Exhibit 10.2
COMMERCIAL PLEDGE AGREEMENT
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Principal Loan Date Maturity Loan No Call / Coll Account Officer Initials
$30,000,000.00 12-27-2005 01-31-2006 04AD / STKU 53803
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References in the shaded area are for Lender's use only and do nut limit lbs
applicability of this document toany particular loan or item
Any item above containing "***" has been omitted due to text length limitations.
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Borrower: Capital Bank Corporation (TIN: 00-0000000) Lender: First Tennessee Bank National Association
0000 Xxxx xxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxxx
Xxxxxxx XX 00000 000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
(000) 000-0000
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THIS COMMERCIAL PLEDGE AGREEMENT dated December 27, 2005 is made and executed
between Capital Bank Corporation ("Grantor") and First Tennessee Bank National
Association ("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
Grantor's present and future rights, title and interest in and to, together with
any and all present and future additions thereto, substitutions therefore, and
replacements thereof together with any and all present and future certificates
and/or instruments evidencing any Stock and further together with all income and
proceeds as described herein:
100% of stock in Capital Bank.
RIGHT OF SETOFF. To the extent permitted by applicable law. Lender reserves a
right of setoff in all Grantor s accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor may open in
the future. However, this does not include any XXX or Xxxxx accounts or any
trust accounts for which setoff would be prohibited by law. Grantor authorizes
Lender, to the extent permitted by applicable law, to charge or setoff all sums
owing on the Indebtedness against any and all such accounts, and, at Lender's
option, to administratively freeze all such accounts to allow Lender to protect
Lender's charge and setoff rights provided in this paragraph
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents end warrants to Lender that:
Ownership. Grantor is the lawful owner of the Collateral free and clear
of all security interests, liens, encumbrances and claims of others
except as disclosed to and accepted by Lender in writing prior to
execution of this Agreement.
Right to Pledge. Grantor has the full right power and authority to
enter into this Agreement and to pledge the Collateral.
Authority; Binding Effect. Grantor has the full right, power and
authority to enter into this Agreement and to grant a security interest
in the Collateral to Lender. This Agreement is binding upon Grantor as
well as Grantor's successors and assigns, and is legally enforceable in
accordance with its terms. The foregoing representations and
warranties, and all other representations and warranties contained in
this Agreement are and shall be continuing in nature and shall remain
in full force and effect until such time as this Agreement is
terminated or cancelled as provided herein.
Valid Issuance of Stock. All of the Stock have been duly and validly
issued and are fully paid and nonassessable.
Ownership of Stock. Unless otherwise previously disclosed to Lender in
writing, the shares of Stock subject to this Agreement constitute all
shares owned by of Grantor of the issued and outstanding shares of the
capital stock of the corporation or corporations listed above.
Free Transferability of Stock. Unless otherwise previously disclosed to
Lender in writing, all of the shares of Stock are freely transferable
and subject to sale without being subject to limitations, restriction,
stock legends, or prohibitive covenants under any agreements or
otherwise under which Grantor or the issuer of any such Stock may be
bound or obligated.
Stock Dividend; Stock Split. In order to prevent Lender's collateral
position from becoming diluted by any stock dividends or stock splits,
Grantor agrees to notify Lender immediately when knowledge of any such
transaction or transactions becomes known, and to deliver all of the
stock certificates to Lender for pledging within five (5) days of
receipt of the stock dividend and/or stock split together with
appropriately executed stock powers.
No Further Assignment. Grantor has not, and shall not set, assign,
transfer, encumber or otherwise dispose of any of Grantor s rights in
the Collateral except as provided in this Agreement.
No Defaults. There are no defaults existing under the Collateral, and
there are no offsets or counterclaims to the same. Grantor will
strictly and promptly perform each of the terms conditions covenants
and agreements if any, contained in the Collateral which are to be
performed by Grantor.
No Violation. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a
party and its certificate or articles of incorporation and bylaws do
not prohibit any term or condition of this Agreement.
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Financing Statements. Grantor authorizes Lender to file a UCC financing
statement, or alternatively, a copy of this Agreement to perfect
Lender's security interest. At Lender's request, Grantor additionally
agrees to sign all other documents that are necessary to perfect,
protect, and continue Lender's security interest in the Property.
Grantor will pay all filing fees, title transfer fees, and other fees
and costs involved unless prohibited by law or unless Lender is
required by law to pay such fees and costs Grantor irrevocably appoints
Lender to execute documents necessary to transfer title if there is a
default. Lender may file a copy of this Agreement as a financing
statement. If Grantor changes Grantor's name or address, or the name or
address of any person granting a security interest under this Agreement
changes Grantor will promptly notify the Lender of such change.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all Indebtedness has been paid and satisfied. Thereafter
Lender may deliver the Collateral to Grantor or to any other owner of the
Collateral. Lender shall have the following rights in addition to all other
rights Lender may have by law:
Maintenance and Protection of Collateral. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, store, or care for the Collateral, including
paying of any liens or claims against the Collateral. This may include
such things as hiring other people, such as attorneys, appraisers or
other experts. Lender may charge Grantor for any cost incurred in so
doing. When applicable law provides more than one method of perfection
of Lender's security interest, Lender may choose the method(s) to be
used. If the Collateral consists of stock, bonds or other investment
property for which no certificate has been issued. Grantor agrees, at
Lender's request either to request issuance of an appropriate
certificate or to give instructions on Lender's forms to the issuer,
transfer agent, mutual fund company or broker, as the case may be, to
record on its books or records Lender's security interest in the
Collateral. Grantor also agrees to execute any additional documents,
including but not limited to a control agreement necessary to perfect
Lender's security interest as Lender may desire.
Income and Proceeds from the Collateral. Lender may receive all Income
and Proceeds and add it to the Collateral. Grantor agrees to deliver to
Lender immediately upon receipt, in the exact form received and without
commingling with other property, all Income and Proceeds from the
Collateral which may be received by, paid or delivered to Grantor or
for Grantor s account whether as an addition to in discharge of. in
substitution of or in exchange for any of the Collateral.
Application of Cash At Lender's option. Lender may apply any cash,
whether included in the Collateral or received as Income and Proceeds
or through liquidation, sale, or retirement, of the Collateral, to the
satisfaction of the Indebtedness or such portion thereof as Lender
shall choose whether or not matured.
Transactions with Others. Lender may (1) extend time for payment or
other performance, (2) grant a renewal or change in terms or
conditions, or (3) compromise compound or release any obligation with
any one or more Obligors, endorsers, or
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Guarantors of the Indebtedness as Lender deems advisable, without
obtaining the prior written consent of Grantor, and no such act or
failure to act shall affect Lender s rights against Grantor or The
Collateral.
All Collateral Secures Indebtedness. All Collateral shall be security
for the Indebtedness, whether the Collateral is located at one or more
offices or branches of Lender This will be the case whether or not the
office or branch where Grantor obtained Grantor's loan knows about the
Collateral or relies upon the Collateral as security.
Collection of Collateral. Grantor agrees that Lender may, at any time
and for any reason, whether or not Grantor is then in default under any
indebtedness, collect the Income and Proceeds directly from the
Obligors. Grantor authorizes and directs the Obligors if Lender decides
to collect the Income and Proceeds to pay and deliver to Lender all
Income and Proceeds from the Collateral and to accept Lender's receipt
for the payments.
Power of Attorney. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact with full power of substitution, (a) to demand,
collect, receive, receipt for, xxx and recover all Income and Proceeds
and other sums of money and other property which may now or hereafter
become due, owing or payable from the Obligors in accordance with the
terms of the Collateral; (b) to execute, sign, endorse any and all
instruments, receipts, checks drafts and warrants issued in payment for
the Collateral; (c) to settle or compromise any and all claims arising
under the Collateral, ad in the place and stead of Grantor, execute and
deliver Grantor's release and acquittance for Grantor; (d) to file any
claim or claims or to take any action or institute or take part in any
proceedings, either in Lender's own name or in the name of Grantor, or
otherwise, which in the discretion of Lender may seem to be necessary
or advisable; and (e) to execute in Grantor's name and to deliver to
the Obligors on Grantor's behalf at the time and in the manner
specified by the Collateral any necessary instruments or documents.
Perfection of Security Interest Upon Lender's request. Grantor will
deliver to Lender any and all of the documents evidencing or
constituting the Collateral. When applicable law provides more than one
method of perfection of Lender's security interest. Lender may choose
the method(s) to be used. Upon Lender's request, Grantor will sign and
deliver any writings necessary to perfect Lender's security interest.
If any of the Collateral consists of securities for which no
certificate has been issued, Grantor agrees, at Lender's option, either
to request issuance of an appropriate certificate or to execute
appropriate instructions on Lender's forms instructing the issuer,
transfer agent, mutual fund company, or broker, as the case may be to
record on its books or records, by book-entry or otherwise. Lender's
security interest in the Collateral. Grantor hereby appoints Lender as
Grantor's irrevocable attorney-in-fact for the purpose of executing any
documents necessary to perfect, amend, or to continue the security
interest granted in this Agreement or to demand termination of filings
of other secured parties. This is a continuing Security Agreement and
will continue in effect even though all or any part of the Indebtedness
is paid in full and even though for a period of time Grantor may not be
indebted to Lender.
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LENDERS EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests encumbrances and
other claims at any time levied or placed on the Collateral and paying all costs
for insuring maintaining and preserving the Collateral. All such expenditures
incurred or paid by Lender for such purposes will then bear interest at the rate
charged under the Note, from the date incurred or paid by Lender to the date of
repayment by Grantor. All such expenses will become a part of the Indebtedness
and, at Lender's option, will (A) be payable on demand; (B) be added to the
balance of the Note and be apportioned among and be payable with any installment
payments to become due during either (1) the term of any applicable insurance
policy; or (2) the remaining term of the Note; or (C) be treated as a balloon
payment which will be due and payable at the Note's maturity. The Agreement also
will secure payment of these amounts. Such right shall be in addition to all
other rights and remedies to which Lender may be entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of, any Income and Proceeds from the Collateral (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters. Except as provided above, Lender shall have no
liability for depreciation or deterioration of the Collateral.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Grantor fails to make any payment when due under the
Indebtedness.
Other Defaults. Grantor fails to comply with or to perform any other
term obligation covenant or condition contained in this Agreement or in
any of the Related Documents or to comply with or to perform any term
obligation covenant or condition contained in any other agreement
between Lender and Grantor.
Default in Favor of Third Parties Should Grantor or any Grantor default
under any loan, extension of credit., security agreement, purchase or
sales agreement, or any other agreement in favor of any other creditor
or person that may materially affect any of Grantor's property or
Grantor's or any Grantor's ability to repay the Indebtedness or perform
their respective obligations under this Agreement or any of the Related
Documents.
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False Statements. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf, or made by
Guarantor, or any other guarantor endorser, surety, or accommodation
party under this Agreement or the Related Documents in connection with
the obtaining of the Indebtedness evidenced by the Note of any security
document directly or indirectly securing repayment of the Note is false
or misleading in any material respect either now or at the time made or
furnished or becomes false or misleading at any time thereafter.
Defective Collateralization. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of
any collateral document to create a valid and perfected security
interest or lien) at any time and for any reason.
Insolvency. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a
receiver for any part of Grantor's property, any assignment for the
benefit of creditors any type of creditor workout of the commencement
of any proceeding under any bankruptcy or insolvency Jaws by or against
Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the Indebtedness.
This includes a garnishment of any of Grantor's accounts, including
deposit accounts with Lender. However this Event of Default shall not
apply if there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender in its sole discretion as being an adequate
reserve or bond for the dispute.
Execution; Attachment. Any execution or attachment is levied against
the Collateral and such execution or attachment is not set aside
discharged or stayed within thirty (30) days after the same is levied.
Change in Zoning or Public Restriction. Any change in any zoning
ordinance or regulation or any other public restriction is enacted,
adopted or implemented that limits or defines the uses which may be
made of the Collateral such that the present or intended use of the
Collateral as specified in the Related Documents would be in violation
of such zoning ordinance or regulation or public restriction as
changed.
Default Under Other Lien Documents. A default occurs under any other
mortgage deed of trust or security agreement covering all or any
portion of the Collateral.
Judgment. Unless adequately covered by insurance in the opinion of
Lender, the entry of a final judgment for the payment of money
involving more than ten thousand dollars ($10,000.00) against Grantor
and the failure by Grantor to discharge the same, or cause it to be
discharged, or bonded off to Lender's satisfaction within thirty (30)
days from the
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date of the order decree or process under which or pursuant to which
such judgment was entered.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor, or any other guarantor endorser surety, or
accommodation party of any of the Indebtedness or Guarantor, or any
other guarantor, endorser, surety, or accommodation party dies or
becomes incompetent or revokes or disputes the validity of, or
liability under any Guaranty of the Indebtedness.
Adverse Change. A material adverse change occurs in Grantor's financial
condition or Lender believes the prospect of payment or performance of
the Indebtedness is impaired.
Cure Provisions. If any default, other than a default in payment or
failure to satisfy Lender's requirement in the Insufficient Market
Value of Securities section is curable and if Grantor has not been
given a notice of a breach of the same provision of this Agreement
within the preceding twelve (12) months, it may be cured if Grantor,
after receiving written notice from Lender demanding cure of such
default: (1) cures the default within fifteen (15) days; or (2) if the
cure requires more than fifteen (15) days immediately initiates steps
which Lender deems in Lenders sole discretion to be sufficient to cure
the default and thereafter continues and completes all reasonable and
necessary steps sufficient to produce compliance as soon as reasonably
practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
Accelerate Indebtedness. Declare all Indebtedness, including any
prepayment penalty which Grantor would be required to pay immediately
due and payable without notice of any kind to Grantor.
Collect the Collateral. Collect any of the Collateral and at Lender's
option and to the extent permitted by applicable law retain possession
of the Collateral while suing on the Indebtedness.
Sell the Collateral. Sell the Collateral at Lender's discretion, as a
unit or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or
is of a type customarily sold on a recognized market, Lender shaft give
or mail to Grantor, and other persons as required by law notice at
least ten (10) days in advance of the time and place of any public
sale, or of the time after which any private sale may be made. However,
no notice need be provided to any person who, after an Event of Default
occurs, enters into and authenticates an agreement waiving that persons
right to notification of sale Grantor agrees that any requirement of
reasonable notice as to Grantor is satisfied if Lender mails notice by
ordinary mail addressed to Grantor at the last address Grantor has
given Lender in writing. If a public safe is held, there shall be
sufficient compliance with all requirements of notice to the public by
a single publication in any newspaper of general circulation in the
county where the
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Collateral is located, setting forth the time and place of sale and a
brief description of the property to be sold Lender may be a purchaser
at any public sale.
Self Securities. Sell any securities included in the Collateral in a
manner consistent with applicable federal and state securities laws. If
because of restrictions under such laws Lender is unable, or believes
Lender is unable, to sell the securities in an open market transaction.
Grantor agrees that Lender xxxx have no obligation to delay sale until
the securities can be registered. Then Lender may make a private sale
to one or more persons or to a restricted group of persons even though
such sale may result in a price that is less favorable than might be
obtained in an open market transaction. Such a sale will be considered
commercially reasonable. If any securities held as Collateral are
"restricted securities" as defined in the Rules of the Securities and
Exchange Commission (such as Regulation D or Rule 144) or the rules of
state securities departments under state "Blue Sky" laws, or if Grantor
or any other owner of the Collateral is an affiliate of the issuer of
the securities. Grantor agrees that neither Grantor, nor any member of
Grantor's family, nor any other person signing this Agreement will sell
or dispose of any securities of such issuer without obtaining Lender s
prior written consent.
Rights and Remedies with Respect to Investment Property. Financial
Assets and Related Collateral. In addition to other rights and remedies
granted under this Agreement and under applicable law. Lender may
exercise any or all of the following rights and remedies: (1) register
with any issuer or broker or other securities intermediary any of the
Collateral consisting of investment property or financial assets
(collectively herein, "investment property") in Lender's, sole name or
in the name of Lender's broker, agent or nominee; (2) cause any issuer,
broker or other securities intermediary to deliver to Lender any of the
Collateral consisting of securities, or investment property capable of
being delivered; (3) enter into a control agreement or power of
attorney with any issuer or securities intermediary with respect to any
Collateral consisting of investment property, on such terms as Lender
may deem appropriate in its sole discretion, including without
limitation, an agreement granting to Lender any of the rights provided
hereunder without further notice to or consent by Grantor; (4) execute
any such control agreement on Grantor s behalf and in Grantor's name,
and hereby irrevocably appoints Lender as agent and attorney-in-fact,
coupled with an interest, for the purpose of executing such control
agreement on Grantor's behalf; (5) exercise any and alt rights of
Lender under any such control agreement or power of attorney; (6)
exercise any voting, conversion, registration purchase option, or other
rights with respect to any Collateral; (7) collect, with or without
legal action, and issue receipts concerning any notes, checks drafts,
remittances or distributions that are paid or payable with respect to
any Collateral consisting of investment property Any control agreement
entered with respect to any investment property shall contain the
following provisions, at Lender's discretion. Lender shall be
authorized to instruct the issuer, broker or other securities
intermediary to take or to refrain from taking such actions with
respect to the investment property as Lender may instruct, without
further notice to or consent by Grantor. Such actions may include
without limitation the issuance of entitlement orders account
instructions, general trading or buy or sell orders, transfer and
redemption orders, and step loss orders. Lender shall be further
entitled to instruct the issuer broker or securities intermediary to
sell or to
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liquidate any investment property, or to pay the cash surrender or
account termination value with respect to any and all investment
property, and to deliver all such payments and liquidation proceeds to
Lender. Any such control agreement shall contain such authorizations as
are necessary to place Lender in "control" of such investment
collateral, as contemplated under the provisions of the Uniform
Commercial Code, and shall fully authorize Lender to issue "entitlement
orders" concerning the transfer redemption liquidation or disposition
of investment collateral in conformance with the provisions of the
Uniform Commercial Code.
Foreclosure. Maintain a judicial suit for foreclosure and sale of the
Collateral.
Specific Performance. Lender may, in addition to or in lieu of the
foregoing remedies, in Lenders sole discretion, commence an appropriate
action against Grantor seeking specific performance of any covenant
contained in this Agreement or in aid of the execution or enforcement
of any power in this Agreement granted.
Transfer Title. Effect transfer of title upon sale of all or part of
the Collateral. For this purpose Grantor irrevocably appoints Lender as
Grantor's attorney-in-fact to execute endorsements assignments and
instruments in the name of Grantor and each of them (if more than one)
as shall be necessary or reasonable.
Other Rights and Remedies. Have end exercise any or all of the rights
and remedies of a secured creditor under the provisions of the Uniform
Commercial Code at law in equity or otherwise.
Application of Proceeds. Apply any cash which is part of the
Collateral, or which is received from the collection or sale of the
Collateral, to reimbursement of any expenses, including any costs for
registration of securities, commissions incurred in connection with a
sale, attorneys' fees and court costs, whether or not there is a
lawsuit and including any fees on appeal, incurred by Lender in
connection with the collection and sale of such Collateral and to the
payment of the Indebtedness of Grantor to Lender, with any excess funds
to be paid to Grantor as the interests of Grantor may appear. Grantor
agrees, to the extent permitted by law. to pay any deficiency after
application of the proceeds of the Collateral to the Indebtedness.
Election of Remedies. Except as may be prohibited by applicable law,
all of Lender's rights and remedies, whether evidenced by this
Agreement, the Related Documents or by any other writing, shall be
cumulative and may be exercised singularly or concurrently Election by
Lender to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to
perform an obligation of Grantor under this Agreement, after Grantor's
failure to perform shall not affect Lender's right to declare a default
and exercise its remedies.
EXCLUSION FROM INDEBTEDNESS. Excluded from indebtedness shall be any
indebtedness governed by the Federal Truth in Lending Act.
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MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the
alteration or amendment.
Attorneys Fees; Expenses. Grantor agrees to pay upon demand all of
Lender's costs and expenses including Lender's attorneys fees and
Lender's legal expenses incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce
this Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services Grantor also shall pay
all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be issued to Interpret or
define the provisions of this Agreement.
No Waiver by Lender. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of Lender
s rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Non-Liability of Lender. The relationship between Grantor and Lender
created by this Agreement is strictly a debtor and creditor
relationship and not fiduciary in nature, nor is the relationship to be
construed as creating any partnership or joint venture between Lender
and Grantor, Grantor is exercising Grantor's own judgement with respect
to Grantor's business. All information supplied to Lender is for
Lender's protection only and no other party is entitled to rely on such
information. There is no duty for Lender to review, inspect supervise
or inform Grantor of any matter with respect to Grantor's business,
Lender and Grantor intend that Lender may reasonably rely on all
information supplied by Grantor to Lender, together with all
representations and warranties given by Grantor to Lender without
investigation or confirmation by Lender and that any investigation or
failure to investigate will not diminish Lender's right to so rely.
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Notices. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered when
actually received by telefacsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if
mailed when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses
shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written
notice to the other parties, specifying that the purpose of the notice
is to change the party s address. For notice purposes, Grantor agrees
to keep Lender informed at all times of Grantor's current address.
Unless otherwise provided or required by law if there is more than one
Grantor any notice given by Lender to any Grantor is deemed to be
notice given to all Grantors.
Severability. If a court of competent jurisdiction finds any provision
of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision
illegal invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that
it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegality,
invalidity, or unenforceability of any provision of this Agreement
shall not effect the legality validity or enforceability of any other
provision of this Agreement.
Sole Discretion of Lender. Whenever Lender s consent or approval is
required under this Agreement, the decision as to whether or not to
consent or approve shall be in the sole and exclusive discretion of
Lender and Lender's decision shall be final and conclusive.
Successors and Assigns. Subject to any limitations stated in this
Agreement on transfer of Grantor's interest, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors
and assigns. If ownership of the Collateral becomes vested in a person
other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Agreement and the
Indebtedness by way of forbearance or extension without releasing
Grantor from the obligations of this Agreement or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the performance of
this Agreement.
Waive Jury. All parties to this Agreement hereby waive the right to any
jury trial in any action proceeding or counterclaim brought by any
party against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the
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context may require Words and terms not otherwise defined in this Agreement
shall have the meanings attributed to such terms In the Uniform Commercial Code:
Agreement. The word "Agreement" means this Commercial Pledge Agreement,
as this Commercial Pledge Agreement may be amended or modified from
time to time, together with all exhibits and schedules attached to this
Commercial Pledge Agreement from time to time.
Borrower. The word "Borrower" means Capital Bank Corporation and
includes all co-signers and co-makers signing the Note.
Collateral. The word "Collateral" means all of Grantor s right title
and interest in and to all the Collateral as described in the
Collateral Description section of this Agreement.
Default. The word "Default" means the Default set forth in this
Agreement in the section titled "Default".
Event of Default. The words "Event of Default" mean individually
collectively, and interchangeably any of the events of default set
forth in this Agreement in the default section of this Agreement.
Grantor. The word "Grantor" means Capital Bank Corporation.
Guarantor. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness, and, in each
case, Grantor's successors, assigns, heirs personal representatives,
executors and administrators of any guarantor surety or accommodation
party.
Guaranty. The word "Guaranty" means the guaranty from Guarantor, or any
other guarantor endorser surety or accommodation party to Lender,
including without limitation a guaranty of all or part of the Note.
Income and Proceeds. The words "Income and Proceeds" mean all present
and future income, proceeds, earnings, increases, and substitutions
from or for the Collateral of every kind and nature, including without
limitation all payments, interest, profits, distributions, benefits,
rights, options, warrants., dividends stock dividends stock splits,
stock rights, regulatory dividends subscriptions, monies, claims for
money due and to become due, proceeds of any insurance on the
Collateral, shares of stock of different par value or no par value
issued in substitution or exchange for shares included in the
Collateral, and all other property Grantor is entitled to receive on
account of such Collateral including accounts, documents, instruments,
chattel paper, and general intangibles.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced
by the Note or Related Documents, including all principal and interest
together with all other
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indebtedness and costs and expenses for which Grantor is responsible
under this Agreement or under any of the Related Documents.
Lender. The word "Lender" means First Tennessee Bank National
Association, its successors and assigns.
Note. The word "Note" means the Note executed by Capital Bank
Corporation in the principal amount of $30,000,000.00 dated December
27, 2005, together with all renewals of extensions of modifications of
refinancings of consolidations of and substitutions for the note or
credit agreement.
Obligor. The word "Obligor" means individually, collectively and
interchangeably without limitation any and all persons obligated to pay
money or to perform some other act under the Collateral.
Property. The word "Property" means all of Grantor's right title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
Related Documents. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages and all other instruments agreements and
documents, whether now or hereafter existing executed in connection
with the Indebtedness.
Stock. The word "Stock" means individually, collectively and
interchangeably Grantor's stock, and other securities to pledge under
this Agreement together with any and all additions thereto,
substitutions therefor or replacements thereof.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE
AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED DECEMBER 27 2005
GRANTOR:
Capital Bank Corporation
By: /s/ B. Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------- -----------------------=-------
B. Xxxxx Xxxxxx, President & CEO Xxxxxxx X. Xxxxxxx, Interim CFO
of Capital Bank Corporation of Capital Bank Corporation
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