Exhibit (b)(7)
LOAN AGREEMENT
The following are the terms and conditions under which TIB The
Independent BankersBank ("Lender") agrees to lend to FVNB Corp., a Texas
corporation ("Borrower"), up to Eight Million Dollars ($8,000,000) ("Loan")
under that certain promissory note dated August 15, 2001, payable to the order
of Lender, executed by Borrower and in the original principal amount of
$8,000,000 (as the same may be renewed, extended or modified from time to time,
the "Note").
This Loan Agreement refers to First Victoria National Bank, a national
banking association, located in Victoria, Texas (hereinafter "Bank").
The security for the Loan is described as follows:
All shares of the issued and outstanding common capital stock
of FVNB Delaware Corp. ("FVNB Delaware") and all dividends,
distributions, products and proceeds thereof, and any
additional stock acquired by Borrower from time to time and
all dividends, distributions, products and proceeds thereof,
all of which shall be subject to a first priority perfected
security interest in favor of Lender.
All shares of the issued and outstanding common capital stock
of First Victoria National Bank and all dividends,
distributions, products and proceeds thereof, and any
additional stock acquired by Borrower from time to time and
all dividends, distributions, products and proceeds thereof,
all of which shall be subject to a first priority perfected
security interest in favor of Lender.
See the attached definitions which are incorporated herein by reference for all
purposes and are utilized herein.
Until the aforesaid Loan (principal plus accrued interest) plus all
Obligations set forth in the Loan Documents (including, without limitation, the
Note, Security Agreement, Loan Agreement, and all other Loan Documents), are
paid in full and all commitments of Lender under the Loan Documents have
terminated, Borrower represents and warrants to Lender, and covenants and agrees
with Lender, as follows:
BORROWER SHALL FURNISH TO LENDER THE FOLLOWING:
QUARTERLY FDIC CALL REPORTS OF BANK CONTAINING ALL SUPPLEMENTARY SCHEDULES, AS
SOON AS SAME ARE MADE AVAILABLE TO BORROWER AND IN ANY EVENT NO LATER THAN 10
DAYS AFTER THE END OF EACH CALENDAR QUARTER.
SEMI-ANNUAL AND ANNUAL HOLDING COMPANY FINANCIAL STATEMENTS AT THE TIME REQUIRED
TO BE SUBMITTED BY BORROWER TO THE FEDERAL RESERVE BANK OF DALLAS.
BORROWER WILL PROMPTLY FURNISH TO LENDER, AT LENDER'S REQUEST AND WITHIN
LENDER'S SOLE DISCRETION, SUCH ADDITIONAL FINANCIAL OR OTHER INFORMATION
CONCERNING THE ASSETS, LIABILITIES, OPERATIONS AND TRANSACTIONS OF BORROWER,
BANK AND ANY OBLIGATED PARTY AS LENDER MAY FROM TIME TO TIME REASONABLY REQUEST.
BORROWER SHALL:
PERMIT LENDER, AND CAUSE BANK TO PERMIT LENDER, TO EXAMINE THE BOOKS AND RECORDS
AND PROPERTIES OF BANK AND BORROWER, PROVIDED, HOWEVER, THAT SO LONG AS NO
DEFAULT OR EVENT OF DEFAULT EXISTS UNDER ANY LOAN DOCUMENT, SUCH EXAMINATION IS
REASONABLY NECESSARY AND LENDER GIVES BORROWER REASONABLE NOTICE OF SUCH
REQUEST.
COMPLY WITH EACH AND EVERY TERM OF THIS LOAN AGREEMENT AND ALL TERMS OF THE
OTHER LOAN DOCUMENTS.
NOT DECLARE OR PAY ANY DIVIDENDS OR MAKE ANY OTHER PAYMENT OR DISTRIBUTION ON
ACCOUNT OF ITS CAPITAL STOCK, OR REDEEM, PURCHASE, RETIRE, OR OTHERWISE ACQUIRE
ANY OF ITS CAPITAL STOCK, OR SET APART ANY MONEY FOR A SINKING OR OTHER
ANALOGOUS FUND FOR ANY DIVIDEND OR OTHER DISTRIBUTION ON ITS CAPITAL STOCK,
EXCEPT (i) WHEN NO DEFAULT OR EVENT OF DEFAULT UNDER LOAN DOCUMENT EXISTS, AS
SUCH RELATES TO THE REPURCHASE OF SHARES CONTEMPLATED IN THE CURRENTLY PROPOSED
GOING-PRIVATE TRANSACTION, AND (ii) WHEN NO DEFAULT OR EVENT OF DEFAULT UNDER
THIS LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT EXISTS OR WILL RESULT THEREFROM,
BORROWER MAY PAY DIVIDENDS TO ITS SHAREHOLDERS AS LONG AS THE TOTAL ANNUAL
AFTER-TAX NET INCOME OF BANK EXCEEDS THE AMOUNT OF ALL DIVIDENDS PAID BY BANK TO
BORROWER BY A RATIO OF 125%.
CAUSE THE COMMON CAPITAL STOCK OF THE BANK AND FNVB DELAWARE WHICH IS PLEDGED TO
THE LENDER TO AT ALL TIMES CONSTITUTE AT LEAST 100% OF THE ISSUED AND
OUTSTANDING SHARES OF CAPITAL STOCK OF THE BANK, AND SHALL CAUSE SUCH SHARES OF
STOCK OF THE BANK TO BE SUBJECT TO A FIRST PRIORITY PERFECTED SECURITY INTEREST
IN FAVOR OF THE LENDER.
BORROWER WILL COMPLY AND CAUSE FVNB DELAWARE AND BANK TO COMPLY WITH ALL LAWS,
STATUTES, ORDINANCES, GOVERNMENTAL REGULATIONS, AGREEMENTS, CONTRACTS, AND
INSTRUMENTS APPLICABLE TO OR BINDING UPON IT OR ANY OF ITS PROPERTY, BUSINESS,
OPERATIONS AND TRANSACTIONS.
BORROWER WILL PROMPTLY NOTIFY LENDER OF THE OCCURRENCE OF ANY DEFAULT UNDER THIS
LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT.
BORROWER SHALL CAUSE BANK TO MAINTAIN THE FOLLOWING:
RATIOS. BORROWER SHALL CAUSE BANK TO MAINTAIN RATIOS OF ASSETS TO LIABILITIES,
LOANS TO DEPOSITS, AND LIQUIDITY RATIOS ACCEPTABLE TO ALL TRIBUNALS HAVING
JURISDICTION OVER BORROWER OR BANK; TO AT ALL TIMES MAINTAIN A LEVERAGE RATIO OF
2
6.00% OR GREATER; TO ACHIEVE A MINIMUM RETURN ON ASSETS AFTER PAYMENT OF
APPLICABLE TAXES AND BEFORE EXTRAORDINARY ITEMS OF 1.00% ANNUALLY, TO AT ALL
TIMES MAINTAIN A MINIMUM TIER 1 EQUITY CAPITAL OF $42,000,000, AND TO AT ALL
TIMES MAINTAIN A TOTAL CLASSIFIED ASSETS TO CAPITAL RATIO OF 50.00% OR LESS
THROUGHOUT THE TERM OF THE LOAN.
CONTROL. THERE SHALL BE NO CHANGE IN THE CONTROL OF BORROWER OR BANK WITHOUT THE
PRIOR WRITTEN CONSENT OF LENDER, SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD.
BORROWER AND ITS SUBSIDIARIES MAY CREATE, INCUR, ASSUME OR BECOME LIABLE IN ANY
MANNER ON ANY UNSECURED INDEBTEDNESS, DIRECTLY OR INDIRECTLY, SO LONG AS
BORROWER IS NOT IN DEFAULT UNDER THE TERMS OF ANY OF THE LOAN DOCUMENTS. IF ANY
DEFAULT OR EVENT OF DEFAULT EXISTS UNDER ANY LOAN DOCUMENT, BORROWER SHALL NOT
AND SHALL NOT PERMIT ANY SUBSIDIARY TO CREATE, INCUR, ASSUME OR BECOME LIABLE OR
PERMIT TO EXIST IN ANY MANNER ANY INDEBTEDNESS, DIRECTLY OR INDIRECTLY, WITHOUT
THE PRIOR WRITTEN APPROVAL OF THE LENDER. BORROWER SHALL NOT REDUCE ITS CURRENT
PERCENTAGE OF OWNERSHIP OF THE STOCK OF BANK. BORROWER WILL NOT INCUR, CREATE,
ASSUME OR PERMIT TO EXIST ANY LIEN UPON ANY OF ITS OR ITS SUBSIDIARIES'
PROPERTY, ASSETS OR REVENUES, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, EXCEPT
THE LIEN IN FAVOR OF LENDER UPON THE CAPITAL STOCK OF THE BANK. BORROWER WILL
NOT REORGANIZE, MERGE, CONSOLIDATE WITH, OR ACQUIRE ALL OR SUBSTANTIALLY ALL OF
THE ASSETS OR STOCK OF ANY OTHER ENTITY WITHOUT THE PRIOR WRITTEN CONSENT OF
LENDER, NOR WILL IT PERMIT ANY SUBSIDIARY TO DO SO. BORROWER WILL NOT SELL ANY
OF ITS ASSETS OUTSIDE THE ORDINARY COURSE OF BUSINESS WITHOUT LENDER'S PRIOR
WRITTEN CONSENT. BORROWER SHALL NOT PREPAY ANY MATERIAL INDEBTEDNESS, OTHER THAN
THE OBLIGATIONS. BORROWER SHALL NOT AMEND OR MODIFY THE TERMS OF ANY
SUBORDINATED INDEBTEDNESS OF BORROWER WITHOUT LENDER'S PRIOR WRITTEN CONSENT.
IF BORROWER OR ANY OBLIGATED PARTY FAILS TO COMPLY WITH ANY TERM OF THIS LOAN
AGREEMENT OR ANY OTHER LOAN DOCUMENTS OR IS INSOLVENT OR IS THE SUBJECT OF A
BANKRUPTCY PROCEEDING, OR IF ANY REPRESENTATION OR WARRANTY MADE IN THIS LOAN
AGREEMENT OR ANY OTHER LOAN DOCUMENTS OR ANY DOCUMENT CONTEMPLATED HEREBY IS
FALSE, MISLEADING, OR ERRONEOUS, OR IF BORROWER OR ANY OBLIGATED PARTY FAILS TO
COMPLY WITH ANY COVENANT OR AGREEMENT IN THIS LOAN AGREEMENT OR ANY OTHER LOAN
DOCUMENT, THEN SUCH FAILURE SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THIS LOAN
AGREEMENT, THE NOTE, AND EACH OF THE OTHER LOAN DOCUMENTS, ENTITLING LENDER TO
TERMINATE ITS COMMITMENT TO LEND AND TO DECLARE ALL OUTSTANDING PRINCIPAL AND
ACCRUED INTEREST ON THE NOTE IMMEDIATELY DUE AND PAYABLE WITHOUT NOTICE, DEMAND,
PRESENTMENT, NOTICE OF DISHONOR, NOTICE OF ACCELERATION, NOTICE OF INTENT TO
ACCELERATE, PROTEST, OR ANY OTHER FORMALITIES, ALL OF WHICH ARE HEREBY EXPRESSLY
WAIVED, AND LENDER SHALL BE ENTITLED TO EXERCISE ANY AND ALL RIGHTS AND REMEDIES
AFFORDED BY THE LOAN DOCUMENTS OR OTHERWISE BY LAW.
BORROWER REPRESENTS AND WARRANTS TO LENDER THAT ALL INFORMATION, INCLUDING
FINANCIAL STATEMENTS OF BORROWER, BANK, AND ANY OBLIGATED PARTIES, HERETOFORE
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DELIVERED TO LENDER IN CONNECTION WITH THIS LOAN IS TRUE, CORRECT AND COMPLETE
AND DOES NOT FAIL TO DISCLOSE ANY MATERIAL FACT.
BORROWER AGREES TO PAY ON DEMAND ALL REASONABLE COSTS AND EXPENSES INCURRED BY
LENDER IN CONNECTION WITH THE PREPARATION, NEGOTIATION, AND EXECUTION OF THIS
LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY AND ALL AMENDMENTS,
MODIFICATIONS, AND SUPPLEMENTS THERETO, INCLUDING WITHOUT LIMITATION THE COSTS
AND FEES OF LENDER'S LEGAL COUNSEL, AND ALL COSTS AND EXPENSES INCURRED BY
LENDER IN CONNECTION WITH THE ADMINISTRATION, ENFORCEMENT AND PRESERVATION OF
ANY RIGHTS UNDER THIS LOAN AGREEMENT ON ANY OTHER LOAN DOCUMENTS, INCLUDING
WITHOUT LIMITATIONS THE COSTS AND FEES OF LENDER'S LEGAL COUNSEL.
THIS LOAN AGREEMENT, THE NOTE, AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN
EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY
AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS
AMONG THE PARTIES HERETO.
THIS LOAN AGREEMENT AND ALL OTHER DOCUMENTS AND INSTRUMENTS EXECUTED PURSUANT
HERETO OR IN CONNECTION HEREWITH AND THE TRANSACTIONS CONTEMPLATED HEREBY ARE
MADE AND PERFORMABLE IN DALLAS COUNTY, TEXAS, AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA.
THIS LOAN AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY
DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO
EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH WHEN TAKEN TOGETHER
SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT. TELECOPIES OF SIGNATURES SHALL BE
BINDING AND EFFECTIVE AS ORIGINALS.
THIS LOAN AGREEMENT IS BINDING UPON BORROWER, ITS SUCCESSORS AND ASSIGNS, AND
INURES TO THE BENEFIT OF LENDER, ITS SUCCESSORS AND ASSIGNS; PROVIDED THAT
BORROWER MAY NOT ASSIGN ITS RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT LENDER'S
PRIOR WRITTEN CONSENT.
THE OBLIGATION OF LENDER TO MAKE THE LOAN IS SUBJECT TO THE CONDITION PRECEDENT
THAT LENDER SHALL HAVE RECEIVED ON OR BEFORE THE DAY OF THE MAKING OF THE LOAN
ALL OF THE FOLLOWING, EACH DATED (UNLESS OTHERWISE INDICATED) THE DATE HEREOF,
IN FORM AND SUBSTANCE SATISFACTORY TO LENDER:
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ARTICLES OF INCORPORATION. THE ARTICLES OF INCORPORATION OF THE BORROWER AND
GUARANTOR CERTIFIED BY THE SECRETARY OF THE STATES OF TEXAS AND DELAWARE, AS
APPLICABLE, AND DATED WITHIN TEN (10) DAYS PRIOR TO THE CLOSING DATE.
BYLAWS. THE BYLAWS OF THE BORROWER AND GUARANTOR CERTIFIED BY SUCH PERSON'S
SECRETARY OR AN ASSISTANT SECRETARY.
CERTIFICATE OF SECRETARY AND INCUMBENCY. RESOLUTIONS OF THE BOARD OF DIRECTORS
OF BORROWER AND GUARANTOR CERTIFIED BY SUCH PERSON'S SECRETARY OF AN ASSISTANT
SECRETARY WHICH AUTHORIZES THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT, THE NOTE, AND THE OTHER LOAN DOCUMENTS, TOGETHER WITH A CERTIFICATE
OF INCUMBENCY CERTIFYING THE NAMES OF THE OFFICERS OF SUCH PERSON AUTHORIZED TO
SIGN THIS AGREEMENT, THE NOTE, AND THE OTHER LOAN DOCUMENTS, TOGETHER WITH
SPECIMEN SIGNATURES OF SUCH OFFICERS.
GOVERNMENTAL CERTIFICATES. CERTIFICATES OF THE APPROPRIATE GOVERNMENT OFFICIALS
OF THE STATE OF INCORPORATION OF BORROWER AND GUARANTOR AS TO THE EXISTENCE AND
GOOD STANDING OF SUCH PERSONS, EACH DATED WITHIN TEN (10) DAYS PRIOR TO THE DATE
HEREOF.
ARTICLES OF ASSOCIATION AND BYLAWS. THE ARTICLES OF ASSOCIATION AND BYLAWS OF
BANK CERTIFIED BY THE CASHIER OF BANK.
NOTE. THE NOTE EXECUTED BY BORROWER.
SECURITY AGREEMENTS. THE SECURITY AGREEMENTS EXECUTED BY BORROWER AND GUARANTOR.
GUARANTY AGREEMENT. GUARANTY AGREEMENT EXECUTED BY THE GUARANTOR.
PLEDGED STOCK. THE CERTIFICATES REPRESENTING THE PLEDGED STOCK, ACCOMPANIED BY
STOCK POWERS DULY EXECUTED IN BLANK BY BORROWER AND GUARANTOR.
FEDERAL RESERVE APPROVAL. THE WRITTEN AUTHORIZATION OF THE BOARD OF GOVERNORS
OF THE FEDERAL RESERVE SYSTEM GRANTING APPROVAL FOR THE FORMATION OF BORROWER
AS A ONE-BANK HOLDING COMPANY AND AUTHORIZING BORROWER AND GUARANTOR'S OWNERSHIP
OF THE BANK.
ADDITIONAL INFORMATION. SUCH ADDITIONAL DOCUMENTS, INSTRUMENTS, AND INFORMATION
AS LENDER OR ITS LEGAL COUNSEL, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., MAY REASONABLY
REQUEST.
THE OBLIGATION OF LENDER TO MAKE ANY ADVANCE UNDER THE LOAN IS SUBJECT TO THE
FOLLOWING CONDITIONS PRECEDENT:
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED UNDER THIS LOAN AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR WOULD RESULT FROM SUCH ADVANCE.
ALL OF THE REPRESENTATIONS AND WARRANTIES MADE IN THIS LOAN AGREEMENT AND IN THE
OTHER LOAN DOCUMENTS SHALL BE TRUE AND CORRECT ON AND AS OF THE DATE OF SUCH
ADVANCE WITH THE SAME FORCE AND EFFECT AS IF SUCH REPRESENTATIONS AND WARRANTIES
HAD BEEN MADE ON AND AS OF SUCH DATE.
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THE OFFICER OF THE LENDER WITH RESPONSIBILITY FOR THE LOAN SHALL APPROVE SUCH
ADVANCE, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD.
THE MAKING OF SUCH ADVANCE SHALL NOT CAUSE THE SUM OF ALL ADVANCES MADE TO
BORROWER TO EXCEED THE LENDER'S LEGAL LENDING LIMIT AS DETERMINED UNDER
APPLICABLE LAW.
THE PURPOSE OF THE ADVANCE SHALL BE TO PURCHASE SHARES OF STOCK IN FVNB CORP. OR
TO PAY ANY REASONABLE EXPENSES ASSOCIATED WITH SUCH REPURCHASE.
TO THE EXTENT THAT THE TERMS OF THIS LOAN AGREEMENT ARE IN DIRECT CONFLICT WITH
THE TERMS OF ANY OTHER LOAN DOCUMENT, THE TERMS OF THIS LOAN AGREEMENT SHALL
GOVERN. ALL TERMS OF THE OTHER LOAN DOCUMENTS ARE SUPPLEMENTAL TO THE TERMS OF
THIS LOAN AGREEMENT.
LENDER SHALL HAVE NO OBLIGATION TO MAKE FURTHER ADVANCES TO BORROWER UNDER THE
LOAN DOCUMENTS ON OR AFTER AUGUST 15, 2002.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED effective as of August 15, 2001.
Sincerely, TERMS AGREED TO AND ACCEPTED:
TIB THE INDEPENDENT BANKERSBANK "BORROWER"
FVNB CORP.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------- ---------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- President and Chief Executive
Title: VICE PRESIDENT Officer
------------------------
"GUARANTOR"
FVNB DELAWARE CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
President and Chief Executive
Officer
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DEFINITIONS
The terms defined herein shall have the following meanings for the
purpose of this Agreement, and the singular shall include the plural, and vice
versa, unless otherwise specifically required by the context:
"ASSETS" shall mean the assets of Bank determined in accordance with
accounting principals consistently applied by the various regulatory authorities
or generally accepted accounting principles, consistently applied.
"AVERAGE ASSETS" means Bank's average assets as reflected on the most
recent Call Report for Bank.
"BANK" shall mean First Victoria National Bank, located in Victoria,
Texas.
"BOOK VALUE" shall mean, for any share of Bank stock, Bank's Capital
divided by the total number of its shares outstanding.
"BUSINESS DAY" shall mean a day on which Lender is open for transaction
of its general banking business.
"CAPITAL" shall mean the sum of the following for a bank determined in
accordance with regulatory accounting principles or generally accepted
accounting principles, consistently applied less goodwill and other intangible
assets:
(a) common capital;
(b) capital surplus (excluding surplus related to preferred stock);
(c) perpetual preferred stock and related surplus; and
(d) retained earnings (including the available for sale adjustment).
"CAPITAL RATIO" shall mean the ratio of Bank's Capital to its Assets.
"CLASSIFIED ASSETS" shall mean Assets classified as Substandard,
Doubtful or Loss.
"CONTROL" shall mean the power to vote 5% or more of any class of
voting stock of Bank or the Borrower.
"GUARANTOR" means FVNB Delaware Corp.
"LEVERAGE RATIO" shall mean Tier 1 Equity Capital divided by Average
Assets.
"LOAN DOCUMENTS" shall mean this Agreement, the Note, the Security
Instruments and all other documents executed or to be executed by Borrower,
Bank, or any Obligated Party pursuant to the terms of or in connection with this
Loan Agreement.
"NOTE" shall mean the promissory note, evidencing the Loan, in
substantially the form of Exhibit "A," attached hereto and incorporated herein
by reference for all purposes
appropriately completed, and any promissory note issued in substitution
therefore or in renewal, modification, extension, or rearrangement thereof.
"OBLIGATED PARTY" means any person or entity who is or becomes party to
any agreement that guarantees or secures payment and performance of the
Obligations or any part thereof.
"OBLIGATIONS" means the outstanding principal amount of the Note and
interest accrued thereon, and any and all other indebtedness, liabilities and
obligations whatsoever of Borrower and/or Bank to Lender hereunder or under the
Note, the Security Instruments, and any of the other Loan Documents or
otherwise, whether direct or indirect, absolute or contingent, due or to become
due, and whether now existing or hereafter arising, and howsoever evidenced or
acquired, whether joint or several, and whether evidenced by note, draft,
acceptance, guaranty, open account, letter of credit, surety agreement or
otherwise, it being contemplated by the parties hereto that Borrower may become
indebted to Lender in further sum or sums.
"PERSON" means any individual, corporation, business trust,
association, company, partnership, joint venture, or other entity.
"RETURN ON ASSETS" means at any particular time for any specified
period the ratio, determined as a percentage, of Bank's net income after taxes
to Bank's Average Assets determined at the end of such period.
"SECURITY AGREEMENT" means the Security Agreement executed by Borrower
and Guarantor in favor of Lender, granting to Lender a first priority perfected
security interest in all issued and outstanding shares of capital stock of
Guarantor and Bank whether now owned or hereafter acquired, as amended or
modified from time to time.
"SECURITY INSTRUMENTS" shall mean any and all security agreements,
financing statement, guarantees, surety agreements, agreements of any sort
creating or perfecting liens or in any other way securing or guaranteeing
payment, repayment or performance of the Obligations.
"SUBSIDIARY" means any corporation or bank of which more than 50% of
the issued and outstanding securities having ordinary voting power for the
election of a majority of directors is owned or controlled, directly or
indirectly, by Borrower, by Borrower and one or more other Subsidiaries, or by
one or more other Subsidiaries.
"TIER 1 EQUITY CAPITAL" shall mean Capital of the Bank (but without the
available for sale adjustment).
"TRIBUNAL" shall mean any state, commonwealth, federal, foreign,
territorial, regulatory, or other court or governmental department, commission,
board, bureau, agency or instrumentality.
