between
U.S. BANK NATIONAL ASSOCIATION
and
PINNACLE BANK
1. | DEFINITIONS | ||
1.1 | Defined Terms | 1 | |
1.2 | Certain UCC and Accounting Terms; Interpretations | 9 | |
1.3 | Exhibits and Schedules Incorporated | 9 | |
2. | CREDIT FACILITY | ||
2.1 | The Loan | 9 | |
2.2 | The Note | 9 | |
2.3 | Payments and Maturity Date | 9 | |
2.4 | Fee | 9 | |
2.5 | The Closing | 10 | |
2.6 | Interest Matters | 10 | |
2.7 | Certain Provisions Regarding Taxes, Yield Protection and Illegality | 10 | |
2.8 | Payments | 13 | |
3. | DISBURSEMENT | ||
3.1 | Disbursement | 13 | |
3.2 | Closing Deliveries | 13 | |
3.3 | Conditions to Each Borrowing Tranche | 14 | |
4. | GENERAL REPRESENTATIONS AND WARRANTIES | ||
4.1 | Organization and Authority | 15 | |
4.2 | No Impediment to Transactions | 16 | |
4.3 | Purposes of the Loan | 17 | |
4.4 | Financial Condition | 17 | |
4.5 | Title to Properties | 19 | |
4.6 | No Material Adverse Change | 19 | |
4.7 | Legal Matters | 19 | |
4.8 | Borrower Status | 21 | |
4.9 | No Misstatement | 22 | |
4.10 | Representations and Warranties Generally | 22 | |
5. | GENERAL COVENANTS, CONDITIONS AND AGREEMENTS | ||
5.1 | Compliance with Transaction Documents | 22 | |
5.2 | Material Transactions | 22 | |
5.3 | Subsidiary Bank Shares | 24 | |
5.4 | Business Operations | 24 | |
5.5 | Compliance with Laws | 25 | |
5.6 | Lender Expenses | 27 | |
5.7 | Inspection Rights | 27 | |
6. | REPORTING | ||
6.1 | Annual | 28 | |
6.2 | Quarterly | 28 | |
6.3 | Compliance Certificate | 28 | |
6.4 | Copies of Other Reports and Correspondence | 28 | |
6.5 | Proceedings | 28 | |
6.6 | Event of Default; Material Adverse Change | 28 | |
6.7 | Issuance of Borrower Capital Instruments | 28 | |
6.8 | Other Information Requested by Lender | 28 | |
6.9 | Electronic Delivery of Reporting Materials | 29 |
7. | FINANCIAL COVENANTS | ||
7.1 | Capitalization | 29 | |
7.2 | Risk‑Based Capital | 29 | |
7.3 | Nonperforming Assets to Capital | 29 | |
7.4 | Reserves to Nonperforming Loans | 29 | |
7.5 | Minimum Fixed Charge Coverage Ratio | 29 | |
7.6 | Liquidity | 29 | |
8. | BORROWER'S DEFAULT | ||
8.1 | Borrower's Defaults and Lender's Remedies | 30 | |
8.2 | Protective Advances | 32 | |
8.3 | Other Remedies | 32 | |
8.4 | No Lender Liability | 32 | |
8.5 | Lender's Fees and Expenses | 32 | |
9. | MISCELLANEOUS | ||
9.1 | Release; Indemnification | 33 | |
9.2 | Assignment and Participation | 33 | |
9.3 | Prohibition on Assignment | 33 | |
9.4 | Time of the Essence | 33 | |
9.5 | No Waiver | 34 | |
9.6 | Severability | 34 | |
9.7 | Usury; Revival of Liabilities | 34 | |
9.8 | Notices and Electronic Communications | 35 | |
9.9 | Successors and Assigns | 36 | |
9.10 | No Joint Venture | 36 | |
9.11 | Brokerage Commissions | 36 | |
9.12 | Publicity | 36 | |
9.13 | Documentation | 36 | |
9.14 | Additional Assurances; Right of Set‑off | 36 | |
9.15 | Entire Agreement | 37 | |
9.16 | Choice of Law, Jurisdiction and Venue | 37 | |
9.17 | No Advisory or Fiduciary Responsibility | 38 | |
9.18 | No Third Party Beneficiary | 38 | |
9.19 | Legal Tender of United States | 38 | |
9.20 | Captions; Counterparts | 38 | |
9.21 | Knowledge; Discretion | 38 | |
9.22 | PFP Loan Consent | 38 | |
9.23 | WAIVER OF CONSEQUENTIAL DAMAGES, ETC | 39 | |
9.24 | WAIVER OF RIGHT TO JURY TRIAL | 39 |
B Form of Quarterly Compliance Certificate
4.1.2 States of Operation; Capitalization
Unpaid Principal Amount: | Applicable Margin: | |
$35,000,000 or greater | 1.95 | % |
Less than $35,000,000 and more than $29,999,999.99 | 1.85 | % |
Less than $30,000,000 and more than $24,999,999.99 | 1.75 | % |
Less than $25,000,000 | 1.65 | % |
3.2.1 Searches. Such UCC, tax lien and judgment searches regarding Borrower pertaining to the jurisdictions in which Borrower is organized and headquartered.
150 Third Avenue South
Nashville, Tennessee 37201
Attn: Harold R. Carpenter
Telephone No.: (615) 744-3742
Fax No.: (615) 744-3842
E‑Mail Address: harold.carpenter@pnfp.com
With a copy to:
Bass Berry & Sims, PLC
Nashville, Tennessee 37201
if to Lender: | U.S. Bank National Association One U.S. Bank Plaza St. Louis, Missouri 63101 Attn: Eric Niedbalski, Portfolio Manager Telephone No.: (314) 418-1507 Fax No.: (314) 418-2173 E‑Mail Address: eric.niedbalski@usbank.com |
With a copy to:
U.S. Bank National Association
5065 Wooster Road, CN-OH-L2CB
Cincinnati, Ohio 45226-2326
Attn: Cynthia M. Olson, Client Services Representative
Telephone No.: (513) 277‑5361
Fax No.: (513) 277-5364
E‑Mail Address: cynthia.olson1@usbank.com
Kirkland & Ellis LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attn: Edwin S. del Hierro, P.C.
Telephone No.: (312) 862‑3222
Fax No.: (312) 862‑2200
E‑Mail Address: ed.delhierro@kirkland.com
PINNACLE BANK By: /s/ Harold R. Carpenter Name: Harold R. Carpenter Title: Chief Financial Officer | |
U.S. BANK NATIONAL ASSOCIATION By: /s/ Mark R. Cousineau Name: Mark R. Cousineau Title: Senior Vice President |
$40,000,000.00 | New York, New York | |
Date: February 4, 2015 |
By:
Name: [•]
Title: [•]
for the Quarter Ended ______________________
By:
Name: [•]
Title: [•]
TO
QUARTERLY COMPLIANCE CERTIFICATE
A. | Risk-Based Capital Adequacy Guidelines. (Sections 7.1 and 7.2) (as of the fiscal quarter ending _________, 201__) | |||||
1. | Borrower | |||||
(Primary Federal Regulator Capital Guidelines) _____ In Compliance _____Not In Compliance | ||||||
[minimum capital category required: “well capitalized”] | ||||||
[minimum required total risk-based capital ratio: 12%] | ||||||
B. | Maximum Nonperforming Assets. (Section 7.3) (as of the fiscal quarter ending _________, 201__) | |||||
1. | Total Nonperforming Assets | $ | __________ | |||
2. | Tangible Primary Capital | $ | __________ | |||
3. | NPAs divided by Tangible Primary Capital [B.1 divided by B.2] | _________% | ||||
[maximum permitted - 18%] | ||||||
C. | Minimum Reserves to Nonperforming Loans. (Section 7.4) (as of the fiscal quarter ending _________, 201__) | |||||
1. | Allowance for Loan and Leases Losses | $ | __________ | |||
2. | Nonperforming Loans | $ | __________ | |||
3. | ALLLs divided by NPLs [C.1 divided by C.2] | _________% | ||||
[minimum required ALLL: 100% of NPLs] |
D. | Minimum Fixed Charge Coverage Ratio. (Section 7.5) [PFP ONLY] (as of the fiscal quarter ending _________, 201__) | |||||
1. | Net Income of PFP (on a consolidated basis) | $ | __________ | |||
2. | Amount of Goodwill Amortized by PFP | $ | __________ | |||
3. | Cash distributions or declarations by PFP | $ | __________ | |||
4. | Interest Expense (contractually due) | $ | __________ | |||
5. | [E.1. plus E.2. plus E.4. minus E.3.] | $ | __________ | |||
6. | Interest Expense (contractually due) | $ | __________ | |||
7. | Required Principal Payments (PFP) | $ | __________ | |||
8. | Annual Principal Amount - PFP Loan | $ | 2,500,000 | |||
9. | [E.6. plus E.7. plus E.8.] | $ | __________ | |||
10. | Fixed Charge Coverage Ratio [E.5. divided by E.9.] | ______ to 1.00 | ||||
[minimum required fixed charge coverage ratio (rolling four quarter basis - 1.25 to 1.00] |
E. | Minimum Liquidity. (Section 7.6) (as of the fiscal quarter ending _________, 201__) | |||||
1. | Liquid Assets | $ | __________ | |||
2. | Required Loan Payments (next four quarters) | $ | __________ | |||
[minimum required Liquid Assets - 200% of E.2.] |
To: | U.S. Bank National Association |
Re: | Loan Agreement dated as of February 4, 2015 (the "Loan Agreement"), between Pinnacle Bank, a Tennessee state-chartered banking corporation ("Borrower") and U.S. Bank National Association, a national banking association ("Lender") |
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Disclosure Schedule
1. | Tennessee is the only state where the Borrower owns, leases, operates, maintains, controls or otherwise has an interest in any bank or branch offices, loan production offices, deposit production offices, remote service units for the production of deposits or loans, or any ATMs, or owns or leases any Property used in its operations. |
2. | PFP is the only record or beneficial owner of capital stock of Borrower. As of the date hereof, PFP owns 6,805,600 shares of Borrower's common stock. From time to time PFP contributes capital to Borrower and in connection with such capital contributions Borrower may issue additional shares of capital stock to PFP. |
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1. | Financing statement No. 210-022207 filed with the Tennessee Secretary of State ("TSOS") on June 23, 2010, identifying PFP as debtor and Cisco Systems Capital Corporation as secured party. |
2. | Financing statement No. 212-041070 filed with the TSOS on July 26, 2012, identifying PFP as debtor and IBM Credit LLC as secured party. |
3. | Financing statement No. 202-035358 filed with the TSOS on June 18, 2002, identifying Pinnacle National Bank as debtor and Federal Home Loan Bank of Cincinnati as secured party. See also related filing nos. 207-050564, 310-047650, 212-006370, 212-058134 and420229092. |
4. | Financing statement No. 207-070287 filed with the TSOS on August 3, 2007, identifying Pinnacle National Bank as debtor and Federal Reserve Bank of Atlanta as secured party. See also related filing nos. 312-308907 and 212-063671. |
5. | Financing statement No. 212-058440 filed with the TSOS on September 21, 2012, identifying Pinnacle National Bank as debtor and Fannie Mae as secured party. |
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1. | PFP and Borrower are currently paying PFP's or Borrower's, as applicable, portion of the premiums for medical insurance for one spouse of a former employee under PFP's and Subsidiary's standard health plans, and will continue to pay such former employee's spouse's premium through the date that the former employee's spouse reaches age 65. |
2. | From time to time, PFP or Borrower has allowed terminated employees to continue to participate (along with the employees' eligible spouse and dependents) in PFP's or Borrower's standard health plans following the termination of those employees' employment, and have continued to pay PFP's or Borrower's, as applicable, portion of the premiums for such continuation coverage. Each of PFP and Borrower, may, from time to time, after the date hereof, provide similar benefits under PFP's or Borrower's standard health plans to employees (along with the employees' eligible spouse and dependents) whose employment with PFP or Borrower terminates following the date hereof; provided, however, that the payment of such premiums may not extend beyond eighteen months. |
3. | PFP and Borrower have entered into agreements with certain of their executive officers pursuant to which (i) PFP and Borrower have agreed to reimburse the executive officer for the cost of premium payments paid by the executive to continue his health insurance for himself and his eligible dependents as provided by PFP and the Bank for a period ranging from three months to twelve months following the termination of the executive officer's employment depending on the cause of such termination and (ii) the executive officer and his immediate family are entitled to continue to receive the health insurance plan benefits in effect for executive officer at the time of his termination following a change in control for a period of three years to include payment of PFP's or Borrower's funded portion of the plan. Each of PFP and Borrower may, from time to time, enter into contracts providing for, or otherwise promise to provide, benefits similar (but not more advantageous to the employee) to those described in this Item 3 to other executive officers or members of PFP's or Borrower's leadership team. |
1. | With respect to periods prior to the ownership or occupancy of any Property by Borrower or a Subsidiary, prior owners or operators of the Property may have used or stored Hazardous Materials on the Property, including paint and asphalt sealant, however neither the use nor storage of such Hazardous Materials has had or could reasonably be expected to have a Material Adverse Effect. |
2. | With respect to periods prior to the ownership or occupancy of any Property by Borrower or a Subsidiary, there may have been Hazardous Materials Claims against such Property relating to Hazardous Materials or pursuant to a Hazardous Materials Law, but neither Borrower nor any Subsidiary was a party to such Hazardous Materials Claims, and no such Hazardous Materials Claims materially and adversely impact the current or proposed use of such Property by Borrower or the applicable Subsidiary. |
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