Exhibit 10.17
LINE OF CREDIT AGREEMENT
THIS LINE OF CREDIT AGREEMENT ("Agreement") is made and entered into as of
November 1, 2000 by and between GREATER BAY BANCORP, a California corporation
("Borrower") and UNION BANK OF CALIFORNIA, N.A. ("Bank").
ARTICLE 1. THE LOAN
1.1 Revolving Loan. Bank will loan to Borrower an amount not to exceed TWENTY
FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00) outstanding in the aggregate at
any one time ("Loan"). Borrower may borrow, repay and reborrow all or part of
the Loan in amounts of not less than ONE MILLION AND NO/100 DOLLARS
($1,000,000.00) in accordance with the terms of the Note. The Loan shall be
evidenced by a promissory note ("Note", together with this Agreement and all
documents executed in connection with this Agreement, collectively, "Loan
Documents") on the standard form used by Bank for commercial loans. All
borrowings under the Loan must be made before October 30, 2001 ("Maturity
Date"), at which time all unpaid principal and interest of the Loan shall be due
and payable. Bank shall enter each amount borrowed and repaid in Bank's records
and such entries shall be deemed to be the amount of the Loan outstanding.
Omission of Bank to make any such entries shall not discharge Borrower of its
obligation to repay in full with interest all amounts borrowed.
1.2 Purpose of Loan. The proceeds of the Loan shall be used only for general
corporate purposes of Borrower and/or its subsidiary banks (each existing or
hereafter acquired subsidiary of Borrower which is a bank shall be hereafter
referred to as a "Bank Subsidiary").
1.3 Interest. Interest on the outstanding principal balance of the Loan shall
accrue daily from the date of the first advance until the Maturity Date at a per
annum rate equal to LIBOR plus seventy five basis points (0.75%). Interest
shall be payable on the first day of each calendar quarter, commencing the first
such date to occur after the first advance under the Loan and continuing through
the Maturity Date, on which date all accrued interest and principal remaining
unpaid shall be due and payable in full. The Loan may be prepaid in full or in
part only in accordance with the terms of the Note and any such prepayment shall
be subject to the prepayment fee provided for therein.
1.4 Fee. Borrower shall pay in advance a non-refundable fee of TWENTY-FIVE
THOUSAND AND NO/100 DOLLARS ($25,000.00) on or before the date of execution of
this Agreement, receipt of which is acknowledged by Bank.
1.5 Disbursement. Upon any borrowing hereunder, Bank shall disburse the
proceeds of the Loan as provided in Bank's standard form authorization executed
by Borrower.
ARTICLE 2. CONDITIONS PRECEDENT
Bank shall not be obligated to disburse all or any portion of the proceeds of
the Loan unless at or prior to the time for the making of such disbursement, the
following conditions have been fulfilled to Bank's satisfaction:
2.1 Compliance. Borrower shall have performed and complied with all terms and
conditions required by this Agreement to be performed or complied with by it
prior to or at the date of the making of such disbursement and shall have
executed and delivered to Bank the Note and other documents deemed necessary by
Bank.
Page 1
2.3 Borrowing Resolution. Borrower shall have provided Bank with certified
copies of resolutions duly adopted by the Board of Directors of Borrower,
authorizing this Agreement and the Loan Documents. Such resolutions shall also
designate the persons who are authorized to act on Borrower's behalf in
connection with this Agreement and to do the things required of Borrower
pursuant to this Agreement.
2.4 Continuing Compliance. At the time any disbursement is to be made, there
shall not exist any event, condition or act which constitutes an event of
default under Article 6 hereof or any event, condition or act which with notice,
lapse of time or both would constitute such event of default; nor shall there be
any such event, condition, or act immediately after the disbursement were it to
be made.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that:
3.1 Business Activity. The principal business of Borrower is that of a bank
holding company.
3.2 Affiliates and Subsidiaries. Borrower's affiliates and subsidiaries (those
entities in which Borrower has either a controlling interest or at least a 25%
ownership interest) and their addresses are as provided on a schedule delivered
to Bank on or before the date of this Agreement.
3.3 Authority to Borrow. The execution, delivery and performance of this
Agreement, the Note and all other agreements and instruments required by Bank in
connection with the Loan are not in contravention of any of the terms of any
indenture, agreement or undertaking to which Borrower is a party or by which it
or any of its property is bound or affected.
3.4 Financial Statements. The financial statements of Borrower, including both
a balance sheet at December 31, 1999, together with supporting schedules, and an
income statement for the twelve (12) months then ended, have heretofore been
furnished to Bank, and are true and complete and fairly represent the financial
condition of Borrower during the period covered thereby, and since that date
there has been no material adverse change in the financial condition or
operations of Borrower.
3.5 Title. Except for assets which may have been disposed of in the ordinary
course of business, Borrower has good and marketable title to all of the
property reflected in its financial statements delivered to Bank and to all
property acquired by Borrower since the date of said financial statements, free
and clear of all material liens, encumbrances, security interests and adverse
claims except those specifically referred to in said financial statements.
3.6 Litigation. There is no litigation or proceeding pending or, to its
knowledge threatened against Borrower or any of its property which is reasonably
likely to (a) affect the financial condition, property or business of Borrower
in a materially adverse manner or (b) result in liability in excess of
Borrower's insurance coverage.
3.7 Default. Borrower is not now in default in the payment of any of its
material obligations, and there exists no event, condition or act which
constitutes an event of default under Article 6 hereof and no condition, event
or act which with notice or lapse of time, or both, would constitute an event of
default.
Page 2
3.8 Organization. Borrower is duly organized and existing under the laws of
the State of California, and has the power and authority to carry on the
business in which it is engaged and/or proposes to engage.
3.9 Power. Borrower has the power and authority to enter into this Agreement
and to execute and deliver the Note and all of the other Loan Documents.
3.10 Authorization. This Agreement and all things required by this Agreement
have been duly authorized by all requisite action of Borrower.
3.11 Qualification. Borrower is duly qualified and in good standing in any
jurisdiction where such qualification is required.
3.12 Compliance with Laws. Borrower is not in violation with respect to any
applicable laws, rules, ordinances or regulations which materially affect the
operations or financial condition of Borrower.
3.13 ERISA. Any defined benefit pension plans as defined in the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), of Borrower meet,
as of the date hereof, the minimum funding standards of Section 302 of ERISA,
and no Reportable Event or Prohibited Transaction as defined in ERISA has
occurred with respect to any such plan.
3.14 Regulation U. No action has been taken or is currently planned by
Borrower, or any agent acting on its behalf, which would cause this Agreement or
the Note to violate Regulation U or any other regulation of the Board of
Governors of the Federal Reserve System or to violate the Securities and
Exchange Act of 1934, in each case as in effect now or as the same may hereafter
be in effect. Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock as one of its important
activities and none of the proceeds of the Loan will be used directly or
indirectly for such purpose.
3.15 Wells Fargo Agreement. Borrower hereby confirms that Borrower is in
compliance with all terms and conditions of that certain Letter Revolving Line
of Credit Agreement dated November 4, 1999, between Wells Fargo Bank, National
Association ("Wells Fargo") and Borrower ("Wells Fargo Agreement"); and further
certifies that, as of the date of this Agreement, there exists no event of
default as defined in the Wells Fargo Agreement, nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
an event of default under the Wells Fargo Agreement.
3.16 Continuing Representations. These representations shall be considered to
have been made again at and as of the date of each disbursement of the Loan and
shall be true and correct as of such date or dates.
ARTICLE 4. AFFIRMATIVE COVENANTS
Until the Note and all sums payable pursuant to this or any other of the Loan
Documents have been paid in full, unless Bank waives compliance in writing,
Borrower agrees that Borrower will:
4.1 Use of Proceeds. Use the proceeds of the Loan only as provided in Section
1.2 above.
4.2 Payment of Obligations. Pay and discharge promptly all taxes, assessments
and other governmental charges and claims levied or imposed upon it or its
property, or any part thereof, provided, however, that Borrower shall have the
right in good faith to contest any such taxes, assessments, charges or claims
and, pending the outcome of such contest, to delay or refuse
Page 3
payment thereof provided that adequately funded reserves are established by it
to pay and discharge any such taxes, assessments, charges and claims.
4.3 Maintenance of Existence. Maintain and preserve its existence and assets
and all rights, franchises, licenses and other authority necessary for the
conduct of its business in all material respects and will maintain and preserve
its property, equipment and facilities in good order, condition and repair.
Upon reasonable prior written notice to Borrower, Bank may, at reasonable times,
visit and inspect any of the properties of Borrower.
4.4 Records. Keep and maintain full and accurate accounts and records of its
operations according to regulatory and generally accepted accounting principles
and upon reasonable prior written notice will permit Bank to have access
thereto, to make examination and photocopies thereof, and to make audits during
regular business hours.
4.5 Information Furnished. Furnish to Bank, in form and substance reasonably
satisfactory to Bank:
(a) Within fifty (50) days after the close of each fiscal quarter of each
fiscal year, its unaudited consolidated balance sheet as of the close of
such fiscal quarter, its unaudited consolidated income and expense
statement with year-to-date totals and supportive schedules, and its
consolidated statement of retained earnings and cash flows for that fiscal
quarter, all prepared in accordance with generally accepted accounting
principles consistently applied and used consistently with prior practices
("GAAP").
(b) Within ninety five (95) days after the close of each fiscal year, a
copy of its statement of financial condition including at least its
consolidated balance sheet as of the close of such fiscal year and its
consolidated income and expense statement, and its consolidated retained
earnings and cash flows statement for such fiscal year, examined and
prepared on an audited basis by independent certified public accountants
selected by Borrower and reasonably satisfactory to Bank, in accordance
with GAAP along with any management letter provided by such accountants.
(c) As soon as available, copies of such financial statements and reports
as Borrower may file with any state or federal agency.
(d) Within (i) fifty (50) days after the close of each fiscal quarter; and
(ii) ninety five (95) days after the close of each fiscal year, a
certification of compliance with all covenants under this Agreement,
executed by Borrower's duly authorized officer, in form acceptable to Bank.
(e) Prompt written notice to Bank of any Event of Default or breach under
any of the terms or provisions of this Agreement or any other Loan
Document, any litigation which would have a material adverse effect on
Borrower's financial condition, and any other matter which has resulted in,
or is likely to result in, a material adverse change in Borrower's
financial condition or operations.
(f) Within fifteen (15) days after Borrower knows or has reason to know
that any Reportable Event or Prohibited Transaction (as defined in ERISA)
has occurred with respect to any defined benefit pension plan of Borrower,
a statement of an authorized officer of Borrower describing such event or
condition and the action, if any, which Borrower proposes to take with
respect thereto.
(g) Such other financial statements and information as Bank may reasonably
request from time to time.
Page 4
4.6 Financial Condition. Maintain Borrower's financial condition (or with
respect to subparagraph (c) below, cause all of Borrower's subsidiaries or Bank
Subsidiaries (as applicable) to maintain their combined financial condition) as
follows using GAAP (except to the extent modified by the definitions herein),
with compliance determined commencing with Borrower's financial statements for
the period ending June 30, 2000:
(a) Double Leverage Ratio not at any time greater than 1.50 to 1.0
determined as of the end of each fiscal quarter. "Double Leverage Ratio"
means the ratio of (i) Borrower's equity investment in all its
subsidiaries, to (ii) Borrower's equity.
(b) On a consolidated basis (and cause each Bank Subsidiary to maintain) a
capital ratio sufficient to be rated "well capitalized" by the Federal
Reserve Board, Federal Deposit Insurance Corporation and each other federal
or state regulatory entity or agency which has jurisdiction over Borrower
or any Bank Subsidiary which maintains such a rating system; provided,
however, that in the event Borrower acquires a Bank Subsidiary after the
date of this Agreement which is not "well capitalized" at the time of such
acquisition, Borrower shall cause such Bank Subsidiary to become "well
capitalized" within six (6) months following such acquisition.
(c) Consolidated net income after taxes of not less than $1.00, determined
as of each fiscal quarter end on a rolling four (4) quarter basis.
Consolidated herein refers to Borrower and all of its subsidiaries.
4.7 Notices to Bank. Promptly give written notice to Bank of:
(a) Any litigation or administrative or regulatory proceeding in which
Borrower is named as a party where the amount claimed against Borrower is
$1,000,000.00 or more, or where the granting of the relief requested would
have a material adverse effect on Borrower's financial condition.
(b) Any formal enforcement action taken by a governmental or regulatory
agency or, to the knowledge of Borrower, proposed to be taken against
Borrower and any of its subsidiaries.
(c) Any event of default by Borrower under any of the terms or provisions
of this Agreement or of any other agreement, contract, document or
instrument entered, or to be entered into with Bank.
(d) Any material event of default under any terms of the Wells Fargo
Agreement.
(e) Any material amendment, modification, extension, restatement or
termination of the Wells Fargo Agreement.
(f) Any other matter which has resulted in, or is likely to result in, a
material adverse change in its financial condition or operations.
4.8 Reports Under Pension Plans. Furnish to Bank, as soon as possible and in
any event within 15 days after Borrower knows or has reason to know of:
(a) Occurrence of any reportable event under Section 4043(b) of ERISA for
with the PBGC requires 30 days' notice. "PBGC" means the Pension Benefit
Guaranty Corporation or any successor thereto established under ERISA.
Page 5
(b) Any action by Borrower to terminate or withdraw from a Plan or the
filing of any notice of intent to terminate under Section 4041 of ERISA.
"Plan" means any employee benefit plan of the Borrower subject to ERISA.
(c) Any notice of noncompliance made with respect to a Plan under Section
4041(b) of ERISA.
(d) The commencement of any proceeding with respect to a Plan under
Section 4041(b) of ERISA.
4.9 Insurance. Keep all of its insurable property, real, personal or mixed,
insured by good and responsible companies against fire and such other risks as
are customarily insured against by companies conducting similar business with
respect to like properties. Borrower will maintain adequate worker's
compensation insurance and adequate insurance against liability for damages to
persons and property. Promptly upon request of Bank, deliver to Bank a copy of
each insurance policy, or, if permitted by Bank, a certificate of insurance
listing all insurance in force.
4.10 Additional Requirements. Promptly, upon demand by Bank, take such further
action and execute all such additional documents and instruments in connection
with this Agreement as Bank in its reasonable discretion deems necessary, and
promptly supply Bank with such other information concerning its affairs as Bank
may request from time to time.
4.11 Litigation and Attorneys' Fees. Pay promptly to Bank upon demand,
reasonable attorneys' fees (including but not limited to the reasonable estimate
of the allocated costs and expenses of in-house legal counsel and legal staff)
and all costs and other expenses paid or incurred by Bank in collecting,
modifying or compromising the Loan or in enforcing or exercising its rights or
remedies created by, connected with or provided for in this Agreement or any of
the Loan Documents, whether or not an arbitration, judicial action or other
proceeding is commenced. If such proceeding is commenced, only the prevailing
party shall be entitled to attorneys' fees and court costs.
ARTICLE 5. NEGATIVE COVENANTS
Until the Note and all other sums payable pursuant to this Agreement or any
other of the Loan Documents have been paid in full, unless Bank waives
compliance in writing, Borrower agrees that Borrower will not:
5.1 Encumbrances and Liens. Create, assume or suffer to exist any mortgage,
pledge, security interest, encumbrance, or lien (other than for taxes not
delinquent and for taxes and other items being contested in good faith) on
property of any kind, whether real, personal or mixed, now owned or hereafter
acquired, or upon the income or profits thereof ("Liens"), except:
(a) Deeds of Trust and security agreements in favor of Bank.
(b) Liens for taxes not yet due.
(c) Liens outstanding on the date of this Agreement disclosed in writing
to Bank.
(d) Liens on any securities of the U. S. government (including any agency
thereof).
(e) Liens in connection with indebtedness permitted pursuant to Section
5.2(e).
Page 6
(f) Liens which are not material or do not materially interfere with the
conduct of Borrower's business.
5.2 Other Debts. Create, incur, assume or permit to exist any
indebtedness or liabilities resulting from borrowings, loans or advances,
whether secured or unsecured, matured or unmatured, liquidated or
unliquidated, joint or several, except (a) the liabilities of Borrower to
Bank, (b) any other liabilities of Borrower and any subsidiaries existing
as of, and disclosed to Bank prior to, the date hereof, (c) unsecured and
uncommitted operating lines of credit, such as daylight overdraft
facilities and Fed Funds lines and the like, (d) other debts, lines of
credit and leases such as the Wells Fargo Agreement (expected to be
increased to $40,000,000) and a similar facility with First Union National
Bank, (e) other unsecured loans and lines of credit in an aggregate amount
not to exceed, on a consolidated basis, 50% of Borrower's consolidated
equity preceding the incurring of such indebtedness, and (f) additional
unsecured liabilities which are subordinated to the obligations of Borrower
to Bank pursuant to agreements in form and content acceptable to Bank;
provided that the indebtedness described in clauses (b), (c), (d) and (e)
shall not be prior or senior in right of payment to the obligations of
Borrower to Bank.
5.3 Sale of Assets, Liquidation or Merger. Merge into or consolidate with any
other entity unless Borrower is the surviving entity; nor make any substantial
change in the nature of Borrower's business as conducted as of the date hereof
or as is permitted for a bank holding company or financial holding company by
the applicable regulations and interpretations of the Board of Governors of the
Federal Reserve system; nor sell, lease, transfer or otherwise dispose of all or
a substantial or material portion of Borrower's assets except in the ordinary
course of business.
5.4 Other Business. Engage in any business activities other than that
permitted for a financial holding company or a bank holding company under the
applicable regulations and interpretations of the Board of Governors of the
Federal Reserve Board.
ARTICLE 6. EVENTS OF DEFAULT
The occurrence of any of the following events ("Events of Default") shall
terminate any obligation on the part of Bank to make or continue the Loan and
automatically, unless otherwise provided under the Note, shall make all sums of
interest and principal and any other amounts owing under the Loan immediately
due and payable, without notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor, or any other notices or demands:
(a) Borrower shall default in the due and punctual payment of the principal
of or the interest on the Note or any of the other Loan Documents, and a
period of five (5) calendar days shall have elapsed thereafter; provided,
however, with respect to interest, no Event of Default shall be deemed to
have occurred if same is paid later than the fifth day after the applicable
due date but within thirty (30) days after the applicable due date no more
than two times during the term of the Loan.
(b) Any representation or warranty made, or financial statement,
certificate or other document provided, by Borrower shall prove to have
been materially false or misleading when made.
(c) Borrower shall default in the due performance or observance of any
covenant or condition of the Loan Documents, and the same is not cured
within 30 days after the
Page 7
date Borrower knew or through the use of reasonable diligence should have
known thereof; or Borrower shall fail to pay its debts generally as they
become due or shall file any petition or action for relief under any
bankruptcy, insolvency, reorganization, moratorium, creditor composition
law, or any other law for the relief of or relating to debtors; an
involuntary petition shall be filed under any bankruptcy law against
Borrower, and the same is not dismissed within 60 days of such filing; or a
custodian, receiver, trustee, assignee for the benefit of creditors, or
other similar official, shall be appointed to take possession, custody or
control of the properties of Borrower; or the dissolution or termination of
the business of Borrower.
(d) Borrower shall fail to perform in any material respect with respect to
payment under any other agreement involving the borrowing of money, the
purchase of property, the advance of credit or any other monetary liability
of any kind in which the amount involved exceeds $1,000,000.00.
(e) A material event of default by Borrower shall occur and be continuing
under the Wells Fargo Agreement.
(f) Any governmental or regulatory authority shall take any formal
enforcement action against Borrower, or any other event shall occur, which
would have a material adverse effect on the financial condition or business
of Borrower.
(g) Any judgment(s) in excess of $1,000,000.00 shall be entered against
Borrower, or any involuntary lien(s) of any kind or character shall attach
to any assets or property of Borrower having a book value in excess of
$1,000,000.00 which has not been bonded or released within 60 days.
(h) Any Plan shall be terminated pursuant to ERISA, a trustee shall be
appointed by the appropriate United States District Court to administer any
Plan, the PBGC shall institute proceedings to terminate any Plan, or any
Plan shall fail to satisfy the minimum funding standard for such Plan for a
plan year as established by the Internal Revenue Code, as amended from time
to time.
ARTICLE 7. MISCELLANEOUS PROVISIONS
7.1 Additional Remedies. The rights, powers and remedies given to Bank
hereunder shall be cumulative and not alternative and shall be in addition to
all rights, powers and remedies given to Bank by law against Borrower or any
other person, including but not limited to Bank's rights of setoff or banker's
lien.
7.2 Nonwaiver. Any forbearance or failure or delay by Bank in exercising any
right, power or remedy hereunder shall not be deemed a waiver thereof and any
single or partial exercise of any right, power or remedy shall not preclude the
further exercise thereof. No waiver shall be effective unless it is in writing
and signed by an officer of Bank.
7.3 Inurement. The benefits of this Agreement shall inure to the successors
and assigns of Bank and the permitted successors and assignees of Borrower, and
any assignment of Borrower without Bank's consent shall be null and void.
7.4 Severability. Should any one or more provisions of this Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
7.5 Construction. The section and subsection headings herein are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Page 8
7.6 Amendments. This Agreement may be amended only in writing signed by all
parties hereto.
7.7 Counterparts. Borrower and Bank may execute one or more counterparts to
this Agreement, each of which shall be deemed an original.
7.8 Notices. Any notices or other communications provided for or allowed
hereunder shall be effective only when given by one of the following methods and
addressed to the respective party at its address given with the signatures at
the end of this Agreement and shall be considered to have been validly given:
(a) upon delivery, if delivered personally; (b) upon receipt, if mailed, first
class postage prepaid, with the United States Postal Service; (c) on the next
business day, if sent by overnight courier service of recognized standing; and
(d) upon telephoned confirmation of receipt, if telecopied. The addresses to
which notices or demands are to be given may be changed from time to time by
notice delivered as provided above.
7.9 Applicable Law. This Agreement and all other agreements and instruments
required by Bank in connection therewith shall be governed by and construed
according to the laws of the State of California. This Agreement hereby
incorporates any alternative dispute resolution agreement concurrently or
hereafter executed between Borrower and Bank.
7.10 Integration Clause. Except for documents and instruments specifically
referenced herein, this Agreement constitutes the entire agreement between Bank
and Borrower regarding the Loan and all prior communications verbal or written
between Borrower and Bank shall be of no further effect or evidentiary value.
Page 9
THIS AGREEMENT is executed on behalf of the parties by duly authorized officers
as of the date first above written.
GREATER BAY BANCORP, UNION BANK OF CALIFORNIA, N. A.
a California corporation
By: /s/ Steven C. Smith By: /s/ Dennis A. Cattell
Title: EVP, CFO & CAO Title: Vice President
By: Kamran F. Husain
Title: SVP, Finance & Risk Management
ADDRESS FOR NOTICE: ADDRESS FOR NOTICE:
2860 West Bayshore Road 445 South Figueroa Street, 13th Flr
Palo Alto, California 94303 Los Angeles, California 90071-1601
Attn: Kamran F. Husain Attn: William McGill
Senior Vice President Senior Vice President
Telephone No. (650) 813-8200 Telephone No. (213) 236-5009
FAX No. (650) 494-9193 FAX No. (213) 236-5548
Page 10
NOTE
(BASE RATE)
================================================================================
Borrower Name GREATER BAY BANCORP
- --------------------------------------------------------------------------------
Borrower Address Office Loan Number
2860 West Bayshore Road Risk Management Dept
Palo Alto, California 94303 __________________ _______________
Maturity Date Amount
October 30 2001 $25,000,000.00
================================================================================
$25,000,000.00 November 1, 2000
FOR VALUE RECEIVED, on October 30, 2001("Maturity Date"), the undersigned
("Borrower") promises to pay to the order of UNION BANK OF CALIFORNIA, N.A.
("Bank"), as indicated below, the principal sum of TWENTY FIVE MILLION AND
NO/100 DOLLARS ($25,000,000.00), or so much thereof as is disbursed and
outstanding from time to time in accordance with the terms and conditions of
that certain Loan Agreement between Borrower and Bank dated as of November 1,
2000 (as amended, supplemented, extended, restated, or renewed from time to
time, "Agreement"), together with interest on the balance of such principal from
time to time outstanding, at the per annum rate or rates and at the times set
forth below. All computations of interest under this Note shall be made on the
basis of a year of 360 days, for actual days elapsed.
At any time prior to the Maturity Date, subject to the provisions of the
Agreement, below, of this Note, Borrower may borrow, repay and reborrow hereon
so long as the total outstanding at any one time does not exceed the principal
amount of this Note.
1. Payment. Borrower shall pay interest on the first day of each calendar
quarter, commencing the first such date to occur after the first advance under
this Note. Should interest not be paid when due, it shall become part of the
principal and bear interest as herein provided. On the Maturity Date, all
principal and interest then unpaid shall be due and payable.
Borrower shall pay all amounts due under this Note in lawful money of the United
States at Bank's Risk Management Department, or such other office as may be
designated by Bank, from time to time.
1.1 Base Interest Rate. Amounts outstanding hereunder in increments of at
least ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) shall bear interest at a
rate, based on an index, which is seventy five (75) basis points per annum in
excess of Bank's LIBOR Rate for the Interest Period selected by Borrower, in
each case acceptable to Bank.
No Base Interest Rate may be changed, altered or otherwise modified until the
expiration of the Interest Period selected by Borrower. The exercise of
interest rate options by Borrower shall be as recorded in Bank's records, which
records shall be prima facie evidence of the amount borrowed under either
interest option and the interest rate; provided, however, that failure of Bank
to make any such notation in its records shall not discharge Borrower from its
obligations to repay in full with interest all amounts borrowed. In no event
shall any Interest Period extend beyond the maturity date of this Note.
To exercise this option, Borrower may, from time to time with respect to
principal outstanding on which a Base Interest Rate is not accruing, and on the
expiration of any Interest Period with respect to principal outstanding on which
a Base Interest Rate has been accruing, select an
Page 1
index offered by Bank for a Base Interest Rate Loan and an Interest Period by
telephoning an authorized lending officer of Bank located at the banking office
identified below prior to 10:00 a.m., Pacific time, on any Business Day and
advising that officer of the selected index, the Interest Period and the
Origination Date selected (which Origination Date, for a Base Interest Rate Loan
based on the LIBOR Rate, shall follow the date of such selection by no more than
two (2) Business Days).
Bank will mail a written confirmation of the terms of the selection to Borrower
promptly after the election is made. Failure to send such confirmation shall not
affect Bank's rights to collect interest at the rate selected. If, on the date
of the selection, the index selected is unavailable for any reason, the
selection shall be void. Bank reserves the right to fund the principal from any
source of funds notwithstanding any Base Interest Rate selected by Borrower but
such source shall not affect the applicability of the Base Interest Rate if
selected by Borrower.
1.2 Variable Interest Rate. All principal outstanding hereunder which is not
bearing interest at a Base Interest Rate shall bear interest at a rate per annum
equal to the Reference Rate, which rate shall vary as and when the Reference
Rate changes.
2. Interest Rate Following Default. In the event of default, at the option of
Bank, and, to the extent permitted by law, interest shall be payable on the
outstanding principal under this Note at a per annum rate equal to five percent
(5.0%) in excess of the Reference Rate, calculated from the date of default
until all amounts payable under this Note are paid in full.
3. Prepayment
(a) Amounts outstanding under this Note bearing interest at a rate based
on the Reference Rate may be prepaid in whole or in part at any time,
without penalty or premium. Borrower may prepay amounts outstanding under
this Note bearing interest at a Base Interest Rate in whole or in part at
the end of any Interest Period provided Borrower has given Bank not less
than five (5) Business Days prior written notice of Borrower's intention to
make such prepayment and pays to Bank the liquidated damages due as a
result. Liquidated Damages shall also be paid, if Bank, for any other
reason, including acceleration or foreclosure, receives all or any portion
of principal bearing interest at a Base Interest Rate prior to the end of
the applicable Interest Period. Liquidated Damages shall be an amount equal
to the present value of the product of: (i) the difference (but not less
than zero) between (a) the Base Interest Rate applicable to the principal
amount which is being prepaid, and (b) the return which Bank could obtain
if it used the amount of such prepayment of principal to purchase at bid
price regularly quoted securities issued by the United States having a
maturity date most closely coinciding with the relevant Base Rate Maturity
Date and such securities were held by Bank until the relevant Base Rate
Maturity Date ("Yield Rate"); (ii) a fraction, the numerator of which is
the number of days in the period between the date of prepayment and the
relevant Base Rate Maturity Date and the denominator of which is 360; and
(iii) the amount of the principal so prepaid (except in the event that
principal payments are required and have been made as scheduled under the
terms of the Base Interest Rate Loan being prepaid, then an amount equal to
the lesser of (A) the amount prepaid or (B) 50% of the sum of (1) the
amount prepaid and (2) the amount of principal scheduled under the terms of
the Base Interest Rate Loan being prepaid to be outstanding at the relevant
Base Rate Maturity Date). Present value under this Note is determined by
discounting the above product to present value using the Yield Rate as the
annual discount factor.
(b) In no event shall Bank be obligated to make any payment or refund to
Borrower, nor shall Borrower be entitled to any setoff or other claim
against Bank, should the return
Page 2
which Bank could obtain under this prepayment formula exceed the interest
that Bank would have received if no prepayment had occurred. All
prepayments shall include payment of accrued interest on the principal
amount so prepaid and shall be applied to payment of interest before
application to principal. A determination by Bank as to the prepayment fee
amount, if any, shall be conclusive absent manifest error.
(c) Bank shall provide Borrower a statement of the amount payable on
account of prepayment. Borrower acknowledges that (i) Bank establishes a
Base Interest Rate upon the understanding that it apply to the Base
Interest Rate Loan for the entire Interest Period, and any prepayment prior
to the end of an Interest Period may result in Bank incurring additional
costs, expenses or liabilities; and Borrower agrees to pay these Liquidated
Damages as a reasonable estimate of the costs, expenses and liabilities of
Bank associated with such prepayment prior to the end of an Interest
Period.
4. Default and Acceleration of Time for Payment. The occurrence of any Event
of Default as defined in the Agreement shall (a) terminate any obligation of
Bank to make or continue the Loan; and shall (b) at Bank's option, make all sums
of interest, principal and any other amounts owing under any Loan Document due
and payable (in accordance with the terms of the Agreement) without notice of
default, presentment or demand for payment, protest or notice of nonpayment or
dishonor or any other notices or demands; and (c) give Bank the right to
exercise any other right or remedy provided by contract or applicable law.
5. Additional Agreements of Borrower. If any amounts owing under this Note are
not paid when due, Borrower promises to pay all costs and expenses, including
reasonable attorneys' fees, incurred by Bank in the collection or enforcement of
this Note. Borrower and any endorser of this Note, for the maximum period of
time and the full extent permitted by law, (a) waive diligence, presentment,
demand, notice of nonpayment, protest, notice of protest, and notice of every
kind; (b) waive the right to assert the defense of any statute of limitations to
any debt or obligation hereunder; and (c) consent to renewals and extensions of
time for the payment of any amounts due under this Note. The receipt of any
check or other item of payment by Bank, at its option, shall not be considered a
payment on account until such check or other item of payment is honored when
presented for payment at the drawee bank. Bank may delay the credit of such
payment based upon Bank's schedule of funds availability, and interest under
this Note shall accrue until the funds are deemed collected. In any action
brought under or arising out of this Note, Borrower and any Obligor, including
their successors and assigns, hereby consent to the jurisdiction of any
competent court within the State of California, as provided in any alternative
dispute resolution agreement executed between Borrower and Bank, and consent to
service of process by any means authorized by said state's law. The term "Bank"
includes, without limitation, any holder of this Note. This Note shall be
construed in accordance with and governed by the laws of the State of
California. This Note hereby incorporates any alternative dispute resolution
agreement concurrently or hereafter executed between Borrower and Bank.
6. Definitions. As used herein, the following terms shall have the meanings
respectively set forth below: "Base Interest Rate" means a rate of interest
based on the LIBOR Rate. "Base Interest Rate Loan" means amounts outstanding
under this Note that bear interest at a Base Interest Rate. "Base Rate Maturity
Date" means the last day of the Interest Period with respect to principal
outstanding under a Base Interest Rate Loan. "Business Day" means a day on
which Bank is open for business for the funding of corporate loans, and, with
respect to the rate of interest based on the LIBOR Rate, on which dealings in
U.S. dollar deposits outside of the United States may be carried on by Bank.
"Interest Period" means with respect to funds bearing interest at a rate based
on the LIBOR Rate, any calendar period of one, two or three month period. In
determining an Interest Period, a month means a period that starts on one
Business Day in a month and ends on and includes the day preceding the
numerically
Page 3
corresponding day in the next month. For any month in which there is no such
numerically corresponding day, then as to that month, such day shall be deemed
to be the last calendar day of such month. Any Interest Period which would
otherwise end on a non-Business Day shall end on the next succeeding Business
Day unless that is the first day of a month, in which event such Interest Period
shall end on the next preceding Business Day. "LIBOR Rate" means a per annum
rate of interest (rounded upward, if necessary, to the nearest 1/100 of 1%) at
which dollar deposits, in immediately available funds and in lawful money of the
United States would be offered to Bank, outside of the United States, for a term
coinciding with the Interest Period selected by Borrower and for an amount equal
to the amount of principal covered by Borrower's interest rate selection, plus
Bank's costs, including the cost, if any, of reserve requirements. "Origination
Date" means the first day of the Interest Period. "Reference Rate" means the
rate announced by Bank from time to time at its corporate headquarters as its
"Reference Rate." The Reference Rate is an index rate determined by Bank from
time to time as a means of pricing certain extensions of credit and is neither
directly tied to any external rate of interest or index nor necessarily the
lowest rate of interest charged by Bank at any given time.
This Note is the Note defined in the Agreement and is subject to the terms and
conditions contained therein. All capitalized terms not otherwise defined in
this Note shall have the meaning ascribed to them in the Agreement.
GREATER BAY BANCORP,
a California corporation
By: /s/ Steven C. Smith
Title: EVP, CFO & CAO
By: /s/ Kamran F. Husain
Title: SVP, Finance & Risk Management
Page 4