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EXHIBIT 10.9
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT ("Agreement") is made and entered into as of
the 30 day of September, 1997, by and between TEAM FINANCIAL, INC., a Kansas
corporation ("Company") and COMMERCE BANK, N.A., a national banking association
("Bank");
In consideration of the mutual benefits accruing to each of the
parties, the receipt and sufficiency of which is hereby acknowledged, and in
further consideration of the mutual performance of this Agreement, the parties
hereto agree as follows:
ARTICLE I
Definitions
1.01. Code. The Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder. It is understood that any
reference to the Bank's federal income tax means the Bank or any entity
that files a consolidated federal income tax return with Bank.
1.02. Prime-Rate. The per annum rate of interest established
from time to time by Bank for its own internal convenience as its
"Prime Rate", which when used to compute the rate of interest hereunder
shall change as of the date of any change in said Prime Rate; no
representation is made that the Prime Rate is the best, lowest or
favored rate of interest.
ARTICLE II
Term Loan
2.01. Amount. Subject to the terms of this Agreement, Bank
agrees to lend to Company the sum of $200,018 (the "Term Loan").
2.02. Term Note. On the Closing Date (hereinafter defined)
Company will execute and deliver its promissory note to Bank, in the
principal amount of $200,018, and in form and substance acceptable to
Bank (the "Term Note").
2.03. Interest. The Term Note will bear interest at a variable
per annum rate equal to one percent (1%) less than the Prime Rate.
Accrued interest shall be calculated on the actual number of days
outstanding based on a year consisting of 365 days, and shall be
payable quarterly, in arrears, commencing December 31, 1997, and
continuing on the last day of each March, June, September
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and December thereafter, until and including the due date of the Term
Note. Interest after or during the continuation of any Event of Default
under Section 7.01, shall be at a rate equal to three percent (311) in
excess of the Prime Rate.
2.04. Repayment. The principal of the Term Note shall be
payable in annual installments of $28,574 commencing December 31, 1998,
and continuing on the last day of each December thereafter, until
December 31, 2004, when the outstanding principal balance, together
with accrued interest, shall be due and payable in full.
2.05. Prepayment. Company may prepay the Term Note in full or
in part at any time without the payment of a prepayment fee. Any
partial prepayments shall be applied to the annual principal payments
in the inverse order of their maturities.
2.06. Purpose. Proceeds of the Term Loan shall be used to fund
a loan by Company to the trustee (the "Trustee") of the TeamBanc, Inc.
Employees Stock Ownership Plan (the "Trust"), as established pursuant
to the TeamBanc, Inc. Employees Stock Ownership Plan dated as of
November 6, 1992, as amended from time to time (the "Plan"), pursuant
to the agreement between the Bank, the Company and the Trustee (the
"Lending Agreement") and evidenced by a promissory note (the "ESOP
Note") made by the Trustee to Company.
ARTICLE III
Representations and Warranties
In borrowing hereunder the Company represents and warrants to Bank (which
representations and warranties will survive the delivery of the Term Note and
shall continue so long as any sums remain outstanding under the Term Note or
under this Agreement) that:
3.01. Authorization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Kansas and is duly qualified as a foreign corporation and is
in good standing in every other jurisdiction where failure to be so
qualified and in good standing would have a material adverse effect on
its business; the Company has all requisite corporate power and
authority to own and operate its properties and to carry on its
business as presently being conducted; the Company has the power to
enter into and to carry out the terms of this Agreement and to execute,
deliver and perform its obligations under this Agreement, the Term
Note, and any other instrument referred to or mentioned herein, and
said performance by the Company of its obligations has been duly
authorized by appropriate corporate
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proceedings, will not contravene any provisions of law, its Articles of
Incorporation, Bylaws, or any indenture, agreement or other instrument
binding upon the Company, and does not require the consent, approval or
authorization of any governmental agency or third party, except as
otherwise specifically provided herein.
3.02. Financial Condition. Except as provided in Schedule 3.02
attached hereto, the financial statements of Company dated as of
December 31, 1996, copies of which have been furnished to Bank, are
complete and correct and fairly and accurately present the financial
condition of Company as at such date and the results of the operations
of Company for the period covered by such statements, all in accordance
with generally accepted accounting principles consistently applied, and
there has been no material adverse change in the condition (financial
or otherwise), business or operations of Company subsequent thereto.
3.03. Taxes. The Company has filed all required federal, state
and local tax returns and has paid all taxes as shown on said returns
to be due including interest and penalties, or has provided adequate
reserves for the payment thereof. No tax claims have been asserted
against Company which remain unpaid or for which an adequate reserve
has not been established.
3.04. Litigation. Other than as set forth in Schedule 3.04
attached hereto, or as disclosed to Bank in writing prior to the date
hereof, the Company has no actions, suits or proceedings pending or, to
its knowledge, threatened against or affecting it or its properties
before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, which, if determined
adverse to the Company, might have a material adverse effect on its
financial condition, properties or operations.
3.05. Liability. Except as set forth in Schedule 3.05 attached
hereto, the Company has no liabilities, direct or contingent, except
those disclosed in the financial statements described in Section 3.02
hereof, and those incurred since December 31, 1996 in the ordinary
course of the Company's business which have been disclosed in writing
to Bank. Company is not presently in default, and no event which, but
for the lapse of time or service of notice or both, would constitute a
default has occurred and is continuing under any agreement, indenture,
mortgage, security agreement or other instrument under which the
Company is directly or contingently liable or pursuant to which any of
the assets or properties of Company or any shares of its outstanding
capital stock
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is encumbered or affected in any way. All stock of the Company has
been validly issued and is fully paid and nonassessable.
3.06. Properties. Company has good, valid and marketable title
to all of its properties shown as assets on its balance sheet. All
properties are free and clear of all liens, mortgages, security
interests or other encumbrances except those which have been disclosed
to Bank in writing or disclosed on its balance sheet.
3.07. Guaranties. Company has no guaranties outstanding,
except those which have been disclosed to Bank in writing.
3.08. Other Agreements. Company is not a party to, subject to,
or bound by any contract, agreement, instrument, charter or corporate
restriction which materially adversely affects its ability to perform
its obligations under this Agreement, the Term Note or other documents
or instruments provided for herein.
3.09. Margin Stock. Company is not engaged in the business of
extending credit for the purpose of carrying margin stock within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System. If requested by Bank, Company will furnish to Bank a
statement in conformity with the requirements of Federal Reserve Form
U-1 referred to in Regulation U to the foregoing effect.
3.10 Use of Proceeds. The proceeds of the Term Loan shall be
loaned by Company to the Trustee of the Trust within the meaning of
Section 4975 (d) (3) of the Code for the acquisition of "employer
securities" (within the meaning of Section 409(1) of the code), the
proceeds of which shall be used by the Trust to acquire "employer
securities", and the terms and conditions of such loan by the Company
to the Trustee of the Trust shall comply with all laws and regulations
in respect thereto, including, to the extent applicable, but not
limited to, Regulation G of the Federal Reserve Board, the Code, the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and regulations promulgated thereunder.
3.11 Plan Qualifications. The Plan is qualified under Section
401(a) of the Code, the Trust is exempt from tax under Section 501(a)
of the Code, and the consummation of the transactions under this
Agreement and the Lending Agreement will not constitute a prohibited
transaction.
3.12 Stock. Except as set forth in Schedule 3.12 attached
hereto, there are no outstanding stock warrants, options, convertible
securities or other agreements that could cause additional stock to be
issued or sold.
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3.13 Guarantor. The Guarantor (hereinafter defined) has
authority, and has completed all proceedings and obtained all approvals
and consents necessary, to execute, deliver and perform its obligations
under the Guaranty (hereinafter defined). The Guaranty when executed by
the Guarantor and delivered to Bank, shall constitute the legal, valid
and binding obligations of the Guarantor, enforceable in accordance
with its terms, except as affecting the enforcement of creditors'
rights generally. The Guaranty will not violate any provision of any
existing mortgage, indenture, contract or agreement binding on
Guarantor or affecting any of its properties, and will not result in,
or require, the creation or imposition of any lien on any of its
properties or revenues. No litigation, investigation or proceeding of
or before any arbitrator or governmental authority is pending or
threatened by or against the Guarantor or any of its properties or
revenues with respect to the Guaranty, or any of the transactions
contemplated hereby or thereby or which could have a material adverse
effect on the business, operations, assets or financial or other
condition of the Guarantor.
ARTICLE IV
Affirmative Covenants
The Company covenants and agrees that during the term of this
Agreement and until all of the principal amount of and interest due
under the Term Note shall have been paid in full, unless otherwise
agreed to by Bank in advance and in writing to the contrary, the
Company will duly perform and observe each and all of the covenants
and agreements hereinafter set forth:
4.01. Maintenance and Compliance with Laws. The Company will
maintain its corporate existence, rights and franchises and comply with
all applicable statutes, regulations and orders of, and all applicable
restrictions imposed by, all government bodies, and maintain and keep
its properties in good repair, working order and operating condition.
4.02. Financial Statements. Company will deliver to Bank the
following financial information of Company, Guarantor (hereinafter
defined) and Banks (hereinafter defined):
(a) Within sixty (60) days after the end of each fiscal
quarter of Company and Guarantor, the respective balance
sheets, profit and loss statements and net worth
reconciliations of Company and Guarantor for such accounting
period, and the results of operations since the beginning of
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the fiscal year, prepared in accordance with generally
accepted principles of accounting applied on a basis
consistent with that of the financial statements for the
preceding fiscal year and certified by the chief financial
officer or chief executive officer of Company and Guarantor,
respectively, as truly reflecting the respective financial
positions of Company and Guarantor as of the end of the
accounting period;
(b) Within ninety (90) days after the end of each fiscal year
of Company and Guarantor, the respective annual audited financial
statements of Company and Guarantor, prepared by independent certified
public accountants selected by Company and satisfactory to Bank in
conformity with generally accepted accounting principles applied on a
basis consistent with that of the financial statements for the
preceding fiscal year; and
(c) From time to time such further information regarding the
financial condition or business of Company, Guarantor and Banks as Bank
may reasonably request.
4.03. Inspection of Operations. Company shall permit such
persons designated by Bank to visit and inspect Company's properties,
operations, corporate books and financial records and to discuss
Company's affairs, finances and accounts with Company's principal
officers and independent public accountants, as may be requested from
time to time by Bank.
4.04. Insurance. Company shall maintain, at all times, such
insurance covering such risks as is customary for companies of similar
character, in amounts and with companies acceptable to Bank.
4.05. Payment of Indebtedness. Company shall pay or discharge
all indebtedness heretofore or hereafter incurred as the same shall
become due and payable and shall faithfully perform, observe and
discharge all covenants, conditions and obligations which are imposed
on it by any and all indentures and other agreements securing or
evidencing such indebtedness or pursuant to which such indebtedness is
issued.
4.06. Taxes and other Liens. The Company will pay and
discharge promptly all taxes, assessments, and other governmental
charges or levies imposed upon it or upon its income or upon any of its
property, real, personal or mixed, or upon any part thereof, as well as
all claims of any kind (including claims for labor, materials and
supplies) which, if unpaid, might by law become a lien or charge upon
any of its property; except any taxes, assessments or levies being
contested in good faith by appropriate
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legal proceedings and against which, if requested by the Bank, the
Company will set up reserves satisfactory to the Bank.
4.07. Notice of Defaults. Company shall notify Bank in writing
of any Event of Default (hereinafter defined) hereunder or of any fact,
condition, or event that, only with the giving of notice or passage of
time or both, would become an Event of Default. Company shall notify
Bank in writing of any default under any other indenture, agreement,
contract or other instrument to which Company is a party and of any
acceleration of the maturity of any material indebtedness of Company
which default or acceleration could have a material adverse effect on
Company, and Company shall take all necessary steps to remedy promptly
any such default, to protect against any such adverse claim, to defend
any such proceeding and to resolve all such controversies.
4.08. Data to Verify Compliance. Company shall promptly
provide Bank with such data as Bank shall reasonably request to verify
the truth of all warranties and representations and Company's
compliance with all covenants.
4.09. Contributions. Company will make contributions to the
Trust sufficient for the Trust to pay principal and accrued interest on
the ESOP Note in accordance with the schedule of payments set forth
therein (such contributions to be referred to herein as "Scheduled
Contributions"). In addition to the foregoing, and provided that no
Event of Default (hereinafter defined) has occurred or will occur,
Company may make contributions to the Trust in amounts adequate to
provide cash to, or to make other payments necessary in connection
with, terminating participants (such contributions to be referred to
herein as "Permitted Contributions"). If Company makes contributions in
an amount in excess of Scheduled Contributions (and Permitted
Contributions, if applicable) ("Excess Contributions"), Company shall
cause the Plan Administrator (as set forth in the Plan) to direct the
Trustee to use such Excess Contributions to prepay the ESOP Note.
4.10. Securities Restrictions. Company shall comply with all
restrictions regarding securities acquired with loan proceeds imposed
by the Internal Revenue Code and United States Treasury Regulations,
including, without limitation, restrictions concerning subjection of
the securities to a put, call or other option or buy-sell or similar
arrangement.
4.11. Notification. Company shall notify Bank promptly of any
governmental or judicial action or proceeding that relates directly or
indirectly to the qualification of the Plan under
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Sections 401(a) or 4975(e)(7) of the Code, or the participation of the
Trust in the transactions contemplated hereunder.
ARTICLE V
Negative Covenants
Without the prior written consent of Bank, during the term of this
Agreement or until all indebtedness of the Company to Bank has been
paid, whichever occurs last, Company covenants and agrees as follows:
5.01. Liens. Company will not create, incur, assume or suffer
to exist any security interest, mortgage, pledge, lien or other
encumbrance upon any of the Company's properties or assets, whether now
owned or hereafter acquired, except for those granted to Bank and
except such purchase money security interests created or granted by
Company in the ordinary course of its business, consistent with current
practices, and except such liens of taxes not in default or being
contested in good faith.
5.02. Fundamental Changes. Company will not amend its Articles
of Incorporation or Bylaws; wind up, liquidate, or dissolve itself;
reorganize, merge or consolidate with or into, or sell, transfer,
convey or lease all or any part of its property, to another person or
entity; sell or assign any accounts receivable; purchase or otherwise
acquire all or substantially all of the assets of any corporation,
partnership, or other entity, or any shares or similar interest in any
other corporate entity; or make any material change in the executive
management of the Company.
5.03. Conduct of Business. Company will not materially alter
the character in which Company conducts its business or the location of
such business or the nature of such business conducted at the date
hereof.
5.04. Funded Indebtedness. Company shall not incur additional
Funded Indebtedness (direct, indirect, contingent or otherwise) unless
such Funded Indebtedness is subordinated (in writing and in form and
substance satisfactory to Bank) in all respects to the indebtedness of
Company to Bank hereunder. For purposes of this Agreement, "Funded
Indebtedness" shall mean all indebtedness of Company for borrowed money
in excess of $250,000 (individually or in the aggregate) and which has
a maturity of one (1) or more years from the date of origin, plus all
Capitalized Leases (defined as any lease which is required to be
capitalized on the balance sheet of Company) and all guarantees of such
Funded
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Indebtedness of others, but excluding the indebtedness incurred by
Company in the ordinary course of business which includes (i) deposits,
(ii) Banker's Acceptances, (iii) repurchase agreements, (iv) purchases
of Federal Funds, and (v) Federal Reserve or Federal Home Loan Bank
borrowings made in the ordinary course of business, and pledges, liens
or encumbrances required to secure such indebtedness, provided that
Company shall have received Bank's prior written approval of, and with
respect to, the specific assets, or general class of assets, to be
pledged or encumbered by such pledges, liens or encumbrances.
5.05. Issuance of Additional Capital Stock. Company will not
issue any additional capital stock or securities convertible into
capital stock or any warrants or rights to purchase capital stock.
5.06. Investments. Company will not acquire for investment
purposes, investments that would not qualify as "customary and prudent
investments", consistent with the current investment practices of
Company.
5.07. Loans to Affiliates, Shareholders and the Trust. Company
will not directly or indirectly loan amounts to any affiliate or
shareholder of Company, or to any entity controlled by such an
affiliate or shareholder, or to the Trust (whether or not for the
purchase of additional employer securities).
5.08. Debt Payments to Shareholders. Except with respect to
unsubordinated debt permitted under Section 5.04 (b) above, Company
will not directly or indirectly make any payments with respect to any
indebtedness owing to an shareholders.
5.09. Dividends. Except to the extent consistent with past
practices, Company will not pay any cash dividends to shareholders of
Company.
5.10. Capital Expenditures. Company will not make any capital
expenditures other than those capital expenditures made in the ordinary
course of business, consistent with past Company practices.
5.11. Plan Amendments. No amendments will be made to the Plan
without the prior written consent of Bank, which consent shall not be
unreasonably withheld.
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ARTICLE VI
Collateral
The obligations and indebtedness of the Company to Bank hereunder or
under any other instrument shall be secured and supported by the
following ("Collateral"):
6.01. ESOP Note and Stock. Company shall pledge and endorse to
Bank the ESOP Note and any stock of Company from time to time pledged
as security to the ESOP Note. Such pledge shall be evidenced by a
Collateral Assignment in form and substance acceptable to Bank.
6.02. Bank Stock. Company shall pledge all stock, whether
common or preferred, of Iola Bank and Trust ("Iola Bank"), First
National Bank & Trust Co. (Parsons, Kansas) ("FNB") and TeamBank, N.A.
(Paola, Kansas) ("TeamBank") (said Iola Bank, FNB and TeamBank,
together with TeamBank Nebraska [hereinafter identified], to be
sometimes hereinafter collectively referred to as the "Banks") now
owned or hereafter acquired (together with the stock of TeamBank
Nebraska [hereinafter identified] the "Bank Stock"), which as of the
date hereof is as follows:
Banks Type # Shares Ownership Percentage
----- ---- -------- --------------------
Xxxx Bank Common 70,000 100.00%
FNB Common 18,000 100.00%
TeamBank Common 100,000 100.00%
Company shall also pledge to Bank all of the outstanding stock, whether common
or preferred, of Team Financial Acquisition Subsidiary, Inc. ("Guarantor"). Such
pledges shall be evidenced by a "Collateral Pledge Agreement", in form and
substance acceptable to Bank, together with stock powers relating thereto.
6.03. Guaranty. There shall be delivered to Bank, as
additional support for the obligations and indebtedness of Company to
Bank (as well as all other obligations owing by Company to Bank, now
existing and hereafter arising), the unconditional, unlimited corporate
guarantee of Guarantor. The guaranty shall be evidenced by a Corporate
Guaranty in form and substance acceptable to Bank ("Guaranty").
Guarantor shall pledge all stock, whether common or preferred, of
TeamBank Nebraska (Bellevue, Nebraska) ("TeamBank Nebraska") now owned
or hereafter acquired, which as of the date hereof is as follows:
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Ownership
Bank Type Shares Percentage
---- ---- ------ ----------
TeamBank Nebraska Common 8,000 100.00%.
Such pledge shall be evidenced by a "Collateral Pledge Agreement", in form and
substance acceptable to Bank, together with stock powers relating thereto.
6.04. Other Documents. Company agrees to furnish such
information and to execute such other documents or undertake any other
acts as may be reasonably necessary to perfect and maintain the
security interests contemplated by this Agreement, or as otherwise
reasonably requested by Bank from time to time.
ARTICLE VII
Defaults
7.01. Events of Default. The occurrence of one or more of the
following events ("Events of Default" or "Default") shall constitute a
Default by the Company hereunder:
(a) nonpayment of interest or principal hereunder when payment is due
as herein provided; or
(b) any representation or warranty made by the Company or Guarantor
herein or in any writing furnished in connection with or pursuant to
this Agreement shall prove to be false in any material respect as of
the date on which it is made; or
(c) a breach by Company in the performance or observance of any
agreement, term, covenant or condition contained herein (other than in
(a) above), and such breach shall not have been remedied within thirty
(30) days after written notice thereof shall have been given by Bank to
Company; or
(d) any report, certificate, financial statement or other instrument
furnished in connection with this Agreement shall prove to be false or
misleading in any material respect; or
(e) default in the performance of the obligations of the Company or
Guarantor on any other note, agreement (including but not limited to
security agreements), or obligations owed by the Company or Guarantor
to Bank, which default results in the acceleration of such obligation;
or
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(f) any default by the Company or Guarantor under any other contract
for borrowed money which entitles the obligee to accelerate the
maturity thereof, or any failure by the Company or Guarantor to/pay any
indebtedness when due, whether by acceleration or otherwise; or
(g) commencement by the Company or Guarantor of a voluntary case under
the Bankruptcy Act or similar law, federal or state, whether now or
hereafter existing; or a trustee or receiver shall be appointed for
Company or Guarantor or all or a substantial part of its properties in
any involuntary proceeding, or any court shall have taken any
jurisdiction of all or a substantial part of the properties of the
Company or Guarantor in any involuntary proceeding for the
reorganization, dissolution, liquidation or winding up of the business
of the Company or Guarantor and such trustee or receiver shall not be
discharged or such jurisdiction relinquished or vacated or stayed on
appeal or otherwise within thirty (30) days; or the Company or
Guarantor shall file a petition or answer consenting to or acquiescing
in a petition against it in bankruptcy or under any chapter of the
Bankruptcy Act or any similar law, state or federal, whether now or
hereafter existing, or such petition filed against the Company or
Guarantor shall be approved and not vacated or stayed within thirty
(30) days; or the Company or Guarantor shall become insolvent, or shall
make an assignment for the benefit of creditors or shall admit in
writing its inability to pay its debts generally as they become due, or
shall consent to the appointment of a receiver or trustee or liquidator
of all its properties or a substantial part thereof, or shall have
failed within thirty (30) days to pay a bond or otherwise discharge any
judgment or attachment which is not stayed on appeal or otherwise being
contested in good faith; or
(h) Company or Guarantor suffers any judgment, writ of attachment or
execution or similar process to be issued or levied against all or a
substantial part of its property and which is not released, stayed,
bonded or vacated within thirty (30) days; or
(i) The occurrence of a non-exempt "Prohibited Transaction", as defined
in Section 406 of ERISA or in Section 4975 of the Internal Revenue
Code, between the Plan and any other person or entity; or
(j) The failure of the Trust to maintain its status as a "tax exempt
trust" under Section 501 of the Internal Revenue Code, or
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the failure of the Plan to maintain its status as a qualified plan
under Section 401 or as an employee stock ownership plan under Section
4975 of the Code.
7.02. Remedies. Upon an Event of Default, Bank may accelerate
the maturity of the Term Loan, with or without notice, and Bank may
resort to any and all security and to any remedy existing at law or in
equity for the collection of the Term Note according to its tenor and
enforcement of the covenants and provisions hereof, and the Bank's
resort to any remedy shall not prevent the concurrent or subsequent
employment of any other remedy. In addition to the remedies provided
herein, in the event the Term Note is due and payable or upon an Event
of Default, the Bank shall have the right of setoff, without demand or
notice to anyone, against the funds of the Company on deposit with it.
Notwithstanding anything contained herein to the contrary, Bank shall
have no right of setoff or any claims to any shares of the common stock of
Company which Bank may be holding as custodian on behalf of the Trust or any
funds of the Trust deposited with Bank except such shares as are pledged to
secure the ESOP Note, but only to the extent permitted by law.
7.03. Expenses of Collection. All costs, expenses and
liabilities incurred by Bank in collecting or attempting to collect on
the Term Note, including costs and expenses incurred in proposing or
selling or otherwise deriving upon any security, and all reasonable
attorneys, fees in connection with such matters, shall constitute a
demand obligation of the Company and shall bear interest from the date
of expenditure until paid at the per annum rate of three percent (3%)
in excess of the Prime Rate.
7.04. Waiver. Any waiver of an Event of Default by Bank shall
not extend to or affect any subsequent Event of Default. No failure or
delay by Bank in exercising any right hereunder shall operate as a
waiver, nor shall any single or partial exercise of any right preclude
the exercise of any other right hereunder.
ARTICLE VIII
Closing; Conditions Precedent
8.01. Closing. "Closing" shall take place at Bank's principal
offices at 0000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx on September 1,
1997 (the "Closing Date").
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8.02. Conditions Precedent to Closing. As a condition
precedent to Closing, Company shall have delivered to Bank the
following documents:
(a) This Agreement and the Term Note, duly executed by the
Company;
(b) The Collateral Assignment, duly executed by the Company;
(c) A fully executed copy of the Lending Agreement;
(d) The Collateral Pledge Agreement, duly executed by the
Company, together with the applicable Bank Stock, and Stock Powers
(executed in blank);
(e) The Guaranty, duly executed by the Guarantor, together
with the applicable Collateral Pledge Agreement, the applicable Bank
Stock, and Stock Powers (executed in blank);
(f) Fully executed copies of all other documents required
under this Agreement and any of the other documents executed in
connection herewith, including, without limitation, the Collateral
Assignment;
(g) Certified copies of the Bylaws of the Company and
Guarantor, and of each resolution of the Company's and Guarantor's
respective Boards of Directors duly authorizing the execution and
delivery of the applicable loan documents and the Company's and
Guarantor's performance hereunder and thereunder;
(h) Certificates of Good Standing, dated not more than thirty
(30) days prior to the date of this Agreement, for the Company from the
Kansas Secretary of State, and the Guarantor from the Nebraska
Secretary of State, and, if specifically requested by Bank, from the
Secretary of State for each other jurisdiction where the nature of
Company's or Guarantor's respective businesses requires it to be
qualified as a foreign corporation;
(i) An opinion of counsel for Company dated the Closing Date,
in form and substance satisfactory to Bank, substantially to the effect
that (i) Company is a corporation duly organized and existing and in
good standing under the laws of the State of Kansas; (ii) Company has
adequate corporate power and authority to enter into and perform this
Agreement and the Term Note; (iii) that this Agreement, the Term Note,
the Collateral Assignment and the Collateral Pledge Agreement have been
duly authorized,
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executed and delivered by Company and are legal, valid and binding
instruments enforceable against the Company in accordance with their
respective terms, except as may be limited by laws of receivership,
insolvency and bankruptcy; (iv) that the Plan complies with all federal
and state laws and regulations, including, without limitation, the Code
and ERISA, and regulations promulgated thereunder; and (v) the Plan is
qualified under Section 401(a) of the Code, the Trust is exempt from
tax under Section 501(a) of the Code, and the consummation of the
transactions under this Agreement and the Lending Agreement will not
constitute a prohibited transaction; and
(j) Any other documents, instruments and reports as Bank shall
reasonably request.
Company shall be solely responsible for all costs incurred by it and/or Bank in
connection with satisfying any of the foregoing requirements.
ARTICLE IX
Miscellaneous
9.01. Payment on Holidays. Whenever any payment to be made
pursuant to this Agreement or the Term Note shall be stated to be due
on a public holiday, Saturday or Sunday, such payment may be made on
the next succeeding business day and such extension of time shall in
such case be included in computing interest, if any, in connection with
such payment.
9.02. Waivers. No omission or delay by the Bank in exercising
any right, power or privilege under this Agreement, the Term Note or
any other documents executed in connection herewith, will impair such
right, power or privilege or be construed to be a waiver of any Event
of Default or acquiescence therein and any single or partial exercise
of any right, power or privilege will not preclude other or further
exercise of any other right, power or privilege and no waiver will be
valid unless in writing and signed by Bank and then only to the extent
specified. All remedies herein by law afforded will be cumulative and
will be available to Bank until all indebtedness of Company is paid.
9.03. Binding Effect. This Agreement shall continue until
payment in full of all indebtedness owing hereunder and shall be
binding upon Company and its successors and assigns and shall be
10.09-15
16
binding upon and inure to the benefit of Bank, its successors and
assigns.
9.04. Notices. Any notice, request, authorization, approval or
consent made hereunder shall be in writing and shall be personally
delivered or sent by registered or certified mail, and shall be deemed
given when delivered or postmarked and mailed postage prepaid to the
following addresses:
IF TO BANK: Commerce Bank, N.A.
0000 Xxxxxx Xxxxxx
P.O. Box 419248
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxx
IF TO COMPANY: Team Financial, Inc.
Xxx Xxxxx Xxxxx
X.X. Xxx 000
Xxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
Bank and Company may designate a change of address by notice given in accordance
with the provisions of this Subsection at least five (5) days before such change
is to become effective.
9.05. Amendments. The Company and Bank may from time to time
enter into written agreements supplemental hereto for the purpose of
modifying or adding any provision to this Agreement or changing the
rights and privileges of Bank or Company hereunder. Any such
supplemental agreement shall be binding upon the Company and the Bank
and their respective successors and assigns.
9.06. Headings. Article and Section headings in this Agreement
are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
9.07.Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or enforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
10.09-16
17
9.08. Governing Law. This Agreement and all related documents
will be governed by, and construed in accordance with, the laws of the
State of Missouri.
9.09. Counterpart Agreements. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
agreement.
9.16. Statutory Notice. ORAL AGREEMENTS OR COMMITMENTS To LOAN
MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO
PROTECT YOU (BORROWER) AND US (CREDITOR) FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
BY SIGNING BELOW, YOU AND WE AGREE THAT THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN US.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
10.09-17
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers on the day and year first above written.
TEAM FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Chairman & CEO
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
----------------------------------
COMMERCE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
10.09-18
19
SCHEDULE 3.02
(FINANCIAL CONDITION)
Company has provided supplemental financial information to Bank in the form of
June, 1997 "Y" Reports and call reports each subsidiary bank of TFI.
10.09-19
20
SCHEDULE 3.04
(LITIGATION)
NONE
10.09-20
21
SCHEDULE 3.05
(LIABILITIES)
Distributions from the TeamBanc, Inc. Employees' Stock Ownership Plan can be
made in the form of stock and, in accordance with the plan document and the
Internal Revenue Code, Team Financial, Inc. has an obligation to repurchase such
securities.
10.09-21
22
SCHEDULE 3.12
(STOCK)
Company has previously provided documents relating to its Employee Stock
Purchase Plan acceptable to Bank.
10.09-22
23
AMENDMENT ONE TO TERM LOAN AGREEMENT
THIS AGREEMENT ONE TO TERM LOAN AGREEMENT ("Amendment One") is entered
into as of the 31st day of October, 1997, by and between COMMERCE BANK, N.A.
("Bank") and TEAM FINANCIAL, INC. ("Company").
WITNESSETH:
WHEREAS, pursuant to the certain Term Loan Agreement dated as of
September 30, 1997, by and between Bank and Company ("Loan Agreement"), Bank
agreed to extend a Term to Company in the original principal amount of $200,018,
subject to certain terms, limitations and conditions contained therein;
WHEREAS, Company has requested that Bank amend one of the Affirmative
Covenants contained in the Loan Agreement; and
WHEREAS, Bank and Company have agreed to amend the Loan Agreement as
hereinafter set forth.
NOW, THEREFORE, for valuable consideration, Bank and Company do hereby
mutually agree as follows:
1. Terms used herein which are defined in the Loan Agreement shall have
the meanings given to them in the Loan Agreement.
2. Section 4.09 of the Loan Agreement is hereby amended to read in its
entirety as follows:
"Contributions. Company will make contributions to the Trust sufficient for the
Trust to pay principal and accrued interest on the ESOP Note in accordance with
the schedule of payments set forth therein (such contributions to be referred to
herein as "Scheduled Contributions"). In addition to the foregoing, and provided
that no Event of Default (hereinafter defined) has occurred or will occur,
Company may make contributions to the Trust (i) in amounts adequate to provide
cash to, or to make other payments necessary in connection with, terminating
participants, and/or (ii) in amounts to be maintained by the Trust "on deposit"
to meet the Trust's distribution and other ordinary course cash needs, provided
such sums "on deposit" shall not exceed $500,000 at any given time (such
contributions to be referred to herein as "Permitted Contributions"), Company
shall cause the Plan Administrator (as set forth in the Plan) to direct the
Trustee to use such Excess Contributions to prepay the ESOP Note.
3. Except as amended herein, all other terms, provisions, conditions
and obligations imposed under the terms of the Loan
10.09-23
24
Agreement shall remain in full force and effect and are hereby ratified and
certified by Bank and Company.
4. This Amendment One shall be governed by, and construed in accordance
with, the laws of the State of Missouri.
IN WITNESS WHEREOF, Bank and Company have executed this Amendment One
as of the date first above written.
COMMERCE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
TEAM FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Chairman and CEO
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
----------------------------------
10.09-24
25
TERM NOTE
$200,018 September 30, 1997
Principal and Interest Kansas City, Missouri
FOR VALUE RECEIVED, the undersigned, TEAM FINANCIAL, INC., a Kansas
corporation ("Borrower") hereby promises to pay to the order of COMMERCE BANK,
N.A. ("Bank") the principal sum of Two Hundred Thousand Eighteen Dollars
($200,018), payable in annual principal installments of $28,574 commencing
December 31, 1998, and continuing on the last day of each December thereafter,
until December 31, 2004, when the outstanding principal balance, together with
accrued interest, shall be due and payable in full. This Term Note shall bear
interest at a per annum variable rate equal to one percent (1%) less than the
Prime Rate (as that term is defined in the Term Loan Agreement hereinafter
identified), to change with any change in the Prime Rate. Accrued interest shall
be payable quarterly, in arrears, commencing December 31, 1997, and continuing
on the last day of each March, June, September and December thereafter, until
and including the due date of this Term Note. Accrued interest shall be
calculated on the actual number of days outstanding based on a year consisting
of 365 days. Both principal and interest are payable in lawful money of the
United States of America to Bank, at its offices at 1000 Walnut, Kansas City,
Missouri, in immediately available funds.
This Term Note is the one referred to in, and is entitled to the
benefits of, the Term Loan Agreement dated the date hereof between the Borrower
and the Bank, which Term Loan Agreement contains, among other things, provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and for an increase in the interest rate upon the occurrence of an Event
of Default. The defined terms used herein shall have the same meaning as used in
the Term Loan Agreement.
The Borrower shall have the right to prepay the principal of this Term
Note, in whole or in part, prior to maturity without premium or penalty. Any
partial prepayments shall be applied to the principal payments in the inverse
order of their maturities.
The Borrower and all endorsers, sureties, guarantors and other persons
liable hereon or who may become liable for the payment hereof, severally waive
demand, presentment, notice of dishonor or nonpayment, notice of protest and any
and all lack of diligence in the enforcement hereof and hereby assent to each
and any extension or postponement of the time of payment, at or after maturity,
or other indulgence and hereby waive any and all notice thereof.
10.09-25
26
This Term Note shall be governed by, and construed in accordance with, the laws
of the State of Missouri.
IN WITNESS WHEREOF, Borrower has executed this Term Note as of the day and year
first hereinabove written.
TEAM FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Chairman & CEO
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
----------------------------------
10.09-26
27
COLLATERAL ASSIGNMENT
WHEREAS, TEAM FINANCIAL, INC. ("Company") and COMMERCE BANK, N.A.
("Lender") have entered into a Term Loan Agreement (the "Agreement") of even
date herewith;
WHEREAS, the proceeds of the Term Loan to be extended to the Company
under the Agreement will be used by Company to fund a loan by Company to the
trustee (the "Trustee") of the TeamBanc, Inc. Employees Stock Ownership Plan
(the "Trust"), as established pursuant to the TeamBanc, Inc. Employees Stock
Ownership Plan dated as of November 6, 1992, as amended from time to time (the
"Plan"), pursuant to the agreement between the Bank, the Company and the Trustee
(the "Lending Agreement") and evidenced by an ESOP Note (And Pledge Agreement)
(the "ESOP Note") made by the Trustee to Company and secured by a pledge of the
common stock of Company to be acquired by the Trust; and
WHEREAS, under the terms of the Agreement, Company agreed to pledge to
Lender the ESOP Note, and all common stock of Company from time to time pledged
thereunder, as collateral for its obligations under the Agreement.
NOW, THEREFORE, for valuable consideration, it is agreed as follows:
1. Company hereby pledges, assigns and transfers to Lender all its
right, title and interest in and to the ESOP Note and all common stock of
Company from time to time pledged thereunder.
1
2. Company agrees that all payments made by the Trust on the ESOP Note
shall be made directly to Lender and applied by Lender to the obligations of the
Trust on the ESOP Note, with a corresponding application to the obligations of
the Company under the Agreement.
3. Lender agrees to be bound by the terms of the ESOP Note with respect
to any required release of the common stock of Company pledged thereunder.
10.09-27
28
IN WITNESS WHEREOF, Company has executed this Collateral Assignment as
of the 30 day of September, 1997.
TEAM FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Chairman & CEO
----------------------------------
By: /S/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
----------------------------------
Acknowledged this 30th day of September, 1997.
COMMERCE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Title: Senior Vice President
----------------------------
10.09-28
29
ESOP NOTE
(AND PLEDGE AGREEMENT)
$200,018 September 30, 0000
Xxxxxxxxx xxx Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxx
The undersigned promises to pay to the order of TEAM FINANCIAL, INC., a
Kansas corporation, the principal sum of Two Hundred Thousand Eighteen
Dollars ($200,018) payable in annual principal installments of $28,574
commencing December 31, 1998, and continuing on the last day of each
December thereafter, until December 31, 2004, when the outstanding
principal balance, together with accrued interest, shall be due and
payable in full. This ESOP Note shall bear interest at a per annum
variable rate equal to one percent (1%) less than the Prime Rate, as
chat term is defined in that certain Term Loan Agreement of even date
herewith between Team Financial, Inc. ("Company") and Commerce Bank,
N.A. ("Bank"), and shall change with any change in the Prime Rate.
Accrued interest shall be payable quarterly, in arrears, commencing
December 31, 1997, and continuing on the last day of each March, June,
September and December thereafter, until and including the due date of
this ESOP Note. Accrued interest shall be calculated on the actual
number of days outstanding based on a year consisting of 365 days.
The funds advanced hereunder are proceeds of a loan made to Company by
Bank pursuant to the Term Loan Agreement and all terms contained herein
shall have the same meaning as used in the Term Loan Agreement.
The holder hereof may arrange, adjust (provided, however, no adjustment
to payment dates shall accelerate such payment dates) and extend the
times and amounts of payments of interest and/or principal under this
ESOP Note without notice to or consent of and without releasing any
party liable hereon. All parties hereto consent and agree to waive
presentment for payment, demand for payment, protest and notice of
dishonor and to any extensions, renewals or revisions hereof, and
further consent to the release of any party hereto or any collateral or
security for the payment of this ESOP Note without affecting their
liability hereunder.
10.09-29
30
To secure this ESOP Note the undersigned hereby pledges to the holder
of this ESOP Note the common stock of the Company acquired by the
undersigned with the proceeds of this ESOP Note ("Collateral"). Except
with respect to put options described in the ESOP Plan Documents (but
limited to stock released from the suspense account), at no time during
the term of this ESOP Note shall such stock be subject to any put,
call, or other option or any buy-sell or similar agreement.
The loan evidenced by this ESOP Note is without recourse against the
undersigned. Notwithstanding anything herein to the contrary, neither
the Company nor any other holder of this ESOP Note shall have any right
to assets of the Trust other than (a) the Collateral, (b) contributions
(other than contributions of securities of the Company) that are made
to the undersigned under the Trust to meet its obligations under this
ESOP Note, and (c) earnings attributable to the Collateral and the
investment of such contributions. The undersigned is not obligated to
make any payment of interest or principal on the ESOP Note except to
the extent of W the sum of all cash contributions theretofore received
by it from the Company to meet the undersigned's obligation on this
ESOP Note and the earnings attributable to the investment of such
contributions, less (ii) all payments of principal and interest
theretofore made by the undersigned on this ESOP Note.
Upon and to the extent of any failure by the undersigned to meet the
payment schedule of this ESOP Note, the holder hereof may at its option
require transfer of such of the Collateral as does not exceed the
amount of the payment default.
The fiscal year of the Plan (the "Plan Year") is January 1 through
December 31. For each Plan Year during the duration of the loan
evidenced by this ESOP Note, a portion of the pledged employer
securities shall be released from the pledge. The number of employer
securities released will equal the number of encumbered employer
securities held immediately before release for the current Plan Year
multiplied by a fraction. The numerator of the fraction is the amount
of principal and interest paid during the Plan Year. The denominator of
the fraction is the sum of the numerator plus the principal and
interest to be paid for all future Plan Years. The number of Plan Years
taken into account hereunder shall be computed without taking into
account any possible extension or renewal periods of the ESOP Note. For
purposes of such calculation, the interest to be paid in future years
shall be computed by using the interest rate applicable as of the end
of the Plan Year. In the event the employer securities
10.09-30
31
are to include more than one class of securities, the number of
securities of each class to be released for a Plan Year must be
determined by applying the same fraction to each class. At the request
of the Trustee, the Company shall execute and deliver to the Trustee a
certificate or certificates representing the number of pledged shares
to be released each Plan Year pursuant to the provisions of this
paragraph.
The undersigned shall have the right to prepay the principal of this
ESOP Note, in whole or in part, prior to maturity without premium or
penalty. Any partial prepayments shall be applied to the monthly
principal payments in the inverse order of their maturities.
This ESOP Note is non-negotiable and it may not be negotiated or
assigned by any holder hereof without the written consent of the
undersigned. The undersigned by execution hereof consents to the
negotiation and assignment of this ESOP Note to the Bank. As used
herein, the words "to the order of" refer only to any subsequent
holders for whom such written consent has been given.
This ESOP Note shall be deemed to have been made and delivered in the
State of Missouri and shall be governed by, and construed in accordance
with, the laws of the State of Missouri. Until advised otherwise by the
Bank, this ESOP Note shall be payable at the offices of Bank at 0000
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx.
IN WITNESS WHEREOF, the undersigned has executed this ESOP Note as of the day
and year first hereinabove written.
TEAM FINANCIAL, INC., AS
TRUSTEE UNDER THE TEAMBANC, INC.
EMPLOYEES STOCK OWNERSHIP PLAN
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
----------------------------------
PAY TO THE ORDER OF
COMMERCE BANK, N.A.
WITH RECOURSE
TEAM FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------
Title: Chairman & CEO
10.09-31
32
LENDING AGREEMENT
THIS LENDING AGREEMENT ("Agreement") is made and entered into as of the
30 day of September, 1997, by and among COMMERCE BANK, N.A. ("Lender"),
TEAM FINANCIAL, INC. ("Company"), and TEAM FINANCIAL, INC., as Trustee
(the "Trustee") under the TeamBanc, Inc. Employees Stock ownership
Plan, as established pursuant to the TeamBanc, Inc. Employees Stock
Ownership Plan dated as of November 6, 1992, as amended from time to
time (the "Plan").
WITNESSETH:
WHEREAS, Lender has agreed to loan $200,018 to Company ("Loan"); and
WHEREAS, the parties hereto wish to restrict the use of the proceeds of
the Loan in the manner set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and promises herein contained, the adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
USE OF PROCEEDS BY COMPANY
Company agrees that the proceeds of the Loan shall be used for the sole
purpose of lending such proceeds to the Trustee, such loan to be
evidenced by that certain ESOP Note (And Pledge Agreement) of even date
herewith made by the Trustee to the Company (the "ESOP Note"), for the
sole purpose of enabling the Trustee to finance the purchase by the
Plan of "qualifying employer securities", as such term is defined in
Section 408(e) of the Employee Retirement Income Security Act of 1974,
as amended, and Section 4975(d)(3) of the Internal Revenue Code of
1986, as amended.
USE OF PROCEEDS BY TRUSTEE
The Trustee agrees to use the amount loaned to the Trustee by Company,
which amount represents the proceeds of the Loan, for the sole purpose
of enabling Trustee to acquire "qualifying employer securities" as
defined above).
PLEDGE OF SECURITIES
To secure the ESOP Note the Trustee hereby pledges and assigns to
Company or any holder of the ESOP Note all "qualifying employer
securities" the acquisition of which has been financed with the
10.09-32
33
proceeds of the ESOP Note. The Trustee acknowledges that the ESOP Note
and pledged "qualifying employer securities" will be endorsed and
assigned by Company to Lender as collateral for the Loan.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
written above.
COMMERCE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Title: Senior Vice President
----------------------------------
TEAM FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Chairman & CEO
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
----------------------------------
TEAM FINANCIAL, INC., as
Trustee Under the TeamBanc, Inc.
Employees Stock Ownership Plan
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Title: Chairman / CEO
----------------------------------
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Treasurer
----------------------------------
10.09-33
