EXHIBIT 10.15
LOAN AND STOCK PLEDGE AGREEMENT
THIS LOAN AND STOCK PLEDGE AGREEMENT (the "Agreement"), entered into as of
July 28, 1999, between CRESCENT BANKING COMPANY, a Georgia corporation (the
"Borrower"), and THE BANKERS BANK, a Georgia banking corporation (the "Lender").
On the date hereof the Borrower is borrowing the principal amount of
$4,500,000 from the Lender (the "Loan"), which will be evidenced by the Note.
The Lender is willing to make the Loan to the Borrower on the terms and
conditions described below. The Borrower and Lender agree that the payment and
performance of all obligations relating to the Loan will be secured through the
pledge to the Lender of all the issued and outstanding shares of capital stock
owned or hereafter acquired by the Borrower (the "Stock") in Crescent Bank and
Trust Company, having its main office at 000 Xxxxxxx 000, Xxxxxx, Xxxxxxx 00000
(the "Bank"). Certain capitalized terms used in this Agreement are defined in
Section 22 of this Agreement.
In consideration of the premises and the mutual agreements and
representations in this Agreement, the Lender and the Borrower agree as follows:
1. Security Interest.
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(a) The Borrower hereby unconditionally grants and assigns to the Lender
and its successors and assigns a continuing security interest in and security
title to the Stock. The Borrower hereby delivers to the Lender all of its
right, title and interest in and to the Stock, together with certificates
representing the Stock and stock powers endorsed in blank, as security for (i)
all obligations of the Borrower to the Lender hereunder, and (ii) payment and
performance of all obligations of the Borrower to the Lender under the Note,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due. If the Borrower receives, for any reason whatsoever,
any additional shares of the capital stock of the Bank, such shares shall
thereupon constitute Stock to be held by the Lender under the terms of this
Agreement and the Borrower shall immediately deliver such shares to the Lender,
together with stock powers endorsed in blank by the Borrower. Beneficial
ownership of the Stock, including all voting, consentual and dividend rights,
shall remain in the Borrower until the occurrence of a Default.
(b) If, prior to repayment in full of the Loan, the aggregate book value of
the Stock becomes less than 200% of the outstanding Loan balance, the Borrower
shall promptly deliver to the Lender on demand additional collateral of a type
and value acceptable to the Lender (and the Lender's judgment in valuing same
shall be conclusive) so that the sum of the value of such additional collateral
plus the aggregate book value of the Stock is equal to or in excess of 200% of
the outstanding Loan balance. The Borrower shall also execute any security
documents the Lender may request to evidence and perfect the Lender's rights in
such additional collateral. If at any time such additional collateral is no
longer required pursuant to this Section 1(b), the Lender shall release its
security interest in such additional collateral upon the request of the
Borrower.
2. Representations and Warranties. The Borrower represents and warrants
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to the Lender as follows:
(a) The Borrower is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Georgia and is qualified to do
business in all jurisdictions where such qualification is necessary. The
Borrower is registered as a bank holding company with the Board of Governors of
the Federal Reserve System and the Georgia Department of Banking and Finance.
The chief executive office of the Borrower and the principal place of business
of the Borrower where the records of the Borrower are kept are located at 0000
Xxxxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000 (Xxxxxxx County), and the Borrower's
U.S. employer identification number is 000000000.
(b) The Bank is a banking corporation duly organized, validly existing, and
in good standing under the laws of the State of Georgia. The Borrower owns all
the Stock (consisting of 481,500 shares) and there are no other outstanding
shares of capital stock and no outstanding options, warrants or other rights
which can be converted into shares of capital stock of the Bank. The Bank has
all requisite corporate power and authority and possesses all licenses, permits
and authorizations necessary for it to own its properties and conduct its
business as presently conducted.
(c) Each financial statement of the Borrower or any Subsidiary which has
been delivered to the Lender presents fairly the financial condition of the
Borrower or such Subsidiary as of the date indicated therein and the results of
its operations for the periods shown therein. There has been no material
adverse change, either existing or threatened, in the financial condition or
operations of the Borrower or any Subsidiary since the date of such financial
statement.
(d) The Borrower has full power and authority to execute and perform the
Financing Documents. The execution, delivery, and performance by the Borrower
of the Financing Documents (i) have been duly authorized by all requisite action
by the Borrower, (ii) do not violate any provision of law, and (iii) do not
result in a breach of or constitute a default under any agreement or other
instrument to which the Borrower or any Subsidiary is a party or which the
Borrower or any Subsidiary is bound. Each of the Financing Documents
constitutes the legal, valid, and binding obligation of the Borrower enforceable
in accordance with its terms.
(e) Except for the security interest created by this Agreement, the
Borrower owns the Stock free and clear of all liens, charges, and encumbrances.
The Stock is duly issued, fully paid and non-assessable, and the Borrower has
the unencumbered right to pledge the Stock.
(f) There is no action, arbitration, or other proceeding at law or in
equity, or by or before any court, agency, or arbitrator, nor is there any
judgment, order, or other decree pending, anticipated, or threatened against the
Borrower or any Subsidiary or against any of their properties or assets which
might have a material adverse effect on the Borrower, any Subsidiary, or their
respective properties or assets, or which might call into question the validity
or enforceability of the Financing Documents, or which might involve the alleged
violation by the Borrower or any Subsidiary of any law, rule or regulation.
(g) No consent or other authorization or filing with or of any governmental
authority or other public body on the part of the Borrower or any Subsidiary is
required in connection with the Borrower's execution, delivery, or performance
of the Financing Documents; or if required, all such prerequisites have been
fully satisfied.
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(h) None of the transactions contemplated in this Agreement (including,
without limitation, the use of the proceeds of the Loan) will violate or result
in a violation of Section 7 of the Securities Exchange Act of 1934, or any
regulations issued pursuant thereto.
(i) The following are attached as exhibits hereto: true, correct and
complete copies of (i) the Borrower's and the Bank's articles of incorporation
as in effect as of the date hereof (as certified by the Georgia Secretary of
State on June 21, 1999); (ii) certificates of existence for the Borrower and the
Bank issued by the Georgia Secretary of State on June 21, 1999; (iii) the bylaws
of the Borrower in effect immediately prior to the adoption of the resolutions
referred to below (and such bylaws have not been further altered or amended and
have been in full force and effect at all times since the adoption of such
resolutions through the date hereof); (iv) the bylaws of the Bank as of the date
hereof; (v) resolutions (the "Resolutions") of the Board of Directors of the
Borrower duly adopted (x) at a meeting duly called at which a quorum was present
or (y) by unanimous written consent, and the Resolutions have been since
adoption and are now in full force and effect and have not been modified in any
respect. There have been no further amendments or other documents affecting or
altering the Borrower's or the Bank's articles of incorporation since the date
of the certifications referred to above through the date hereof, and the
Borrower and the Bank have remained in valid existence under the laws of the
State of Georgia since such dates.
3. Affirmative Covenants. The Borrower agrees that so long as the Note is
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outstanding or this Agreement is in effect:
(a) The Borrower shall promptly furnish to the Lender: (i) not later than
120 days after the end of each fiscal year, audited consolidated financial
statements of the Borrower prepared in accordance with generally accepted
accounting principles ("GAAP") and certified by an independent accounting firm
acceptable to the Lender; (ii) not later than 45 days after each of the first
three quarters of each fiscal year, unaudited consolidated financial statements
of the Borrower, prepared in accordance with GAAP (subject to changes resulting
from normal year-end adjustments and without notes thereto) and certified by the
chief financial officer of the Borrower; (iii) not later than 30 days after the
end of each of the first three quarters of each year, copies of the Report of
Condition and the Report of Income and Dividends of each of the Bank
Subsidiaries; (iv) immediately after the occurrence of a material adverse change
in the business, properties, condition or prospects (financial or otherwise) of
the Borrower or its Subsidiaries, taken as a whole, including, without
limitation, any material adverse change arising out of imposition of any letter
agreement, memorandum of understanding, cease and desist order, or other similar
regulatory action involving the Borrower or any Subsidiary, a statement of the
Borrower's chief executive officer or chief financial officer setting forth in
reasonable detail such change and the action which the Borrower or any
Subsidiary proposes to take with respect thereto; and (v) from time to time upon
request of the Lender, such other information relating to the operations,
business, condition, management, properties, or prospects of the Borrower or any
Subsidiary as the Lender may reasonably request (including meetings with the
Borrower's or Subsidiary's officers and employees).
(b) The Borrower and each Subsidiary shall punctually pay and discharge all
taxes, assessments and other governmental charges or levies imposed upon it or
upon its income or upon any of its property unless contested in good faith and
for which reserves have been established in accordance with GAAP.
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(c) The Borrower and each Subsidiary shall comply in all material respects
with all requirements of constitutions, statutes, rules, regulations, and orders
and all orders and decrees of courts and arbitrators applicable to it or its
properties except where the failure to comply could not reasonably be expected
to have a material adverse effect.
(d) The Borrower shall promptly notify the Lender of any material change in
management.
4. Negative Covenants. The Borrower agrees that so long as the Note is
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outstanding or this Agreement is in effect:
(a) The Borrower shall not permit its Capital as of the end of any fiscal
quarter during the term of this Agreement to be less than $9,000,000.
(b) The Borrower shall not permit the ratio of Tier 1 Capital to average
total assets (the Tier 1 Leverage Ratio) of any of the Bank Subsidiaries as of
the end of any fiscal year to be less than 7.0%.
(c) The Borrower shall not, and shall not permit any of the Bank
Subsidiaries to, fail to comply with any minimum capital requirement imposed by
any of their federal or state regulators.
(d) The Borrower shall not permit its Weighted Average Return on Assets for
each fiscal year to be less than 0.75% and shall not permit the Weighted Average
Return on Assets of any Bank Subsidiary for each fiscal year to be less than
0.75%.
(e) The Borrower shall not permit the allowance for loan and lease losses
of any of the Bank Subsidiaries to be less than 0.50% of its gross loans for
each fiscal quarter.
(f) The Borrower shall not incur or permit to exist any indebtedness or
liability for borrowed money in excess of 25% of Capital other than to the
Lender or a wholly-owned Subsidiary of the Borrower without prior Lender
approval, except that this covenant shall not apply to deposits, repurchase
agreements, federal funds borrowings, overdrafts, and other banking transactions
entered into by a Subsidiary in the ordinary course of its business.
(g) The Borrower shall not, directly or indirectly, become a guarantor of
any obligation of, or an endorser of, or otherwise assume or become liable upon
any notes, obligations, or other indebtedness of any other Person (other than a
Subsidiary) except in connection with the depositing of checks in the normal and
ordinary course of business.
(h) The Borrower shall not, nor permit any Bank Subsidiary to, transfer all
or substantially all of its assets to or consolidate or merge with any other
Person, or acquire all or substantially all of the properties or capital stock
of any other Person.
(i) The Borrower shall not permit any Bank Subsidiary to issue, sell or
otherwise dispose or part with control of any shares of any class of its stock
(other than directors' qualifying shares) except to the Borrower or a wholly-
owned Subsidiary of the Borrower.
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(j) The Borrower shall not sell or otherwise dispose or part with control
of any of the Stock or any other securities or indebtedness of any Bank
Subsidiary, and the Borrower shall not pledge or otherwise transfer or grant a
security interest in any of the capital stock or other securities of any of its
Bank Subsidiaries.
5. Advances Under the Loan. The Lender shall not be obligated to make any
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advance of the Loan to the Borrower unless:
(a) All representations and warranties of the Borrower contained in this
Agreement or the Note shall be true in all material respects on and as of the
date of each advance of the Loan.
(b) The Borrower and each Subsidiary shall have performed in all material
respects all their agreements and obligations required by the Financing
Documents.
(c) No adverse change shall have occurred in the condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole, or in the
business, properties, assets, liabilities or prospects of the Borrower and its
Subsidiaries, taken as a whole, since the date of this Agreement.
(d) No Default or event which, with the giving of notice or passage of time
(or both), would constitute a Default under the terms of this Agreement shall
have occurred.
6. Default. A "Default" shall exist if any of the following occurs:
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(a) Failure of the Borrower punctually to make any payment of any amount
payable, whether principal or interest or other amount, on any of the
Liabilities, whether at maturity, or at a date fixed for any prepayment or
partial prepayment, or by acceleration, or otherwise, within 3 business days of
the date such payment becomes due.
(b) Any statement, representation, or warranty of the Borrower made in any
of the Financing Documents or at any time furnished by or on behalf of the
Borrower to the Lender shall be false or misleading in any material respect as
of the date made.
(c) Failure of the Borrower punctually and fully to comply with (i) any of
the covenants in Section 4 of this Agreement or (ii) any of the other covenants
set forth in this Agreement if such failure under this clause (ii) is not
remedied within 15 business days after notice from the Lender to the Borrower.
(d) The occurrence of a default under any other agreement to which the
Borrower and the Lender are parties or under any other instrument executed by
the Borrower in favor of the Lender.
(e) If the Borrower or any Subsidiary becomes insolvent as defined in the
Georgia Uniform Commercial Code or makes an assignment for the benefit of
creditors; or if any action is brought by the Borrower or any Subsidiary seeking
dissolution of the Borrower or such Subsidiary or liquidation of its assets or
seeking the appointment of a trustee, interim trustee, receiver, or other
custodian for any of its property; or if the Borrower or any Subsidiary
commences a voluntary case under the Federal Bankruptcy Code; or if any
reorganization or arrangement proceeding is
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instituted by the Borrower or any Subsidiary for the settlement, readjustment,
composition or extension of any of its debts upon any terms; or if any action or
petition is otherwise brought by the Borrower or any Subsidiary seeking similar
relief or alleging that it is insolvent or unable to pay its debts as they
mature.
(f) Any action is brought against the Borrower or any Subsidiary seeking
dissolution of the Borrower or such Subsidiary or liquidation of any of its
assets or seeking the appointment of a trustee, interim trustee, receiver, or
other custodian for any of its property, and such action is consented to or
acquiesced in by the Borrower or such Subsidiary or is not dismissed within 60
days of the date upon which it was instituted; or any proceeding under the
Federal Bankruptcy Code is instituted against the Borrower or any Subsidiary and
(i) an order for relief is entered in such proceeding or (ii) such proceeding is
consented to or acquiesced in by the Borrower or such Subsidiary or is not
dismissed within 60 days of the date upon which it was `instituted; or any
reorganization or arrangement proceeding is instituted against the Borrower or
any Subsidiary for the settlement, readjustment, composition, or extension of
any of its debts upon any terms, and such proceeding is consented to or
acquiesced in by the Borrower or such Subsidiary or is not dismissed within 60
days of the date upon which it was instituted; or any action or petition is
otherwise brought against the Borrower or any Subsidiary seeking similar relief
or alleging that it is insolvent, unable to pay its debts as they mature, or
generally not paying its debts as they become due, and such action or petition
is consented to or acquiesced in by the Borrower or such Subsidiary or is not
dismissed within 60 days of the date upon which it was brought.
(g) The Borrower or any Subsidiary is in default (or an event has occurred
which, with the giving of notice or passage of time, or both, will cause the
Borrower or any Subsidiary to be in default) on indebtedness to another Person,
and the amount of such indebtedness exceeds $25,000 or the acceleration of the
maturity of such indebtedness would have a material adverse effect upon the
Borrower or such Subsidiary.
(h) Any other material adverse change occurs in the Borrower's financial
condition or means or ability to pay the Liabilities.
(i) Any cease and desist or other order has been threatened in writing,
noticed, or entered against the Borrower or any Subsidiary by any bank or bank
holding company regulatory agency or body, or the Borrower or any Subsidiary
enters into any form of memorandum of understanding, plan of corrective action,
or letter agreement with any such regulatory agency or body, or any other
regulatory enforcement action is taken against the Borrower or any Subsidiary
relating to the capitalization, management, or operation of the Borrower or any
Subsidiary.
(j) The Borrower or any Subsidiary is indicted or convicted or pleads
guilty or nolo contendere to any charge that the Borrower or such Subsidiary has
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violated any drug, controlled substances, money laundering, currency reporting,
racketeering, or racketeering-influenced-and-corrupt-organization statute or
regulations other forfeiture statute.
(k) The Borrower ceases to own 100% of the issued and outstanding capital
stock of the Bank or ceases to control any of the other Bank Subsidiaries.
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7. Remedies Upon Default. Upon the occurrence of a Default, the Lender
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shall be entitled, without limitation, to exercise the following rights at any
time and from time to time, which the Borrower hereby agrees to be commercially
reasonable:
(a) declare any of the Liabilities due and payable, whereupon they
immediately will become due and payable (notwithstanding any provisions to the
contrary, and without presentment, demand, notice or protest of any kind (all of
which are expressly waived by the Borrower));
(b) (i) receive all amounts payable in respect of the Collateral otherwise
payable to the Borrower; (ii) settle all accounts, claims, and controversies
relating to the Collateral; (iii) transfer all or any part of the Collateral
into the Lender's or any nominee's name; and (iv) execute all agreements and
other instruments; bring, defend and abandon all actions and other proceedings;
and take all actions in relation to the Collateral as the Lender in its sole
discretion may determine;
(c) enforce the payment of the Stock and exercise all of the rights, powers
and remedies of the Borrower thereunder, including the exercise of all voting
rights and other ownership or consentual rights of the Stock (but the Lender is
not hereby obligated to exercise such rights), and in connection therewith the
Borrower hereby appoints the Lender to be the Borrower's true and lawful
attorney-in-fact and IRREVOCABLE PROXY to vote the Stock in any manner the
Lender deems advisable for or against all matters submitted to a vote of
shareholders, and such power-of-attorney is coupled with an interest and
irrevocable;
(d) sell, assign and deliver, or grant options to purchase, all or any part
of or interest in the Collateral in one or more parcels, at any public or
private sale at any exchange, any of the Lender's offices, or elsewhere, without
demand of performance, advertisement, or notice of intention to sell or of the
time or place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby expressly and irrevocably waived by the Borrower), for cash, on
credit, or for other property, for immediate or future delivery without any
assumption of credit risk, and for such price and on such terms as the Lender in
its sole discretion may determine; the Borrower agrees that to the extent that
notice of sale shall be required by law that at least five business days' notice
to the Borrower of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification; the
Lender shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given; the Lender may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and
any such sale may, without further notice, be made at the time and place to
which it was so adjourned; the Borrower hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with respect
to the Collateral, whether before or after sale hereunder, and all rights, if
any, of marshalling the Collateral and any other security for the Loan or
otherwise; at any such sale, unless prohibited by applicable law, the Lender may
bid for and purchase all or any part of the Collateral so sold free from any
such right or equity of redemption; and the Lender shall not be liable for
failure to collect or realize upon any or all of the Collateral or for any delay
in so doing nor shall any of them be under any obligation to take any action
whatsoever with regard thereto;
(e) appoint and dismiss managers or other agents for any of the purposes
mentioned in the foregoing provisions of this Section 7, all as the Lender in
its sole discretion may determine; and
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(f) generally, take all such other action as the Lender in its sole
discretion may determine as incidental or conducive to any of the matters or
powers mentioned in this Section 7 and which the Lender may or can do lawfully
and use the name of the Borrower for such purposes and in any proceedings
arising therefrom.
8. Application of Proceeds. The proceeds of the public or private sale or
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other disposition of any Collateral hereunder shall be applied to (i) the costs
incurred in connection with the sale, expressly including, without limitation,
any costs under Section 11(a) hereof; (ii) any unpaid interest, fees or, other
amounts which may have accrued on any obligations secured hereby; and (iii) any
unpaid principal on any obligations secured hereby; in such order as the Lender
may determine, and any remaining proceeds shall be paid over to the Borrower or
others as by law provided. If the proceeds of the sale or other disposition of
the Stock are insufficient to pay all such amounts, the Borrower shall remain
liable to the Lender for the deficiency.
9. Additional Rights of Secured Parties. In addition to its other rights
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and privileges under this Agreement, the Lender may exercise from time to time
any and all other rights and remedies available to a secured party when a debtor
is in default under a security agreement as provided in the Uniform Commercial
Code of Georgia, or available to the Lender under any other applicable law or in
equity, including without limitation the right to any deficiency remaining after
disposition of the Collateral. The Borrower shall pay all of the reasonable
costs and expenses (including reasonable attorneys' fees) incurred by the Lender
in enforcing its rights under this Agreement.
10. Return of Stock to Borrower. Upon payment in full of all principal
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and interest on the Note and full performance by the Borrower of all covenants
and other obligations under this Agreement, the Lender shall return to the
Borrower (i) all of the then remaining Stock and (ii) all rights received by the
Lender as agent for the Borrower as a result of its possessory interest in the
Stock.
11. Disposition of Stock by Lender. The Stock is not registered under the
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various federal or state securities laws and disposition thereof after default
may be subject to prior regulatory approval and may be restricted to one or more
private (instead of public) sales in view of the lack of such registration.
The Borrower acknowledges that upon such disposition, the Lender may approach
only a restricted number of potential purchasers and that a sale under such
circumstances may yield a lower price for the Stock than if the Stock were
registered pursuant to federal and state securities laws and sold on the open
market. The Borrower, therefore, agrees that:
(a) if the Lender shall, pursuant to the terms of this Agreement, sell or
cause any of the Stock to be sold at a private sale, the Lender shall have the
right to rely upon the advice and opinion of any national brokerage or
investment firm having recognized expertise and experience in connection with
shares of companies in the banking industry (but shall not be obligated to seek
such advice and the failure to do so shall not be considered in determining the
commercial reasonableness of the Lender's action) as to the best manner in which
to expose the Stock for sale and as to the best price reasonably obtainable at
the private sale thereof; and
(b) such reliance shall be conclusive evidence that the Lender has handled
such disposition in a commercially reasonable manner.
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12. Borrower's Obligations Absolute. The obligations of the Borrower
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under this Agreement shall be direct and immediate and not conditional or
contingent upon the pursuit of any other remedies against the Borrower or any
other Person, nor against other security or liens available to the Lender or its
successors, assigns or agents. The Borrower hereby waives any right to require
that an action be brought against any other Person or require that resort be had
to any security or to any balance of any deposit account or credit on the books
of the Lender in favor of any other Person prior to any exercise of rights or
remedies hereunder, or to require resort to rights or remedies of the Lender in
connection with the Loan.
13. Notices. Except as provided otherwise in this Agreement, all notices
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and other communications under this Agreement are to be in writing and are to be
deemed to have been duly given and to be effective upon delivery to the party to
whom they are directed. If sent by U.S. mail, first class, certified, return
receipt requested, postage prepaid, and addressed to the Lender or to the
Borrower at their respective addressees set forth below, such communications are
deemed to have been delivered on the second business day after being so posted.
If to the Lender: The Bankers Bank
0000 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx, Senior Vice President
If to the Borrower: Crescent Banking Company
0000 Xxxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: J. Xxxxxx Xxxxxx, Xx., President and CEO
Either the Lender or the Borrower may, by written notice to the other,
designate a different address for receiving notices under this Agreement;
provided, however, that no such change of address will be effective until
written notice thereof is actually received by the party to whom such change of
address is sent.
14. Binding Agreement. The provisions of this Agreement shall be
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construed and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the laws of the State of Georgia. This
Agreement, together with all documents referred to herein, constitutes the
entire Agreement between the Borrower and the Lender with respect to the matters
addressed herein and may not be modified except by a writing executed by the
Lender and delivered by the Lender to the Borrower. This Agreement may be
executed in multiple counterparts, each of which shall be deemed an original but
all of which, taken together, shall constitute one and the same instrument.
15. Participations. The Lender may at any time grant participations in or
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sell, assign, transfer or otherwise dispose of all or any portion of the
indebtedness of the Borrower outstanding pursuant to the Financing Documents.
The Borrower hereby agrees that any holder of a participation in, and any
assignee or transferee of, all or any portion of any amount owed by the Borrower
under the Financing Documents (i) shall be entitled to the benefits of the
provisions of this Agreement as the Lender hereunder and (ii) may exercise any
and all rights of the
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banker's lien, set-off or counterclaim with respect to any and all amounts owed
by the Borrower to such assignee, transferee or holder as fully as if such
assignee, transferee or holder had made the Loan in the amount of the obligation
in which it holds a participation or which is assigned or transferred to it.
16. Expenses. All reports and other documents or information furnished to
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the Lender under this Agreement shall be supplied by the Borrower without cost
to the Lender. Further, the Borrower shall reimburse the Lender on demand for
all reasonable out-of-pocket costs and expenses (including reasonable legal
fees) incurred by the Lender in connection with the preparation, interpretation,
operation, and enforcement of the Financing Documents or the protection or
preservation of any right or claim of the Lender with respect to such
agreements. The Borrower will pay all taxes (if any) in connection with the
Financing Documents. The obligations of the Borrower under this section shall
survive the payment of the Liabilities and the termination of this Agreement.
17. Indemnification. In addition to any other amounts payable by the
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Borrower under this Agreement, the Borrower shall pay and indemnify the Lender
from and against all claims, liabilities, losses, costs, and expenses
(including, without limitation, reasonable attorneys' fees and expenses) which
the Lender may (other than as a result of the gross negligence or willful
misconduct of the Lender) incur or be subject to as a consequence, directly or
indirectly, of (i) any breach by the Borrower of any warranty, term or condition
in, or the occurrence of any default under, any of the Financing Documents,
including all fees or expenses resulting from the settlement or defense of any
claims or liabilities arising as a result of any such breach or default, (ii)
the Lender's making, holding, or administering the Loan or the Collateral, (iii)
allegations of participation or interference by the Lender in the management,
contractual relations or other affairs of the Borrower or any Subsidiary, (iv)
allegations that the Lender has joint liability with the Borrower or any
Subsidiary for any reason, and (v) any suit, investigation, or proceeding as to
which the Lender or such participant is involved as a consequence, directly or
indirectly, of its execution of any of the Financing Documents, or any other
event or transaction contemplated by any of the foregoing. The obligations of
Borrower under this Section 17 shall survive the termination of this Agreement.
18. Right to Set-Off. Upon the occurrence of a Default hereunder, the
----------------
Lender, without notice or demand of any kind, may hold and set off against such
of the Liabilities (whether matured or unmatured) as the Lender may elect any
balance or amount to the credit of the Borrower in any deposit, agency, reserve,
holdback or other account of any nature whatsoever maintained by or on behalf of
the Borrower with the Lender at any of its offices, regardless of whether such
accounts are general or special and regardless of whether such accounts are
individual or joint. Any Person purchasing an interest in debt obligations
under this Agreement held by the Lender may exercise all rights of offset with
respect to such interest as fully as if such Person were a holder of debt
obligations hereunder in the amount of such interest.
19. Further Assurances. If at any time the Lender upon advice of its
------------------
counsel shall determine that any further document shall be required to give
effect to this Agreement and the transactions and other agreements contemplated
thereby, the Borrower shall, and shall cause its Subsidiaries to, execute and
deliver such document and otherwise carry out the purposes of this Agreement.
10
20. Severability. If any paragraph or part thereof shall for any reason
------------
be held or adjudged to be invalid, illegal, or unenforceable by any court of
competent jurisdiction, such paragraph or part thereof shall be deemed separate,
distinct, and independent, and the remainder of this Agreement shall remain in
full force and effect and shall not be affected by such holding or adjudication.
21. Binding Effect. All rights of the Lender under the Financing
--------------
Documents shall inure to the benefit of its transferees, successors and assigns.
All obligations of the Borrower under the Financing Documents shall bind its
heirs, legal representatives, successors, and assigns.
22. Definitions.
(a) "Assessment Risk Classification" means the assessment risk
classification assigned to each of the Bank Subsidiaries for purposes of
assessment of premiums by the Federal Deposit Insurance Corporation for deposit
insurance pursuant to 12 C.F.R. (S) 327.3(d) or the corresponding assessment
risk classification, as determined by the Lender, pursuant to any successor
assessment risk classification system.
(b) "Bank Subsidiaries" means each banking Subsidiary of Borrower, now or
hereafter in existence, including but not limited to the Bank.
(c) "Capital" means all capital or all components of capital, other than
any allowance for loan and lease losses and net of any intangible assets, as
defined from time to time by the primary federal regulator of the Borrower, the
Bank, or each of the other Bank Subsidiaries (as the case may be).
(d) "Collateral" means and includes all property assigned or pledged to the
Lender or in which the Lender has been granted security interest or to which the
Lender has been granted security title, whether under any of the Financing
Documents or any other agreement, instrument, or document, and the proceeds
thereof.
(e) "Financing Documents" means and includes this Agreement, the Note, and
all other associated loan and collateral documents including, without
limitation, all guaranties, suretyship agreements, stock powers, security
agreements, security deeds, subordination agreements, exhibits, schedules,
attachments, financing statements, notices, consents, waivers, opinions,
letters, reports, records, assignments, documents, instruments, information and
other writings related thereto, or furnished by the Borrower to the Lender in
connection therewith or in connection with any of the Collateral, and any
amendments, extensions, renewals, modifications or substitutions thereof or
therefor.
(f) "Liabilities" means all indebtedness, liabilities, and obligations of
the Borrower arising under the Financing Documents of any nature whatsoever
which the Lender may now or hereafter have, own or hold, and which are now or
hereafter owing to the Lender regardless of however and whenever created,
arising or evidenced, whether now, heretofore or hereafter incurred, whether
now, heretofore or hereafter due and payable, whether alone or together with
another or others, whether direct or indirect, primary or secondary, absolute or
contingent, or joint or several, and whether as principal, maker, endorser,
guarantor, surety or otherwise, and also
11
regardless of whether such Liabilities are from time to time reduced and
thereafter increased or entirely extinguished and thereafter reincurred,
including without limitation the Note and any amendments, extensions, renewals,
modifications or substitutions thereof or therefor.
(g) "Note" shall mean the promissory note dated the date hereof in the
principal amount of $4,500,000 and any amendments, extensions, renewals,
modifications, or substitutions thereof or therefor in effect at any particular
time.
(h) "Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
(i) "Subsidiary" means each of the Bank Subsidiaries and each other
corporation for which the Borrower has the power, directly or indirectly, to
direct its management or policies or to vote 25% or more of any class of its
voting securities.
(j) "Tier 1 Capital" means Tier 1 capital as defined by the capital
maintenance regulations of the primary federal bank regulatory agency of the
relevant Bank Subsidiary.
(k) "Weighted Average Return on Assets" means (i) with respect to the
Borrower, its net income for the previous calendar year plus the amount of any
interest payments by it on the Loan during the previous calendar year, divided
by its average assets during the previous calendar year, and (ii) with respect
to each Bank Subsidiary, its net income for the previous calendar year divided
by its average assets during the previous calendar year.
(l) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
affixed their seals by and through their duly authorized officers, as of the day
and year first above written.
BORROWER:
CRESCENT BANKING COMPANY
By: /s/
-------------------------------------
J. Xxxxxx Xxxxxx, Xx.
President and Chief Executive Officer
Attest: /s/
---------------------------------
Name:
---------------------------------
Secretary
[CORPORATE SEAL]
12
I hereby certify that the representation and warranty contained in Section
2(i)(v) of this Agreement is true and correct.
By: /s/
------------------------------------
Name:
----------------------------------
Secretary
LENDER:
THE BANKERS BANK
By: /s/
------------------------------------
Xxxx Xxxxxxx, Senior Vice President
[BANK SEAL]
13
PROMISSORY NOTE
$4,500,000 July 28, 1999
FOR VALUE RECEIVED, the undersigned, CRESCENT BANKING COMPANY, a Georgia
corporation (the "Borrower"), promises to pay to the order of THE BANKERS BANK
(the "Lender" and, together with any holder hereof, called the "Holder"), at
2410 Paces Ferry Road, 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000 (or at such
other place as the Holder may designate in writing to the Borrower), in lawful
money of the United States of America, the principal sum of Four Million Five
Hundred Thousand No/100 Dollars $4,500,000, plus interest as hereinafter
provided.
This Note is the Note made and given as described in that certain Loan and
Stock Pledge Agreement dated as of July 28, 1999, between the Borrower and the
Lender (the "Loan Agreement"). In the event of any inconsistency between this
Note and the Loan Agreement, this Note shall control. All capitalized terms
used herein shall have the meanings ascribed to such terms in the Loan
Agreement, except to the extent such capitalized terms are otherwise defined or
limited herein.
The Borrower shall be entitled to borrow funds hereunder pursuant to the
terms and conditions of the Loan Agreement.
The Borrower promises to pay interest on the unpaid principal amount
outstanding hereunder (the "Loan"), at a simple interest rate per annum equal to
the Prime Rate Basis. "Prime Rate Basis" shall mean, on any day, a simple
interest rate per annum equal to the Prime Rate minus fifty basis points
(0.50%).
"Prime Rate" shall mean, on any day, the rate of interest published as the
"Prime Rate" as of such day appearing in the "Money Rates" section of the Wall
----
Street Journal, Eastern Edition, or any successor to such section. If more than
--------------
one such rate shall be published, then the Prime Rate shall be the higher or
highest of such rates. The Prime Rate in effect as of the close of business of
each day shall be the applicable Prime Rate for the day and each succeeding non-
business day in determining the applicable Prime Rate Basis.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
Interest under this Note shall be due and payable quarterly in arrears on
the first day of each calendar quarter commencing September 1, 1999, and
----------------
continuing to be due on the first day of each calendar quarter thereafter until
-----------------
this Note is paid in full. Interest shall also be due and payable when this
Note shall become due (whether at maturity, by reason of acceleration or
otherwise). After default, interest shall also be due and payable upon demand
from time to time by the Holder as provided below.
Commencing July 28, 2000, and continuing on July 28 of each succeeding
calendar year, the indebtedness evidenced by this Note shall be due and payable
in nine consecutive annual installments of principal, each in the amount of
1/10th of the principal amount outstanding hereunder, plus all accrued and
unpaid interest as hereinabove provided. The entire outstanding balance of the
indebtedness evidenced by this Note, together with all accrued and unpaid
interest, shall be due and payable in a tenth and final installment on July 28,
2009.
Overdue principal shall bear interest for each day from the date it became
so due until paid in full, payable on demand, at a rate per annum (computed on
the basis of a 360-day year for the actual number of days elapsed) equal to the
Prime Rate Basis plus 3%.
In no event shall the amount of interest due or payable hereunder exceed
the maximum, rate of interest allowed by applicable law, and in the event any
such payment is inadvertently paid by the Borrower or inadvertently received by
the Holder, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Holder, in writing, that the Borrower
elects to have such excess sum returned to it forthwith. It is the express
intent hereof that the Borrower not pay and the Holder not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under applicable law.
All parties now or hereafter liable with respect to this Note, whether the
Borrower, any guarantor, endorser, or any other person or entity, hereby waive
presentment for payment, demand, notice of non-payment or dishonor, protest and
notice of protest, or any other notice of any kind with respect thereto.
Time is of the essence of this Note.
No delay or omission on the part of the Holder in the exercise of any right
or remedy hereunder or any Financing Document, or at law or in equity, shall
operate as a waiver thereof, and no single or partial exercise by the Holder of
any right or remedy hereunder, under the Loan Agreement or any Financing
Document, or at law or in equity, shall preclude or estop another or further
exercise thereof or the exercise of any other right or remedy.
Should this Note, or any part of the indebtedness evidenced hereby, be
collected by law or through an attorney-at-law or under advice therefrom, the
Holder shall be entitled to collect reasonable attorneys' fees and all costs of
collection.
This Note is entitled to the benefits of the Loan Agreement, which contains
provisions with respect to the acceleration of the maturity of this Note upon
the happening of certain stated events, and for prepayment of the Loan.
Prepayment of the Loan may be made, in whole or in part, at any time without
penalty or premium.
The Holder shall be under no duty to exercise any or all of the rights and
remedies given by this Note and the Loan Agreement or under any of the other
Financing Documents and no party to this instrument shall be discharged from the
obligations or undertakings hereunder (a) should the Holder release or agree not
to xxx any person against whom the party has, to the knowledge of the Holder, a
right to recourse, or (b) should the Holder agree to suspend the right
2
to enforce this Note or Holder's interest in any collateral pledged or any
guarantee given to secure this Note against such person or otherwise discharge
such person.
This Note shall be deemed to be made pursuant to the laws of the State of
Georgia.
IN WITNESS WHEREOF, the duly authorized officers of the Borrower have
executed, sealed, and delivered this Note, as of the day and year first above
written.
CRESCENT BANKING COMPANY
By: /s/
----------------------------------
J. Xxxxxx Xxxxxx, Xx.
President and Chief Executive Officer
Attest: /s/
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
[CORPORATE SEAL]
3
FIRST LOAN MODIFICATION AGREEMENT
---------------------------------
THIS FIRST LOAN MODIFICATION AGREEMENT ("Agreement"), is made and
entered into as of May 18, 2000, by and between CRESCENT BANKING COMPANY, a
Georgia corporation ("Borrower"), and THE BANKERS BANK, a Georgia banking
corporation ("Lender").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, on July 28, 1999, the Borrower and the Lender consummated a
certain loan ("Loan") pursuant to that certain Loan and Stock Pledge Agreement
dated as of such date by and between the Borrower and the Lender ("Loan
Agreement"); and
WHEREAS, the Loan is evidenced by that certain Promissory Note dated
July 28, 1999 made by the Borrower to the order of the Lender, in the principal
amount of $4,500,000 ("Note"); and
WHEREAS, the Borrower and the Lender have agreed to modify and amend
the Note in certain respects and to set forth herein and effectuate hereby their
agreements in this regard.
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrower and the Lender do hereby agree as follows:
I. Note
----
The Note shall be and hereby is modified and amended by deleting the first
sentence of the seventh paragraph of the Note in its entirety and simultaneously
substituting in lieu thereof a new sentence which reads "Interest under this
Note shall be due and payable quarterly in arrears on the first day of each
quarter, commencing September 1, 1999, and continuing to be due on the first day
of each quarter thereafter until this Note is paid in full."
II. Other Agreements
----------------
The Borrower and the Lender do hereby further agree as follows:
1. Capitalized terms defined herein shall have the meanings given them
in the Loan Agreement.
2. Except as hereby modified and amended, the Loan Documents shall remain
in full force and effect and unchanged; as amended hereby, the Loan Documents
are ratified and confirmed by the Borrower and the Lender.
3. This Agreement shall be construed, governed by and enforced in
accordance with the laws of the State of Georgia.
4. Whenever reference is made in any of the Loan Documents to the Note,
such reference shall mean and refer to the Note, as modified and amended by this
Agreement.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement under
seal as of the day and year first above written.
BORROWER:
CRESCENT BANKING COMPANY
By: /s/
---------------------------------
J. Xxxxxx Xxxxxx, Xx.
President and CEO
Attest: /s/
-----------------------------
Print Name: Xxxxxxx Xxxxxxx
-------------------------
Print Title: Administrative Assistant
------------------------
(CORPORATE SEAL)
LENDER:
THE BANKERS BANK
By: /s/
--------------------------------
Xxxxx Malraffey
Assistant Vice President
(BANK SEAL)
2
SECOND LOAN MODIFICATION AGREEMENT
THIS SECOND LOAN MODIFICATION AGREEMENT ("Agreement"), is made and entered
into as of November 9, 2001, by and between CRESCENT BANKING COMPANY, a Georgia
corporation ("Borrower"), and THE BANKERS BANK, a Georgia banking corporation
("Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, on July 28, 1999, the Borrower and the Lender consummated a
certain loan ("Loan") pursuant to that certain Loan and Stock Pledge Agreement
dated as of even date by and between the Borrower and the Lender ("Loan
Agreement"); and
WHEREAS, the Loan is evidenced by that certain Promissory Note dated July
28, 1999 made by the Borrower to the order of the Lender, in the principal
amount of $4,500,000 ("Note"); and
WHEREAS, the Loan is evidenced by that certain First Loan Modification
Agreement dated May 18, 2000 made by the Borrower to the order of the Lender
changing the payment schedule; and
WHEREAS, the Borrower and the Lender have agreed to modify and amend the
Loan Agreement and Note in certain respects and to set forth herein and
effectuate hereby their agreements in this regard.
NOW, THEREFORE, for and in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Lender do hereby agree as follows:
I. Note
----
The Note shall be replaced by the Promissory Note in the form attached
hereto.
II. Loan Agreement
--------------
The Loan Agreement is hereby modified and amended as follows:
(a) By deleting from the second paragraph of page one that reads as
follows: "the principal amount of $4,500,000" and simultaneously
substituting in lieu thereof: "the principal amount of $2,600,000."
(b) By adding to Section 3., Affirmative Covenants subsection (e)
----------------------
"Borrower will notify Lender of all significant changes in
management."
(c) By deleting from the third page, Section 4., Negative Covenants
------------------
subsection (a) that reads "The Borrower shall not permit its Capital
as of the end of any fiscal quarter during the term of this Agreement
to be less
than $9,000,000." and simultaneously substituting in lieu thereof:
"The Borrower shall not permit its Capital as of the end of
any fiscal quarter during the term of this Agreement to be less than
$13,000,000."
(d) By deleting from the third page, Section 4., Negative Covenants
------------------
subsection (b) that reads "to be less than 7.0%." and simultaneously
substituting in lieu thereof: "to be less than 7.5%."
(e) By deleting from the fourth page, Section 4., Negative Covenants
------------------
subsection (e) that reads "shall not permit the allowance for loan and
lease losses of any of the Bank Subsidiaries to be less than 0.50% of
its gross loans for each fiscal quarter." And simultaneously
substituting in lieu thereof: "shall not permit the allowance for loan
and lease losses of any of the Bank Subsidiaries to be less than 1.00%
of its gross loans for each fiscal quarter."
(f) By adding to Section 4., Negative Covenants subsection (k) the
------------------
following: "The volume of loans internally or externally classified
(substandard, doubtful and loss) shall not exceed 45% of Gross Capital
Funds (Capital plus ALLL) at any time during the life of the loan.
(g) By adding to Section 4., Negative Covenants subsection (1) the
------------------
following: "The Borrower shall not permit the Total Risk Based Ratio
of the Borrower or any of the Bank Subsidiaries as of the end of any
fiscal year to be less than 9.5%."
(h) By adding to Section 4., Negative Covenants subsection (m) the
------------------
following: "The Borrower shall not pay any dividend if the loan is in
default or if paying a dividend would create a default, without the
Lender's prior approval."
(i) By adding to Section 4., Negative Covenants subsection (n) the
------------------
following: "The Borrower shall not permit the Consolidated Return on
Average Assets to be less than .89% as of the calendar year-end during
the life of the loan."
(j) By adding to Section 22., Definitions the following new definitions at
-----------
the end:
(m) "Gross Capital Funds" shall mean the sum of Capital plus ALL."
(n) "ALL" shall mean with respect to the Bank and any Bank
Subsidiaries the amount of the allowance for loan and lease
losses as defined from time to time by the primary Federal
Regulator of the Bank and the Bank Subsidiaries."
(o) "Consolidated Return on Average Assets" shall mean the Net income
of the Borrower for the year, (excluding the effect of the
interest on this loan) divided by the Consolidated Average Assets
of the Borrower for the year.
2
III. Other Agreements
The Borrower and the Lender do hereby further agree as follows:
1. Capitalized terms defined herein shall have the meanings given them in
the Loan Agreement.
2. Except as hereby modified and amended, the Loan Documents shall remain
in full force and effect and unchanged; as amended hereby, the Loan Documents
are ratified and confirmed by the Borrower and the Lender.
3. This Agreement shall be construed, governed by and enforced in
accordance with the laws of the State of Georgia.
4. Whenever reference is made in any of the Loan Documents to the Note and
Loan Agreement, such reference shall mean and refer to the Note, as modified and
amended by this Agreement.
3
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement under
seal as of the day and year first above written.
Signed, sealed and delivered BORROWER:
This ____ day of November, 2001.
CRESCENT BANKING COMPANY
/s/
--------------------------------------------- By: /s/
Witness ---------------------------------
J. Xxxxxx Xxxxxx, Xx.
President and CEO
/s/
--------------------------------------------- Attest: /s/
Notary ----------------------------
Print Name:
-------------------------
Print Title:
------------------------
(CORPORATE SEAL)
LENDER:
THE BANKERS BANK
By: /s/
----------------------------------
(BANK SEAL)
4
PROMISSORY NOTE
$2,600,000 November 9, 2001
FOR VALUE RECEIVED, the undersigned, CRESCENT BANKING COMPANY, a Georgia
corporation (the "Borrower"), promises to pay to the order of, THE BANKERS BANK
(the "Lender" and, together with any holder hereof, called the "Holder"), at
2410 Paces Ferry Road, 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000 (or at such
other place as the Holder may designate in writing to the Borrower), in lawful
money of the United States of America, the principal sum of Two Million Six
Hundred Thousand and No/100 Dollars ($2,600,000.00), or so much thereof as may
hereafter be disbursed hereunder, together with interest on so much thereof as
is from time to time outstanding and unpaid, from the date of each advance of
principal at a rate of interest as hereinafter provided.
This Note is a renewal of the note made and given as described in that
certain Loan and Stock Pledge Agreement dated as of July 28, 1999, between the
Borrower and the Lender as amended by the First Modification Agreement dated May
18, 2000 (the "Loan Agreement"). In the event of any inconsistency between this
Note and the Loan Agreement, this Note shall control. All capitalized terms used
herein shall have the meanings ascribed to such terms in the Loan Agreement,
except to the extent such capitalized terms are otherwise defined or limited
herein.
Subject to the terms and conditions of the Loan Agreement, the Lender will
make advances of the principal amount hereunder as requested from time to time
by the Borrower. Each such advance will reduce the remaining commitment to lend
hereunder and repayments of advances shall permit the Borrower to receive a re-
advance of such funds. No advance shall be made after October 31, 2002.
The Borrower hereby authorizes the Holder to endorse on the Schedule
annexed to this Note all advances of funds made to the Borrower and all payments
of principal amounts in respect of the Loan, which endorsements shall, in the
absence of manifest error, be conclusive as to the outstanding principal amount
of the Loan; provided, however, that the failure to make such notation with
respect to any Loan or payment shall not limit or otherwise affect the
obligations of the Borrower under this Note.
The Borrower promises to pay interest on the unpaid principal amount
outstanding hereunder (the "Loan"), at a simple interest rate per annum equal to
the Prime Rate Basis. "Prime Rate Basis" shall mean, on any day, a simple
interest rate per annum equal to the Prime Rate minus fifty basis points
(0.50%).
"Prime Rate" shall mean, on any day, the rate of interest published as the
"Prime Rate" as of such day appearing in the "Money Rates" section of the Wall
----
Street Journal, Printed Eastern Edition, or any successor to such section. If
--------------
more than one such rate shall be published, then the Prime Rate shall be the
higher or highest of such rates. The Prime Rate in effect as of the close of
business of each day shall be the applicable Prime
1
Rate for the day and each succeeding non-business day in determining the
applicable Prime Rate Basis.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
Interest under this Note shall be due and payable quarterly in arrears on
the first day of each calendar quarter, commencing January 1, 2002, and
continuing to be due on the first day of each calendar quarter thereafter until
this Note is paid in full. Interest shall also be due and payable when this Note
shall become due (whether at maturity, by reason of acceleration or otherwise).
After default, interest shall also be due and payable upon demand from time to
time by the Holder as provided below.
Principal shall be due and payable in nine (9) consecutive annual
installments of principal, each in the amount of 1/10th of the outstanding
balance of this Note on November l, 2002, beginning on November 1, 2003. The
entire outstanding balance of the indebtedness evidenced by this Note, together
with all accrued and unpaid interest, shall be due and payable in a tenth and
final installment on November 1, 2012.
Overdue principal shall bear interest for each day from the date it became
so due until paid in full, payable on demand, at a rate per annum (computed on
the basis of a 360-day year for the actual number of days elapsed) equal to the
Prime Rate Basis plus 3%.
In no event shall the amount of interest due or payable hereunder exceed
the maximum rate of interest allowed by applicable law, and in the event any
such payment is inadvertently paid by the Borrower or inadvertently received by
the Holder, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Holder, in writing, that the Borrower
elects to have such excess sum returned to it forthwith. It is the express
intent hereof that the Borrower not pay and the Holder not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under applicable law.
All parties now or hereafter liable with respect to this Note, whether the
Borrower, any guarantor, endorser, or any other person or entity, hereby waive
presentment for payment, demand, notice of non-payment or dishonor, protest and
notice of protest, or any other notice of any kind with respect thereto.
Time is of the essence of this Note.
No delay or omission on the part of the Holder in the exercise of any
right or remedy hereunder or any Financing Document, or at law or in equity,
shall operate as waiver thereof, and no single or partial exercise by the Holder
of any right or remedy hereunder, under the Loan Agreement or any Financing
Document, or at law or in equity, shall preclude or estop another or further
exercise thereof or the exercise of any other right or remedy.
2
Should this Note, or any part of the indebtedness evidenced hereby, be
collected by law or through an attorney-at-law or under advice therefrom, the
Holder shall be entitled to collect reasonable attorneys' fees and all costs of
collection.
This Note is entitled to the benefits of the Loan Agreement, which
contains provisions with respect to the acceleration of the maturity of this
Note upon the happening of certain stated events, and for prepayment of the
Loan. Prepayment of the Loan may be made by the Borrower, in whole or in part,
without penalty or premium.
The Holder shall be under no duty to exercise any or all of the rights and
remedies given by this Note and the Loan Agreement or under any of the other
Financing Documents and no party to this instrument shall be discharged from
the obligations or undertakings hereunder (a) should the Holder release or
agree not to xxx any person against whom the party has, to the knowledge of the
Holder, a right to recourse, or (b) should the Holder agree to suspend the
right to enforce this Note or Holder's interest in any collateral pledged or
any guarantee given to secure this Note against such person or otherwise
discharge such person.
This Note shall be deemed to be made pursuant to the laws of the State of
Georgia.
IN WITNESS WHEREOF, the duly authorized officers of the Borrower have
executed, sealed, and delivered this Note, as of the day and year first above
written.
CRESCENT BANKING COMPANY
By: /s/
--------------------------------------
J. Xxxxxx Xxxxxx, Xx., President & CEO
Attest: /s/
-----------------------------------
Xxxx Xxxxx, Assistant Secretary
[CORPORATE SEAL]
3
SCHEDULE TO GRID NOTE
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Date Amount of Advance Amount of Principal Unpaid Principal Signature of Person
Repaid Balance of Note Making Notation
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1
