more of any
class of its voting securities.
(j) "Tier 1 Capital" means Tier 1 capital as defined by
the capital maintenance regulations of the primary federal Bank regulatory
agency of the relevant Bank Subsidiary.
(k) "Total Risk Based Capital Ratio" means the total risk
based capital ratio as defined by the capital maintenance regulations of the
primary federal Bank regulatory agency of the Borrower.
(l) All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles in effect from time to time.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
-11-
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
affixed their seals by and through their duly authorized officers, as of the day
and year first above written.
BORROWER:
UNITED COMMUNITY BANKS, INC.
BY: ________________________________________
NAME: ______________________________________
TITLE: _____________________________________
Attest: _____________________________
Print Name: _________________________
Print Title: ________________________
[CORPORATE SEAL]
I hereby certify that the representation and warranty contained in Section
2(i)(v) of this Agreement is true and correct.
_______________________________
Secretary
LENDER:
THE BANKERS BANK
BY: ___________________________
NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: SENIOR VICE PRESIDENT
EXHIBIT A
ARTICLES OF INCORPORATION
OF
UNITED COMMUNITY BANKS, INC.
EXHIBIT B
CERTIFICATE OF EXISTENCE
OF
UNITED COMMUNITY BANKS, INC.
EXHIBIT C
BYLAWS
OF
UNITED COMMUNITY BANKS, INC.
EXHIBIT D
RESOLUTIONS
OF
UNITED COMMMUNITY BANKS, INC.
EXHIBIT E
ARTICLES OF INCORPORATION
OF
EACH BANK
EXHIBIT F
CERTIFICATE OF EXISTENCE
OF
EACH BANK
EXHIBIT G
BYLAWS
OF
EACH BANK
