EXHIBIT 10.5
FORBEARANCE AGREEMENT
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This FORBEARANCE AGREEMENT (this "Agreement") is made this 7th day of
July, 2003, by and between COMMUNITY NATIONAL BANCORPORATION (the "Borrower")
and XXXXXXX X. XXXX (the "Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender entered into a Loan and Stock Pledge
Agreement dated as of even date herewith (the "Loan Agreement"; for convenience,
all terms used in this Agreement and not defined herein shall have the meanings
given thereto or referenced in the Loan Agreement), pursuant to which the Lender
has made a loan (the "Loan") to the Borrower, on terms and conditions identical
to the loan made by Nexity Bank to the Borrower on March 31, 2002 (the "Nexity
Loan"), and the proceeds of the Loan were used to pay off the Nexity Loan in
full; and
WHEREAS, certain Defaults under the Loan Agreement have occurred and are
continuing, and certain additional Defaults under the Loan Agreement may occur
after the date of this Agreement, which Defaults would, but for this Agreement,
entitle the Lender to exercise its rights and remedies under the Financing
Documents and under applicable law; and
WHEREAS, the Lender has agreed to forbear from exercising its rights and
remedies under the Financing Documents and under applicable law for a limited
period of time, on the terms and subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound thereby, the parties
hereby agree as follows:
1. The Borrower acknowledges, stipulates and agrees that certain
Defaults have occurred and are continuing (the "Existing Defaults"),
which Defaults would, but for this Agreement, entitle the Lender to
exercise its rights and remedies under the Financing Documents and
under applicable law.
2. Subject to the continuing satisfaction of the forbearance conditions
set forth below, the Lender agrees to forbear from exercising any and
all rights and remedies under the Financing Documents or under
applicable law as a result of any Default under the Financing
Documents, until the date which is the first anniversary of the date
of this Agreement (the "Maturity Date"), so long as the financial
condition of the Borrower and each of its subsidiaries continues no
worse than their respective individual conditions on the date of this
Agreement (the "Financial Condition Requirement").
3. On and after the date of this Agreement, the Lender will make
additional advances to the Borrower under the Note and the Loan
Agreement in a principal amount which, when added to the principal
amount of the Loan outstanding on the date of this Agreement, would
equal $5,100,000.
4. Notwithstanding anything to the contrary set forth in the Financing
Documents, (a) interest will accrue on all principal amounts owing by
the Borrower under the Financing Documents at a per annum rate equal
to (i) the default interest rate payable under the Note from time to
time plus (ii) 0.75%, and will be payable monthly in arrears; and (b)
all principal amounts owing by the Borrower under the Financing
Documents, fees (including the forbearance fee owing under this
Agreement) and other obligations of the Borrower under the Financing
Documents (except for interest payable monthly pursuant to (a) above)
will not become due and payable until the Maturity Date, subject,
however, to the Lender's right, upon receipt of any banking regulatory
approvals or notices of non-objection, to accelerate and exercise
other rights and remedies pursuant to Section 2 above in the event
that at any time after the date of this Agreement the Financial
Condition Requirement ceases to be met.
5. The Lender hereby (a) consents to the sale by the Borrower of all of
the capital stock of Cumberland National Bank (the "Cumberland Stock")
and (b) agrees to release its security interest in the Cumberland
Stock effective as of the closing of such sale, provided, however,
that the Borrower shall pay over to the Lender, at the time of
closing, $2,200,000 of the proceeds received from such sale. Such
payment shall be applied exclusively to the outstanding principal
amount of the Loan. In connection with the closing of such sale, the
Lender agrees to execute and/or deliver such documents (including,
without limitation, original stock certificate(s)) as the Borrower
shall reasonably request to further evidence the release of the
Lender's security interest in the Cumberland Stock pursuant to this
Agreement.
6. On the date of this Agreement the Borrower shall pay to the Lender all
reasonable and actual out-of-pocket expenses of the Lender incurred in
connection with the consummation of the Loan transaction and the
forbearance evidenced by this Agreement (including reasonable and
actual attorneys' fees and accountants' fees).
7. In consideration of the forbearance extended by the Lender, the
Borrower hereby promises to pay to the Lender a one-time forbearance
fee of $100,000, which fee shall be in addition to any all principal,
interest, and other fees payable with respect to the Loan. Such
forbearance fee shall be due and payable on the Maturity Date as set
forth in Section 4 above.
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8. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia.
9. This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which, when
so executed and delivered, shall be an original, but all of which
together shall constitute one and the same instrument. This Agreement
shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
10. Borrower acknowledges that Lender is related by blood to Xxxxxx Xxx
Xxxx, who is one of the directors of the Borrower, and that she did
not participate as a director in any action by the Borrower in
connection with this Agreement or the Loan transaction.
[signature page follows]
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IN WITNESS HEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
written above.
COMMUNITY NATIONAL
BANCORPORATION
By: /s/Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: President
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XXXXXXX X. XXXX
/s/Xxxxxxx X. Xxxx
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Signature Page - Forbearance Agreement
